Barge v. Horwitz
| Decision Date | 08 June 2021 |
| Docket Number | Case No. 21-cv-02558-JCS |
| Court | U.S. District Court — Northern District of California |
| Parties | MELISSA BARGE, Plaintiff, v. MARC HORWITZ, et al., Defendants. |
Plaintiff Melissa Barge, pro se, applied to proceed in forma pauperis. The Court finds she is indigent and therefore GRANTS the application. The Court now must review the sufficiency of Plaintiff's Complaint to determine whether it satisfies 28 U.S.C. § 1915(e)(2)(B). Because Plaintiff has declined consent to magistrate jurisdiction pursuant to 28 U.S.C. § 636(c), the undersigned intends to reassign this case to a district judge with a report and recommendation addressing the adequacy of Plaintiff's claims. For the reasons set forth below, the Court finds that Plaintiff's claims are insufficiently pled in some respects. Therefore, Plaintiff is ORDERED TO SHOW CAUSE why this case should not be dismissed in part.
In the Complaint, Plaintiff alleges that she was stopped by Defendant Officer Marc Horwitz, of the Alameda Police Department, and that when she challenged his assertion that she had been talking on her cell phone while driving and did not immediately provide identification upon request he forcibly removed her from the car, placed her in handcuffs and "forced [her] in to the back of an SUV with no explanation." Complaint ¶¶ 2-8. According to Plaintiff, she was taken to the police station, where she was held for 15 to 20 minutes, and then to Santa Rita County Jail. Id. ¶¶ 11, 14. Plaintiff further alleges that on the way to the jail she was forced to sit in an uncomfortable position, injuring her arms. Id. ¶ 15. In the meantime, she alleges, the Alameda Police Department turned her car over to Defendant Ken Bett Towing, a company that "works under contract with the City of Alameda and Alameda Police." Id. ¶¶ 13, 33. Subsequently, Ken Bett Towing refused to release the car to Plaintiff unless she paid $4,000, which she refused to do. Id. ¶ 19. Plaintiff alleges Ken Bett Towing also refused to allow Plaintiff to retrieve personal property from her car. Id. ¶ 21. On her third attempt to retrieve the car from Ken Bett Towing, Plaintiff alleges that an employee of Ken Bett Towing told her, "the Alameda Police Department told me not to give it to you." Id. ¶ 21. She alleges that her car was never returned to her and that currently an "unknown person has possession and use of" it. Id. ¶ 24.
In the caption of her complaint, Plaintiff names as defendants Officer Horwitz, the Alameda Police Department, the City of Alameda and Ken Bett Towing. She asserts claims for violation of her Fourth and Fifth Amendment rights against Officer Horwitz, the City of Alameda and Ken Bett Towing, "in their official capacity." She also asserts a claim for a "Stop and Identify Violation" and a claim under Article 1, section 16 of the California Constitution, both of which she appears to assert against all defendants. Plaintiff seeks a preliminary injunction enjoining Defendants from refusing to return her car and various forms of declaratory relief, including a declaration that Defendants' actions are unconstitutional.1
Where a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1) and is granted leave to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); seeMarks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996).
To state a claim for relief, a plaintiff must make "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Further, a claim may be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6); see also Diaz v. Int'l Longshore and Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007). In determining whether a plaintiff fails to state a claim, the court takes "all allegations of material fact in the complaint as true and construe[s] them in the light most favorable to the non-moving party." Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). However, "the tenet that a court must accept a complaint's allegations as true is inapplicable to legal conclusions [and] mere conclusory statements," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "do not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (internal quotation marks omitted). The complaint need not contain "detailed factual allegations," but must allege facts sufficient to "state a claim to relief that is plausible on its face." Id. at 678 (citing Twombly, 550 U.S. at 570).
"Because Rule 12(b)(6) focuses on the 'sufficiency' of a claim rather than the claim's substantive merits, 'a court may [ordinarily] look only at the face of the complaint to decide a motion to dismiss,' Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002), including the exhibits attached to it." DeLeon v. Colon, No. 320CV00791AJBBGS, 2021 WL 1626339, at *2 (S.D. Cal. Apr. 27, 2021) . "However, exhibits that contradict the claims in a complaint may fatally undermine the complaint's allegations." Id. ; Nat'l Assoc. for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) ()).
Where the complaint has been filed by a pro se plaintiff, courts must "construe the pleadings liberally . . . to afford the petitioner the benefit of any doubt." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). "A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies in the complaint could not be cured by amendment." Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute, as recognized in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc). Further, when it dismisses the complaint of a pro se litigant with leave to amend, "the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively." Id. (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). "Without the benefit of a statement of deficiencies, the pro se litigant will likely repeat previous errors." Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 624 (9th Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)).
The Court construes Plaintiff's first three claims, based on the Fourth and Fifth Amendments and the "Stop and Identify Violation," as civil rights claims asserted under 42 U.S.C. § 1983. Section 1983 creates a cause of action against a "person who, under color of any [state law], subjects, or causes to be subjected, any [person] to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. "Section 1983 does not create any substantive rights; rather it is the vehicle whereby plaintiffs can challenge actions by governmental officials." Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). A plaintiff bringing a claim under § 1983 must show that "(1) the action occurred 'under color of state law'and (2) the action resulted in the deprivation of a constitutional right or federal statutory right." Id. (citation omitted).
Individual officers are considered "persons" within the meaning of § 1983, as are local governmental units, such as cities or counties. Will v. Michigan Dept. of State Police, 491 U.S. 58, 70 (1989). However, municipal departments and sub-units, including police departments, are generally not considered "persons" within the meaning of § 1983. Vance v. County of Santa Clara, 928 F. Supp. 993, 995-96 (N.D.Cal.1996) (). Because the Alameda Police Department is not a "person" within the meaning of Section 1983, it is not a proper defendant as to Plaintiff's Section 1983 claims. This defect cannot be cured by amendment.
As to the City of Alameda, the Section 1983 claims asserted against it in the Complaint fail as currently pled because although a municipality may be sued under § 1983, there is no vicarious liability under that statute, meaning that it can be held liable for constitutional violations arising from the conduct of its officers only if that conduct is the result of an official custom or policy of the...
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