Opinion
Case No. 2:15-cv-08386-CAS-KES
01-07-2020
NICHOLAS A. UCCI, Plaintiff, v. LAPD, et al., Defendants.
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"). (Dkt. 130.)
The 7AC mentions Ms. Alex Thompson, a blogger and operator of the website Venice311.org, who has posted negative information about him. (Dkt. 130 at 9). Plaintiff prays for a court order compelling Ms. Thompson to (1) remove all postings about Plaintiff, (2) refrain from posting about Plaintiff, and (3) post a public apology on her website "for as long as she lives." (Dkt. 130 at 28.) After filing his Sixth Amended Complaint ("6AC"), Plaintiff voluntarily dismissed Ms. Thompson. (Dkts. 77 [6AC], 79 [notice of voluntary dismissal].) The Court assumes that Ms. Thompson is mentioned in the 7AC only because the 7AC contains copies of the same handwritten allegations that were filed as the 6AC, but that Plaintiff did not intend to rename Ms. Thompson as a defendant in the 7AC. (Compare Dkts. 77, 130.) If the 7AC were construed as alleging § 1983 claims against Ms. Thompson, then those claims would fail, because Plaintiff does not allege facts showing that Ms. Thompson, a private blogger, acted under color of state law.
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 pursuing limited 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.) He sued the officers in their official capacity only. (Id. at 3.)
All citations are to the pagination imposed by the Court's e-filing system.
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 factual circumstances 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 was instructed 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. A. The August 1 , 2011 Incident.
In the initial complaint, Plaintiff alleged that he was arrested "over and over again" and charged with "18 felonies" that were either dismissed or for which he was acquitted. (Dkt. 1 at 4.) In the 7AC, Plaintiff alleges that in addition to the arrests on August 1, 2011, and June 5, 2012, "there were several other arrests in which the LAPD officers ... violate[d] my Federal Constitutional rights ...." (Dkt. 130 at 7.) In addition to the July 4, 2012 and August 4, 2012 incidents, he alleges that there were "several incidents" when LAPD officers violated his rights but did not arrest him. (Id.) Plaintiff objects that the Court has not permitted him to conduct more discovery. (Id. at 30.) He contends that "the Court has limited scope of discovery to just two of the multiple, multiple ... incidents in which multiple officers of the LAPD conspired and acted to violate my Federal Constitutional rights ...." (Id. at 24.) Plaintiff is apparently referring to an order declining to compel the LAPD to produce its entire file related to Plaintiff's IAG Complaint in response to Plaintiff's subpoena before the LAPD had been served. (Dkts. 60, 65.) Plaintiff has been repeatedly instructed to describe the events over which he is suing based on his memory of what happened to him. Plaintiff should be able to supply the basic facts even if he does not recall names or dates. Plaintiff has demonstrated that he understands how to plead allegations against "unknown" officers, and he has been given many opportunities to amend, but he has failed to allege facts concerning any incidents other than the four incidents discussed herein. The Court, therefore, (1) construes the 7AC as limited to the four incidents about which Plaintiff provided factual allegations, and (2) finds that giving Plaintiff leave to amend yet again would be futile.
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." (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.)
It is unclear if this "parking divider" was similar to an orange traffic cone, a plastic K-rail, or something else.
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' entry. (Id. at 14.)
Officer Ruiz wrote an arrest report identifying Plaintiff as a suspect in an assault with a deadly weapon ("ADW") case. (Id. at 15.) Plaintiff alleges that the facts did not "warrant an ADW charge[.]" (Id.) The "officers were not present when the alleged incident occurred," and they relied on "a statement from a person with minor injury, who refused medical treatment, Mr. Jordan Loth" in deciding to arrest Plaintiff. (Id.) Plaintiff alleges that he read the investigative report, and per that report, no witnesses mentioned "any weapons" to the police. (Id. at 16.)
Plaintiff was subsequently tried and acquitted of assault with a deadly weapon and battery charges. (Id. at 14.) B. The June 5 , 2012 Incident.
Plaintiff alleges that on June 5, 2012, Defendants Thusing, Delatori, Mims, and Grimes "acting under color of law, conspired and acted to violate [Plaintiff's] constitutional federal rights." (Id. at 18-19.) The City's Department of Building and Safety shut off his electricity in response to unpermitted construction on the roof. (Id. at 17-18.) After that, Plaintiff ran a generator on his back porch, but it was noisy, and his neighbors complained. (Id. at 20.) Plaintiff made a deal with the manager of the neighboring apartment building to pay $200/month to run an extension cord to the pool area to get electricity at night without running his generator. (Id.) A resident of the apartment building, Rick Goebin, saw the cord and reported suspected electricity theft to the LAPD. (Id. at 19.) On June 5, 2012, Defendants Mims and Grimes came to investigate and followed the cord to Plaintiff's house. (Id. at 19, 21.)
Plaintiff alleges that Defendants Thusing, Delatori, Mims, and Grimes arrived at his home without a warrant and told Plaintiff, "Shut up and sit down, don't move or I'll shoot you." (Id. at 21.) Plaintiff alleges that Defendants "entered [his] home without consent, without a warrant, without probable cause, without emergency, without exigent circumstance based on a complaint from a neighbor that they did not properly investigate[,]" and they searched his house. (Id.) As a result of the search, Plaintiff was charged with cultivation of marijuana. (Id. at 22.) He alleges that he had a "valid Doctor's Recommendation" that allowed him to "grow up to 99 plants and possess up to two pounds of medical marijuana." (Id.) The officers "rob[bed]" him of his "property," the marijuana plants. (Id.) In a prior complaint, he alleged that the officers confiscated "64 marijuana plants which [he] had a license for costing $10,000 a piece totaling $640,000." (Dkt. 67 at 4.)
The Court has corrected spelling errors where the meaning is clear.
Plaintiff alleges that, after posting bail, he returned home the same day to find his house "wide open[;]" his tools, a substantial amount of cash, a diamond engagement ring, and his passport had been stolen. (Dkt. 130 at 22-23.) Plaintiff called the LAPD to report the robbery, and two officers came to investigate a few days later. (Id. at 23-24.) They talked to him, but they never got out of their patrol car. (Id.) They never called him to discuss the investigation, and they never recovered his stolen property. (Id.)
When Plaintiff went to court to answer the charge of cultivating marijuana, "the case was not on calendar and the district attorney had no record of it; it vanished." (Id. at 24.) C. The July 4 , 2012 Incident.
Plaintiff alleges that unknown LAPD officers in a helicopter and on the ground with a megaphone ordered him to exit his Venice home while he was painting. (Dkt. 130 at 7.) The officers pointed guns at him and ordered him to lay on the ground, which he did. (Id. at 7-8.) He was handcuffed "[w]ith excessive force" and put in the back of a police car for six hours while officers searched his house. (Id. at 8.) He was released around midnight, and no one filed charges against him. (Id.) Officers told him that they had searched his home because a neighbor had complained of hearing gunshots; Plaintiff believes that the neighbor heard fireworks. (Id.) D. The August 4 , 2012 Incident.
Plaintiff alleges that he had constructed a "sustainable roofing solution" on the roof of his leased house in Venice. (Dkt. 130 at 17.) In earlier pleadings, he referred to it as a "dome-style roof." (Dkt. 13 at 4.) The City "did not like" his roofing system and "refused to issue a building permit." (Dkt. 130 at 18.) The roofing system was "destroyed by LAPD" after Plaintiff's June 5, 2012 arrest. (Id.)
Specifically, Plaintiff alleges that about a month after July 4, unknown LAPD officers ordered him to leave his home at gunpoint and not return until 5:00 p.m. (Id. at 9.) He left, and upon returning home at 5:00 p.m., he saw that his "house was completely destroyed" and that the "work" he had done, valued at $250,000 (apparently referring to the unpermitted roof dome), was "destroyed." (Id.)
IV.
LEGAL CLAIMS
In the 7AC, Plaintiff lists eighteen legal claims that he is attempting to plead. (Dkt. 130 at 25-26.) The Court liberally construes the 7AC as attempting to plead the following federal claims (arising under 42 U.S.C. § 1983 or § 1985) and state law claims:
| Federal Claims | State Claims | Incident/Factual Basis |
| (1) unconstitutional searchin violation of the 4th and14th Amendments("Warrantless Search"claims) | (8) unconstitutionalsearch in violation ofthe Bane Act (Cal.Civil Code § 52.1) | All four incidents |
| (2) unconstitutional use ofexcessive force duringsearch or arrest inviolation of the 4th and14th Amendments("Excessive Force"claims) | (9) excessive force inviolation of the BaneAct | All four incidents |
| (3) unconstitutionalseizure (i.e., arrest withoutprobable cause) inviolation of the 4th and14th Amendments ("FalseArrest" claims) | (10) unconstitutionalseizure in violation ofthe Bane Act | August 1, 2011 and June 5,2012 arrests |
| (4) false imprisonment inviolation of the 4th and14th Amendments ("FalseImprisonment" claims) | (11) falseimprisonment (civiltort) | August 1, 2011 and June 5,2012 arrests |
| (5) malicious prosecutionwith the intent to deny a | (12) maliciousprosecution (civil tort) | August 1, 2011 and June 5,2012 arrests |
| (6) confiscation/destruction of property without dueprocess in violation of the5th and 14th Amendments("Due Process" claims) | (13) deprivation of dueprocess in violation ofthe Bane Act | • June 4, 2012 (marijuanaplants)• August 4, 2012 (roofconstruction) |
| (7) conspiracy in violationof 42 U.S.C. § 1985("Conspiracy" claims) | (14) conspiracy inviolation of the BaneAct | All four incidents |
| (15) violation of FirstAmendment rightsunder the Bane Act | August 1, 2011 arrest(because claim allegedagainst the four officersinvolved in that arrest, perDkt. 130 at 26) | |
| (16) invasion ofprivacy (civil tort) | All four incidents(unauthorized entry intohome) | |
| (17) trespass (civil tort) | All four incidents | |
| (18) intentionalinfliction of emotionaldistress (civil tort) | All four incidents | |
| (19) defamation (civiltort) | August 4, 2012 (LAPDallowed blogger Thompsonto photograph home'sinterior, per Dkt. 130 at 9) | |
| (20) negligence (civiltort) | June 5, 2012 (LAPDnegligently investigatedrobbery of Plaintiff'shouse) |
Although malicious prosecution is generally a state law tort, the Ninth Circuit has determined that a plaintiff may sue for malicious prosecution under § 1983 in certain circumstances. In addition to alleging the elements of a state law claim, the plaintiff must establish that the prosecution was conducted "for the purpose of denying [the accused] equal protection or another specific constitutional right." Lacey v. Maricopa Cnty., 693 F.3d 896, 919 (9th Cir. 2012) (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)).
V.
LEGAL STANDARDS
A. Motions to Dismiss.
A Rule 12(b)(6) motion to dismiss tests the sufficiency of a statement of claim for relief. A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (as amended).
In determining whether a complaint states a claim on which relief may be granted, its allegations of material fact must be taken as true and construed in the light most favorable to plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Where, as here, the plaintiff is appearing pro se, courts must construe the allegations of the complaint liberally and must afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). However, "the liberal pleading standard ... applies only to a plaintiff's factual allegations." Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
Moreover, with respect to a plaintiff's pleading burden, the Supreme Court has held that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. ... Factual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (first alteration in original) (internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (To avoid dismissal for failure to state a claim, "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.") (internal citation omitted).
In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts may consider material that is properly subject to judicial notice. Mullis v. U. S. Bankr. Court, 828 F.2d 1385, 1388 (9th Cir. 1987); Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) ("on a motion to dismiss a court may properly look beyond the complaint to matters of public record"), abrogated on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991)). B. Pleading Facts Sufficient to Avoid a Time Bar.
The burden of alleging facts that would give rise to tolling falls upon the plaintiff. Hinton v. NMI Pac. Enters., 5 F.3d 391, 395 (9th Cir. 1993); see also In re Reno, 55 Cal. 4th 428, 511 (2012), as modified on denial of reh'g, ("[I]n a typical civil matter, when a complaint shows on its face ... that a pleaded cause of action is apparently barred by the statute of limitations, plaintiff must plead facts which show an excuse, tolling, or other basis for avoiding the statutory bar.") (citations and quotations omitted).
Similarly, the party asserting equitable tolling has the burden to show that the doctrine applies. See In re Marriage of Zimmerman, 183 Cal. App. 4th 900, 912 (2010); Kleinhammer v. City of Paso Robles, 385 F. App'x 642, 643 (9th Cir. 2010) (holding that a § 1983 plaintiff has the "burden to plead facts which would give rise to equitable tolling"). C. Leave to Amend.
If the Court finds that a complaint should be dismissed for failure to state a claim, the Court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that "[a] pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment"). However, if, after careful consideration, it is clear that a complaint cannot be cured by amendment, the Court may dismiss without leave to amend. Cato, 70 F.3d at 1006; see, e.g., Chaset v. Fleer/Skybox Int'l, 300 F.3d 1083, 1088 (9th Cir. 2002) (holding that "there is no need to prolong the litigation by permitting further amendment" where the "basic flaw" in the pleading cannot be cured by amendment); Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) (holding that "[b]ecause any amendment would be futile, there was no need to prolong the litigation by permitting further amendment").
In determining whether leave to amend would be futile, courts can consider whether the plaintiff has suggested or proffered facts that would meet the pleading requirements. See, e.g., Fischer v. Vantive Corp., 283 F.3d 1079, 1098 (9th Cir. 2002) ("When given the opportunity, the plaintiffs declined to say what additional facts they might plead if given the chance to amend. Such a failure is a strong indication that the plaintiffs have no additional facts to plead."). "The district court's discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint." Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990).
VI.
FEDERAL CONSPIRACY CLAIMS
Plaintiff alleges that the eight Officer Defendants are liable for "conspiracy in violation of § 1985." (Dkt. 130 at 25.) A. Elements of Civil Liability under § 1985.
42 U.S.C. § 1985 is divided into three subsections. Subsection (1) addresses conspiracies to prevent federal officers from discharging their official duties. Subsection (2) addresses conspiracies to intimidate parties, witnesses, or jurors in federal court proceedings. Plaintiff alleges no facts suggesting that he intended to sue Defendants under these subsections, so the Court interprets his § 1985 claim as alleged under subsection (3).
Section 1985(3) proscribes conspiracies to interfere with certain civil rights. "To state a cause of action under § 1985(3), a complaint must allege (1) a conspiracy, (2) to deprive any person or a class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, (3) an act by one of the conspirators in furtherance of the conspiracy, and (4) a personal injury, property damage or a deprivation of any right or privilege of a citizen of the United States." Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980). "To bring a cause of action successfully under § 1985(3), a plaintiff must demonstrate a deprivation of a right motivated by 'some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1056 (9th Cir. 2002) (quoting Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992)).
Plaintiff's conclusory allegation is that the Defendant Officers conspired together to wrongfully search his house and arrest him on multiple occasions. He does not allege that they did so because of his membership in any protected class. To the contrary, he alleges that this happened because it was the LAPD's "policy or custom" to believe complaints by his neighbors. (Dkt. 130 at 8 ["It had become [a] policy or custom for [LAPD] to search my home after a complaint from a neighbor, without [a] warrant."].) He alleges that neighbors complained about "activity in front of [his] house, not related to [him], that [he] got blamed for." (Id.) Once, the LAPD came to his home because a neighbor had complained of hearing gunshots that Plaintiff believes were fireworks. (Id.) Another time, officers arrested Plaintiff because they believed Jordan Loth's version of events. (Id. at 13-16.) On a third occasion, LAPD officers came to Plaintiff's home to investigate a neighbor's complaint that Plaintiff was stealing electricity before contacting the property manager to learn about Plaintiff's payment of $200/month. (Id. at 19, 24.)
Plaintiff also alleges that the City refused to give him a permit for a novel "roofing solution" because "[i]t was a conspiracy." (Id. at 18.) He describes the roofing solution as a "flexible translucent corrugated polycarbonate" structure that was "arc shaped" and captured, stored, and filtered water from precipitation. (Id. at 17.) He admits that he built this structure without a permit; when the City ordered him to return the roof to its original condition, Plaintiff refused because the original roof leaked. (Id. at 18.)
These allegations demonstrate that the Officer Defendants and City staff had motives other than class-based animus during their interactions with Plaintiff. These allegations do not demonstrate the existence of a police conspiracy to violate Plaintiff's civil rights actionable under § 1985(3). Because further leave to amend this claim would be futile, the Court recommends that Plaintiff's § 1985 conspiracy claims be dismissed with prejudice.
VII.
STATUTE OF LIMITATIONS
In Section VII, the Court considers (1) which of Plaintiff's remaining federal claims are barred by the statute of limitations and (2) whether Plaintiff has alleged facts which, if accepted as true, would entitle him to equitable estoppel or sufficient tolling to render his claims timely. A. Statute of Limitations and Claim Accrual.
1. Relevant Law.
A claim may be dismissed on the ground that it is barred by the statute of limitations only when "the running of the statute is apparent on the face of the complaint." Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (citation omitted).
"Section 1983 does not contain its own statute of limitations." Butler v. Nat'l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014). The statute of limitations for § 1983 claims is provided by applicable state law for personal injury torts. Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 711 (9th Cir. 1993). California's statute of limitations for personal injury claims is two years. Cal. Code Civ. P. § 335.1. Thus, in California, § 1983 claims are subject to a two-year statute of limitations. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004).
"Although state law determines the length of the limitations period, federal law determines when a civil rights claim accrues." Morales v. City of Los Angeles, 214 F.3d 1151, 1153-54 (9th Cir. 2000). A civil rights claim accrues under federal law "when the plaintiff knows or has reason to know of the injury that is the basis of the action." Belanus v. Clark, 796 F.3d 1021, 1025 (9th Cir. 2015). "A cause of action accrues even if 'the full extent of the injury is not then known.'" Gregg v. Dep't of Public Safety, 870 F.3d 883, 887 (9th Cir. 2017) (quoting Wallace v. Kato, 549 U.S. 384, 391 (2007)). "The accrual of a § 1983 claim depends upon the substantive basis of the claim." Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998).
For each of Plaintiff's federal claims, the law determining the accrual date is as follows:
• Warrantless Search and False Arrest: A § 1983 claim challenging a warrantless search or seizure generally accrues on the date of the search. Matthews v. Macanas, 990 F.2d 467, 469 (9th Cir. 1993). Under older case law, accrual of a Fourth Amendment claim was delayed if the search or seizure gave rise to criminal charges. Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000) ("[A] § 1983 action alleging illegal search and seizure of evidence upon which criminal charges are based does not accrue until the criminal charges have been dismissed or the conviction has been overturned.") Newer Ninth Circuit precedent, however, declares this case bad law. Mills v. City of Covina, 921 F.3d 1161, 1166 n.1 (9th Cir. 2019) (holding that all of arrestee's claims except malicious prosecution accrued before favorable termination).
• Excessive Force: A claim that law enforcement officers used excessive force during an arrest accrues on the date of the arrest. See, e.g., Cabrera v. City of Huntington Park, 159 F.3d 374, 381 (9th Cir. 1998).
• False Imprisonment: Since a false imprisonment claim "consists of detention without legal process, a false imprisonment [claim accrues] once the victim becomes held pursuant to such process - when, for example, he is bound over by a magistrate or arraigned on charges." Wallace, 549 U.S. at 389; West v. City of Mesa, 594 F. App'x 923, 924 (9th Cir. 2014) (noting plaintiff's false imprisonment claim accrued "when his detention was validated by legal process"). In contrast, detention accompanied by "wrongful institution of legal process" is remediable as malicious prosecution. Wallace, 549 U.S. at 390.
• Malicious Prosecution: A claim for malicious prosecution does not accrue until proceedings are terminated in favor of the accused, because that is an element of the cause of action. Cline v. Brusett, 661 F.2d 108, 110 (9th Cir. 1981).
• Due Process: A claim that state actors have taken or destroyed private property without due process accrues when the plaintiff is aware of the property's confiscation or destruction, even if he/she does not know who inflicted the harm. Clavette v. Sweeney, 132 F. Supp. 2d 864, 875 (D. Or. 2001) (citing Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987)).
In this section, the Court assumes (without deciding) that all the claims in Plaintiff's 7AC relate back to his initial Complaint. See Fed. R. Civ. P. 15(c) (A new claim relates back if it "arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading[.]"); see also Butler, 766 F.3d at 1200 ("Rule 15(c)(1) incorporates the relation back rules of the law of a state when that state's law provides the applicable statute of limitations and is more lenient.").
a. The August 1, 2011 Incident.
Plaintiff alleges that Defendants Wright, Sowell, Sur, and Ruiz entered his house without a warrant and arrested him on August 1, 2011. (Dkt. 130 at 14-15.) Plaintiff was subsequently tried and acquitted of assault with a deadly weapon and battery charges. (Id. at 14.) The Court takes judicial notice of online records maintained by the Los Angeles County Superior Court reflecting that this criminal case (case no. SA078335) has a "disposition date" of "01/20/2012." See http://www.lacourt.org/criminalcasesummary/ui/.
Judicial notice under Federal Rule of Evidence 201 permits a court to notice an adjudicative fact if it is "not subject to reasonable dispute[.]" Fed. R. Evid. 201(b). A fact is "not subject to reasonable dispute" if it is "generally known" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(1)-(2).
Plaintiff's federal claims arising out of the August 1, 2011 incident have the following accrual dates:
• Excessive Force and False Arrest: These claims accrued on August 1, 2011, the date when Defendants allegedly used excessive force to arrest him.
• Warrantless Search: Plaintiff could have pursued this claim before the resolution of his assault charges, so this claim also accrued on August 1, 2011.
• False Imprisonment: The 7AC does not allege when Plaintiff was arraigned and released on bail. In an earlier complaint, however, Plaintiff alleged that he was "held on bail in jail for three weeks until he was able to pay the bail bondsman $10,000." (Dkt. 25 at 1.) Thus, this claim accrued, at the latest, on August 22, 2011.
• Malicious Prosecution: Plaintiff could not have pursued this claim until his assault trial ended favorably. It therefore accrued on January 20, 2012.
b. The June 5, 2012 Incident.
Plaintiff alleges that on June 5, 2012, Defendants Thusing, Delatori, Mims, and Grimes entered his home without a warrant and arrested him. (Dkt. 130 at 21-22.) Plaintiff was charged with the cultivation of marijuana and returned home 12 hours after posting bail. (Id. at 22-23; Dkt. 25 at 1.) The Court takes judicial notice of online records maintained by the Los Angeles County Superior Court reflecting that this criminal case (case no. 2IG06281) has a "disposition date" of "01/18/2013." See http://www.lacourt.org/criminalcasesummary/ui/.
• False Arrest, Warrantless Search, and Excessive Force: These claims accrued on June 5, 2012, the date when Defendants allegedly used excessive force to arrest Plaintiff and search his house.
• False Imprisonment: Since Plaintiff alleges that he was in custody for 12 hours before posting bail, this claim accrued, at the latest, on June 6, 2012.
• Malicious Prosecution: Plaintiff could not have pursued this claim until his prosecution for cultivating marijuana ended favorably. It therefore accrued on January 18, 2013.
• Due Process: This claim accrued, at the latest, when Plaintiff returned home on June 6, 2012, and learned that the police had confiscated 64 marijuana plants.
c. The July 4, 2012 Incident.
• Warrantless Search and Excessive Force: This claim accrued on June 5, 2012, the date of the allegedly illegal search by means of excessive force.
d. The August 4, 2012 Incident.
• Warrantless Search and Excessive Force: This claim accrued on August 4, 2012, the date of the allegedly illegal search by means of excessive force.
• Due Process: This claim also accrued on August 4, 2012, when Plaintiff saw that his unpermitted roof was destroyed. B. Tolling.
A federal court must give effect to a state's tolling provisions to the extent that they are not inconsistent with federal law. Hardin v. Straub, 490 U.S. 536, 542-44 (1989).
1. Statutory Tolling.
Two California tolling provisions potentially apply here: (a) for claims based on the conduct of a peace officer related to a pending criminal charge, and (b) for imprisonment under a state conviction. The limitations period, however, cannot be "extended by the connection of one disability with another[.]" Rose v. Petaluma & S.R. Ry. Co., 64 Cal. App. 213, 217 (1923), disapproved on other grounds in Harris v. Industrial Accident Comm'n of Cal., 204 Cal. 432, 438 (1928); see also Pedroza v. Pham, No. 12-01341, 2014 WL 1389426 at *2-4, 2012 U.S. Dist. LEXIS 50666 at *6-10 (N.D. Cal. Apr. 9, 2014) ("Separate disabilities, each worthy of tolling, occurring simultaneously cannot be tacked together to toll the statute of limitations.") (collecting cases); Porter v. Los Angeles Cnty., No. 15-5646-PA-AJW, 2016 WL 8732091 at *5-6, 2016 U.S. Dist. LEXIS 155161 at *11-17 (C.D. Cal. Aug 9, 2016) (same), adopted 2016 WL 8738109, 2016 U.S. Dist. LEXIS 155144.
a. Tolling for Police Conduct Related to Pending Charges.
California law recognizes:
No person charged by indictment, information, complaint, or other accusatory pleading charging a criminal offense may bring a civil action for money or damages against a peace officer or the public entity employing a peace officer based upon conduct of the peace officer relating to the offense for which the accused is charged, including an act or omission in investigating or reporting the offense or arresting or detaining the accused, while the charges against the accused are pending before a superior court.
Any applicable statute of limitations for filing and prosecuting these actions shall be tolled during the period that the charges are pending before a superior court.Cal. Gov't Code § 945.3. Although the first paragraph, barring the filing of an action, is not applicable to claims brought in federal court pursuant to § 1983, the second paragraph's tolling provision does apply. See Harding v. Galceran, 889 F.2d 906, 908 (9th Cir. 1989). "Under this section, 'criminal charges are "pending" until the date of judgment'" or other final disposition. Torres v. City of Santa Ana, 108 F.3d 224, 226 (9th Cir. 1997) (quoting McAlpine v. Superior Court, 209 Cal. App. 3d 1, 3 (1989)).
Plaintiff's claims arising out of his two arrests implicate police conduct relating to his arrests. For those claims, the Court will toll the limitations period from the accrual date until the disposition date of criminal charges. This means that the accrual of all Plaintiff's federal claims arising out of the August 1, 2011 incident was tolled until January 20, 2012, and the accrual of all Plaintiff's federal claims arising out of the June 5, 2012 incident was tolled until January 18, 2013.
b. Tolling for Imprisonment.
California recognizes imprisonment as a disability which tolls the statute of limitations, "[i]f, a person ... is, at the time the cause of action accrued, imprisoned on a criminal charge ...." Cal. Code Civ. P. § 352.1(a); see also Cal. Code Civ. P. § 357 (for tolling to apply, disability must exist when claim accrues). Under California law, incarceration allows a plaintiff to toll the statute of limitations for up to two years. Cal. Code Civ. P. § 352.1(a). Tolling ends, and the statute of limitations begins to run immediately after the prisoner's incarceration ends or the two-year maximum tolling period ends, whichever occurs first. See Cabrera, 159 F.3d at 378-79.
Application of this tolling statute has several important limitations. First, section 352.1 does not apply to inmates in pretrial custody. See Austin v. Medicis, 21 Cal. App. 5th 577, 596-97 (2018) (finding that the Legislature did not "expand tolling to local inmates in pretrial custody" and holding "a would-be plaintiff is 'imprisoned on a criminal charge' within the meaning of section 352.1 if he or she is serving a term of imprisonment in the state prison").
Second, as mentioned above, the plaintiff must be under the disability of imprisonment when his cause of action accrues. See Cal. Code Civ. P. § 352.1(a); see also Cal. Code Civ. P. § 357 (for tolling to apply, disability must exist when claim accrues).
Third, tolling ends upon release from custody, and it cannot be revived by a new period of incarceration. As explained by the Ninth Circuit, the "actual, uninterrupted incarceration is the touchstone" for assessing tolling for the disability of imprisonment under California law. Elliott v. City of Union City, 25 F.3d 800, 803 (9th Cir. 1994) (quoting Bianchi v. Bellingham Police Dep't, 909 F.2d 1316, 1318 (9th Cir. 1990)). Thus, if the statute of limitations starts to run again because the prisoner is released, tolling will not be reinstated by subsequent incarceration. See Boag v. Chief of Police, 669 F.2d 587, 589 (9th Cir. 1982) (construing Oregon tolling provision similar to California's and holding tolling ceased upon prisoner's release on parole), cert. denied, 459 U.S. 849 (1982).
Finally, California tolling rules do not allow tacking of different tolling periods potentially awarded for different reasons. Rose v. Petaluma & S. R. R. Co., 64 Cal. App. 213, 217 (1923). Thus Plaintiff may be entitled to tolling under Cal. Gov't Code section 945.3 or under Cal Code Civ. P. section 352.1, but he cannot apply both kinds of tolling to the same claim.
In his opposition, Plaintiff argues that he is entitled to statutory tolling pursuant to section 352.1, as follows:
[T]here is approximately one year of prisoner tolling in between 2011 and 2015 including a 4 month 20 day sentence. Also approximately 8 separate arrests resulting in two trial acquittals and 6 dismissals,
[Plaintiff] also spent close to six months fighting two trials and at least a total of another two years fighting all the cases that were dismissed.(Dkt. 154 at 3.)
This argument fails to consider the three limitations on prisoner tolling discussed above. The relevant inquiries are (1) whether Plaintiff was incarcerated when his claims accrued, and if so, (2) whether his custody was pursuant to a conviction. If the answer to either question is "no," then section 352.1 tolling is not available. Moreover, even if Plaintiff were incarcerated multiple times between or after the four incidents described in the 7AC, those periods of incarceration could not combine to toll the limitations period; rather, tolling would cease upon Plaintiff's first, post-accrual release from custody.
The Court therefore considers Plaintiff's custody-related allegations at the time of each accrual date, as follows:
| Accrual Date | Custody-Related Allegations |
| August 1, 2011 | Plaintiff alleges that he was at home until he was arrested forassaulting Mr. Loth and remained in pre-trial custody until hecould post bail about three weeks later. (Dkt. 25 at 1.) |
| August 22, 2011 | Plaintiff alleges that he was released from pre-trial custodyafter posting bail. (Id.) |
|---|---|
| January 20, 2012 | Plaintiff alleges that he was out of custody on bail whileawaiting trial in the assault case involving Mr. Loth, and ajury acquitted him, presumably on January 20, 2012. (Dkt.130 at 14.) |
| June 5, 2012 | Plaintiff alleges that he was at home until he was arrested forcultivating marijuana and remained in custody for about 12hours until he posted bail. (Dkt. 25 at 1.) |
| June 6, 2012 | Plaintiff alleges that he was released from pre-trial custodyafter posting bail. (Id.) |
| July 4, 2012 | Plaintiff alleges that he was at home when he encountered theLAPD, and he was not arrested. (Dkt. 130 at 7.) |
| August 4, 2012 | Plaintiff alleges that he was at home when he encountered theLAPD, and he was not arrested. (Id. at 9.) |
| January 18, 2012 | Plaintiff alleges that he was not in custody on January 13,2013, when his daughter was born. (Id. at 6.) He learned thatthe charges against him for cultivating marijuana had beendropped when he "went to court to answer the charge" and"the case was not on calendar[.]" (Id. at 24.) This allegation |
| suggests that Plaintiff was not in custody when hisprosecution for cultivating marijuana was resolved. |
Thus, Plaintiff alleges facts showing that he was not in custody pursuant to a criminal conviction on any of the days when his various federal claims accrued.
Plaintiff filed a habeas petition in this Court (case no. 2:18-cv-09636-CAS-KES) contesting his 2014 conviction in San Diego and his 2018 convictions in Los Angeles. In that habeas case, Plaintiff alleged that he served 158 in jail after pleading guilty to battery with serious bodily injury and first degree burglary in San Diego in 2014; after his release, his probation was transferred to Los Angeles, and his 2018 convictions arose from a nolo contendere plea to probation violations. (See 2:18-cv-09636-CAS-KES, Dkt. 1.) Plaintiff discusses these convictions in the 7AC. (Dkt. 130 at 11 [explaining how he "borrowed" his ex-girlfriend's car in San Diego and she reported it stolen, spent four months in pre-trial detention, and accepted a plea deal] and 12 [explaining that he was unjustly arrested for failing to report to his probation officer, because the officer had instructed him not to report].) Because these events happened in 2014 and subsequent years (i.e., after all of the potential accrual dates), they cannot give rise to statutory tolling under section 352.1
The California Court of Appeal recently affirmed these convictions. See People v. Ucci, No. B289352, 2019 WL 1275065, 2019 Cal. App. Unpub. LEXIS 1885 (Mar. 20, 2019).
In sum, Plaintiff has alleged facts showing that he is not entitled to any statutory tolling based on his various periods of incarceration.
2. Equitable Tolling.
Plaintiff filed this lawsuit on October 27, 2015. (Dkt. 1.) He was not in custody when he filed it, so he does not benefit from the prison mailbox rule. For the listed accrual/tolled dates, Plaintiff must plead facts sufficient to show equitable tolling for the following periods:
The "accrual/tolled" dates refer to the Court's earlier statutory tolling analysis concluding that the accrual of all Plaintiff's federal claims arising out of the August 1, 2011 incident should be tolled until January 20, 2012, and the accrual of all Plaintiff's federal claims arising out of the June 5, 2012 incident should be tolled until January 18, 2013.
| Accrual/Tolled Date | SOL Expiration | Tolling Needed |
| January 20, 2012 | January 20, 2014 | 646 days |
| July 4, 2012 | July 4, 2014 | 481 days |
| August 4, 2012 | August 4, 2014 | 450 days |
| January 18, 2013 | January 18, 2015 | 283 days |
a. Relevant Law.
Equitable tolling focuses on "whether there was excusable delay by the plaintiff[.]" Johnson v. Henderson, 314 F.3d 409, 414 (9th Cir. 2002). The purpose of the equitable tolling doctrine "is to soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court." Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1137 (9th Cir. 2001) (en banc) (citation omitted). California courts therefore apply equitable tolling "to prevent the unjust technical forfeiture of causes of action, where the defendant would suffer no prejudice." Wade v. Ratella, 407 F. Supp. 2d 1196, 1204 (S.D. Cal. 2005) (citation omitted).
Federal courts apply California's equitable tolling rules in § 1983 actions. See Azer v. Connell, 306 F.3d 930, 936 (9th Cir. 2002). Under California law, equitable tolling applies when "possessing several legal remedies [the plaintiff], reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage." Butler, 766 F.3d at 1204 (quoting Addison v. State, 21 Cal. 3d 313, 317 (1978)). To show entitlement to equitable tolling under California law, "a plaintiff must establish '[1] timely notice, and [2] lack of prejudice, to the defendant, and [3] reasonable and good faith conduct on the part of the plaintiff.'" Id. (quoting McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 111 (2008)). "If a plaintiff's first claim and second claim concern different wrongs, however, equitable tolling is not available ...." Lucchesi v. Bar-O Boys Ranch, 353 F.3d 691, 695 (9th Cir. 2003).
"The equitable tolling doctrine generally requires a showing that the plaintiff is seeking an alternate remedy in an established procedural context." Acuna v. San Diego Gas & Elec. Co., 217 Cal. App. 4th 1402, 1416 (2013). For example, filing a timely tort claim with a public entity under the CTCA, Cal. Gov't Code §§ 810, et seq., "constitutes a good faith pursuit of a legal remedy designed to lessen the extent of a plaintiff's damages." Lucchesi, 353 F.3d at 696; Beaudoin v. Schlachter, 672 F. App'x 706 (9th Cir. 2016) (requiring timely filing); but see Ahearn v. Redondo Beach Police Dep't, No. CV 07-1452-AHS-RNB, 2008 WL 638354 at *6 (C.D. Cal. Mar. 5, 2008) (finding that filing a personnel complaint against police officers does not toll the limitations period and comparing cases where filing a written tort claim tolls the limitations period, but informal negotiation does not).
Federal equitable tolling may also apply where it is not inconsistent with the underlying legislative purpose. Donoghue v. Cnty. of Orange, 848 F.2d 926, 930 n.3 (9th Cir. 1987). Under federal law, equitable tolling "focuses on 'whether there was excusable delay by the plaintiff: If a reasonable plaintiff would not have known of the existence of a possible claim within the limitations period, then equitable tolling will serve to extend the statute of limitations for filing suit until the plaintiff can gather what information he needs.'" Lukovsky v. City & Cnty. of S.F., 535 F.3d 1044, 1051 (9th Cir. 2008) (quoting Johnson v. Henderson, 314 F.3d 409, 414 (9th Cir. 2002)).
b. Plaintiff's IAG Complaint Does Not Create Equitable Tolling.
In the 7AC, Plaintiff alleges:
LAPD instructed [Plaintiff] to file a complaint with the SIU/IA
[Special Investigative Unit of Internal Affairs] LAPD. After a one year investigation, the LAPD dismissed the complaint and instructed Plaintiff to file with the Inspector General's Office. For a period of approximately 18 months, the Plaintiff did not file the lawsuit because he was instructed to file with the public entities LAPD SIU/IA then IG which caused [Plaintiff] to delay filing the lawsuit.(Dkt. 130 at 1.) The 7AC also alleges that some unspecified time "[a]fter the acquittal of the second trial in 2013, [Plaintiff] filed a complaint with the LAPD Special Investigative Unit of Internal Affairs." (Id. at 10.) One year later, his claims were found "unfounded," and he "appealed" to the Inspector General's Office. (Id.) He "met with Special Investigator David Andrews for interview" and "explained everything." (Id.) "Approximately a year later," Mr. Andrews informed Plaintiff that his claims were "unfounded." (Id.)
In considering the three relevant factors at the pleading stage, the Court assumes that Plaintiff's IAG Complaint included all of the incidents described in the 7AC and gave Defendants notice of his claims. The third factor, however, is fatal to Plaintiff's aspirations to obtain equitable tolling. Plaintiff cannot allege facts showing that he acted reasonably when he delayed filing suit from January 2013 (i.e., his latest accrual date) until October 2015 because he was ostensibly waiting for the LAPD to investigate his IAG Complaint.
Multiple reasons support this conclusion. First, the gravamen of Plaintiff's allegations is that the LAPD was out to get him. He alleges that by 2012, it was the LAPD's "custom" to search his Venice home without a warrant in response to neighbors' complaints. (Id. at 8.) He alleges that all the police officers with whom he interacted were indifferent to his rights and conspired to harm him. (Id. at 15, 18.) He alleges that officers wanted him out of town or dead. (Id. at 18 [describing verbal threat to "get out of Venice"], 21 [describing threat to shoot him].) According to Plaintiff, LAPD officers repeatedly lied, including lying in police reports and lying about Plaintiff's probation record. (Id. at 19, 23, 27.) Plaintiff contends that the LAPD failed to take his robbery report seriously. (Id. at 23-24.) Plaintiff seeks $99 million for the loss of "everything I love, everything I worked for my whole life taken under the color of law." (Id. at 28.) If Plaintiff believes any of these allegations, then he cannot simultaneously claim that he expected the LAPD's internal affairs group to resolve his complaints favorably. When the LAPD told him that his complaints were "unfounded," he alleges that he was "dumbfounded," but he still elected to spend another year pursuing an appeal to the LAPD's Inspector General's Office rather than promptly filing suit. (Dkt. 130 at 10.)
These allegations sufficiently distinguish this case from Bey v. City of Oakland, No. 14-cv-01626, 2016 WL 1639372, 2016 U.S. Dist. LEXIS 55627 (N.D. Cal. Apr. 26, 2016) - the only case identified wherein equitable tolling arose from a police internal affairs investigation. The Bey plaintiffs filed a 2007 internal affairs complaint alleging that the Oakland Police Department ("OPD") had failed to investigate serious crimes targeting plaintiffs' family due to animus against Black Muslims. Bey, 2016 U.S. Dist. LEXIS 55627 at *5-7. In 2013, they filed another internal affairs complaint arguing that the OPD had mishandled their 2007 complaint, this one addressed to a "compliance director" appointed pursuant to the settlement of federal civil rights litigation against the OPD. Id. at 11-12. They filed suit against the OPD in 2014, including a claim for mishandling their 2007 internal affairs complaint. Id. at 18-19. Plaintiffs were entitled to equitable tolling while their 2013 internal affairs complaint was pending, because they satisfied the third prong of the test, i.e., they reasonably expected that the OPD, once "under federal supervision, would re-investigate and make findings sustaining their allegations[.]" Id. at 29. They had no reason to think that the 2013 investigation would be insufficient (i.e., that it would violate the procedural requirements imposed by the earlier settlement) until they received the decision letter, after which they promptly filed suit. Id. at 28-29. Here, in contrast, no federal settlement governs how the LAPD must investigate internal affairs complaints, and Plaintiff had no basis to expect anyone outside the LAPD would investigate his IAG Complaint.
Second, in pursuing his IAG Complaint, Plaintiff was not pursuing an administrative remedy that was a legal prerequisite to filing suit, like exhaustion under the Prison Litigation Reform Act or a written tort claim under the CTCA. Plaintiff acted unreasonably by spending nearly two years exhausting an optional internal affairs complaint procedure while letting his claims grow stale. See Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 466 (1975) (declining to grant equitable tolling for § 1981 claims while plaintiff exhausted administrative remedies only required to pursue related Title VII claims, because "no policy reason ... excuses petitioner's failure to take the minimal steps necessary to preserve each claim independently"). Even if Plaintiff mistakenly believed that he was legally required to exhaust his IAG Complaint, his mistaken beliefs about legal requirements would not justify equitable tolling. Lopez v. Cate, No. 11-0806, 2011 WL 2936185 at *8, 2011 U.S. Dist. LEXIS 77758 at *28 (E.D. Cal. July 15, 2011) (holding that "ignorance of the law does not entitle [a] plaintiff to equitable tolling" in a § 1983 case).
Plaintiff's 2014 telephonic IAG Complaint was not a CTCA claim. CTCA claims must be in writing. Cal. Gov. Code §§ 910, 910.2; Avalos v. Hutchinson, No. 19-00049-RGK-RAO, 2019 WL 4316250 at *5, 2019 U.S. Dist. LEXIS 163926 at *13 (C.D. Cal. Mar. 13, 2019) (citing Mangold v. Cal. Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995) (holding that a plaintiff must present their claim in writing before bringing suit)). Furthermore, a CTCA claim for personal injury generally must be filed within six months of the incident giving rise to the claim. Cal. Gov. Code §§ 911.2, 945.4.
Third, no party has cited (and the Court's research has not located) any case awarding equitable tolling based on a telephonic complaint. To give telephonic complaints (which may not be received, recorded, understood, or preserved by local government agencies) the legal capacity to create equitable tolling, without requiring any follow-up by the caller, would impose a burden on local government agencies inconsistent with the equitable considerations underlying equitable tolling. In many cases, it would impede (if not preclude) the accurate calculation of tolling periods, a result that promotes neither equity nor the "just, speedy, and inexpensive determination of every action[.]" Fed. R. Civ. P. 1.
Fourth, Plaintiff did not need information from the LAPD to pursue his claims. He was present at every incident and could describe what happened from his memory. Indeed, he presumably had already done so in his IAG Complaint. Even if he did not remember the dates or officers' names, he could have filed allegations against Doe Officers, as he ultimately did. See Frierson v. CCA Corp., No. CIV-12-1316-W, 2014 U.S. Dist. LEXIS 3545, 2013 U.S. Dist. LEXIS 183268 at *8-9 (W.D. Okla. Nov. 5, 2013) (denying equitable tolling during a police internal affairs investigation because "Plaintiff already knew the facts underlying the two relevant events" allegedly involving excessive force).
For all these reasons, Plaintiff has not met his burden of pleading facts showing entitlement to equitable tolling. Further leave to amend his allegations would be futile.
c. Plaintiff Made His IAG Complaint More than Two Years after the August 1, 2011 Incident.
Even assuming arguendo that Plaintiff's IAG Complaint could give rise to equitable tolling, he would have needed to register the complaint before January 20, 2014 (i.e., before expiration of the two-year limitation period applicable to the § 1983 claims arising from the August 1, 2011 incident) to obtain tolling for those claims. Plaintiff does not allege when he made the IAG Complaint, other than saying that it was sometime after the charges for marijuana cultivation were dropped. (Dkt. 130 at 10.) Plaintiff also alleges that he could learn the date if permitted to do discovery. (Dkt. 130 at 30 [objecting to not being permitted to conduct discovery and requesting LAPD records].)
To that end, the Court asked Defendants for a proffer of what Plaintiff would learn if he conducted discovery concerning when he made his IAG Complaint and was granted leave to file an Eighth Amended Complaint alleging that date. (Dkt. 158.) Defendants filed a supplemental brief with a "Complaint Review Report" indicating that Plaintiff called in his IAG Complaint on April 25, 2014. (Dkt. 159-1.)
Plaintiff filed an opposition to Defendants' supplemental brief, but he did not dispute any dates reflected in the LAPD's documentation. Rather, he argues that the LAPD should be compelled to produce the recording of his call and its entire file related to its investigation of his IAG Complaint. (Dkt. 160 at 1.) Plaintiff also filed a "Response/Objection" to Defendants' supplemental briefing making similar requests. (Dkt. 165 at 2.)
Throughout this R&R, the Court assumes that the call included all the incidents alleged in the 7AC, making the precise content of the call irrelevant to Defendants' legal arguments.
Plaintiff has not pled facts showing that he could receive equitable tolling based on his IAG Complaint that would save his § 1983 claims based on the August 11, 2011 incident. Despite opportunities to do so, he has not alleged that he made his IAG Complaint before January 20, 2014, the date when the limitations period expired absent equitable tolling. Based on the parties' proffers, even if given leave to conduct discovery and amend, Plaintiff could not truthfully allege that he made his IAG Complaint before April 25, 2014. C. Equitable Estoppel.
In objections to the R&R, Plaintiff asserts for the first time that the date on the Complaint Review Report "looks tampered with" and he is "adamant" that he placed the call sometime in 2013. (Dkt. 168 at 1-2.) Ultimately, the date of the IAG Complaint is irrelevant, because it does not give rise to tolling.
1. Relevant Law.
Under federal law, a plaintiff can try to establish equitable estoppel (often referred to as "fraudulent concealment") by showing the following elements: "(1) knowledge of the true facts by the party to be estopped, (2) intent to induce reliance or actions giving rise to a belief in that intent, (3) ignorance of the true facts by the relying party, and (4) detrimental reliance." Estate of Amaro v. City of Oakland, 653 F.3d 808, 813-15 (9th Cir. 2011) (quoting Bolt v. United States, 944 F.2d 603, 609 (9th Cir. 1991) (holding that equitable estoppel applied when a plaintiff "is dissuaded from bringing [a] claim by affirmative misrepresentations and stonewalling by the police"). In other words, equitable estoppel focuses on the defendant's actions to prevent a plaintiff from filing suit. Socop-Gonzalez v. INS, 272 F.3d 1176, 1184 (9th Cir. 2001).
2. Analysis.
Plaintiff alleges that someone instructed him to pursue an internal affairs complaint. (Dkt. 130 at 1.) Plaintiff further alleges that the LAPD instructed him to appeal the matter to the Inspector General's Office. (Id.) In his opposition, Plaintiff argues: "Equitable estoppel simply means that the statute of limitations stops from becoming violated because of the complaint being filed as instructed by the LAPD to the plaintiff. Through them first. Essentially the fact that I was told to file the complaint with the LAPD 1st." (Dkt. 154 at 2.)
Plaintiff does not allege that anyone working for the City or the LAPD told him that an internal affairs complaint was a prerequisite to filing a lawsuit or otherwise discouraged him from filing a lawsuit. Further, Plaintiff's assertion that he was "instructed" to pursue an internal affairs complaint does not amount to "affirmative misrepresentations and stonewalling by the police." See Amaro, 653 F.3d at 815. Plaintiff does not allege any fraudulent concealment. In fact, Plaintiff explicitly alleges, "[i]t is not necessary that the LAPD have acted in bad faith or intended to mislead Mr. Ucci[,]" apparently indicating that he makes no such factual allegation. (Dkt. 130 at 1.)
Plaintiff's allegation that he was instructed (by unspecified means and at an unspecified time) to call the LAPD's telephone hotline and pursue an internal affairs complaint is insufficient to estop Defendants from relying on a limitations defense. Despite many opportunities to do so, Plaintiff has not alleged that any LAPD officers instructed him not to file suit, offered to settle his claims, or gave him false information about his legal rights. Even if they had, given the nature of Plaintiff's allegations (i.e., that the LAPD was conspiring against him), he could not demonstrate reasonable, detrimental reliance on such representations.
In sum, Plaintiff has not alleged any facts giving rise to equitable estoppel, and further leave to amend would be futile.
VIII.
OTHER PLEADING DEFECTS
"To state a claim under § 1983, a plaintiff [1] must allege the violation of a right secured by the Constitution and laws of the United States, and [2] must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). Even if they were not time-barred, the § 1983 claims discussed in this section would fail for other reasons. A. The August 1 , 2011 Incident.
False Arrest and False Imprisonment: After his arrest, Plaintiff was tried on charges of assaulting Mr. Loth and acquitted. Where a prosecutor has filed a criminal complaint, a rebuttable presumption arises that the prosecutor "'exercised independent judgment in determining that probable cause ... exist[ed],' thereby breaking the 'chain of causation between an arrest and prosecution' and immunizing 'investigating officers from ... damages suffered' after the complaint was filed." Beck v. City of Upland, 527 F.3d 853, 862 (9th Cir. 2008) (alteration in original) (citing Smiddy v. Varney, 665 F.2d 261, 266-67 (9th Cir. 1981)). Plaintiff therefore fails to plead facts showing that the Defendant Officers' decision to arrest him was without probable cause or caused his subsequent imprisonment. "The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted -- indeed, for every suspect released." Baker v. McCollan, 443 U.S. 137, 145 (1979).
Malicious Prosecution: "In order to prevail on a § 1983 claim of malicious prosecution, a plaintiff 'must show that the defendants prosecuted [him] with malice and without probable cause, and that they did so for the purpose of denying [him] equal protection or another specific constitutional right.'" Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (alterations in original) (quoting Freeman, 68 F.3d at 1189). Plaintiff fails to allege that Defendants arrested him on charges of assaulting Mr. Loth for the purpose of depriving him of any constitutional right.
First Amendment: The 7AC alleges that the officers who arrested Plaintiff on charges of assaulting Mr. Loth violated Plaintiff's First Amendment rights. (Dkt. 130 at 26.) Plaintiff's allegations contain nothing suggesting that Plaintiff was arrested due to his religion or his participation in protected expression. Plaintiff fails to state a claim for deprivation of First Amendment rights, whether alleged under § 1983 or the Unruh Act, Cal. Civ. Code §§ 1801, et seq. B. The June 5 , 2012 Incident.
Excessive Force: Plaintiff alleges that the officers initially stood in the doorway of his home. When he asked if they had a warrant, they told him they did not need one because they were investigating electricity theft. (Dkt. 130 at 21.) They entered the house, and some officer told Plaintiff to "shut up and sit down" and also said, "don't move or I'll shoot you." (Id.) Plaintiff was later handcuffed and arrested. (Id. at 22.) Plaintiff does not allege that any of the Officer Defendants applied physical force to him (beyond handcuffing) or pointed a gun at him. He does not allege that he suffered any physical injury. The only alleged "force" was one verbal threat and handcuffing upon arrest.
This is not enough to allege a claim for excessive force in violation of the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 396 (1989) (holding that "an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it"); see also Newey v. Cty. of Orange, No. CV 18-1118-DOC-KES, 2019 U.S. Dist. LEXIS 9387, 2018 U.S. Dist. LEXIS 219533 at *13 (C.D. Cal. Dec. 10, 2018) (citing Gauf v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (holding that a police officer "shouting . . . is not excessive force as a matter of law")).
Due Process: Plaintiff fails to allege facts demonstrating that the Officer Defendants acted unlawfully when they confiscated his marijuana plants as evidence of his criminal cultivation of marijuana. Plaintiff suggests that the LAPD had a legal duty to return his marijuana plants after the district attorney dismissed the case (Dkt. 1 at 5), but does not allege that he ever filed a motion or requested the return of his plants. "A criminal defendant may bring a nonstatutory motion for return of property seized by warrant or incident to arrest, which was not introduced into evidence but remained in possession of the seizing officer." People v. Hopkins, 171 Cal. App. 4th 305, 308 (2009); see also Cal. Pen. Code §§ 1417.5, 1417.6, 1538.5, 1540 (detailing statutory grounds for return of seized property, requests for return of property, and disposal procedures); People v. Lamonte, 53 Cal. App. 4th 544, 552 (1997) (holding the same when the seized item was never catalogued as an exhibit); City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 387-89 (2007) (finding a motion for return of property appropriate for the return of medical marijuana). This California procedure provided Plaintiff due process for seeking the return of his marijuana. Plaintiff has thus failed to allege facts showing that he was deprived of a valid property right in the confiscated marijuana plants without due process. C. The Falsified Probation Report.
The 7AC alleges that Defendant Mims falsified a probation violation report, leading to Plaintiff's criminal conviction for violating probation. (Id. at 12.) As a remedy, Plaintiff prays to be released from prison immediately. (Id. at 27.)
It is unclear when this occurred, and any claims based on this allegation are not part of the Court's statute of limitations analysis. If the 7AC alleges civil rights claims against Defendant Mims based on the false probation violation report, then those claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff has not overturned his criminal conviction on appeal or through habeas proceedings. See Ucci, 2019 Cal. App. Unpub. LEXIS 1885 (affirming Plaintiff's convictions for various crimes, including probation violations).
IX.
CTCA COMPLIANCE
Under the CTCA, a plaintiff may not maintain an action for money or damages against a public entity unless a written claim has been presented to the public entity and rejected in whole or in part. See Cal. Gov. Code, §§ 905, 905.2, 945.4. "[F]ailure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity." State of California v. Superior Court (Bodde), 32 Cal. 4th 1234, 1239 (2004). Before a cause of action may be stated, a plaintiff must allege either compliance with this procedure or circumstances excusing compliance. Id. Failure to allege compliance provides a basis to dismiss state law claims. Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 627 (9th Cir. 1988).
As state law claims, Plaintiff alleges civil torts and Unruh Act claims. (See Section IV, above.) Civil torts and Unruh Act claims are subject to the CTCA's claim presentment requirements. K.S. v. Fremont Unified Sch. Dist., No. C 06-07218 SI, 2007 WL 915399 at *4-5, 2007 U.S. Dist. LEXIS 24860 at *12-13 (N.D. Cal. Mar. 23, 2007) (citing Gates v. Superior Court, 32 Cal. App. 4th 481, 513 (1995)).
In dismissing the 6AC with leave to amend, the Court instructed Plaintiff to "include factual allegations showing: (1) that he complied with the requirements of the [California Tort Claims] Act by timely presenting his claim to the relevant entity (attaching a copy of any complaints filed and responses received, if available), and/or (2) that Defendants are estopped from asserting that noncompliance with the Act precludes his claims." (Dkt. 114 at 10.)
Plaintiff has not alleged that he presented the City or the LAPD with any sort of written claim, and he would not need to conduct discovery to learn whether or not he did. His sole allegation identifying a pre-suit claim is his allegation that he called in the IAG Complaint. (Dkt. 130 at 1.)
Plaintiff has not alleged facts showing that the IAG Complaint meets the legal requirements of the CTCA, either in its format/content (i.e., being in writing and including basic information prescribed by statute [Cal. Gov. Code §§ 945.4, 910, 910.2]) or its timing (i.e., being presented within 6 months of his alleged injury [Cal. Gov. Code § 911.2]). Plaintiff has not alleged that a public entity made any misrepresentation or concealed a material fact that he relied on to decide not to file a CTCA claim. Nor does the conduct cited by Plaintiff amount to an affirmative act designed to induce him to refrain from complying with the CTCA.
In summary, Plaintiff has failed to allege facts showing compliance with the CTCA's claim presentation requirement, and granting leave to amend yet again would be futile. /// /// /// /// /// ///
IX.
RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Court issue an Order: (1) approving and accepting this Final Report and Recommendation; and (2) dismissing Plaintiff's 7AC with prejudice. DATED: January 07, 2020
/s/_________
KAREN E. SCOTT
United States Magistrate Judge
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals but are subject to the right of any party to timely file objections as provided in the Federal Rules of Civil Procedure and the instructions attached to this Report.