Available outside my office.
Section A
Median: 33
Mean: 30.1
High:42
Section B:
Median:31
Mean:31.4
High: 41
Defendant’s Motion to Dismiss under FRCP 12(b)(6) is denied.
A motion to dismiss for failure to state a claim tests the legal and factual sufficiency of a pleading stating a claim for relief. A court can dismiss with prejudice (with leave to replead) or without prejudice (with leave to replead).
Considering Audio Recording
A court on a 12(b)(6) motion examines the four corners of the complaint. FRCP 12(d). If on a 12(b)(6) motion material not contained within (or treated as within) the four corners is presented to and not excluded by the court, the court must convert the motion to one for summary judgment. FRCP 12(d). The “four corners” includes four things. The court looks at the allegations in the complaint and written instruments and documents attached to the pleading, which are treated as part of the pleading for all purposes. FRCP 10(c). It considers documents and instruments that, although not attached, were referenced and relied on and are integral to the pleading. And it takes judicial notice of facts in public records and generally known facts.
The audio recording of the conversation October 13, 2020 meeting between Bermeo and the defendants falls within the four corners and thus can be considered on a 12(b)(6) motion. Although the audio was neither attached to the pleading nor mentioned in it, the Complaint details the October 13 conversation. (Compl. ¶¶ 27-36). The audio—recording and capturing something the complaint describes and even quotes—is relied on and integral to the complaint. Twombly reviewed an unattached magazine article from which the complaint took one quotation; this court therefore can consider the audio recording of a conversation that the complaint describes.
Analyzing the Motion
A pleading asserting civil rights claims must comport with FRCP 8(a)(2) and no higher standard. Johnson; Swierkiewicz. This requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” FRCP 8(a)(2). A complaint provides the defendant with “fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Twombly; Conley.
Under Twombly, as affirmed in Iqbal, a complaint must contain sufficient nonconclusory factual matter to raise a right to relief that is “plausible on its face.” It must plead sufficient non-conclusory facts, taken as true, to plausibly suggest an entitlement to relief. Iqbal. The plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal. The allegations must show that relief is more than possible (that the defendant could have engaged in wrongdoing) although it need not be probable (more likely than not the defendant engaged in wrongdoing). Twombly. Labels, “bald” legal conclusions, and formulaic or threadbare recitations of the elements of a claim are not entitled to a presumption of truth. Iqbal. Nonconclusory allegations accepted as true must identify a real-world transaction or occurrence, describing specific action by specific individuals.
The court takes all nonconclusory allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff. Vullo. This “context-specific task” requires the “reviewing court to draw on its judicial experience and common sense” to decide whether the plaintiff has plausibly alleged an entitlement to recovery. Iqbal; Twombly. A plaintiff sufficiently pleads through direct factual allegations and through factual allegations permitting reasonable inferences, drawn in favor of the plaintiff, showing liability. NRA; Iqbal. She must allege facts simply, plausibly, and directly. Johnson; FRCP 8(d)(1).
Plaintiff must plead facts showing a plausible claim that the officers lacked probable cause to arrest her and to initiate a criminal prosecution. Graham. Probable cause to arrest exists when the facts and circumstances within an officer’s knowledge would lead a reasonable person to believe that a crime has been committed. Id. An officer who arrests an individual based solely on a coerced confession, with no additional evidence sufficient to show that a crime occurred, lacks probable cause for that arrest and thus violates the Fourth Amendment. Rivas. A coerced confession is a statement made by an individual under pressure or duress, rather than through their own free will. Actual use or threats of physical force are not required to establish coercion. Nor are threats of adverse consequences. Courts consider the totality of the circumstances surrounding the statement’s acquisition. Id.
Accepting the well-pleaded allegations and the audio recording as true and drawing reasonable inferences for plaintiff, she has pleaded a plausible claim defendants lacked probable cause.
The confession provides the only evidence Bermeo committed the crime of lying to police; no other evidence provides probable cause. The surveillance video purporting to show that her car was not stopped was taken at the wrong date and time and was of too poor a quality to identify any vehicles. (Compl. ¶¶ 19-21). It therefore does not show the absence of a stop and the untruthfulness of Bermeo’s statements. Bermeo was acquitted of the charges (Compl. ¶ 50). Combined with the viewing of improper evidence, the acquittal shows absence of probable cause. Heck.
Bermeo’s claim turns on whether the confession was coerced. The totality of the circumstances alleged in the complaint, consistent with the audio recording, make that conclusion plausible.
Roop falsely told Bermeo that the surveillance video contradicted her story—that it showed her vehicle but no vehicle following her. (Compl. ¶ 29). The footage—poor quality and on the wrong date and time (Compl. ¶¶ 20-21, 30) showed no such thing. Defendants informed Bermeo about the downloadable apps that would ring to her phone (Compl. ¶ 28), which Bermeo "parroted" back to them, believing it to be what they wanted to hear. (Compl. ¶ 35). They demanded that she “tell [them] the truth, which is that no stop happened here,” (Compl. ¶ 33), on pain of embarrassment to Bermeo. (Compl. ¶ 32).
It is true, as the audio reveals, that the officers never raised their voices, never threatened force or adverse consequences, and expressed concern for her mental well-being. (Audio). But coercion does not require threats. Rivas. Drawing reasonable inferences for the plaintiff, these circumstances—a suggestion of her untruthfulness, a hint at an alternative cause, and pushing her to tell them something—plausibly show Bermeo’s will was overwhelmed.
