Flynn v. City of Santa Clara, Case No. 18-cv-07688-EMC

388 F.Supp.3d 1158

Patrick FLYNN, et al., Plaintiffs,

v.CITY OF SANTA CLARA, et al., Defendants.

Case No. 18-cv-07688-EMC

United States District Court, N.D. California.

Signed May 22, 2019

James McManis, a Prodfessional Corporation, Matthew Schechter, McManis Faulkner, San Jose, CA, for Plaintiffs.

Jon Allen Heaberlin, Rankin | Stock | Heaberlin, San Jose, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

Docket No. 31

EDWARD M. CHEN, United States District Judge Plaintiffs in this case are Patrick Flynn, Kyle Flynn, and Lauren Alcarez. They have sued the Santa Clara Stadium Authority, several cities, and multiple police officers who work for the cities, alleging that their federal and state civil rights were violated when they were arrested at a 49ers game at Levi's Stadium in November 2017. Currently pending before the Court is Defendants' motion to dismiss. Defendants do not challenge all claims pled in the complaint; instead, they challenge only those claims related to First Amendment retaliation and false arrest.

Having considered the parties' briefs, as well as the oral argument of counsel, the Court hereby GRANTS the motion to dismiss.

I. FACTUAL & PROCEDURAL BACKGROUND

Defendants in the case are as follows:

(1) The Santa Clara Stadium Authority.

(2) The City of Santa Clara.

(3) The City of Mountain View.

(4) The City of Gilroy.

(5) Officer Nicholas Cusimano.

(6) Special Events Officer Theodore Rodgers.

(7) Special Events Officer Duane Walker.

(8) Officer Janice Rivera.

(9) Officer Kevin Fraser.

(10) Officer Tom Nelson.

(11) Officer Dan Moreno.

(12) Officer Hugo Del Moral.

(13) Sgt. Jacob Malae.

Plaintiffs' claims against Defendants are based on, inter alia , the following allegations in the complaint.

The City of Santa Clara owns Levi's Stadium. See Compl. ¶ 22. "Before working an event at Levi's Stadium, all police officers go through a stadium training, which includes explaining the stadium's ‘Code of Conduct.’ " Compl. ¶ 23.

On November 12, 2017, Plaintiffs attended a 49ers-Giants game at Levi's Stadium. See Compl. ¶ 21. The Flynns, who are brothers and Giants' fans, "were seated in the rows closest to the field." Compl. ¶ 24. During the second half of the game, the Flynns "were flipping off the Giants players and yelling ‘You fucking suck’ at them." Compl. ¶ 26. Officer Cusimano approached them and "told them to quit flipping off the players and to sit down." Compl. ¶ 26. The Flynns complied. See Compl. ¶ 26.

Later, after the 49ers scored, the Flynns "stood up, approached the railing separating the stands from the field, and again flipped off the Giants players while screaming ‘You fucking suck!’ " Compl. ¶ 27. Officer Cusimano determined that the Flynns were violating the stadium's Code of Conduct and "notified Stadium Communications that he needed officers to eject [the Flynns]." Compl. ¶ 28. Officer Cusimano made this decision even though no complaints had been made about the Flynns "by fans, staff, or players." Compl. ¶ 30.

Several officers arrived in response to Officer Cusimano's call. Officer Nelson instructed Officer Rivera to eject the Flynns "due to their behavior." Compl. ¶ 33.

A. Kyle Flynn

When Officer Rivera, along with Officer Walker, approached, Kyle Flynn stayed in his seat. See Compl. ¶ 34. The officers tried to pull Kyle out of his seat, and, at some point, Officer Walker put his arm around Kyle's neck and choked him. See Compl. ¶ 35. Eventually, Kyle was handcuffed and then taken to a Temporary Holding Facility beneath the stadium. See Compl. ¶ 36.

While in the Temporary Holding Facility, Kyle "called out for a lawyer, challenged the officers' legal authority to arrest him, and protested the warrantless search of his brother." Compl. ¶ 37. The officers' response (which officers is not clear) was to put Kyle "in a control hold used for combative prisoners and make him lay "prone on the ground with his legs crossed." Compl. ¶ 37. "Officer Fraser then placed Kyle ... in a total body restraint called a WRAP which immobilizes the legs and upper torso. Kyle['s] face was also wrapped. He was then leaned against the wall and left in the restraint device for at least thirty to forty minutes." Compl. ¶ 37.

Subsequently, Kyle was charged with a violation of California Penal Code § 148(a)(1). Section 148(a)(1) provides in relevant part that "[e]very person who willfully resists, delays, or obstructs any public officer [or] peace officer ... in the discharge or attempt to discharge any duty of his or her officer or employment" is subject to a fine or imprisonment or both. Cal. Pen. Code § 148(a)(1). The Santa Clara District Attorney's Office later dismissed the charge "in the interests of justice and for insufficiency of the evidence." Compl. ¶ 38.

B. Patrick Flynn

When Patrick Flynn saw how Officers Rivera and Walker were treating his brother, he protested their "brutality by shouting ... and pointing at them" and then by "descend[ing] down the steps" and taking a "knee in the aisle at the bottom of the section." Compl. ¶ 39. Officer Rivera told Officer Rodgers that Patrick " ‘needed to go.’ " Compl. ¶ 40.

Officer Rodgers, along with Officer Malae, approached Patrick. Patrick remained in his kneeling position. The officers tried to remove Patrick, and then Officer Rodgers, along with Officer Cusimano and Officer Moreno, tried to pull Patrick's hands off the railing that he was gripping. Sgt. Malae then put Patrick in a carotid restraint and choked him. See Compl. ¶¶ 43-44. Patrick stood up to stop the choking but still held on to the railing. In response, Officer Rodgers, "removed his collapsible baton and struck Patrick['s] fingers and knuckles. Patrick['s] hand had recently been broken." Compl. ¶ 45.

At some point, the scuffle between the officers and Patrick resulted in Patrick being "pushed over the railing and onto the field, some ten (10) feet below." Compl. ¶ 48. Once Patrick fell onto the field, Officer Del Moral rolled Patrick onto his stomach, pulled his left hand behind his back, and struck his body two or three times. See Compl. ¶ 49. In addition, while Patrick was on the ground and pinned by four or five officers, Sgt. Malae used a taser on Patrick, and Officer Nelson used his knee to strike Patrick in the face. See Compl. ¶ 50.

Thereafter, Patrick was placed in handcuffs, arrested, and taken to the Temporary Holding Facility. See Compl. ¶ 50.

C. Ms. Alcarez

Ms. Alcarez was standing behind Officer Rodgers when he used his baton on Patrick Flynn. She knew that Patrick had recently broken his hand and yelled, " ‘[L]eave him alone!’ " and " ‘[S]top hitting him!’ " Compl. ¶ 46. When Officer Rodgers did not stop, Ms. Alcarez grabbed the baton. Officer Rodgers twisted the baton to free it from her grip and elbowed Ms. Alcarez in the chest and shoulder. See Compl. ¶ 46. Officer Cusimano then "grabbed Ms. Alcarez's right arm, pulled it behind her back[,] and put it into a wrist lock." Compl. ¶ 47.

Subsequently, Ms. Alvarez was handcuffed, arrested, and taken to the Temporary Holding Facility. See Compl. ¶ 47.

D. Causes of Action

Based on, inter alia , the above allegations, Plaintiffs assert the following causes of action:

(1) First Amendment retaliation in violation of 42 U.S.C. § 1983. (This claim is asserted by the Flynns only, and not Ms. Alcarez.)

(2) False arrest in violation of § 1983 (e.g. , no warrant and no probable cause).

(3) Excessive force in § 1983.

(4) False arrest and excessive force in violation of California Civil Code § 52.1 (the Bane Act).

(5) Battery.

(6) False arrest without a warrant.

(7) Negligent infliction of emotional distress (based on excessive force only).

Defendants move to dismiss the First Amendment retaliation claim and any claim that is predicated on false arrest. (Defendants do not contest claims predicated on excessive force.) For both the retaliation and false arrest-based claims, Defendants argue failure to state a claim for relief as well as qualified immunity.

II. DISCUSSION

A. Legal Standard

To survive a [12(b)(6) ] motion to dismiss for failure to state a claim after the Supreme Court's decisions in Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) and Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), [a plaintiff's] factual allegations [in the complaint] "must ... suggest that the claim has at least a plausible chance of success." In other words, [the] complaint "must allege ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ "

.... [The Ninth Circuit has] settled on a two-step process for evaluating pleadings:

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.

Levitt v. Yelp! Inc. , 765 F.3d 1123, 1134-35 (9th Cir. 2014).

Notably,

[t]he plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility ‘of entitlement to relief.’ "

Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

"When ... defendants assert qualified immunity in a motion to dismiss under Rule 12(b)(6), ‘dismissal is not appropriate unless [a court] can determine, based on the complaint itself, that qualified immunity applies.’ " O'Brien v. Welty , 818 F.3d 920, 936 (9th Cir. 2016). If a plaintiff "allege[s] acts to which qualified immunity may not apply," dismissal is not...