Arres v. The City Of Fresno

Decision Date26 January 2011
Docket NumberCASE NO. CV F 10-1628 LJO SMS
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
PartiesTERESA ARRES, et al., Plaintiff, v. THE CITY OF FRESNO, et al., Defendants.

ORDER ON DEFENDANTS' F.R.Civ.P. 12 MOTION TO DISMISS

(Doc. 12, 13.)

INTRODUCTION

Defendants City of Fresno ("City"), its police department and several of its peace officers seek to dismiss as insufficiently pled and legally barred plaintiffs' excessive force, deliberate indifference for medical care, Monell, and California statutory and tort claims. Plaintiffs respond that defendants "raise no real question" to challenge their claims. This Court considered defendants' F.R.Civ.P. 12(b)(6) motion on the record without a hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court DISMISSES plaintiffs' claims.

BACKGROUND1
Summary

This action arises out of the fatal police shooting of Lonnie Graham ("Mr. Graham"). Plaintiff Teresa Arres ("Ms. Arres") is Mr. Graham's surviving mother and alleged personal representative of Mr. Graham's estate. Benicia Fuentes ("Ms. Fuentes") is the guardian ad litem of Mr. Graham's minor children, plaintiffs L.G. and J.G.2

Plaintiffs pursue claims against the City, the Fresno Police Department ("Department"), City Police Chief Jerry Dyer ("Chief Dyer"), and City police officers Alfonso Castillo ("Officer Castillo") and Joshua Bowling ("Officer Bowling").3

Mr. Graham's Fatal Shooting

At around 12 p.m. on September 23, 2009, police officers surrounded the Fresno home of Celeste Rodriguez ("Ms. Rodriguez") where Mr. Graham was staying. Police officers contacted Ms. Rodriguez outside her home, threaten her with weapons and demanded that she call Mr. Graham to come out the back door.

Ms. Rodriguez directed by cell phone her 15-year-old son who was inside the home to instruct Mr. Graham to come out the back door. Ms. Rodriguez' son handed the cell phone to Mr. Graham.

Mr. Graham exited the back door and was instructed to turn around with his hands in the air. Mr. Graham complied with the officer's instructions and turned around to face the home's back door with his hands in the air, holding the cell phone in his right hand.

Although Mr. Graham complied with their instructions, officers fired multiple times from multiple angles to strike Mr. Graham in the back of his head, arms, shoulders, torso and back. Mr. Graham did not provoke the officers at any time.

Government Claims

Pursuant to the California Government Claims Act ("Claims Act"), Cal. Gov. Code, §§ 810, et seq., Mr. Graham's estate submitted an October 2, 2009 claim to the City to state that "Fresno Police Officers shot and killed an unarmed person." The City's October 19, 2009 Notice of Insufficiency of Claim states that the "claim is insufficient in that it fails to meet the requirements of California Government Code Section 910 or 910.2" by failing to provide the "date, place and other circumstancesof the occurrence or transaction which gave rise to the claim asserted." (Bold in original.)

Mr. Graham's estate submitted a November 5, 2009 amended claim to the City to state that "[o]n September 23, 2009, Officers Josh Bowling and Alphonso Castillo shot and killed Lonnie Graham who was unarmed at the time." The City's January 26, 2010 notice rejected the claim and warned: "You have, subject to certain exceptions, only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim."

The City notes that no government claims were filed by or on behalf of Ms. Arres or Ms. Fuentes as L.G. and J.G.'s guardian ad litem.

Plaintiffs' Claims

The complaint, filed September 9, 2010, alleges that Mr. Graham's "death was a foreseeable harm resulting from defendant' [sic] failure to exercise duty of care owed to decedent, by using excessive and deadly force against the decedent." The complaint alleges federal civil rights and California statutory and tort claims, which will be addressed below. The complaint seeks recovery for plaintiffs' emotional distress and loss of consortium and for Mr. Graham's wrongful death, pain and suffering, and funeral and burial expenses. The complaint also seeks to recover punitive damages and attorney fees.

DISCUSSION
F.R.Civ.P. 12(b)(6) Motion To Dismiss Standards

Defendants raise numerous legal challenges to seek F.R.Civ.P. 12(b)(6) dismissal of plaintiffs' claims.4

A F.R.Civ.P. 12(b)(6) motion to dismiss is a challenge to the sufficiency of the pleadings set forth in the complaint. "When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence tosupport the claims." Scheurer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974); Gilligan v. Jamco Development Corp., 108 F.3d 246, 249 (9th Cir. 1997). A F.R.Civ.P. 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990); Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995).

In resolving a F.R.Civ.P. 12(b)(6) motion, a court must: (1) construe the complaint in the light most favorable to the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) determine whether plaintiff can prove any set of facts to support a claim that would merit relief. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-338 (9th Cir. 1996). Nonetheless, a court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re GileadSciences Securities Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). A court "need not assume the truth of legal conclusions cast in the form of factual allegations, " U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643, n. 2 (9th Cir.1986), and a court must not "assume that the [plaintiff] can prove facts that it has not alleged or that the defendants have violated... laws in ways that have not been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897 (1983). A court need not permit an attempt to amend if "it is clear that the complaint could not be saved by an amendment." Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 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." BellAtl. Corp. v. Twombly, 550 U.S. 554, 127 S. Ct. 1955, 1964-65 (2007) (internal citations omitted). Moreover, a court "will dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action." Student Loan Marketing Ass'n v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). In practice, a complaint "must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562, 127 S.Ct. at 1969 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).

In Ashcroft v. Iqbal, __ U.S. _, 129 S.Ct. 1937, 1949 (2009), the U.S. Supreme Court explained:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face."... 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. (Citations omitted.)

After discussing Iqbal, the Ninth Circuit Court of Appeals summarized: "In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 989 (9th Cir. 2009) (quoting Iqbal, __ U.S. _, 129 S.Ct. at 1949).

The U.S. Supreme Court applies a "two-prong approach" to address a motion to dismiss:

First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.... Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.... Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.... But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not "show[n]"-"that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, __ U.S. _, 129 S.Ct. at...

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