Osborne v. Tracy Police Dep't, 2:20-cv-1805-JAM-KJN PS
| Decision Date | 30 October 2020 |
| Docket Number | No. 2:20-cv-1805-JAM-KJN PS,2:20-cv-1805-JAM-KJN PS |
| Court | U.S. District Court — Eastern District of California |
| Parties | MICHELLE OSBORNE, Plaintiff, v. TRACY POLICE DEPARTMENT, et al., Defendants. |
FINDINGS AND RECOMMENDATIONS ON DEFENDANTS' MOTION TO DISMISS AND PLAINTIFF'S IFP APPLICATION
Plaintiff, who is proceeding without counsel in this action, alleges multiple causes of action against numerous officers of the Tracy Police Department.1 (ECF No. 8.) Currently before the court are: (I) plaintiff's motion to proceed in forma pauperis ("IFP") (ECF No. 9); and (II) defendants' motion to dismiss (ECF No. 12.). The court now recommends:
Plaintiff alleges that on June 14, 2019, Officer Calvache of the Tracy Police Department applied some manner of force against plaintiff, in the presence of Tracy P.D. Sargeant Hicks and Officers Clayton, Acevedo, and Perry. (ECF No. 8 at 9.) Plaintiff allegedly blacked out and the officers left plaintiff in her apartment complex. (Id.) At some point thereafter, some unnamed assailant allegedly sexually assaulted plaintiff. (Id.) When plaintiff called Tracy P.D. for help, no officers responded, and the operators allegedly prevented plaintiff from "responding while calling 911." (Id.) Plaintiff then went to a neighbor's apartment. (Id.) Eight Tracy P.D. Officers arrived (Sgt. Hicks, Sgt. Muir, and Officers Calvache, Clayton, Weyant, Perry, Azevedo, and Pederson), and plaintiff was arrested. (Id.) At the station, dispatchers Umpad, Sheivin, Allen, and Quiros did not respond to plaintiff's pleas for help. (Id. at 10.) Plaintiff was also ignored by Hicks, Clayton, and Calvache. (Id.) Officer Clayton wrote an incident report, which was signed by Sgt. Hicks and Muir. (Id.)
Plaintiff filed claims against numerous officers in California state court, and on September 8, 2020, defendants removed to this court. (See ECF No. 1.) After defendants moved to dismiss, plaintiff filed a first amended complaint ("1AC") within 21 days. (ECF No. 8.) The 1AC lists four "counts" under 42 U.S.C. § 1983 for "unreasonable search and seizure," "violation of declaration of rights," "deprivation of life, liberty or property without due process of the law and equal protection of the law," and "freedom of speech." (Id. at 10.) It also lists "counts" for false arrest/false imprisonment, assault and battery, "bystander liability and supervisory liability," conversion, trespass to property, malicious prosecution, defamation, intentional infliction ofemotional distress, negligence, and three Cal. Penal Code sections for perjury (Section 118), false reports (Section 118-1) and False Imprisonment (Section 236). (Id. at 10-11.) Finally, the 1AC lists a "count" under Title VII of the Civil Rights Act of 1964. (Id. at 11.) Plaintiff prays for compensatory damages of $200,000 for medical bills, loss of income, pain and suffering, and punitive damages of $275,000 plus $25,000 from each defendant. (Id. at 12.) The 1AC also lists as relief sought "injunction," "declaration," attorney fees, and "personal capacity." (Id.)
Defendants moved to dismiss the 1AC, setting the matter for an October 29, 2020 hearing. (ECF No. 12.) Additionally, plaintiff moved to proceed in forma pauperis. (ECF No. 9.) Both matters were taken under submission after the October 29 hearing.
Federal law authorizes the commencement of an action "without prepayment of fees or security" by a person that is unable to pay such fees. 28 U.S.C. § 1915. Here, plaintiff filed in California state court, and when defendants removed to this court, they paid the applicable filing fee. Thus, plaintiff's motion to proceed in forma pauperis, so as to avoid the filing fee, is moot. See, e.g., Neighbors v. Kemp, Civ S-06-1611 DFL EFB, 2006 WL 3486829, at *1 (E.D. Cal. Dec. 1, 2006) ().
Further, the court notes that, given plaintiff's affidavit, in forma pauperis status would have likely been denied on the merits, as she indicated her gross wages are $1,800.00 per month ($21,600.00 annually). According to the United States Department of Health and Human Services (https://aspe.hhs.gov/poverty-guidelines), the poverty guideline for a household of one not residing in Alaska or Hawaii is $12,760.00 for 2020. Thus, plaintiff's gross household income is almost double the poverty guideline. To be sure, the Court is sympathetic to the fact that plaintiff does not have a large income by any measure, and that plaintiff also has several expenses to contend with. However, numerous litigants in this Court have significant monthly expenditures, and may have to make difficult choices as to which expenses to incur, which expenses to reduce or eliminate, and how to apportion their income between such expenses andlitigating an action in federal Court. Such difficulties in themselves do not amount to indigency.
Rule 8(a) of the Federal Rules of Civil Procedure requires that a pleading be "(1) a short and plain statement of the grounds for the court's jurisdiction . . . ; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief." Rule 8(d)(1). Each allegation must be simple, concise, and direct. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (overruled on other grounds) ("Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim.").
Under Rule 12(b), a defendant may present certain defenses to claims raised in a pleading. One such defense tests whether a complaint has "fail[ed] to state a claim upon which relief can be granted." Rule 12(b)(6). This challenge tests whether the complaint lacks either a cognizable legal theory or sufficient facts to support a cognizable legal theory. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015).
In evaluating whether a complaint states sufficient facts on which to base a claim, all well-pleaded factual allegations are accepted as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and the complaint must be construed in the light most favorable to the non-moving party, Corrie v. Caterpillar, Inc., 503 F.3d 974, 977 (9th Cir. 2007). The court is not, however, required to accept as true "conclusory [factual] allegations that are contradicted by documents referred to in the complaint," or "legal conclusions merely because they are cast in the form of factual allegations." Paulsen v. CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). Thus, to avoid dismissal for failure to state a claim, a complaint must contain more than "naked assertions," "labels and conclusions," or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). Simply, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). Plausibility means pleading "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconductalleged." Id.
Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 fn. 7 (9th Cir. 2010) (). Prior to dismissal, the court is to tell the plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure them—if it appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc). However, if amendment would be futile, leave to amend need not be given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996).
Plaintiffs' complaint asserts claims under 42 U.S.C. § 1983 for alleged violations of her First, Fourth, and Fourteenth Amendment constitutional rights. She asserts these claims against the Tracy Police Department and ten of its officers/employees. (See ECF No. 8 at 8.) Even construing the complaint liberally, plaintiff has failed to state sufficient plausible facts to support any civil rights claims against these officers or the department.
Title 42 U.S.C. Section 1983 provides a cause of action for the deprivation of "rights, privileges, or immunities secured by the Constitution or laws of the United States" against a person acting "under color of any statute, ordinance, regulation, custom, or usage." Gomez v. Toledo, 446 U.S. 635, 639 (1980). "Section 1983 is not itself a source of substantive rights; rather it provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989). Thus, to state a claim for relief under Section 1983, a plaintiff must allege that the defendant (1) acted under color of state law; and (2) caused a plaintiff to be deprived of a right secured by the Constitution or laws of the United States. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). An officer "causes" a constitutional deprivation...
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