Barge v. Ken Bett's Towing Company

Background

Melissa Barge, proceeding without a lawyer, applied to proceed without paying filing fees. The court found that she was indigent and granted that application. It then conducted the required initial screening of her complaint under 28 U.S.C. § 1915(e)(2)(B). Because Barge did not consent to a magistrate judge’s jurisdiction, the court stated that it intended to reassign the case to a district judge and prepare a report and recommendation concerning the adequacy of her claims.

Barge alleged that Officer Marc Horwitz of the Alameda Police Department stopped her for allegedly talking on a cellphone while driving and for not immediately providing identification. She alleged that he forcibly removed her from her car, handcuffed her, placed her in an SUV, and took her to jail. She also alleged that the Alameda Police Department turned her car over to Ken Bett Towing, which she said worked under contract with the City of Alameda and Alameda Police. According to Barge, the towing company refused to return the car unless she paid $4,000, prevented her from retrieving personal property, and never returned the car.

Barge asserted claims under the Fourth and Fifth Amendments and a claim described as a “Stop and Identify Violation,” which the court construed as civil-rights claims under 42 U.S.C. § 1983. She also asserted a claim under Article 1, Section 16 of the California Constitution, which the court construed as a claim under Article 1, Section 9. She sought a preliminary injunction requiring defendants to return her car and requested declaratory relief.

Screening standards

The court explained that screening under § 1915 requires dismissal of claims that are frivolous or malicious, fail to state a claim on which relief may be granted, or seek money damages from an immune defendant. It also applied Federal Rule of Civil Procedure 12(b)(6), which asks whether the complaint contains enough factual allegations to state a plausible claim for relief. Because Barge was representing herself, the court was required to read her allegations liberally and ordinarily provide an opportunity to amend unless the deficiencies could not be cured.

Claims under 42 U.S.C. § 1983

The court held that the Alameda Police Department was not a proper defendant for Barge’s § 1983 claims because a municipal police department or other municipal subunit is generally not a “person” under that statute. The court stated that this defect could not be cured by amendment.

The court concluded that Barge’s § 1983 claims against the City of Alameda were insufficient as pleaded. A city cannot be held vicariously liable for an officer’s conduct under § 1983; liability requires an official policy or custom that caused the constitutional violation. The court found Barge’s allegation that the city had failed to adopt appropriate policies too conclusory and vague to support city liability.

The court also found that Ken Bett Towing was not a proper defendant for the Fourth Amendment claims based on the conditions of Barge’s arrest and detention. Although Barge alleged that the towing company contracted with the city and refused to return her car on instructions from the police department, she did not allege that the towing company controlled Officer Horwitz or conspired with the city concerning the alleged Fourth Amendment violations.

The court reached a different preliminary conclusion concerning the alleged property deprivation. It stated that Barge’s allegations could be sufficient to allow her Fifth Amendment claim against Ken Bett Towing, based on the alleged deprivation of her car without due process, to survive the initial review. The court also stated, for purposes of preliminary review and without prejudice to arguments the defendants might make in a later motion to dismiss, that Barge adequately alleged that Officer Horwitz stopped her without reasonable suspicion and arrested her for refusing to provide identification. That allegation was sufficient at this stage for the “Stop and Identify” claim against him.

California constitutional claim

The court found that Barge’s fourth claim failed against all defendants. Barge cited Article 1, Section 16, but the court construed the claim under Article 1, Section 9, which addresses bills of attainder, ex post facto laws, and laws impairing contract obligations. The court explained that Barge had not identified a law fitting any of those categories. Her allegations about robbery, assault, false imprisonment, identity, and property did not identify an applicable bill of attainder, ex post facto law, or law impairing contract obligations.

Order

The court ordered Barge, by July 2, 2021, either to file an amended complaint curing the identified deficiencies or to respond to the order and explain why the claims were adequately alleged. It stated that if she did not respond, the case would be reassigned to a district judge with a recommendation that the claims found insufficient be dismissed. The order itself was an order to show cause, not a final dismissal of those claims. The court continued the case-management conference to August 27, 2021. Judge Spero issued the order.