Opinion
CASE NO. C15-1165JLR
05-20-2016
JACQUELYN ANN LE, Plaintiff, v. OFFICER BAVA, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO JOIN AND GRANTING DEFENDANTS' MOTION TO DISMISS
I. INTRODUCTION
This matter comes before the court on Plaintiff Jacquelyn Le's motion to join the City of Kent and the Kent Police Department as defendants (MTJ (Dkt. # 27)), and Defendants Officer Bava, Officer Nixon, and the City of Kent's (collectively, "Defendants") motion to dismiss Ms. Le's second amended complaint (2d MTD (Dkt. # 18)). Ms. Le is proceeding pro se and in forma pauperis ("IFP"). In her second amended complaint, Ms. Le alleges Defendants are liable for civil rights violations including false arrest, unlawful search, inappropriate sexual contact, and racial discrimination. (SAC (Dkt. # 16) at 6.) Having considered the submissions of the parties, the appropriate portions of the record, and the relevant law, the court DENIES Ms. Le's motion to join, GRANTS Defendants' motion to dismiss, DISMISSES Ms. Le's second amended complaint, and ORDERS Ms. Le to show cause within 15 days why amendment would not be futile with regard to Officer Bava.
II. BACKGROUND
This case arises out of a July 23, 2014, incident between Ms. Le and certain members of the Kent Police Department. (SAC at 1.) On that day, Officer Bava was patrolling for the Kent Police Department. (See Am. Compl. (Dkt. # 12) at 13-16; SAC at 8 ("Police Report") at 5.) While driving southbound on Pacific Highway, Officer Bava saw a van that he recognized as owned by Ms. Le and her husband, Khanh Le. (Police Report at 4.) Their Nissan van was recognizable because of the numerous anti-law enforcement signs on its exterior and an American flag that flew atop the van. (Id.)
Ms. Le attached the first four pages of Officer Bava's five-page police report to her amended complaint, but only the fifth page of the report is attached to Ms. Le's second amended complaint. (See Am. Compl. at 13-16; SAC at 8.) However, Ms. Le references the contents of the first four pages of the police report in her second amended complaint. (See SAC at 1.) In light of Ms. Grant's pro se status, the court considers the second amended complaint as if the first four pages of the Police Report were attached. See McGuire v. Clackamas Cty. Counsel, No. 08-CV-1098-AC, 2009 WL 4456310, at *2 n.2 (D. Or. Nov. 24, 2009) (considering exhibits attached to a pro se plaintiff's prior complaint). The court cites to the police report using its original pagination, not the page numbers created by the electronic filing system. (See Police Report at 1-5.)
Officer Bava followed the Nissan van, witnessed two illegal lane changes, and pulled up beside the van. (Id.) Officer Bava saw Ms. Le notice his patrol vehicle from her position in the passenger seat. (Id. at 5.) Officer Bava slowed down and got behind the Nissan. (Id.) After the Nissan stopped at a red light, it rocked back and forth and "it was apparent to [Officer Bava] that the occupants were moving around inside the Nissan." (Id.) Officer Bava pulled the van over because he believed Mr. Le had been driving with a suspended license. (Id.) Ms. Le alleges that she was driving the car at the time; either way, Ms. Le was behind the wheel when Officer Bava reached the side of the van. (SAC at 1; Police Report at 5.) Officer Bava told Ms. Le that she was under arrest, handcuffed her, and searched her person. (SAC at 3; Police Report at 5.) After reading Ms. Le her Miranda warnings, Officer Bava transported Ms. Le to "SCORE Jail," where she was charged with making false statements and aiding and abetting driving with a suspended license. (SAC at 3; Police Report at 5.)
Ms. Le contends that Officer Bava's actions constitute "unlawful apprehension and detainment" and "unlawful search . . . touching my breasts and genital area." (SAC at 6.) Ms. Le further alleges that Officer Nixon, also of the Kent Police Department, made false statements under oath on June 10, 2015. (Id.) As recompense, Ms. Le seeks to recover her impound fee ($300.00), her bail bond ($200.00), her attorney's fees ($2,500.00), and damages for mental anguish caused by Officers Bava ($250,000.00) and Nixon ($250,000.00). (Id.)
Ms. Le filed her initial complaint in this matter on August 18, 2015 (Compl. (Dkt. # 6)) and voluntarily amended her complaint on September 25, 2015 (Am. Compl.). In Ms. Le's amended complaint, she alleged various civil rights violations under 42 U.S.C. § 1983. (See Am. Compl.) The court concluded that Ms. Le's amended complaint contained insufficient and legally conclusory allegations and dismissed Ms. Le's amended complaint for failure to state a claim. (1/5/16 Order (Dkt. # 15) at 8.) The court granted Ms. Le leave to amend, but cautioned her that if she failed to remedy the deficiencies in her amended complaint, the court would "treat that failure as evincing the futility of further amendment." (Id.) Ms. Le filed her second amended complaint on February 1, 2016, and Defendants have moved to dismiss that complaint with prejudice under Federal Rule of Civil Procedure 12(b)(6). (See SAC; 2d MTD.) Ms. Le moves to join the City of Kent and the Kent Police Department as defendants in this matter. (MTJ.) These motions are now before the court.
III. ANALYSIS
A. Ms. Le's Motion to Join Additional Parties
Ms. Le filed a "motion to join additional party" in which she seeks to add the City of Kent and the Kent Police Department as defendants. (MTJ at 1.) The court has already indicated that it considers Ms. Le's complaint as proceeding against the City of Kent as well as Officers Bava and Nixon. (1/5/16 Order at 7 n.4.) Therefore, Ms. Le's request to add the City of Kent as a defendant is moot. The court directs the Clerk to add the City of Kent as a defendant to the court's electronic docket.
The court dismisses with prejudice Ms. Le's claims against the City of Kent. See infra §§ III.C-III.D. However, the court directs the Clerk to add and terminate the City of Kent to ensure the docket accurately reflects the parties to this case.
Ms. Le also seeks to join the Kent Police Department. (MTJ at 1.) "In order to bring an appropriate action challenging the actions, policies or customs of a local governmental unit, a plaintiff must name the county or city itself as a party to the action, and not the particular municipal department or facility where the alleged violation occurred." See Bradford v. City of Seattle, 557 F. Supp. 2d 1189, 1207 (W.D. Wash. 2008) (dismissing the Seattle Police Department as a defendant because it "is not a legal entity capable of being sued"). The court therefore concludes that there is no legal theory under which Ms. Le could proceed against the Kent Police Department. Accordingly, the court denies Ms. Le's motion.
B. Legal Standard for Defendants' Motion to Dismiss
When considering a motion to dismiss under Rule 12(b)(6), the court construes the complaint in the light most favorable to the non-moving party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The court must accept all well-pleaded allegations of material fact as true and draw all reasonable inferences in favor of the plaintiff. See Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). "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." Iqbal, 556 U.S. at 663.
The court, however, need not accept as true a legal conclusion presented as a factual allegation. Id. at 678. Although the pleading standard announced by Federal Rule of Civil Procedure 8 does not require "detailed factual allegations," it demands more than "an unadorned, the-defendant-unlawrally-harmed-me accusation." Id. (citing Twombly, 550 U.S. at 555). A pleading that offers only "labels and conclusions or a formulaic recitation of the elements of a cause of action" will not survive a motion to dismiss under Rule 12(b)(6). Id. "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's, allegations are true." Twombly, 550 U.S. at 545. Lastly, although "the allegations of [a pro se plaintiff's] complaint, 'however inartfully pleaded' are held 'to less stringent standards than normal pleadings drafted by lawyers,'" Hughes v. Rowe, 449 U.S. 5, 9 (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)), this does not preclude dismissal where "a liberal construction does not remedy the palpable deficiencies in [the] complaint," Wallmuller v. Russell, No. C14-5121RBL-JRC, 2014 WL 2475978, at *2 (W.D. Wash. June 3, 2014).
C. Defendants' Motion to Dismiss
In order to state a claim under 42 U.S.C. § 1983, Ms. Le must allege that some "person" has deprived her of a federal right and that the offending person was acting under color of state law. See Gomez v. Toledo, 446 U.S. 635, 640 (1980). Cities are "persons" that can be sued directly under Section 1983. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978); Delia v. City of Rialto, 621 F.3d 1069, 1081 (9th. Cir. 2010). To state an adequate Section 1983 claim against a city, a plaintiff must "demonstrate that the alleged constitutional deprivation was the product of a policy or custom" of the city. Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997). Mere acquiescence in a single instance of alleged unconstitutional conduct is not sufficient to demonstrate a policy or custom. Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992).
State officials sued in their official capacity for damages are not persons from whom a plaintiff can obtain relief under Section 1983 because state officials assume the identity of the government that employs them. See Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n.24 (1997); Hafer v. Melo, 502 U.S. 21, 27 (1991). When sued in their personal capacity, however, state officials are persons under Section 1983. See Hafer, 502 U.S. at 31. Where the plaintiff seeks damages against a state official, a strong presumption exists in favor of a personal-capacity suit because official-capacity suits for damages are barred. See Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999); Shoshone-Bannock Tribes v. Fish & Game Comm'n, Idaho, 42 F.3d 1278, 1284 (9th Cir. 1994). Vicarious liability does not apply to Section 1983 suits, and "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 663. Considering these authorities, and construed in the light most favorable to Ms. Le, the allegations in the second amended complaint fail to give rise to a plausible right to relief.
The court previously dismissed Ms. Le's claims against the City of Kent because Ms. Le "identifie[d] no policy whatsoever of the City of Kent" and "all of the constitutional violations Ms. Le alleges are conclusory." (1/5/16 Order at 7 (citing Iqbal, 556 U.S. at 678).) The court granted Ms. Le leave to amend and cautioned Ms. Le that if she "fail[ed] to remedy the issues identified" in the order, the court would "treat that failure as evincing the futility of further amendment." (1/5/16 Order at 8.) Ms. Le again fails to identify any way in which the alleged constitutional violations she claims to have suffered are related to an official policy or custom of the City of Kent. (See generally SAC.) By not alleging any facts about an official policy or custom, Ms. Le has failed to remedy the issues the court identified in its previous order. The court therefore dismisses Ms. Le's claims against the City of Kent.
Similarly, Ms. Le has failed to remedy the inadequacies in her amended complaint with regard to her allegations against Officer Nixon. Ms. Le previously alleged that on July 2, 2014, Officer Nixon issued tickets to Mr. and Ms. Le that were "five hundred numbers apart" (Am. Compl. at 1) and that Officer Nixon made false statements under oath on June 10, 2015 (id. at 3). The court dismissed these claims on the ground that they failed to state an actionable Section 1983 claim. (1/5/16 Order at 2, 8.) Ms. Le adds no detail to these allegations against Officer Nixon. (See generally SAC.) Instead, she recites the same two allegations: (1) that Officer Nixon issued tickets to Mr. and Ms. Le that were "five hundred numbers apart" (id. at 3-4); and (2) that Officer Nixon made a false statement on June 10, 2015, "when he mentioned under oath anti government signs on [Ms. Le's] van" (id. at 4). Ms. Le has failed to remedy the issues the court identified in its previous order. The court therefore dismisses Ms. Le's claims against Officer Nixon.
The court previously indicated that Ms. Le's allegations against Officer Bava failed to state a plausible right to relief because Ms. Le's allegations were "factually deficient and legally conclusory." (1/5/16 Order at 5-6 ("Ms. Le provides no facts about the incident besides those contained in Officer Bava's police report, which portrays a routine traffic stop and reasonable charges against Ms. Le.").) Ms. Le's allegations against Officer Bava in her second amended complaint are for the most part just as conclusory and lacking in factual specificity as Ms. Le's previous allegations.
Ms. Le alleges that Officer Bava "issued a false and illegal citation," which is a conclusory statement the court disregards. (SAC at 2; 1/5/16 Order at 6 (citing Iqbal, 556 U.S. at 678).) Similarly, the court disregards as conclusory Ms. Le's allegations that Officer Bava pulled her over "with no probable cause," and that her arrest was an "unlawful apprehension." (SAC at 1-2.) These conclusory allegations also directly conflict with the information in Officer Bava's police report, which provides the only nonconclusory factual account of the vehicle stop on the record. (See Police Report at 4-5 (indicating that Officer Bava saw Mr. Le in the driver's seat, that Mr. Le had a suspended license, and that the van made illegal lane changes).) Ms. Le also provides inadequate factual support for her racial discrimination allegations, which she supports with only two statements: "I am white and my husband is Asian," and "I feel the actions made by Kent Police were racially motivated." (SAC at 5-6.) These allegations are comprised of "labels and conclusions," and as such they are insufficient to state a plausible claim against Officer Bava. See Twombly, 550 U.S. at 555.
The only allegation to which Ms. Le added relevant factual detail involves the search that Officer Bava performed on Ms. Le. (See SAC at 3; Police Report at 5.) Ms. Le previously alleged that Officer Bava committed an "unlawful search" and "touch[ed] my body improperly." (Am. Compl. at 12.) The court concluded that those allegations fail to state a claim because Ms. Le provided "no facts about the incident besides those contained in Officer Bava's police report, which portrays a routine traffic stop." (1/5/16 Order at 6.) The second amended complaint alleges that Officer Bava
without a female officer present, lewdfully searched me, he placed his hands on my breasts rubbing them then he placed his hands in my pockets next he ran his hands down the outside of my legs and up the inside of my legs proceeding to my genital area.(SAC at 3.) Even construing these additional details in the light most favorable to Ms. Le, the second amended complaint fails to state an actionable claim against Officer Bava.
The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. Const. amend. IV. Barring misconduct, "a warrantless, full search of a suspect's person incident to a lawful arrest" is a reasonable search that the Fourth Amendment does not prohibit. United States v. Morgan, 799 F.2d 467, 469 (9th Cir. 1986) (citing Chimel v. California, 395 U.S. 752, 762-63 (1969)). Particularly when an officer transports a suspect in his or her police car, officer safety justifies a reasonable pat-down search of that suspect. See Maryland v. Wilson, 519 U.S. 408, 412 (1997). However, a search that involves sexual misconduct is unreasonable because there is no legitimate government interest that justifies it. Fontana v. Haskin, 262 F.3d 871, 880 (9th Cir. 2001).
For example, the Ninth Circuit held that a plaintiff stated a plausible Fourth Amendment claim under Section 1983 when she alleged that
[d]uring the ride to the station, [the defendant officer] wrongfully and inappropriately touched and sexually harassed plaintiff. His conduct included the following: telling plaintiff she had nice legs; telling plaintiff that he could be her "older man"; putting his arm around plaintiff; massaging her shoulders. Defendant's conduct persisted, even after plaintiff asked him to stop. At the police station, [the defendant] continued making sexual comments to plaintiff, including offering to "help her" in the restroom.Id. at 875. However, the court cautioned that "not every truthful allegation of sexual bodily intrusion during an arrest is actionable as a violation of the Fourth Amendment" because "some bodily intrusions may be provably accidental or de minimis and thus constitutionally reasonable." Id. at 880. For instance, a plaintiff failed to state an actionable Section 1983 claim by alleging that an officer "slapp[ed] him once on the butt," because it was a "de minimis bodily intrusion and therefore must be deemed constitutionally reasonable." Bell v. King Cty., No. C07-1790-RSM, 2008 WL 4779736, at *2 (W.D. Wash. Oct. 31, 2008).
Additionally, courts have held as a matter of law that there is no Fourth Amendment violation when a search incident to arrest "included incidental contact with [the plaintiff's] breasts and genital area," Golden v. Cty. of Westchester, No. 10-CV-8933 ER, 2012 WL 4327652, at *6 (S.D.N.Y. Sept. 18, 2012), and when during a search an officer "cupped [the plaintiff's] groin area," Wright v. Cty. of Waterbury, No. 3:07-CV-306 CFD, 2011 WL 1106217, at *7 (D. Conn. Mar. 23, 2011). These cases contained testimony strikingly similar to Ms. Le's allegations. In Golden, for example, the plaintiff alleged that the officer "had me stand up with my hands out. He search me up this way, went across my breast, came back that way . . . [t]hen he told me to put my hands on the back of the car, and he searched my bottom part. He went up my [ankles], came back up, touched my private part, went back down, told me to turn around, and he came down and searched the back of me." Golden, 2012 WL 4327652, at *6.
Ms. Le presents three distinct allegations of sexual misconduct on the part of Officer Bava. (SAC at 3.) First, Ms. Le alleges that there was no female officer present during the search. Id. That allegation fails to state a claim because there is no constitutional right to be searched by an officer of the same sex. See Golden, 2012 WL 4327652, at *6. Second, Ms. Le alleges that Officer Bava "lewdfully searched me," which is a conclusory statement the court disregards under Iqbal. (SAC at 3); Iqbal, 556 U.S. at 678. Third, Ms. Le alleges that Officer Bava "placed his hands on my breasts rubbing them then he placed his hands in my pockets next he ran his hands down the outside of my legs and up the inside of my legs proceeding to my genital area." (SAC at 3.) This allegation fails to support a Fourth Amendment claim under Section 1983 because it describes nothing more than the incidental, de minimis contact typical of a search incident to arrest. See Fontana, 262 F.3d at 880 (explaining that de minimis bodily intrusions incident to arrest are constitutionally reasonable).
Officer Bava placed Ms. Le under arrest before conducting a pat-down search. (Police Report at 5.) Officer safety justified a pat-down search because Officer Bava planned to transport Ms. Le to SCORE Jail in his patrol car. (Id.; SAC at 3); see also Wilson, 519 U.S. at 412. The only remaining question is whether Officer Bava engaged in sexual misconduct. Running one's hands over a person's body describes a routine pat-down search. See, e.g., Bell, 2008 WL 4779736, at *2; Golden, 2012 WL 4327652, at *6 "Rubbing" can be sexual in nature, but Ms. Le does not allege any facts that suggest that Officer Bava's physical contact was sexual. (See SAC at 3.) In other words, Ms. Le's allegations are more analogous to the claim that an officer "slapp[ed] plaintiff once on the butt" in Bell than the overt sexual advances in Fontana. Bell, 2008 WL 4779736, at *2; Fontana, 262 F.3d at 875. Therefore, Ms. Le's allegations of sexual misconduct by Officer Bava do not give rise to a plausible right to relief "beyond a speculative level" Twombly, 550 U.S. at 545. Accordingly, the court dismisses Ms. Le's claims against Officer Bava.
D. Leave to Amend
When a court dismisses a pro se plaintiff's complaint, leave to amend is mandatory unless it is absolutely clear that amendment could not cure the defects in the complaint. Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995). "A district court, however, does not abuse its discretion in denying leave to amend where amendment would be futile." Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002). The court previously illuminated many of the deficiencies in Ms. Le's amended complaint. (See 1/5/16 Order at 8.) Those flaws largely remain in Ms. Le's second amended complaint. See supra § III.C. Additionally, the court cautioned Ms. Le that if she failed to state a claim in response to the court's order, the court would treat that failure as evidence of the futility of future amendment. (1/5/16 Order at 8.)
Ms. Le has failed to remedy the deficiencies in her amended complaint with regard to the City of Kent and Officer Nixon. See supra § III.C. Despite the court's warnings, Ms. Le has not alleged additional facts that would give rise to a Section 1983 claim against these two defendants. Therefore, the court concludes that further amendment would be futile with regard to Ms. Le's allegations against the City of Kent and Officer Nixon. Accordingly, the court denies Ms. Le leave to amend her second amended complaint with respect to these two defendants and dismisses her claims against the City of Kent and Officer Nixon with prejudice.
Ms. Le also failed to remedy the deficiencies in her amended complaint with regard to Officer Bava. The court concluded that the allegations in Ms. Le's amended complaint failed to state a claim because Ms. Le provided "no facts about the incident besides those contained in Officer Bava's police report, which portrays a routine traffic stop." (1/5/16 Order at 6.) Ms. Le did not add sufficient factual detail in her second amended complaint to allow the court to plausibly infer a right to relief "beyond a speculative level." Twombly, 550 U.S. at 545; see also supra § III.C.
Given that Ms. Le failed to state a claim against Officer Bava after amending her complaint, the court defers ruling on whether to allow Ms. Le leave to amend and orders Ms. Le to show cause why the court should not dismiss her claims against Officer Bava without leave to amend. In her filing, Ms. Le must indicate what factual detail about Officer Bava's search incident to arrest she would add to an amended complaint and how those allegations would allow the court to plausibly infer that her constitutional rights were violated. Ms. Le must submit this information within 15 days of the date of this order. If Ms. Le does not timely comply with this order or fails to show cause, the court will take that failure to indicate the futility of further amendment and will deny leave to amend.
IV. CONCLUSION
The court DENIES Ms. Le's motion to join additional parties (Dkt. # 27) and GRANTS Defendants' motion to dismiss (Dkt. # 18). The court DISMISSES WITH PREJUDICE Ms. Le's claims against the City of Kent and Officer Nixon. The court DISMISSES WITHOUT PREJUDICE Ms. Le's claims against Officer Bava. The court DIRECTS the Clerk to add and terminate the City of Kent as a party to this action. The court ORDERS Ms. Le to show cause within 15 days of the date of this order why amendment would not be futile with regard to her claims against Officer Bava. The court cautions Ms. Le that if she fails to timely show cause in response to this order, the court will treat that failure as an indication that amendment would be futile and will dismiss her claims against Officer Bava without leave to amend.
Dated this 20th day of May, 2016.
/s/_________
JAMES L. ROBART
United States District Judge