Opinion
No. 2:11-cv-00310-TLN-JFM
06-03-2013
BRYAN DENMAN, Plaintiff, v. CITY OF TRACY, Defendant.
MEMORANDUM AND ORDER
This matter came before the Court upon the City of Tracy's ("Defendant") Motion to Dismiss. (Def.'s Mot. to Dismiss, ECF No. 58.) The Court has carefully considered the arguments presented in Bryan Denman's ("Plaintiff") Opposition to Defendant's Motion. (Pl.'s Opp'n, ECF No. 61.) For the reasons set forth below, the Court grants Defendant's motion to dismiss.
This matter was submitted without oral argument on May 9, 2013. (Minute Order, ECF No. 66); see also E.D. Cal. Local Rule 230(g).
BACKGROUND
In Plaintiff's Third Amended Complaint, he alleges that on or about August 31, 2010, a City of Tracy police officer pulled him over for a minor traffic infraction. (Pl.'s Third Amended Complaint, ECF No. 33 at ¶ 6.) Plaintiff consented to a search of his vehicle, during which the officer found a lug nut wrench underneath the driver's seat. (ECF No. 33 at ¶ 7.) When asked about the wrench, Plaintiff stated that he did not know that it was under the seat because the vehicle belonged to his parents. (ECF No. 33 at ¶ 7.) The officer admonished Plaintiff that he was in possession of a deadly weapon and subsequently arrested him on felony possession of a deadly weapon. (ECF No. 33 at ¶ 7.)
Upon arriving at the police station, Plaintiff was kept handcuffed and placed in a chair with his hands behind his back. (ECF No. 33 at ¶ 9.) One of the officers, who was introduced as a sergeant, became enraged by Plaintiff's comments and rushed over to Plaintiff, grabbed him by the neck, and violently threw him to the floor. (ECF No. 33 at ¶ 9.) During the altercation, Plaintiff struck his head. (ECF No. 33 at ¶ 9.) Several police officers proceeded to hold Plaintiff down while one officer punched him. (ECF No. 33 at ¶ 11.) The officers then wrapped Plaintiff in a restraint device, similar to a strait-jacket, and placed a hood or blindfold device over his head, making it difficult for Plaintiff to breathe or see. (ECF No. 33 at ¶ 12.) Plaintiff also alleges that the officers tightened his handcuffs to the point that they caused him extreme pain. (ECF No. 33 at ¶ 12.) Plaintiff claims that he has suffered injuries as a result of the incident including post-concussive symptoms, bruising and red marks on his wrists, bruising on his back and legs, a lump on his head, and a black eye. (ECF No. 33 at ¶ 15.)
Following the incident, Plaintiff filed a complaint with the City of Tracy Police Department. (ECF No. 33 ¶ 22). In response, the Chief of Police sent Plaintiff a letter stating that the Internal Affairs Department had conducted an investigation into his arrest on August 21, 2010, and that no violations of policy or law were found. (ECF No. 33 at ¶ 22; Pl.'s Req. for Judicial Notice, ECF No. 63, Exhibit 3.) Plaintiff alleges there is a culture of tolerance within the Tracy Police Department that is "rooted in the deliberate indifference of high ranking City officials, individually and/or acting in concert with one another, who have routinely acquiesced in the misconduct and otherwise failed to take necessary measures to prevent and curtail such misconduct." (ECF No. 61.) Plaintiff further alleges that Defendant has ratified this misconduct by failing to take any steps to reprimand or discharge the officers that were allegedly involved in the incident. (ECF No. 61.)
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In determining the adequacy of the pleading, the Court must determine whether plaintiff would be entitled to some form of relief if the facts alleged in the complaint were true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). However, the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft, 556 U.S. at 678 (internal quotations omitted). Moreover, the factual matter must state a claim to relief that is plausible on its face. Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
ANALYSIS
Defendant filed a 12(b)(6) motion contending that Plaintiff's claim should be dismissed because Plaintiff fails to allege sufficient facts to support municipal liability. (ECF No. 58.) "To sustain an action under § 1983, a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a constitutional right." Balistreri, 901 F.2d at 699 (citations omitted). Under the Supreme Court's decision in Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 689-91 (1977), a government entity may be held liable under 42 U.S.C. § 1983, but such liability must be founded upon evidence that the government unit itself supported a violation of constitutional rights and not on the basis of the respondeat superior doctrine or vicarious liability. As such, municipal liability only attaches when execution of a government's policy or custom inflicts the plaintiff's injury. Id. at 694; see also Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403 (1997). The Ninth Circuit has held that a single incident will not suffice to show a policy. See Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999). A plaintiff may demonstrate a policy or custom of a municipality by showing:
(1) a longstanding practice or custom which constitutes the standard operating procedure of the local government entity;Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (citing Ulrich v. City and County of San Francisco, 308 F.3d 968, 984-85 (9th Cir. 2002)) (internal quotation marks and citations omitted).
(2) that the decision-making official was, as a matter of state law, a final
policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision; or
(3) that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate.
I. Long Standing Policy or Practice
In order to succeed, Plaintiff must show a longstanding practice or custom which constitutes the standard operating procedure of the local government entity. See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). "The custom must be so 'persistent and widespread' that it constitutes a permanent and well settled city policy." Id. (quoting Monell, 436 U.S. at 691). "Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy." Id.
Plaintiff's third amended complaint presents three arguments in support of his contention that his constitutional rights were violated pursuant to Defendant's longstanding practice or custom. First, he argues that Defendant has "customs, policies or practices which encouraged, authorized, or condoned false arrests, fabrication of evidence, falsification of police reports and/or other misconduct which foreseeably would result in the violation of rights." (ECF No. 32 at ¶ 32). Although Plaintiff alleges the existence of this custom, he fails to allege any facts that support his contention that the officers' conduct is persistent and widespread enough to constitute a well settled city policy. Instead, Plaintiff has only alleged facts concerning a single incident. Accordingly, the factual allegations do not support an inference that such a policy exists.
Second, Plaintiff contends that Defendant has exhibited deliberate indifference in creating a policy or practice of disregarding the need for "more or different training and/or supervision and/or discipline of its police officers, including, but not limited to, the unknown officers involved in the above described incident." (ECF No. 32 at ¶ 27.) Although the Supreme Court has held that the inadequacy of police training may serve as the basis for § 1983 liability, it has done so only where "the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact," and the municipality's policies are the "moving force [behind] the constitutional violation." City of Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989). "This [deliberate indifference] standard is met when 'the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.'" Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 2010) (quoting Canton, 489 U.S. at 390).
Plaintiff has not pled any facts that support his contention that the City was in need of such training or that it was aware of such a need. Instead, Plaintiff has alleged only that
[t]he incidents described herein were caused by the deliberate indifference of the City of Tracy, and/or other high ranking Police Department officials and/or supervisors, with regard to the need for more or different training and/or supervision and/or discipline of its police officers, including, but not limited to, the unknown officers involved in the above described incident.(ECF No. 33 at ¶ 27.) This allegation lacks any factual basis to support it and is thus nothing more than a conclusory statement. See Ashcroft, 556 U.S. at 678 (holding that a complaint that tenders "naked assertions devoid of factual enhancement" cannot survive a motion to dismiss). As such, Plaintiff's complaint fails.
Finally, Plaintiff alleges that Defendant has a widespread practice of disregarding its own policy, which is to record certain arrest situations. (ECF No. 33 at ¶ 23.) He further argues that the officers' failures to adhere to this policy evidences Defendant's practice of tolerating misconduct. (ECF No. 32 at ¶¶ 23-27). As Defendant has recognized, the policy of recording police contacts is not itself unconstitutional. See Lanza v. State of N.Y., 370 U.S. 139, 143 (1962) (holding that "it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day"). There is no constitutional right to have police contacts recorded, and there are no factual allegations that the lack of recording had any causal relation to the incident. Moreover, this Court finds that Plaintiff's assertion is akin to a respondeat superior liability theory, which has been rejected by the Supreme Court as a basis for municipality liability under 28 U.S.C. §1983. See Monel, 436 U.S. at 689. Thus, Plaintiff's complaint does succeed under this prong.
II. Final Policy Maker
Plaintiff also fails to support his contentions that a sergeant that was allegedly involved in the incident was acting as a final policy maker in doing so. In Plaintiff's Opposition, he states that the police sergeant, who allegedly used excessive force and violated Plaintiff's rights, "set in motion a series of acts by others" which directly led to the use of excessive force against Plaintiff. (ECF No. 61.) Specifically, Plaintiff argues that the sergeant constitutes a high-ranking official and that his actions promulgated policies that condoned a "Code of Silence" where police officers ignored or failed to report misconduct on behalf of other police officers. (ECF No. 61).
"[A] municipality can be liable for an isolated constitutional violation when the person causing the violation has final policymaking authority." Christie, 176 F.3d at 1235; see also City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality) (holding that "only those municipal officials who have final policymaking authority may by their actions subject the government to § 1983 liability") (internal quotations omitted). Plaintiff has not alleged any facts or case law, however, in support of his contention that the sergeant qualifies as a final policy maker, or that the sergeant's actions may fairly be said to represent an official policy. Thus, Plaintiff's allegations alone do not support a claim for municipality liability.
Whether an official has final policymaking authority is a question for the court to decide based on state law. See Christie, 176 F.3d at 1235; Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989).
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III. Ratification
Finally, Plaintiff's allegation—that Defendant is liable because it ratified the alleged conduct by not disciplining the officers that were involved—fails to state a claim because Plaintiff has not alleged any facts to plausibly support his ratification claim. "To show ratification, a plaintiff must prove that the authorized policymakers approve a subordinate's decision and the basis for it." Christie, 176 F.3d at 1239 (internal quotation omitted). It requires that municipal policymakers make a deliberate choice to endorse a subordinate's decision and the basis for it. See Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992).
In his complaint, Plaintiff alleges that the officers' conduct was ratified because they "were completely exonerated from all allegations of excessive force." (ECF No. 33 at ¶ 22.) In support of his contention, Plaintiff has submitted a letter that the City of Tracy Chief of Police sent him stating that "no violations of policy or law were found to have been committed" in regard to his complaint. (ECF No. 62, Exhibit 3.) Additionally, Plaintiff cites Larez v. City of Los Angeles, 946 F.2d 630, 635 (9th Cir. 1991), for the proposition that a City can be liable where the Chief of Police ratifies misconduct by signing a letter exonerating the officials.
Although Plaintiff is correct that a knowing ratification may be the basis for liability, he fails to allege sufficient facts to support this liability claim. Neither the allegations set forth in the complaint, nor the letter provide facts that would support an inference that the City endorsed the alleged conduct or even had knowledge that the conduct in fact occurred. Instead, the factual matter plausibly suggests that Defendant did not find evidence of the alleged conduct. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Ashcroft, 556 U.S. at 678 (internal quotations omitted). In Larez, there was evidence that the Chief of Police knew of the misconduct and regarded such conduct as acceptable. Larez, 946 F.2d at 635-36. In contrast, Plaintiff has not alleged facts that would allow such an inference. Thus, Plaintiff's Third Amended Complaint fails to state a claim that he is entitled to relief from Defendant.
CONCLUSION
The Court finds that even taking the alleged facts as true Plaintiff's Third Amended Complaint is devoid of sufficient facts to allege liability against Defendant. As such, Defendant's Motion to Dismiss is granted. This Court is cognizant of the fact that Plaintiff has had numerous opportunities to amend his complaint. In an effort to promote justice, this Court will allow Plaintiff leave to amend. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (holding that "generally, Rule 15 advises the court that leave shall be freely given when justice so requires") (internal quotations omitted). However, should Plaintiff file an amended complaint that does not cure the deficiencies that have been addressed in this order, such complaint will be dismissed with prejudice. See Mir v. Fosburg, 646 F.2d 342, 347 (9th Cir. 1980) (holding that "a district court has broad discretion to grant or deny leave to amend, particularly where the court has already given a plaintiff one or more opportunities to amend his complaint to allege federal claims"). Accordingly, it is hereby ADJUDGED that
1. Defendant's Motion to Dismiss the Complaint (ECF No. 58) pursuant to Fed. R. Civ. P. 12(b)(6) is GRANTED.
2. Plaintiff may file an amended complaint addressing the deficiencies raised in this Order on or before June 14, 2013. Plaintiff must make clear in this amended complaint the factual allegations supporting the basis on which liability is asserted.
IT IS SO ORDERED in Chambers at Sacramento, California, this 3rd day of June, 2013.
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Troy L. Nunley
United States District Judge