Ucci v. LAPD

• Decision Date: 07 January 2020
• Docket Number: Case No. 2:15-cv-08386-CAS-KES
• Court: U.S. District Court — Central District of California
• Parties: NICHOLAS A. UCCI, Plaintiff, v. LAPD, et al., Defendants.

NICHOLAS A. UCCI, Plaintiff, v. LAPD, et al., Defendants.

Case No. 2:15-cv-08386-CAS-KES

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

January 7, 2020

FINAL REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

This Final Report and Recommendation is submitted to the Honorable Christina A. Snyder, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I.INTRODUCTION

On October 27, 2015, pro se Plaintiff Nicholas A. Ucci ("Plaintiff") constructively filed his initial complaint, alleging civil rights violations under 42 U.S.C. § 1983 by officers of the Los Angeles Police Department ("LAPD") arising from various interactions, including two arrests in 2011 and 2012. (Dkt. 1.) Thereafter, Plaintiff filed seven amended complaints attempting to allege facts sufficient to plead civil rights claims. (Dkts. 13, 19, 25, 67, 73, 77, 130.) Plaintiff filed his Seventh Amended Complaint ("7AC"), the operative pleading, on May 24, 2019. (Dkt. 130.)

The 7AC includes as Defendants the City of Los Angeles ("City") and the LAPD. (Id.) Plaintiff also names as Defendants the following eight LAPD officers: (1) Wright, # 39055; (2) Sowell, # 40003; (3) Sur, # 30264; (4) Ruiz, # 39574; (5) Thusing, # 25120, (6) Delatori, # 32914; (7) Grimes, # 36981; and (8) Mims, # 40112 (the "Officer Defendants").¹ (Dkt. 130.)

On June 12, 2019, Defendants Delatori, LAPD, Ruiz, Sur, and the City moved to dismiss the 7AC. (Dkt. 132.) The remaining Defendants Grimes, Mims, Thusing, Sowell, and Wright later joined the motion. (Dkts. 145, 148, 152, 155.) On July 29, 2019, Plaintiff opposed the motion. (Dkt. 154.) On August 12, 2019, Defendants replied. (Dkt. 157.)

On August 29, 2019, the Court invited Defendants to file a supplemental brief identifying what facts, if any, Plaintiff could allege relevant to equitable tolling if he were granted leave to amend his complaint yet again after pursuinglimited discovery. (Dkt. 158.) On September 11, 2019, Defendants filed a supplemental brief attaching (1) a "Complaint Review Report" memorializing that on April 25, 2014, Plaintiff called the LAPD's internal affairs group ("IAG") telephone hotline and complained to Sergeant Ortega about LAPD misconduct (the "IAG Complaint"); and (2) a March 10, 2015 letter to Plaintiff advising that the LAPD had concluded its investigation of his IAG Complaint and determined that his allegations were "unfounded." (See Dkts. 159-1, 159-2.)

Because the Court concludes that (1) all Plaintiff's federal claims are time-barred, (2) all Plaintiff's state claims fail for failure to plead compliance with California's Tort Claims Act ("CTCA" at Cal. Gov. Code § 810 et seq.), and (3) granting Plaintiff further leave to amend would be futile, the Court recommends that this action be dismissed with prejudice.

II.PROCEDURAL BACKGROUND

Plaintiff initiated this action in October 2015, alleging that he was arrested on multiple occasions "in a discriminatory nature with disregard to [his] civil rights[.]" (Dkt. 1.) The Court screened the complaint pursuant to 28 U.S.C. § 1915 and dismissed it with leave to amend, finding it vague and devoid of any factual content upon which to base the liability of LAPD or any individual officer. (Dkt. 12.)

In February 2016, Plaintiff filed his First Amended Complaint ("FAC"). (Dkt. 13.) The Court screened the FAC and dismissed it with leave to amend, finding that it similarly failed to allege sufficient facts to state a claim. (Dkt. 16.)

In March 2016, Plaintiff filed his Second Amended Complaint ("SAC"). (Dkt. 19.) The Court screened the SAC and dismissed it with leave to amend, finding that it also contained insufficient factual allegations; instead, it included extensive case cites purporting to substantiate Plaintiff's prayer for $7,000,000 in damages. (Id.; Dkt. 20.)

In September 2016, Plaintiff filed his Third Amended Complaint ("TAC")against "Several Unknown Agents" of the LAPD. (Dkt. 25.) Plaintiff alleged that during a four year period between 2011 and 2014, these unknown LAPD officers entered Plaintiff's home in Venice, California, without a warrant "several" times, and on two occasions, officers arrested Plaintiff and "confiscated" his "property," apparently referring to his marijuana plants. (Id. at 1.²) He sued the officers in their official capacity only. (Id. at 3.)

The Court screened the TAC and found that it failed to state a cause of action against any police officers in their official capacity. (Dkt. 26 at 3.) The Court, however, noted that Plaintiff might be able to plead individual-capacity claims against the unknown officers; the Court, therefore, authorized Plaintiff to serve a subpoena to identify the officers. (Id.) After the LAPD agreed to serve Plaintiff with redacted copies of his arrest reports (Dkt. 57), the Court ordered Plaintiff to file a Fourth Amended Complaint ("4AC") alleging the identities of the unknown officers. (Dkt. 60.)

In April 2018, Plaintiff filed his 4AC, naming as Defendants "all officers listed in body of complaint in their individual and official capacities[.]" (Dkt. 67.) The 4AC identified fourteen LAPD officers, which included not only arresting officers, but also their supervisors and officers who had booking and investigation duties. (Id.) The Court screened the 4AC and issued an eleven-page screening order identifying its defects and dismissing it with leave to amend. (Dkt. 72.) The Court found that the 4AC failed to state a claim for multiple reasons, including that it (1) reasserted unsupported official capacity claims against individual officers, (2) failed to provide "a short and plain statement of the claim showing that the pleader is entitled to relief" as required by Rule 8 of the Federal Rules of Civil Procedure, and (3) used conclusory language, e.g., alleging that the LAPD conducted "unconstitutional" searches and seizures rather than alleging the factualcircumstances of the searches and seizures. (Id.) The Court also determined that Plaintiff's claims appeared barred by the statute of limitations; the Court informed Plaintiff that he bore the burden of alleging "facts showing an excuse, tolling, or other basis for avoiding the statutory bar." (Id. at 5-6, 11.)

In June 2018, Plaintiff filed his Fifth Amended Complaint ("5AC"), which again named fourteen Defendants. (Dkt. 73.) The Court screened the 5AC and dismissed it with leave to amend, finding that it again failed to describe the action(s) by each Officer Defendant giving rise to liability; its new content mostly objected to discovery rules and decried the unfairness of his then-current incarceration. (Dkt. 76.)

In October 2018, Plaintiff filed his 6AC, which named as Defendants the City, LAPD, eight Officer Defendants, and Alex Thompson. (Dkt. 77.) The Court screened the 6AC and found that, for purposes of screening under the in forma pauperis statute at 28 U.S.C. § 1915, it sufficiently alleged a federal claim against all Defendants except Alex Thompson. (Dkt. 78.) Plaintiff voluntarily dismissed Alex Thompson, and the Court authorized the U.S. Marshal to serve the 6AC. (Dkts. 79, 81.)

Defendants Delatori, LAPD, Ruiz, Sur, and the City moved to dismiss the 6AC. (Dkt. 102.) The Court granted the motion with leave to amend, finding: (1) Plaintiff's claims were barred by the statute of limitations, and Plaintiff had failed to allege any factual basis for tolling or estoppel; and (2) Plaintiff failed to allege compliance with the CTCA. (Dkt. 114.)

In May 2019, Plaintiff filed his 7AC. (Dkt. 130.) The 7AC consists of six new typewritten pages (containing mostly legal citations rather than new factual allegations) and the same handwritten allegations submitted as the 6AC, except that Plaintiff omitted the cover page from the 6AC and changed the signature date. (Compare Dkts. 77, 130.) Regarding tolling, the new pages in the 7AC assert that: (1) Plaintiff delayed filing his lawsuit for nearly two years "because he wasinstructed to file" an LAPD internal affairs complaint and appeal to the Inspector General's Office, and (2) there is "one year of prisoner tolling in between 2011 and 2015 including a 4 month 20 day sentence." (Dkt. 130 at 1.)

III.FACTUAL ALLEGATIONS

The 7AC pleads facts from four encounters between Plaintiff and the LAPD: two arrests that occurred on August 1, 2011, and June 5, 2012, and two other incidents on July 4, 2012, and August 4, 2012.³

A. The August 1, 2011 Incident.

On August 1, 2011, Plaintiff alleges that he became involved in a physical altercation with a man named Jordan Loth near his residence. (Dkt. 130 at 13.) Mr.Loth allegedly struck Plaintiff with a "parking divider."⁴ (Id.) The second time that Mr. Loth tried to strike him, Plaintiff wrestled Mr. Loth to the ground and "force[d] his submission with a choke hold[.]" (Id.)

Someone called the police, and shortly thereafter, Plaintiff was arrested at his residence by Defendants Wright, Sowell, Sur, and Ruiz. (Id. at 14.) Plaintiff was in the shower, but he heard the officers call from outside the bathroom, "Come out with hand up!" (Id. at 13-14.) He walked out of the bathroom naked and saw four officers pointing guns at him. (Id. at 14.) Plaintiff was allegedly "handcuffed naked, paraded out in front of [his] house and into the police car." (Id.) Mr. Loth was still at the scene when Plaintiff was arrested; Plaintiff saw him from the police car's window. (Id.)

Plaintiff alleges that Defendants "entered [his] home with guns drawn, without consent, without warrant, without probable cause, without emergency, without exigency, and acted with deliberate indifference to [his] rights ... in a conspiratorial way." (Id. at 15.) Plaintiff alleges that his girlfriend, Yukino Nomoto, and a house guest, Kristy Suriam, were present during the arrest. (Id. at 13-14.) According to Plaintiff, Ms. Suriam did not have authority to consent to the officers'...