Survine v. Cottle

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Decision Date08 January 2013
Docket NumberCASE NO. CV F 12-1453 LJO JLT
PartiesCHARLOTTE SURVINE, et al., Plaintiffs, v. OFFICER M.A. COTTLE, et al., Defendants.

CHARLOTTE SURVINE, et al., Plaintiffs,
OFFICER M.A. COTTLE, et al., Defendants.



Dated: January 8, 2013

(Doc. 10.)


Defendants City of Bakersfield ("City") and two City police officers seek to dismiss as barred by limitations periods and insufficient supporting facts plaintiffs'1 civil rights claims arising from alleged fabrication of a traffic collision report. Plaintiffs respond that their operative First Amended Complaint ("FAC") adequately pleads timely claims. This Court considered defendants' F.R.Civ.P. 12(b)(6) motion to dismiss on the record and VACATES the January 14, 2012 hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court DISMISSES the FAC's claims with limited leave to amend.

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On November 17, 2003, Ms. Survine, who is African-American, was struck by a vehicle driven by Sarah Sanders ("driver"),who is Caucasian, as Ms. Survine began to cross a City street intersection ("incident"). Defendant City police officers Michael Cottle ("Officer Cottle") and David Cox ("Officer Cox") investigated the incident and prepared a traffic collision report ("report"), which plaintiffs claim was fabricated to exonerate the Caucasian driver pursuant to a conspiracy among Officers Cottle and Cox and others to deny civil rights of African-American citizens, such as plaintiffs. The City and Officers Cottle and Cox (collectively "defendants") seek to dismiss plaintiffs' civil rights and fraud claims as insufficiently pled and barred by defenses.

The Incident And Report

As a result of the incident, Ms. Survine suffered severe injuries and was rendered comatose up to the September 5, 2012 filing of plaintiffs' original complaint ("original complaint").3 The report stated that Ms. Survine ran directly in front of the driver's vehicle and that the driver braked and attempted to avoid hitting Ms. Survine. The driver testified under oath differently and that the driver first saw Ms. Survine almost simultaneously with impact of Ms. Survine and did not remove her foot from the accelerator to decelerate. Physical evidence at the incident scene, including skid marks, denies statements which the report attributes to the driver and makes the version of events concocted by Officers Cottle and Cox and the City Police Department (" Department") "an impossibility." A witness statement places Ms. Survine on the sidewalk before she attempted to cross the street to render impossible that Ms. Survine stood on a raised cement divider, which the report attributes the driver to have noticed.

Plaintiffs' Claims

The FAC alleges that the report portrays the driver as driving safely and taking precautions and

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that Officers Cottle and Cox and others in the Department "conspired to fabricate the Report to cast Ms. Survine as having been the sole and only cause of her harm." The FAC accuses defendants of violating plaintiffs' equal protection and due process rights to diminish and devalue "claims that Plaintiffs would pursue against the Driver," to obstruct justice, and to "prevent any prosecution of the Driver."

The FAC alleges:

1. A (first) 42 U.S.C. § 1983 ("section 1983") claim that defendants violated plaintiffs' equal protection and procedural and substantive due process rights;
2. A (second) section 1983 conspiracy claim that Officers Cottle and Cox conspired to violate plaintiffs' rights and the "wrongful conduct of Cottle, Cox, others in the Department and of their superiors in the Department could not have occurred without the participation or deliberate indifference and/or the willful blindness of each of them";
3. A (third) 42 U.S.C. § 1985 ("section 1985") claim that Officers Cottle and Cox conspired to obstruct justice and presented "untrue facts and circumstances" in the report;
4. A (fourth) California Constitution violation claim that "Defendants are liable to Plaintiffs pursuant to Article I, Section 7 of the Constitution of the State of California for the violation of their right [to] equal protection of the laws"; and
5. A (fifth) fraud and intentional misrepresentation claim that Officers Cottle and Cox knowingly "made false statements in the Report and filed the Report as the official record of the Incident," "knew that Plaintiffs would rely on the Report as a true and factual record," and that plaintiffs were damaged "because the factual basis for their claims were skewed in favor of the Driver."


F.R.Civ.P. 12(b)(6) Motion To Dismiss Standards

Defendants seek dismissal of plaintiffs' claims as inadequately pled and barred by several defenses.

"When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the

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claims." Scheurer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974); Gilligan v. Jamco Development Corp., 108 F.3d 246, 249 (9th Cir. 1997). A F.R.Civ.P. 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990); Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995). A F.R.Civ.P. 12(b)(6) motion "tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

In addressing dismissal, a court must: (1) construe the complaint in the light most favorable to the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) determine whether plaintiff can prove any set of facts to support a claim that would merit relief. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-338 (9th Cir. 1996). Nonetheless, a court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Sciences Securities Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). A court "need not assume the truth of legal conclusions cast in the form of factual allegations," U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643, n. 2 (9th Cir.1986), and must not "assume that the [plaintiff] can prove facts that it has not alleged or that the defendants have violated . . . laws in ways that have not been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897 (1983). A court need not permit an attempt to amend if "it is clear that the complaint could not be saved by an amendment." Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).

A plaintiff is obliged "to provide the 'grounds' of his 'entitlement to relief' [which] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 554,127 S. Ct. 1955, 1964-65 (2007) (internal citations omitted). Moreover, a court "will dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action." Student Loan Marketing Ass'n v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). In practice, a complaint "must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562, 127 S.Ct. at 1969 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).

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In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,1949 (2009), the U.S. Supreme Court explained:

. . . a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. . . . The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. (Citations omitted.)

After discussing Iqbal, the Ninth Circuit summarized: "In sum, for a complaint to survive [dismissal], the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 989 (9th Cir. 2009) (quoting Iqbal, 556 U.S. 662, 129 S.Ct. at 1949).

The U.S. Supreme Court applies a...

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