So v. Bay Area Rapid Transit

Decision Date17 October 2013
Docket NumberNo. C-12-05671 DMR,C-12-05671 DMR
PartiesMARGARET SO, et al., Plaintiff(s), v. BAY AREA RAPID TRANSIT, et al., Defendant(s).
CourtU.S. District Court — Northern District of California
ORDER GRANTING MOTION FOR
JUDGMENT ON THE PLEADINGS

[DOCKET NO. 24] AND GRANTING IN

PART AND DENYING IN PART
MOTION TO DISMISS [DOCKET NO.

34]

Before the court is a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) by Defendant San Francisco Bay Area Rapid Transit District ("BART").1 ["MJP," Docket No. 24.] Also before the court is a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) by Defendants Anisa McNack, Y. Joseph, Andy Alkire, and Mark Macaulay (the "individual BART Defendants"). ["MTD," Docket No. 34.] For the reasons stated below, the motion on the pleadings is granted and the motion to dismiss is granted in part and denied in part.

I. BACKGROUND

Plaintiffs Margaret So and Lance Laverdure filed a Complaint on November 5, 2012, and a First Amended Complaint ("FAC") on January 9, 2013, against Defendants BART, the City of Oakland ("City"), Jeff Israel, Eric Breshears, John Hargraves, Anisa McNack, Y. Joseph, AndyAlkire, Mark Macaulay, and unnamed Doe defendants. [Docket Nos. 1, 4.] The following allegations are taken from the FAC unless otherwise noted.

A. Parties

BART is a municipal corporation duly organized and existing under the laws of the State of California. As an employer, BART is responsible for the acts and omissions of its agents and employees, including the individually named Defendants. FAC at ¶ 4.

Defendants Israel, Breshears, and Hargraves are police supervisors employed by the City and assigned to the Oakland Police Department ("OPD") and were at all relevant times "acting within the course and scope of [their] employment as [] police supervisor[s] for OPD and under color of state law." Id. at ¶¶ 6-8.

Defendants McNack and Joseph are police officers employed by BART and were at all relevant times "acting within the course and scope of [their] employment as [] police officer[s] for Defendant BART and under color of state law. [Their] actions were done under the supervision, direction and control of Defendants BART and OPD." Id. at ¶¶ 9-10.

Defendant Alkire is a lieutenant employed by BART and was at all relevant times "acting within the course and scope of his employment as a lieutenant for Defendant BART and under color of state law. His actions were done under the supervision, direction and control of Defendants BART and OPD." Id. at ¶ 11.

Defendant Macaulay is a sergeant employed by BART and was at all relevant times "acting within the course and scope of his employment as a sergeant for Defendant BART and under color of state law. His actions were done under the supervision, direction and control of Defendants BART and OPD." Id. at ¶ 12.

B. Incident

On the evening of November 2, 2011, Plaintiffs were participating with hundreds of people in the "Occupy Oakland" protests near the intersection of 11th Street and Broadway in Oakland. Id. at ¶ 16. As Plaintiffs and dozens of others crossed the street, a vehicle was driving slowly and erratically through the crowd toward them. Id. at ¶ 17. The driver of the vehicle was Jan Carrigg. In the passenger seat was Sara Abu-Nasser. Carrigg stopped the vehicle in front of Plaintiffs, thenintentionally accelerated into the crowd of pedestrians, hitting and seriously injuring Plaintiffs. Id. Carrigg attempted to drive away, but the vehicle was blocked by people at the scene. Carrigg exited the vehicle and angrily launched himself into the crowd attempting to provoke a fight. He behaved in an extreme aggressive and hostile manner toward the crowd. Abu-Nasser briefly occupied the driver's seat; Plaintiffs believe she did so to conceal the fact that Carrigg had been driving. Id. at ¶ 18. A person that Plaintiffs identify as "Defendant Franklin"2 then spoke to Carrigg and Abu-Nasser at the scene. At that point, "Defendants appeared to be BART police" cleared a path for Carrigg and Abu-Nasser to leave the scene. Id. at ¶ 19.

Defendants also failed to (1) conduct any on scene sobriety tests; (2) administer any blood or breath alcohol tests; (3) photograph the scene; (4) impound the vehicle; (5) obtain the name of either the driver or passenger; (6) interview the people injured in the incident for weeks; and (7) interview any eye witnesses among the dozens of people who were not only present but offering to give statements and recount what they saw. FAC at ¶ 20. These failures were in direct violation of BART and OPD's internal policies and manuals regarding crime scene investigation. Id. But for the fact that Plaintiffs were exercising their First Amendment right of assembly as part of the Occupy Oakland protests, Defendants would have done their job in a proper manner for the purpose of having Carrigg and Abu-Nasser face prosecution for their actions against Plaintiffs. Id. at ¶ 22. Thus, Defendants retaliated against Plaintiffs for exercising their First Amendment rights of freedom of assembly, and openly cooperated with Carrigg and Abu-Nasser in order to permit them to flee the scene of the crime without preserving any evidence, thus depriving Plaintiffs of their First Amendment right to seek redress from the government. Id. at ¶¶ 22-23.

Plaintiffs allege upon information and belief that at the time of the incident, BART and its agents and employees were operating in Oakland and assisting OPD pursuant to a mutual aid plan with the consent of the OPD and as authorized by California Government Code § 8550 et seq., andthat Israel and Breshears were in charge of the relevant area at the time of the incident and directed BART personnel to violate Plaintiffs' constitutional rights by aiding and assisting the escape of Carrigg and Abu-Nasser. Id. at ¶ 21.

On March 19, 2012, Plaintiffs presented BART with government tort claims that detailed the injuries, losses, and damages suffered by Plaintiffs as a result of the above-described circumstances. Their claims were rejected on May 3, 2012. On April 30, 2012, Plaintiffs presented the City with government tort claims which detailed the injuries, losses, and damages suffered by Plaintiffs as a result of the above-described circumstances. These claims were rejected on May 9, 2012. Id. at ¶¶ 25-26.

As a result of the incident, Plaintiffs sustained severe and serious physical injuries, possibly rendering them disabled for life. Id. at ¶ 27.

C. Causes of Action

The FAC brings seven causes of action. The first cause of action alleges that all Defendants violated California Civil Code § 52.13 by aiding and assisting the violation of Plaintiffs' rights under the First Amendment of the U.S. Constitution and under Article I, Section 2 of the California Constitution to engage in expressive activity, peaceably assemble, and petition the government for redress of grievances, through intimidation, threats and coercion, including by aiding and assisting with the violent assault with a deadly weapon by Carrigg.

The second cause of action alleges that all Defendants violated Article I, Section 2 of the California Constitution by aiding and assisting the violation of Plaintiffs' rights to engage in expressive activity, peaceably assemble, and petition the government for redress of grievances.

The third and fourth causes of action allege that all Defendants aided and abetted the assault and battery of Plaintiffs by Carrigg and Abu-Nasser.

The fifth cause of action is a claim under 42 U.S.C. § 1983 against all individual Defendants. In this claim, Plaintiffs assert that the individual Defendants "participated in the deprivation of [Plaintiffs'] constitutional rights under the First Amendment." FAC at ¶ 47.

The sixth cause of action, for "Conspiracy to Violate Civil Rights," alleges that the individual Defendants conspired with Carrigg and/or Abu-Nasser to deprive Plaintiffs of their First Amendment rights to freedom of assembly, association, and speech.

Finally, the seventh cause of action is a claim under 42 U.S.C. § 1983 against the City, based on the City's "policies, practices and/or customs demonstrat[ing] an intent to limit, restrict and/or interfere with the First Amended rights of the citizens of Oakland to engage in peaceful assembly." FAC at ¶¶ 31-55.

II. LEGAL STANDARD

After the pleadings are closed, any party may move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). A Rule 12(c) motion challenges the legal sufficiency of the opposing party's pleadings and operates in much the same manner as a motion to dismiss under Rule 12(b)(6). Morgan v. Cnty. of Yolo, 436 F. Supp. 2d 1152, 1154-55 (E.D. Cal. 2006) aff'd, 277 F. App'x 734 (9th Cir. 2008). "The principal difference between motions filed pursuant to Rule 12(b) and Rule 12(c) is the time of filing." Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). Rule 12(b)(6) motions are typically brought before the defendant files an answer, while a motion for judgment on the pleadings can only be brought after the pleadings are closed. Fed. R. Civ. P. 12(b)(6), 12(c); Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 954 (9th Cir. 2004). "Because the motions are functionally identical, the same standard of review applicable to a Rule 12(b) motion applies to its Rule 12(c) analog." Dworkin, 867 F.2d at 1192.

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). When reviewing a motion to dismiss for failure to state a claim, the court must "accept as true all of the factual allegations contained in the complaint," Erickson v. Pardus, 551 U.S. 89, 94 (2007) (percuriam) (citation omitted), and may dismiss the case "only where there is no cognizable legal theory" or there is an absence of "sufficient factual matter to state a facially plausible claim to relief." Shroyer...

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