Hicks v. City of Vallejo

• Decision Date: 26 May 2015
• Docket Number: No. 2:14-cv-0669 DAD PS,2:14-cv-0669 DAD PS
• Court: U.S. District Court — Eastern District of California
• Parties: TYRONE EDWARD HICKS, Plaintiff, v. CITY OF VALLEJO, et al., Defendants.

TYRONE EDWARD HICKS, Plaintiff, v. CITY OF VALLEJO, et al., Defendants.

No. 2:14-cv-0669 DAD PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

May 26, 2015

ORDER

Plaintiff, Tyrone Edward Hicks, is proceeding in this action pro se. This matter was, therefore, referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). The action came before the court on October 10, 2014, for hearing of defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (hereinafter "Rule"). Assistant City Attorney Kelly Trujillo appeared on behalf of the defendants and plaintiff Tyrone Hicks appeared on his own behalf.

On April 17, 2015, the undersigned issued findings and recommendations recommending that defendants' motion to dismiss be denied and that defendants be ordered to file an answer to the second amended complaint. (Dkt. No. 23.) However, on April 24, 2015, plaintiff filed a consent to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).¹ (Dkt. No. 24.)Accordingly, on May 1, 2015, this action was reassigned to the undersigned pursuant to 28 U.S.C. § 636(c)(1) for all further proceedings and entry of final judgment pursuant to the consent of the parties. (Dkt. No. 25.) Thereafter, on May 6, 2015, defendants filed an answer to plaintiff's second amended complaint. (Dkt. No. 26.)²

In light of plaintiff's April 24, 2015, consent to magistrate judge jurisdiction, the findings and recommendations filed April 17, 2015, will be vacated and defendants' motion to dismiss will be denied for the reasons set forth below.

BACKGROUND

Plaintiff Tyrone Hicks commenced this action on March 12, 2014, by filing a complaint and a request to proceed in forma pauperis. (Dkt. Nos. 1 & 3.) On April 2, 2014, plaintiff filed a first amended complaint. (Dkt. No. 4.) On April 9, 2014, the undersigned granted plaintiff's motion to proceed in forma pauperis. (Dkt. No. 5.)

On June 16, 2014, counsel for City of Vallejo, Sean Kenney and Cpl. Postolaki ("Defendants") filed a motion to dismiss. (Dkt. No. 9.) On August 14, 2014, the undersigned granted defendants' motion to dismiss while also granting plaintiff leave to file a second amended complaint. (Dkt. No. 14.) Plaintiff filed his second amended complaint on August 15, 2014. (Dkt. No. 16.)

In his second amended complaint plaintiff alleges, in relevant part, as follows. On March 30, 2012, at approximately 9:00 p.m., plaintiff was "lawfully" driving to a restaurant located at 2525 Sonoma Boulevard, in Vallejo, California with a passenger, Teresa Scott. (Sec. Am. Compl. (Dkt. No. 16) at 2.³) Upon pulling in to the restaurant's parking lot, plaintiff "was unlawfully stopped by defendant Vallejo Police Officers, Sean Kenney and Ted Postolaki without reasonable suspicion of criminal activity or a . . . traffic violation." (Id. at 2-3.) Defendants Kenney and Postolaki approached plaintiff's vehicle and defendant Postolaki asked plaintiff for his driver's license, vehicle registration and proof of insurance, which plaintiff provided. (Id. at 3.)

Defendant Postolaki then ordered plaintiff to exit the vehicle, which plaintiff did. (Id.) As he exited the vehicle, plaintiff heard defendant Kenney "saying stop resisting" and then plaintiff observed defendant Kenney "with his hands around Teresa Scotts['] throat and they were struggling." (Id.) Defendant Postolaki "immediately pushed Plaintiff against his vehicle" and placed "extremely tight" handcuffs on plaintiff. (Id.) Defendant Kenney handcuffed Teresa Scott and "detained her in the back of a patrol car." (Id.) Plaintiff then "communicated to Defendant Sean Kenney that he had no right to choke Teresa Scott." (Id.) Defendant Kenney approached plaintiff and "placed his hands around Plaintiff's throat and began choking Plaintiff where Plaintiff could not breathe . . . ." (Id. at 3.) The choking lasted "approximately for 15-20 seconds" and defendant Postolaki did not "attempt to intercede." (Id.) Thereafter, "[w]ithout consent" defendant Postolaki pat searched plaintiff and searched the inside of Plaintiff's pockets, seizing $775. (Id.) Plaintiff was then "placed in a patrol car," and both defendant Kenney anddefendant Postolaki searched plaintiff's vehicle "without consent." (Id.)

Plaintiff complained that his handcuffs "were too tight and was causing him pain," but defendants Kenny and Postolaki "ignored Plaintiff for over an hour." (Id. at 4.) Moreover, without a "community caretaking reason," and despite the fact that plaintiff's niece was also at the restaurant and willing to drive plaintiff's vehicle home, "defendants Kenney and Postolaki ordered the impoundment" of plaintiff's vehicle. (Id.) Plaintiff was eventually booked in the Solano County Detention Center for possession of cocaine for sale, however, "[t]he charges were subsequently dismissed." (Id.)

Based upon these factual allegations, the second amended complaint asserts causes of action pursuant to 42 U.S.C. § 1983 for alleged violations of plaintiff's rights under the Fourth Amendment, "specifically unlawful vehicle stop, unlawful pat search, unlawful arrest, unlawful vehicle search, excessive force and unlawful impoundment of plaintiff's vehicle," (id. at 1), as well as a claim of municipal liability pursuant to Monell v. Dept's of Soc. Servs. of the City of New York, 436 U.S. 658 (1978) against the City of Vallejo. (Sec. Am. Compl. (Dkt. No. 16) at 1.)

Defendants filed the pending motion to dismiss pursuant to Rule 12(b)(6) on September 5, 2014. (Dkt. No. 18.) Plaintiff filed an opposition on September 19, 2014. (Dkt. No. 19.) Defendants filed a reply on October 3, 2014. (Dkt. No. 20.)

I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6)

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a 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). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. See also Iqbal, 556 U.S. at 676 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

In ruling on such a motion to dismiss, the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

ANALYSIS

I. Search and Seizure

The Fourth Amendment, which applies to the states through the Fourteenth Amendment, protects against unreasonable searches and seizures by law enforcement officers. Mapp v. Ohio, 367 U.S. 643, 655 (1961). The Fourth Amendment requires law enforcement officers to have at least a reasonable suspicion of criminal activity before making a brief investigatory stop ("Terry stop"). See Terry v. Ohio, 392 U.S. 1, 9 (1968); United States v. Johnson, 581 F.3d 994, 999 (9thCir. 2009) ("Police may detain or seize an individual for brief, investigatory purposes, provided the officers making the stop have reasonable suspicion that criminal activity may be afoot.") (citation and internal quotation marks omitted). "While reasonable suspicion requires 'considerably less than proof of wrongdoing by a preponderance of the evidence,' an officer must be able to articulate facts creating grounds to suspect that criminal activity 'may be afoot.'" Ramirez v. City of Buena Park, 560 F.3d 1012, 1020 (9th Cir. 2009) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). "Reasonableness . . . is measured in objective terms by examining the totality of the circumstances." Ohio v. Robinette, 519 U.S. 33, 39 (1996).

In their motion to dismiss defendants argue that plaintiff in his second amended complaint fails to allege that he "was stopped by defendants without reasonable suspicion."⁴ (Defs.' MTD (Dkt. No. 18) at 6.) The court notes, however, that in his second amended complaint plaintiff does allege that on March 30, 2012, he "was lawfully driving" his...