Bryant v. City of Antioch

• Court: District Court, N.D. California
• Decided: August 12, 2021
• Docket: 3:21-cv-00590
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARRIYANNA BRYANT, Case No. 21-cv-00590-TSH

8 Plaintiff, ORDER RE: MOTION TO DISMISS 9 v. Re: Dkt. No. 19 10 CITY OF ANTIOCH, et al., 11 Defendants.

12 13 I. INTRODUCTION 14 Pending before the Court is Defendants City of Antioch (“City”), Officer Robert Gerber 15 (“Gerber”), Officer Eric McManus (“McManus”), and Officer Jason Vanderpool (“Vanderpool”) 16 (collectively “Defendants”) Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) 17 (ECF No. 19) Plaintiff Mariyanna Bryant’s (“Bryant”) First Amended Complaint (“FAC”). ECF 18 No. 11. Bryant filed an Opposition (ECF No. 20) and Defendants filed a Reply. ECF No. 23. 19 Having considered the parties’ positions, relevant legal authority, and the record in this case, the 20 Court GRANTS IN PART and DENIES IN PART Defendants’ motion for the following 21 reasons. 22 II. BACKGROUND 23 A. Factual Background 24 The following allegations in Bryant’s FAC, as also summarized in her Opposition to the 25 Motion, are taken as true for purposes of this motion. At or around 4 p.m. on October 7, 2019, 26 Bryant, identified in her FAC as “a hardworking and friendly young adult who is identifiable as 27 African American” (FAC ¶ 13), was driving south on Auto Center Road in Antioch and was at the 1 an unmarked [City-owned] Antioch Police Department vehicle, which belonged to his direct 2 supervisor, in the second turning lane facing Eastbound on Century Boulevard.” Id. ¶ 15. Bryant 3 began to cross the intersection as the traffic light turned yellow “when suddenly and without 4 warning [Gerber] . . . came out of nowhere and collided into the right rear passenger side of 5 [Bryant’s] vehicle.” Id. ¶ 16. Gerber “who was stopped at a red light attempted turn right against 6 his red light” and “traveling at a high rate of speed . . . caused the collision of the two vehicles by 7 impacting the rear passenger sided of the [Bryant’s] vehicle. Id. ¶ 17.1 8 Gerber, “seeing that [Bryant] and all of her passengers were young and African American, 9 decided not to follow protocol in an attempt to cover up the facts of the accident in which he was 10 at fault.” Id. ¶ 18. Gerber “purposefully denied [Bryant] and her passengers police services by 11 failing to dispatch police units but instead called his direct supervisor to the scene via his cellular 12 telephone.” Id. ¶ 19. Gerber’s supervisor was the only law enforcement officer to report to the 13 scene. Id. ¶ 20. 14 When the supervisor arrived,2 Bryant heard him state, “What did you do this time?” and 15 Gerber “responded with a nonchalant smile.” Id. ¶ 21. Gerber “then fabricated a story about 16 [Bryant] running a red light.” Id. ¶ 22. When an ambulance arrived at the scene, Bryant heard one 17 of the emergency medical technicians ask Gerber, “You again, what happened now?” Id. ¶ 23. 18 Bryant was taken to the hospital (id. ¶ 24) and diagnosed with a broken clavicle bone, 19 fractured ribs, back injuries, a neck injury and a hip injury. Id. ¶ 25. 20 McManus “failed to investigate the incident in accordance with [the City’s] policy and 21 never contacted [Bryant] to question her about the accident or the sequence of events leading up to 22 the accident.” Id. ¶ 27. McManus “then purposefully produced a fraudulent police report which 23 misstated facts and included a diagram that misrepresented the collision. . . [and which] placed 24

25 1 Bryant’s allegations here and later in the FAC appear to contradict each other, as Gerber cannot both have been stopped at the light and have “failed to stop at a red traffic signal and was traveling 26 at unsafe speeds in violation of Cal. Vehicle Code § 22350 and § 214530(a).” FAC ¶ 49.

27 2 McManus is identified in the FAC only as an “agent, servant, employee or a person authorized to 1 [Bryant] at fault.” Id. ¶ 29. The City “did not discipline or investigate the actions of [McManus].” 2 Id. ¶ 28. Vanderpool3 reviewed and approved the report “without investigating the facts of the 3 accident.” Id. ¶ 30. 4 The City “delayed the release of the report in attempt to hide and withhold evidence” (id. 5 ¶ 31), which harmed Bryant because she was unable to recover for her injuries. Id. The City 6 released the police report on February 4, 2020. Id. The City “then allowed [McManus] and 7 [Vanderpool] to forward the fraudulently produce [sic] report to [Bryant] and her insurance 8 company.” Id. ¶ 32. 9 Bryant further alleges that the City “does not provide police services in this manner to its 10 white citizens and allowed it’s [sic] officers not to follow multiple policies and procedures 11 concerning police investigations, report writing and the administration of police services to all 12 persons regardless of their race, color or national origin.” Id. ¶ 33. She further alleges that the 13 City’s “deliberate, malicious, and negligent acts based on [Bryant’s] race violated her 14 constitutional rights” (id. ¶ 34) and that she “suffered tremendous emotional harm that could have 15 been prevented if [the City] hadn’t allowed its officers to interfere with [Bryant’s] right to be 16 treated equally under the law.” Id. ¶ 35. 17 B. Procedural Background 18 On April 2, 2020, pursuant to Cal. Govt. Code §§ 905, 905.2, 910, 910.2, a Government 19 Claims Form was submitted on behalf of Bryant. Id. ¶ 2. On July 28, 2020 the City of Antioch 20 rejected the Government Claim. Id. ¶ 3. On August 4, 2020 the City of Antioch notified Plaintiff 21 that it rejected her claim. Id. ¶ 4. 22 On October 20, 2020, Bryant filed her lawsuit in the Superior Court of California and on 23 January 25, 2021, Defendants removed it to federal court. On April 29, 2021, Bryant filed her 24 FAC. Bryant’s FAC includes three state law claims and two federal claims. The State claims are 25 for (1) General Negligence against the City and Gerber, (2) Negligent Hiring, Retention and 26 3 Vanderpool is identified in the FAC only as “an agent, servant, employee or a person authorized 27 to prepare and review [the City’s] police reports” (FAC ¶ 9), so his relationship to Gerber and 1 Supervision against the City and Does 1 through 20,4 and (3) Negligent Entrustment of Motor 2 Vehicle against the City and Does 1 through 20. The federal claims, based on alleged 3 discrimination against Bryant on account of her race, are for (4) violation of 42 U.S.C. § 1983 4 (“Section 1983”), Due Process under the Fourth and Fourteenth Amendment against all defendants 5 and Does 1 through 205 and (5) a Monell Claim pursuant to Section 1983 against the City. 6 III. LEGAL STANDARD 7 To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient 8 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 9 Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). “A claim has facial plausibility when the 10 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 11 defendant is liable for the misconduct alleged.” Id. 12 The Court must accept as true all factual allegations in the complaint, Erickson v. Pardus, 13 551 U.S. 89, 94 (2007), and must give the plaintiff the benefit of every reasonable inference to be 14 drawn from well-pleaded facts. Walleri v. Fed. Home Loan Bank of Seattle, 83 F.3d 1575, 1580 15 (9th Cir. 1996). Factual allegations taken as true “must plausibly suggest an entitlement to relief, 16 such that it is not unfair to require the opposing party to be subjected to the expense of discovery 17 and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011), rehearing en banc 18 denied, 659 F.3d 850 (9th Cir. 2011). 19 To be entitled to the presumption of truth, however, allegations in a complaint “may not 20 simply recite the elements of a cause of action, but must contain sufficient allegations of 21 underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” 22 Id. The court is not required to accept as true a legal conclusion “couched as a factual allegation,” 23 Papasan v. Allain, 478 U.S. 265, 286 (1986), nor is the court “required to accept … allegations 24

25 4 This claim has been withdrawn. See Opp. at p. 9.

26 5 Bryant incorporates by reference the allegations contained in paragraphs 1-27 in both of her federal claims, but her factual allegations also include paragraphs 28-35, covering the alleged lack 27 of discipline against Gerber and the production of a fraudulent police report (¶¶ 28-32) and the 1 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell 2 v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Dismissal is appropriate if the 3 complaint lacks a cognizable legal theory or if there are insufficient facts to support a cognizable 4 legal claim. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). 5 When a motion to dismiss is granted, Federal Rule of Civil Procedure 15(a) provides that a 6 trial court shall grant leave to amend freely “when justice so requires.” Rule 15(a)(2). The 7 Supreme Court has stated that “this mandate is to be heeded.” Foman v. Davis, 371 U.S. 178, 182 8 (1962). The Ninth Circuit has “repeatedly held that a district court should grant leave to amend 9 even if no request to amend the pleading was made, unless it determines that the pleading could 10 not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th 11 Cir. 2000). Indeed, this Circuit has a “longstanding rule that leave to amend should be granted if it 12 appears at all possible that the plaintiff can correct the defect.” Id. (internal citations and quotation 13 marks omitted). 14 IV. DISCUSSION 15 A. State Claims 16 1. Bryant’s General Negligence and Negligent Entrustment of a Motor Vehicle Causes of Action Against The City Fail Because Bryant Identifies No Statutory 17 Authority For Those Claims. 18 California Government Code § 815 provides that, “[e]xcept as otherwise provided by 19 statute: (a) A public entity is not liable for an injury. . .” Cal. Gov. Code § 815. As a result, under 20 California law, all government tort liability is dependent on the existence of an authorizing statute 21 and that statute must be identified in the pleadings. Lopez v. S. Cal. Rapid Transit Dist., 40 Cal. 22 3d 780, 785 n.2 (1985); see also Eastburn v. Reg’l Fire Prot. Auth., 31 Cal. 4th 1175, 1183 (2003) 23 (“direct tort liability of public entities must be based on a specific statute declaring them to be 24 liable, or at least creating some specific duty of care. . .”). Furthermore, because all governmental 25 tort liability is based on statute, “to state a cause of action against a public entity, every fact 26 material to the existence of its statutory liability must be pleaded with particularity.” Lopez, 40 27 Cal. 3d at 795; see also D.K. v. Solano Cnty Office of Educ., 667 F. Supp. 2d 1184, 1198-99 (E.D. 1 statutory basis for claims). 2 In support of her claim for General Negligence, Bryant alleges that because Gerber was 3 negligently driving a City vehicle in the scope and course of his employment when he hit Bryant, 4 the City is “vicariously liable” for the injuries to Bryant caused by Gerber’s “negligent acts.” 5 FAC ¶¶ 37-39. In support of the Negligent Entrustment of a Motor Vehicle cause of action, 6 Bryant’s FAC contains only conclusory statements, namely that that Officer Gerber was at fault 7 for the collision and that the City knew or should have known of his unfitness or incompetence but 8 nonetheless entrusted him with the City vehicle, which he drove negligently into Bryant’s car and 9 that, as a result of the City’s negligence, Bryant suffered physical and emotional harm. Id. ¶¶ 49- 10 53. 11 Even taking these allegations as true, they are insufficient to support either negligence 12 claim against the City as a public entity because Bryant’s FAC fails to identify any statutory basis 13 to support these causes of action, a pre-requisite to establishing liability against a public entity. 14 This deficiency in Bryant’s FAC is not saved by the statutory arguments she makes in her 15 Opposition. While she discusses California Government Code §§ 815.26 and 8207 (see Opp. at 16 pp. 8-9), the specific statute declaring a municipality to be liable must be identified in the 17 pleadings. Bryant has thus failed to plead with particularity “every fact material to the existence 18 of [the City’s] statutory liability.” See Lopez, 40 Cal. 3d at 795. Hence, Bryant’s claims for 19 General Negligence and Negligent Entrustment are not viable as currently pled and are therefore 20 ripe for dismissal. 21 However, Bryant requests that the Court grant her leave to plead the General Negligence 22 and Negligent Entrustment of a Motor Vehicle claims under California Government Code 23

24 6 California Government Code § 815.2 states that “[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his 25 employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” Cal. Gov. Code § 815.2. 26

7 California Government Code § 820 states that, “[e]xcept as otherwise provided by statute 27 (including Section 820.2), a public employee is liable for injury caused by his act or omission to 1 §§ 815.2 and 820, as well as respondeat superior theories of liability. Because it is possible that 2 Bryant’s pleading could be cured by including these or other additional allegations, leave to 3 amend should be granted. 4 Accordingly, the Court GRANTS Defendants’ motion to dismiss on the General 5 Negligence and Negligent Entrustment of a Motor Vehicle claims against the City WITH 6 LEAVE TO AMEND.8 7 2. Bryant’s General Negligence Cause of Action Against Gerber Stands. 8 Defendants assert that Bryant “failed to identify any statute authorizing liability against the 9 City or the police officers but simply alleged those claims based on principles of common-law 10 negligence,” Motion p. 12 (emphasis added), and that Bryant’s allegations “merely state a claim 11 for common-law negligence, which is not sufficient because the Defendants are a public entity and 12 its employees.” Reply p. 3 (emphasis added). Hence, Defendants appear to argue that Section 13 815’s requirement to identify a statutory basis for liability of a public entity also applies to a 14 liability claim against employees of a public entity. This is not the case, however, as the plain 15 language of Section 815 makes clear that it applies only to the public entity itself. 16 Accordingly, to the extent Defendants’ Motion may be read as an attempt to dismiss the 17 General Negligence cause of action against Gerber, the Court DENIES that part of the motion. 18 B. Federal Claims 19 1. Bryant Fails Adequately To Allege A Claim For Violation of Title 42 USC § 1983, Due Process Under the Fourth and Fourteenth Amendments.9 20 21 A claim under Section 1983 requires a claimant to prove (1) that a person acting under 22 color of state law (2) committed an act that deprived the claimant of some right, privilege, or 23

24 8 Bryant includes her Negligent Hiring, Retention and Supervision cause of action in her request to amend, but since she has proactively withdrawn that claim (see Opp. at p. 9), the Court does not 25 here grant leave to include that claim in her amended complaint.

26 9 As mentioned above, Bryant fails to incorporate into her federal claims the allegations that the City’s conduct was based on race discrimination (FAC ¶¶ 33-35), hence the allegations of race 27 discrimination have not been incorporated into either federal claim. Although this could be 1 immunity protected by the Constitution or laws of the United States. Leer v. Murphy, 844 F.2d 2 628, 632–33 (9th Cir. 1988). The first inquiry in any Section 1983 suit is “whether the plaintiff 3 has been deprived of a right ‘secured by the Constitution and laws.’” Baker v. McCollan, 443 4 U.S. 137, 140 (1979). 5 In her FAC, Bryant alleges a violation of Section 1983 because the “egregious conduct” by 6 Defendants, a government agency and persons acting under color of law, violated her 7 constitutional right to procedural and substantive due process under the Fourteenth Amendment to 8 the United States Constitution. FAC ¶ 56.10 She further alleges that “[a]ll Defendants acted under 9 color of law by interfering with [Bryant’s] right to have police services administered in a 10 nondiscriminatory manner which led to her inability to recover under insurance policies.” Id. 11 ¶ 58. The gravamen of Bryant’s civil rights claims, then, is not that she was denied adequate 12 police services but that she was denied nondiscriminatory police services based on her race. 13 Defendants argue that they are immune from liability based on California Government 14 Code § 820.2 because the acts complained of “were performed in the officers’ discretion while 15 investigating the collision.” Reply at p. 5. However, Defendants cite no legal authority to show 16 that a state statute could somehow create immunity from Section 1983. The Ninth Circuit’s 17 decision in Hen v. City of Los Angeles, 244 Fed. Appx. 794 (9th Cir. 2007), discussed public entity 18 immunity under California law, not federal law. And Alston v. Cty. of Sacramento, 2019 U.S. 19 Dist. LEXIS 20348, *9-10 (E.D. Cal. Feb. 7, 2019), rejected an attempt to base a Section 1983 20 claim on a violation of an alleged legal duty created by state law. Neither case stands for the 21 proposition that state law can create immunity from federal law. 22 On a more substantive level, Defendants argue that Bryant’s federal claims under Section 23 1983 fail because she does not identify any constitutionally protected right that the City or the 24 individual defendants violated. They argue that she alleged only violations of the “right” to a 25

26 10 Paragraph 56 also refers to the Fourth Amendment, but the Court does not understand why. Bryant’s opposition brief makes clear that her Section 1983 claim is based on race discrimination 27 (as opposed to being searched or seized without a search warrant or probable cause). Accordingly, 1 police report and the “right” to collect under insurance policies and that there is no federal right 2 under the Constitution or the laws of the United States to have police services, or even adequate 3 police services. Reply at p. 6. They assert further that Bryant’s allegations amount to “failure to 4 provide sufficient police protection service” and are therefore barred by California Government 5 Code § 845.11 Id. 6 Defendants rely on Gates v. Superior Court, 32 Cal. App. 4th 481 (1995) to argue that they 7 are entitled to Section 845 immunity. In Gates, a California Court of Appeals held that a 8 discrimination case involving allegations that defendant police officers had violated plaintiffs’ 9 rights under California Civil Code §§ 51.7 (right to be free from violence) and 52 (denial of civil 10 rights) based on “the failure to properly train and mobilize officers; the withdrawal of officers 11 from minority neighborhoods; the fact officers were not deployed or redeployed; the failure to 12 respond to telephone calls for emergency police assistance; the absence of a police response to 13 acts of violence and looting; or the denial of protective services” nevertheless “squarely falls 14 within the ambit of a ‘failure to provide sufficient police protection service’” for which Section 15 845 precludes liability. Gates, 32 Cal. App. 4th at 503-504. Gates, then, involved California 16 statutory immunity for violations of the California Constitution and statutes12 for failure to provide 17 adequate police services, not immunity from federal law. 18 The Ninth Circuit has determined that there is indeed a federal constitutional right “to have 19 police services administered in a nondiscriminatory manner—a right that is violated when a state 20 actor denies such protection to disfavored persons.” Est. of Macias v. Ihde, 219 F.3d 1018, 1028 21 (9th Cir. 2000). Bryant’s Section 1983 cause of action claims a violation of the Fourteenth 22 Amendment. As stated above, Bryant specifically alleges in her FAC that Defendants violated her 23 right to police services administered in a nondiscriminatory fashion (the constitutional violation) 24 11 Section 845 provides that “[n]either a public entity nor a public employee is liable for failure to 25 establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.” Cal. 26 Gov. Code § 845.

27 12 The case also included claims for federal civil rights violations but these were not at issue in the 1 which caused her to be unable to recover under insurance policies fashion (the consequence of the 2 constitutional violation). FAC ¶¶ 57-58. Section 845 is a state law and does not and cannot 3 preclude liability for this type of alleged violation of a federal constitutional right. 4 With respect to Officer Gerber, Bryant alleges that “seeing that [Bryant] and all of her 5 passengers were young and African American, [Gerber] decided not to follow protocol in an 6 attempt to cover up the facts of the accident in which he was at fault.” FAC ¶ 18. Bryant further 7 alleges that Gerber “then purposefully denied [Bryant] and her passengers police services by 8 failing to dispatch police units but instead called his direct supervisor to the scene via his cellular 9 telephone.” Id. ¶ 19. These allegations are sufficient to state a claim against Gerber. 10 However, Bryant’s FAC is entirely devoid of factual allegations showing that McManus or 11 Vanderpool committed race discrimination. There are no allegations that, if credited, would 12 support a claim that racial discrimination motivated these Defendants’ conduct. Further, Bryant’s 13 allegations in paragraphs 31-35 of the FAC that the City committed race discrimination are not 14 only not incorporated into her fourth cause of action but are also conclusory. 15 Accordingly, the Court DENIES Defendants’ motion to dismiss the Section 1983 against 16 Defendant Gerber and GRANTS Defendants’ motion to dismiss the Section 1983 against 17 Defendants McManus, Vanderpool, and the City WITH LEAVE TO AMEND. 18 2. Bryant’s Monell Claim Fails Because She Does Not Allege Facts Of Sufficient Specificity To Impose Liability On The City. 19 20 A local government “may not be sued under § 1983 for an injury inflicted solely by its 21 employees or agents. Instead, it is when execution of a government’s policy or custom, whether 22 made by its lawmakers or by those whose edicts or acts may fairly be said to represent official 23 policy, inflicts the injury that the government as an entity is responsible under § 1983.” Monell v. 24 Dep’t of Social Services of the City of New York, 436 U.S. 658, 694 (1978). “Liability for 25 improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon 26 practices of sufficient duration, frequency and consistency that the conduct has become a 27 traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), 1 A plaintiff alleging a failure to train claim under Monell must show: (1) she was deprived 2 of a constitutional right, (2) the municipality had a training policy that amounts to deliberate 3 indifference to the constitutional rights of the persons with whom its police officers are likely to 4 come into contact, and (3) her constitutional injury would have been avoided had the municipality 5 properly trained those officers. See Young v. City of Visalia, 687 F. Supp. 2d 1141, 1148 (E.D. 6 Cal. 2009) (citations and internal quotations omitted). As with liability based on improper custom, 7 where a Monell claim is premised on inadequate training or supervision, “[p]roof of a single 8 incident of unconstitutional activity is not sufficient to impose liability....” City of Oklahoma City 9 v. Tuttle, 471 U.S. 808, 823–24 (1985). Rather, a plaintiff must allege and prove widespread, 10 systematic constitutional violations that have become “so permanent and well settled as to 11 constitute a ‘custom or usage’ with the force of law.” Monell, 436 U.S. at 491. Moreover, 12 Congress did not intend to impose liability on a municipality unless deliberate action attributable 13 to the municipality itself is the “moving force” behind the plaintiff’s deprivation of federal rights. 14 See id. at 694. 15 Bryant contends that allegations in the FAC – that (1) Officer Gerber drove recklessly 16 (FAC ¶¶ 16, 17), (2) “after seeing that [Bryant] and all of her passengers were young and African- 17 American, [Gerber] decided not to follow protocol in an attempt to cover up the facts of the 18 accident in which he was at fault” (id. ¶ 18), (3) Officer McManus failed to properly investigate 19 the collision “in accordance with Defendant City policy” (id. ¶ 27) and produced an intentionally 20 fraudulent police report (id. ¶ 29), and (4) Officer Vanderpool reviewed and approved the report 21 “without questioning the clearly improper protocol’s [sic] used and faulty reporting mechanisms” 22 (Opp. at p. 11, citing FAC ¶ 30) – indicate a “clear pattern” of “customs and practices” by the City 23 of Antioch. Opp. at p. 11. Hence, Bryant alleges a Monell claim against the City based on the 24 officers’ actions; however, it is well-settled that municipalities are not vicariously liable for the 25 actions of their employees. Monell, 436 U.S. at 691 (a municipality “cannot be held liable under 26 §1983 on a respondeat superior theory.”) 27 In addition, the FAC’s allegations that the City “does not provide police services in this 1 procedures concerning police investigations, report writing and the administration of police 2 services to all persons regardless of their race, color or national origin” (id. ¶ 33) and that its 3 “deliberate, malicious, and negligent acts based on [Bryant’s] race violated her constitutional 4 rights” (id. ¶ 34) amount to little more than legal conclusions couched as factual allegations. As a 5 result, the Court is not required to accept these allegations as true. 6 Bryant also alleges that the City had a duty to adequately train, supervise, and discipline its 7 officers in order to protect Bryant “from being harmed unnecessarily.” FAC ¶ 60. She alleges the 8 City was “deliberately indifferent to such duties” (id. ¶ 61) and created an “atmosphere in which 9 officers believe they may act with impunity when engaging in unlawful conduct.” Id. ¶ 62. 10 Bryant asserts that she has stated a cause of action under the “training and custom” analysis of 11 Monell because “these are not random and singular instances of malfeasance.” Opp. at p. 11. 12 However, despite these assertions, Bryant’s FAC does, in fact, allege only a single, 13 isolated instance of misconduct. Hence, her allegations are inadequate to demonstrate conduct of 14 sufficient duration, frequency and consistency that it has become the City’s traditional method of 15 carrying out policy that would support a Monell claim. Nor can one incident of alleged 16 misconduct amount to a pattern of behavior constituting a custom. Further, Bryant’s specific 17 allegations concerning this one incident are in some ways inconsistent with a Monell claim. As 18 noted above, Bryant alleges that Gerber “decided not to follow protocol in an attempt to cover up 19 the facts of the accident in which he was at fault” (FAC ¶ 18) and that McManus “failed to 20 properly investigate the matter in accordance with Defendant City policy,” id. ¶ 27. Individual 21 officers’ departures from protocol and policy tend to undermine a Monell claim (unless there are 22 allegations that the departures are themselves a custom, which is not alleged here). 23 The FAC contains no allegations regarding any particular unconstitutional policy or 24 custom of the City’s Police Department that the officers followed that caused the deprivation of 25 Bryant’s constitutional rights. Bryant’s FAC also fails to identify any deficiencies whatsoever in 26 the City's training program. The FAC does not, for example, specify what training and hiring 27 practices led to the deprivation of her rights, how these practices were constitutionally deficient, 1 identifying a relevant municipal policy or custom, Bryant cannot – and has not – alleged that this 2 policy was the “moving force” behind the constitutional deprivation. Therefore, the Court cannot 3 say that a claim has been stated for the kind of deliberate indifference that would “plausibly 4 indicate a valid Monell claim.” See Young, 687 F. Supp. 2d at 1150. 5 In the end, then, Bryant’s FAC does no more than make conclusory, “threadbare” 6 allegations that merely recite the elements for a cause of action under Monell. Such allegations 7 are inadequate to confer liability on the City under Monell and cannot defeat a motion to dismiss. 8 Cf. Iqbal, 129 S. Ct. at 1949–50. 9 Accordingly, the Court GRANTS the motion to dismiss as to the Monell claim against the 10 City WITH LEAVE TO AMEND. 11 12 V. CONCLUSION 13 For the reasons stated above, the Court ORDERS the following: 14 1. Defendants’ motion to dismiss the General Negligence claim (First Cause of Action) 15 against the City is GRANTED and the claim is DISMISSED WITH LEAVE TO AMEND; 16 2. Defendants’ motion to dismiss the General Negligence claim against Gerber is 17 DENIED; 18 3. The Negligent Hiring, Supervision, and Retention Claim (Second Cause of Action) 19 against the City has been WITHDRAWN by Bryant; 20 4. Defendants’ motion to dismiss the Negligent Entrustment Of A Motor Vehicle claim 21 (Third Cause of Action) against the City is GRANTED and the claim is DISMISSED WITH 22 LEAVE TO AMEND; 23 5. Defendants’ motion to dismiss the Section 1983 claim (Fourth Cause of Action) against 24 the City and Officers McManus and Vanderpool is GRANTED and the claim is DISMISSED 25 WITH LEAVE TO AMEND; 26 6. Defendants’ motion to dismiss the Section 1983 claim against Gerber is DENIED; 27 7. Defendants’ motion to dismiss the Monell claim (Fifth Cause of Action) against the 1 8. Bryant may file a second amended complaint no later than thirty (30) days after the date 2 || of this order. 3 IT IS SO ORDERED. 4 5 Dated: August 12, 2021 TAN. kee THOMAS S. HIXSON 7 United States Magistrate Judge 8 9 10 11 12

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