Justia Dockets & Filings Ninth Circuit California Northern District Johnson v. United States of America et al Filing 119
Johnson v. United States of America et al
ORDER by Judge James Donato granting in part and denying in part 86 Motion to Dismiss; granting in part and denying in part 88 Motion to Dismiss (lrcS, COURT STAFF) (Filed on 6/12/2014)
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES ELLIS JOHNSON, Case No. 13-cv-02405-JD Plaintiff, 8 v. 9 10 UNITED STATES OF AMERICA, et al., Defendants. United States District Court Northern District of California 11 ORDER GRANTING IN PART AND DENYING IN PART UNITED STATES' MOTION TO DISMISS AND GRANTING CITY AND COUNTY OF SAN FRANCISCO'S MOTION TO DISMISS Re: Dkt. Nos. 86, 88 12 INTRODUCTION 13 14 Pro se Plaintiff James Ellis Johnson is a United States veteran who receives medical care at 15 the San Francisco Veterans Affairs Medical Center ("SFVAMC"). Plaintiff alleged in the original 16 complaint in this case that he suffered serious physical injuries and emotional distress at the hands 17 of the VA police during an incident in January 2012, and that deputy sheriffs of the City and 18 County of San Francisco ("CCSF") stood by without intervening. Dkt. No. 1. Defendants United 19 States of America and CCSF challenged the sufficiency of the original complaint in motions to 20 dismiss. On December 11, 2103, this Court granted in part and denied in part the United States' 21 motion to dismiss, and granted CCSF's motion to dismiss. Dkt. No. 75. The Court granted 22 Plaintiff leave to amend certain claims and provided guidance to Plaintiff on amending the 23 complaint. 24 On January 23, 2014, Plaintiff filed an Amended Complaint, which added several new 25 claims against the United States and CCSF. Dkt. No. 83. Defendants moved to dismiss the 26 Amended Complaint. Dkt. Nos. 86, 88. The Court heard oral argument on these motions on May 27 28, 2014, and now grants in part and denies in part the United States' motion to dismiss, and 28 grants CCSF's motion to dismiss in its entirety. 1 The Court emphasizes that Plaintiff's case will move forward. Although the new claims in 2 the Amended Complaint have been dismissed, Plaintiff's claims against the United States for 3 assault, battery, false imprisonment, and intentional infliction of emotional distress will proceed to 4 summary judgment or trial. Plaintiff also has leave to amend the complaint again after the VA 5 completes an administrative review of an order of behavioral restriction ("OBR") and a behavioral 6 flag entered against Plaintiff. BACKGROUND 7 8 The main facts of Plaintiff's case are summarized in the prior motion to dismiss order. 9 Dkt. No. 75. The question now before the Court is whether Plaintiff successfully alleged new 10 claims in response to that order. United States District Court Northern District of California 11 In the prior order, the Court liberally construed Plaintiff's claims and held that the 12 complaint stated tort claims against the United States for assault, battery, false imprisonment, and 13 intentional infliction of emotional distress ("IIED"). Id. at 20. The Court dismissed with 14 prejudice five other claims against the United States, but granted leave to amend the claim for 15 injunctive relief to remove the OBR entered against Plaintiff. Id. The Court also dismissed with 16 prejudice four claims against CCSF, but granted leave to amend claims against CCSF for false 17 arrest/imprisonment, IIED, assault, battery, and a violation of the Fourth Amendment for failure to 18 intervene. Id. at 19-21. 19 The order provided guidelines for amendment. Specifically, the Court advised Plaintiff to: 20 (1) include all factual allegations in the amended complaint itself, and not in exhibits to the 21 complaint or in opposition briefs; (2) state all legal bases for claims in the complaint, including 22 stating the basis of a private right of action for any cases of action based on a Penal Code 23 provision; and (3) clearly state each cause of action and identify the alleged wrongdoing 24 committed by each named Defendant. Id. at 21-22. 25 On January 23, 2014, Plaintiff filed an Amended Complaint against the United States and 26 CCSF. Dkt. No. 83. Plaintiff's Amended Complaint re-alleges the claims against the United 27 States for assault, battery, false imprisonment, and IIED, and also alleges four new claims against 28 the United States for: (1) malicious prosecution; (2) excessive force; (3) failure to intervene; and 2 1 (4) violations of California Penal Code §§ 145 and 147.1 The Amended Complaint alleges claims 2 against Defendant CCSF for: (1) assault; (2) battery; (3) failure to intervene; (4) IIED; (5) 3 violations of California Penal Code §§ 142, 145, 147, 836, 840, 849, and 4006; and (6) false 4 imprisonment. Id. at 13-14, 16.2 Plaintiff seeks damages from the United States for personal 5 injury in the amount of $2,075,000, and injunctive relief ordering removal of the behavioral flag 6 and restriction from the VA national computer. Id. at 15. Plaintiff also seeks damages from 7 CCSF for personal injury in the amount of $500,000 and payment of 20% of all medical costs. Id. 8 at 15-16. DISCUSSION 9 10 I. Defendants move to dismiss the Amended Complaint under Federal Rules of Civil 11 United States District Court Northern District of California LEGAL STANDARD 12 Procedure 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), a party may move to dismiss for lack of 13 subject matter jurisdiction. A district court may lack jurisdiction under a statutory scheme created 14 by Congress that confers jurisdiction over certain veteran's benefits claims to specific federal 15 courts and denies jurisdiction over those claims to all other federal courts. See Veterans for 16 Common Sense v. Shinseki, 678 F.3d 1013, 1019-20 (9th Cir. 2012). It may also lack jurisdiction 17 over certain tort claims if the plaintiff has failed to exhaust administrative remedies. See 28 18 U.S.C. § 2675. 19 Under Rule 12(b)(6), a party may move to dismiss based on the failure to state a claim 20 upon which relief may be granted. "To survive a motion to dismiss, a complaint must contain 21 22 23 24 25 26 27 28 1 The Amended Complaint also makes reference to Plaintiff being "set up" and alleges that his arrest "was planned" to "undermine a federal trial" and "cause Mr. Johnson to lose Case #106472LB." Dkt. No. 83 at 7, 8, 10, 14. Plaintiff's allegations about "undermin[ing] a federal trial" relate to a medical malpractice case against the United States that was pending at the time of Plaintiff's arrest, Case No. 3:10-cv-00647. Plaintiff appears to contend that his arrest on January 30, 2012 was orchestrated to derail his ability to file summary judgment briefs due on February 9, 2012. Id.; Case No. 10-00647, Dkt. No. 111. But Plaintiff has not alleged a claim for this purported event, and does not appear to tie any of his stated claims to it. See Dkt. No. 1, Ex. 1 at 8. In addition, the Court notes that Plaintiff was granted two extensions of time to file his summary judgment briefing. See Case No. 10-00647, Dkt. Nos. 114, 125. 2 The Amended Complaint also alleges claims against individual federal and CCSF Defendants, but as discussed below, Plaintiff stated that he is no longer pursuing any claims against individual defendants, only the United States and the CCSF. See infra Sections II.B and III.A. 3 1 sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" 2 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. 3 Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). At a minimum, a 4 plaintiff must provide "the 'grounds' of his 'entitle[ment] to relief' [which] requires more than 5 labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. To 6 ensure that pro se litigants like Plaintiff do not lose their right to a hearing on the merits over a 7 technical procedural requirement, the Court construes pro se pleadings liberally and, particularly 8 in the civil rights context, affords pro se plaintiffs "the benefit of any doubt." Hebbe v. Pliler, 627 9 F.3d 338, 342 (9th Cir. 2010) (citation omitted). But Plaintiff is still required to satisfy Federal Rule of Civil Procedure 8(a). This rule 10 United States District Court Northern District of California 11 requires "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in 12 order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it 13 rests.'" Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 14 L.Ed.2d 80 (1957)). 15 16 II. UNITED STATES' MOTION TO DISMISS A. The OBR Injunction The Court's prior order dismissed with prejudice all but one of Plaintiff's claims 17 18 pertaining to the OBR and related behavioral flag. The Court dismissed without prejudice 19 Plaintiff's claim for injunctive relief to have the behavioral flag removed. The Court dismissed 20 that claim because Plaintiff had not yet exhausted his administrative remedies with the VA. Dkt. 21 No. 75 at 17. 22 The VA entered the OBR and a related behavioral flag for allegedly aggressive conduct by 23 Plaintiff during visits for medical care. The OBR was entered in August 2011 and extended in late 24 2013 to November 2015. See Dkt. No. 87 at 7-8. Plaintiff filed a timely administrative appeal of 25 the OBR and behavioral flag on December 19, 2013. Id. at 10-13. The United States contends 26 that Plaintiff's appeal will be decided by an appellate group at the SFVAMC by June 1, 2013, and 27 will be sent to the Network Director for final action in accordance with the governing Department 28 4 1 of Veterans Affairs Regulations, 38 C.F.R. § 17.107(e). See id. at 1. Plaintiff will be notified of 2 the outcome of the appeal by no later than July 1, 2014. Id. at 2. 3 The United States asserts that because Plaintiff's appeal of the OBR is still pending, 4 Plaintiff has not fully exhausted his administrative remedies, and Plaintiff's claim for injunctive 5 relief should be dismissed. Dkt. No. 86 at 5. Plaintiff contends that the VA's previous denial of 6 similar appeals in 1995, 2006, and 2007, combined with the delay in adjudicating his current 7 appeal, is sufficient for this Court to find that Plaintiff has exhausted his administrative remedies. 8 Dkt. Nos. 83 at 3; 95 at 1. The Court construes Plaintiff's argument as invoking the futility 9 exception to overcome the exhaustion requirement. A party must exhaust its remedies before it can obtain judicial review of an agency 11 United States District Court Northern District of California 10 decision. See United Farm Workers of Am., AFL-CIO v. Arizona Agric. Emp't Relations Bd., 669 12 F.2d 1249, 1253 (9th Cir. 1982). The exhaustion doctrine allows administrative agencies to 13 exercise their expertise and correct any agency mistakes that may have occurred in order to avoid 14 unnecessary judicial intervention into the administrative process. Id. (citing Weinberger v. Salfi, 15 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975)). But exhaustion of administrative 16 remedies is not required "where the remedies are inadequate, inefficacious, or futile, where pursuit 17 of them would irreparably injure the plaintiff, or where the administrative proceedings themselves 18 are void." Id. (citing Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496, 499-500 (9th Cir. 1980)). 19 Where, as here, the exhaustion of administrative remedies is not specifically required by statute, 20 application of the exhaustion doctrine is within the sound discretion of the district court. Id. 21 Based on the VA's representations, the review process is almost done. Counsel for the 22 United States said at the hearing, and the SFVAMC Medical Center Director also averred in a 23 declaration, that SFVAMC has initiated an independent, de novo investigation and review of the 24 appeal and the VA Disruptive Behavior Committee file, and that the appellate group "will 25 consistent of VA health and safety professionals who have not participated in any prior reviews or 26 decisions concerning plaintiff's behavioral restrictions." Dkt. No. 87 at 2. The appellate review is 27 expected to be complete by June 1, 2014, and Plaintiff will be notified of the final decision of his 28 appeal by July 1, 2014. Id. 5 Consequently, while the Court is sympathetic to Plaintiff's frustration that the review 1 2 process has dragged on for more than six months, the Court finds that the futility exception does 3 not apply to save this claim. The United States represented that the appeal is being carefully and 4 thoroughly reviewed, and will be decided imminently. The Court dismisses the OBR claim on 5 grounds of failure to exhaust. But the dismissal is without prejudice, and Plaintiff may re-allege 6 this claim if, after the VA's decision, he believes there is a sound basis to do so. 7 B. The United States also challenges Plaintiff's references to individual defendants in 8 9 Individual Federal Defendants the Amended Complaint. The Amended Complaint states that "[t]here are five Defendant Federal Police" and names the federal officers. Dkt. No. 83 at 9. But Plaintiff repeatedly told the Court 11 United States District Court Northern District of California 10 that he does not wish to pursue claims against any individuals. In his opposition to the United 12 States' motion to dismiss and during the hearing on this motion, Plaintiff insisted that he is not 13 alleging any claims against individuals, only against the United States. See Dkt. No. 95 at 10 14 ("There are no individual Federal defendants being sued . . . . There is no Bivens claim here."). 15 Thus, the Court dismisses with prejudice any claims asserted in the Amended Complaint against 16 the named individual federal Defendants. 17 C. New Claims in Amended Complaint The United States seeks an order "dismissing all claims against all federal defendants 18 19 set forth in [P]laintiff's amended complaint, except for the four state law tort claims against 20 defendant United States specifically authorized by this Court in its December 11, 2013, Order . . ." 21 Dkt. No. 86 at 1 (emphasis in original). Those claims will go forward, and the Court will discuss 22 here the four new claims against the United States for: (1) malicious prosecution; (2) excessive 23 force; (3) failure to intervene; and (4) violations of Cal. Penal Code §§ 145 and 147. Dkt. No. 83 24 at 5-6. 25 26 i. Malicious Prosecution Plaintiff asserts that the United States maliciously prosecuted him. See Dkt. 27 No. 83 at 5. To state a claim for malicious prosecution under California law, a plaintiff must 28 allege "that [a] prior action (1) was commenced by or at the direction of the defendant and was 6 1 pursued to a legal termination favorable to the plaintiff; (2) was brought without probable cause; 2 and (3) was initiated with malice." Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260, 292 3 (Cal. 2006). 4 The United States contends that Plaintiff has failed to allege facts sufficient to support a 5 malicious prosecution claim. Dkt. No. 86 at 10. The Court agrees. The tort of malicious 6 prosecution is necessarily predicated on a prior lawsuit commenced "at the direction of the 7 defendant and [] pursued to a legal termination." Soukup, 39 Cal.4th at 292. Here, Defendant 8 United States did not commence a legal proceeding, much less pursue any such proceeding to a 9 legal termination. Plaintiff concedes he was released within hours of arrest and that no charges were filed against him. See Dkt. No. 83 at 8. Accordingly, Plaintiff has failed to state a claim for 11 United States District Court Northern District of California 10 malicious prosecution. Because it is clear that no amendment to the complaint can cure this 12 deficiency, this claim is dismissed with prejudice. 13 ii. Excessive Force Plaintiff alleges that the VA officers used excessive force when arresting him at 14 15 SFVAMC. Plaintiff contends that, among other things, "[t]he police manhandled Plaintiff" and 16 caused him "great pain" by using a lock hold and handcuffing Plaintiff even though he "told them 17 he had a complete rotator cuff tear" in his shoulder. Dkt. No. 83 at 7. 18 The Court's prior order found that these and other allegations of mistreatment sufficiently 19 allege assault and battery. See Dkt. No. 75 at 10. But the Court expressly held that "[t]o the 20 extent Plaintiff seeks to allege a constitutional violation under the Fourth Amendment for use of 21 excessive force, sovereign immunity bars suits for damages against the United States for Fourth 22 Amendment violations by its officers." Id. at 11 (citing Arnsberg v. U.S., 757 F.2d 971, 980 (9th 23 Cir. 1985). Consistent with its prior order, this Court finds that Plaintiff has not stated a Fourth 24 Amendment claim against the United States and now dismisses this claim with prejudice. 25 26 iii. Failure to Intervene Plaintiff alleges that certain VA officers failed to intervene when he was being 27 assaulted in a holding cell, in the back of the police car, and when Plaintiff was placed in a chair 28 and delayed entry into the jail. Dkt. No. 83 at 6. As detailed above, Plaintiff has expressly stated 7 1 that he is not pursuing any claims against any federal individual defendants. Consequently, this 2 Fourth Amendment claim against the United States for alleged violations by its officers is barred 3 by sovereign immunity. See Arnsberg, 757 F.2d at 980. Because it is clear that no amendment to 4 the complaint can cure this deficiency, this claim is dismissed with prejudice. iv. 5 California Penal Code Violations 6 Plaintiff's fourth and fifth claims are for violations of Cal. Penal Code §§ 145 7 and 147. These claims were addressed in the prior order. To the extent Plaintiff seeks injunctive 8 relief for them, the Court holds again that it does not have authority to order that relief; the 9 decision to file criminal charges is solely within the authority of prosecutors, not the Court. See Dkt. No. 75 at 10. To the extent Plaintiff seeks damages for these claims, the Court again 11 United States District Court Northern District of California 10 construes them as assault and battery claims that are allowed to go forward. See id. The Court 12 notes, however, that its previous order specifically stated that if Plaintiff "bases a cause of action 13 on a Penal Code provision, he should also state the basis of a private right of action." Id. at 21. 14 Plaintiff has failed to state the basis of a private right of action for these claims, and so to the 15 extent that Plaintiff is attempting to allege more than assault and battery with respect to these 16 claims, they are dismissed with prejudice. 17 III. 18 CCSF'S MOTION TO DISMISS A. Individual CCSF Defendants Plaintiff's express abandonment of claims against the individual defendants also 19 20 included any claims against individual CCSF defendants. During the hearing, Plaintiff 21 emphasized that he is suing only CCSF itself. Accordingly, the claims against individual 22 unidentified sheriff's deputies, the Mayor, and the Sheriff of the CCSF are dismissed with 23 prejudice. 24 B. 25 26 Claims Against CCSF in Amended Complaint i. Assault & Battery In the prior order, the Court found that Plaintiff failed to state a claim against 27 CCSF for assault or battery because he failed to allege sufficient facts to support those claims. 28 Dkt. No. 75 at 19. The Amended Complaint suffers from the same defect. The CCSF assault and 8 1 battery allegations consist solely of the allegations that: (1) Plaintiff was injured "in the presence 2 of city employees who took no action to stop the assault, therefore becoming part of the assault;" 3 (2) "the Sheriffs (Sheriff #1 and Sheriff #2, a white female) are guilty of battery. Plaintiff was 4 being assaulted, a victim of assault and battery by means of a device;" and (3) Sheriff #1's "role in 5 the assault and battery" was his delay "in taking Plaintiff inside the jail from the parking lot 6 behind the jail." Dkt. No. 83 at 11-12. These allegations are again too thin to sustain assault and battery claims. Assault requires 7 8 that a "defendant acted with intent to cause harmful or offensive contact, or threatened to touch 9 plaintiff in a harmful or offensive manner," and that as a result, the plaintiff was harmed. So v. Shin, 212 Cal.App.4th 652, 668-69 (Cal. App. 2013). Battery requires that a "defendant touched 11 United States District Court Northern District of California 10 plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff," and that 12 plaintiff "was harmed or offended by defendant's conduct." Id. 13 Plaintiff does not allege that any of the unnamed sheriff's deputies threatened to touch him 14 or physically touched him in any way. Plaintiff's allegations state that he was only touched by the 15 handcuffs that were put on by the VA officers. Plaintiff does not state facts to support a claim of 16 assault or battery by any of the unnamed sheriff's deputies, and accordingly, this claim is 17 dismissed with prejudice.3 ii. 18 Failure to Intervene 19 The Court's prior order permitted Plaintiff leave to amend to allege a violation 20 of the Fourth Amendment for failure to intervene. See Dkt. No. 75 at 21. Because Plaintiff is not 21 pursuing claims against any individual CCSF Defendants, he alleges a violation of the Fourth 22 Amendment for failure to intervene against CCSF itself. 23 24 25 26 27 28 3 In his Opposition to CCSF's Motion to Dismiss, Plaintiff contends for the first time that one of the sheriff's deputies told Plaintiff "I don't care" in a threatening way. Dkt. No. 97 at 10. Plaintiff was informed in the Court's prior order that he must not allege new facts in his opposition brief, but rather must include all factual allegations in the Amended Complaint. See Dkt. No. 75 at 21. The Court will not consider this fact, or any other new facts included in Plaintiff's opposition briefing. See Schneider v. Cal. Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) ("In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss.") (citation omitted). 9 1 As a local government, CCSF cannot be held liable for a constitutional violation by an 2 employee under Section 1983 unless the violation was committed in the execution of a CCSF 3 "policy or custom." See Monell v. Dep't of Soc. Serv. of New York, 436 U.S. 658, 694, 98 S.Ct. 4 2018 (1958). A Monell plaintiff must show "a direct causal link between a municipal policy or 5 custom and the alleged constitutional deprivation." City of Canton v. Harris, 489 U.S. 378, 385, 6 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). To succeed on this claim, Plaintiff must allege and 7 prove that a CCSF policy was the "moving force" behind the alleged violations. See Bd. of Cnty. 8 Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). 9 Plaintiff may make this showing in one of three ways: (1) "prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or longstanding 11 United States District Court Northern District of California 10 practice or custom which constitutes the standard operating procedure of the local governmental 12 entity;" (2) "establish that the individual who committed the constitutional tort was an official 13 with final policy-making authority and that the challenged action itself thus constituted an act of 14 official government policy;" or (3) "prove than an official with final policy-making authority 15 ratified a subordinate's unconstitutional decision or action and the basis for it." Trevino v. Gates, 16 99 F.3d 911, 918 (9th Cir. 1996) (citing Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 17 1992). 18 Plaintiff appears to allege that the CCSF policy or custom at issue is found in Cal. Penal 19 Code §§ 849, 142, 145, 147, 836, 840 and 4006. Dkt. No. 83 at 14. Plaintiff, however, does not 20 plead any facts about how these penal code sections relate to a CCSF policy or custom, or show "a 21 direct causal link between a municipal policy or custom and the alleged constitutional 22 deprivation." City of Canton, 489 U.S. at 385. The Amended Complaint also does not identify 23 any individual vested with policy-making authority responsible for the decision to violate 24 Plaintiff's constitutional rights, or allege any specific facts showing that an individual with final- 25 policy making authority ratified any unconstitutional conduct. Plaintiff only alleges that unnamed 26 sheriff's deputies were involved in the alleged violations of Plaintiff's constitutional rights. See 27 Dkt. No. 83. Without more, the Amended Complaint does not plausibly demonstrate a CCSF 28 policy or custom condoning the constitutional violations alleged, or that the Sheriff -- or any other 10 1 individuals vested with policy-making authority -- knew enough about the arrest to have been 2 alerted to the possibility that officers were engaging in unconstitutional conduct. Because Plaintiff 3 has already been given leave to amend this claim, it is dismissed with prejudice. 4 iii. Intentional Infliction of Emotional Distress The Court previously determined that Plaintiff failed to state a claim for IIED 5 6 against the CCSF because it was allegedly a VA officer -- not a Deputy Sheriff -- who humiliated 7 Plaintiff. The Court's prior order noted that, at most, the Sheriff failed to intervene in the process 8 of taking a booking photo, and that this alleged inaction did not constitute "extreme and 9 outrageous conduct." Dkt. No. 75 at 19. In the Amended Complaint, Plaintiff alleges that unnamed sheriff's deputies knowingly allowed Plaintiff to suffer, willfully delayed taking him into 11 United States District Court Northern District of California 10 custody knowingly prolonging his suffering, failed to intervene "allowing others to cause Plaintiff 12 to suffer" and "not caring that Plaintiff was suffering," and also re-alleges that the deputies 13 allowed a VA officer police humiliate him. Dkt. No. 83 at 12-16. 14 Plaintiff's Amended Complaint again fails to allege sufficient facts to support an IIED 15 claim. The gist of Plaintiff's IIED allegations -- similar to his previous complaint -- is that 16 unnamed sheriff's deputies failed to intervene even though they knew he was in pain and was 17 being humiliated by the VA officer. This failure to act does not rise to the level of extreme and 18 outrageous conduct. See Davidson v. City of Westminster, 32 Cal.3d 197, 210 (Cal. 1982) 19 (dismissing IIED claim where Plaintiff had "not alleged that the officers acted (or failed to act) as 20 they did for the purpose of causing emotional injury" and where "the officers' conduct did not rise 21 to the level of outrageous conduct so extreme as to exceed all bounds of that usually tolerated in a 22 civilized community") (internal citation omitted). On the facts alleged in Plaintiff's Amended 23 Complaint, he cannot establish an IIED claim. Because Plaintiff has already had an opportunity to 24 amend this claim, it is dismissed with prejudice. 25 26 iv. California Penal Code Violations Plaintiff also alleges that Defendant CCSF violated Cal. Penal Code §§ 849, 27 142, 145, 147, 836, 840 and 4006. To the extent Plaintiff seeks injunctive relief for these alleged 28 violations, the Court previously held that it does not have authority to order injunctive relief. See 11 1 Dkt. No. 75 at 10. To the extent Plaintiff seeks damages for these alleged violations, Plaintiff has 2 failed to state a private right of action for any of these alleged violations that would serve as the 3 basis for a claim for damages, in violation of this Court's prior order. See Allen, 464 F.3d at 1048. 4 Accordingly, these claims are dismissed with prejudice. 5 6 v. False Imprisonment The Court's previous order gave Plaintiff leave to amend the false 7 imprisonment claim. Plaintiff now alleges that: (1) "Defendant Sheriff #1 made it clear that he did 8 not care one way or the other why Plaintiff was arrested;" (2) "the sheriff knew Plaintiff was 9 coming. This was planned;" and (3) the "Defendant Sheriffs knew the Plaintiff's arrest was false." 10 United States District Court Northern District of California 11 Dkt. No. 83 at 11, 13. False imprisonment under California law requires: "(1) the nonconsensual, intentional 12 confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time." 13 Blaxland v. Commonwealth Director of Public Prosecut., 323 F.3d 1198, 1205 (9th Cir. 2003) 14 (citing Easton v. Sutter Coast Hosp., 80 Cal.App.4th 485, 496 (Cal. App. 2000)). "A cause of 15 action for false imprisonment based on unlawful arrest will lie where there was an arrest without 16 process followed by imprisonment." Watts v. County of Sacramento, 256 F.3d 886, 891 (9th Cir. 17 2001) (citing City of Newport Beach v. Sasse, 9 Cal.App.3d 803, 810 (Cal. App. 1970)). 18 Plaintiff's allegations do not support a false imprisonment claim. Plaintiff's only non- 19 conclusory allegation that any sheriff's deputy had reason to believe his arrest was unlawful is the 20 allegation that one of the unnamed deputies was told by one of the VA officers that the arrest "was 21 planned." Dkt. No. 83 at 13. This allegation, however, is not sufficient to demonstrate that any 22 sheriff's deputy lacked reasonable cause to believe that Plaintiff's arrest was lawful. Moreover, 23 the Court is not persuaded that the alleged apathy of one of the deputies to the reasons for 24 Plaintiff's arrest is sufficient to plead that the deputy knew Plaintiff's arrest was "false." 25 Accordingly, this claim is dismissed with prejudice. 26 27 28 CONCLUSION The following state law claims against the United States are sufficient to survive review at the pleading stage and will go forward: assault, battery, false imprisonment, and intentional 12 1 2 infliction of emotional distress. The OBR and behavioral flag injunction claim is dismissed without prejudice subject to 3 renewed pleading after the VA completes the administrative review. The remaining claims in the 4 Amended Complaint are dismissed with prejudice. If Plaintiff elects to file a second amended 5 complaint, Plaintiff may not allege any new claims without prior leave of this Court. 6 7 8 9 IT IS SO ORDERED. Dated: June 12, 2014 ______________________________________ JAMES DONATO United States District Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES ELLIS JOHNSON, Case No. 13-cv-02405-JD Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 UNITED STATES OF AMERICA, et al., Defendants. United States District Court Northern District of California 11 12 13 14 15 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on 6/12/2014, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 James Ellis Johnson 1819 Golden Gate Avenue, #12 San Francisco, CA 94115 19 20 Dated: 6/12/2014 21 22 Richard W. Wieking Clerk, United States District Court 23 24 25 26 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 27 28 14