Shelley v. Cnty. of San Joaquin

• Decision Date: 07 February 2014
• Docket Number: No. 2:13–cv–00266–MCE–DAD.,2:13–cv–00266–MCE–DAD.
• Citation: 996 F.Supp.2d 921
• Court: U.S. District Court — Eastern District of California
• Parties: Joan SHELLEY, Michelle Loftis, Sandra Hoyopatubbi, Plaintiffs, v. COUNTY OF SAN JOAQUIN; Sheriff Steve Moore, in his official capacity; and Does 1 through 50, inclusive, Defendants.

996 F.Supp.2d 921

Joan SHELLEY, Michelle Loftis, Sandra Hoyopatubbi, Plaintiffs,

v.COUNTY OF SAN JOAQUIN; Sheriff Steve Moore, in his official capacity; and Does 1 through 50, inclusive, Defendants.¹

No. 2:13–cv–00266–MCE–DAD.

United States District Court, E.D. California.

Feb. 7, 2014.

Mark Bradley Connely, Hall, Heiatt & Connely, San Luis Obispo, CA, for Plaintiffs.

Mark Emmett Berry, Mayall Hurley Knutsen Smith and Green, Stockton, CA, for Defendants.

MEMORANDUM AND ORDER

MORRISON C. ENGLAND, JR., Chief Judge.

Through this action, Plaintiffs Joan Shelley, Michelle Loftis and Sandra Hoyopatubbi (collectively “Plaintiffs”) seek to recover damages from municipal defendants, the County of San Joaquin and San Joaquin County Sheriff Steve Moore (collectively “Defendants”), for violation of the U.S. Constitution. This case concerns the exhumation of the body of Plaintiffs' deceased relative, Jo Ann Hobson, by the San Joaquin County Sheriff's Department. Plaintiffs allege the Sheriff's Department exhumed Ms. Hobson's body in an unconstitutional manner, and sue, asserting violations of the Fourteenth Amendment under 42 U.S.C. § 1983. First Am. Compl. (“FAC”), Aug. 6, 2013, ECF No. 14.

Presently before the Court is Defendants' Motion to Dismiss (“Motion”) Plaintiffs' First Amended Complaint (“FAC”), for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). ² Mot. to Dismiss FAC, Aug. 27, 2013, ECF No. 15–2. Plaintiffs oppose the motion, Opp'n, Oct. 31, 2013, ECF No. 10, and Defendants have filed a reply, Reply, Nov. 27, 2013, ECF No. 23. The Court heard oral argument on Defendants' Motion to Dismiss on January 9, 2014: Mark Berry appeared for Defendants, and Mark Connely appeared for Plaintiffs. For the following reasons, Defendants' Motion is GRANTED in part and DENIED in part.

BACKGROUND³

Jo Ann Hobson went missing at age fifteen in 1985, and it was suspected she was a murder victim of Loren Herzog and Wesley Shermantine, commonly referred to as the “Speed Freak Killers.” In 2012, the San Joaquin Sheriff's Department received information from Shermantine that Hobson's body, along with the bodies of other victims, was located at the bottom of an abandoned well. The Sheriff's Department proceeded to the well site to exhume the bodies.

Plaintiffs allege Defendants “ordered the well to be rapidly and completely dug up with a back hoe.” FAC ¶ 11, ECF No. 14. “Defendants ordered the digging with the back hoe to continue after bones were discovered.” Id. “Thereafter, in the presence of Joan Shelley, and with invited television and news organizations observing, Defendants ... caused the skeletal remains of Jo Ann Hobson ... to be chewed up, pulverized, destroyed, crushed and commingled with other unknown murder victims ....” Id.

Moreover, Plaintiffs allege Defendants “held the skeletal remains of Jo Ann Hobson and would not release them to Plaintiffs for burial or disposition” until several months later, when “Defendants turned over the chopped up and purported remains of Jo Ann Hobson, by sending them to the mortuary for cremation.” Id. ¶ 12.

“Out of concern that the remains ... might not be those of her daughter, Plaintiff Joan Shelley” had the “remains photographed and evaluated by Erick Bartelink, Ph.D., professor of forensic anthropology at Chico State University.” Id. Dr. Bartelink's review “revealed that at least three, and perhaps more individuals were contained in the body bag of bones Defendants had released for cremation. At least one of these bones [was] identified by DNA evidence as belonging to Kimberly Billy and not to Jo Ann Hobson.” Id. “Further, the forensic evaluation ... documented that not all of Jo Ann Hobson's remains [were] turned over,” which leads Plaintiffs to “believe that within the remains that Defendant[s] passed off as belonging to Kimberly Billy, are the missing remains of [Plaintiffs'] daughter and sister Jo Ann Hobson.” Id.

Plaintiffs allege that, as a result of Defendants actions, they suffered “extreme shock, horror, distress and permanent psychologic[al] injury and harm.” Id. ¶ 11.

In a prior order, this Court granted Defendants' motion to dismiss Plaintiffs' damages claims against Sheriff Moore in his individual capacity with prejudice. This Court held Sheriff Moore was entitled to qualified immunity because Plaintiffs' asserted constitutionally protected property interest in the remains of their relative was not “ ‘clearly established’ such that a ‘reasonable officer’ would have believed Plaintiffs were entitled to constitutional due process.” Mem. & Order, 954 F.Supp.2d at 1008. This Court also dismissed, with leave to amend, Plaintiffs' state law claims for failing to plead compliance with the California Tort Claims Act, and Plaintiffs' Monell claims against the County of San Joaquin and Sheriff Moore in his official capacity for failing to allege their injuries were the result of a policy, custom, or practice of mishandling human remains. Id. at 1009–10.

Plaintiffs filed an amended complaint within the prescribed time in which they added allegations that Sheriff Moore was acting in his capacity as a policymaker. See FAC ¶ 14, ECF No. 14. Plaintiffs did not allege compliance with the California Tort Claims Act and therefore appear to have abandoned the state law claims for negligence and emotional distress.

STANDARD

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the non-moving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir.1996). 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 a fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. Id. However, “a plaintiff's obligations to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (citations and internal quotation marks omitted). A court is not required to accept as true a “legal conclusioncouched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must contain something more than a “statement of facts that merely creates a suspicion [of] a legally cognizable right of action.”)).

Furthermore, “Rule 8(a)(2) ... requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 556 n. 3, 127 S.Ct. 1955 (citations and internal quotation marks omitted). “Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds' on which the claim rests.” Id. (citing 5 Wright & Miller, supra, § 1202). A pleading must contain “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. If the “plaintiffs ... have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Id. However, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’ ” Id. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. Leave to amend should be “freely given” where there is no “undue delay, bad faith or dilatory motive on the part of the movant, ... undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment ....” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.2003) (listing the Foman factors as those to be considered when deciding whether to grant leave to amend). Not all of these factors merit equal weight. Rather, “the consideration of prejudice to the opposing party ... carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir.1987)). Dismissal without leave to amend is proper only if it is clear that “the complaint could not be saved by any amendment.” Intri–Plex Techs. v. Crest Grp., Inc., 499 F.3d 1048, 1056 (9th Cir.2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir.2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir.1989) (“Leave need not be granted where the amendment of the complaint ... constitutes an exercise in futility ....”)).

ANALYSIS

Plaintiffs assert Defendants violated the Fourteenth Amendment of the U.S. Constitution and seek damages under 42 U.S.C. § 1983. Defendants move to dismiss arguing Plaintiffs fail to state a claim under Rule 12(b)(6). Plaintiffs counter, arguing Defendants violated the Fourteenth Amendment in two ways: (a) Defendants deprived Plaintiffs of their property interests in the remains of their relative without due process—a procedural due process claim; and (b) Defendants' conduct deprived Plaintiffs of their “substantive due process right to family integrity” because Defendants' conduct was “likely to cause the...