1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 OREST BAIDAN, Case No. 24-cv-03171-VKD

9 Plaintiff,

ORDER GRANTING DEFENDANT’S

10 v. PARTIAL MOTION TO DISMISS

WITH LEAVE TO AMEND

11 JACOB SHULL, Re: Dkt. No. 13 Defendant. 12

13 14 Plaintiff Orest Baidan brings this action against defendant Jacob Shull, an officer of the 15 Mountain View Police Department, asserting violations of his civil rights, pursuant to 42 U.S.C. 16 § 1983, for excessive force in violation of the Fourth Amendment (claim 1), and unlawful arrest in 17 violation of the Fourth Amendment (claim 2).1 Dkt. No. 1 ¶¶ 8-11. Pursuant to Rule 12(b)(6) of 18 the Federal Rules of Civil Procedure, Officer Shull moves to dismiss Mr. Baidan’s unlawful arrest 19 claim for failure to state a claim. Dkt. No. 13. He does not challenge Mr. Baidan’s first claim for 20 excessive force under Rule 12(b)(6). Id. Mr. Baidan opposes Officer Shull’s partial motion to 21 dismiss. Dkt. No. 18. The Court finds this matter suitable for decision without oral argument and 22 vacates the hearing scheduled for October 15, 2024. See Civil L.R. 7-1(b). 23 Upon consideration of the moving and responding papers, the Court grants Officer Shull’s 24 partial motion to dismiss, with leave to amend. 25 26

27 1 All named parties have expressly consented that all proceedings in this matter may be heard and 1 I. BACKGROUND 2 According to the complaint, “on or about May 26, 2022, at approximately 11:00 p.m.,” Mr. 3 Baidan was in his bed preparing to go to sleep. Dkt. No. 1 ¶ 5. At this time, Officer Shull entered 4 “private property” (presumably, the residence where Mr. Baidan was preparing to sleep) and asked 5 Mr. Baidan “if [Mr. Baidan] had intentionally spit on his wife, Valentyna Baidan.” Id. ¶ 6. Mr. 6 Baidan “denied ever spitting on his wife and informed [Officer Shull] that his wife was 7 blackmailing him, asking him to leave the house, and threatening malicious prosecution if he did 8 not comply with her demands.” Id. Officer Shull responded that “he was going to arrest [Mr. 9 Baidan] one way or the other” and proceeded to handcuff him. Id. Mr. Baidan informed Officer 10 Shull that “he is disabled” and “needs his hands for crutches or a wheelchair.” Id. 11 Mr. Baidan alleges that Officer Shull “forcefully dragged” Mr. Baidan to the officer’s 12 police vehicle and “tried to forcefully push [Mr. Baidan] in, triggering heart failure.” Id. Mr. 13 Baidan says he told Officer Shull that he was unable to breathe and had chest pain. Id. An 14 ambulance was called and Mr. Baidan was taken the emergency room at El Camino Hospital. Id. 15 At the hospital, Officer Shull “used animal restraints to chain [Mr. Baidan] to a wheelchair.” Id. 16 Office Shull subsequently provided a written statement to Mr. Baidan asserting that Mr. Baidan 17 had been temporarily detained but not arrested. Id. He removed Mr. Baidan’s restraints and left 18 the hospital. Id. 19 Mr. Baidan alleges that, as a result of Officer Shull’s actions, he “suffered critical damage 20 to his heart with no possibility of full recovery.” Id. ¶ 7. He states that he is scheduled to undergo 21 open-heart surgery. Id. Mr. Baidan seeks compensatory damages “in an amount to be determined 22 at trial,” as well as punitive damages and attorneys’ fees. Id. at 3. 23 II. LEGAL STANDARD 24 A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal 25 sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 26 Dismissal is appropriate where there is no cognizable legal theory or an absence of sufficient facts 27 alleged to support a cognizable legal theory. Id. (citing Balistreri v. Pacifica Police Dep’t, 901 1 taken as true and construed in the light most favorable to the claimant. Id. 2 However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 3 conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and “[f]actual 4 allegations must be enough to raise a right to relief above the speculative level,” Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 555 (2007) (citations omitted). Moreover, the Court is not required to 6 “‘assume the truth of legal conclusions merely because they are cast in the form of factual 7 allegations.’” Prager Univ. v. Google LLC (“Prager I”), No. 17-cv-06064-LHK, 2018 WL 8 1471939, at *3 (N.D. Cal. Mar. 26, 2018) (quoting Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th 9 Cir. 2011) (per curiam)). Nor does the Court accept “allegations that are merely conclusory, 10 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 11 F.3d 1049, 1055 (9th Cir. 2008). 12 Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the 13 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that the “[f]actual allegations 14 must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 15 (citations omitted). However, only plausible claims for relief will survive a motion to dismiss. 16 Iqbal, 556 U.S. at 679. A claim is plausible if the facts pled permit the court to draw a reasonable 17 inference that the defendant is liable for the alleged misconduct. Id. A plaintiff does not have to 18 provide detailed facts, but the pleading must include “more than an unadorned, the-defendant- 19 unlawfully-harmed-me accusation.” Id. at 678. 20 III. DISCUSSION 21 Section 1983 provides a cause of action for the “deprivation of any rights, privileges, or 22 immunities secured by the Constitution and laws” of the United States. A claim for civil rights 23 violations under § 1983 requires two essential elements: (1) that a right secured by the 24 Constitution or laws of the United States was violated, and (2) that the alleged violation was 25 committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 26 Officer Shull does not dispute that the complaint adequately alleges he acted under color of state 27 law. He argues that Mr. Baidan has not alleged facts sufficient to support a plausible claim for 1 A. Mr. Baidan’s Unlawful Arrest Claim 2 To state a claim for unlawful arrest, Mr. Baidan must allege facts plausibly showing that he 3 was arrested without probable cause. See United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 4 2007). “Probable cause” exists when, under all of the circumstances known to the officer at the 5 time, an objectively reasonable officer would conclude there is a fair probability that the person 6 arrested had committed or was committing a crime. Lacey v. Maricopa Cnty., 693 F.3d 896, 918 7 (9th Cir. 2012); see also Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (“Whether probable cause 8 exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting 9 officer at the time of the arrest.”). 10 In support of his claim that Officer Shull arrested him without probable cause, Mr. Baidan 11 alleges that: (1) Officer Shull questioned him about whether he intentionally spit on his wife; (2) 12 he denied doing so; but (3) despite this denial, Officer Shull arrested him. Dkt. No. 1 ¶ 6. The 13 complaint does not identify the offense for which Mr. Baidan was arrested. 14 Officer Shull moves to dismiss on the ground that the facts alleged support the existence of 15 probable cause for an arrest for misdemeanor spousal battery under California Penal Code 16 § 243(e). Dkt. No. 13 at 6. Specifically, he argues that the only reasonable inference that can be 17 drawn from Mr. Baidan’s allegations is that Mr. Baidan’s wife, Valentyna Baidan, reported to law 18 enforcement that he had intentionally spit on her, and that Officer Shull responded to and acted 19 upon that report. Id. at 4, 6. Officer Shull contends that, in order to counter a theory of probable 20 cause based on his wife’s report, Mr. Baidan would have to allege that Officer Shull failed to 21 independently investigate his wife’s complaint before deciding to arrest Mr. Baidan. Id. at 6 22 (citing Peng v. Mei Chin Penghu, 335 F.3d 970, 978 (9th Cir. 2003)). 23 In opposing Officer Shull’s motion, Mr. Baidan does not dispute that spitting on his wife 24 would support a charge of spousal battery, and he does not appear to dispute that his wife told 25 Officer Shull that Mr. Baidan spit on her. Dkt. No. 18 at 2, 3. Rather, he appears to suggest that 26 the assertions his wife made to Officer Shull were not credible.2 Id. Mr. Baidan does not address 27 1 Officer Shull’s contention that the complaint must affirmatively allege a failure to investigate the 2 bases for his wife’s battery claim. 3 The complaint does not plead facts sufficient to support a claim for unlawful arrest. Mr. 4 Baidan’s opposition suggests that he was aware Officer Shull entered his “private property” in 5 response to a report from Mr. Baidan’s wife that she had been battered—circumstances which bear 6 directly on whether Mr. Baidan properly may assert a claim for unlawful arrest—but the complaint 7 simply omits any factual allegations regarding these matters. In view of Mr. Baidan’s apparent 8 concession that his wife did make a report to law enforcement, and that Officer Shull questioned 9 him about that report before taking him into custody, the Court cannot plausibly infer from the 10 existing allegations that Officer Shull lacked probable cause to arrest Mr. Baidan. See Calderon v. 11 City of San Jose, No. 24-cv-00289-VKD, 2024 WL 3560729, at *4 (N.D. Cal. July 26, 2024). 12 However, the Court rejects Officer Shull’s assertion that the only reasonable inference to 13 be drawn from the few facts alleged in the complaint is that Officer Shull responded to a report 14 from Mr. Baidan’s wife that Mr. Baidan spit on her and that it was objectively reasonable for 15 Officer Shull to rely on this report as a basis for arresting Mr. Baidan. Thus, while the Court finds 16 that claim 2 as presently pled does not state a plausible claim for unlawful arrest, it is not clear 17 whether Mr. Baidan could state a claim if given leave to amend. 18 B. Leave to Amend 19 Rule 15(a) provides that leave to amend “should be freely given when justice so requires,” 20 and “the court must remain guided by the underlying purpose of Rule 15 . . . to facilitate decision 21 on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 22 (9th Cir. 2000) (en banc) (quotations and citations omitted). “The decision of whether to grant 23 leave to amend nevertheless remains within the discretion of the district court,” which may deny 24 leave to amend if allowing amendment would unduly prejudice the opposing party, cause undue 25 delay, or be futile, or if the party seeking amendment has acted in bad faith. Leadsinger, Inc. v. 26 those matters in deciding Officer Shull’s partial motion to dismiss. In re NVIDIA Corp. Sec. 27 Litig., 768 F.3d 1046, 1051 (9th Cir. 2014) (review is limited to “the complaint itself and its 1 || BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (citing Foman v. Davis, 371 U.S. 178, 182 2 |} (1962)). 3 Because it is possible that Mr. Baidan may be able to allege additional facts supporting his 4 || claim for unlawful arrest, and because affording leave to amend will not cause undue delay or 5 || prejudice to Officer Shull, the Court grants leave to amend claim 2. 6 || IV. CONCLUSION 7 For the reasons explained above, the Court grants Officer Shull’s partial motion to dismiss 8 Mr. Baidan’s second claim for unlawful arrest. If Mr. Baidan wishes to amend this claim, he must 9 do so by filing a first amended complaint by November 1, 2024. He may not amend his first 10 || claim for excessive force or add any other claims to his complaint, without first obtaining leave of 11 court. 12 The Court vacates the hearing set for October 15, 2024. 5 13 The Court continues the initial case management conference to December 10, 2024 at 14 1:30 p.m. via Zoom videoconference. 3 15 IT IS SO ORDERED. a 16 Dated: October 11, 2024

1g Vsaagu J ik KMar □□□ Virginfa K. DeMarchi 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28