Opinion
No. CV 01-01867 CBM (AIJx)
September 19, 2001
The matters before the Court, the Honorable Consuelo B. Marshall, United States District Judge presiding, are Defendants' Motions to Dismiss For Failure to State a Claim and Defendants' Requests for Judicial Notice. Counsel appeared before the Court on September 10, 2001. Upon consideration of the arguments presented, the Court grants Defendants' Requests for Judicial Notice and grants in part, denies in part Defendants' Motions to Dismiss.
JURISDICTION
This action is before the Court pursuant to 42 U.S.C. § 1983, 18 U.S.C. § 1961, 1962 and 28 U.S.C. § 1331, 1343.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff H.T. Minister filed this civil rights action on February 27, 2001, against Los Angeles Police Chief Bernard Parks, former Police Chief Willie Williams, former Police Chief Daryl Gates, current and former members of the Los Angeles City Council ("Councilmembers"), current members of the Los Angeles Police Commission ("Commissioners"), former members of the Los Angeles Police Commission ("Former Commissioners"), attorneys in the Los Angeles City Attorney's Office ("City Attorneys"), and Officers Kilgore, Thomas Lo, Randolph Hill and Michael Madnick of the Los Angeles Police Department ("LAPD"). This Court granted Defendants' Motions to Dismiss portions of the Complaint, with leave to amend, on July 2, 2001 and July 11, 2001.
The Councilmembers include Richard Alarcon, Richard Alatorre, Hal Bernson, Marvin Braude, Laura Chick, Ruth Galanter, Mike Hernandez, Nate Holden. Nick Pacheco, Alex Padilla, Mark Ridley-Thomas, Joel Wachs, Ernani Bernardi, Gloria Molina, Joy Picus, Arthur Snyder, Michael Woo and Zev Yarolslavsky. The FAC does not indicate which Councilmembers are currently in office.
The current and former commissioners include Herbert Boeckmann, Gerald Chaleff, Raquelle De La Rocha, Raymond C. Fisher, Stephen Gavin, Maxwell Greenberg, Dean Hansell, Deirdre Hughes [Jill. T. Warren Jackson, Melanie Lomax, Art Mattox, Enrique Hernandez, Barbara Lindemann Schlei, Robert M. Talcott, Reva Tooley, Robert Weil, Stanley Sheinbum, Michael Yamaki and Stephen Yslas. The FAC does not identify which commissioners are currently in office.
The City Attorney defendants are Mary Burwell Cooper, Ellen M. Fawls, Jeffrey Gallagher, James K. Hahn, Katherine J. Hamilton, Richard Helgeson, Thomas Hokinson, Stuart D. Hotchkiss, Helen Annette Keller, Honey A. Lewis. Ward G. McConnell, John T. Neville, James Pearson. Phillip Shiner, Phillip J. Sugar, Flora Trostler. G. Daniel Woodard and Don Wisot Vincent II.
Plaintiff filed a First Amended Complaint ("FAC") on July 30, 2001. The FAC alleges that on or about March 6, 2000, Officers Kilgore, Lo, Hill and Madnick stopped Plaintiff without legal cause and physically pushed him around, hit him and used too much force handcuffing him. FAC ¶ 16. The FAC further alleges that the officers caused false charges to be filed against Plaintiff. FAC ¶ 16. The criminal charges were terminated in Plaintiffs favor. FAC ¶ 16. The FAC sets forth five causes of action: (1) violation of 42 U.S.C. § 1983 against all Defendants; (2) conspiracy to violate 42 U.S.C. § 1983 against all Defendants; (3) a Monell claim under 42 U.S.C. § 1983 against Parks, former and current Commissioners in their official capacity only; (4) violation of 42 U.S.C. § 1983 against Parks, Councilmembers and City Attorneys based on Defendants' decisions to indemnify police officers for punitive damages in civil rights cases; and (5) declaratory relief against all Defendants.
Defendants filed several Motions to Dismiss the FAC for Failure to State a Claim Upon Which Relief Can Be Granted on August 9, 2001. Defendants also filed Requests for Judicial Notice on August 9, 2001. Plaintiff filed a "Combined Opposition" to All Defendants' Motions to Dismiss on August 27, 2001. Defendants filed Replies on September 4, 2001.
Officers Hill and Madnick neither filed a motion to dismiss nor joined in any other Defendants' notion.
DISCUSSION
I. Requests for Judicial Notice
Rule 201 of the Federal Rules of Evidence permits a district court to take judicial notice of facts "not subject to reasonable dispute." FED. R. EVID. 201(b). A court may consider judicially noticed facts on a Rule 12(b)(6) without converting the motion to a summary judgment motion. Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1388 (9th Cir. 1987). Defendants request the Court to take judicial notice of Sections 21, 25, 42, 70(b), 76, 77, 78, 206(a)(2) of the Los Angeles Charter. The Court grants Defendants' Requests for Judicial Notice.
II. Motions to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to seek dismissal of a complaint, which "fail[s] to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). A motion to dismiss for failure to state a claim must be denied unless it appears that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Jenkins v. Commonwealth Land Title Ins. Co., 95 F.3d 791, 796-97 (9th Cir. 1996). Dismissal is appropriate if the plaintiff fails to assert a cognizable legal theory or to allege sufficient facts under a cognizable legal theory. Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). All material factual allegations in the complaint are assumed to be true and construed in the light most favorable to the plaintiff. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1997); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir. 1989).
A plaintiff may recover damages for violation of his constitutional rights by a state official acting under the color of state law. 42 U.S.C. § 1983. Generally, a plaintiff need only set forth "a short and plain statement of the claim." FED. R. CIV. P. 8(a). However, a plaintiff asserting a section 1983 claim against a law enforcement officer, in his individual capacity, must comply with a heightened pleading standard when the defendant's subjective intent is an element of the underlying constitutional tort. Branch v. Tunnell, 14 F.3d 449, 452 (9th Cir. 1994). "The allegations of facts must be specific and concrete enough to enable the defendant to prepare a response, and where appropriate, a motion for summary judgment based on qualified immunity." Id. The heightened pleading standard does not apply to section 1983 municipal claims. Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 168 (1993).
A. Plaintiffs First Claim
Plaintiffs first claim under § 1983 alleges that all Defendants violated his Fourth and Fourteenth Amendment rights. The Commissioners, Former Commissioners, City Attorneys, Gates, Williams, and Councilmembers argue that the FAC fails to allege facts establishing that they either personally participated in or have supervisory liability for the alleged deprivation of Plaintiffs constitutional rights.
Supervisory officials are not liable under § 1983 for actions of subordinates on any theory of vicarious liability. Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989). However, a supervisor need not personally participate in a constitutional violation to be held liable under § 1983. Id. at 646. "A supervisor may be liable if there exists . . . a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Id. A causal connection exists "if supervisory officials implement a policy so deficient that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional violation.'" Id. (quoting Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987)). A supervisor may also be liable if he "knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000).
The FAC alleges: Officers Kilgore, Lo, Hill and Madnick stopped, searched and arrested Plaintiff without legal cause on March 6, 2000. FAC ¶ 16. The officers used excessive force against Plaintiff "by physically pushing him around and to the ground and hitting him and using too much force handcuffing him." FAC ¶ 16. Furthermore, the officers allegedly caused false criminal charges to be made against Plaintiff. FAC ¶ 16. Each Defendant either created, maintained, approved of or took no action to correct policies which resulted in the deprivation of Plaintiffs constitutional rights. FAC ¶ 9. Decisions by the City Attorneys and Councilmembers, in the past, to routinely indemnify police officers against punitive damage awards led to the violation of Plaintiffs rights. FAC ¶¶ 10, 26-28. Plaintiff alleges that Defendants, including the Commissioners, failed to provide civilian oversight of the LAPD and stop LAPD officers from filing false charges and authoring false reports against innocent persons. FAC ¶¶ 12, 19. According to the FAC, Gates and Williams, during their tenures as LAPD Police Chief, formulated and fostered policies that encouraged illegal stops and searches, the use of excessive force and the filing of false criminal charges and such policies led to the violation of Plaintiffs rights. FAC ¶¶ 16, 19. These allegations are sufficient to support Plaintiffs claim under section 1983.
The Councilmembers and City Attorneys rely on Hernandez v. Gates, 100 F. Supp.2d 1209 (C.D. Cal. 2000) (Fees, J., presiding), to argue that they cannot be held liable for indemnifying police officers. However, since the Hernandez decision, the Ninth Circuit Court of Appeals has clarified that individual Councilmembers may be held liable to the extent they decided to indemnify LAPD officers for punitive damage awards in bad faith. See Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) (section 1983 claim may be based on officials' bad faith decision to indemnify unconstitutional police conduct). In Blumberg v. Gates, 144 F. Supp.2d 1221 (C.D. Cal. 2001), Judge Fees wrote:
Navarro plainly permits plaintiffs to assert section 1983 claims . . . against the Los Angeles City Council based on the council members' prior decisions to indemnify police officers against punitive damage awards. A fair reading of Navarro also suggests plaintiff may go forward with his claims against the City Attorney Defendants at this time.
Blumberg, 144 F. Supp.2d at 1222. Therefore, Councilmembers and City Attorneys may be held liable for indemnifying police officers in bad faith against punitive damage awards in civil rights cases.
The Councilmembers further argue that they cannot be held personally liable because they did not individually supervise the LAPD officers. Specifically, the Councilmembers contend that they cannot individually supervise the LAPD because they can act only by majority vote. Section 25 of the L.A. Charter states that action by the City Council shall take place by majority vote. The Ninth Circuit has not directly addressed the issue of whether individual members of the City Council may be held liable when, pursuant to the authority granted to them, they can act only by majority vote. In Navarro v. Block, 250 F.3d 729 (9th Cir. 2001), the Ninth Circuit permitted a plaintiff to sue members of the Board of Supervisors in their individual capacity under § 1983 without directly addressing this issue. In Navarro, individual Supervisors argued that they were entitled to qualified immunity for their decisions to indemnify officers against punitive damages awards in civil rights cases. Navarro, 250 F.3d at 729. The Ninth Circuit held that the Supervisors were not immune for bad faith decisions to indemnify officers. Id. at 734. It appears that the Ninth Circuit implicitly recognizes that members of a council or board, which acts by majority vote, may be held individually liable for their conduct.
The Commissioners and Former Commissioners argue that they are not responsible for supervising the LAPD. They contend that the term "supervise" as used in the Charter is different from how that term is used in section 1983 jurisprudence because the Commissioners cannot supervise individual officers. The Chief of Police has the legal duty to supervise LAPD officers — i.e., to "appoint, discharge, discipline, transfer and issue instructions" to police officers. L.A. City Charter § 206(a)(2). However, the Charter further states that the LAPD is "under the control and management" of the Board of Police Commissioners. L.A. City Charter §§ 70(b), 77. The Commissioners shall "supervise, control, regulate and manage the [police] department and make and enforce all necessary and desirable rules and regulations therefor." L.A. City Charter § 78. The Commissioners and Former Commissioners have authority to correct policies that result in constitutional violations and thus can be held liable under section 1983 for their failure to do so.
Gates and Williams argue that they cannot be held liable as supervisors because there is not a sufficient causal connection between their conduct as Chief of Police and the alleged deprivation of Plaintiffs rights. The FAC alleges that Gates and Williams tolerated and fostered policies that encouraged the use of excessive force and the filing of false charges and such policies were the moving force behind the injury to Plaintiff. FAC ¶¶ 16, 19. Plaintiff has alleged sufficient facts to support a section 1983 claim against Gates and Williams.
Gates and Williams further argue that Plaintiffs claims are barred by the statute of limitations. Section 1983 does not contain a limitations period. Federal courts in each state look to the state statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261 (1985). California law provides a one-year statute of limitations for personal injury claims. CAL. CODE CIV. PROC. § 340(3). However, federal law determines when the cause of action accrues. Wetzel v. Lou Ehlers Cadillac Group Long Term Disability Ins. Program, 189 F.3d 1160, 1163 (9th Cir. 1999). Under federal law, a claim accrues when plaintiff "knows or has reason to know of the injury which is the basis of the action." Tworivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). In the present action, Plaintiffs cause of action accrued on March 6, 2000, when Plaintiff was injured. Therefore, Plaintiffs claims against Gates and Williams are timely.
Based on the foregoing, the Court denies Defendants' Motions to Dismiss Plaintiffs first cause of action.
B. Plaintiffs Second Cause of Action
Plaintiffs second claim seeks damages under section 1983 for Defendants' alleged conspiracy to violate section 1983.
A plaintiff may allege a § 1983 claim based on a conspiracy to deprive him of his constitutional rights so long as there has been an actual constitutional deprivation. See Cohen v. Norris, 300 F.2d 24, 27 (9th Cir. 1962). Under a § 1983 conspiracy theory, liability may be imposed on all participants in the conspiracy "without regard to who committed the particular act." Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995). Furthermore, the conspiracy must be designed to deprive the plaintiff of his constitutional rights. See Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir.), cert. denied 506 U.S. 819 (1992).
The plaintiff must comply with the heightened pleading standard applicable to certain § 1983 claims. Branch v. Tunnell, 14 F.3d 449, 457 (9th Cir. 1994). The complaint must state "nonconclusory allegations containing evidence of unlawful intent or face dismissal prior to the taking of discovery.'" Harris v. Roderick, 126 F.3d 1189, 1195 (9th Cir. 1997); accord Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir. 1977). A plaintiff meets the heightened pleading standard by alleging "which defendants conspired, how they conspired and how the conspiracy led to a deprivation of his constitutional rights even though he does not identify which officer said or did what at which particular time." Harris, 126 F.3d at 1196.
Officers Parks, Kilgore and Lo argue that Plaintiff fails to allege a conspiracy with sufficient particularity. However, Plaintiffs allegations are sufficient to state a claim against the LAPD Defendants — i.e., Officers Kilgore, Lo, Madnick, and Hill. The FAC alleges the LAPD officers agreed to use excessive force against plaintiff and illegally arrest him on March 6, 2000. FAC ¶ 22. Plaintiff further alleges that the LAPD defendants agreed to file false criminal charges against Plaintiff. FAC ¶ 22. The FAC states that the LAPD officers could not have violated Plaintiffs rights unless the non-police officer defendants directly participated or were willfully blind to the officers' conduct. FAC ¶ 23. The FAC does not state with particularity how the non-police officer defendants participated in the alleged conspiracy to violate Plaintiffs rights.
Based on the foregoing, the Court grants Defendants' Motion to Dismiss Plaintiffs second cause of action as to the City Attorneys, Councilmembers, Commissioners, Former Commissioners, Gates, Parks and Williams. Defendants' Motions to Dismiss as to Officers Kilgore and Lo is denied.
C. Plaintiff's Third Cause of Action
Plaintiffs third claim under § 1983 is asserted against Parks, the Commissioners and the Former Commissioners in their official capacity only. FAC at 10. Plaintiff alleges that Defendants created and maintained a policy of engaging in several constitutional violations, including planting evidence, coercing confessions and guilty pleas, and making false police reports. FAC ¶ 24.
It is well-established that a municipality cannot be held liable under § 1983 based on a respondeat superior theory. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). A Monell claim may not be based on a suit against a government official in that official's personal capacity. See id. The Former Commissioners are no longer policymakers for Los Angeles. Therefore, they cannot be sued in their official capacity.
The FAC contains contradictory statements. The FAC states that the Former Commissioners are sued in the individual capacity only. FAC ¶ 4. However, Plaintiffs third claim is asserted against he Former Commissioners "only in their official capacities." FAC at 10.
Based on the foregoing, the Court grants the Former Commissioners' Motion to Dismiss Plaintiffs third cause of action as to the Former Commissioners.
D. Plaintiff's Fourth Cause of Action
Plaintiffs fourth claim under § 1983 is asserted against Parks, the City Attorneys and Commissioners; the FAC does not specify whether the Defendants are sued in the individual capacity, official capacity or both. The Defendants seek dismissal of Plaintiff's fourth claim against them in their personal capacity. A Monell claim may not be based on a suit against a government official in that official's personal capacity. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Plaintiffs fourth cause of action appears to assert a Monell claim. Plaintiff alleges that Defendants maintain and foster a custom of improperly indemnifying LAPD officers for punitive damage awards in civil rights cases. FAC ¶ 26.
Based on the foregoing, the Court grants Councilmembers and City Attorneys' Motions to Dismiss Plaintiffs fourth claim against them in their personal capacity.
E. Plaintiff's Fifth Cause of Action
Plaintiffs fifth claim seeks declaratory relief against all Defendants. All Defendants argue that Plaintiff lacks standing to seek declaratory relief.
A plaintiff seeking declaratory relief "must show 'a very significant possibility' of future harm in order to have standing to bring suit." Coral Construction Co. v. King County, 941 F.2d 910, 929 (9th Cir. 1991). The Ninth Circuit has recently held that a plaintiff must show "a likelihood of future injury" to establish standing to seek declaratory relief. Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1044 (9th Cir. 1999). The standing requirement for declaratory relief claims is similar to that for injunctive relief claims. See id. ("In suits seeking both declaratory and injunctive relief against a defendant's continuing practices, the ripeness requirement serves the same function in limiting declaratory relief as the imminent-harm requirement serves in limiting injunctive relief.").
Defendants argue that the same test for determining standing to seek injunctive relief applies to claims for declaratory relief. The FAC fails to allege facts showing there is a "very significant possibility" of future harm to Plaintiff.
Therefore, the Court grants Defendants' Motions to Dismiss Plaintiffs fifth cause of action.
CONCLUSION
Based on the foregoing, the Court (1) DENIES Defendants' Motions to Dismiss Plaintiffs First Cause of Action; (2) GRANTS Defendants' Motions to Dismiss Plaintiffs Second Claim as to the City Attorneys, Councilmembers, Commissioners, Former Commissioners, Gates, Parks and Williams and DENIES Defendants' Motion as to Kilgore and Lo; (3) GRANTS Former Commissioners' Motion to Dismiss Plaintiffs Third Claim; (4) GRANTS Councilmembers' and City Attorneys' Motions to Dismiss Plaintiffs' Fourth Claim against Defendants in their personal capacity; and (5) GRANTS Defendants' Motions to Dismiss Plaintiffs Fifth Claim for Declaratory Relief.
SO ORDERED.