Lien v. City of San Diego
| Decision Date | 21 May 2021 |
| Docket Number | Case No. 21-cv-224-MMA (WVG) |
| Court | U.S. District Court — Southern District of California |
| Parties | MANDY LIEN and ERIN SMITH, Plaintiffs, v. CITY OF SAN DIEGO, et al., Defendants. |
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO STRIKE
Plaintiffs Mandy Lien ("Lien") and Erin Smith ("Smith") (collectively, "Plaintiffs") bring this civil rights action under 42 U.S.C. § 1983 against Defendants City of San Diego ("City"), David Nisleit ("Nisleit"), Todd Gloria ("Gloria"), and unidentified Does (collectively, "Defendants"). See Doc. No. 1 ("Compl."). Defendants move to dismiss each cause of action pursuant to Federal Rule of Civil Procedure 12(b)(6) and move to strike several allegations from the Complaint pursuant to Federal Rule of Civil Procedure 12(f). See Doc. No. 3. Plaintiffs filed an opposition to Defendants' motion, and Defendants replied. See Doc. Nos. 4, 5. The Court found the matter suitable for determination on the papers and without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. See Doc. No. 6. For the reasons set forth below, the Court GRANTS Defendants' motion to dismiss and GRANTS in part and DENIES in part Defendants' motion to strike.
Plaintiffs' action arises from a demonstration involving supporters and opponents of former President Donald Trump ("Trump") that took place in Pacific Beach on January 9, 2021. See Compl. ¶¶ 1, 2, 21.
Lien arrived in Pacific Beach at 1:05 P.M. on January 9 "to peacefully protest a white nationalist rally led by hate groups from East County." Id. ¶ 21. She was wearing a shirt that said "don't pretend your patriotism isn't racism" and a red hat that supports Black Lives Matter. Smith walked to the area "to peacefully counter protest a rally bringing neo-nazis from out of town." Id. ¶ 29. Lien and her friends walked and chanted, hoping to "discourage those that mean to spread hate." Id. ¶ 23. A few unidentified individuals showed up "to instigate and agitate." Id. Lien and her friends then walked to the intersection of Mission Boulevard and Hornblend Street. Id. At the intersection, Lien saw "a line of officers and the group of white nationalists behind them." Id. There were twenty-five officers dressed in riot gear facing Lien and her group; there were less than ten officers facing the "the white nationalist group that is known for carrying weapons." Id. ¶ 24. People from the white nationalist group were "instigating and pepper spraying people." Id. ¶ 25.
At some point, San Diego Police Department ("SDPD") officers declared an "unlawful assembly" against anti-Trump protestors. See id. ¶¶ 4, 39, 43. "When it was apparent the police were only interested in using excessive force against the counter protestors, Lien and her mom friends decided it was in their best interest to leave to avoidinjury." Id. ¶ 26. As they were leaving, police moved forward and began to pepper ball the crowd. Id. SDPD officers yelled Id. ¶ 29.
Smith tripped after an officer shoved her with a baton. Id. ¶¶ 26, 30. Police then hit Smith with batons and yelled at her while she was on the ground. Id. ¶¶ 26, 29, 31. While being hit by male officers, Smith screamed Id. ¶ 32. While Lien tried to help Smith stand up, officers surrounded Smith to hide what was happening, and a female officer hit Lien and told her to stay back. Id. ¶¶ 26, 33. After Smith stood up, police shot her with a pepper ball in the back of her arm, which caused a large welt. Id. ¶ 34. Smith and Lien then moved to a safe place while being verbally threatened by unidentified pro-Trump supporters. Id. ¶¶ 27, 36.
On the other hand, pro-Trump demonstrators were treated differently. See id. ¶¶ 3-4. For example, SDPD officers "high-fived and chatted it up with the violent pro-Trump side, including some who were later arrested by the FBI for being part of the assault on the U.S. Capitol." Id. ¶ 3. The SDPD declared an "unlawful assembly" against the anti-Trump demonstrators while allowing pro-Trump demonstrators to continue in the same area and towards the Pacific Beach boardwalk. Id. ¶ 4.
Plaintiffs claim that the SDPD engaged in viewpoint discrimination by declaring an unlawful assembly only against the anti-Trump protestors, which violated Plaintiffs' First Amendment rights. See id. ¶¶ 3, 12, 24, 26, 29, 39. Plaintiffs further allege that SDPD's actions amounted to an unlawful seizure under the Fourth Amendment and a violation of their due process rights under the Fourteenth Amendment. See id. ¶¶ 26, 30-34, 39, 44.
Based on these allegations, Plaintiffs bring two causes of action: (1) municipal liability against the City pursuant to Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978), and 42 U.S.C. § 1983 and (2) individual liability against Nisleit, Gloria, and Doe Defendants pursuant to 42 U.S.C. § 1983. See id. ¶¶ 37-44. Defendants move to dismiss the causes of action for failure to state a claim under Rule 12(b)(6) and move to strike allegations from the Complaint under Rule 12(f). See Doc. No. 3.
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). However, plaintiffs must also plead "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); see also Fed. R. Civ. P. 12(b)(6). The plausibility standard demands more than a "formulaic recitation of the elements of a cause of action," or "'naked assertions' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 557). Instead, the complaint "must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996) (citing Nat'l Wildlife Fed'n v. Espy, 45 F.3d 1337, 1340 (9th Cir. 1995)). The court need not take legal conclusions as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting W. Min. Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Similarly, "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).
In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not look beyond the complaint for additional facts. See United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003). "A court may, however, consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment." Id. at 908; see also Lee v. City of Los Angeles, 250 F.3d668, 688 (9th Cir. 2001), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002). "However, [courts] are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint." Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (citing In re Stac Electronics Securities Litigation, 89 F.3d 1399, 1403 (9th Cir. 1996)).
Where dismissal is appropriate, a court should grant leave to amend unless the plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009) (quoting Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)).
Defendants challenge each of Plaintiffs' two causes of action. See Doc. No. 3. The Court assesses each of Plaintiffs' claims in turn.
Defendants argue that Plaintiffs do not sufficiently allege a specific municipal policy. See Doc. No 3-1 at 10.2 Defendants challenge Plaintiffs' reliance on alleged similar occurrences at a May 2016 Trump rally and a Women's March to support a municipal policy. See id. at 10-11 ; see also Doc. No. 5 at 2-3.3Defendants further contend that Plaintiffs fail to allege any facts that Chief Nisleit or Mayor Gloria possessed final policy-making authority for the alleged decisions. See Doc. No 3-1 at 12. Relatedly, Defendants assert that Plaintiffs fail to allege a specific policy that Chief Nisleit or Mayor Gloria "directed, approved or ratified." Doc. No 3-1 at 12; see also Doc. No. 5 at 3. Plaintiffs respond that they base their First Amendment theory on "Defendants unlawfully declar[ing] the assembly to be unlawful, and then engag[ing] in viewpoint discrimination by enforcing the order only against the anti-Trump side." See Doc. No. 4 at 4. Plaintiffs add that their Complaint shows a violation of the Fourth Amendment through SDPD's use of physical force. See id. As to their Fourteenth Amendment theory, Plaintiffs argue Defendants deprived Plaintiffs of their "right to remain in a place of one's choosing." Id.
"Section 1983 provides a cause of action for 'the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Graham v. Connor, 490 U.S. 386,...
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