# Regan v. City of Fresno

> District Court, E.D. California · April 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10060732

## Case

- **Court:** District Court, E.D. California
- **Decided:** April 18, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10060732

## How later opinions describe it (automated extraction)

- holding that officers who “openly expressed camaraderie with [an abuser] 23 and contempt for [the victim]” increased the danger to the victim
- holding police officers could be held liable for the death from hypothermia of a visibly drunk 24 patron they had ejected from a bar on an extremely cold night
- holding state employees could 27 be liable for the rape of a registered nurse assigned to work alone with a known, violent sex-offender
- holding state could be liable for the rape of a 1 woman that an officer had left stranded in a known high-crime area late at night

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 JENNIFER REGAN, Case No.: 1:23-cv-00828 JLT SKO
12 Plaintiff, ORDER GRANTING MOTION TO DIMISS
WITH LEAVE TO AMEND
13 v.
(Doc. 29)
14 CITY OF FRESNO, FRESNO POLICE

DEPARTMENT, OFFICER ART
15 DELEON, OFFICER LINDSAY DOZIER, 45 Day Deadline

OFFICER TERRY COOPER, OFFICER
16 MATTHEW BRANDT, OFFICER
DANIEL CORONA, OFFICER TY
17
MCFADDEN and DOES 1 through 50,
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Defendant.
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I. BACKGROUND
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Jennifer Regan alleges that Defendants, the City of Fresno (City), its Police Department
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(FPD), and several of its sworn peace officers, failed to protect her from her abusive ex-
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boyfriend, Mario Colombo, despite her numerous communications with Defendants in which she
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relayed, among other things, that he was threatening to shoot her. (Doc. 1.)1
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In the early months of 2021, Colombo was arrested for threatening Plaintiff’s life and was
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issued a criminal protective order (CPO) to cease all contact with Plaintiff and to stay away from
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Plaintiff’s person, home, work, and family. (Id., ¶¶ 31–35.) The situation continued to escalate,
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28 1 The facts described in Plaintiff’s complaint are presumed true for purposes of evaluating the pending motion to
1 with Colombo showing up near Plaintiff’s home and eventually leaving live ammunition on her
2 doorstep. (Id., ¶¶ 41–46.) Despite Plaintiff’s repeated calls to Defendants about her concerns,
3 Plaintiff claims that Defendants responded largely with inaction and by giving conflicting and
4 confusing advice. (See id., ¶¶ 40, 46, 48–50.)
5 In late June and early July 2021, Colombo left Plaintiff threatening voicemail messages,
6 which Plaintiff reported to police. (Doc. 1, ¶¶ 53, 58.) On July 7, 2021, Plaintiff told Defendant
7 Officer Terry Cooper that she received a call from Colombo’s ex-girlfriend, who indicated that
8 Colombo had been burning bridges with all his friends and that he had stolen a gun with the
9 specific intent to use it to kill Plaintiff. (Id., ¶ 62.) Plaintiff provided Officer Cooper a
10 corroborating text message. (Id., ¶ 63.) Officer Cooper indicated to Plaintiff that she was “going
11 to send detectives to arrest Colombo right away,” which Plaintiff alleges gave her “a confusing
12 and inconsistent sense of security.” (Id., ¶ 64.) However, Plaintiff alleges that Officer Cooper did
13 not in fact do anything to arrest or thwart Colombo. (Id., ¶ 65.)
14 On July 9, 2021, with the assistance of another person, Colombo ambushed Plaintiff at a
15 red light, shooting her twice in the upper body. Plaintiff subsequently crashed into another vehicle
16 at Herndon Ave. and N. First Street due to her injuries. (Doc. 1, ¶ 17.) Plaintiff was shot through
17 the neck, which severed her spinal cord. (Id., ¶ 18.) She survived the shooting. (Id., ¶ 19.) As of
18 the date the Complaint in this case was filed, Plaintiff was living with quadriplegia and is
19 “entirely dependent on others for all activities of daily living including feeding, bathing, dressing,
20 and using the bathroom.” (Id.)
21 Plaintiff filed this federal civil rights lawsuit against the City, FPD, and FPD Officers Art
22 Deleon, Lindsay Dozier, Terry Cooper, Matthew Brandt, Daniel Corona, and Ty Mcfadden. (Doc.
23 1.) She alleges all Defendants violated her Fourteenth Amendment substantive due process rights
24 under the state-created danger doctrine. (Id., ¶¶ 93-108.) She also advances a failure to train claim
25 against the City and FPD, pointing to their “systematic disregard for domestic violence and CPO
26 violations, failure to act with urgency or take necessary protective measures, failure to arrest the
27 perpetrator despite clear violations of the CPO and placing the burden on the victim to initiate
28 substantive police action reveal a pervasive failure to train, supervise, and correct the offending
1 behavior within the Fresno Police Department.” (Id., ¶¶ 109–129.)
2 Defendants move to dismiss both claims. (Doc. 29.)2 Plaintiff does not oppose dismissal
3 of the failure to train claim, so that motion is GRANTED. Plaintiff does oppose dismissal of her
4 state created danger claim, (Doc. 31), and Defendants filed a reply. (Doc. 32.) For the reasons set
5 forth below, the Court will grant the motion to dismiss the state created danger claim with leave
6 to amend because the facts as alleged do not support this cause of action under these
7 circumstances.
8 II. LEGAL STANDARDS
9 A Rule 12(b)(6) motion “tests the legal sufficiency of a claim.” Navarro v. Block, 250
10 F.3d 729, 732 (9th Cir. 2001). In ruling on a motion to dismiss filed pursuant to Rule 12(b), the
11 Court “may generally consider only allegations contained in the pleadings, exhibits attached to
12 the complaint, and matters properly subject to judicial notice.” Outdoor Media Grp., Inc. v. City
13 of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted).
14 Dismissal of a claim under Rule 12(b)(6) is appropriate when “the complaint lacks a
15 cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v.
16 Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Thus, “[t]o survive a motion to
17 dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
18 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
19 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court explained,
20 A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
21 defendant is liable for the misconduct alleged. The plausibility
standard is not akin to a “probability requirement,” but it asks for
22 more than a sheer possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are “merely consistent with” a
23 defendant’s liability, it “stops short of the line between possibility
and plausibility of ‘entitlement to relief.’”
24
25 Iqbal, 556 U.S. at 678 (internal citations omitted).
26 When considering a motion to dismiss, the Court must accept the factual allegations made
27 in the complaint as true. Hosp. Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 740 (1976). A court

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1 must construe the pleading in the light most favorable to the plaintiffs and resolve all doubts in
2 favor of the plaintiffs. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legal
3 conclusions need not be taken as true when “cast in the form of factual allegations.” Ileto v.
4 Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003).
5 To the extent pleadings can be cured by the plaintiff alleging additional facts, leave to
6 amend should be granted. Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d
7 242, 247 (9th Cir. 1990) (citations omitted).
8 III. DISCUSSION
9 The Due Process Clause of the Fourteenth Amendment is “a limitation on state action and
10 is not a ‘guarantee of certain minimal levels of safety and security.’” Martinez v. City of Clovis,
11 943 F.3d 1260, 1271 (9th Cir. 2019) (quoting DeShaney v. Winnebago Cnty. Dep’t of Social
12 Servs., 489 U.S. 189, 195 (1989)).
13 Simply failing to prevent acts of a private party is insufficient to
establish liability. The general rule is that a state is not liable for its
14 omissions and the Due Process Clause does not impose a duty on the
state to protect individuals from third parties.
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There are two exceptions to this general rule. First, a special
16 relationship between the plaintiff and the state may give rise to a
constitutional duty to protect. Second, the state may be
17 constitutionally required to protect a plaintiff that it affirmatively
places . . . in danger by acting with deliberate indifference to a known
18 or obvious danger.
19 Id. (internal quotations and citations omitted)
20 The seminal state-created danger case, DeShaney, 489 U.S. at 191, held that social
21 workers and local officials were not liable under § 1983 on a failure-to-act theory for injuries
22 inflicted on a child by his father. Though the defendants received complaints that the child was
23 abused by his father, they failed to remove the child from his father’s custody. Id. The Supreme
24 Court reasoned that “[w]hile the State may have been aware of the dangers that [the child] faced
25 in the free world, it played no part in their creation, nor did it do anything to render him any more
26 vulnerable to them.” Id. at 201 (emphasis added). The Court acknowledged that the state had
27 previously taken temporary custody of the child and then returned him to his father, but found
28 that this “placed [the child] in no worse position than that in which he would have been had it not
1 acted at all[.]” Id. “Given that the state actors did not create or enhance any danger to the child,
2 the state did not have a constitutional duty to protect him from the private violence inflicted by
3 his father.” Murguia v. Langdon, 61 F.4th 1096, 1110 (9th Cir. 2023) (citing DeShaney, 489 U.S.
4 at 201).
5 The Ninth Circuit “ha[s] interpreted DeShaney to mean that if affirmative conduct on the
6 part of a state actor places a plaintiff in danger, and the officer acts in deliberate indifference to
7 that plaintiff’s safety, a claim arises under § 1983.” Id. (internal quotation omitted). The Ninth
8 Circuit’s summary of the doctrine in Murguia concisely explains the controlling standards:
9 The state-created danger exception has two requirements. “First, the
exception applies only where there is ‘affirmative conduct on the part
10 of the state in placing the plaintiff in danger.’ Second, the exception
applies only where the state acts with ‘deliberate indifference’ to a
11 ‘known or obvious danger.’” [Patel v. Kent sch. Dist., 648 F.3d 965,
974 (9th Cir. 2011)] (internal citation omitted) (quoting Munger v.
12 City of Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000)
and then quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)).
13
To satisfy the first requirement, a plaintiff “must show that the
14 officers’ affirmative actions created or exposed [him] to an actual,
particularized danger that [he] would not otherwise have faced.”
15 Martinez, 93 F.3d at 1271. “In examining whether an officer
affirmatively places an individual in danger, we do not look solely to
16 the agency of the individual, nor do we rest our opinion on what
options may or may not have been available to the individual.
17 Instead, we examine whether the officers left the person in a situation
that was more dangerous than the one in which they found him.”
18 Munger, 227 F.3d at 1086. “The critical distinction is not . . . an
indeterminate line between danger creation and enhancement, but
19 rather the stark one between state action and inaction in placing an
individual at risk.” [Penilla v. City of Huntington Park, 115 F.3d 707,
20 710 (9th Cir. 1997)]. Furthermore, the plaintiff’s ultimate injury must
have been foreseeable to the defendant. Martinez, 943 F.3d at 1273.
21 “This does not mean that the exact injury must be foreseeable.
Rather, ‘the state actor is liable for creating the foreseeable danger of
22 injury given the particular circumstances.’” Id. at 1273–74 (quoting
Kennedy v. City of Ridgefield, 439 F.3d 1055, 1064 n.5 (9th Cir.
23 2006)).
24 As to the second requirement, “Deliberate indifference is ‘a stringent
standard of fault, requiring proof that a municipal actor disregarded
25 a known or obvious consequence of his action.’” Patel, 648 F.3d at
974 (Bryan Cnty v. Brown, 520 U.S. 397, 410 (1997)). This standard
26 is higher than gross negligence and requires a culpable mental state.
Id. at 974. When assessing non-detainee failure-to-protect claims, we
27 apply a purely subjective deliberate indifference test. Herrera v. L.A.
Unified Sch. Dist., 18 F.4th 1156, 1161 (9th Cir. 2021). “For a
28 defendant to act with deliberate indifference, he must ‘recognize[ ]
1 the unreasonable risk and actually intend[ ] to expose the plaintiff to
such risks without regard to the consequences to the plaintiff.’” Id. at
2 1158 (quoting Grubbs, 92 F.3d at 899). In other words, the state actor
must “know[ ] that something is going to happen but ignore[ ] the
3 risk and expose[ ] [the plaintiff] to it.” Grubbs, 92 F.3d at 900
(emphasis in original). “The deliberate-indifference inquiry should
4 go to the jury if any rational factfinder could find this requisite mental
state.” Patel, 648 F.3d at 974.
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6 61 F.4th at 1111.
7 Here, the primary Defense argument is that Plaintiff has failed to allege a sufficient
8 affirmative act. The Ninth Circuit has applied the state-created danger doctrine in several cases
9 that are instructive here. In Kennedy v. City of Ridgefield, 439 F.3d 1055, 1057 (9th Cir. 2006),
10 Kimberly Kennedy called the police to report that a young neighbor had molested her daughter.
11 Kennedy warned police that the neighbor had violent tendencies. Id. The investigating officer
12 assured Kennedy that she would be given notice prior to any police contact with the alleged
13 abuser or his family. Id. at 1058. Later that month, rather than giving Kennedy the promised prior
14 notice, the officer interviewed the alleged abuser’s mother and informed her of the Kennedy’s
15 allegations. Id. Then, after that interview was conducted, the officer told Kennedy that the other
16 mother now had knowledge of the molestation allegations. Id. Kennedy expressed fear for her
17 safety. Id. The officer assured Kennedy that police would patrol the area around her house and the
18 accused abuser’s house to “keep an eye” on the situation. Id. Though the family immediately
19 made plans to leave town the next day, the alleged abuser broke into the Kennedy’s home
20 overnight and shot both the Kennedy parents while they slept. Id.
21 The Ninth Circuit concluded that the officer “affirmatively created a danger” to the
22 Kennedy family by informing the abuser’s family before the Kennedy family had the opportunity
23 to protect themselves. 439 F.3d at 1063. This created an opportunity for the abuser to assault the
24 Kennedys “that otherwise would not have existed.” Id. In addition, the Ninth Circuit noted that
25 the officer had assured the Kennedys that, given the threat posed, they would patrol the
26 neighborhood that night. Id. Though the Ninth Circuit “[did] not rest [the] judgment that [the
27 officer] affirmatively created a danger on that assurance alone, [ ] in light of it, it is quite
28 reasonable that the Kennedys decided late that night . . . to remain at home” instead of leaving
1 immediately. Id. Therefore, the officer’s “misrepresentation as to the risk the Kennedy’s faced
2 was an additional and aggravating factor, making them more vulnerable to the danger he had
3 already created.” Id.
4 Martinez, 943 F.3d 1260, provides additional definition to these rules in the domestic
5 violence context. Martinez, a victim of repeated sexual and physical abuse at the hands of her
6 one-time boyfriend, sued several officers and municipal entities under the state-created danger
7 doctrine. Id. at 1266–70. She advanced several allegations that were found insufficient to trigger
8 the state created danger doctrine. For example, she alleged that one officer “placed her in greater
9 danger by failing to inform her of her rights or options, failing to provide her with [a police]
10 handout for domestic violence victims, and failing to make an arrest.” Id. at 1272. Though “these
11 failures may have been a dereliction of [the officer’s] duties, they were not an affirmative act that
12 created an actual, particularized danger.” Id. (internal quotation and citation omitted). Another
13 officer “failed to separate [plaintiff] from [her abuser] when conducting [an] interview, . . . did
14 not provide [plaintiff] with information that may have allowed her to escape further abuse, and
15 did not issue an emergency protective order.” Id. These allegations were also insufficient because
16 “Martinez was left in the same position she would have been in had [the officer] not acted at all.”
17 Id. However, one officer told Martinez’s alleged abuser about her allegations and stated that she
18 was not “the right girl” for Martinez. Id. The Ninth Circuit concluded that a reasonable jury could
19 have found that the officer’s disclosures provoked the abuser, and that the officer’s disparaging
20 comments about the plaintiff emboldened the abuser to believe he could further harm plaintiff
21 with impunity. Id.;3 see also Okin v. Village of Cornwall-On-Hudson Police Dept., 577 F.3d 415,
22 430–31 (2d Cir. 2009) (holding that officers who “openly expressed camaraderie with [an abuser]
23 and contempt for [the victim]” increased the danger to the victim)4.
24
3 The Ninth Circuit recently held that another officer involved in the Martinez domestic abuse investigation and who
25 engaged in similar conduct was nonetheless shielded by the doctrine of qualified immunity because the case law in
existence at the time of the relevant conduct did not make it clear that such conduct would violate the constitution.
26 Martinez v. High, 91 F.4th 1022, 1030–31 (9th Cir. 2024).

27 4 Plaintiff relies on Okin for the proposition that a failure to protect claim may arise when law enforcement officers
demonstrate a “dismissive” attitude toward domestic abuse allegations. (See Doc. 31 at 5.) However, the Ninth
28 Circuit acknowledged in Martinez that Okin had not been “embraced by a consensus of courts,” and may be “in
1 One case not mentioned by either party is Henderson v. County of Santa Cruz, 2015 WL
2 225429, *1 (N.D. Cal. Jan. 16, 2015). There, James, a mentally ill inmate confined to a county
3 jail threatened his parents while in confinement. Id. The parents allegedly received assurances
4 from the county that they would be warned before the inmate was released. Id. They were not
5 warned, however, and James murdered his parents within several months of his release. Id.
6 Viewing the facts in the light most favorable to the deceased parents, the district court concluded
7 that the complaint sufficiently alleged that the county’s conduct exposed the parents “to a danger
8 they would not have otherwise faced.”
9 Specifically, because the Hendersons were not warned that James
was released, or that he was released into homelessness, they “did
10 not call upon other law enforcement authorities or resources to
ensure their safety upon James’ release.” Although the County
11 argues that the Hendersons knew of James's violent threats, and knew
that he would be released eventually, the Hendersons did not know
12 James would be released into unsupervised homelessness and may
have taken additional steps to protect themselves. Thus, had the
13 County done nothing–made no representations to the Hendersons—
they would have faced the danger of James being released and
14 surprising them without any warning. Based on the actions of the
County—assuring the Hendersons that they would be notified of
15 James’s release—the Hendersons believed they faced a much []
different risk, and did not prepare themselves for the risk they
16 actually faced.
17 Id. at *5. Though “a mere failure to warn of a danger is not a sufficient state act, as it is not
18 affirmative conduct,” the Hendersons “alleged affirmative conduct on the part of the County
19 when the County made a promise to warn the Hendersons and then released James into
20 homelessness.” Id. Those allegations “align[ed]” the case with Kennedy, “where a failure to warn
21 arguably placed plaintiffs in a more dangerous situation than the family previously faced.” Id.
22 (citing Kennedy, 439 F.3d at 1063).
23 One district court has reasoned that Kennedy and Henderson “teach that actionable danger
24

25 officers in Martinez were granted qualified immunity due to the “muddled” nature of the law as of 2019, going
forward the Ninth Circuit held “that the state-created danger doctrine applies when an officer reveals a domestic
26 violence complaint made in confidence to an abuser while simultaneously making disparaging comments about the
victim in a manner that reasonably emboldens the abuser to continue abusing the victim with impunity.” Id. In
27 addition, the Ninth Circuit held “that the state-created danger doctrine applies when an officer praises an abuser in
the abuser’s presence after the abuser has been protected from arrest, in a manner that communicates to the abuser
28 that the abuser may continue abusing the victim with impunity.” Id. Notably, the Complaint in this case does not
1 created by the state’s failure to warn requires affirmative assurances by the state that are later
2 reneged.” Coats v. City of Los Alamitos, No. 8:18-CV-01161 JLS DFM, 2019 WL 6903833, at *6
3 (C.D. Cal. Aug. 2, 2019) (distinguishing Henderson because the state actor did not promise to
4 apprise the victims of a third-party threat). However, other district courts have emphasized that
5 such assurances cannot make out a claim on their own. Id. This was the case in Kennedy, where,
6 as discussed above, the promise of police patrols amounted to a “misrepresentation as to the risk
7 the Kennedy’s faced,” which was an “additional and aggravating factor, making them more
8 vulnerable to the danger [the officer] had already created.” 439 F.3d at 1063.
9 Cushman v. City of Troutdale, No. CIV. 07-0012-HU, 2009 WL 890505 (D. Or. Mar. 30,
10 2009), provides some additional perspective. There, the plaintiff, Cushman, was dating Ramirez,
11 who was on probation after a prior domestic abuse conviction. Id. at *1. Ramirez struck Cushman
12 and she went to the police and indicated she wanted to press charges. Id. According to Cushman,
13 the investigating officer, Leake, promised to contact Ramirez’s probation officer. Id. at *4. It was
14 unclear whether the officer did so before he left on an extended vacation without telling Plaintiff.
15 Id. at *1 While the officer was away, Ramirez attacked Cushman with a knife, seriously injuring
16 her. Id. Cushman argued that the officer’s promise to inform Ramirez’s probation officer was
17 akin to the promise to pre-warn the Kennedys of any conversation with the abuser’s family,
18 “thereby creating the same false sense of security.” 2009 WL 890505, at *4. The Cushman court
19 did not agree because, unlike in Kennedy where the officer affirmatively created a danger by
20 notifying the alleged abuser’s family of the allegations against him, the state did not create the
21 danger faced by Cushman.
22 Consistent with Kennedy, other Ninth Circuit courts have required
proof that the state actor created the danger. See Munger v. City of
23 Glasgow, 227 F.3d 1082 (9th Cir. 2000) (holding police officers
could be held liable for the death from hypothermia of a visibly drunk
24 patron they had ejected from a bar on an extremely cold night);
Penilla v. City of Huntington Park, 115 F.3d 707 (9th Cir. 1997)
25 (holding as viable a state-created danger claim against police officers
who, after finding a man in grave need of medical care, cancelled a
26 request for paramedics and locked him inside his house); L.W. v.
Grubbs, 974 F.2d 119 (9th Cir. 1992) (holding state employees could
27 be liable for the rape of a registered nurse assigned to work alone
with a known, violent sex-offender); Wood v. Ostrander, 879 F.2d
28 583 (9th Cir. 1989) (holding state could be liable for the rape of a
1 woman that an officer had left stranded in a known high-crime area
late at night).
2
In every case involving state-created danger, the state actor played a
3 significant role in creating the dangerous situation: whether by
revealing the plaintiff’s allegations to the neighbor in Kennedy,
4 ejecting the drunk patron from a bar in Munger, dragging the injured
man inside his house in Penilla, assigning the nurse to work alone
5 with a known sex-offender in Grubbs, or stranding a woman in a
dangerous area in Wood. Leake’s supposed affirmative acts fall far
6 short of this standard. Construing the facts in the light most favorable
to plaintiff, Leake is guilty of the following: assuring plaintiff that he
7 would call Montgomery, telling plaintiff she did not need to call
Montgomery, failing to contact Montgomery, not running a
8 background check on Ramirez, telling plaintiff to investigate areas
she thought Ramirez might visit and report his whereabouts, and
9 going on vacation without telling plaintiff or changing his answering
machine message.
10
There is no evidence that plaintiff’s injuries were caused by forces
11 that Leake set in motion. Unlike the officer in Kennedy, who created
a dangerous situation by revealing the plaintiff’s accusations to her
12 neighbor, Leake’s conduct did not create a danger that plaintiff did
not already face. Rather, the record clearly indicates that Ramirez—
13 high on methamphetamine and with a history of domestic violence—
independently decided to attack plaintiff on October 8, 2005.
14 Although Leake may have been able to prevent plaintiff’s injuries,
by either contacting Montgomery or otherwise helping to take
15 Ramirez into custody, Leake’s alleged negligence did not create a
danger that did not previously exist. Because plaintiff has not shown
16 an affirmative conduct that created a danger, plaintiff cannot
establish a due process claim.
17
18 Id. at *5. Coates recognized there is “tension” between Cushman and Henderson, but declined to
19 resolve that tension, finding that Coats had not alleged a relevant promise or assurance. See
20 Coats, 2019 WL 6903833, at *7 n.7.
21 Here, Plaintiff alleges that two days before the shooting, Officer Cooper promised to
22 arrest Columbo “right away,” but ultimately failed to take steps to do so. (Doc. 1, ¶¶ 64–65.) This
23 conduct resembles the conduct in Henderson in some respects because Cooper’s alleged promise
24 could have caused Plaintiff to believe the risk Columbo posed to her had been abated. However,
25 Henderson is at least arguably distinguishable. There, the county defendants took the affirmative
26 step of releasing James into the community. That, coupled with their failure to warn the parents
27 arguably amounted to an affirmative act akin to the act(s) at issue in Kennedy. Id. Here, by
28 contrast, Cooper’s failure to arrest Columbo as promised did nothing to create the danger posed to
1 Plaintiff by Columbo. This brings the present case much closer to the facts of Cushman, where
2 the officer’s failure to contact the abuser’s probation officer was not affirmative conduct that
3 created a danger.
4 Plaintiff’s other allegations do not meet the threshold either. She argues generally that she
5 has alleged “a series of omissions and lack of intervention that created a dangerous situation for
6 the Plaintiff.” (Doc. 31 at 4.)5 Indeed Plaintiff has alleged that Defendants provided her with false
7 promises of protection by repeatedly giving her victim’s rights handouts and related paperwork
8 which “promised” her protection from abuse. (Doc. 1, ¶ 100.) She also alleges that Defendants
9 promised to “consider her and her family’s safety when releasing Columbo from custody, and to
10 inform her about Columbo’s release.” (Id., ¶ 100.) These allegations do not amount to affirmative
11 conduct that created any danger.
12 The Court notes that the Complaint contains confusing allegations regarding the possible
13 confiscation of Columbo’s registered firearms by police. Plaintiff alleges that on June 23, 2021,
14 “Officer[s] Brandt and McFadden confirmed through records check that Colombo had registered
15 firearms, and that there was a valid CPO which Colombo was in violation of.” (Doc. 1, ¶ 55.)
16 Apparently, Columbo also left an angry voicemail for Plaintiff on June 23, 2021 indicating,
17 among other things, that “the cops took my guns.” (Id., ¶ 53.) According to Plaintiff, “Colombo was
18 a well-known, strong proponent of his Second Amendment rights. His public Facebook account made
19 it clear that he viewed any intrusion on his Second Amendment as a violent and personal attack
20 against him for which he would take revenge for. Colombo believed Plaintiff was to blame if his guns
21 were taken away.” (Id., ¶ 54.) Elsewhere, however, the Complaint appears to acknowledge that
22 Columbo’s weapons were not actually confiscated. (Id., ¶ 55 (“It was unclear whether law
23 enforcement had in fact taken Colombo’s guns away, but it appears not.”).) To the extent Plaintiff is
24 suggesting that the confiscation of Columbo’s weapons, or possibly just the threat of that confiscation,
25 satisfies the affirmative act requirement as that requirement is set forth in Martinez, the Court believes
26

27 5 Perhaps recognizing that these allegations do not match the relevant standard, she also attempts to re-shape the
holding of Kennedy as follows: “a state actor can be held liable if they failed to protect a plaintiff, after promising to
28 do so, where there were already known threats from a third party.” (Doc. 31 at 4.) As discussed in detail above, this is
een eee eee on nn nen nn en on nn nnn ne nn nn nnn nn ne ns NS

1 | the present allegations are insufficient, as the role of the police in any confiscation effort remains
2 | unclear, even viewing the facts in the light most favorable to Plaintiff. However, because the
3 | deficiencies outlined herein may be curable by the allegation of additional facts, the Court will
4 | permit the filing of an amended complaint. Plaintiff is cautioned, however, to read this ruling
5 | carefully. Particularly considering the elimination of the Monell claim, Plaintiff must take care to
6 || examine the conduct of each responding officer and only name in any amended complaint those
7 | officers as defendants whose own conduct plausibly amounts to a constitutional violation.
8 IV. CONCLUSION AND ORDER
9 For the reasons set forth above:
10 (1) The motion to dismiss (Doc. 29) is GRANTED WITH LEAVE TO AMEND.
11 (2) Plaintiff shall have 45 days to file any amended complaint or a notice that she will not
12 be amending the complaint. Failure to timely file an amendment or notice of non-amendment
13 may result in the Court sua sponte dismissing the action without further notice.
14
1s IT IS SO ORDERED.
6 Dated: _ April 18, 2024 Charis [Tourn
TED STATES DISTRICT JUDGE
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12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10060732. Public record. Not legal advice.