HomeMy WebLinkAbout20140508_Pltff-Opp_Holland-Roe2:14-cv-01520-RGK-MRW Document 17 Filed 05/08/14 Page 1 of 9 Page ID
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SANGER SWYSEN & DUNKLE
Attorneys at Law
Stephen K. Dunkle, SBN 227136
125 E. De La Guerra St. Suite 102
Santa Barbara, California 93101
Telephone: (805) 962-4887
Facsimile: (805) 963-7311
Attorneys for Plaintiffs,
lane Roe and Kip Holland
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
ROE and KIP HOLLAND,
Plaintiffs,
vs.
FY OF SAN LUIS OBISPO;
,UNTY OF SAN LUIS OBISPO;
,RY PIERCE; and DOES 1 through
inclusive,
Defendants.
Case No. 2:14-cv-01520 RGK-MRWx
PLAINTIFFS' OPPOSITION TO
DEFENDANTS CITY OF SAN LUIS
OBISPO AND COUNTY OF SAN LUIS
OBISPO'S MOTION TO DISMISS
PURSUANT TO F.R.C.P. 12(B)(6)
Date: June 2, 2014
Time: 9:00 a.m.
Courtroom: 850
Judge: Hon. R. Gary Klausner
Magistrate Judge: Hon. Michael R. Wilner
MEMORANDUM OF POINTS AND AUTHORITIES
PERTINENT FACTS
Defendant Cory Pierce, arrested Plaintiff Kip Holland for possession of heroin
ng a traffic stop in March of 2011. Complaint, 115. After Holland was released
custody, Pierce instructed him to pick up his wallet from the San Luis Obispo Police
Complaint, 116. Holland drove to the Police Department with his girlfriend,
Roe. Id. Roe went into the Police Department and Pierce gave her Holland's wallet.
He requested Roe's telephone number and she gave it to him. Id.
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PLAINTIFFS' OPPOSITION TO DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY
OF SAN LUIS OBISPO'S MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(B)(6)
ase 2:14-cv-01520-RGI<-MRW DOCUment 1.7 Filed 05/08/14 Page 2 of 9 Page ID 11:6
1 Pierce began to demand that Roe and Holland obtain prescription painkillers for
2 him. Complaint,'J[ 17. Pierce's demands of Roe and Holland increased as time passed.
3 Complaint,1][ 19. In addition to painkillers, Pierce demanded that Roe and Holland obtain
4 money and heroin for him. Id. Pierce gave Roe placebo oxycodone pills and directed her
5 to trade the pills to drug dealers for painkillers. Complaint, 9[ 20. On numerous occasions,
6 Pierce directed Roe to go to emergency rooms and falsely describe symptoms so that she
7 could obtain prescription painkillers for him. Complaint, 9[ 23.
8 Pierce directed Roe and Holland to set up a drug dealer to rob him. Complaint,'][
9 22. At Pierce's direction, Roe and Holland arranged a meeting with a drug dealer. Id..
10 Pierce pulled over the drug dealer shortly after the meeting and robbed him at gunpoint.
11 Id.
12 Pierce threatened Roe and Holland with imprisonment if they did not comply with
13 his demands. Complaint, 9[ 24. He followed through with the threat and had Holland
14 arrested and brought before the court on an alleged probation violation. Id. Pierce also
15 made threats of violence, telling Roe that he could make her and Holland disappear. Id.
16 Roe and Holland lived in constant fear of Pierce. Complaint,'][ 24. They believed
17 he was capable of using his position as a police detective to plant drugs on them and have
18 them arrested or cause them physical harm. Id.
19 Pierce used his position as a police detective to force Roe into engaging in sexual
20 acts with him. Complaint, 9[ 25. Pierce used the threat of arresting Roe and Holland to
21 force her to submit. Id. In particular, Pierce forced Roe into an act of oral copulation and,
22 on another occasion, forced sexual intercourse. Id. There was an additional incident when
23 he pushed and rubbed his body up against her. Id.
24 At all relevant times, Defendant Pierce was acting in his capacity as a police officer
25 with Defendant City of San Luis Obispo (Complaint, 9[ 6) assigned to Defendant County of
26 San Luis Obispo's Narcotics Task Force. Complaint, y[ 7)
27 Roe and Holland reported Pierce's conduct to the FBI and began cooperating with a
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PLAINTIFFS' OPPOSITION TO DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY
OF SAN LUIS OBISPO'S MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(B)(6)
2:14-cv-01520-RGK-MRW Document 17 Filed 05/08/14 Page 3 of 9 Page ID
1 federal investigation. Holland agreed to record his conversations with Pierce. The
2 recorded conversations documented Pierce demanding that Holland buy and sell drugs for
3 him. Complaint, 9[ 27.
4 Pierce was arrested by the FBI. Complaint, y[ 28. He was indicted in United
5 States District Court for the Central District of California for bribery in violation of Title
6 18 USC § 666(a)(1)(B) and extortion in violation of Title 18 USC § 1951. (Id.) Pierce
7 entered a plea of guilty to one count of extortion and was sentenced to 18-months in the
8 Bureau of Prisons. Id.
9 ARGUMENT
10 I. LEGAL STANDARD
11 "Dismissal under Rule 12(b)(6) is proper when the complaint either (1) lacks a
12 cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal
13 theory." Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). "To survive a motion
14 to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a
15 claim to relief that is plausible on its face."' Ashcroft v. Igbal, 556 U.S. 662, 678 (2009)
16 (quoting Bell All. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In assessing the
17 sufficiency of the pleadings, "courts must consider the complaint in its entirety, as well as
18 other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss,
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in particular, documents incorporated into the complaint by reference, and matters of
which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007). The court is to "accept all factual allegations in the complaint as
and construe the pleadings in the light most favorable to the nonmoving party."
23 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir. 2007).
24 Where a complaint or claim is dismissed, leave to amend generally is granted, unless
25 further amendment would be futile. Chaset v. Fleer/Skybox Intl, 300 F.3d 1083, 1087-88
26 (9th Cir. 2002).
27 Complaints are construed liberally in favor of the plaintiff, and a complaint stating
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PLAINTIFFS' OPPOSITION TO DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY
OF SAN LUIS OBISPO'S MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(B)(6)
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1 Ila claim for relief should not be dismissed even if the claims stretch credulity. Allison v.
2 California Adult Authority, 419 F.2d 822, 823 (9th Cir. 1969). Liberal construction is
3 "particularly important in civil rights cases." Johnson v. State of Cal., 207 F.3d 650, 653
4 (9th Cit. 2000).
5 II. THE THIRD CAUSE OF ACTION SUFFICIENTLY SETS FORTH A
6 MONELL CLAIM
7 In order to set forth a claim against a municipality under 42 U.S.C. § 1983, a
8 plaintiff must show that the defendant's employees or agents acted through an official
9 custom, pattern or policy that permits deliberate indifference to, or violates, the plaintiffs
10 civil rights; or that the entity ratified the unlawful conduct. See Monell v. Department of
I Social Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Larez v. City
12 of Los Angeles, 946 F.2d 630, 646-47 (9th Cir.1991). "Where a municipality's failure to
13 train its employees in a relevant respect evidences a `deliberate indifference' to the rights
14 of its inhabitants" "such a shortcoming "can "be properly thought of as a city `custom or
15 policy"' that is actionable under § 1983. City of Canton v. Geraldine Harris, 489 U.S.
16 378, 389, 109 S. Ct. 1197, 1205, 103 L.Ed.2d 412 (1989). Plaintiff may demonstrate that
17 there exists an unconstitutional statement, ordinance, regulation or decision formally
18 adopted by the municipality, Monell, 436 U.S. at 691-92; municipal practices or customs
19 so permanent and well settled as to constitute custom or usage with force of law, Id. at
20 691; or a policy and custom of inadequate training, supervision, discipline, screening or
21 hiring. City of Canton v. Harris, 489 U.S. 378, 389-91, 109 S.Ct. 1197, 103 L.Ed.2d 412
22 (1989); City of Oklahoma v. Tuttle, 471 U.S. 808, 813, 105 S.Ct. 2427, 85 L.Ed.2d 791
23 (1985).
24 In the case at bar, Plaintiffs sufficiently alleges § 1983 liability for the
25 municipalities by setting forth that:
26 1. Defendants implicitly or explicitly adopted and implemented careless
27 and reckless policies, customs, or practices, and failed to provide
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PLAINTIFFS' OPPOSITION TO DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY
OF SAN LUIS OBISPO'S MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(B)(6)
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1 sufficient training for Pierce. Complaint, 1J[ 43;
2 2. Defendants knowingly maintain and permit official sub -rosy policies
3 or customs of permitting the occurrence of the kinds of wrongs set
4 forth herein, by deliberate indifference to police abuse, failing and
5 refusing to fairly and impartially investigate, discipline or prosecute
6 peace officers who commit acts of felonious dishonesty and crimes,
7 each ratified and approved by Defendants. Complaint, 9144;
8 3. Defendants CITY and COUNTY'S customs, policies, practices and/or
9 procedures create and allow for, inter alia, an ongoing pattern by all
10 Defendants of condoning and having a deliberate indifference toward
11 citizens' constitutional rights, specifically in connection with
12 PIERCE'S violations of Plaintiffs' rights. Complaint, 9[ 45;
13 4. Defendants CITY and COUNTY's customs, policies, practices and/or
14 procedures create and allow for, inter alia, a failure by CITY and
15 COUNTY to adequately train, supervise, discipline, screen and hire
16 police officers in connection with citizens' constitutional rights.
17 Complaint, 9[ 46;
18 5. The specific policy of failing to train and supervise narcotics officers
19 working with informants allowed Defendant PIERCE to act with
20 impunity in connection with violating citizens' constitutional rights.
21 Complaint, 9[ 47; and
22 6. Defendant PIERCE acted in conformity with this policy of deliberate
23 indifference to constitutional rights when he violated Plaintiffs' civil
24 rights. Complaint, 9[ 49.
25 We respectfully submit that, taken as a whole, these allegations are sufficient for
26 establishing liability under Monell.
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PLAINTIFFS' OPPOSITION TO DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY
OF SAN LUIS OBISPO'S MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(B)(6)
e 2:14-cv-01520-RGK-MRW Document 17 Filed 05/08/14 Page 6 of 9 Page ID #:
1 III. THE STATE LAW CLAIMS ARE SUFFICIENT TO WPl'HSTAND A
2 MOTION TO DISMISS
3 The complaint sets forth that the Defendant City is vicariously liable under
4 California Government Code § 815.2(a) because Defendant Pierce was acting in the
5 course and scope of his employment with the San Luis Obispo Police Department.
6 Complaint, 9[9[ 57, 60. California Government Code § 815.2(a) provides that "[a] public
7 entity is liable for injury proximately caused by an act or omission of an employee of the
8 public entity within the scope of his employment ...." "Through this section, the
9 California Tort Claims Act expressly makes the doctrine of respondeat superior applicable
10 to public employers." Hoff v. Vacaville Unified Sch. Dist., 19 Cal. 4th 925, 932, 968 P.2d
11 522, 526 (1998)
12 Defendants cite Van Ort v. Estate of Stanewich, 92 F.3d 831, 840 for the
13 proposition that an employer cannot be held liable for an employee who inflicts an injury
14 or who acts our of personal animus unconnected with employment. Motion, page 8. In
15 Van Ort, the victims of an assault and attempted robbery by an off -duty deputy sued the
16 county and the deputy's estate, seeking damages under § 1983 and state law. The District
17 Court granted summary judgment on the plaintiffs' respondeat superior liability claim and
18 judgment as a matter of law on state law negligence claims. With regard to the respondeat
19 superior liability claim, the Ninth Circuit held that a police agency cannot be held
20 vicariously liable for the off -duty crimes of a law enforcement officer. Van Ort v. Estate
21 of Stanewich, 92 F.3d 831, 840 (9th Cir. 1996)
22 This case is distinguishable from Van Ort because Defendant Pierce's actions
23 occurred while he was on the job and were related to the performance of his duties as a
24 narcotics officer working with informants. As alleged in the complaint, Pierce was acting
25 acting in his capacity as a police officer employed by Defendant City and in his capacity as
26 a narcotics officer assigned to Defendant County's Narcotics Task Force during all of the
27 relevant events. (Complaint, 9[9[ 13, 14.) The conduct included threatening to aresst the
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PLAINTIFFS' OPPOSITION TO DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY
OF SAN LUIS OBISPO'S MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(B)(6)
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plaintiffs and actually arresting Holland when he was noncompliant with Pierce's
demands. (Complaint, 9[ 24.) Unlike in Vat? Ort, Pierce was not "off -duty" during his
with Roe and Holland. Furthermore, Pierce acted under the color of law.
4 (Complaint, 9[9132, 37.)
5 The fact that Pierce overstepped the proper boundaries of his police assignment
6 does not make his activities unconnected to his employment. See Screws v. United States,
7 325 U.S. 91 (1945). In Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495
8 (1945), the Supreme Court found that color of law was present when a sheriff, policeman,
9 and special deputy beat a young man to death during the course of an arrest, even though
10 the officers' actions were unauthorized and beyond the scope of their duties. Id. at 92-93,
11 65 S.Ct. 1031. The Supreme Court stated that:
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at 111.
It is clear that under `color' of law means under `pretense' of
law. Thus acts of officers in the ambit of their personal
pursuits are plainly excluded. Acts of officers who undertake
to perform their official duties are included whether they hew
to the line of their authority or overstep it. If, as suggested, the
statute was designed to embrace only action which the State in
fact authorized, the words `under color of any law' were hardly
apt words to express the idea.
17 Therefore, the Court should deny the motion.
18 IV. PLAINTIFFS REQUEST LEAVE TO AMEND SHOULD DEFENDANTS'
19 MOTION BE GRANTED IN WHOLE OR IN PART
20 Plaintiffs respectfully hereby request leave to amend the Complaint should the
21 Court grant Defendants' Motion to Dismiss in whole or in part.
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PLAINTIFFS' OPPOSITION TO DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY
OF SAN LUIS OBISPO'S MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(B)(6)
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1 CONCLUSION
2 For the above -stated reasons, the motion should be denied. In the alternative, the
3 Court should grant leave to amend the Complaint.
4 Dated: May 8, 2014 Respectfully submitted,
5 SANGER SWYSEN & DUNKLE
6
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By: /s/ Stephen K. Dunkle
8 Stephen K. Dunkle
Attorneys for Defendants
9 Jane Roe and Kip Holland
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PLAINTIFFS' OPPOSITION TO DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY
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PROOF OF SERVICE
I, the undersigned declare:
3 1 am over the age of 18 years and not a party to the within action. I am employed in the
County of Santa Barbara. My business address is125 E De La Guerra St., Ste. 102, Santa Barbara,
4 California 93101.
5 On May 8, 2014 I served the following documents entitled:
PLAINTIFFS' OPPOSITION TO DEFENDANTS CITY OF SAN LUIS OBISPO AND
6 COUNTY OF SAN LUIS OBISPO'S MOTION TO DISMISS PURSUANT TO F.R.C.P.
12(B)(6) on the interested parties in this action by depositing a true copy thereof as follows:
7
David Michael Cumberland Shawn M Ridley
8 Adamski Moroski Madden Cumberland & Green Howard Rome Martin and Ridley LLP
LLP 1775 Woodside Road Suite 200
9 P O box 3835 Redwood City, CA 94061-3436
San Luis Obispo, CA 93403-3835 650-365-7715
10 805-543-0990 Fax:650-364-5297
Fax: 805-543-0980 Email: sridley@hrmrlaw.com
11 Email: cunberlaud@ammcelaw.com
12
_ BY U.S. MAIL - I am readily familiar with the firm's practice for collection of mail and
13 processing of correspondence for mailing with the United States Postal Service. Such
correspondence is deposited daily with the United States Postal Service in a sealed envelope
14 with postage thereon fully prepaid and deposited during the ordinary course of business.
Service made pursuant to this paragraph, upon motion of a party, shall be presumed invalid
15 if the postal cancellation date or postage meter date on the envelope is more than one day after
the date of deposit.
16
_ BY FACSIMILE - I caused the above -referenced document(s) to be transmitted via facsimi'.
17 to the interested parties at the above -referenced number.
18 X BY ELECTRONIC TRANSMISSION VIA CM/ECF - I caused the document to be
electronically delivered to the interested parties at the address above.
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_ BY HAND - I caused the document to be hand delivered to the interested parties at the
20 address above.
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FEDERAL - I declare that I am employed in the office of a member of the Bar of this Court
at whose direction the service was made.
Executed May 8, 2014, at Santa Barbara, California.
/s/ Stephen K. Dunkle
Stephen K. Dunkle
PLAINTIFFS' OPPOSITION TO DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY
OF SAN LUIS OBISPO'S MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(B)(6)