Whitsitt v. City of Tracy

• Decision Date: 19 October 2012
• Docket Number: No. CIV S-10-0528 JAM DAD PS,CIV S-10-0528 JAM DAD PS
• Court: U.S. District Court — Eastern District of California
• Parties: WILLIAM J. WHITSITT, Plaintiff, v. CITY OF TRACY, et al., Defendants.

WILLIAM J. WHITSITT, Plaintiff,

v.CITY OF TRACY, et al., Defendants.

No. CIV S-10-0528 JAM DAD PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: October 19, 2012

ORDER DIRECTING CLERK TO SEND MATERIALS FOR SERVICE

AND REQUIRING SERVICE BY UNITED STATES MARSHAL

Plaintiff, William Whitsitt, is proceeding pro se and in forma pauperis in this action. This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).

In an order issued May 25, 2012, the undersigned granted a motion to dismiss plaintiff's original complaint filed on behalf of defendant Brett Hicks and granted plaintiff thirty days to file an amended complaint.¹ (Doc. No. 25 at 17-18.) Pending before the court is plaintiff's amended complaint filed June 20, 2012. (Doc. No. 28.)

The court must dismiss an in forma pauperis case at any time if the allegation of poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

To state a claim on which relief may be granted, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. See also Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can provefacts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

Here, the court has reviewed plaintiff's amended complaint and finds, for the reasons set forth below, that it fails to state a claim on which relief can be granted against defendant Brett Hicks or against the State of California. The amended complaint, however, does state a cognizable claim against the City of Tracy.

BACKGROUND

Plaintiff's amended complaint alleges as follows. On or about June 5, 2009, at approximately 4:45 p.m. plaintiff was traveling north on Tracy Boulevard and drove past defendant Brett Hicks, an officer with the Tracy Police Department, who was conducting a traffic stop of another motorist. (Am. Compl. (Doc. No. 28) at 2.² ) Plaintiff made a left turn onto Tennis Lane and noticed that Officer Hicks was now following him. (Id.) Officer Hicks followed plaintiff for about a quarter mile and then pulled plaintiff's car over and approached him. (Id.) Officer Hicks stated to plaintiff, "Mr. Whitsitt, do you know that you have [a] cracked windshield?" (Id.) Plaintiff responded by asking Officer Hicks how he could have seen plaintiff's windshield, given that the rear window of his vehicle was very dirty and covered with dust and a dark tint. (Id.) Officer Hicks reiterated that plaintiff's windshield was cracked and defective and asked plaintiff for his identification, vehicle registration and proof of insurance. (Id.) Plaintiff handed Officer Hicks his identification and vehicle registration. (Id.) Officer Hicks then stated, "I see that you have [a] suspended driver's license." (Id.)

In response, plaintiff "showed him proof that a section 1983 action had just been filed against the City of Tracy, some fellow police officers and other named defendants" in the U.S. District Court for the Northern District of California. (Id.) Officer Hicks looked at thedocument "with [a] great perplexed look in his face." (Id.) Plaintiff advised Officer Hicks, "[t]hat suit is valid and it is pending in the District Court. You do know this could be held as a form of retaliation." (Id.)

Officer Hicks then asked plaintiff to get out of his vehicle and told him to put his hands behind his back. (Id.) Officer Hicks proceeded to handcuff plaintiff and told him that his vehicle was being towed. (Id.) During this time plaintiff repeatedly objected. (Id.) Plaintiff's vehicle was towed, he was given a receipt for his vehicle and was released from Officer Hicks' custody. (Id.) Plaintiff was forced to walk three miles back to his home. (Id.)

The following day plaintiff went to the Tracy Police Department to recover his vehicle. (Id.) Plaintiff brought along a friend who had a valid California Driver's License. (Id. at 12.) Plaintiff paid $363 to recover his vehicle. (Id. at 2.) At that time, plaintiff also made a demand to "[t]he Administrative Officer" for a post-tow hearing. (Id.) Plaintiff was given a telephone number to call to schedule a hearing. (Id. at 3.) Plaintiff called the number and left several messages. (Id.) Plaintiff also "served by fax and mailing several notices of demand for tow hearing" on the City of Tracy. (Id.)

Based on the above allegations plaintiff's amended complaint alleges causes of action against Officer Hicks and the City of Tracy for violations of plaintiff's rights under the Fourth Amendment and the Fourteenth Amendment, and for retaliation in violation of his rights under the First Amendment.³ The amended complaint also seeks declaratory relief against the State of California, asserting that the suspension of plaintiff's driver's license was unlawful.

ANALYSIS

I. Fourth Amendment

Plaintiff's amended complaint alleges that Officer Hicks violated plaintiff's rights under the Fourth Amendment by stopping plaintiff's vehicle, arresting him and having his vehicle impounded, all without probable cause. (Am. Compl. (Doc. No. 28) at 3-6, 9-10, 18-19.)

The Fourth Amendment, which applies to the states through the Fourteenth Amendment, protects against unreasonable searches and seizures by law enforcement officers. Mapp v. Ohio, 367 U.S. 643, 655 (1961). The Fourth Amendment requires law enforcement officers to have at least a reasonable suspicion of criminal activity before making a brief investigatory stop ("Terry stop"). See Terry v. Ohio, 392 U.S. 1, 9 (1968); United States v. Johnson, 581 F.3d 994, 999 (9th Cir. 2009) ("Police may detain or seize an individual for brief, investigatory purposes, provided the officers making the stop have reasonable suspicion that criminal activity may be afoot.") (citation and internal quotation marks omitted). During a Terry stop, "the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." Berkemer v. McCarty, 468 U.S. 420, 439 (1984).

Here, the amended complaint repeatedly alleges that Officer Hicks lacked probable cause to conduct the traffic stop of plaintiff's vehicle. In this regard, plaintiff argues that there was "no way that the officer could ever see my windshield was cracked where he had another motorist stopped and was talking with that motorist." (Am. Compl. (Doc. No. 28) at 4.) That allegation, however, is mere speculation. Indeed, in his amended complaint plaintiff does not dispute that plaintiff's windshield was cracked and defective. Rather, the allegations of the amended complaint acknowledge that the vehicle's windshield had "a crack about three inches in diameter in a web pattern with about four other small cracks at the bottom of the windshield in front of the driver['s] side." (Id. at 10.)

Under California Law, it is unlawful to operate any motor vehicle on a public street when the windshield is in such a defective condition as to impair the driver's vision. CAL. VEH. CODE § 26710. Such a traffic violation alone is sufficient to establish reasonable suspicion, see Whren v. United States, 517 U.S. 806, 810 (1996); United States v. Willis, 431 F.3d 709, 714-17 (9th Cir. 2005), and "reasonable suspicion" is sufficient to support an investigative traffic stop. See United States v. Lopez-Soto, 205 F.3d 1101, 1104-05 (9th Cir. 2000); see also U.S. v. Hartz, 458 F.3d 1011, 1017 (9th Cir. 2006) ("A police-initiated traffic stop is reasonable under the Fourth Amendment if the police stop the vehicle because of a 'reasonable suspicion' that the vehicle's occupants have broken a law."); Johnson v. County of Alameda, No. C 10-01437 RS, 2011 WL 2610138, at *3 (N.D. Cal. July 1, 2011) ("As a threshold matter, Gilkerson had probable cause to initiate the traffic...