Opinion
ORDER
KIMBERLY J. MUELLER, District Judge.
This matter is before the court on defendants' motion to dismiss plaintiff's complaint based on Federal Rule of Civil Procedure 12(b)(6). (ECF No. 5.) Plaintiff has filed an untimely opposition (ECF No. 7), and defendants an untimely reply (ECF No. 8). Despite their untimeliness, the court will consider both filings. The court submitted the matter without oral argument. As explained below, defendants' motion is GRANTED.
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
The claims in this case, brought under 42 U.S.C. § 1983, arise out of defendant sheriff's deputy Michael Seipert's alleged use of excessive force against and arrest without probable cause of plaintiff Nicholas Sants on February 12, 2013 at the Squaw Valley Resort (the Resort). ( See generally Compl., ECF No. 1.) Plaintiff is a resident of Truckee, California. ( Id. ¶ 8.) Defendants are Placer County (the County), Placer County Sheriff's Department, and Deputy Seipert. ( Id. ¶ 9.)
On February 12, 2013, plaintiff was socializing with friends at the Squaw Valley Resort. ( Id. ¶ 13.) Defendant Seipert approached plaintiff and announced he was arresting plaintiff for public intoxication. ( Id. ¶ 16.) When plaintiff inquired about the reasons for arrest, defendant Seipert "became aggressive, " "punch[ed] him in the face, " and struck him with a billy club. ( Id. ¶¶ 16-17.) Plaintiff did not attack defendant at any point and acted only in self-defense. ( Id. ¶ 18.) Plaintiff had a pre-existing seizure disorder; he repeatedly informed both the paramedics and police personnel of the disorder. ( Id. ¶ 19.) In the summer of 2014, plaintiff was declared permanently disabled "as a result of the exacerbation of the pre-existing seizure disorder." ( Id. ¶ 20.) Eventually, plaintiff was charged with public intoxication, resisting arrest, and assaulting a police officer in the County Superior Court, in case number XX-XXXXXXB. ( Id. ¶¶ 15, 21.) Defendants represent plaintiff's criminal case is still pending. (ECF No. 5-1 at 2.) As of the date of this order, the court understands the criminal case is set for a trial confirmation conference on October 16, 2015.
The court takes judicial notice of (1) the felony complaint filed in the Placer County Superior Court against plaintiff Sants and (2) a minute order showing a preliminary hearing was set for April 30, 2015. (ECF No. 5-2, Exs. 1-2.) See Moore v. City of Vallejo, 73 F.Supp.3d 1253, 1256 (E.D. Cal. 2014).
Plaintiff commenced this action in this court on February 11, 2015, alleging ten claims: (1) excessive force, (2) false arrest, (3) malicious prosecution, (4) fabrication of false evidence, (5) conspiracy, (6) failure to implement appropriate policies and customs, (7) negligence, (8) negligent training and supervision, (9) intentional infliction of emotional distress, and (10) negligent infliction of emotional distress. ( See ECF No. 1.) Defendants have moved to dismiss plaintiff's complaint. (ECF No. 5-1.)
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief, " FED. R. CIV. P. 8(a)(2), to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter... to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "labels and conclusions' or a formulaic recitation of the elements of a cause of action....'" Id. (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
In making this context-specific evaluation, this court "must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party." Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). This rule does not apply to "a legal conclusion couched as a factual allegation, " Papasan v. Allain, 478 U.S. 265, 286 (1986), quoted in Twombly, 550 U.S. at 555, to "allegations that contradict matters properly subject to judicial notice, " or to material attached to or incorporated by reference into the complaint, Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
III. ANALYSIS
A. Staying this Action Pending the Criminal Prosecution
Defendants argue this court should stay the instant civil case while the underlying criminal case is pending. (ECF No. 5-1 at 5.) "Plaintiff has no objection to staying this action during the pendency of the state criminal prosecution." (ECF No. 7 at 1.)
A party has no constitutional right to a stay of civil proceedings during the pendency of a criminal investigation. Fed. Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1989) ("While a district court may stay civil proceedings pending the outcome of parallel criminal proceedings, such action is not required by the Constitution."); see also Wallace v. Kato, 549 U.S. 384, 393-94 (2007) (noting "it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended"). After considering "the particular circumstances and competing interests involved in the case, " a court has discretion either to stay the entire proceeding or fashion some other, less drastic remedy. Id.; see also eBay, Inc. v. Digital Point Solutions, Inc., No. 08-4052, 2010 WL 702463, at *5 (N.D. Cal. Feb. 25, 2010) (considering plaintiff's proposed alternatives to a stay, but ultimately denying the stay); accord In re CFS-Related Sec. Fraud Litig., 256 F.Supp.2d 1227, 1236 (N.D. Okla. 2003) ("A general stay is just one of several procedures available. Other options may be utilized in lieu of imposing a stay. These alternate tools include the imposition of protective orders, sealed interrogatories, a stay for a finite period of time, or a stay limited to a specific subject matter.").
In considering whether to stay the proceedings, the court should consider the following factors:
(1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and criminal litigation.
Molinaro, 889 F.2d at 903.
1. Plaintiff's Interest, Burden on Defendants, and Convenience of the Court
Because plaintiff "has no objection to staying this action, " he will not be prejudiced by a stay. The interests of defendants, as movants, weigh too in favor of a stay. As to the court's interest, the court, undeniably, has an interest in managing its cases efficiently. McCormick, 2010 WL 934242, at *3. In the instant case, the court's interest weighs in favor of a stay. Douglas v. United States, No. 03-04518, 2006 WL 2038375, at *5 (N.D. Cal. July 17, 2006) (noting that allowing the criminal action to proceed first may narrow the issues and streamline discovery in the civil proceeding).
2. Third Parties' and Public's Interests
Because no party has presented any evidence or compelling arguments on the factors regarding the potential burden to the interests of the public or non-parties, these factors are neutral on the question of the stay.
The court GRANTS defendants' motion to stay this action, subject to addressing the motion to dismiss as discussed below. The parties are DIRECTED to file a status report within thirty days of the date of this order, reporting on the progress of the criminal prosecution and every thirty days thereafter until the criminal case is concluded.
B. The Sheriff's Department Must be Dismissed
Defendants argue the Sheriff's Department should be dismissed because it is not a person within the meaning of § 1983. (ECF No. 5-1 at 6.) Plaintiff agrees and requests leave to amend to dismiss "charges" against the Sheriff's Department. According to the parties' agreement, the court DISMISSES the Sheriff's Department with prejudice. See Melendres v. Arpaio, 784 F.3d 1254, 1260 (9th Cir. 2015) (ordering Maricopa County be substituted as a party in lieu of the Maricopa County Sheriff's Office).
C. Claims Against Defendant Seipert in his Official Capacity are Redundant
Defendants argue the claims against defendant Seipert in his official capacity are redundant of those alleged against the County and thus should be dismissed. (ECF No. 5-1 at 6-7.) Plaintiff does not address that argument.
"Where both the public entity and a municipal officer are named in a lawsuit, a court may dismiss the individual named in his official capacity as a redundant defendant." Sanchez v. City of Fresno, 914 F.Supp.2d 1079, 1114 (E.D. Cal. 2012). Here, defendant Seipert is named as a defendant both in his official capacity and as an individual. The court DISMISSES only the official-capacity claim as redundant because plaintiff also has named the County as a defendant.
D. Municipal Liability
Defendants argue the allegations of the complaint are too conclusory to give rise to a claim under Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). (ECF No. 5-1 at 7-10.) Here, plaintiff disagrees. (ECF No. 7 at 2-3.)
Municipalities may be held liable as "persons" under 42 U.S.C. § 1983, but not for the unconstitutional acts of their employees based solely on a respondeat superior theory. Monell, 436 U.S. at 691. Rather, a plaintiff seeking to impose liability on a municipality under § 1983 is required "to identify a municipal policy' or custom' that caused the plaintiff's injury." Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997) (citing Monell, 436 U.S. at 694).
To sufficiently plead a Monell claim and withstand a Rule 12(b)(6) motion to dismiss, allegations in a complaint "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). A Monell claim may be stated under three theories of municipal liability: (1) when official policies or established customs inflict a constitutional injury; (2) when omissions or failures to act amount to a local government policy of deliberate indifference to constitutional rights; or (3) when a local government official with final policy-making authority ratifies a subordinate's unconstitutional conduct. Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir. 2010). Here, plaintiff asserts liability under the first theory, offering the support that, "it is the customs and common practices of the county at fault." (ECF No. 7 at 2-3.)
A plaintiff may establish municipal liability based on this first theory by demonstrating "the constitutional tort was the result of a longstanding practice or custom which constitutes the standard operating procedure of the local government entity.'" Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (quoting Ulrich v. City & Cnty. of S.F., 308 F.3d 968, 984-85 (9th Cir. 2002)). To establish liability in this way, 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).
Here, while the allegations of the complaint are too conclusory to survive defendants' motion to dismiss, the new facts stated in plaintiff's opposition brief warrant allowing leave to amend. See Orion Tire Corp. v. Goodyear Tire & Rubber Co., 268 F.3d 1133, 1137 (9th Cir. 2001) ("new" facts in a plaintiff's opposition papers can be considered by courts in deciding whether to grant leave to amend). Specifically, in his opposition brief, plaintiff states the following:
Audio recordings on the night of Mr. Sants' arrest show systematic and total disregard for both the safety and the constitutional rights of Mr. Sants. Placer County employees, from dispatchers to Sheriff's deputies to medical personnel, at various times did not respond to Mr. Sants calls for help when being beaten by Deputy Seipert or when attempting to get medical attention in police custody.
Mr. Sants was heard begging to be taken to the hospital by multiple Sheriff's Deputies, one of whom is heard on the police audio recording informing Mr. Sants that Mr. Sants is having a panic attack. The Deputy goes on to inform Mr. Sants that he has over a decade of medical training. Furthermore, the deputy volunteered in a pre-trial hearing that he, in fact, found Mr. Sants to be credible while he was in the throes of his panic attack, begging for medical attention. Despite that, every deputy made Mr. Sants wait to receive necessary attention.
(ECF No. 7 at 3.) Accordingly, the court GRANTS defendants' motion to dismiss plaintiff's Monell claim, but GRANTS plaintiff leave to amend after the stay is lifted, if plaintiff can do so consonant with Rule 11.
E. Plaintiff's State-Law Claims
Defendants argue plaintiff's state law claims should be dismissed because plaintiff has not complied with the requirements of the Government Claims Act. (ECF No. 5-1 at 10-12.) Plaintiff does address that argument in his opposition brief.
"As a prerequisite for filing suit for money or damages' against a public entity, the California Government Claim Act requires presentation of a claim to the public entity." Gen. Sec. Servs. Corp. v. Cnty. of Fresno, 815 F.Supp.2d 1123, 1131 (E.D. Cal. 2011); see Cal. Gov't Code §§ 911.2, 945.4; see also State of California v. Superior Court (" Bodde "), 32 Cal.4th 1234, 1240-44 (2004). This requirement applies to claims sounding in tort. See City of Stockton v. Superior Court, 42 Cal.4th 730, 738 (2007). Claims involving death or injuries to a person or personal property must be presented no later than six months after the accrual of the claim. See Cal. Gov't Code § 911.2(a). The date of accrual is that which would pertain under the statute of limitations if the dispute were between private litigants. See Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 208-09 (2007). The Government Claims statutes "must be satisfied even in the face of the public entity's actual knowledge of the circumstances surrounding the claim." City of Stockton, 42 Cal.4th at 738. The failure to timely present a claim for money or damages to a public entity bars a plaintiff from bringing suit against that entity. Bodde, 32 Cal.4th at 1240.
Here, the complaint's allegations do not show compliance with the Government Claims Act. Plaintiff's state-law claims are (1) negligence, (2) negligent training and supervision, (3) intentional infliction of emotional distress, and (4) negligent infliction of emotional distress. (Compl. at 14-17.) Those claims arise from the same event: plaintiff's arrest in February 2013. Plaintiff's complaint neither mentions a timely filing nor alleges an excuse from compliance with the filing requirement, if there is one. Accordingly, the court DISMISSES plaintiff's state-law claims. Plaintiff is GRANTED leave to amend once the stay is lifted, if he can do so consonant with Rule 11.
IV. MEET AND CONFER EFFORTS AND ORDER TO SHOW CAUSE (OSC)
A. Defendants' Counsel
Defendants' counsel reports he tried to meet and confer with plaintiff's counsel by e-mail and telephone at about 10:00 a.m. on April 29, 2015 regarding the issues identified in the instant motion. (ECF No. 5 at 2.) He further reports that plaintiff's counsel "was not available to discuss the matters and defendants' motion needed to be filed on that day." ( Id. )
Here, defendants' counsel is subject to an OSC because he did not comply with this court's Standing Order. The court is baffled by defendants' effort to meet and confer. This court's Standing Order directs the parties to engage in a pre-filing meet and confer to thoroughly discuss the substance of the contemplated motion and any potential resolution. (Standing Order, ECF No. 3-1 at 3.) By seeking to contact plaintiff's counsel on the day the motion "needed to be filed, " as defendants' counsel represents, defendants' counsel clearly did not exhaust efforts to meet and confer. Moreover, defendants' counsel filed an untimely reply and before doing so, he did not seek a belated stipulation in light of plaintiff's position expressed in his "opposition." Accordingly, defendants' counsel is hereby ORDERED, within seven (7) days of entry of this order, to show cause why he should not be sanctioned in the amount of $250 for failure to comply with this court's Standing Order.
B. Plaintiff's Counsel
Plaintiff's counsel also has not complied with applicable rules. Specifically, counsel has not complied with Local Rule 230(c), providing that any opposition to a motion must be in writing and filed not less than fourteen days before the noticed hearing date. The noticed hearing on the instant motion was June 5, 2015. Plaintiff's opposition, if any, or notice of non-opposition must have been filed no later than May 22, 2015. Plaintiff filed his opposition on May 29, 2015. (ECF No. 7.) And to the extent the opposition did not oppose some of the arguments raised by defendants, plaintiff's counsel could and should have sought a stipulation to that extent. Accordingly, plaintiff's counsel is hereby ORDERED, within seven (7) days of entry of this order, to show cause why he should not be sanctioned in the amount of $250 for failure to comply with this court's Local Rules.
V. CONCLUSION
For the foregoing reasons, the court orders as follows:
1. Notwithstanding the stay imposed below, counsel are ordered to respond to the orders to show cause incorporated above.
2. Placer County Sheriff's Department is DISMISSED with prejudice.
3. All official-capacity claims against Sheriff's Deputy Seipert are DISMISSED with prejudice.
4. Plaintiff's municipal liability claim is DISMISSED with leave to amend.
5. Plaintiff's state-law claims are DISMISSED with leave to amend.
6. Plaintiff's amended complaint is due within twenty-one (21) days of the date on which the stay imposed below is lifted.
7. The case is STAYED. The parties are directed to file a status report within thirty (30) days of the date of this order, reporting on the progress of the criminal prosecution and every thirty (30) days thereafter until the criminal case is concluded. Within seven (7) days of the criminal case concluding, the parties shall file a joint statement proposing a schedule for the balance of this case.
IT IS SO ORDERED.