1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JESSIE WADE PHILLIPS, No. 2:19-CV-0201-TLN-DMC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 KEVIN HAAS, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding pro se, brings this civil action. Pending before the 18 court is defendants’ unopposed motion to dismiss (ECF No. 13). 19 20 I. PLAINTIFF’S ALLEGATIONS 21 This action proceeds on plaintiff Jessie Wade Phillips’ original complaint.1 22 Plaintiff names the following as defendants: (1) Kevin Haas, a detective with the Chico Police 23 Department; and (2) the Chico Police Department. See ECF No. 1, pg. 2. Plaintiff alleges:

24 On April 23, 2016, my mentally ill neighbor smashed through my sliding glass door with a cement irrigation block. When I approached him and 25 asked him to leave he proceeded to stab me several times and a struggle ensued. My fourteen year old son managed to call the police. After the 26 suspect was detained and I was in the ambulance Detective Kevin Haas

27 1 The caption of the complaint lists Jessie Wade Phillips and Jessie Seven Phillips as plaintiffs. See ECF No. 1, pg. 1. The complaint, however, identifies Jessie Wade Phillips as the 28 only plaintiff. See id. at 2. No other plaintiffs are identified. 1 took it upon himself to enter into my residence illegally search my bedroom where he found and seized contraband. I was issued a felony 2 warrant for drug sells nine months later. After nearly three years of deliberation it was found that Detective Haas did in fact violate my fourth 3 amendment rights and the evidence was then suppressed and the charges later dropped. 4 ECF No. 1, pg. 4. 5 6 Plaintiff states he is suing defendant Haas in his individual capacity only. See id. at 2. Plaintiff 7 seeks compensatory and punitive damages. See id. at 5. 8 9 II. STANDARD FOR MOTION TO DISMISS 10 In considering a motion to dismiss, the court must accept all allegations of material 11 fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must 12 also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 13 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 14 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or 15 doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 16 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, 17 need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se 18 pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. 19 Kerner, 404 U.S. 519, 520 (1972). 20 Rule 8(a)(2) requires only “a short and plain statement of the claim showing that 21 the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is 22 and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) 23 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for 24 failure to state a claim under Rule 12(b)(6), a complaint must contain more than “a formulaic 25 recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to 26 raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain 27 “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has 28 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 1 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 2 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more 3 than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. 4 at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, 5 it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id. 6 (quoting Twombly, 550 U.S. at 557). 7 In deciding a Rule 12(b)(6) motion, the court generally may not consider materials 8 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 9 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) 10 documents whose contents are alleged in or attached to the complaint and whose authenticity no 11 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 12 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 13 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 14 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 15 1994). 16 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 17 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 18 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 19 20 III. DISCUSSION 21 In their unopposed motion to dismiss, defendants argue: (1) the entire action is 22 barred by the applicable statute of limitations; and (2) plaintiff fails to state a claim against 23 defendant Chico Police Department.2 To the extent the court does not find these arguments 24 dispositive of the entire action, defendants also seek an order striking plaintiff’s request for 25 punitive damages against defendant Chico Police Department and against defendant Haas in his 26 2 Defendant also argues: (1) plaintiff has not alleged any harm to Jessie Seven 27 Phillis was caused by a person acting under color of state law; (2) Jessie Seven Phillips lacks standing; and (3) plaintiff lacks standing to sue on behalf of Jessie Seven Phillips. Because Jessie 28 Seven Phillips is not a party to this action, the court does not consider these arguments. 1 official capacity.3 2 A. Statute of Limitations 3 In actions under 42 U.S.C. § 1983, the applicable statue of limitations is defined 4 by the law of the state in which the action arose. See Owens v. Okure, 488 U.S. 235 (1989). 5 Plaintiff alleges that the events giving rise to his lawsuit occurred in Chico, California. See ECF 6 No. 1, pg. 4. Therefore, this action is governed by California’s 2-year statute of limitations for 7 personal injury actions found at California Code of Civil Procedure § 335.1. The cause of action 8 accrued when plaintiff was aware of his claim. See Wallace v. Kato, 549 U.S. 384, 388 (2007). 9 Here, plaintiff claims his constitutional rights were violated by an illegal search and seizure which 10 occurred on April 23, 2016. See ECF No. 1, pg. 4. 11 According to defendants:

12 Here, Plaintiff Jessie Wade Phillips alleges that on April 23, 2016, his mentally ill neighbor stabbed him several times after smashing through 13 a glass sliding door in Plaintiffs’ residence. (Complaint, Page 4, Sec. III (c)). After the suspect neighbor was detained, Plaintiffs claim that Hass 14 entered Plaintiffs’ residence illegally and conducted a protective sweep search of Plaintiff’s bedroom. (Complaint, Page 4, Sec. III (c)). 15 In Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir. 1983), the court found that “where false arrest or illegal search and seizure is alleged, 16 the conduct and asserted injury are discrete and complete upon occurrence, and the cause of action can reasonably be deemed to have 17 accrued when the wrongful act occurs.” In addition, under Wallace supra, accrual of Plaintiff’s claims 18 under §1983 occurs when the plaintiff had a complete and present cause of action and the plaintiff can file suit and obtain relief. 19 Based on the facts provided in the complaint, Plaintiffs had a complete and present cause of action on April 23, 2016, the date of the 20 alleged constitutional violation. Yet, Plaintiffs’ complaint was filed approximately two (2) years and ten (10) months later, on February 1, 21 2019. This is beyond the statute of limitations applicable to § 1983 actions. Thus, Plaintiffs’ Complaint should be dismissed with prejudice. 22 23 Defendants’ argument, which is unopposed, is well-taken. The court finds that 24 plaintiff’s claim accrued on April 23, 2016, as alleged in the complaint. Applying the 2-year 25 limitations period applicable to this action, plaintiff’s complaint was due on or before April 23, 26 2018. Plaintiff’s complaint, filed on February 1, 2019, is untimely and the entire action should be

27 3 It is not necessary to consider defendants’ argument concerning damages sought against defendant Haas in his official capacity because plaintiff specifically sues this defendant in 28 his individual capacity only. 1 dismissed with prejudice. 2 B. Municipal Liability 3 Municipalities and other local government units are among those “persons” to 4 whom § 1983 liability applies. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). 5 Counties and municipal government officials are also “persons” for purposes of § 1983. See id. 6 at 691; see also Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989). A local 7 government unit, however, may not be held responsible for the acts of its employees or officials 8 under a respondeat superior theory of liability. See Bd. of County Comm’rs v. Brown, 520 U.S. 9 397, 403 (1997). Thus, municipal liability must rest on the actions of the municipality, and not of 10 the actions of its employees or officers. See id. To assert municipal liability, therefore, the 11 plaintiff must allege that the constitutional deprivation complained of resulted from a policy or 12 custom of the municipality. See id. A claim of municipal liability under § 1983 is sufficient to 13 withstand dismissal even if it is based on nothing more than bare allegations that an individual 14 defendant’s conduct conformed to official policy, custom, or practice. See Karim-Panahi v. Los 15 Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988). 16 Defendants argue:

17 Here, Plaintiffs claim that Hass entered Plaintiffs’ residence illegally and conducted a protective sweep search of Plaintiff’s bedroom. 18 (Complaint, Page 4, Sec. III (c)). The complaint does not contain any factual allegation sufficient to state a claim that the Department deprived 19 Plaintiffs of any federal rights caused by its own policy, custom or practice as required under Monell. 20 Simply put, Plaintiffs seek to hold the Department liable for Hass’ alleged misconduct. Monell clearly establishes that in order to sue a 21 governmental unit under § 1983, Plaintiffs must allege and show that action taken pursuant to official policy, custom or practice caused the 22 alleged injury. This requirement is not present in the complaint. As such, Plaintiffs’ claim for violation of 42 U.S.C. § 1983 against the Department 23 should be dismissed. 24 This argument, which is also unopposed, is persuasive. It is clear from the face of 25 the complaint that plaintiff does not allege his constitutional rights were violated as the result of 26 implementation of some official policy, custom, or practice. Rather, plaintiff appears to allege 27 the Chico Police Department is liable for the actions of its employee, defendant Haas. As 28 defendants correctly note, defendant Chico Police Department may not be held liable under 1 | § 1983 for the actions of its employees. 2 3 IV. CONCLUSION 4 Based on the foregoing, the undersigned recommends that defendants’ unopposed 5 | motion to dismiss (ECF No. 13) be granted and this action be dismissed in its entirety with 6 | prejudice. 7 These findings and recommendations are submitted to the United States District 8 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 9 | after being served with these findings and recommendations, any party may file written objections 10 | with the court. Responses to objections shall be filed within 14 days after service of objections. 11 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 12 | Yist, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 |} Dated: November 5, 2019 Ssvcqo_ 16 DENNIS M. COTA 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28