Low v. City of Sacramento
| Decision Date | 15 July 2011 |
| Docket Number | No. 2:10-cv-01624 JAM KJN PS,2:10-cv-01624 JAM KJN PS |
| Parties | MONTE L. LOW, Plaintiff, v. THE CITY OF SACRAMENTO; POLICE CHIEF RICK BRAZIEL; CAPT. SCOTT LACOSSE; LT. NEIL SCHNEIDER; OFFICER KHANG BADGE #240; AND KHANG'S OFFICER/PARTNER ON THE EVENING OF 01/11/2008, Defendants. |
| Court | U.S. District Court — Eastern District of California |
Presently before the court is a motion to dismiss and strike plaintiff's Third Amended Complaint, which was filed by the following defendants: the City of Sacramento ("City"), Rick Braziel, Scott LaCosse, Neil Schneider, and "Officer Khang."1 (Mot. to Dismiss & Strike, Dkt. No. 18.) Because oral argument would not materially aid the resolution of the pending motion, this matter was submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). The undersigned has considered the briefs and theappropriate portions of the record in this case and, for the reasons stated below: (1) denies defendants' request for judicial notice as moot, and (2) recommends that defendants' motion be granted, and (3) that plaintiff's Third Amended Complaint be dismissed with prejudice.
Plaintiff's Third Amended Complaint alleges violations of 42 U.S.C. §§ 1983 and 1985(2). (See Third Am. Compl., Dkt. No. 15.) Generally, plaintiff's claims arise from his arrest for public intoxication on January 11, 2008, an off-duty officer's alleged physical assault of plaintiff during the arrest, and plaintiff's detention in the Sacramento County jail thereafter. (See id. at 3, 6-20.) Plaintiff alleges that he is a resident of Sacramento, California. (Id. ¶ 2.) He further alleges that "defendants, with the exception of the City of Sacramento and the off-duty police officer (attacker), are or were employed by the City of Sacramento on the date of January 11, 2008, and work or worked for the City of Sacramento Police Department." (Id. ¶ 3.)
Plaintiff alleges that on or about January 11, 2008, he was "attacked, and severely beaten by a man at or near 7465 Rush River Drive, Sacramento, California." (Third Am. Compl. ¶ 6.) Plaintiff further alleges that "the attacker without warning pushed [plaintiff] through the door of the Mountain Mike's Pizza restaurant . . . and tried to stomp plaintiff's head into the ground." (Id.) In somewhat of a contradictory allegation, plaintiff alleges that he bounced off of the door and landed on his head and back, at which time the alleged attacker attempted to stomp his right foot downward toward plaintiff's head. (Id.¶ 7.) Plaintiff alleges that during the attack, the "attacker yelled, 'I'm an off-duty police officer!'" (Id.)
Plaintiff alleges that he deflected the assailant's foot, sprang to his feet, and then ran to a nearby supermarket "to avoid further violence and to summon aid." (Third Am. Compl. ¶ 8.) He further alleges that two Sacramento City Police Department officers arrived at thesupermarket.2 (Id. ¶ 10.) Plaintiff further alleges that although he was "severely injured in the attack, the Sacramento City Police Officers refused to take a complaint from the plaintiff, refused to examine or document his injuries, refused to let him identify his attacker, handcuffed him without explanation, did not read him his rights, and did not tell plaintiff where he was being taken." (Id. ¶ 11.) The responding officers allegedly asked plaintiff three questions: (Id. ¶ 12.) Plaintiff allegedly responded that he had consumed six beers between 1:00 p.m. and 8:00 p.m. that day, and he told Officer Kang that "he does not use drugs or inhalants."3 (Id.) Plaintiff alleges that he was not given a "sobriety test," but later found out that "he was accused of using (huffing) a substance known as toluene."4 (Id. & Exs. G, J.)
Plaintiff alleges that he was frightened by the officers' actions and believed that the officers were "conspiring to cover up the attempt on his life." (Third Am. Compl. ¶ 13.) He alleges that while he was being loaded into the police car, he asked: "Are you going to finish the job?" (Id.) He further alleges that having received no response to his query, he asked but received no response to the following question: "Are you going to kill me?" (Id.) Plaintiff alleges that while he was in the police car, he "raised his voice and said, 'Great, I'm going to be killed by the police!" (Id. ¶ 14.) Plaintiff alleges that Officer Khang stated that plaintiff had "screamed that he wanted to be killed by a police officer."5 (Id.) Plaintiff disputes that he statedas much. (Id.)
Plaintiff alleges that he was thereafter taken to the "Sacramento County Jail," and that he was given a tuberculosis test and was questioned about "health issues" by a nurse at the jail. (Third Am. Compl. ¶¶ 16-17.) He alleges that although he told the nurse that he was attacked by an off-duty police officer, the nurse "did not note the attack" on the Sacramento Sheriff's Department Receiving Screening Form, did not examine plaintiff's injuries, and did not note plaintiff's injuries on the form. (Id. ¶ 17.) Plaintiff alleges that a Sacramento Police Officer forged plaintiff's signature on the Sacramento Sheriff's Department Receiving Screening Form.
Plaintiff alleges that he was "released from jail without charges on January 12, 2008," and that upon release he learned that he had been arrested for "public intoxication" despite having been given no sobriety test.6 (Third Am. Compl. ¶ 21.) He alleges that he was denied medical attention in order to "hide" the attack by the off-duty officer and to prevent plaintiff from documenting his blood-alcohol content. (See id.)
On January 15, 2008, plaintiff allegedly attempted to file a complaint at the "station for the City of Sacramento Police," but the "police refused to file the complaint for the attack, and indicated that they had completed their investigation, without ever taking a statement from plaintiff." (Third Am. Compl. ¶ 22.) Plaintiff alleges that "the defendants refused to provide [him] with any information regarding his attacker, so the identity of this man remains unknown to him to this day." (Id.)
Plaintiff asserts that "the actions of the defendants were intentionally undertaken to prevent him from discovering the identity of the off-duty police officer that attacked him, topunish [him] for making a complaint against the officer, and to deny [him] access to justice for the crimes committed against him." (Third Am. Compl. ¶ 23.) Plaintiff alleges that he has: (1) suffered physical pain and suffering as a result of the denial of medical treatment for his injuries; (2) suffered mental pain and suffering as a result of the initial attack and the "subsequent unalleviated fear of being killed," the lack of medical treatment, and "the subsequent denial of any meaningful access to justice"; and (3) has been "denied employment due to the unfounded allegations of drug use in his arrest." (Id. ¶ 25.) Specifically as to the latter alleged injury, plaintiff alleges that in September 2008, plaintiff was sent a letter from the California Department of Corrections and Rehabilitation ("CDCR") informing plaintiff that he would no longer be considered for positions he had applied for because of allegations—provided by the Sacramento Police Department to CDCR—of inhalant usage and of what plaintiff screamed in the restaurant during the incident on January 11, 2008. (See id. ¶ 24; see also id., Ex. G (letter dated September 11, 2008, notifying plaintiff of the removal of his name from the eligibility list for positions as a "Youth Correctional Counselor/Youth Correctional Officer/Correction Officer").
Through his Third Amended Complaint, plaintiff seeks recovery for constitutional violations pursuant to 42 U.S.C. §§ 1983 and 1985. With respect to the alleged constitutional violations at issue, plaintiff alleges that: (1) his right to petition for the redress of grievances secured by the First and Fourteenth Amendments to the United States Constitution were violated as a result of retaliation by law enforcement personnel following plaintiff's complaints; (2) his Fourth Amendment rights to be free of unreasonable searches and seizures were violated by an false arrest and unlawful detention; (3) his Fourteenth Amendment due process or equal protection rights were violated because he—as a "class of one"—was treated differently than his arresting officers; and (4) his Eight Amendment rights were violated by the imposition of cruel and unusual punishment in the form of "psychological torture" and the deliberate denial of medical needs at the jail. (See Third Am. Compl. ¶¶ 27-30, 34.)
Plaintiff filed his original complaint in California Superior Court, County of Sacramento ("Superior Court"), on July 8, 2009, alleging that the City was liable for intentional torts and general negligence. (Compl., attached as an exhibit to the Notice of Removal, Dkt. No. 2 at 23-30.) On May 10, 2010, plaintiff filed a First Amended Complaint in the Superior Court, which, for the first time, indicated that plaintiff was seeking relief against the City pursuant to 42 U.S.C. § 1983. (First Am. Compl., attached as an exhibit to the Notice of Removal, Dkt. No. 2 at 11-15.)
On May 14, 2010, plaintiff filed a Second Amended Complaint in the Superior Court, which sought recovery against the City for violations of 42 U.S.C. § 1983. (Second Am. Compl., attached as an exhibit to the Notice of Removal, Dkt. No. 2 at 5-9.) As with plaintiff's prior pleadings, the Second Amended Complaint did not name any individuals as defendants. On June 25, 2010, defendant removed plaintiff's action to federal court pursuant to 28 U.S.C. § 1441(b). (Notice of Removal, Dkt. No. 1.)
Defendant subsequently filed a motion to dismiss and/or strike plaintiff's Second Amended...
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