Ismail v. Freeman

• Decision Date: 30 October 2012
• Docket Number: Case No. CV11–01751–VBF.
• Citation: 936 F.Supp.2d 1157
• Parties: Niveen ISMAIL v. Newport Beach Detective Penny FREEMAN et al.
• Court: U.S. District Court — Central District of California

936 F.Supp.2d 1157

Niveen ISMAIL

v.Newport Beach Detective Penny FREEMAN et al.

Case No. CV11–01751–VBF.

United States District Court,

C.D. California.

Oct. 30, 2012.

Alvin M. Gomez, Gomez Law Group, Del Mar, CA, for Niveen Ismail.

Allen Christiansen, Blakney Ann Boggs, Peter James Ferguson, Ferguson Praet and Sherman APC, Santa Ana, CA, for Penny Freeman and Neil Schuster.

PROCEEDINGS (IN CHAMBERS): SECOND AMENDED ORDER DISMISSING ALL FEDERAL CLAIMS AGAINST CITY OF NEWPORT BEACH AND NBPD, DECLINING SUPPLEMENTAL JURISDICTION OVER ALL STATE–LAW CLAIMS AGAINST CITY OF NEWPORT BEACH AND NBPD, DENYING WITHOUT PREJUDICE THE MOTION TO DISMISS CLAIMS AGAINST NEWPORT BEACH DETECTIVE FREEMAN AND NEWPORT BEACH POLICE OFFICER SCHUSTER, AND GRANTING PLAINTIFF LEAVE TO FILE A THIRD AMENDED COMPLAINT

VALERIE BAKER FAIRBANK, District Judge.

Linda Kanter, Courtroom Deputy

None Present, Court Reporter.

This is a civil-rights action under 42 U.S.C. § 1983. For the reasons that follow, the Court will dismiss all federal claims against the City of Newport Beach (“the City”) and the Newport Beach Police Department (“NBPD”), pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. Following Ninth Circuit practice, the Court will then decline supplemental jurisdiction over all statelaw claims against the City and NBPD. However, the Court will deny without prejudice the motion to dismiss the claims against Newport Beach Detective Freeman and Newport Beach Police Officer Schuster for failure to state a claim. Finally, the Court will allow the plaintiff to file a third amended complaint that contains only claims against Freeman and Schuster, and which presents allegations in support of those claims in a clearer, more detailed, more organized fashion. After this Order, the only defendants remaining will be the two police officers.

On August 8, 2012, the plaintiff filed the second amended complaint (“SAC”), asserting the following federal constitutional claims: illegal search and seizure in violation of the Fourth Amendment, false arrest, false imprisonment, malicious prosecution, excessive bail in violation of the Eighth Amendment, and “Monell-related claims” against the City and Orange County alone. Plaintiff also asserts state-law claims for false arrest, false imprisonment, civil conspiracy to violate her constitutional rights, and perhaps defamation. On all nine counts the plaintiff seeks punitive damages and attorney's fees, and she demands a jury trial, see SAC at 20–24.

In September 2012, the Court received two motions to dismiss the second amended complaint for failure to state a claim on which relief can be granted, one by the County of Orange and Orange County Deputy District Attorney Elizabeth Costello (“the OC Defendants”) and one by the Newport Beach Defendants. On October 9, 2012, this Court issued an order finding these matters appropriate for decision without oral argument and vacating the hearing previously scheduled. On October 18, 2012, 917 F.Supp.2d 1060, 2012 WL 7849081, the Court issued an Order granting the OC Defendants' motion, dismissing all federal claims against the OC Defendants, and declining supplemental jurisdiction over all state-law claims against the OC Defendants. That Order terminated the OC Defendants as parties.

Today the Court rules on the Newport Beach Defendants' motion to dismiss.

Background

In December 2009, plaintiff was charged with the felony kidnapping of her son and felony solicitation of the kidnapping of her son in violation of Cal.Penal Code §§ 207(a), 653F(a), and 664(a), following an investigation by the NBPD which she describes as “faulty.” See SAC ¶¶ 25 and 41. The Orange County D.A. recommended detaining plaintiff without bail; the state court set bail at $1 million but reduced it to $150,000 in March 2010. See SAC ¶¶ 25–27. A jury acquitted plaintiff of the felony charges in December 2011. See SAC ¶¶ 25 and 29. While plaintiff was out on bail in September 2010, the OCDA charged her with misdemeanors based on a NBPD Officer's allegation that she had violated a restraining order prohibiting contact with her son. Some of the misdemeanor charges were dismissed before trial, and the state court ultimately issued a directed verdict in favor of plaintiff on the other misdemeanor charges in December 2011. See SAC ¶¶ 38–43, 46–47.

Having been acquitted of all charges, plaintiff now alleges that the Newport Beach Defendants conspired with private investigator Young to entrap and arrest the plaintiff and have her prosecuted on felony kidnapping and other charges. See SAC ¶ 17. As part of that conspiracy, plaintiff alleges, Officers Freeman and Schuster made false and misleading factual representations to obtain a search warrant and then falsely arrested her without probable cause, violating her Fourth Amendment right to be free of unreasonable search and seizure, her right to equal protection of the laws, her rights to substantive and procedural due process, her right to privacy, her right to the presumption of innocence, and her rights “under applicable California law,” including “§§ 43, 44, 45 and 46 of the Civil Code,” and perhaps her right to be free of intentionally inflicted emotional distress, in connection with the felony and misdemeanor charges. See id. ¶¶ 18, 30–31, 49–52, 89–91, 99–100, 105, and 110. Plaintiff also asserts that the City, Freeman, and Schuster, along with the dismissed OC Defendants, intentionally and maliciously delayed the filing of the misdemeanor charges after her October 25, 2010 second arrest in order to harm plaintiff, perhaps with regard to her ability to remain employed. See id. ¶ 108.

According to plaintiff, during a December 4, 2009 meeting that lasted one and a half hours, Schuster “badgered” her into discussing her son, id. ¶ 22, but she denies ever soliciting a crime, paying any money, or intending to pay any money to anyone, id. ¶ 23. Plaintiff explains that during the meeting, Schuster “play[ed] the part of [private investigator] Young's partner while wearing a wire, without an arrest warrant and/or probable cause” while Freeman “listen[ed] in.” Id. ¶ 24. Based on the “faulty investigation” by Freeman and Schuster, plaintiff alleges, she was wrongfully arrested, wrongfully charged by the OCDA with eight felonies including attempted kidnapping and attempted burglary, and then wrongfully prosecuted by the OCDA. Id. ¶ 25. Plaintiff further alleges that the City knowingly issued false statements to the media that were unsubstantiated by evidence or contradicted by the available evidence, id. ¶ 28, though she does not say what that evidence might have been.

Beginning on December 4, 2009 and continuing, plaintiff alleges, the Newport Beach police defendants conspired to violate and did violate her Eighth Amendment right to be free of excessive bail, by providing false information for the purpose of convincing the state trial court to set excessive bail. See SAC ¶¶ 64–65, 72.¹

Then, on September 7, 2010, plaintiff called Detective Freeman at Freeman's request. Freeman stated, “without any evidence,” that plaintiff had a violated a state-court restraining order filed on behalf of her son's adoptive parents by trying to make contact with her son, which plaintiff denied. See id. ¶¶ 40–41. Freeman then allegedly “maliciously alleged” that plaintiff had committed a crime and recommended that the County charge her, leading the County to charge her with misdemeanors. See id. ¶¶ 42–43. Some of the misdemeanors were dismissed before trial, and a jury acquitted plaintiff on the others in December 2011, id. ¶¶ 46–47.

Legal Standard: Dismissal Pursuant toFed.R.Civ.P.12(b)(6)for Failure to State a Claim

All four of the NB Defendants seek dismissal of all claims against them pursuant to Rule 12(b)(6), which authorizes the court to dismiss a claim for “failure to state a claim on which relief can be granted.” To avoid dismissal, a claim “must provide ‘more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.’ ” In re Rigel Pharms., Inc. Securities Lit., 697 F.3d 869, 875 (9th Cir.2012) (“Rigel ”) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The well-pled factual allegations of the complaint are assumed to be true, see Rigel, 697 F.3d at 876 (citing Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th Cir.2009)), and construed in the light most favorable to the plaintiff, see W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970, 976 (9th Cir.2012) (“Western Radio II ”), pet. cert. filed o.g.,––– U.S. ––––, 133 S.Ct. 758, 184 L.Ed.2d 499 (2012) (No. 12–266).

Ultimately, the well-pled factual allegations “must be enough to raise a right to relief above the speculative level....” Rigel, 697 F.3d at 875 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). A claim has facial plausibility, for 12(b)(6) purposes, only “ ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” See Caviness v. Horizon Community Learning Center, Inc., 590 F.3d 806, 812 (9th Cir.2010) (quoting Iqbal, 556 U.S. at 677, 129 S.Ct. at 1949). “ ‘Conclusory allegations of law and unwarranted inferences,’ of course, ‘are insufficient to defeat a motion to dismiss for failure to state a claim.’ ” Caviness, 590 F.3d at 812 (quoting Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir.1996)). While “[t]he plausibility standard is not akin to a ‘probability requirement’ ... it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 677–78, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of entitlement to...