1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER K. ALONSO, Case No.: 23cv6-CAB(LR)
12 Plaintiff, REPORT AND 13 v. RECOMMENDATION REGARDING MOTION TO DISMISS 14 EL CENTRO POLICE DEPARTMENT, COMPLAINT 15 Defendant. [ECF No. 19] 16 17 18 19 This Report and Recommendation is submitted to the Honorable Cathy Ann 20 Bencivengo, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil 21 Local Rule 72.1(c) of the United States District Court for the Southern District of 22 California. On January 3, 2023, Plaintiff Christopher K. Alonso (“Plaintiff”), proceeding 23 pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against the El Centro 24 Police Department and several individual El Centro police officers. (See Compl., ECF 25 No. 1 (“Complaint”).) 26 / / / 27 / / / 28 / / / 1 Now pending before the Court is a “Motion to Dismiss [Plaintiff’s] Complaint.” 2 (See ECF No. 19 (“Motion”).) For the reasons set forth below, the Court 3 RECOMMENDS that Judge Bencivengo GRANT the Motion and dismiss Plaintiff’s 4 Complaint in its entirety without prejudice and with leave to amend. 5 I. BACKGROUND 6 A. City of El Centro’s Motion to Dismiss 7 1. Procedural history 8 On January 3, 2023, Plaintiff Christopher K. Alonso (“Plaintiff”) commenced this 9 action against the City of El Centro (“City,” “El Centro,” or “Defendant”) (erroneously 10 sued as El Centro Police Department)1 and individual El Centro police officers Christian 11 Ortega, Valencia, Kirkshaw, and Sargeant Hidalgos for violation of his civil rights under 12 42 U.S.C. § 1983 during an incident that led to his arrest on the night of October 1, 2022. 13 (Complaint at 1, 4, 7, 10.) On February 14, 2023, the City of El Centro filed a motion to 14 dismiss for improper service under Federal Rule of Civil Procedure 12(b)(5), or in the 15 alternative for the Court to quash service of the summons and file a waiver of service on 16 behalf of the City that had previously been sent to Plaintiff. (ECF No. 7.) After issuing 17 an order explaining that Plaintiff had not adequately served the summons and a copy of 18 the complaint in this action on the City (ECF No. 14), District Judge Bencivengo issued a 19 revised ruling quashing the service of summons, accepting the City’s waiver of service, 20 and giving Plaintiff a deadline of May 17, 2023, to serve the individual defendants named 21 in the complaint. (ECF No. 16.) The instant motion to dismiss was filed on May 26, 22 2023 by the City of El Centro, contending that Plaintiff fails to state a claim upon which 23 relief can be granted under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 19.) 24 After District Judge Bencivengo referred the motion to this Court for a Report and 25 26 27 1 The City contends that Plaintiff erroneously sued the El Centro Police Department (“Police Department”) rather than the City of El Centro. (ECF No. 7-1 at 1.) If Plaintiff seeks to amend his 28 1 Recommendation, Plaintiff filed an opposition on June 13, 2023 (ECF No. 21), and the 2 City filed a reply on July 14, 2023 (ECF No. 22), making the motion fully briefed. The 3 undersigned held an in-person hearing on the Motion on August 9, 2023. 4 2. Factual background 5 The Complaint alleges the following facts:2 6 On October 1, 2022, at approximately 9:30 pm, Plaintiff went to a “7 eleven store” 7 to purchase a money order. (Compl., ECF No. 1 at 13.) The cashier told him that the 8 store “did not provide such services” and refused to provide him with a money order. 9 (Id.) After a heated verbal exchange with the cashier, Plaintiff told her that “[she] should 10 start looking for another job because [he was] going to call [their] corporate office and 11 they are going to fire [her].” (Id.) When Plaintiff left and was driving past the store, he 12 noticed that the cashier was holding a cell phone which he believed was recording him. 13 (Id.) He put his car in park, walked over to her, and asked “whether or not [he] could 14 help her” and had another “verbal exchange of words.” (Id.) Plaintiff then drove off and 15 yelled that she could “call the cops if she wanted as they were not going to do anything” 16 because he was “practicing [his] first amendment right.” (Id.) Plaintiff denies making 17 any verbal threats throughout this exchange with the cashier. (Id.) 18 At approximately 10:30 pm, three El Centro police officers in uniform arrived on 19 the front doorstep of his residence. (Id.) The officers asked “whether [he] had some sort 20 of altercation at a 7 eleven store.” (Id.) Plaintiff told the officers that he “had no incident 21 but [he] did express [him]self with profanity,” asking what crime he had committed and 22 “their reason for being in [his] presence.” (Id.) After the officers “had no comments 23 regarding such statements,” Plaintiff advised the officers “to leave his property as they 24 were trespassing,” “had no probable cause to be [t]here,” and that “they were violating 25 [his] rights.” (Id.) Plaintiff then began to record on his cell phone “for his own safety.” 26
27 2 The facts alleged in the Complaint are assumed to be true for the purposes of a Rule 12(b)(6) motion. 28 1 (Id.) Two of the three officers then “[came] in close proximity of [his] personal space” 2 and would not step away when asked. (Id.) Plaintiff then told them that “[he] would 3 fight back if [he was] to be grabbed or touch[ed] unlawfully.” (Id.) Plaintiff was in 4 “gym shorts and a t shirt[] with sandals” which demonstrated that he “meant no physical 5 threat.” (Id.) 6 Approximately half an hour later, more units arrived, totaling about seven police 7 cars. (Id.) Plaintiff told the new officers that they “did not have a reason to be there and 8 couldn’t produce a crime” so they “needed to leave” because “they were trespassing” and 9 “violating [his] rights” “without a warrant.” (Id.) One new officer “slander[ed] some 10 false crime” but did not “take initiative to take [him] into custody.” (Id.) Plaintiff then 11 walked back into his front lawn, when an officer told him that “[he] wasn’t free to go.” 12 (Id.) Plaintiff replied that “[he] wasn’t going anywhere.” (Id.) 13 Two officers then grabbed Plaintiff’s arms and another officer kicked his legs from 14 behind. (Id.) Plaintiff did not resist and “fell straight down on [his] belly” with his “right 15 arm stuck” underneath the combined weight of himself and all the officers. (Id.) 16 Plaintiff was already subdued with no movement by this point, but an officer “constantly 17 hit his ankles as [he] laid on the floor.” (Id.) Plaintiff told the officers that he was not 18 resisting but could not pull his right hand behind his back due to the weight on top of it. 19 (Id.) The officers “picked [him] up off the floor with handcuffs” and an officer grabbed 20 his shirt, pulling him by the collar and “excessively choking [him] before placing him 21 inside the patrol unit.” (Id.) This unit had no cameras and was not video equipped, 22 which did not make him feel safe. (Id.) State Court records attached to both parties’ 23 filings note that Plaintiff was charged with making criminal threats and violently resisting 24 officers in Imperial County Superior Court. 25 Plaintiff alleges violations of his constitutional rights under the First and Fourth 26 Amendments, as well as a state law claim for slander against the City and the individual 27 El Centro police officers. (ECF No. 1 at 3.) With respect to the Fourth Amendment, 28 Plaintiff alleges that (1) he was arrested without probable cause, and (2) that the officers 1 used excessive force against him. (Statement Claim at 1.) 2 C. Individual Defendants 3 Plaintiff’s Complaint also names several police officers from the El Centro Police 4 Department as individual defendants: Officer Christian Ortega, Officer Valencia, 5 Sergeant Hidalgos, and Officer Kirkshaw. (Complaint at 2, 8.) On April 14, 2023, 6 District Judge Bencivengo issued an Order on the City of El Centro’s motion to dismiss 7 for improper service, which stated that “Plaintiff must either file a proof of service 8 demonstrating that each defendant has been served with the summons and complaint or 9 SHOW CAUSE in writing, on or before May 17, 2023, why this matter should not be 10 dismissed in its entirety for failure to prosecute.” (ECF No. 13.) On April 27, 2023, 11 District Judge Bencivengo issued a revised order on the City of El Centro’s motion to 12 dismiss for improper service, which reiterated the May 17, 2023 deadline to serve the 13 individual officers named in the Complaint. (ECF No. 16.) Plaintiff filed a document 14 entitled “Proof of Service” on May 12, 2023 which notes that he effected service on the 15 “El Centro Police Department” by mail, but does not make any mention of service on the 16 individual police officers. (ECF No. 18.) 17 II. LEGAL STANDARD 18 A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) 19 Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint 20 for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A 21 court evaluates whether a complaint states a cognizable legal theory and sufficient facts 22 under Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement 23 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To 24 survive a motion to dismiss, a “complaint must contain sufficient factual matter, accepted 25 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 26 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A 27 claim is facially plausible “when the plaintiff pleads factual content that allows the court 28 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 1 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). A complaint “must contain 2 sufficient allegations of underlying facts to give fair notice and to enable the opposing 3 party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 4 Courts must accept a plaintiff’s well-pleaded factual allegations as true and 5 construe all factual inferences in the light most favorable to the plaintiff. See Manzarek 6 v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Courts, 7 however, are not required to accept legal conclusions in the form of factual allegations as 8 true. Iqbal, 556 U.S. at 678. 9 B. Stating a Claim Under 42 U.S.C. § 1983 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must plausibly allege that 11 (1) the acts of defendants (2) taken under color of state law (3) deprived him of his 12 federal rights, privileges, or immunities and (4) caused him damage. 42 U.S.C. § 1983; 13 see also Thornton v. City of St. Helens, 425 F.3d 1158, 1163–64 (9th Cir. 2005). To 14 prevail on a Section 1983 claim, “a plaintiff must demonstrate that he suffered a specific 15 injury as a result of specific conduct of a defendant and show an affirmative link between 16 the injury and the conduct of the defendant.” Harris v. Schriro, 652 F. Supp. 2d 1024, 17 1034 (D. Ariz. 2009) (citing Rizzo v. Goode, 423 U.S. 362, 371–72 (1976)). 18 C. Standards Applicable to Pro Se Litigants 19 A pro se litigant’s factual allegations, “however inartfully pleaded,” must be held 20 “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 21 404 U.S. 519, 520 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) 22 (reaffirming that this standard applies to pro se pleadings post-Twombly). Courts 23 construing pro se litigant’s pleadings may not, however, “supply essential elements of 24 claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 25 F.2d 266, 268 (9th Cir. 1982). “The plaintiff must allege with at least some degree of 26 particularity overt acts which defendants engaged in that support the plaintiff’s claim.” 27 Jones v. Cmty. Redev. Agency of City of L.A., 733 F.2d 646, 649 (9th Cir. 1984) 28 (citations and internal quotation marks omitted). 1 A court should allow a pro se litigant to amend his complaint, “unless the pleading 2 ‘could not possibly be cured by the allegation of other facts.’” Ramirez v. Galaza, 334 3 F.3d 850, 861 (9th Cir. 2003) (quoting Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 4 2000)). “[B]efore dismissing a pro se complaint the district court must provide the 5 litigant with notice of the deficiencies in his complaint in order to ensure that the litigant 6 uses the opportunity to amend effectively.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th 7 Cir. 1992). A court “should not dismiss a pro se complaint without leave to amend unless 8 it is absolutely clear that the deficiencies of the complaint could not be cured by 9 amendment.” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (internal 10 quotations omitted). Where an amendment of a pro se litigant’s complaint would be 11 futile, however, denial of leave to amend is appropriate. See James v. Giles, 221 F.3d 12 1074, 1077 (9th Cir. 2000). 13 D. Material Outside the Pleadings 14 In general, “courts may not consider material outside the pleadings when assessing 15 the sufficiency of a complaint under a motion to dismiss under Rule 12(b)(6).” Khoja v. 16 Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018) (citing Lee v. City of Los 17 Angeles, 250 F.3d 668, 688 (9th Cir. 2001)). If “matters outside the pleadings are 18 presented to and not excluded by the court, the motion must be treated as one for 19 summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). Courts can, however, still 20 consider “documents attached to the complaint, documents incorporated by reference in 21 the complaint, or matters of judicial notice,” without converting the motion into a motion 22 for summary judgment. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) 23 (citations omitted). 24 Under Rule 201(b) of the Federal Rules of Evidence, courts may take judicial 25 notice of adjudicative facts that are “not subject to reasonable dispute.” Fed. R. Evid. 26 201(b). These indisputable facts are either “generally known within the trial court’s 27 territorial jurisdiction” or “can be accurately and readily determined from sources whose 28 accuracy cannot reasonably be questioned.” Id. 1 E. Service on Individual Defendants 2 Plaintiffs in a federal civil case may serve individual defendants within a judicial 3 district of the United States by either: (1) following state law service requirements in the 4 state where the district court is located or where service is made; or (2) complying with 5 any of the following federal requirements: (A) “delivering a copy of the summons and of 6 the complaint to the individual personally;” (B) “leaving a copy of each at the 7 individual’s dwelling or usual place of abode with someone of suitable age and discretion 8 who resides there;” or (C) “delivering a copy of each to an agent authorized by 9 appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e); see also, e.g., 10 Cal. Civ. Proc. Code § 415.30 (listing the requirements for service by mail under 11 California law). If, however, a defendant is not served within ninety days of filing the 12 complaint, the court “on motion or on its own after notice to the plaintiff[,] must dismiss 13 the action without prejudice against that defendant or order that service be made within a 14 specified time.” Fed. R. Civ. P. 4(m). While the court must extend the time for service if 15 the plaintiff shows good cause for failure to serve, the court has the discretion to dismiss 16 without prejudice if good cause does not exist. See id. The court may not sua sponte 17 dismiss a complaint for lack of service without first giving notice to the plaintiff and 18 providing an opportunity to show good cause. See Farr v. Paramo, No. 16-CV-1279 JLS 19 (MLB), 2020 WL 835309, at *2 (S.D. Cal. Feb. 20, 2020). 20 III. DISCUSSION 21 A. City of El Centro’s Motion to Dismiss 22 1. City’s Request for Judicial Notice 23 In support of its Motion, the City requests that the Court take judicial notice of 24 twelve “facts” contained in two documents: a complaint against Plaintiff in the Superior 25 Court of California with Case No. JCF006186 and the Transcript of Proceedings from a 26 Preliminary Examination in that same case. (ECF No. 19-3 (“Request for Judicial 27 Notice”) at 2.) Plaintiff does not object to the City’s Request. (See generally ECF No. 28 21.) 1 The undersigned RECOMMENDS that the Court grant the City’s Request for 2 Judicial Notice to the extent that these factual statements exist in state court filings that 3 are matters of public record. See Lee, 250 F.3d at 689–90 (“[T]he district court had 4 authority under Rule 201 to take judicial notice of the fact of the extradition hearing[.]”) 5 2. Plaintiff’s Section 1983 claims 6 As an initial matter, the Court notes that the Complaint alleges constitutional 7 violations under both the First and Fourth Amendment. (See Complaint at 3, 9; 8 Statement Claim at 1.) While Plaintiff alleges that his First Amendment rights were 9 violated, he does not specify in any detail what actions the City took or which of his 10 rights under the First Amendment were deprived during the events that led to his arrest. 11 (See generally Statement Claim at 1–2 (only mentioning First Amendment rights when 12 telling the cashier to call the police).) Because it is unclear to the Court how Plaintiff’s 13 First Amendment rights were violated,3 and Plaintiff has failed to properly plead a First 14 Amendment violation, the Court RECOMMENDS that the Complaint be dismissed 15 insofar as it asserts a First Amendment violation by the City of El Centro. Plaintiff is 16 reminded that any allegations in an amended complaint must describe (1) the 17 constitutional right that he believes was violated, (2) the person or entity who violated the 18 right, (3) exactly what that individual or entity did or did not do, (4) how the action or 19 inactions of that person or entity is connected to the violation of a constitutional right, 20 and (5) what specific injury Plaintiff suffered because of that conduct. See Fed. R. Civ. 21 P. 8(a); see also Harris, 652 F. Supp. 2d at 1034 (to prevail on a Section 1983 claim, “a 22 plaintiff must demonstrate that he suffered a specific injury as a result of specific conduct 23 of a defendant and show an affirmative link between the injury and the conduct of the 24
25 26 3 At the hearing on the motion to dismiss, the Court sought additional clarification on the specific First Amendment violations by the City that Plaintiff experienced. (Hr’g Tr., ECF No. 25, at 12:9-10.) 27 While Plaintiff asserted that he engaged in an activity protected by the First Amendment by expressing himself with profanity to the cashier, he did not provide any further explanation as to which of his rights 28 1 defendant.”). Plaintiff must do this for each claim and each defendant named in an 2 amended complaint. 3 The Complaint separately alleges Section 1983 claims under the Fourth 4 Amendment based on two theories: (1) that Plaintiff was arrested without probable cause; 5 and (2) that excessive force was used against Plaintiff at the time of his arrest. (See 6 Complaint at 3, 9; Statement Claim at 1.) Here, Plaintiff has plausibly alleged that the 7 City was acting under color of state law because the alleged Fourth Amendment 8 violations occurred while officers tried to effect an arrest—an action they performed as 9 part of their official duties. See Van Ort v. Estate of Stanewich, 92 F.3d 832, 838 (9th 10 Cir. 1996) (explaining that a police officer acts under color of state law when his or her 11 actions are “in some way related to the performance of [their] official duties.”) (internal 12 quotations omitted). The City does not deny that its officers were acting under color of 13 state law, and the Court will accordingly proceed to analyze the Complaint’s description 14 of the alleged Fourth Amendment violations further under the pleading requirements for 15 Section 1983 claims. 16 3. Monell liability 17 The City argues that the Complaint contains no allegations that could give rise to 18 its liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) and thus fails to 19 state a claim upon which relief can be granted. (Motion at 4:16.) Specifically, the City 20 contends that Plaintiff’s claims relate wholly to the individual officers, and that there are 21 no allegations in the Complaint that could plausibly lead to vicarious municipal liability. 22 (Motion at 4:15.) 23 A municipality or local government unit can be held liable under 42 U.S.C. § 1983 24 if the allegedly unconstitutional actions of its employees were taken pursuant to a “policy 25 statement, ordinance, regulation, or decision officially adopted and promulgated by that 26 body’s officers.” Monell, 436 U.S. at 690. A municipality can also be liable for adopting 27 an unconstitutional custom, even if such custom has not received formal approval 28 through the “body’s official decision-making channels.” Id. at 690–91. A municipal 1 entity cannot be held liable under 42 U.S.C. § 1983, however, simply because it employs 2 someone who has allegedly acted unlawfully. Id. at 691, 694. A plaintiff must show: (1) 3 that he was deprived of a constitutional right; (2) the municipality has a policy, custom, 4 or practice which amounted to deliberate indifference to that constitutional right; and (3) 5 the policy, custom, or practice was the moving force behind the constitutional violation. 6 See Dougherty v. City of Covina, 654 F.3d 892, 900–01 (9th Cir. 2011) (citing Monell, 7 436 U.S. at 694). 8 a. Deprived constitutional right 9 As noted above, Plaintiff asserts that the City violated his Fourth Amendment 10 rights based on two theories: 1) that he was arrested without probable cause; and 2) that 11 excessive force was used against him. (See Complaint at 3, 9; Statement Claim at 1.) 12 Accordingly, Plaintiff sufficiently states a “constitutional right of which he was 13 deprived.” Dougherty, 654 F.3d at 900 (internal quotations omitted). 14 b. Municipal policy and deliberate indifference 15 There are three commonly recognized categories of municipal policies under this 16 prong of the Monell analysis: “(1) an expressly adopted official policy, (2) longstanding 17 practice or custom, or (3) [employees acting] as a final policymaker.” Thomas v. Cnty. 18 of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014) (numbering added) (citing Monell, 436 19 U.S. at 694); see also Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003). 20 i. Categories of policies 21 1. Official policy 22 Local governing bodies are liable under Section 1983 when “the action that is 23 alleged to be unconstitutional implements or executes a policy statement, ordinance, 24 regulation, or decision officially adopted and promulgated by that body’s officers.” 25 Monell, 436 U.S. at 690. A “policy” is a “deliberate choice to follow a course of action . 26 . . made from among various alternatives by the official or officials responsible for 27 establishing final policy with respect to the subject matter in question.” Fogel v. Collins, 28 1 531 F.3d 824, 834 (9th Cir. 2008). 2 Plaintiff has not asserted that his Fourth Amendment rights were violated under an 3 official policy and thus does not sufficiently state that an official policy led to the 4 constitutional violations in the Complaint. 5 2. Custom 6 Liability for an improper custom must be based on practices of sufficient duration, 7 frequency, and consistency that the conduct has become a traditional method of carrying 8 out policy, not merely isolated or sporadic incidents. See Trevino v. Gates, 99 F.3d 911, 9 918 (9th Cir. 1996); see also Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (“A 10 single constitutional deprivation ordinarily is insufficient to establish a longstanding 11 practice or custom.”); Cain v. City of Sacramento, No. 2:17-cv-00848-JAM-DB, 2017 12 WL 4410116, at *3 (E.D. Cal. Oct. 4, 2017) (dismissing the plaintiff’s Monell claim 13 because it alleged only a single encounter between plaintiff and jail staff). A “custom” 14 for purposes of municipal liability is a “widespread practice that, although not authorized 15 by written law or express municipal policy, is so permanent and well-settled as to 16 constitute a custom or usage with the force of law.” City of St. Louis v. Praprotnik, 485 17 U.S. 112, 127 (1988) (citation and internal quotation marks omitted). 18 Here, Plaintiff has not asserted that his Fourth Amendment rights were violated 19 under a practice or custom by the City of El Centro. Accordingly, the Complaint fails to 20 establish liability under this category of the municipal policy standard. 21 3. Decisions by final policymakers 22 Local governing bodies can be held liable under Section 1983 when an “official 23 with final policy-making authority ratifie[s] a subordinate’s unconstitutional decision or 24 action and the basis for it.” Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992). 25 “The identification of policymaking officials is a question of state law.” Praprotnik, 485 26 U.S. at 124. Courts analyze whether an official is a policymaker by “consider[ing] 27 whether the official’s discretionary decision is ‘constrained by policies not of that 28 official’s making’ and whether the official’s decisions are ‘subject to review by the 1 municipality’s authorized policymakers.’” Christie, 176 F.3d at 1236-37 (quoting id. at 2 127). 3 Here, Plaintiff has not asserted that any of the officers involved in his arrest were 4 policymaking officials. Accordingly, Plaintiff does not sufficiently state that a decision 5 by a final policymaker led to the constitutional violations at issue, and the Complaint fails 6 to establish liability under this category of the municipal policy standard. 7 ii. Deliberate indifference 8 The municipality’s policy or custom must also “amount[] to deliberate indifference 9 to the plaintiff’s constitutional right.” Dougherty, 654 F.3d at 900; see also Oviatt ex rel. 10 Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir.1992). Deliberate indifference requires 11 that the plaintiff “show how the deficiency involved was obvious and the constitutional 12 injury was likely to occur.” Herd v. Cnty. of San Bernardino, 311 F. Supp. 3d 1157, 13 1167 (C.D. Cal. 2018); see also Cordova v. Imperial Cnty. Narcotics Task Force, No. 14 321CV00445BENDEB, 2022 WL 84409, at *20 (S.D. Cal. Jan. 7, 2022); Williams v. 15 Brant, No. 23-CV-241 TWR (DDL), 2023 WL 3325185, at *9 (S.D. Cal. May 9, 2023). 16 Plaintiff has not alleged a municipal policy on behalf of the City of El Centro. 17 Accordingly, the Complaint fails to allege that a municipal policy enacted by the City 18 amounted to deliberate indifference. The Complaint fails this prong of the Monell 19 analysis as well. 20 c. Causation 21 Municipal liability under Monell requires a plaintiff to “show that the [policy or 22 custom] was (1) the cause in fact and (2) the proximate cause of the constitutional 23 deprivation.” Trevino, 99 F.3d at 918 (9th Cir. 1996) (citing Arnold v. International 24 Business Machines Corp., 637 F.2d 1350, 1355 (9th Cir.1981); City of Springfield v. 25 Kibbe, 480 U.S. 257, 266–68 (1987)) (discussing causation requirement in Section 1983 26 municipal liability cases). 27 The Complaint fails this prong of the Monell analysis because it does not allege a 28 policy or custom by the City that led to the violation of Plaintiff’s Fourth Amendment 1 rights. Thus, Plaintiff has not sufficiently alleged that a municipal policy by the City of 2 El Centro caused the constitutional violation in the Complaint. 3 d. Conclusion 4 The Complaint does not identify any policy, custom, or practice by the City of El 5 Centro that amounted to deliberate indifference to his constitutional rights. See 6 Dougherty, 654 F.3d at 900-01. Additionally, the Complaint does not allege that any 7 policy, custom, or practice was the “moving force” behind any of the constitutional 8 violations at issue in this matter. See id. Although dismissal of Plaintiff’s Section 1983 9 claims against the City would be sufficient on this basis alone, the Court will address an 10 additional argument presented by the City’s motion to dismiss below. 11 4. Preclusion 12 In addition to arguing that the Complaint fails to allege Monell liability, the City 13 asserts that Plaintiff is precluded from litigating the issue of probable cause through 14 collateral estoppel. (Motion at 5:25–6:23.) Defendant contends that the probable cause 15 issue in the instant Section 1983 claim is identical to the one decided during the 16 preliminary hearing in Plaintiff’s Imperial County Superior Court criminal proceedings, 17 precluding Plaintiff from asserting that probable cause did not exist to arrest him in the 18 instant lawsuit. (Id. at 6:1–2, 6:21–22.) 19 “Ordinarily affirmative defenses may not be raised by motion to dismiss . . . but 20 this is not true when, as here, the defense raises no disputed issues of fact.” Scott v. 21 Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) (citations omitted); see also Portnoy v. 22 City of Woodland, 368 F. App’x 836, 837 (9th Cir. 2010) (“The district court properly 23 dismissed the Fourth Amendment claims that police officers lacked probable cause to 24 arrest Portnoy because the record establishes that he had a full and fair opportunity to 25 litigate that issue at his preliminary hearing.”) (citing Haupt v. Dillard, 17 F.3d 285, 288– 26 90 (9th Cir.1994). “State law governs the application of collateral estoppel or issue 27 preclusion to a state court judgment in a federal civil rights action.” Ayers v. City of 28 1 Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990). Under California law, there are five 2 threshold requirements for collateral estoppel to apply: 3 1) the issue to be precluded must be identical to that decided in the prior proceeding; 2) the issue must have been actually 4 litigated at that time; 3) the issue must have been necessarily 5 decided; 4) the decision in the prior proceeding must be final and on the merits; and 5) the party against whom preclusion is sought 6 must be in privity with the party to the former proceeding. 7 People v. Garcia, 39 Cal. 4th 1070, 1077 (Cal. 2006). “As a general rule, each of these 8 requirements will be met when courts are asked to give preclusive effect to preliminary 9 hearing probable cause findings in subsequent civil actions for false arrest.” Wige v. City 10 of Los Angeles, 713 F.3d 1183, 1185 (9th Cir. 2013) (citing McCutchen v. City of 11 Montclair, 87 Cal. Rptr. 2d 95, 99-101 (Cal. Ct. App. 1999)). 12 A plaintiff can rebut this general rule by showing that the criminal prosecution was 13 induced by fraud, corruption, perjury, fabricated evidence, or other wrongful conduct 14 undertaken in bad faith. See Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 15 2004). In California, plaintiffs can avoid the preclusion of subsequent false arrest claims 16 based on preliminary hearings in three established circumstances: 17 (1) the plaintiff is able to “demonstrate that the issue of probable 18 cause was not litigated at the preliminary hearing for tactical 19 reasons”; (2) the plaintiff has alleged that “the arresting officer lied or fabricated evidence presented at the preliminary hearing”; 20 or (3) “the evidence presented at the preliminary hearing [was] 21 not the same as the evidence available to [the officers] at the time of plaintiff’s arrest.” 22 Patterson v. City of Yuba City, 748 F. App’x 120, 121 (9th Cir. 2018) (quoting 23 McCutchen, 87 Cal. Rptr. 2d at 101). 24 Here, each of the requirements for collateral estoppel to preclude Plaintiff from 25 relitigating the issue of probable cause in the instant civil rights action are met. First, the 26 issue to be precluded is probable cause related to the same incident as the one decided 27 during the preliminary hearing in Imperial County Superior Court. (See City’s Request at 28 1 2:1–14.) Second, the issue of probable cause was actually litigated during the 2 preliminary hearing—Plaintiff’s defense counsel was able to cross-examine witnesses 3 that the prosecution called to support a finding of probable cause. (See City’s Request at 4 2:15–18.) Third, the issue of probable cause was necessarily decided by the superior 5 court judge who determined that Plaintiff should be held over for trial on his criminal 6 charges. (See City’s Request at 3:12–14.) Fourth, the decision in the preliminary hearing 7 was final and was reached on the merits. (See City’s Request at 2:15–3:14.) Finally, the 8 party against whom preclusion is sought (Plaintiff) is the same as the one in the earlier 9 probable cause hearing. (See generally City’s Request.) 10 Plaintiff provides no argument disputing the preclusive effect of the Imperial 11 County Superior Court’s finding of probable cause during the preliminary hearing. As it 12 is currently pled, the Complaint makes no allegations that (1) probable cause was not 13 litigated at the preliminary hearing for tactical reasons, (2) the arresting officer lied or 14 fabricated evidence presented at the hearing, or (3) the evidence at the preliminary 15 hearing was not the same as the evidence available to the officers at the time of arrest. At 16 best, Plaintiff alleges that “the officer in charge . . . came up with false claims” 17 (Complaint at 5), officers falsified reports (Id. at 4, 10), and that “Officer [H]idalgos 18 stated and slandered some false crime.” (Statement Claim.) These allegations fall short 19 of meeting any of the above exceptions to collateral estoppel because they do not connect 20 the falsification of the criminal charges alleged generally throughout the Complaint to 21 misconduct during the preliminary hearing on the probable cause for Plaintiff’s arrest in 22 Imperial County Superior Court. Cf. Page v. Stanley, No. CV 11-2255 CAS SS, 2012 23 WL 5471107, at *7 (C.D. Cal. Oct. 19, 2012), report and recommendation adopted, No. 24 CV 11-2255 CAS SS, 2012 WL 5464629 (C.D. Cal. Nov. 9, 2012) (holding that 25 allegations of falsifying a police report and fabricating evidence with intent and effect to 26 deprive plaintiff of a full and fair opportunity to litigate probable cause at a preliminary 27 hearing fell within an exception to collateral estoppel); see also Carino v. Gorski, No. 07- 28 455-PHX-NVW, 2008 WL 4446706, at *6 (D. Ariz. Sept. 30, 2008) (“To rebut the 1 presumption [of probable cause], a plaintiff must point to something more ‘than the fact 2 that the officers’ reports were inconsistent with [his] own account of the incidents leading 3 to his arrest.”); Hahn v. City of Carlsbad, No. 15-CV-2007 DMS (BGS), 2017 WL 4 2620680, at *3 (S.D. Cal. June 16, 2017) (“[t]he fact that [the officer] testified regarding 5 the incident in a manner that differed from Plaintiff’s perception does not amount to the 6 type of wrongful conduct that rebuts the presumption of probable cause.”) (citing 7 Awabdy, 368 F.3d at 106). Although Plaintiff may be able to point to facts that rebut the 8 presumption of probable cause in a subsequent amended pleading, the Superior Court’s 9 findings during the preliminary hearing preclude the Complaint’s Section 1983 false 10 arrest claim against the City in the Complaint currently before this Court. 11 6. Remaining State Law Claims 12 Plaintiff also alleges a state law cause of action based on “slander.” (Complaint at 13 10; Statement Claim at 1 (“Officer Hidalgos stated and slander[ed] some false 14 crime[.]”).) Because all of Plaintiff’s federal claims should be dismissed, the 15 undersigned will RECOMMEND that the Court decline to exercise supplemental 16 jurisdiction over the remaining state law claim and that this claim be dismissed as well. 17 See Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n the usual 18 case in which all federal-law claims are eliminated before trial, the balance of factors to 19 be considered under the pendent jurisdiction doctrine—judicial economy, convenience, 20 fairness, and comity—will point toward declining to exercise jurisdiction over the 21 remaining state-law claims.”) (quoting Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 22 350 n.7 (1988)). 23 7. Conclusion 24 The Complaint fails to allege constitutional violations on behalf of the City under 25 Section 1983 for several reasons. First, the Complaint does not adequately allege how 26 the City violated Plaintiff’s First Amendment rights. Second, even if the Court could 27 ascertain what First Amendment right Plaintiff alleges was violated, the Complaint fails 28 to allege that the City should be held liable for its officers’ conduct under Monell for 1 either the First or Fourth Amendment claims. Finally, because the Imperial County 2 Superior Court’s determination of probable cause is identical to the issue of probable 3 cause underlying the Fourth Amendment false arrest claim, Plaintiff is precluded from 4 relitigating that issue in a civil rights action before this Court.4 The undersigned will 5 therefore RECOMMEND that the Court GRANT the City’s motion to dismiss the 6 Complaint’s causes of action under Section 1983. 7 Additionally, because Plaintiff’s federal claims against the City should be 8 dismissed, the undersigned will accordingly RECOMMEND that the Court decline to 9 exercise supplemental jurisdiction over Plaintiff’s remaining state law claims against the 10 City. A court may exercise supplemental jurisdiction to hear a plaintiff's state law claims 11 that “derive from a common nucleus of operative fact[s]” as his or her federal claims. 28 12 U.S.C. § 1367(c); see also Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 1174 (9th Cir. 13 2002). But where it has dismissed all federal claims over which it had original 14 jurisdiction, it may decline to extend its jurisdiction to the remaining state claims. See 15 Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010). The undersigned 16 therefore RECOMMENDS that the Court GRANT the City’s motion to dismiss and 17 dismiss each of Plaintiff’s claims against the City of El Centro without prejudice. 18 B. Individual Defendants 19 The initial ninety days provided by Rule 4(m) to effect service on the individual 20 defendants have long since passed in this case, yet a review of the Court’s docket 21 indicates that the individual defendants still have not been served. See Fed. R. Civ. P. 22 4(l)(1) (“[P]roof of service must be made to the court.”). Plaintiff only attempted service 23 by mail on the “El Centro Police Department,” which is not sufficient service on the 24 individual defendants. 25 In addition, Plaintiff failed to meet several deadlines and extensions related to 26
27 4 Because these reasons are sufficient to dismiss Plaintiff’s federal claims, the Court declines to address 28 1 service of the individual police officers involved in his arrest. Plaintiff did not serve the 2 individual defendants within the original ninety-day window under Rule 4(m). Over 100 3 days after the Complaint was filed, the Court issued an order granting in part the City’s 4 motion to dismiss for improper service, which instructed Plaintiff to “file a proof of 5 service demonstrating that each defendant has been served with the summons and 6 complaint or SHOW CAUSE in writing, on or before May 17, 2023, why this matter 7 should not be dismissed in its entirety for failure to prosecute.” (ECF No. 14.) This new 8 deadline was over 130 days from Plaintiff’s filing date and the Court noted that “[f]ailure 9 to timely respond to this order will result in dismissal of this lawsuit.” (Id.) In a 10 subsequent revised order, the Court reiterated this deadline and noted that the individual 11 defendants would be dismissed for failure to serve if he did not comply with the May 17, 12 2023 deadline. (ECF No. 16.) It has been over 90 days since the extended deadline 13 passed, and Plaintiff still has not filed any proof that he attempted to serve the individual 14 defendants in this action. 15 The Court therefore concludes that dismissal of the individually named police 16 officers without prejudice pursuant to Rule 4(m) is appropriate. “Failure to follow 17 technical requirements does not warrant dismissal where ‘(a) the party that had to be 18 served personally received actual notice, (b) the defendants would suffer no prejudice 19 from the defect in service, (c) there is a justifiable excuse for failure to serve properly, 20 and (d) the plaintiff would be severely prejudiced if his complaint were dismissed.’” 21 Johnson v. San Diego Metro. Transit Sys., No. CIV. 06CV1192L(CAB), 2008 WL 22 3411728, at *7 (S.D. Cal. Aug. 11, 2008) (quoting Borzeka v. Heckler, 739 F.2d 444, 447 23 (9th Cir. 1984)). Here, however, there is no evidence that the individual defendants 24 received actual notice, the Court has received no explanation from Plaintiff regarding the 25 delay, and Plaintiff would not be severely prejudiced by dismissal because his claims 26 would not be time barred. See Butler v. Nat’l Cmty. Renaissance of California, 766 F.3d 27 1191, 1198 (9th Cir. 2014) (holding that Section 1983 claims use California’s statute of 28 limitations for personal injury claims, which is two years). Accordingly, to the extent 1 that any claims remain against the unserved Defendants, the undersigned 2 RECOMMENDS that the Court dismiss the individual named police officers Christian 3 Ortega, Officer Valencia, Sergeant Hidalgos, and Officer Kirkshaw, without prejudice 4 pursuant to Rule 4(m). 5 C. Leave to Amend 6 Because it is not clear that Plaintiff cannot allege facts to support his claim, and 7 because Plaintiff is proceeding pro se, the undersigned RECOMMENDS that the Court 8 grant Plaintiff leave to amend his pleading. See Ramirez, 334 F.3d at 861 (court must 9 grant a pro se plaintiff leave to amend his complaint “unless the pleading ‘could not 10 possibly be cured by the allegation of other facts’”) (quoting Lopez, 203 F.3d at 1130); 11 Ferdik, 963 F.2d at 1261 (“[B]efore dismissing a pro se complaint the district court must 12 provide the litigant with notice of the deficiencies in his complaint in order to ensure that 13 the litigant uses the opportunity to amend effectively.”). 14 Plaintiff will have three options to cure the pleading deficiencies noted above: 15 (1) Plaintiff may continue this action in this Court by filing a document labeled 16 “First Amended Complaint” within forty-five (45) days of the date of District Judge 17 Bencivengo’s order on this Report and Recommendation. To withstand dismissal, the 18 amended complaint must attempt to correct the factual and legal defects described above. 19 If Plaintiff chooses to file an amended complaint, Plaintiff may also file a document titled 20 “Request for Extension” within forty-five (45) days of the date of District Judge 21 Bencivengo’s order on this Report and Recommendation to extend his time to serve the 22 individual defendants pursuant to Rule 4(m). 23 (2) Plaintiff may file a “Notice of Intent Not to Amend Complaint” within forty- 24 five (45) days of the date of District Judge Bencivengo’s order on this Report and 25 Recommendation. This document will be construed as an indication that plaintiff wishes 26 to challenge dismissal of the complaint by seeking review of this order in the Ninth 27 Circuit Court of Appeals. 28 1 (3) Plaintiff may do nothing in response to District Judge Bencivengo’s order on 2 this Report and Recommendation. If plaintiff does not respond to this order by filing 3 either a timely amended complaint or a timely notice of intent not to amend, plaintiff will 4 be deemed to have consented to the dismissal of this action. 5 IV. CONCLUSION AND RECOMMENDATION 6 For the reasons set forth above, the Court RECOMMENDS that District Judge 7 Bencivengo issue an Order: (1) approving and adopting this Report and 8 Recommendation; (2) granting the City’s Request for Judicial Notice (ECF No. 19-3); (3) 9 granting the motion to dismiss under Fed. R. Civ. P. 12(b)(6) filed by City and dismissing 10 the Complaint in its entirety with leave to amend; (4) dismissing the individual 11 defendants for failure to effect service pursuant to Federal Rule of Civil Procedure 4(m); 12 and (5) ordering Plaintiff, if he chooses to proceed with this action, to file a First 13 Amended Complaint no later than forty-five (45) days from the date of the District 14 Court’s order. 15 IT IS HEREBY ORDERED that no later than September 25, 2023, any party to 16 this action may file written objections with the Court and serve a copy on all parties. The 17 document should be captioned “Objections to Report and Recommendation.” 18 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 19 the Court and served on all parties no later than October 13, 2023. The parties are 20 advised that failure to file objections within the specified time may waive the right to 21 raise those objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 22 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991). 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 Additionally, the parties are reminded that they should not write letters to the 2 || judges assigned to the case, or otherwise communicate with the judges assigned to 3 || the case unless opposing counsel is notified of such communications. All matters to 4 ||be called to a judge’s attention should either be mailed to the Clerk’s Office in San 5 || Diego or handed to a member of the Clerk’s Office staff in person and must be sent 6 || to the opposing side. See Civil Local Rule 83.9. Email communication with a 7 ||judge’s chambers to submit a filing is not permitted under any circumstance. 8 IT IS SO ORDERED. 9 ||Dated: August 23, 2023 10 11 / L 12 Honorable Lupe Rodriguez, Jr. 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28