2011-00111719-CU-PO

Darin D. Greene vs. Sacramento City Police Department

Nature of Proceeding:    Hearing on Demurrer

Filed By:  Womack, David S.

If oral argument is requested, the hearing for the oral argument will be on Monday
June 23, 2014 in Department 53 at 2:00 p.m.  If this time is not convenient, the parties
shall meet and confer on a later date for oral argument and inform the court clerk by
4:00 p.m. on June 19.

Defendant Sacramento City Police Department’s Demurrer to the 3rd amended
complaint is sustained without leave to amend for failure to state facts sufficient to
constitute a cause of action.

Plaintiff’s Third Amended Complaint (“TAC”) alleges a single cause of action for
violation of 42 U.S.C. 1983 against the City, the City’s former Chief of Police Rick
Braziel and City Police Officer Davis in connection with an incident which occurred on
April 12, 2011. (Twin Rivers Unified School District and some of its
employees are also named.) Plaintiff alleges that a District officer was negligent at the
time that he conducted a probationary search of plaintiff, by allowing his K9 too close
to plaintiff’s pet pit bull dog “Ready”, causing the animals to fight, and leading to the
officer shooting plaintiff’s dog Ready by a District Officer.

The alleged liability of Officer Davis arises out of a single statement to plaintiff, while
the Twin River’s Officer was detaining him, that “I told you to stay out of my area”  and
Officer Davis’ alleged failure to prevent the TRUSD Officer from shooting plaintiff’s dog.
Plaintiff alleges that Davis violated equal protection by not protecting plaintiff from the
TRUSD Officer. Plaintiff does not allege that any of the actions arose out of an official
policy. Plaintiff’s 42 U.S.C 1982 claim is time-barred. Plaintiff abandoned his Equal Protection
claim when he deleted it from his 2nd amended complaint. A claim that is abandoned
by an earlier amended complaint is barred by the statute of limitations. Hal Roach
Studios, Inc. v. Richard Feiner & Co. (9th Cir.1990) 896 F.2d 1542, 1546 [“[A]n
amended pleading superseded the original.”]; King v. Atiyeh (9th Cir. 1987) 814 F.2d
565, 567 [“All causes of action alleged in an original  complaint which are not alleged
in an amended complaint are waived.”].)  Plaintiffs Second Amended  Complaint failed
to contain any claim or cause of action brought under 42 U.S.C. § 1983 for an alleged
violation of his right to equal protection under the law. Rather, that amended pleading
only asserted a claim brought under a theory of negligence. Accordingly, because
Plaintiffs equal protection claim was waived by his amended  pleadings and because
his Third Amended Complaint (“TAC”) was filed well beyond the applicable statute of
limitations to assert such a claim, the demurrer is properly sustained because the
claim is time barred. (Code Civ. Prod., § 335.1 [providing the applicable 2-year
limitations period].)

Even if the claim were not time-barred, it fails on the merits. The City cannot be liable
unless an “official” action amounted to a violation of a specific constitutional or other
federal right. If the plaintiff has not suffered a violation of a constitutional other federal
right, there can be no liability under Monell v. Department of Social Services (1978)
436 U.S. 658. Plaintiff has alleged no “policy.”

Moreover, the actions of the individual Officer, as a matter of law, do not rise to the
level of a Constitutional vioaoltion.  The only factual allegations are that (1) a
Sacramento Police officer made a  remark to Plaintiff about “staying out” of the area;
and (2) the City police officer nodded to the TRUSD police officer before driving away.
Everything else pertains to the actions of the TRUSD police officer – not the actions of
the City police officer. Plaintiffs theory of liability arises from his mistaken belief that,
even though the City police officer had left the scene, the City police officer still had a
statutory duty to protect him from actions of a police
officer employed by an entirely different public agency.

The Civil Rights Act does not make every injury in  which a governmental official may
have played some part actionable. Martinez v. California (1980) 444 U.S. 277, 285.)
An official’s failure to prevent third party acts are not generally cognizable. (See, e.g.,
Aaituti v. Grande Prop . (1994) 29 Cal.App.4th 1369, 1378 [alleged negligent failure of
city to ensure that private pool complied with city safety regulations did not give rise to
liability under § 1983]; Berman v. City of Daly City (1993) 21 Cal.A.pp.4th 276, 285
[police officer’s negligent or grossly negligent operation of vehicle during pursuit of
criminal suspect is not cognizable under § 1983]; Estate of Oilmore v. Buckley (1st Cir.
1986) 787 F.2d 714 [failure of prison officials to protect murder victim from assault by
third party on furlough was not actionable under § 1983 even though third party had
announced his intent to hard the victim].)

Plaintiff has proferred no facts that would cure the defect as to the City.  Plaintiff
discusses many other alleged wrongs committed by TRUSD police that are
unconnected to his own case.  Plaintiff has not pointed to any specific facts concerning
his case that would form a basis for a civil rights claim against the City.  No further
leave to amend is granted.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.

The prevailing party shall prepare a formal order and dismissal for the Court’s
signature pursuant to C.R.C. 3.1312.