Opinion
NO. CIV. S-11-1820 LKK/KJN.
October 27, 2011
ORDER
This case arises from the shooting death of Ernesto Duenez, Jr., and is brought pursuant to 42 U.S.C. § 1983. Plaintiffs allege that officers from the Manteca Police Department shot and killed Ernesto Duenez, Jr., in violation of their rights under the Fourth and Fourteenth Amendments to the United States Constitution. Plaintiffs are the widow and successor-in-interest to the decedent, the son, and the parents of Ernesto Duenez, Jr. Defendants are the City of Manteca; Chief David Bricker of the Manteca Police Department; Officer Aguilar of the Manteca Police Department, being sued individually and in his official capacity; and a number of officers from the Manteca Police Department.
Before the court is Defendants' motion to dismiss, to strike, and for a more definite statement, Defs' Mot. Dismiss, ECF No. 9 (Aug. 30, 2011), which Plaintiffs oppose, Pls' Opp'n, ECF No. 14 (Sept. 27, 2011).
I. FACTUAL BACKGROUND
These facts are taken from the allegations in the Plaintiffs' Complaint, ECF No. 1 (July 11, 2011), unless otherwise specified. The allegations are taken as true for purposes of this motion only. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197 (2007).
On June 8, 2011, Ernesto Duenez, Jr. was driven by acquaintances, Rudy Camarena and Rudy Camarena's wife, to the Manteca home of Michael Henry, where Mr. Ernesto Duenez, Jr. retrieved some of his property. ECF No. 1, ¶ 12. Mr. Henry offered a small knife to Ernesto Duenez, Jr. Id. After Ernesto Duenez, Jr. indicated that the knife was not his, Mr. Henry offered the knife to Mr. Camarena, appearing insistent that Mr. Camarena take the knife. Id. Mr. Camarena accepted the knife and threw it backwards, where it either landed in the bed of the pickup truck or on the ground. Id.
That afternoon or evening, a Manteca Police Officer, Sgt. Aguilar, was seen driving around the neighborhood of Mr. Camarena's residence. Id. at ¶ 13. Local press accounts have since portrayed Mr. Camarena's residence as a suspected drug house, but an unlawful search of the Camarena residence found no contraband or evidence that the Camarena residence was involved in any illegal activity. Id. No one who lived at the Camarena residence or who was inside the residence at the time of the incident was on probation or parole. Id.
Shortly before 6:45 p.m., as Mr. Camarena and his wife returned to their home in Manteca with Ernesto Duenez seated in the small backseat of their two-door pickup, Mr. Camarena saw a Manteca Police Department patrol vehicle pass his truck, but the patrol vehicle did not activate its siren or indicate for Mr. Camarena to pull over. Id. at ¶ 13. At this time, Plaintiff Whitney Duenez, Ernesto Duenez's wife, was inside the Camarena residence, along with other members of Mr. Camarena's family, including Mr. Camarena's elderly mother and the Camarenas' children. Id.
The "Statement of Facts" section of Plaintiff's complaint has two paragraphs numbered "13." See Pls' Compl., ECF No. 1, at 4-5. This fact is taken from the second of those paragraphs.
After Mr. Camarena parked his pick-up truck in its usual parking spot, in the yard of the Camarena residence, a Manteca Police Department patrol vehicle stopped behind Mr. Camarena's truck and activated its siren light. Id. at ¶ 14. The truck's ignition was turned off, and Ernesto Duenez began to try and exit the truck, while Mr. Camarena and his wife remained in the truck.Id. Ernesto Duenez pushed Mr. Camarena's wife (who was seated in the passenger seat) forward as he began to exit the truck and stepped his left foot out of the truck, while his right foot was tangled in the seat belt. Id. Mr. Duenez's hands were up and it was clear that he possessed no visible weapon. Id. Other Manteca patrol vehicles arrived at the scene and at least one police officer, who Plaintiffs believe to be Defendant Officer Aguilar, and possibly other unknown officers (named as Defendant "Officer Does"), then fired several gunshots at Ernesto Duenez and struck him in the torso several times. Id.
Plaintiff Whitney Duenez, hearing gunshots and someone yelling her husband's name, ran outside the Camarena residence and saw her husband standing, with one foot outside the truck and his right foot still inside the truck, having apparently been shot several times in the torso. Id. at ¶ 15. Ernesto Duenez had no weapon in his possession, was not advancing upon anyone, and was essentially standing still after he had been shot multiple times.Id. Whitney Duenez saw a Manteca Police Department officer, identified by his name tag as Defendant Officer Aguilar, fire one more gunshot, which Whitney Duenez saw strike Ernesto Duenez in the face, whereupon Mr. Duenez fell to the ground. Id. No weapons were visible anywhere near the vicinity of Mr. Duenez, except those possessed by the Manteca police officers present. Id.
Whitney Duenez ran towards Ernesto Duenez, whose body lay on the ground while his foot remained entangled in the seat belt of Mr. Camarena's truck, and tried to hold Mr. Duenez's body as he died. Id. at ¶ 16. Unidentified Manteca Police Department officers ordered Whitney Duenez to put her hands up, at gunpoint, spoke to her in a rude and derogatory manner, and handcuffed her.Id.
Ernesto Duenez's body was handcuffed by unidentified Manteca Police Department officers. Id. at ¶ 17. No officer at the scene provided first aid to Mr. Duenez. Id. No weapons appeared to be recovered from Mr. Duenez's person or from the scene. Id. One unidentified Manteca Police Department officer cut the seat belt that Mr. Duenez's foot was tangled in and pulled Mr. Duenez's body away from the truck. Id.
Several unidentified officers from the Manteca Police Department then detained Whitney Duenez, Rudy Camarena, and Mr. Camarena's wife at gunpoint. Id. at ¶ 18. Without a search warrant, several unidentified Manteca Police Department officers (named as Defendants "Does") entered the Camarena residence, searched it, and detained several people including Mr. Camarena's son and Mr. Camarena's elderly mother, who is in poor health. Id.
All of the people arrested and/or detained at the scene, including Whitney Duenez, Rudy Camarena, Mr. Camarena's wife, and Mr. Camarena's son, were transported to the Manteca Police Department, where they were detained and interrogated before being released hours later, without any charges. Id. at ¶ 19. Each of these people were held against their will until their release. Id.
Ernesto Duenez, Jr. was on parole, and was set to discharge from parole one month after he died. Id. at ¶ 20. Mr. Duenez believed that he may have tested positive on a drug test and possibly had a warrant against him for violating parole due to the drug test, which would have caused Mr. Duenez to serve minimal time in custody. Id. Mr. Duenez's parole status and two-strike history was likely known to the Manteca Police Department officers, including Defendant Aguilar, but the defendants had no information on which they could reasonably believe that Mr. Duenez was armed at the time he was shot, or that he posed anything more than a risk of unarmed flight. Id. Mr. Duenez was, in fact, unarmed and unable to flee because his leg was tangled in the truck's seat belt. Id.
Plaintiffs allege that defendants had a clear view of Mr. Duenez, they did not see Mr. Duenez possess any weapon, they should have known that Mr. Duenez's leg was tangled, and they never saw Mr. Duenez move toward them or charge at them in a threatening manner. Id. Plaintiffs seek: (1) the reasonable value of funeral and burial expenses; (2) wrongful death damages; (3) damages incurred by Mr. Duenez before he died as the result of being assaulted and battered, for deprivation without due process of his right to life, for penalties or punitive damages to which he would have been entitled to recover had he lived, and for pain, suffering, and disfigurement prior to his death; (4) compensation for their loss of Mr. Duenez's financial support; (5) an award of punitive damages; and (6) attorneys' fees. Id. at ¶¶ 25-30.
II. STANDARDS FOR MOTION TO DISMISS, TO STRIKE, AND FOR A MORE DEFINITE STATEMENT
A. MOTION TO DISMISS
A Fed.R.Civ.P. 12(b)(6) motion challenges a complaint's compliance with the pleading requirements provided by the Federal Rules. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The complaint must give defendant "fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation and modification omitted).
To meet this requirement, the complaint must be supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1950 (2009). "While legal conclusions can provide the framework of a complaint," neither legal conclusions nor conclusory statements are themselves sufficient, and such statements are not entitled to a presumption of truth. Id. at 1949-50. Iqbal and Twombly therefore prescribe a two step process for evaluation of motions to dismiss. The court first identifies the non-conclusory factual allegations, and the court then determines whether these allegations, taken as true and construed in the light most favorable to the plaintiff, "plausibly give rise to an entitlement to relief." Id.; Erickson v. Pardus, 551 U.S. 89 (2007).
"Plausibility," as it is used in Twombly and Iqbal, does not refer to the likelihood that a pleader will succeed in proving the allegations. Instead, it refers to whether the non-conclusory factual allegations, when assumed to be true, "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "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." Id. (quoting Twombly, 550 U.S. at 557). A complaint may fail to show a right to relief either by lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
B. MOTION FOR A MORE DEFINITE STATEMENT
"If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading." Fed.R.Civ.P. 12(e). "The situations in which a Rule 12(e) motion is appropriate are very limited." 5A Wright and Miller, Federal Practice and Procedure § 1377 (1990).
Furthermore, absent special circumstances, a Rule 12(e) motion cannot be used to require the pleader to set forth "the statutory or constitutional basis for his claim, only the facts underlying it." McCalden v. California Library Ass'n, 955 F.2d 1214, 1223 (9th Cir. 1990). However, "even though a complaint is not defective for failure to designate the statute or other provision of law violated, the judge may in his discretion . . . require such detail as may be appropriate in the particular case."McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996).
C. MOTION TO STRIKE
Rule 12(f) authorizes the court to order stricken from any pleading "any redundant, immaterial, impertinent, or scandalous matter." A party may bring on a motion to strike within 21 days after the filing of the pleading under attack. The court, however, may make appropriate orders to strike under the rule at any time on its own initiative. Thus, the court may consider and grant an untimely motion to strike where it seems proper to do so. See 5A Wright and Miller, Federal Practice and Procedure: Civil 2d 1380.
A matter is immaterial if it "has no essential or important relationship to the claim for relief or the defenses being pleaded." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds by 510 U.S. 517 (1994). A matter is impertinent if it consists of statements that do not pertain to and are not necessary to the issues in question. Id. Redundant matter is defined as allegations that "constitute a needless repetition of other averments or are foreign to the issue." Thornton v. Solutionone Cleaning Concepts, Inc., No. 06-1455, 2007 WL 210586 (E.D. Cal. Jan. 26, 2007), citingWilkerson v. Butler, 229 F.R.D. 166, 170 (E.D. Cal. 2005).
Motions to strike are generally viewed with disfavor, and will usually be denied unless the allegations in the pleading have no possible relation to the controversy, and may cause prejudice to one of the parties. See 5A C. Wright A. Miller, Federal Practice and Procedure: Civil 2d 1380; see also Hanna v. Lane, 610 F. Supp. 32, 34 (N.D. Ill. 1985). However, granting a motion to strike may be proper if it will make trial less complicated or eliminate serious risks of prejudice to the moving party, delay, or confusion of the issues. Fantasy, 984 F.2d at 1527-28.
If the court is in doubt as to whether the challenged matter may raise an issue of fact or law, the motion to strike should be denied, leaving an assessment of the sufficiency of the allegations for adjudication on the merits. See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970 (9th Cir. 2010); see also 5A Wright Miller, supra, at 1380. Whittlestone emphasized the distinction between Rule 12(f) and Rule 12(b)(6) and held that Rule 12(f) does not authorize district courts to strike claims for damages on the ground that such claims are precluded as a matter of law. Id. at 976.
"Were we to read Rule 12(f) in a manner that allowed litigants to use it as a means to dismiss some or all of a pleading . . . we would be creating redundancies within the Federal Rules of Civil Procedure." Whittlestone, Inc. v. Handi-Craft Co., See also Yamamoto v. Omiya, 564 F.2d 1319, 1327 (9th Cir. 1977) ("Rule 12(f) is neither an authorized nor a proper way to procure the dismissal of all or a part of a complaint." (Citation omitted)).Id. at 974.
Whittlestone reasoned that Rule 12(f) motions are reviewed for abuse of discretion, whereas 12(b)(6) motions are reviewed de novo. Id. Thus, if a party seeks dismissal of a pleading under Rule 12(f), the district court's action would be subject to a different standard of review than if the district court had adjudicated the same substantive action under Rule 12(b)(6). Id.
III. ANALYSIS
A. Claims Against Chief David Bricker and Individual Officers in Their Official Capacity
Defendants seek to dismiss all claims against Chief Bricker as well as claims against Officer Aguilar as sued in his official capacity, given that the City of Manteca is a named defendant, rendering the naming of Chief Bricker and Officer Aguilar, in his official capacity, redundant. Defs' Mot., ECF No. 9, at 7.Official-capacity suits under Section 1983 "generally represent only another way of pleading an action against an entity of which an officer is an agent." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, n. 55 (1978). As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. Kentucky v. Graham, 473 U.S. 159, 165 n. 14 (1985) (holding that "[t]here is no longer a need to bring official-capacity actions against local government officials, [because] under Monell, . . . local government units can be sued directly" (citations omitted); see also Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff, 533 F.3d 780, 799 (9th Cir. 2008) ("An official capacity suit against a municipal officer is equivalent to a suit against the entity.").
Although the Ninth Circuit has not decided this precise issue, a number of district courts in the Ninth Circuit have held that if individuals are being sued in their official capacities as municipal officials and the municipal entity itself is also being sued, then the official capacity claims against the individuals are redundant and should be dismissed. See, e.g., Vance v. County of Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996); Carnell v. Grimm, 872 F.Supp. 746, 752 (D.Haw. 1994). In Luke v. Abbott, the court reasoned:
After the Monell holding, it is no longer necessary or proper to name as a defendant a particular local government officer acting in a official capacity. To do so only leads to a duplication of documents and pleadings, as well as wasted public resources for increased attorneys fees. A plaintiff cannot elect which of the defendant formats to use. If both are named, it is proper upon request for the Court to dismiss the official-capacity officer, leaving the local government entity as the correct defendant.954 F.Supp. 202, 203 (C.D. Cal. 1997); accord Arres v. City of Fresno, 2011 WL 284971, at *5-6 (E.D. Cal. 2011).
The court here agrees with the reasoning of these district courts. Because the City of Manteca is already named as a defendant in this action, § 1983 claims against agents of the City of Manteca, sued only in their official capacity, would be duplicative in practice. Thus, Plaintiffs' § 1983 claims against Chief David Bricker, sued only in his official capacity, are DISMISSED as redundant. Plaintiffs' § 1983 claims against Officer Aguilar in his official capacity are DISMISSED; claims against Officer Aguilar in his individual capacity remain.
B. Fourth Amendment Claims by Plaintiffs D.D., Rosemary Duenez, and Ernesto Duenez, Sr.
Defendants argue that, "[t]o the extent that the complaint may be read to assert claims by D.D. (decedent's son), Rosemary and Ernesto Duenez [Sr.] for violation of decedent's Fourth Amendment rights, those claims should be dismissed." Defs' Mot., ECF No. 9, at 8.
Fourth Amendment rights are personal rights which may not be vicariously asserted. Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961 (1969). The general rule is that only the person whose Fourth Amendment rights were violated can sue to vindicate those rights. Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998). In Section 1983 actions, however, the survivors of an individual killed as a result of an officer's excessive use of force may assert a Fourth Amendment claim on that individual's behalf if the relevant state's law authorizes a survival action. Id.
California's survival statute provides that "[a] cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest . . . and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest." CAL. CIV. PROC. § 377.30; Grant v. McAuliffe, 41 Cal. 2d 859, 264 P.2d 944, 42 A.L.R.2d 1162 (1953).
Plaintiffs have named only Whitney Duenez as the successor-in-interest to the decedent Ernesto Duenez, Jr. See Pls' Compl., ECF No. 1, at 2. Because California's survival statute allows a successor in interest to enforce a cause of action belonging to the decedent, but does not provide for the survival action to be brought by heirs who are not acting as successors in interest, only Whitney Duenez may assert a claim for violation of the decedent's Fourth Amendment rights.
Note that a person purporting to act as a successor in interest must satisfy the requirements under California Code of Civil Procedure § 377.32, which requires a person seeking to commence a survival action to execute and file an affidavit setting forth specific information. See CAL. CIV. PROC. § 377.32.
Thus, the court GRANTS Defendants' motion and DISMISSES any Fourth Amendment claims brought by Plaintiffs D.D. (decedent's son), Rosemary Duenez, and Ernesto Duenez, Sr., WITH LEAVE TO AMEND.
Plaintiffs' complaint indicates that all of the plaintiffs are bringing a wrongful death action against the defendants. Pls' Compl., ECF No. 1, at 8. Although Defendants assert that the standing requirements for bringing a wrongful death action are not at issue in their motion, see Defs' Reply, ECF No. 16, at 4, both parties intertwine arguments regarding the standing required to bring a survival action and the standing required to bring a wrongful death action in California. In California, a survival action is distinguishable from an action for the wrongful death of the decedent. Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 174 Cal. Rptr. 348 (1981). California courts have held that a wrongful death action can be maintained either by the decedent's heirs or by the decedent's personal representative on behalf of the heirs, but not both. See CAL. CIV. PROC. § 377.60;Adams v. Superior Ct., 196 Cal. App. 4th 71, 77, 126 Cal. Rptr. 3d 186 (2011); Scott v. Thompson, 184 Cal. App. 4th 1506, 1511, 109 Cal. Rptr. 3d 846 (2010); Gordon v. Reynolds, 187 Cal. App. 2d 472, 474, 10 Cal. Rptr. 73 (1960).
Plaintiffs seek leave to amend the complaint to "include any inadvertently omitted references," "correct any inartful verbiage," and "remedy any other pleading deficiencies." Pls' Opp'n, ECF No. 14, at 10. The court therefore GRANTS Plaintiffs LEAVE TO AMEND the complaint to, inter alia, more specifically plead the requirements set forth in California's wrongful death statute. See CAL. CIV. PROC. § 377.60.
C. Claims for Recovery for Decedent's Pain and Suffering
Defendants' argue in their motion that Plaintiffs' claims to recover for decedent's pain, suffering, and disfigurement prior to death are not recoverable and should be "stricken." Defs' Mot., ECF No. 9, at 10. In Defendants reply to Plaintiffs' opposition, however, Defendants argue that these claims should be "dismissed." Defs' Reply, ECF No. 16, at 3. The court will therefore analyze Defendants motions under the standards for both a motion to strike and a motion to dismiss.
Defendants assert that, as a matter of law in the Eastern District of California, such damages are not recoverable. However, under the Supreme Court's holding in Whittlestone, Inc. v. Handi-Craft Co., district courts are not authorized to strike claims for damages on the ground that such claims are precluded as a matter of law. 618 F.3d 970, 976 (9th Cir. 2010). Thus, insofar as Defendants motion is a motion to strike Plaintiffs' claims for damages incurred by Ernesto Duenez, Jr. for his pain, suffering, and disfigurement prior to death, that motion is DENIED. The court now turns to its analysis construing Defendants motion as a motion to dismiss.
Section 1983 does not address survivor claims or any appropriate remedies. If a civil rights statute is "deficient in the provisions necessary to furnish suitable remedies," courts must look to applicable state law. 42 U.S.C. § 1988(a). However, state law may not be applied when it is "inconsistent with the Constitution and laws of the United States." Id.; see Robertson v. Wegmann, 436 U.S. 584, 594-95, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978). The Supreme Court has stated that the purpose behind the Federal Civil Rights Act is to: (1) prevent official illegality; and (2) compensate persons for injuries caused by the deprivation of constitutional rights. See Robertson, 436 U.S. at 592, 98 S.Ct. 1991; Carey v. Piphus, 435 U.S. 247, 254, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). In survivor actions in California, "the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement." CAL. CIV. PROC. § 377.34 (emphasis added).
Neither the Supreme Court nor the Ninth Circuit have addressed whether or not a state's damage limitations for a wrongful death claim are inconsistent with § 1983. See Robertson, 436 U.S. at 594-95 ("We intimate no view . . . about whether abatement based on state law could be allowed in a situation in which deprivation of federal rights caused death"); Mahach-Watkins v. Depee, 593 F.3d 1054, 1060 (9th Cir. 2010) (acknowledging that "The Ninth Circuit has not addressed the question of what damages are available under a Section 1983 wrongful death claim"); Smith v. City of Fontana, 818 F.2d 1411, 1417 n. 7 (9th Cir. 1987) (acknowledging but declining to decide the issue).
Other circuits have concluded that when a violation of federal civil rights results in death of the victim, state statutes limiting the remedies of the victim's estate and family members are not consistent with the purposes of § 1983. See, e.g., Berry v. City of Muskogee, 900 F.2d 1489, 1499-1507 (10th Cir. 1990);Bell v. Milwaukee, 746 F.2d 1205 (7th Cir. 1984), overruled on other grounds by Russ v. Watts, 414 F.3d 783 (7th Cir. 2005);Jaco v. Bloechle, 739 F.2d 239, 241-45 (6th Cir. 1984). In Bell, the Seventh Circuit explained that the Wisconsin law precluding recovery to the victim's estate for loss of life was inconsistent with the deterrent policy of § 1983 and the Fourteenth Amendment's protection of life:
[S]ince in the instant case the killing is the unconstitutional act, there would result more than a marginal loss of influence on potentially unconstitutional actors and therefore on the ability of Section 1983 to deter official lawlessness if the victim's estate could not bring suit to recover for loss of life.Bell, 746 F.2d at 1239. In Berry, the Tenth Circuit held that the application of Oklahoma's survival statute, which arguably limited recovery to property loss and loss of earnings by the decedent between the time of injury and death, would be inconsistent with Congress's intention to provide significant recompense when a constitutional violation causes the death of a victim and would result in deficient deterrence. Berry, 900 F.2d at 1506.
The district courts within the Ninth Circuit are split on this issue. Courts in the Eastern District have consistently held that § 377.34's limitation of damages for pain, suffering, or disfigurement is not inconsistent with § 1983. In reviewing the legislative history of California Civil Procedure Code § 377.34, the court in Venerable v. City of Sacramento, 185 F.Supp.2d 1128 (E.D. Cal. 2002) noted:
The legislature could well conclude that recovery for the decedent's pain and suffering is not the better rule given: (1) the uncertainty of testimony about how someone, now dead, suffered; (2) the provision for compensation to family survivors under the wrongful death statute for their own damages, including loss of companionship, and a natural reluctance to add as 'compensation' the in jury actually suffered by another; and (3) the adequacy of deterrence already provided by the possible array of damages for negligent conduct leading to death whether those damages are sought under the survival statute or by way of a wrongful death action.Id. at 1132. The court in Venerable declined to adopt the "cynical proposition that law enforcement officers generally prefer to run the risk of inflicting death than of merely maiming a victim because death cuts off a claim for pain and suffering by the decedent," id. at 1133, and held that the damages provided by the California survival and wrongful death statutes are not inconsistent with the Constitution and laws of the United States,id. Following Venerable, courts in the Eastern District have consistently held that damages for decedent's pain and suffering are not recoverable in survival actions under § 1983. See Estate of Contreras ex rel. Contreras v. County of Glenn, 725 F.Supp.2d 1151, 1156 (E.D. Cal. 2010);Provencio v. Vazquez, 2008 WL 3982063, at *12 (E.D.Cal. Aug. 18, 2008) (holding that pain and suffering claims are precluded because "the statutory scheme for survivors in California still provides compensatory damages for the remaining injured parties, i.e., the survivors"); Rosales v. City of Bakersfield, 2007 WL 1847628, at *18 n. 11 (E.D. Cal. June 27, 2007); Whitfield v. State of California, 2007 WL 496342, at *2 (E.D. Cal. Feb. 13, 2007); Moore ex rel. Moore v. County of Kern, 2006 WL 2190753, at *5-*6 (E.D. Cal. Aug. 1, 2006); Peacock v. Terhune, 2002 WL 459810, at *4-*5 (E.D. Cal. Jan. 23, 2002).
The California Court of Appeal has similarly held that § 377.34's limitation of damages is not inconsistent with § 1983.Garcia v. Superior Court, 42 Cal.App.4th 177, 49 Cal.Rptr.2d 580 (1996).
Courts in the Southern, Central, and Northern Districts, however, have opted not to apply § 377.34's limitation on damages for pain, suffering, or disfigurement, finding it inconsistent with the purposes of § 1983. See, e.g., Hirschfield v. San Diego Unified Port Dist., 2009 WL 3248101, at *4 (S.D.Cal. Oct. 8, 2009); Garcia v. Whitehead, 961 F. Supp. 230, 233 (C.D. Cal. 1997) (providing, in part, "The Court does not find persuasive the notion that punitive damages provide an adequate deterrent effect. Even where a constitutional violation is found, punitive damages are never available against the agency itself in a section 1983 action, and are not always warranted against the individual defendant."); Williams v. City of Oakland, 915 F.Supp. 1074 (N.D.Cal. 1996) (providing, in part, "the amount of [punitive] damages will be governed by the financial condition of the individual officer without regard to the pain and suffering he may have inflicted on the decedent");Guyton v. Phillips, 532 F.Supp. 1154, 1166 (C.D.Cal. 1981) (noting that: "Federal decisional law leaves little doubt that if there were no applicable state survival statute the action would not be permitted to abate. Otherwise the purpose of the Civil Rights Act of 1871 would be thwarted"; "pain and suffering sustained prior to death is recoverable in a majority of jurisdictions"; and "[t]he inescapable conclusion is that there may be substantial deterrent effect to conduct that results in the injury of an individual but virtually no deterrent to conduct that kills its victim.").
The court finds the reasoning provided by the Southern, Central, and Northern Districts of California, as well as other circuit courts, more persuasive than that of Venerable and its progeny in the Eastern District. While the opinion in Venerable has some persuasive authority, it appears to this court thatVenerable denigrates the purposes of Section 1983.
However, because the courts in the Eastern District of California have consistently held that § 377.34's limitation on damages is consistent with the purposes of § 1983, and it would be inappropriate to have the results of an issue turn upon whichever judge happens to be assigned to a case, the court will decline to permit a survival action for damages for the decedent's pain, suffering, and disfigurement.
Thus, the court GRANTS Defendants' motion to dismiss Plaintiffs' claims for damages incurred by decedent for his pain, suffering, and disfigurement prior to death. The court notes that the determination regarding whether or not § 377.34's limitation on damages conflicts with the purposes of § 1983 is one involving a controlling question of law, that there is substantial ground for difference of opinion, and that an immediate appeal from the order will materially advance the ultimate termination of the litigation. Accordingly, the court certifies this issue for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
D. Allegations Mixing Fourth and Fourteenth Amendment Claims
Defendants assert that, in Plaintiffs' complaint, "each cause of action appears to allege a claim by every plaintiff against every defendant under both the Fourth and Fourteenth Amendments," and that "[a]ll of the causes of action, which mix parties and legal theories, should be dismissed or ordered clarified." Defs' Mot., ECF No. 9, at 10. The court will construe Defendants' motion in this regard as both a motion to dismiss and as a motion for a more definite statement.
In enumerating their causes of action, Plaintiffs have not stated with particularity which plaintiffs are asserting which claims against which defendants. See, e.g., Pls' Compl., ECF No. 1, at 9 ("Defendants acted under color of law by killing decedent without lawful justification by subjecting decedent to excessive force thereby depriving Plaintiff and the decedent of certain constitutionally protected rights, including . . . The right to be free from unreasonable searches and seizures, as guaranteed by the Fourth and Fourteenth Amendments.").
However, the Plaintiffs have alleged sufficient non-conclusory factual allegations concerning Ernesto Duenez, Jr.'s seizure which, if taken as true and construed in the light most favorable to Plaintiffs, plausibly give rise to a finding that the Manteca police officers' seizure and resulting shooting of the decedent was "objectively unreasonable," and thus, that the Defendants acted with excessive force in violation of the decedent's Fourth Amendment rights. See Graham v. Connor, 490 U.S. 386 (1989) (holding that a free citizen's claim that law enforcement officials used excessive force in the course of making a seizure of his person is properly analyzed under the Fourth Amendment's "objective reasonableness" standard). Plaintiffs' complaint, therefore, provides Defendants with "fair notice of what the claim is and the grounds upon which it rests," Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Insofar as Defendants' motion regarding the Plaintiffs' mixture of their Fourth and Fourteenth Amendment claims is a motion to dismiss, Defendants' motion is DENIED.
Insofar as Defendants' motion regarding the Plaintiffs' mixture of their Fourth and Fourteenth Amendment claims is a motion for a more definite statement, that motion is DENIED because a Rule 12(e) motion cannot be used to require the pleader to set forth "the statutory or constitutional basis for his claim, only the facts underlying it." McCalden v. California Library Ass'n, 955 F.2d 1214, 1223 (9th Cir. 1990). Plaintiffs have adequately set forth their alleged facts in this regard.
However, "even though a complaint is not defective for failure to designate the statute or other provision of law violated," the court may "require such detail as may be appropriate in the particular case." McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996).
As discussed above, not all of the Plaintiffs may assert Fourth Amendment survival claims against the Defendants and, similarly, not all of the Plaintiffs may assert wrongful death claims against the Defendants. The court has, therefore, found it appropriate to grant Plaintiffs leave to amend their complaint to state which Plaintiffs are asserting each of these claims.
Furthermore, Defendants are correct in arguing that Plaintiffs' claims that the decedent was subject to excessive force should be asserted under the Fourth Amendment of the United States Constitution, and not the Fourteenth Amendment. See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871 (1989) ("all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach."). Thus, the court finds it appropriate to ORDER Plaintiffs to amend their complaint accordingly.
Finally, under most enumerated causes of action in Plaintiffs' complaint, Plaintiffs properly assert claims for their loss of familial relationships with the decedent under the Fourteenth Amendment alone. See, e.g., Pls' Compl., ECF No. 1, at 11, 12;see also Curnow By and Through Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991) ("While the person who claims excessive force was directed at him or her can only raise a [F]ourth [A]mendment claim, a parent who claims loss of the companionship and society of his or her child, or vice versa, raises a different constitutional claim . . . [based on] a constitutionally protected liberty interest under the Fourteenth Amendment"). However, Plaintiffs' second cause of action states:
Defendants, acting under color of law, and without due process of law deprived Plaintiffs of their right to a familial relationship by seizing decedent by use of unreasonable, unjustified, cruel and unusual deadly force and violence, causing injuries which resulted in decedent's death, all without provocation and did attempt to conceal their excessive use of force and hide the true cause of decedent's demise to deprive Plaintiffs of their right to seek redress, all in violation of the rights, privileges, and immunities secured by the Fourth and Fourteenth Amendments to the United States Constitution. Plaintiffs allege that Defendants acted with an intent to harm Decedent unrelated to legitimate law enforcement purposes.
Pls' Compl., ECF No. 1, at 9. This allegation is unclear as to whether Plaintiffs' claim is based on the deprivation of their right to a familial relationship, the unlawful seizure of the decedent, or the Defendants' alleged attempts to conceal their excessive use of force. Thus, even though Plaintiffs have sufficiently set forth the facts underlying their claims, the court finds it appropriate to ORDER Plaintiffs to clarify this second cause of action.
With regard to Defendants as named in the complaint, Plaintiffs are GRANTED LEAVE TO AMEND their complaint in accordance with the court's dismissal of redundant Defendants named in their official capacity.
E. Defendants' Request to Strike Allegations from the Complaint as Irrelevant, Improper, and Impertinent
Defendants argue that various allegations in the complaint are irrelevant, improper, and impertinent and should, therefore, be stricken. Defs' Mot., ECF No. 9, at 11. The court addresses each of Plaintiffs' assertions in turn.
First, Defendants move to strike Plaintiffs' assertion that:
Press accounts subsequently released falsely claimed Mr. Duenez had approached the Manteca police department officers armed, according to the various press accounts, with neither [sic], a knife, a gun, or a weapon. Some of these false accounts were attributed by press to Manteca Police Department sources. . . . Press accounts have also reported that Manteca Police Department patrol vehicles are equipped with video camera recording devices designed to capture events of police and suspect activity on video.
Pls' Compl., ECF No. 1, at 1-2. This assertion bears an important relationship to the question of whether or not Ernesto Duenez, Jr. "pose[d] an immediate threat to the safety of the officers" at the scene, which the factfinder must assess in determining if the officers' actions were "objectively reasonable," in satisfaction of the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 396 (1989). That is, this assertion being true makes it less likely that the decedent "posed an immediate threat to the safety of the officers." Id. Thus, Defendants' motion to strike is DENIED as to Plaintiff's first assertion.
Second, Defendants move to strike Plaintiffs' assertion that:
Plaintiffs' attorney has requested the police reports and patrol vehicle video footage of the incident from the Manteca Police Department. Defendant Manteca Police Department Police Chief David Bricker has refused to provide any such responsive information, invoking various California state law statutory privileges. Chief Bricker's correspondence refusing to disclose any responsive information is attached to this Complaint as Exhibit A.Id. at 2. This assertion also pertains to Plaintiffs' ability to prove whether or not Ernesto Duenez, Jr. posed an immediate threat to the safety of the officers at the scene and the objective reasonableness of the officers' actions. Defendants' argument that Plaintiffs' assertion "attempt[s] to collaterally attack the denial of the request" raises an issue of law as opposed to an issue of factual pertinence or materiality and, thus, Defendants' motion to strike is DENIED as to Plaintiff's second assertion.
Third, Defendants move to strike Plaintiffs' assertion that:
Several unidentified Manteca Police Department Officers detained . . . [third parties] Rudy Camarena, and Mr. Camarena's wife, all at gunpoint. Then, without a search warrant, probable cause, or exigency, several unidentified Manteca Police Department officer Does entered Mr. Camarena's residence, searched it, and detained several people, including, but not limited to, Mr. Camarena's son, and Mr. Camarena's elder mother who is in very poor health. . . . All of the people arrested and/or detained at the scene were transported to the Manteca Police Department, including, but not limited to . . . Rudy Camarena, and Mr. Camarena's wife and son, where they were detained for an excessive period of time and subjected to interrogations before being released hours later without any charges. Each was held against their will until their release.Id. at 6. In assessing whether or not a seizure is "objectively reasonable" under the Fourth Amendment, a factfinder is required to pay "careful attention to the facts and circumstances of each particular case." Graham, 490 U.S. at 396. The officers' conduct directly following the death of Ernesto Duenez, Jr. pertains to a factfinder's understanding of the circumstances of the case at hand and, thus, is not immaterial or impertinent to the question of whether or not the officers' actions in this case were reasonable. Thus, Defendants' motion to strike is DENIED as to Plaintiff's third assertion.
IV. CONCLUSION
For the foregoing reasons, the court GRANTS Defendants' motion, in part, and DENIES Defendants' motion, in part. The court makes the following orders: Fourth Amendment 28 U.S.C. § 1292 Fourth Fourteenth Amendment Fourth Fourteenth Amendment
• Plaintiffs' § 1983 claims against Chief David Bricker, sued only in his official capacity, are DISMISSED as redundant. Plaintiffs' § 1983 claims against Officer Aguilar in his official capacity are DISMISSED; claims against Officer Aguilar in his individual capacity remain. Plaintiffs are GRANTED LEAVE TO AMEND their complaint in accordance with the court's dismissal of redundant Defendants named in their official capacity. • The court GRANTS Defendants' motion and DISMISSES any claims brought by Plaintiffs D.D. (decedent's son), Rosemary Duenez, and Ernesto Duenez, Sr., WITH LEAVE TO AMEND. • The court GRANTS Plaintiffs LEAVE TO AMEND the complaint to more specifically accord with the requirements set forth in California's wrongful death statute, Cal. Civ. Proc. § 377.60. • The court ORDERS Plaintiffs to clarify Plaintiffs' second cause of action. • The court GRANTS Defendants' motion to strike Plaintiffs' claims for damages incurred by decedent for his pain, suffering, and disfigurement prior to death. The court CERTIFIES this issue for interlocutory appeal pursuant to (b). • Insofar as Defendants' motion regarding the Plaintiffs' mixture of their and claims is a motion to dismiss, Defendants' motion is DENIED. • Insofar as Defendants' motion regarding the Plaintiffs' mixture of their and claims is a motion for a more definite statement, that motion is DENIED. • Defendants' motion to strike allegations they have identified as being "irrelevant, improper, and impertinent" is DENIED. IT IS SO ORDERED.DATED: October 26, 2011.