1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WAYNE CALHOON, No. 2:19-cv-02165-KJM-JDP 12 Plaintiff, 13 v. ORDER 14 CITY OF SOUTH LAKE TAHOE, et al., 15 Defendants. 16
17 18 Defendants City of South Lake Tahoe Police Department (“Police Department”), 19 City of South Lake Tahoe (“City”), and individually named defendant police officers (collectively 20 “police officers”), move to dismiss plaintiff Wayne Calhoon’s first and second claims against all 21 defendants and all claims against the Police Department. Mot. to Dismiss (“MTD”), ECF No. 15, 22 at 2. Plaintiff filed an opposition. Opp’n, ECF No. 19. Defendants replied. Reply, ECF No. 23. 23 The court heard argument on May 15, 2020, with Edwin Bradley appearing for plaintiff and 24 Beverly Roxas appearing for defendants. Hr’g Minutes, ECF No. 24. For the reasons below, the 25 court DENIES in part and GRANTS in part defendants’ motion to dismiss. 26 I. BACKGROUND 27 On October 14, 2018, plaintiff, a friend and the friend’s two daughters travelled to 28 the Lake Tahoe region. First Am. Compl. (“FAC”) ¶ 15, ECF No. 13. On the same day, plaintiff 1 alleges his friend, Ms. Desirae Drake, contacted the Police Department to request a “civil 2 standby” while she “completed the task of removing her personal items from the motel room 3 rented by the Plaintiff and then occupied by him.” Id. ¶¶ 16–17. Plaintiff alleges Ms. Drake did 4 not report or allege any misconduct in requesting the “civil standby.” Id. ¶ 17. Defendants 5 contend Ms. Drake called as a result of a “domestic dispute” with plaintiff. MTD at 4. 6 In response to Ms. Drake’s call, the police officers arrived at plaintiff’s motel 7 room and “loudly demanded […] immediate entry.” FAC ¶¶ 18–19. Plaintiff alleges the officers 8 did not have any of the following reasons to enter plaintiff’s room: allegations of any “crime, 9 disturbance or public offense,” a warrant authorizing a search or arrest, probable cause belief of a 10 felony, or “exigent circumstances” that required “immediate forcible entry.” Id. Because of this, 11 plaintiff alleges he believed his constitutional rights permitted him to deny the officers entry into 12 his motel room. Id. ¶ 20. 13 Plaintiff claims the police officers stated they would force entry and immediately 14 take him to jail should he not open the door; in response, plaintiff opened the security latch of the 15 door and observed one or more of the officers pointing a gun at him. Id. ¶¶ 21–22. Plaintiff then 16 closed the door and “retreated to the bathroom area of his room for safety” as a result of a 17 “reasonable and rational fear of bodily injury or death.” Id. ¶ 22. Following this initial retreat, 18 plaintiff alleges he received further threats from the police officers and “in an effort to deescalate 19 the dangerous situation caused by the defendant officers,” he agreed to exit the motel room. Id. 20 ¶ 23. Upon plaintiff’s exiting the room, the police officers handcuffed plaintiff and allegedly 21 “manipulate[d] his body” by kicking his leg and foot and pushing his arms behind his back. Id. 22 ¶¶ 23–24. Some of the police officers allegedly searched plaintiff’s room over his objection; 23 nobody else was present to consent to this search. Id. ¶ 25. The officers then released plaintiff 24 from arrest. Id. ¶ 26. 25 On October 25, 2019, plaintiff filed suit against defendants. Compl., ECF No. 1. 26 On January 6, 2020, after discussions with defendants, plaintiff filed an amended complaint. See 27 generally FAC; see also MTD at 2. He names as defendants the City and the Police Department, 28 which he says are liable under the principle of respondeat superior; the police officers allegedly 1 involved in the events in question: Nick Carlquist, Derek Simon, Joseph Acker, Travis Cabral and 2 Matthew Morrison; and Does 2 through 25.1 FAC ¶¶ 2–13. Plaintiff alleges the officers all were 3 employed by the City of South Lake Tahoe and “voluntarily swore to uphold the Constitution of 4 the United States of America.” Id. ¶¶ 4–8. 5 The complaint asserts five claims in total: (1) municipal liability for violation of 6 civil rights under 42 U.S.C. § 1983 by way of an unconstitutional custom, practice or policy; 7 (2) failure to adequately hire, train, and supervise police personnel under 42 U.S.C. § 1983; 8 (3) assault and battery; (4) false arrest; and (5) general negligence. Id. ¶¶ 15–67. In the pending 9 motion, defendants challenge all claims against the Police Department and all federal claims 10 against all defendants. MTD at 5–9. 11 II. LEGAL STANDARD 12 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to 13 dismiss a complaint for “failure to state a claim upon which relief can be granted.” A court may 14 dismiss “based on the lack of cognizable legal theory or the absence of sufficient facts alleged 15 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 16 1990). 17 Although a complaint need contain only “a short and plain statement of the claim 18 showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in order to survive a motion 19 to dismiss this short and plain statement “must contain sufficient factual matter . . . to ‘state a 20 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 21 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something 22 more than “an unadorned, the-defendant-unlawfully-harmed-me accusation” or “‘labels and 23 conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Id. (quoting 24
25 1 If defendants’ identities are unknown when the complaint is filed, plaintiffs have an opportunity through discovery to identify them. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). But 26 the court will dismiss such unnamed defendants if discovery clearly would not uncover their 27 identities or if the complaint would clearly be dismissed on other grounds. Id. The federal rules also provide for dismissing unnamed defendants that, absent good cause, are not served within 28 ninety days of the complaint. Fed. R. Civ. P. 4(m). 1 Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss 2 for failure to state a claim is a “context-specific task that requires the reviewing court to draw on 3 its judicial experience and common sense.” Id. at 679. Ultimately, the inquiry focuses on the 4 interplay between the factual allegations of the complaint and the dispositive issues of law in the 5 action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). 6 In making this context-specific evaluation, this court must construe the complaint 7 in the light most favorable to the plaintiff and accept as true the factual allegations of the 8 complaint. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007). This rule does not apply to “‘a legal 9 conclusion couched as a factual allegation,’” Papasan v. Allain, 478 U.S. 265, 286 (1986) (quoted 10 in Twombly, 550 U.S. at 555), nor to “allegations that contradict matters properly subject to 11 judicial notice” or to material attached to or incorporated by reference into the complaint. 12 Sprewell v. Golden State Warriors, 266 F.3d 979, 988–89 (9th Cir. 2001). A court’s 13 consideration of documents attached to a complaint or incorporated by reference or matter of 14 judicial notice will not convert a motion to dismiss into a motion for summary judgment. United 15 States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003); Parks Sch. of Bus. v. Symington, 51 F.3d 16 1480, 1484 (9th Cir. 1995); compare Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 17 980 (9th Cir. 2002) (noting even though court may look beyond pleadings on motion to dismiss, 18 generally court is limited to face of complaint on 12(b)(6) motion). 19 III. DISCUSSION 20 A. Section 1983 (First and Second Claims): South Lake Tahoe Police Department 21 Defendants argue the court must dismiss the Police Department as an improper 22 defendant because all claims against them are duplicative of those pled against the City. MTD at 23 5–6 (citing Wilson v. City of Bakersfield, No. 1:16-CV-00387-JLT, 2016 WL 2997496, at *8 24 (E.D. Cal. May 23, 2016)). At hearing, plaintiff conceded this point. The court GRANTS 25 defendants’ motion to dismiss the Police Department, without leave to amend.2
26 2 In Tennyson v. Cty. of Sacramento, No. 2:19-cv-0429 KJM, 2020 WL 4059568 (E.D. Cal. Jul. 27 20, 2020), this court determined a local law enforcement agency, such as a sheriff’s department, does constitute a separate legal entity under Section 1983. Because plaintiff here conceded this 28 argument at hearing, the court dismisses the Police Department without further discussion. 1 B. Section 1983 (First and Second Claims): City of South Lake Tahoe 2 According to defendants, the court must dismiss claims against the City because 3 plaintiff has failed to state a plausible claim for relief under both an unconstitutional custom or 4 policy and a failure to adequately hire, train and supervisory theory of Monell liability. MTD at 5 6–8. Plaintiff argues his allegations regarding the actions of defendant police officers, who made 6 up almost the entirety of the City Police Department, adequately plead an unconstitutional custom 7 or policy, as well as the City’s failure to adequately hire, train and supervise its employees. 8 Opp’n at 5–9. The court turns to defendants’ specific arguments regarding plaintiff’s 9 unconstitutional custom or policy and negligent hiring, training and supervision claims under 10 Section 1983. 11 1. Unconstitutional Custom, Practice or Policy 12 Defendants argue plaintiff’s complaint is “completely devoid of any facts, or 13 even allegations” necessary to establish the City has an “official policy or custom” that supports 14 plaintiff’s Monell claim. MTD at 6–7. Plaintiff argues he does provide allegations of fact 15 necessary to demonstrate an unconstitutional custom; these allegations reveal “a shared belief and 16 understanding by defendants” that shows they either endorsed or accepted the unconstitutional 17 actions. Opp’n at 5–6. 18 Under Monell, municipalities “are responsible only for their own illegal acts,” 19 Connick v. Thompson, 563 U.S. 51, 60 (2011) (emphasis in original) (citations and internal 20 quotation marks omitted). “They are not vicariously liable . . . for their employees’ actions.” Id. 21 (citations omitted). To successfully establish Monell liability, a plaintiff must show “‘(1) that [he 22 or she] possessed a constitutional right of which [he or she] was deprived; (2) that the 23 municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s 24 constitutional right; and (4) that the policy is the moving force behind the constitutional 25 violation.’” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (quoting Plumeau v. 26 Sch. Dist. No. 40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). “Official . . . policy 27 includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and 28 ///// 1 practices so persistent and widespread as to practically have the force of law.” Connick, 563 U.S. 2 at 61(citations omitted). 3 “[A] custom or practice can be inferred from widespread practices or evidence 4 of repeated constitutional violations for which the errant municipal officers were not discharged 5 or reprimanded.” Hunter v. Cty. of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011) (citations 6 and internal quotation marks omitted). “[E]vidence of inaction—specifically failure to 7 investigate and discipline employees in the face of widespread constitutional violations—can 8 support an inference that an unconstitutional custom or practice has been unofficially adopted 9 by a municipality.” Id. at 1234 n.8 (emphasis omitted). 10 Prior to the Supreme Court’s decisions in Twombly and Iqbal, supra, a claim for 11 municipality liability could “withstand a motion to dismiss ‘even if . . . based on nothing more 12 than a bare allegation that the individual officers’ conduct conformed to official policy, custom, 13 or practice.’” Karim-Panahi v. L.A. Police Dept., 839 F.2d 621, 624 (9th Cir. 1988) (citing Shah 14 v. Cty. of L.A. Intelligence & Coordination Unit, 797 F.2d 743, 747 (9th Cir. 1986)). Since 15 Twombly and Iqbal, the Ninth Circuit has articulated a two-part test to govern evaluation of 16 allegations in a complaint or counterclaim: 17 First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a 18 cause of action, but must contain sufficient allegations of underlying 19 facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as 20 true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of 21 discovery and continued litigation. 22 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2012). Thus, the court considers a motion to dismiss 23 a claim of municipal liability under a heightened pleading standard focusing on plausibility. See 24 Young v. City of Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009) (“Iqbal has made clear that 25 conclusory, ‘threadbare’ allegations that merely recite the elements of a cause of action will not 26 defeat a motion to dismiss . . . . In light of Iqbal, it would seem that the prior Ninth Circuit 27 pleading standard for Monell claims (i.e. ‘bare allegations’) is no longer viable.”). 28 1 Here, plaintiff does not sufficiently plead his claims of an unconstitutional custom 2 or policy. He alleges defendants violated his constitutional rights to be free from unreasonable 3 search and seizure, right to free association as well as right to privacy. FAC ¶¶ 28, 32. He says 4 in summary fashion that a “general policy and/or custom within the City of South Lake Tahoe 5 Police Department” led to these violations and “gives rise to Monell liability for the City of South 6 Lake Tahoe.” Id. Plaintiff emphasizes how the “actions by the defendant police officers, and 7 each of them, acting in concert and with common design,” constitute these alleged violations, thus 8 demonstrating a general policy or custom allowed them to act in this way. Id. ¶ 31. Plaintiff also 9 take the position a reasonable inference can be drawn of an unconstitutional custom from the 10 City’s failure to investigate his written complaint, id. ¶¶ 14, 32, a claim defendants argue as 11 requiring too far a logical jump from initial evidence to conclusion to withstand dismissal. 12 At hearing, the court pressed plaintiff’s counsel on whether he could point to any 13 other specific incidents of previous constitutional violations, that might be pled in an amended 14 complaint. Plaintiff’s counsel stated that without discovery, he was unaware of such other 15 incidents, and acknowledged the claim requires the court to draw some inferences. Counsel was 16 unable to flesh out the conclusory pleadings, including for example, the allegation that because 17 “the entire day shift or substantially the entire day shift” of the relatively small Police Department 18 participated in the alleged events, these actions were “consistent with the custom of practice 19 endorsed by or approved by or accepted by” the City. Id. ¶ 32. 20 Plaintiff relies primarily on two cases for his position that his pleadings are 21 sufficient to support a reasonable inference. See Opp’n at 5 (quoting Pembaur v. City of 22 Cincinnati, 475 U.S. 469, 481 n.10 (1986) (plurality opinion); Board of Cty. Com’rs of Bryan 23 Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997)). These cases, however, provide little more than a 24 general description of the differences between a “policy” and a “custom” for purposes of 25 municipal liability under Monell. See Pembaur, 475 U.S. at 481 n.10 (“[L]ocal governments, like 26 every other § 1983 ‘person,’ …may be sued for constitutional deprivations visited pursuant to 27 governmental ‘custom’ even though such a custom has not received formal approval through the 28 body’s official decisionmaking channels.”) (quoting Monell, 436 U.S. at 690–91); Board of Cty. 1 Com’rs of Bryan Cty., 520 U.S. at 404 (“Similarly, an act performed pursuant to a ‘custom’ that 2 has not been formally approved by an appropriate decisionmaker may fairly subject a 3 municipality to liability on the theory that the relevant practice is so widespread as to have the 4 force of law.”) (citing Monell, 436 U.S. at 690–91) (additional citations omitted). The cases do 5 not support plaintiff’s arguments the alleged involvement of all the City’s police officers in one 6 incident evinces an unconstitutional custom. 7 Rather, courts generally only are willing to infer an unconstitutional policy or 8 custom when the plaintiff provides multiple incidents of prior, similar conduct, as opposed to the 9 one previous incident plaintiff alleges here. See, e.g., Estate of Alejandro Sanchez v. Cty. of 10 Stanislaus, No. 1:18-CV-0977-DAD-BAM, 2019 WL 1745868 (E.D. Cal. Apr. 18, 2019) 11 (requiring plaintiffs’ complaint to include “sufficient factual allegations” to plausibly allege the 12 existence of a policy or custom of excessive force when plaintiffs pointed to at least three prior 13 cases involving similar facts and eventual settlement); see also Lemus v. Cty. of Merced, No. 14 1:15-cv-00359-MCE-EPG, 2016 WL 2930523, at *4 (E.D. Cal. May 19, 2016), aff’d, 711 Fed. 15 App’x 859 (9th Cir. 2017) (“[W]here more than a few incidents are alleged, the determination 16 appears to require a fully-developed factual record.”). Here, without additional allegations of 17 similar, prior incidents, plaintiff has not stated a plausible claim for relief under an 18 unconstitutional custom Monell theory of liability. 19 The court GRANTS defendants’ motion to dismiss plaintiff’s municipal liability 20 claim against the City for an unconstitutional custom. While the court grants leave to amend, any 21 amendment must be fully consonant with Federal Rule of Civil Procedure 11. 22 2. Ratification 23 Although plaintiff does not explicitly disaggregate a ratification claim from his 24 unconstitutional custom claim under Monell, plaintiff also uses the term ratification in the 25 operative complaint to describe defendants’ actions following the alleged unconstitutional 26 violations. For the sake of completeness and clarity, the court analyzes plaintiff’s apparent 27 ratification claim separately from his unconstitutional custom claims. Plaintiff alleges 28 “ratification of this misconduct by the City on grounds that include”: (1) the City’s failure to 1 investigate plaintiff’s written complaint to the City following the alleged events; (2) the City’s 2 failure to “counsel, discipline, re-train, punish or otherwise direct the defendant officers to change 3 their practices”; and (3) the events of October 14, 2018 occurred “as a coordinated operation and 4 spontaneous joint actions by the entire day shift or substantially the entire day shift,” of the Police 5 Department, “without objection or exception” of any officer, including supervisory officers, 6 thereby showing their post hoc conduct was consistent with the custom or practice of the City. 7 FAC ¶ 32. 8 A plaintiff may claim Monell liability where an “official with final policy-making 9 authority ratified a subordinate’s unconstitutional decision or action and the basis for it.” Gillette 10 v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992). “A policymaker’s knowledge of an 11 unconstitutional act does not, by itself, constitute ratification.” Christie v. Iopa, 176 F.3d 1231, 12 1239 (9th Cir. 1999). Furthermore, “a policymaker’s mere refusal to overrule a subordinate’s 13 completed act does not constitute approval.” Id. Rather, ratification requires the authorized 14 policymaker to make a “conscious, affirmative choice.” Gillette, 979 F.2d at 1347. Ratification 15 “and thus the existence of a de facto policy or custom, can be shown by a municipality’s post 16 event conduct, including its conduct in an investigation of the incident.” Dorger v. City of Napa, 17 No. 12-cv-440 YGR, 2012 WL 3791447, at *5 (N.D. Cal. Aug. 31, 2012) (emphasis in original) 18 (citing Henry v. Cty. of Shasta, 132 F.3d 512, 518 (9th Cir. 1997)). To ultimately prove 19 ratification occurred, a plaintiff must also show the ratification was (1) the cause in fact, and 20 (2) the proximate cause of the constitutional deprivation. Arnold v. Int’l Bus. Machines Corp., 21 637 F.2d 1350, 1355 (9th Cir. 1981). 22 a) Final Policymaker 23 Whether an official is a policymaker for Monell purposes is a question governed 24 by state law. City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988). “‘Authority to make 25 municipal policy may be granted directly by a legislative enactment or may be delegated by an 26 official who possesses such authority, and of course, whether an official had final policymaking 27 authority is a question of state law.’” Id. (quoting Pembaur, 475 U.S. at 483). 28 ///// 1 Here, plaintiff has not identified a final policymaker. As discussed below, he 2 brings a separate, supervisory liability claim against Sergeant Cabral. FAC ¶ 41. But with 3 respect to ratification, plaintiff claims the responding police officers took their actions “without 4 objection or exception of” supervisory officers, without identifying those supervisors. Id. ¶ 32. 5 In addition, he pleads the officers’ conduct was “endorsed by or approved by or accepted by the 6 City of South Lake Tahoe Police Department and the City of South Lake Tahoe, including its 7 elected officials and city managers.” Id. Although plaintiff pleads that supervisory officers, 8 including Sergeant Cabral, essentially ratified the alleged unconstitutional actions of the 9 individual officers and that more senior officials approved these actions, none of his allegations 10 comes close to pleading who the final policymaker was under state law. Compare FAC ¶¶ 32, 41, 11 with Larez v. City of Los Angeles, 946 F.2d 630, 633, 646 (9th Cir. 1991) (observing chief of 12 police was “an official policymaker for the City on police matters”). Likewise, plaintiff’s claims 13 against elected officials and city managers in South Lake Tahoe do not identify these officials as 14 final policymakers under state law. Plaintiff’s allegations against these officials also fail to state a 15 plausible claim for relief under a ratification theory. Ratification, however, generally requires 16 more than acquiescence.” Sheehan v. City & Cty. of San Francisco, 743 F.3d 1211, 1231 (9th 17 Cir. 2014). The elected officials and city manager’s alleged endorsement, acceptance, approval, 18 or their “mere failure to discipline [the officers] does not amount to ratification of their allegedly 19 unconstitutional actions.” Id. 20 For this reason alone, the court finds plaintiff has not sufficiently pleaded a 21 ratification theory. The court need not reach the second prong of a ratification claim regarding 22 whether a final policymaker both “ratified a subordinate’s unconstitutional decision or action and 23 the basis for it.” Gillette, 979 F.2d at 1346–47. 24 The court GRANTS defendants’ motion to dismiss plaintiff’s municipal liability 25 cause of action based on a ratification theory of liability, but with leave to amend if possible. 26 3. Failure to Hire, Train or Supervise (Second Claim) 27 With respect to plaintiff’s claims that defendants failed to adequately train, hire 28 and supervise police personnel, defendants contend the complaint did not “plausibly allege any 1 type of governmental policy that rises to the level of a failure to adequately train, hire or 2 supervise, is so deficient that it shows ‘deliberate indifference to the rights’ of those with whom 3 the employees will interact.” MTD at 7–8 (citing Connick, 563 U.S. at 61); see also Reply at 3–4. 4 Plaintiff resists this characterization, as reviewed below. Opp’n at 7. 5 Successful claims for negligent training require plaintiffs to allege the following: 6 “(1) an inadequate training program, (2) deliberate indifference on the part of the [municipality] 7 in adequately training its law enforcement officers, and (3) whether the inadequate training 8 ‘actually caused’ a deprivation of [. . .] constitutional rights.” Merritt v. City of Los Angeles, 9 875 F.2d 765, 770 (9th Cir. 1989). The “deliberate indifference” standard is met when “the need 10 for more or different training is so obvious, and the inadequacy so likely to result in the violation 11 of constitutional rights, that the policymakers of the city can reasonably be said to have been 12 deliberately indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989). For 13 example, if police activities in arresting fleeing felons “so often violate constitutional rights that 14 the need for further training must have been plainly obvious to the city policymakers,” then the 15 city’s failure to train may constitute “deliberate indifference.” Id. at 390 n.10. “Only where a 16 failure to train reflects a ‘deliberate’ or ‘conscious' choice by a municipality—a ‘policy’ as 17 defined by our prior cases—can a city be liable for such a failure under § 1983.” Id. at 389. And 18 only under such circumstances does the failure to train constitute “a policy for which the city is 19 responsible, and for which the city may be held liable if it actually causes injury.” Id. at 390. 20 The Ninth Circuit’s opinion in Starr, 652 F.2d at 1216, provides an example of a 21 complaint sufficiently alleging deliberate indifference. There, the plaintiff “specifically allege[d] 22 numerous incidents in which inmates in Los Angeles County jails [had] been killed or injured 23 because of the culpable actions of the subordinates of Sheriff Baca.” Id. The complaint also 24 alleged the sheriff there “was given notice of all of these incidents,” including “in several reports, 25 of systematic problems in the county jails under his supervision that [had] resulted in these deaths 26 and injuries.” Id. Additionally, the complaint alleged “Sheriff Baca did not take action to protect 27 inmates under his care despite the dangers, created by the actions of his subordinates, of which he 28 had been made aware.” Id. 1 Here, plaintiff articulates elements of a failure to adequately hire, train or 2 supervise claim, but does not provide the substantive allegations of prior conduct required to 3 survive dismissal. The City did not, according to plaintiff, meet its obligation to ensure police 4 officers understood “the proper execution of their duties and adherence to limitations on their 5 authority as police officers imposed by the Constitution of the United States.” FAC ¶¶ 37–38. In 6 support of this notion, plaintiff pleads what he describes as five “acts or failures to act” on behalf 7 of the City: (1) failure to “screen and where, indicated, to exclude” police officer candidates not 8 suitable for the job due to “their maturity, IQ, temperament, education, past conduct and personal 9 traits”; (2) failure to train police officers for “civil standby” requests like the one here; (3) failure 10 to train and supervise police officers with regard to the limits of their power to enter private 11 dwellings; (4) failure to train and supervise police officers with regard to their “lawful authority” 12 to detain and arrest people; (5) failure to train and supervise police officers with regard to the use 13 of firearms and handcuffs. Id. ¶ 39. Plaintiff alleges the City ratified these “acts or failures to 14 act” by not disciplining or properly training any officers involved. Id. ¶ 41. 15 Although plaintiff describes the alleged flaws with defendants’ hiring and training 16 of police officers at a very generalized level, plaintiff here as well does not identify similar prior 17 conduct as necessary to show a “pattern of similar constitutional violations by untrained 18 employees.” Flores v. Cty. of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014) (quoting 19 Connick, 563 U.S. at 58 (additional citations omitted)). To plead such a pattern, a plaintiff must 20 allege more than “isolated incidents of criminal wrongdoing.” Id. Here, plaintiff relies on his 21 own written complaint against the City based on the one incident, but he does not point the court 22 to any other prior incidents following which defendants neglected to respond to the resulting 23 complaints. Without such allegations, plaintiff has failed to state a plausible claim of defendants’ 24 failure to hire, train or supervise under Section 1983. Cf. Coe v. Schaeffer, No. 2:13-CV-00432- 25 KJM-CK, 2014 WL 1513305, at *4 (E.D. Cal. Apr. 11, 2014) (denying motion to dismiss second 26 amended complaint where plaintiffs alleged in part “defendants knew or should have known of 27 complaints against [defendant officer] for similar conduct as in this case ‘because other citizens 28 had made verbal and written complaints against [defendant officer]’ . . . and defendants told 1 [defendant officer] Schaeffer that despite the complaints, only ‘a perfunctory investigation would 2 be performed,’ Schaeffer ‘would be exonerated,’ and she would not be punished” in contrast to 3 the previously dismissed complaint’s “single allegation of a ‘history of misconduct’”). 4 The court GRANTS defendants’ motion to dismiss plaintiff’s municipal liability 5 claim against the City for failure to train or supervise, with leave to amend if possible. 6 C. Supervisory Liability (Second Claim): Sergeant Cabral 7 Defendants argue the court should dismiss plaintiff’s supervisory claims against 8 Sergeant Cabral because the “complaint makes a bare bones conclusory statements [sic] about 9 that subject incident.” MTD at 8; Reply at 4. Defendants assert these claims “fail[] to state facts 10 that allege that Sergeant Cabral’s actions or inactions, rose to the level of ‘deliberate indifference’ 11 or that Sergeant Cabral, through his own individual actions violated the constitution, acquiesced 12 in the alleged constitutional violation.” MTD at 8. Plaintiff disagrees, asserting he pled 13 “sufficient claims against the supervisory officer, defendant Cabral, who had actual knowledge 14 gained while present at the scene and whose response was so inadequate as to show the deliberate 15 indifference to or tacit approval of the wrongful conduct.” Opp’n at 7. 16 It is well established that “[a] supervisory official is liable under § 1983 so long as 17 ‘there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a 18 sufficient causal connection between the supervisor’s wrongful conduct and the constitutional 19 violation.’” Rodriguez, 891 F.3d at 798 (citing Keates v. Koile, 883 F.3d 1228, 1242–43 (9th Cir. 20 2018)). The causal connection is established “by setting in motion a series of acts by others or by 21 knowingly refus[ing] to terminate a series of acts by others, which [the supervisor] knew or 22 reasonably should have known would cause others to inflict a constitutional injury.” Id. 23 (alteration in original) (quoting Starr, 652 F.3d at 1207–08). Therefore, “[a] supervisor can be 24 liable in his individual capacity for his own culpable action or inaction in the training, 25 supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation; 26 or for conduct that showed a reckless or callous indifference to the rights of others.” Starr, 652 27 F.3d at 1208. 28 ///// 1 Here, plaintiff adequately pleads the supervisory claims against Sergeant Cabral by 2 including factual allegations of Sergeant Cabral’s knowledge of and refusal to interject himself in 3 the actions of his subordinate officers in a way that caused the infringement of plaintiff’s 4 constitutional rights. Plaintiff alleges Sergeant Cabral was present during the events as a field 5 supervisor; on that day, Sergeant Cabral allegedly violated plaintiff’s constitutional rights because 6 he did not: (1) “sufficiently manage and supervise” the police officers; and (2) “give direction or 7 to otherwise intervene or control these defendant officers under the circumstances alleged 8 herein.” FAC ¶ 41. These factual allegations, combined with plaintiff’s previous allegations 9 describing the police officers’ alleged actions, id. ¶¶ 18–26, amount to more than “bare bones 10 conclusory statements.” MTD at 6. Instead, they state a plausible claim of relief. If taken as true 11 as required, plaintiff’s factual allegations show Sergeant Cabral knew of unconstitutional conduct 12 by his subordinates and did not terminate these actions, satisfying each of the elements of a 13 successful supervisory liability claim. In so finding, the court observes defendants do not appear 14 to recognize plaintiff need only allege facts showing Sergeant Cabral “knowingly refus[ed] to 15 terminate a series of acts by others.” 16 The court DENIES defendants’ motion to dismiss plaintiff’s claim against 17 Sergeant Cabral. 18 D. Section 1983 (First and Second Claims): Individual Police Officers 19 Defendants also argue plaintiff has not satisfactorily pled any cause of action 20 under Section 1983 against the individual police officers. MTD at 9; Reply at 4–5. Instead, 21 defendant maintains, plaintiff just “generally claims” the police officers violated his rights, but 22 “does not allege with sufficient facts what actions on behalf of what officer violated what 23 constitutional right.” MTD at 9. In his opposition, plaintiff does not address defendants’ position 24 that the court should dismiss his claims against the individual police officers. See Opp’n 6–8. At 25 hearing, plaintiff also did not contest defendants’ request for dismissal of the individual police 26 officers. It is not for the court to litigate plaintiff’s case, and so the court will dismiss the claims 27 against the individual line police officers, Nick Carlquist, Derek Simon, Joseph Acker and 28 ///// 1 Matthew Morrison, without leave to amend given that plaintiff provides no reason for the court to 2 conclude amendment is possible. 3 IV. CONCLUSION 4 For the foregoing reasons, the court orders as follows: 5 1. Defendants’ Motion to Dismiss all claims against the South Lake Tahoe 6 Police Department is GRANTED, without leave to amend. The South 7 Lake Tahoe Police Department is hereby DISMISSED; 8 2. Defendants’ Motion to Dismiss plaintiff’s municipal liability claim for an 9 unconstitutional custom or policy against the City is GRANTED, with 10 leave to amend; 11 3. Defendants’ Motion to Dismiss plaintiff’s municipal liability claim based 12 on a ratification theory of liability against the City is GRANTED, with 13 leave to amend; 14 4. Defendants’ Motion to Dismiss plaintiff’s municipal liability claim for 15 failure to adequately hire, train or supervise personnel, as against the City 16 is GRANTED, with leave to amend; 17 5. Defendants’ Motion to Dismiss plaintiff’s supervisory liability claim 18 against Sergeant Cabral is DENIED, and this claim may be included in any 19 amended complaint; and 20 6. Defendants’ Motion to Dismiss plaintiff’s claims against the individual 21 officers named in the complaint is GRANTED, without leave to amend. 22 Defendants Nick Carlquist, Derek Simon, Joseph Acker and Matthew 23 Morrison are hereby DISMISSED from this action. 24 Any second amended complaint shall be filed within twenty-one (21) days of the 25 date this order is filed. This order resolves ECF No. 16. 26 IT IS SO ORDERED. 27 DATED: October 7, 2020. 28