Ames v. Tempe, City of

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Dravon Ames, No. CV-20-02102-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 City of Tempe, et al.,

13 Defendants. 14 15 In this civil rights action under 42 U.S.C. § 1983, Dravon Ames (“Plaintiff”) alleges 16 that Officers Payne and Conklin of the Tempe Police Department violated his Fourth and 17 Fourteenth Amendment rights by using excessive force against him. Specifically, Plaintiff 18 alleges that, during a traffic stop on October 31, 2018, he was being “cooperative” and 19 “respectful” when Officers Payne and Conklin “brutally and aggressively threw [him] to 20 the ground,” “beat[], punch[ed], and brutaliz[ed] him,” used a Taser on him, and left him 21 “lying in the middle of the street” while handcuffed. (Doc. 47 ¶¶ 8-18.) 22 As relevant here, Plaintiff also asserts a § 1983 claim against the City of Tempe 23 (“the City”), which is premised on allegations that the City “has a pattern and practice for 24 allowing its Officers to use Tasers on African American[s] and minorities,” “has not 25 properly trained its officers on the proper use of force,” “fail[ed] to train, supervise, and 26 investigate any of the officers involved in this incident,” and “tacitly or overtly sanctioned” 27 a “policy, pattern of practice, or custom” of misconduct, “amounting in a deliberate 28 indifference to Plaintiff’s constitutional rights.” (Id. ¶¶ 23, 36-38.) 1 Now pending before the Court is the City’s Rule 12(b)(6) motion to dismiss the 2 latter §1983 claim. (Doc. 55.)1 For the following reasons, the motion is granted. 3 DISCUSSION 4 I. Legal Standard 5 “[T]o survive a motion to dismiss under Rule 12(b)(6), a party must allege 6 ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 7 face.’” In re Fitness Holdings Int’l, Inc., 714 F.3d at 1144 (quoting Ashcroft v. Iqbal, 556 8 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual 9 content that allows the court to draw the reasonable inference that the defendant is liable 10 for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). “[A]ll well-pleaded 11 allegations of material fact in the complaint are accepted as true and are construed in the 12 light most favorable to the non-moving party.” Id. at 1444-45 (citation omitted). However, 13 the Court need not accept legal conclusions couched as factual allegations. Iqbal, 556 U.S. 14 at 679-680. Moreover, “[t]hreadbare recitals of the elements of a cause of action, supported 15 by mere conclusory statements, do not suffice.” Id. at 679. The Court also may dismiss 16 due to “a lack of a cognizable theory.” Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th 17 Cir. 2015) (citation omitted). 18 II. Count Two 19 In Count Two of the operative complaint, Plaintiff asserts a § 1983 claim against 20 the City premised on three distinct theories of municipal liability: (1) the existence of an 21 unconstitutional policy, practice, or custom of using excessive force; (2) failure to train or 22 supervise its officers on the proper use of force; and (3) failure to investigate or discipline, 23 and/or ratification of the conduct of, Officers Payne and Conklin. (Doc. 47 ¶¶ 23-24, 37- 24 38, 43.) The Court analyzes each theory in turn. 25 … 26 1 Officers Payne and Conklin also move to dismiss Plaintiff’s state-law battery claim 27 in Count Three (Doc. 55 at 13), but because Plaintiff now agrees this claim may be dismissed (Doc. 57 at 13), the Court does not address it further. Additionally, Plaintiff’s 28 request for oral argument (Doc. 57 at 1) is denied because the issues are fully briefed and argument would not aid the decision process. See LRCiv 7.2(f). 1 A. Policy, Practice, Or Custom 2 “To state a claim under § 1983, a plaintiff must allege the violation of a right secured 3 by the Constitution and laws of the United States, and must show that the alleged 4 deprivation was committed by a person acting under color of state law.” West v. Atkins, 5 487 U.S. 42, 48 (1988). A “person” includes local government entities. Monell v. Dept. 6 of Soc. Svcs. of N.Y., 436 U.S. 658, 690 (1978). However, “a local government may not be 7 sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is 8 when execution of a government’s policy or custom, whether made by its lawmakers or by 9 those whose edicts or acts may fairly be said to represent official policy, inflicts the injury 10 that the government as an entity is responsible under § 1983.” Id. at 694. See also 11 Leatherman v. Tarrant Cnty. Narcotics Intel. and Coordination Unit, 507 U.S. 163, 166 12 (1993) (“[A] municipality can be sued under § 1983, but it cannot be held liable unless a 13 municipal policy or custom caused the constitutional injury.”); Long v. Cnty. of Los 14 Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (“A municipality may not be sued under 15 § 1983 solely because an injury was inflicted by one of its employees or agents.”). Thus, 16 “to establish liability for governmental entities under Monell, a plaintiff must prove (1) that 17 the plaintiff possessed a constitutional right of which []he was deprived; (2) that the 18 municipality had a policy; (3) that this policy amounts to deliberate indifference to the 19 plaintiff’s constitutional right; and (4) that the policy is the moving force behind the 20 constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) 21 (citation omitted). “[L]iability for improper custom may not be predicated on isolated or 22 sporadic incidents; it must be founded upon practices of sufficient duration, frequency, and 23 consistency that the conduct has become a traditional method of carrying out policy.” 24 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 25 The City argues that, to the extent Count Two is premised on a 26 policy/practice/custom theory, it is deficient because Plaintiff fails to allege similar 27 incidents occurring before the incident at issue here; rather, “Plaintiff has pled nothing 28 more than isolated and/or sporadic incidents” that do not indicate a policy, practice, or 1 custom of using excessive force. (Doc. 55 at 5-6, 12-13.) 2 Plaintiff’s response is two-fold. First, Plaintiff argues he shouldn’t be required, at 3 the pleading stage, to identify any prior incidents that might support a 4 policy/practice/custom claim because that is what discovery is for—to uncover facts that 5 might support such a claim. (Doc. 57 at 11 [“In the present case there was no ability for 6 [Plaintiff] to conduct discovery and gather evidence to prove that a custom or policy was 7 followed that resulted in the violation of his constitutional rights.”].) Relying on cases 8 decided between 1986 and 2003, Plaintiff argues that “[a] plaintiff cannot be forced to 9 know what he cannot know” and thus contends that, at least when it comes to Monell 10 claims, “a plaintiff is excused from stating specific evidentiary facts before discovery when 11 the municipality controls all of the evidence.” (Id. at 2.) 12 Plaintiff is mistaken. Whatever the pleading rules that may have applied to Monell 13 claims before Iqbal and Twombly were decided, it is now well established in the Ninth 14 Circuit that a plaintiff seeking to assert such a claim must allege facts that would support 15 the existence of the alleged policy, practice, or custom. See, e.g., A.E. ex rel. Hernandez 16 v. City of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (“[A]llegations in a complaint . . . may 17 not simply recite the elements of a cause of action, but must contain sufficient allegations 18 of underlying facts to give fair notice and to enable the opposing party to defend itself 19 effectively . . . [and] must plausibly suggest an entitlement to relief, such that it is not unfair 20 to require the opposing party to be subjected to the expense of discovery and continued 21 litigation. This standard applies to Monell claims . . . .”) (citations omitted and emphasis 22 added); Dougherty, 654 F.3d at 900-01 (“Dougherty’s Monell and supervisory liability 23 claims lack any factual allegations that would separate them from the ‘formulaic recitation 24 of a cause of action’s elements’ deemed insufficient by Twombly. . . . The Complaint 25 lacked any factual allegations regarding key elements of the Monell claims, or, more 26 specifically, any facts demonstrating that his constitutional deprivation was the result of a 27 custom or practice of the City of Covina or that the custom or practice was the ‘moving 28 force’ behind his constitutional deprivation.”). See also Hyer v. City & Cnty. of Honolulu, 1 2020 WL 7038953, *6 (D. Hawaii 2020) (“Prior to 2009, the Ninth Circuit . . . regularly 2 held that a claim of municipal liability under Section 1983 was sufficient to withstand a 3 motion to dismiss based on nothing more than bare allegations of an unconstitutional 4 policy, practice, or custom. The low pleading threshold was rejected by the United States 5 Supreme Court in [Iqbal]. Since Iqbal, courts in the Ninth Circuit have repeatedly rejected 6 Monell claims based on conclusory allegations that lack factual content from which one 7 could plausibly infer municipal liability.”) (citations omitted); Brown v. City of Mariposa, 8 2019 WL 4956142, *4 (E.D. Cal. 2019) (“In order to withstand a motion to dismiss for 9 failure to state a claim, a Monell claim must consist of more than mere formulaic recitations 10 of the existence of an unlawful policy. . . . [W]hile the Court recognizes the inherent 11 difficulty of identifying specific policies absent access to discovery, that is nonetheless the 12 burden of plaintiffs in federal court.”) (citations and internal quotation marks omitted). 13 Second, and alternatively, Plaintiff argues that even assuming he is required to 14 provide non-conclusory allegations of a policy/practice/custom at this stage of the 15 proceedings, he has done so because the complaint identifies a “string of excessive force 16 cases against [the City] dating back to 2008.” (Doc. 57 at 11-12.) 17 This argument is unavailing. As an initial matter, although the complaint asserts in 18 conclusory fashion that “[t]here are multiple cases of excessive force against the City of 19 Tempe since 2008” (Doc. 47 ¶ 39) and “[t]here are multiple articles regarding the excessive 20 use of force by Tempe police officers” (id. ¶ 40), the complaint does not actually identify 21 any of these earlier cases and articles. This approach makes it impossible to evaluate 22 whether the unspecified incidents discussed in the unspecified cases and articles were 23 factually similar to the incident in this case, such that they could plausibly be viewed as 24 indicative of a policy, pattern, or custom that was the moving force behind Plaintiff’s 25 injury. Cf. Hyer, 2020 WL 7038953 at *9 (dismissing Monell claim because “there are no 26 facts detailing a history of incidents or any other basis to demonstrate a policy, practice, or 27 custom by the City and County of Honolulu that caused the alleged injury in this case” and 28 “Plaintiffs must assert facts concerning the timing and similarity of prior incidents”); 1 Blanchard v. City of Los Angeles, 2021 WL 871997, *3 (C.D. Cal. 2021) (“While the FAC 2 cites to numerous instances, reports, and cases concerning excessive force and others that 3 have indicated a tendency to employ excessive force by Sheriff’s Deputies, these do not 4 rise the level of specificity for Monell claims.”). Additionally, the allegation of “multiple” 5 incidents since 2008 is too vague to suffice. How many is “multiple?” If, for example, 6 there were only two incidents between 2008 and October 2018, this would seem unlikely 7 to serve as plausible evidence of “practices of sufficient duration, frequency, and 8 consistency [such] that the conduct has become a traditional method of carrying out 9 policy.” Trevino, 99 F.3d at 918. 10 In response to the motion to dismiss, Plaintiff seeks to belatedly fill these gaps by 11 asserting that “there are at least 15 cases against Tempe regarding § 1983 excessive force 12 claims” and explaining that his counsel “discovered these cases through a basic Boolean 13 search of Westlaw.” (Doc. 57 at 9 & n.2.) Plaintiff also attaches, as Exhibit A to his 14 response, an attorney-drafted document that identifies the 15 cases by Westlaw citation. 15 (Doc. 57-1.) An initial problem with this approach is that district courts generally “may 16 not consider material outside the pleadings when assessing the sufficiency of a complaint 17 under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Khoja v. Orexigen 18 Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). Thus, “[c]ourts regularly decline to 19 consider declarations and exhibits submitted in . . . opposition to a motion to dismiss . . . if 20 they constitute evidence not referenced in the complaint or not a proper subject of judicial 21 notice.” Gerritsen v. Warner Bros. Entertainment, Inc., 112 F. Supp. 3d 1011, 1021 (C.D. 22 Cal. 2015). Applying these standards, it is questionable whether Exhibit A is properly 23 before the Court. Although, as noted, the complaint alleges the existence of unspecified 24 earlier cases against the City involving claims of excessive force (Doc. 47 ¶ 39), the Court 25 is skeptical that such a vague reference is sufficient to trigger the incorporation-by- 26 reference doctrine with respect to Exhibit A. Khoja, 899 F.3d at 1002 (“How ‘extensively’ 27 must the complaint refer to the document? This court has held that the mere mention of 28 the existence of a document is insufficient to incorporate the contents of a document . . . . 1 A more difficult question is whether a document can ever form the basis of the plaintiff’s 2 claim if the complaint does not mention the document at all.”) (cleaned up). Nor does 3 Exhibit A seem like the sort of document that is subject to judicial notice. Even if judicial 4 decisions and proceedings are, in general, subject to judicial notice, Exhibit A is not a 5 judicial decision or proceeding—it is an attorney-drafted document that simply rattles off 6 a list of case names and citations and asserts, without support, that they qualify as 7 “excessive force cases . . . filed against the City of Tempe.” (Doc. 57-1.) 8 These procedural shortcomings dovetail with a substantive flaw in Plaintiff’s 9 approach. Although Exhibit A provides no details about the 15 cited cases (apart from the 10 case caption and Westlaw citation), the City provides an extensive discussion of the 15 11 cited cases in its reply. (Doc. 58 at 9-11.) According to the City, “[t]hese cases fall into 12 four categories, none of which would place Tempe on notice that a previous constitutional 13 violation had taken place and that there was a need for a change. First, in [five of the cited 14 cases], there were no excessive force claims. Second, the claims of excessive force were 15 resolved in favor of Tempe in [five more of the cited cases]. The plaintiffs in [three more 16 of the cited cases] never served their complaints. The remaining two . . . are still pending. 17 Thus, none of the cases cited by Plaintiff could have placed Tempe on notice that there was 18 a widespread pattern and practice of unconstitutional conduct that needed correcting prior 19 to the incident with Plaintiff.” (Id. at 11.) The Court agrees that, assuming the City’s 20 description of the 15 cited cases is correct, they would be insufficient to plausibly support 21 the existence of a municipal policy, practice, or custom that could give rise to a Monell 22 claim. Thus, on the present record, the allegations in paragraphs 39 and 40 of the complaint 23 regarding unspecified earlier lawsuits and news articles are insufficient to support a 24 policy/practice/custom claim.2 25 2 The Court uses the phrases “assuming the City’s description of the 15 cited cases is 26 correct” and “on the present record” because, due to the manner in which Plaintiff sought to bring the 15 cases to the Court’s attention, Plaintiff has not had an opportunity to address 27 the City’s characterization of the 15 cases or attempt to explain why they should be deemed sufficiently similar. Had Plaintiff provided allegations regarding these cases in the 28 complaint (instead of mentioning them for the first time in an exhibit attached to his response to the motion to dismiss), he could have addressed these issues in his response. 1 The next allegation in the complaint intended to support a policy/practice/custom 2 claim is the allegation in paragraph 40 that “[r]ecently, Black Lives Matter has started a 3 campaign to defund the Tempe Police Department because of their demonstrated excessive 4 use of force against minorities.” This allegation is insufficient because, as the City 5 correctly states in its reply, “[n]o details are provided as to what particular incidents Black 6 Lives Matter claims to have involved excessive use of force, when these incidents occurred, 7 what type of force was used, whether any court or governmental authority determine that 8 reported actions violated someone’s constitutional rights, whether Tempe was aware of the 9 alleged incidents prior to the incident which gave rise to this case, or whether Tempe took 10 any actions following the events.” (Doc. 58 at 5.) Moreover, the vague allegation that the 11 campaign began “recently” suggests it could be based on events that occurred after the 12 incident in this case (or was perhaps even based on the incident in this case). The 13 chronology is important because “contemporaneous or subsequent conduct cannot 14 establish a pattern of violations that would provide ‘notice to the city and the opportunity 15 to conform to constitutional dictates.’” Connick v. Thompson, 563 U.S. 51, 63 n.7 (2011) 16 (cleaned up). 17 Next, in paragraph 41, the complaint alleges that “[i]n December, 2019, City of 18 Tempe police officers used excessive force by Tasing an unarmed African-American male 19 holding his one-year old son. That case is presently pending before the United States 20 District Court for the District of Arizona (Oakry v. City of Tempe, case no. 2:20-cv- 21 01167).”3 This allegation suffers from the same chronological flaw discussed in the 22 preceding paragraph. Additionally, a single incident could not establish the necessary 23 pattern. Trevino, 99 F.3d at 918. 24 Finally, in paragraph 42, the complaint alleges that “Tempe Police Chief Sylvia 25 Moir resigned from her position in early 2020. City Manager Andrew Ching reported that 26 the City of Tempe believed it needed a new leader to oversee the long-term changes in the 27 3 The operative complaint in Oakry (D. Ariz., Case No. 20-cv-1167, Doc. 45 ¶ 1) 28 alleges that the incident in that case occurred in June 2019, not in December 2019 as alleged here by Plaintiff. But either way, it occurred after the incident in this case. 1 police department. In an article published by The Crime Report, Mr. Ching is quoted as 2 stating: ‘We’re at a very crucial time in our society. The focus on social justice and 3 systemic racism, especially as it applies to the police department, — not just here, but 4 nationwide — is a significant topic of concern for myself. We have made a lot of progress 5 but we have a lot of work to do and that work should be carried out by the next (police 6 chief).’” This allegation fails for the same reasons as the others—it is devoid of specifics 7 and may be based on incidents that post-dated the incident in this case. 8 For these reasons, to the extent Count Two is premised on a policy/practice/custom 9 theory, it fails to state a claim. 10 B. Failure To Train Or Supervise 11 Municipal liability may also arise when a city fails to adequately train or supervise 12 its employees. See, e.g., Connick, 563 U.S. at 59-61 (analyzing claim that district 13 attorney’s office was indifferent to the need to train its prosecutors about Brady disclosure 14 obligations); Flores v. Cnty. of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014) 15 (analyzing claim that county failed to properly train deputy sheriffs to not sexually assault 16 women); Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006) (“A failure to train or 17 supervise can amount to a policy or custom sufficient to impose [§ 1983] liability.”) 18 (citation omitted). A plaintiff pursuing liability based on a failure to train or supervise 19 must allege that the municipality exhibited “‘deliberate indifference to the rights of 20 persons’ with whom those employees are likely to come into contact.” Lee v. City of Los 21 Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (citation omitted). 22 “‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a 23 municipal actor disregarded a known or obvious consequence of his action.” Bd. of Cnty. 24 Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410 (1997). It may be shown if 25 “the need for more or different training is so obvious, and the inadequacy so likely to result 26 in the violation of constitutional rights, that the policymakers of the city can reasonably be 27 said to have been deliberately indifferent to the need.” City of Canton, Ohio v. Harris, 489 28 U.S. 378, 390 (1989). Additionally, “[a] pattern of similar constitutional violations by 1 untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for 2 purposes of failure to train.” Connick, 563 U.S. at 62 (quoting Bd. of Cnty. Comm’rs, 520 3 U.S. at 409). This requires a plaintiff to show that “policymakers were on actual or 4 constructive notice that a particular omission in their training program causes . . . 5 employees to violate citizens’ constitutional rights,” but chose not to remedy the omission. 6 Id. at 61. “Without notice that a course of training is deficient in a particular respect, 7 decisionmakers can hardly be said to have deliberately chosen a training program that will 8 cause violations of constitutional rights.” Id. at 62. Notably, “[a] municipality’s culpability 9 for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” 10 Id. at 61. 11 The City argues that the complaint offers only vague references to other incidents 12 in which Tempe officers used excessive force and fails to allege how these vague references 13 establish a failure to train or supervise. For example, the City contends that “Mr. Ching’s 14 statements about moving forward with a new police chief and his commitment to racial 15 and social justice do[] not establish nor imply a pattern or knowledge of constitutional 16 violations by the Tempe police. Moreover, former Chief Moir’s resignation does not 17 establish knowledge of unconstitutional behavior; it only reflects a change in leadership.” 18 (Doc. 55 at 10.) In response, Plaintiff largely reiterates his arguments—which are 19 addressed and rejected in Part II.A above—that a plaintiff asserting a Monell claim need 20 not provide specific, non-conclusory allegations to survive a motion to dismiss and/or that 21 the complaint, when read in conjunction with Exhibit A, adequately alleges a pattern of 22 prior incidents. (Doc. 57 at 8-11.) 23 The Court agrees with the City that the failure-to-train claim must be dismissed. 24 First, the complaint fails to provide non-conclusory allegations of a pattern of similar 25 constitutional violations, and such a pattern alone is “ordinarily necessary” to support a 26 failure-to-train claim. Connick, 563 U.S. at 62. See generally Wettstein v. City of 27 Riverside, 2020 WL 2199005, *5 (C.D. Cal. 2020) (“While there is no per se rule for the 28 amount of unconstitutional incidents required to establish a custom under Monell, one or 1 two incidents ordinarily cannot establish a custom, while more incidents may permit the 2 inference of a custom, taking into account their similarity, their timing, and subsequent 3 actions by the municipality. The Ninth Circuit and district courts within the Ninth Circuit 4 have repeatedly declined to infer a custom of constitutional violations based on two 5 unconstitutional incidents alone.”) (cleaned up) (collecting cases). Second, the complaint 6 contains no allegations whatsoever regarding the contours of the City’s training program, 7 and thus does not plausibly allege that the unspecified deficiencies in this undescribed 8 training program were somehow the cause of the unspecified earlier incidents or served as 9 the causal link for Plaintiff’s injury. 10 C. Failure To Investigate Or Discipline/Ratification 11 “[A] local government may be held liable under § 1983 when ‘the individual who 12 committed the constitutional tort was an official with final policy-making authority’ or 13 such an official ‘ratified a subordinate’s unconstitutional decision or action and the basis 14 for it.’” Clouthier v. City of Santa Clara, 591 F.3d 1232, 1250 (9th Cir. 2010) (citation 15 omitted). Ratification can be demonstrated by a failure to discipline. Id. at 1253. 16 However, “[a] policymaker’s knowledge of an unconstitutional act does not, by itself, 17 constitute ratification.” Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999). The 18 policymaker must make a “conscious, affirmative choice” to approve the conduct at issue. 19 Clouthier, 591 F.2d at 1250. 20 The City argues that any ratification claim must fail because the complaint does not 21 allege that (1) there were previous specific incidents of unconstitutional conduct involving 22 the defendant officers—or other officers—for which the City did not discipline them; (2) 23 it was the City’s policy not to investigate or discipline its officers for unconstitutional 24 conduct; (3) any previous failure to discipline caused the incident at issue here; or (4) 25 specific policymakers knew the involved officers’ use of force was unconstitutional yet 26 made a “conscious, affirmative choice” to approve the behavior and the basis for it. (Doc. 27 55 at 8.) In response, Plaintiff again repeats his flawed arguments about the pleading 28 requirements applicable to Monell claims and argues that, “[t]hrough discovery” or “[w]ith 1 the assistance of discovery,” he “will be able to establish that [the City] ratified the actions 2 of Officers Payne and Conklin by not only failing to punish, but also failing to even 3 investigate their excessive use of force in any situation such as this one where the victim 4 . . . was unarmed and only 130 pounds.” (Doc. 57 at 6-8.) 5 The City has the better side of these arguments. With respect to the concepts of 6 investigation and ratification, the complaint merely alleges, in conclusory fashion, that the 7 City’s “policy, pattern of practice, or custom of condoned misconduct is tacitly or overtly 8 sanctioned by the [City’s] failure to train, supervise, and investigate any of the officers in 9 this incident amounting to deliberate indifference to Plaintiff’s constitutional rights.” (Doc. 10 47 ¶ 38.) That is it. The complaint is devoid of any facts—as to both the incident at issue 11 here and the “multiple cases of excessive force” to which Plaintiff alludes—demonstrating 12 that specific policymakers made a “conscious, deliberate choice” to ratify unconstitutional 13 conduct or that there was a policy or custom of declining to investigate similar incidents. 14 Nor does Plaintiff explain how the Oakry case—which, again, occurred the year after the 15 incident in this case—could support a ratification or failure-to-investigate claim. Plaintiff 16 thus fails to state a claim on a theory of ratification or failure to investigate or discipline. 17 III. Leave To Amend 18 Plaintiff requests leave to amend in the event of dismissal. (Doc. 57 at 10.) This 19 request is governed by Rule 15(a) of the Federal Rules of Civil Procedure, which “advises 20 the court that ‘leave [to amend] shall be freely given when justice so requires.’” Eminence 21 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). “This policy is ‘to be 22 applied with extreme liberality.’” Id. Thus, Plaintiff’s amendment request should be 23 granted unless “the amendment: (1) prejudices the opposing party; (2) is sought in bad 24 faith; (3) produces an undue delay in litigation; or (4) is futile.” AmerisourceBergen Corp. 25 v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006). Additionally, “[t]he district court’s 26 discretion to deny leave to amend is particularly broad where plaintiff has previously 27 amended the complaint.” Ascon Props., Inc. v. Mobil Oil. Co., 866 F.2d 1149, 1160 (9th 28 Cir. 1989). 1 Although the City makes a strong argument that amending the complaint would be 2|| futile because none of the cases listed in Exhibit A would support a Monell claim (Doc. 58 || at 9-11), the Court is hesitant to reach any final conclusions on this topic without first hearing Plaintiff's counter-arguments. Unfortunately, due to the manner in which the 5 || briefing process unfolded—where Plaintiff was operating under a mistaken understanding 6|| of the applicable pleading standards and sought to identify the prior excessive-force incidents for the first time in an exhibit attached to his response to the motion to dismiss— 8 || the matter has not been fully explored through the adversary process. Given this backdrop, 9|| and in light of the Ninth Circuit’s liberal policy favoring amendment and the fact that 10|| Plaintiff has not previously sought leave to amend from the Court,’ Plaintiff is granted 11 || leave to amend his complaint to add whatever details regarding past incidents (as well as regarding the City’s alleged training and investigation failures and alleged ratification 13 || efforts) he believes would be sufficient to address the deficiencies identified in this order. 14 Accordingly, 15 IT IS ORDERED that Defendants’ motion to dismiss (Doc. 55) is granted. Counts || Two and Three of the Second Amended Complaint are dismissed. 17 IT IS FURTHER ORDERED that Plaintiffs request for leave to amend is granted. |} Plaintiff may file a Third Amended Complaint within 14 days of the issuance of this order. If Plaintiff files a Third Amended Complaint, the changes shall be limited to attempting to cure the deficiencies raised in this order and Plaintiff shall, consistent with LRCiv 15.1(a), attach a redlined version of the pleading as an exhibit. 22 Dated this 29th day of November, 2021. 23 24 Lm 25 i t _ Dominic W. Lanza 26 United States District Judge + Plaintiff filed his initial complaint in October 2020 (Doc. 1), filed a first amended complaint as a matter of right in January 2021 before the original complaint had been 28 || served (Doc. 9), and filed the operative complaint, the second amended complaint, with the consent of Defendants in July SOD (Doc. 4h

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