Opinion
No. 1:15-cv-00359-MCE-EPG
05-19-2016
NOEL LEMUS, ADOLFO LEMUS, Plaintiffs, v. COUNTY OF MERCED, MERCED COUNTY SHERIFF'S DEPARTMENT, PAUL BARILE; and DOES 1-50, inclusive, Defendants.
MEMORANDUM AND ORDER
In their Second Amended Complaint ("SAC"), Plaintiffs Adolfo and Noel Lemus allege that Defendant County of Merced ("County") and Defendant Officer Paul Barile ("Officer Barile") violated their federal civil rights under 42 U.S.C. § 1983. Pending before the Court is Defendants' Motion to Dismiss (ECF No. 25) for failure to state a claim upon which relief may be granted. Defendants seek dismissal of Plaintiffs' only claim against the County, and further ask the Court to strike portions of Plaintiffs' SAC. For the reasons that follow, Defendants' Motion to Dismiss is DENIED, and their Motion to Strike is also DENIED. /// ///
BACKGROUND
The following statement of facts is based on the allegations in Plaintiffs' SAC (ECF No. 24).
This case arises from an incident that occurred on March 8, 2013, during a social gathering at the residence of Plaintiff Adolfo Lemus ("Adolfo") in Merced, California. The Merced County Sheriff's Department was dispatched to investigate a noise and gunshot complaint at or near Adolfo's residence. Officer Barile, a Merced County Sheriff's Officer employed by the County, responded to that complaint.
When Officer Barile arrived, he gained access to Adolfo's residence by climbing over a gated entrance at the front of the property and entering the residence. After making contact with Adolfo, Officer Barile began searching the residence. During that search, he encountered the locked door of a bedroom where Plaintiff Noel Lemus ("Noel") was sleeping. Officer Barile applied force to gain entry to the bedroom, awakening Noel. According to Noel, as he attempted to comply with Officer Barile's command to get on the ground, Officer Barile forcibly kicked him in the back. Noel was injured when he hit the ground. Officer Barile subsequently placed Noel in handcuffs and removed him from Adolfo's home.
Plaintiffs claim that the entry and search of Adolfo's property and dwelling were made without a warrant, without probable cause, consent or invitation, and were not subject to any privilege. SAC, ¶ 60. They allege that Officer Barile's conduct consequently violated their constitutional rights. In addition, Plaintiffs contend that Defendants restrained Noel in violation of his civil rights guaranteed by the Fourth Amendment. Id. at 57, p. 11.
The Court notes that the allegations contained in the SAC are mis-numbered, with ¶ 59 on page 10 followed by ¶ 47. The references in this Memorandum and Order are to the paragraph numbers as utilized in the SAC, except that where the same paragraph number is used twice the paragraph designation will be followed by the page number of the SAC where it appears.
According to Plaintiffs, these purported constitutional violations were made possible because the County has a policy and custom of permitting "sergeant shopping," a practice in which officers search for a superior to approve questionable or improper conduct even in the face of another sergeant's previous refusal to do so. More colloquially, if an officer meets resistance from one supervising sergeant, he need only "shop" for another who is more likely to approve the particular police tactics involved. Plaintiffs claim this policy and custom has created a system where officers feel safe in overstepping the bounds of the law. According to Plaintiffs, "[t]his knowledge and power was a moving force behind the constitutional violations" they suffered. Id. at 66.
Plaintiffs further allege that the County is liable for Plaintiffs' injuries because Officer Barile engaged in sergeant shopping to justify Noel's arrest. Specifically, Plaintiffs allege that Mike Harris ("Harris"), the sergeant (now retired) who responded to the scene, told Officer Barile that he could not pursue charges against Noel under the circumstances. Barile nonetheless overstepped that recommendation and sought consent to do so from Captain Jones, the patrol operations commander. Plaintiff alleges that Captain Jones, a final policymaking authority in this regard, ratified the decision of Officer Barile by reading and reviewing the report he prepared after the incident, and recommending that criminal charges for negligent discharge of a firearm be pursued against Noel.
Furthermore, the SAC quotes Harris as stating that Officer Barile was known to "embellish" reports and would frequently write long reports to cover his actions when those actions were subject to question. Id. at 50, p. 8. Harris claims that higher ranking officers within the organization authorized these embellished reports knowing they knew they were used to cover questionable arrests. Id. According to the SAC, Harris also indicates that Officer Barile had sergeant shopped in the past and that the practice was tolerated by department supervisors and managers. Id. /// /// /// ///
STANDARD
A. Motion to Dismiss
On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. However, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (internal citations and quotations omitted). A court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (quoting Twombly, 550 U.S. at 555). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must contain something more than "a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.")).
All further references to "Rule" are to the Federal Rules of Civil Procedures unless otherwise specified.
Furthermore, "Rule 8(a)(2) . . . requires a showing, rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n.3 (internal citations and quotations omitted). Thus, "[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Id. (citing 5 Charles Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. If the "plaintiffs . . . have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Id. However, "[a] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. Leave to amend should be "freely given" where there is no "undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment . . . ." Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to be considered when deciding whether to grant leave to amend). Not all of these factors merit equal weight. Rather, "the consideration of prejudice to the opposing party . . . carries the greatest weight." Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that "the complaint could not be saved by any amendment." Intri-Plex Techs. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) ("Leave need not be granted where the amendment of the complaint . . . constitutes an exercise in futility . . . .")).
B. Motion to Strike
The Court may strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial. . . ." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds 510 U.S. 517 (1994) (internal citations and quotations omitted). Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question. Id.
ANALYSIS
Defendants seek dismissal of Plaintiffs' § 1983 claim against the County of Merced on the ground that Plaintiffs have failed to sufficiently allege facts to establish municipal liability against the County. Municipalities and local officials cannot be vicariously liable for the conduct of their employees under § 1983, but rather are only "responsible for their own illegal acts." Connick v. Thompson, 563 U.S. 51, 60 (quoting Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 665-683 (1978)). In other words, a municipality may only be liable where it individually caused a constitutional violation via "execution of a government's policy or custom, whether by its lawmakers or by those whose edits or acts may fairly be said to represent official policy." Monell, 436 U.S. at 694. The Ninth Circuit has recognized three ways to establish a custom or policy of a governmental entity for purposes of municipal liability:
(1) the constitutional tort was the result of a "longstanding practice or custom which constitutes the standard operating procedure of the local government entity; (2) the tortfeasor was an official whose acts fairly represent official policy such that the challenged action constituted official policy; or (3) an official with final policy-making authority "delegated that authority to, or ratified the decision of, a subordinate.Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (quoting Ulrich v. County of San Francisco, 308 F.3d 968, 984-85 (9th Cir. 2002); see also Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). Plaintiffs contend they have alleged facts sufficient to state a claim for municipal liability against the County based on (1) a policy or custom of "sergeant shopping" which caused Plaintiffs' injuries; and (2) a final policymaking authority's ratification of Officer Barile's decision. SAC, ¶ 64-65. The Court addresses the sufficiency of the allegations supporting each theory in turn.
Defendants also contend that Officer Barile had probable cause to search the premises, and that he should be shielded from liability by qualified immunity in any event. Defendants' contention with respect to probable cause was squarely rejected however, by a judicial determination that Barile's entry on the property "violated Fourth Amendment search and seizure prohibitions." ECF No. 17, 2, 9:2-15. Additionally, to the extent this constitutional violation was apparent to an average officer, qualified immunity does not appear to apply. At the very least, Defendants' allegations in this regard cannot be decided on the pleadings because they involve factual determinations. --------
A. Sergeant Shopping
Defendants contend that municipal liability has not been established because the SAC does not allege facts sufficient to show that the County has a widespread custom or practice of "sergeant shopping." The Court disagrees.
To establish liability for governmental entities pursuant to a longstanding practice or custom, a plaintiff must show:
(1) that the plaintiff possessed a constitutional right of which [he or she] was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and. (4) that the policy is the moving force behind the constitutional violation.Plumeau v. Sch. Dist. No. 40 Cnty. Of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). (internal quotation marks omitted).
A longstanding practice or custom is one that is so "persistent and widespread" that it constitutes a "permanent and well settled" governmental policy. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (internal citations omitted). "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. (internal citations omitted). The line between "isolated or sporadic incidents" and "persistent widespread conduct" is not clearly delineated, although where more than a few incidents are alleged, the determination appears to require a fully-developed factual record. Compare Davis v. City of Ellensburg, 869 F.2d 1230, 1233-34 (9th Cir. 1989) (single incident of excessive force inadequate to establish liability); Meehan v. County of Los Angeles, 856 F.2d 102, 107 (9th Cir. 1988) (two incidents insufficient), with Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (triable issue of fact existed as to whether Seattle had an unconstitutional policy or custom of suppressing certain political speech given the fact that several individuals testified their entry to a demonstration was permitted only after they removed offending buttons and stickers).
Here, Plaintiffs' allegations regarding the "persistent and widespread" nature of the custom of "sergeant shopping" are sufficiently pled under Rule 8. First, Plaintiffs allege their constitutional rights were violated by an unlawful and warrantless search, forcible entry and arrest through unreasonable and excessive force. Second, Plaintiffs contend that Defendants had a policy and custom of sergeant shopping that served to condone Officer Barile's alleged misconduct in this regard. Unlike its predecessor, the SAC now offers factual corroboration for the proposition that "sergeant shopping" is "widespread and persistent" in the Merced County Sherriff's Department." See Trevino, 99 F.3d at 918. According to the SAC, Officer Barile was known to "embellish" reports in an attempt to justify his actions. SAC, ¶ 50, p. 8. The SAC reports Harris as stating that higher ranking officers within the organization reviewed and authorized those reports even though they knew they were "cover ups of questionable arrests," and despite the fact that Officer Barile was known in the Department "for not being truthful". Id. Additionally, Plaintiffs have further alleged, through Harris' statements, that Officer Barile had sergeant shopped in the past and that department supervisors have tolerated the practice, which "occurs throughout the organization." Id. According to Plaintiffs, that practice tacitly promotes civil rights violations because if an officer's actions or report meet with resistance, he can simply find "another supervising sergeant who will approve." Id. at 66.
As to the third prong, Plaintiffs have sufficiently alleged that by condoning the custom of sergeant shopping, Defendants acted with deliberate indifference to Plaintiff's constitutional rights. See SAC, ¶ 66, Plumeau, 130 F.3d at 438. Furthermore, the SAC further avers that Harris has identified inadequate training by the department, particularly with regard to civil rights issues. Id. at ¶ 51, p. 8. Plaintiffs contend this deficit will be revealed by training records for the deputies involved in the subject incident. Id.
Finally, Plaintiffs' allegation that because the practice of sergeant shopping was a moving force behind the constitutional violations suffered, the fourth prong of the Plumeau test has also been satisfied. Id. at 50-52. Accordingly, Plaintiffs' allegations have sufficiently put Defendants on "fair notice of what the . . . claim is and the grounds upon which it rest" and are enough to "raise [Plaintiffs'] right to relief above the speculative level." See Twombly at 355. Defendants' Motion to Dismiss on this theory is DENIED.
B. Ratification
Defendants also contend that Plaintiffs' ratification theory fails because Plaintiffs have failed to allege facts to support their conclusion that Captain Jones had authority to make final government policy for the County of Merced or ratify the decision of a subordinate. As such, according to Defendants, Plaintiffs' allegations do not support a claim for municipal liability because approving the filing of a report in a single case is not a matter of policy making. The Court again disagrees with Defendants.
"[W]hether a particular official has 'final policymaking authority' is a question of state law." City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988) (plurality opinion) (emphasis in original) (internal citations omitted). To determine whether an official is a final policymaker, "courts consider whether the official's discretionary decisions are 'constrained by policies not of that official's making' and whether the official's decisions are 'subject to review by the municipality's authorized policymakers.'" Christie v. Iopa, 176 F.3d 1231, 1236 (9th Cir. 1999) (quoting Praprotnik, 485 U.S. at 127).
In opposing Defendant's position, Plaintiffs identify Captain Jones as a policy maker. The SAC alleges that when Harris discovered he had been denied access to the report written by Officer Barile, he spoke with Capt. Jones regarding that denial. Harris questioned Officer Barile's judgment and voiced concern that Noel's constitutional rights had been violated. Capt. Jones, however, appeared disinterested and did not explain why Harris was denied access to the report. Additionally, Captain Jones did not respond when Harris emailed him requesting an internal affairs investigation on Officer Barile's report. SAC at ¶ 54, p. 9. Despite Harris' articulated protests, Officer Barile allegedly collaborated with Capt. Jones in obtaining authorization for his report. CITE. Captain Jones further ratified Officer Barile's conduct by referring the matter for prosecution. Id. at 58, p. 10. Finally, Plaintiffs allege that Captain Jones was at all relevant times the official second in command to the Sheriff himself, and was vested with autonomy to supervise, review and approve actions of subordinate peace officers such that his review and ratification were not subject to review by higher authority. Id. at 57, p. 9.
Particularly when coupled with the SAC allegations that Officer Barile was known for creating reports to hide his questionable conduct, the Court finds these averments sufficient for purposes of alleging ratification of a false report through policymaking. Because Plaintiffs allege enough factual allegations supporting a conclusion that Capt. Jones had final policymaking authority, Defendants' Motion is DENIED.
B. Motion to Strike
Defendants move to strike Plaintiff's allegations concerning Sgt. Harris as immaterial, impertinent and not supporting any cause of action. As the Court's analysis above demonstrates, Sgt. Harris' specific involvement in the underlying incident, his observations about the integrity of Officer Barile's reports, and his knowledge of the practice of sergeant shopping within the Department are squarely relevant to the factual bases for Plaintiffs' claims. Defendants' request to strike portions of the SAC is therefore DENIED. /// /// /// /// /// ///
CONCLUSION
For all the foregoing reasons, Defendants' Motion to Dismiss (ECF No. 25) is DENIED in its entirety, including Defendants' alternative request that portions of the SAC be stricken.
IT IS SO ORDERED. Dated: May 19, 2016
/s/_________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE