O'Keefe v. Cal. Highway Patrol
| Decision Date | 05 January 2015 |
| Docket Number | No. 2:14-cv-0792-MCE-CMK,2:14-cv-0792-MCE-CMK |
| Court | U.S. District Court — Eastern District of California |
| Parties | DENA RAE O'KEEFE, Plaintiff, v. CALIFORNIA HIGHWAY PATROL, et al., Defendants. |
Plaintiff, proceeding pro se, brings this civil action. This action was removed to this court on March 27, 2014, from the Shasta County Superior Court. Pending before the court is defendants' unopposed motion to dismiss (Doc. 10).
This civil rights action, originally filed in the Shasta County Court, was removed to this court by defendants, who then filed the pending motion to dismiss.
Plaintiff brings this action against the California Highway Patrol and Officer Troy Somovia. Plaintiff's state court complaint alleges two causes of action: motor vehicle negligence and violations of the Fourth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983. Plaintiff alleges the defendants acted negligently in causing a motor vehicle accident with decedentChristopher Fay, and that defendant Somovia violated Mr. Fay's rights under the Fourth and Fourteenth Amendment by acting recklessly with deliberate indifference to the decedent's rights, amounting to use of excessive force and unreasonable seizure of Mr. Fay's life and liberty, depriving him of due process. In addition, plaintiff alleges defendant California Highway Patrol "failed to adequately hire, train and supervise officers, and developed customs, practices and policies with deliberate indifference to the constitutional rights of all citizens, including decedent." (Compl. at 5).
Defendants filed the motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1),(6) for failure to state a claim upon which relief can be granted. The defendants argue plaintiff fails to allege standing to sue and fails to allege sufficient facts to state a claim against the State of California, its agencies, or public officials acting in their official capacity.
In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50 (2009).
Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim isand the grounds upon which it rests." Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. at 555-56. The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "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." Iqbal, 129 S. Ct. at 1949. "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." Id. (quoting Bell Atl. Corp., 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility for entitlement to relief." Id. (quoting Bell Atl. Corp., 550 U.S. at 557).
To determine whether a complaint states a claim upon which relief can be granted, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).
Finally, leave to amend must be granted "[u]nless it is absolutely clear that no amendment can cure the defects." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
Defendants argue the court should dismiss this action for plaintiff's failure to allege standing to sue and failure to allege sufficient facts to state a claim. No opposition has been filed.
Defendants first challenge plaintiff's standing to bring this action on behalf of Mr. Fay, the decedent. Mr. Fay apparently died from injuries sustained during the incident with the defendants. However, as the defendants contend, there is nothing in the complaint to indicate what, if any, relationship there is between plaintiff and Mr. Fay.
"Fourth Amendment rights are personal rights which like other constitutional rights, may not be vicariously asserted." Rakas v. Illinois, 439 U.S. 128, 133-134 (1978). In section 1983 actions, however, the survivors of an individual killed as a result of an officer's excessive use of force may assert a Fourth Amendment Claim on that individual's behalf if the relevant state's law authorizes a survival action. See Moreland v. Las Vegas Metro. Police Dep't., 159 F.3d 365, 369 (9th Cir.1998). Similarly, claims for Battery and Negligence under California law are personal claims belonging to the person suffering the battery or negligent acts. See Ruiz v. Podolsky, 114 Cal.Rptr.3d 263 (2010) ().
California Code of Civil Procedure section 377.20 provides that "a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period." In California, an action under section 1983 for violation of personal civil rights of a decedent may be brought by the decedent's personal representative or successor in interest pursuant to California Code of Civil Procedure §§ 377.30 and 377.34. Subsection 377.30 authorizes a decedent's personal representative or, if none, the decedent's successor in interest to commence any action belonging to the decedent that survives his death. Section 377.34 permits a decedent's successor in interest to recover damages for "the loss ordamage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived," but excluding damages "for pain, suffering or disfiguration."
Here, plaintiff fails to plead that she is either Mr. Fay's personal representative or successor in interest. She cannot maintain this action without first pleading proper standing to act on Mr. Fay's behalf. Thus, this action should be dismissed, in it's entirety, but with leave to amend.
Next, defendants argue plaintiff's complaint fails to state a claim against the California Highway Patrol, as it is not a "person" under 42 U.S.C. § 1983, nor against defendant Somovia in his official capacity.
Section 1983 provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunity secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ." 42 U.S.C. § 1983. "Traditionally, the requirements for relief under [§] 1983 have been articulated as (1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a 'person' (4) acting under color of state law." Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Generally, plaintiffs are required to "plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes." Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986); see also WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 1999) (en banc).
The Eleventh Amendment prohibits federal courts from hearing suits brought against a state both by its own citizens, as well as by citizens of other states. See Brooks v.Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). This prohibition extends to suits against states themselves, and to suits against state agencies. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A state's agency responsible for incarceration and correction of prisoners is a state agency for purposes of the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam); Hale v. Arizona, 993 F.2d 1387,...
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