Perez v. San Diego County

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CARLOS PEREZ, Case No.: 20cv2501-CAB-AHG 12 Plaintiff, ORDER REGARDING 13 v. DEFENDANTS’ MOTIONS TO DISMISS FIRST AMENDED 14 SAN DIEGO COUNTY et al., COMPLAINT [Doc. No. 19] 15 Defendants.

16 17 18 19 Pending before this Court is the Motion to Dismiss First Amended Complaint, filed 20 by Defendants State of California, by and through the California Highway Patrol, Officer 21 J. Jalomo, and Sergeant Matheson. [Doc. No. 19.] For the reasons set forth below, the 22 motion is GRANTED IN PART AND DENIED IN PART. 23 PROCEDURAL HISTORY 24 Plaintiff Carlos Peres, a non-prisoner, proceeding pro se, filed a complaint asserting 25 various federal and state claims arising out of a traffic stop on October 25, 2020. [Doc. 26 No. 1.] On March 5, 2021, Defendant County of San Diego (erroneously sued as San 27 Diego County) filed a motion to dismiss Plaintiff’s Complaint. [Doc. No. 5.] On March 28 1 5, 2021, Defendants State of California, by and through the California Highway Patrol, 2 Officer J. Jalomo, and Sergeant Matheson (hereinafter the “CHP Defendants”) filed a 3 motion to dismiss. [Doc. No. 6.] On April 27, 2021, this Court issued an order granting 4 in part and denying in part the motions to dismiss (the “April 27 Order”). [Doc. No. 15.] 5 On May 24, 2021, Plaintiff filed a First Amended Complaint (“FAC”). [Doc. No. 16.] 6 On June 3, 2021, Plaintiff and County of San Diego filed a joint motion to dismiss 7 the County of San Diego with prejudice. [Doc. No. 17.] On June 3, 2021, the Court granted 8 the motion to dismiss the County of San Diego. 9 On June 7, 2021, the CHP Defendants filed a motion to dismiss the FAC. [Doc. No. 10 19.] On June 25, 2021, Plaintiff filed an opposition. [Doc. No. 20.] On July 6, 2021, CHP 11 Defendants filed a reply. [Doc. No. 22.] 12 ALLEGATIONS OF FIRST AMENDED COMPLAINT 13 Plaintiff contends that he is a private American national, who was exercising his 14 constitutional right to travel in his vehicle on October 25, 2020 when he was pulled over 15 without probable cause of a crime by defendant Officer J. Jalomo of the California 16 Highway Patrol. [First Am. Compl., pp. 1-2, and 6; Doc. No. 16.] Mr. Perez asked for the 17 reason for the stop, and Officer Jalomo informed plaintiff that he had been pulled over for 18 speeding. [Id. at 2.] Mr. Perez alleges that Officer Jalomo used a confrontational tone and 19 body language when speaking to him and informing him that he was not free to go. [Id.] 20 Officer Jalomo requested Mr. Perez’s driver’s license and proof of insurance and issued a 21 ticket and informed Mr. Perez that if he did not sign the ticket, he would be arrested and 22 his property seized. [Id.]. Mr. Perez provided his identification under duress because 23 Officer Jalomo had a deadly weapon and was being hostile/aggressive. [Id. at 3.] 24 Officer Jalomo requested that Mr. Perez step out of his vehicle because it was 25 being impounded, and when he refused, Officer Jalomo called for backup. [Id.] An 26 unknown officer then arrived at Mr. Perez’s vehicle and opened the door with an intent to 27 forcefully remove Mr. Perez from his vehicle. [Id. at 4.] Mr. Perez then got out of his 28 vehicle so as not to be harmed by the officers. [Id.] 1 Officer Jalomo had Mr. Perez’s vehicle towed. [Id. at 4.] At an unspecified time, 2 defendant Sergeant Matheson arrived on scene and was aware of the actions of the two 3 officers but did nothing to remedy the officers’ actions or behavior. [Id.] 4 DISCUSSION 5 A. Rule 12(b)(1). 6 1. Legal Standard. 7 A district court must dismiss an action if it lacks jurisdiction over the subject 8 matter of the suit. Fed. R. Civ. P. 12(b)(1). A complaint should be dismissed under Rule 9 12(b)(1) if there is no “case or controversy” within the meaning of that constitutional 10 term. Baker v. Carr, 369 U.S. 186, 198 (1962). For the federal court to have jurisdiction, 11 “a plaintiff must demonstrate standing separately for each form of relief sought.” 12 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006), quoting Friends of the Earth, 13 Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 185 (1983). “A Rule 12(b)(1) 14 jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 15 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the allegations 16 contained in a complaint are insufficient on their face to invoke federal jurisdiction. By 17 contrast, in a factual attack, the challenger disputes the truth of the allegations that, by 18 themselves, would otherwise invoke federal jurisdiction.” Id. 19 2. Analysis. 20 Defendants argue the FAC should be dismissed for lack of subject matter 21 jurisdiction because, pursuant to Rule 8(a)(2) of the Federal Rules of Civil, a complaint 22 must contain “a short and plain statement of the claim showing that the pleader is entitled 23 to relief.” [Doc. No. 19 at 10.] According to Defendants, Plaintiff has not sufficiently 24 alleged facts showing this Court has jurisdiction and, therefore, it should be dismissed 25 under Rule 41(b) of the Federal Rules of Civil Procedure. [Id.] Specifically, Defendants 26 27 28 1According to the Vehicle Report attached to the first amended complaint, the vehicle was being towed 1 argue that it is Plaintiff’s burden to allege that his claim is not precluded by various 2 abstention doctrines. [Doc. No. 19 at 11-12.] However, some of those abstention 3 doctrines are not jurisdictional. See e.g. Ohio Civil Rights Comm’n v. Dayton Christian 4 Schools, Inc., 477 U.S. 619, 626 (1986)(Younger2 abstention is a doctrine of equitable 5 restraint, not a jurisdictional limitation). 6 Moreover, with regard to jurisdiction, Rule 8(a)(1) merely requires “a short and 7 plain statement of the grounds for the court’s jurisdiction.” There is no requirement that 8 the complaint “show” jurisdiction exists. See Phillips & Stevenson, RUTTER GROUP 9 PRAC. GUIDE: FEDERAL CIV. PRO. BEFORE TRIAL (The Rutter Group 2021), ¶ 10 9:77.14. See also Perry v. Merit Systems Protection Bd., 137 S. Ct. 1975, 1984 11 (2017)(“[A] nonfrivolous allegation of jurisdiction generally suffices to establish 12 jurisdiction upon initiation of a case.”). 13 Here, Plaintiff has alleged federal question jurisdiction pursuant to 28 U.S.C. 14 §1331, 1367 and 42 U.S.C. §1983. [Doc. No. 16 at ¶25.] This allegation is a sufficient 15 “short and plain statement of the grounds for jurisdiction” to satisfy Rule 8. Fed.R.Civ.P. 16 8(a)(1). Therefore, Defendants facial attack on jurisdiction is DENIED WITHOUT 17 PREJUDICE to being reasserted in a factual attack under an appropriate evidentiary 18 motion. 19 B. Rule 12(b)(6). 20 1. Legal Standard. 21 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 22 defense that the complaint “fail[s] to state a claim upon which relief can be granted”— 23 generally referred to as a motion to dismiss. The Court evaluates whether a complaint 24 states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil 25 Procedure 8(a)(2), which requires a “short and plain statement of the claim showing that 26 the pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual 27 28 1 allegations,’ . . . it [does] demand . . . more than an unadorned, the defendant-unlawfully- 2 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 3 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 4 “To survive a motion to dismiss, a complaint must contain sufficient factual 5 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 6 (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially 7 plausible when the collective facts pled “allow . . . the court to draw the reasonable 8 inference that the defendant is liable for the misconduct alleged.” Id. There must be 9 “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely 10 consistent with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. 11 (quoting Twombly, 550 U.S. at 557). The Court need not accept as true “legal 12 conclusions” contained in the complaint, id., or other “allegations that are merely 13 conclusory, unwarranted deductions of fact, or unreasonable inferences,” Daniels-Hall v. 14 Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). 15 2. Analysis. 16 a. CHP. 17 As this Court previously ruled in the April 27 Order, the complaint (and the FAC) 18 fails to state a claim against the CHP because it is a California state agency and is 19 therefore immune from suit under the Eleventh Amendment. [Doc. No. 15 at 5 (citations 20 omitted).] Therefore, the claims against the CHP are DISMISSED WITHOUT LEAVE 21 TO AMEND. 22 b. Individual Defendants in Official Capacity. 23 As this Court also previously ruled, the complaint (and the FAC) fails to state a 24 claim for damages under 42 U.S.C. §1983 against the individual CHP defendants in their 25 official capacities, because neither states nor state officials acting in their official 26 capacities are “persons” within the meaning of section 1983 when sued for damages. 27 [Doc. No. 15 at 5 (citations omitted)]. Therefore, the section 1983 damages claims 28 against any CHP officials acting in their official capacities are DISMISSED WITHOUT 1 LEAVE TO AMEND. 2 c. Sargeant Matheson. 3 The only allegations in the FAC against Sargeant Matheson are that as a 4 supervisor, he was “then present” and was aware of the alleged unconstitutional actions 5 of the officers but did nothing to remedy the officers’ actions and behavior. [Doc. No. 16 6 at 8-9.] These vague and conclusory allegations against Sargeant Matheson are not 7 sufficient to state a cause of action. Iqbal, 556 U.S. at 676-77. Therefore, the claim 8 against Sargeant Matheson (Count III) is DISMISSED WITHOUT LEAVE TO 9 AMEND. 10 3. Counts IV, V, VI. 11 Plaintiff added Counts IV, V, and VI to the FAC in violation of Federal Rules of 12 Civil Procedure 5(a)(2). The original complaint asserted causes of action for 13 unreasonable search and seizure, false arrest, failure to intervene, “state law claim 14 executive order D-78-89,” and unlawful trespass under both state and federal law. The 15 Court’s April 27 Order dismissed the state law claims without leave to amend, and gave 16 Plaintiff leave to amend the remaining claims only. [Doc. No. 15 at 6.] The FAC 17 includes three new claims, including a fifth amendment violation, deprivation of rights 18 under 18 U.S.C. § 2423, and intentional infliction of emotional distress4. The new claims 19 were added without leave of court or defendants’ written consent as required by Rule 15 20 of the Federal Rules of Civil Procedure. Therefore, Counts IV, V and VI are 21 DISMISSED WITHOUT LEAVE TO AMEND. 22 CONCLUSION 23 The motion to dismiss the FAC is granted in part and denied in part as set forth 24 25 3 This claim also fails because section 242 is a criminal statute that does not provide a private right of 26 action for civil liability. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980)(citations omitted).

27 4 The Court declines to reach the issue of whether Plaintiff complied with the California Government 28 Claims Act. Therefore, the request for judicial notice [Doc. No. 19-1] is DENIED WITHOUT 1 ||above. The remaining defendant, Officer J. Jalomo, shall answer the FAC, as amended 2 || by this Order, by August 31, 2021. Defendants CHP and Sergeant Matheson are 3 || HEREBY TERMINATED from the case. 4 IT IS SO ORDERED. 5 || Dated: August 10, 2021 Ky ° Hon. Cathy Ann Bencivengo 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28