Cleo Barry v. City of San Diego, et al.

• Court: District Court, S.D. California
• Decided: March 25, 2026
• Docket: 3:25-cv-02465
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CLEO BARRY, Case No.: 25-CV-2465 TWR (MMP)

12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 14 CITY OF SAN DIEGO, et al.,

15 Defendants. (ECF No. 8) 16 17 Presently before the Court is Defendants Nicolas Medina and the City of San 18 Diego’s Motion to Dismiss (“Mot.,” ECF No. 8), Plaintiff Cleo Barry’s Response in 19 Opposition to (“Opp’n,” ECF No. 12), and Defendants’ Reply in Support of (“Reply,” ECF 20 No. 13) the Motion. The Court heard oral arguments on March 12, 2026. (See ECF No. 21 14.) Having carefully considered Plaintiff’s First Amended Complaint (“FAC,” ECF No. 22 4.), the Parties’ arguments, and the relevant law, the Court GRANTS IN PART and 23 DENIES IN PART Defendants’ Motion. 24 BACKGROUND 25 I. The Parties 26 Plaintiff Cleo Barry is a competent adult and a resident of the City of San Diego. 27 (FAC ¶ 1.) Defendant City of San Diego is a California municipal public entity, which 28 manages and operates the City of San Diego Police Department (“SDPD”) and its officers. 1 (Id. ¶ 2.) Defendant Nicolas Medina (“Officer Medina”) was employed as an SDPD law 2 enforcement officer at the time of the alleged violations. (Id. ¶ 3.) DOE Defendants 1-20 3 are individuals employed as law enforcement officers by the City of San Diego and/or the 4 SDPD at the time of the alleged violations. (Id. ¶ 4.) 5 II. Factual Background1 6 On or around August 14, 2024, Officer Medina issued Plaintiff a citation for 7 unlawfully residing in a homeless encampment in the City of San Diego. (FAC 8 ¶ 10.) The next day, Officer Medina approached Plaintiff while he was “peacefully 9 situated” on the 1400 block of B Street near San Diego City College. (Id. ¶ 11.) Plaintiff 10 told Officer Medina not to touch him. (Id. ¶ 12). “Plaintiff words (only) were defensive 11 because, approximately one year earlier during a prior arrest for suspected unlawful 12 camping, Officer Medina violently attacked Plaintiff during which time he broke Plaintiff’s 13 shoulder.” (Id.) In response, Officer Medina said to Plaintiff, “I’m not done with you.” 14 (Id. ¶ 13.) Plaintiff was with his friend, Mary Stephens, at the time when Officer Medina 15 approached. (See id. ¶ 14.) DOE Defendant 1 placed Ms. Stephens under arrest and 16 secured her in the back of an SDPD patrol vehicle, “for the purpose of removing a witness 17 from the scene.” (Id.) 18 Officer Medina then placed Plaintiff in handcuffs, which Plaintiff did not resist. (Id. 19 ¶ 15.) When Plaintiff asked Officer Medina why he was being arrested, neither Officer 20 Medina nor DOE Defendants 2 and 3—who were standing “very close by”—responded. 21 (Id. ¶ 16.) “DOE Defendant 2 [then] asked Officer Medina if his body-worn camera was 22 recording, to which Officer Medina indicated it was not.” (Id. ¶ 17.) Officer Medina “then 23 choked Plaintiff with his left hand and, with a closed right fist, punched Plaintiff (still 24 handcuffed) in the face approximately three to four times.” (Id. ¶ 18.) Plaintiff’s nose was 25 broken as a result. (See id.) Next, Officer Medina “violently slammed Plaintiff down to 26

27 1 For purposes of Defendants’ Motion, the facts alleged in the FAC are accepted as true. See 28 1 the pavement, fracturing his right shoulder” and “drove his knee into Plaintiff’s upper 2 back—near his neck—and punched Plaintiff three to four more times in the back of the 3 head, while Plaintiff remained handcuffed.” (Id. ¶¶ 19–20.) San Diego Fire Department 4 (“SDFD”) paramedics responded to the scene. (Id. ¶ 25.) Officer Medina insisted Plaintiff 5 be transported directly to jail, but SDFD instead transported Plaintiff to a hospital. (See 6 id.) “During his emergency room visit following the incident, Plaintiff’s injuries were 7 confirmed to be consistent with blunt force trauma.” (Id. ¶ 24.) No criminal charges were 8 filed against Plaintiff following the incident and “[t]he only citation issued was for the prior 9 day’s supposed unlawful homeless encampment.” (Id. ¶ 29.) 10 III. Procedural Background 11 Plaintiff’s FAC alleges the following causes of action: (1) Excessive Force – Fourth 12 Amendment (42 U.S.C. § 1983), against Officer Medina and DOE Defendants 1-20; (2) 13 Failure to Intervene (42 U.S.C. § 1983), against DOE Defendants 1-20; 14 (3) Conspiracy to Violate Civil Rights (42 U.S.C. § 1983), against Officer Medina and 15 DOE Defendants 1-20; (4) Battery (Cal. Gov. Code § 820), against Officer Medina, the 16 City of San Diego, and DOE Defendants 1-20; (5) Violation of the Tom Bane Civil Rights 17 Act (Cal. Civ. Code § 52.1), against Officer Medina, the City of San Diego, and DOE 18 Defendants 1-20; and (6) Negligence (Cal. Gov. Code § 820), against Officer Medina, the 19 City of San Diego, and DOE Defendants 1-20. (See generally FAC.) On December 19, 20 2025, Officer Medina and the City of San Diego (collectively, the “Defendants”) filed a 21 Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Mot.) 22 Specifically, Defendants seek dismissal of Plaintiff’s first, second, third, and sixth causes 23 of action. (See generally id.) 24 LEGAL STANDARD 25 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 26 state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” 27 Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro 28 v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). “A district court’s dismissal for failure to 1 state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a ‘lack of 2 a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 3 theory.’” Id. at 1242 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 4 Cir. 1988)). 5 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 6 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 7 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial 8 plausibility when the plaintiff pleads factual content that allows the court to draw the 9 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing 10 Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to 11 infer more than the mere possibility of misconduct, the complaint has alleged—but it has 12 not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (second alteration in 13 original) (quoting Fed. R. Civ. P. 8(a)(2)). If the court dismisses a complaint for failure to 14 state a claim under Rule 12(b)(6), the “court should grant leave to amend even if no request 15 to amend the pleading was made, unless it determines that the pleading could not possibly 16 be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 17 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)) (internal quotations 18 omitted). 19 DISCUSSION 20 As a threshold matter, Defendants contend that “[i]f this Court finds Plaintiff has 21 only pleaded individual capacity claims in the first three counts of Plaintiff’s FAC, 22 Defendants withdraw their argument related to Plaintiff’s failure to plead Monell liability 23 against the City.” (Reply at 3.) But none of the first three causes of action name the City 24 of San Diego. (See generally FAC.) Consequently, the Court understood that Plaintiff 25 brought these causes of action against Officer Medina and/or DOE Defendants 1-20 in their 26 individual capacities only. At the hearing, Plaintiff confirmed the Court’s understanding 27 is correct. (See ECF No. 14.) Accordingly, with respect to the first, second, and third 28 1 causes of action, the Court considers only whether Plaintiff sufficiently pleaded his claims 2 against Officer Medina and/or DOE Defendants 1-20 in their individual capacities. 3 I. Plaintiff’s First Cause of Action: Excessive Force in Violation of the Fourth Amendment (42 U.S.C. § 1983) 4 5 A. Officer Medina 6 Defendants argue Plaintiff fails to plead an excessive force claim against Officer 7 Medina in his individual capacity. (Mot. at 4.) The requirements for relief under Section 8 1983 are: (1) a violation of rights protected by the Constitution or federal statute, (2) 9 proximately caused, (2) by conduct of a person, (3) acting under color of state law. 10 Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Moreover, “[a] Fourth 11 Amendment excessive force § 1983 claim is cognizable where [police] officers employed 12 an objectively unreasonable amount of force under the totality of the circumstances.” Hills 13 v. City of Chula Vista, No. 23-CV-1067-DMS-DDL, 2024 WL 4896588, at *5 (S.D. Cal. 14 Nov. 26, 2024) (quoting Graham v. Connor¸490 U.S. 386, 396 (1989)) (internal quotations 15 omitted). In determining whether an officer’s use of force was excessive, courts consider 16 “(1) the type and amount of force inflicted, (2) the severity of the crime at issue, (3) whether 17 the suspect posed an immediate threat to the safety of the officers or others, and (4) whether 18 the suspect was actively resisting arrest or attempting to evade arrest by flight.” O’Doan 19 v. Sanford, 991 F.3d at 1027, 1037 (9th Cir. 2021). 20 Officer Medina, while acting under color of state law and within the course and 21 scope of his employment with the SDPD, “choked Plaintiff with his left hand and, with a 22 closed right fist, punched Plaintiff (still handcuffed) in the face approximately three to four 23 times.” (FAC ¶ 18.) Officer Medina also “violently slammed Plaintiff down to the 24 pavement, fracturing his right shoulder” and “drove his knee into Plaintiff’s upper back— 25 near his neck—and punched Plaintiff three to four more times in the back of the head, while 26 Plaintiff remained handcuffed.” (Id. ¶¶ 19–20.) As pleaded, Officer Medina’s conduct is 27 consistent with what the Ninth Circuit considers a significant use of force. See Davis v. 28 City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007) (finding an officer throwing a 1 suspect to the floor, placing his knee on the suspect’s back, and punching him in the face 2 constitutes “extremely severe” force). Moreover, unlawfully residing in a homeless 3 encampment is not a severe crime. See SAN DIEGO, CAL., MUN. CODE § 63.0401 et seq. 4 (2023). Considering Plaintiff did not pose an immediate threat to the safety of Officer 5 Medina or others, and did not resist arrest, the Court FINDS Plaintiff’s allegations, as 6 pleaded, are sufficient to state an excessive force Section 1983 claim against Officer 7 Medina in his individual capacity. Accordingly, the Court DENIES Defendants’ Motion 8 to the extent it seeks dismissal of Plaintiff’s first cause of action against Officer Medina. 9 B. DOE Defendants 1-20 10 Regarding Plaintiff’s excessive force Section 1983 claim against DOE Defendants 11 1-20, the Court GRANTS Defendants’ Motion because the entirety of Plaintiff’s pleadings 12 under the first cause of action refer exclusively to Officer Medina’s conduct. (See FAC 13 ¶¶ 30–39.) Accordingly, the Court DISMISSES WITHOUT PREJUDICE the first cause 14 of action as to DOE Defendants 1-20 in their individual capacities. 15 II. Plaintiff’s Second Cause of Action: Failure to Intervene (42 U.S.C. § 1983) 16 Police officers have a duty to intervene if fellow officers violate the constitutional 17 rights of a citizen in their presence and can be held liable for failing to intervene if they 18 had an opportunity to do so. Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000.) 19 However, “bystander officers only have a duty to stop a violation when they know or have 20 reason to know of the constitutional violation.” Monteilh v. Cnty. of Los Angeles, 820 F. 21 Supp. 2d 1081, 1092 (C.D. Cal. 2011) (collecting cases). 22 Plaintiff pleads that DOE Defendants 1, 2, and 3 had a duty to intervene to stop 23 Officer Medina’s use of excessive force against him as well as a reasonable opportunity to 24 intervene, but failed to do so. (FAC ¶¶ 41–43.) Plaintiff also pleads that DOE Defendants 25 1-20 were employed as law enforcement officers by the City of San Diego and/or the SDPD 26 and standing near Officer Medina and Plaintiff at the time of the alleged violation. (See 27 FAC ¶¶ 4, 42.) Considering Officer Medina’s conduct, as pleaded, constitutes “excessive 28 force,” (see supra Discussion Section I.A.), the Court FINDS Plaintiff’s allegations 1 sufficient to plausibly allege DOE Defendants 1, 2, and 3 knew or had reason to know 2 Officer Medina’s conduct violated Plaintiff’s constitutional rights. Accordingly, to the 3 extent Defendants’ Motion seeks to dismiss Plaintiff’s second cause of action, the Court 4 DENIES the Motion. 5 III. Plaintiff’s Third Cause of Action: Conspiracy to Violate Civil Rights (42 U.S.C. § 1983) 6 7 Defendants argue Plaintiff fails to state a cognizable conspiracy claim because 8 “Plaintiff’s allegations do not explain why the decision to disable body-worn cameras is a 9 constitutional deprivation or how not recording interactions violated his constitutional 10 rights.” (Mot. at 6 (citations and internal quotations omitted).) In response, Plaintiff argues 11 he does not allege that disabling body-worn cameras alone constitutes a violation of his 12 constitution rights. (Opp’n at 4.) “Rather, Plaintiff alleges that Officer Medina and other 13 officers agreed to disable or obstruct body-worn cameras as an overt act in furtherance of 14 a conspiracy to use excessive force against a handcuffed, compliant arrestee without 15 accountability.” (Id.) For the reasons stated below, the Court agrees with Plaintiff. 16 To state a conspiracy claim under Section 1983, a plaintiff must plead facts with 17 sufficient particularity to show (1) an agreement between the defendants to deprive the 18 plaintiff of a constitutional right, (2) an overt act in furtherance of the conspiracy, and (3) 19 a constitutional violation. Davis v. Powell, 901 F. Supp. 2d 1196, 1217 (S.D. Cal. 2012) 20 (collecting cases). “The agreement need not be overt and can be inferred from the actions 21 of the Defendants.” Davis, 901 F. Supp. 2d at 1217 (citing Crowe v. Cnty. of San Diego, 22 608 F.3d 406, 440 (9th Cir. 2010)). However, “[v]ague and conclusory allegations of 23 official participation in civil rights violations are not sufficient to withstand a motion to 24 dismiss.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 25 Plaintiff pleads that Officer Medina and DOE Defendants 1, 2, and 3 knowingly 26 entered into an agreement to deprive Plaintiff of his Fourth Amendment right to be free 27 from unreasonable force. (FAC ¶ 46.) Plaintiff specifically alleges Officer Medina and 28 DOE Defendants 1, 2, and 3 coordinated to disable or obstruct recording devices, isolate 1 Plaintiff from witnesses, and permit Officer Medina’s “planned assault” to occur without 2 accountability. (Id.) “Their concerted acts—verbal confirmation that cameras were off, 3 physical repositioning to obstruct the scene, and deliberate non-intervention—constituted 4 overt acts in furtherance of that unlawful conspiracy.” (Id.) 5 As pleaded, the Court FINDS Plaintiff’s third cause of action sufficiently states a 6 conspiracy claim under Section 1983 because Plaintiff “allege[s] facts with sufficient 7 particularity to show an agreement or a meeting of the minds to violate [his] constitutional 8 rights.” Davis, 901 F. Supp. 2d at 1216 (collecting cases). Accordingly, the Court 9 DENIES Defendant’s Motion to the extent it seeks to dismiss Plaintiff’s third cause of 10 action. 11 IV. Plaintiff’s Sixth Cause of Action: Negligence (Cal. Gov. Code § 820) 12 A. Section 820 Liability for Officer Medina and DOE Defendants 1-20 13 “Except as otherwise provided by law, public employees in California are statutorily 14 liable to the same extent as private persons for injuries caused by their acts or omissions 15 . . . .” Hayes v. Cnty. of San Diego, 57 Cal. 4th 622, 628–29 (2013) (citing Cal. Gov. Code 16 § 820). Accordingly, to the extent Plaintiff seeks to assert a common law negligence claim 17 against Officer Medina and DOE Defendants 1-20 in their individual capacities, the Court 18 FINDS that California Government Code § 820 permits him to do so. See id. at 629 19 (finding, pursuant to Section 820, general principles of tort law govern when a plaintiff 20 brings claim for negligence against a state police officer). 21 The relevant question is thus whether Plaintiff sufficiently pleads a claim of common 22 law negligence against Officer Medina and/or DOE Defendants 1-20. Under California 23 law, “in order to prove facts sufficient to support a finding of negligence, a plaintiff must 24 show that [the] defendant had a duty to use due care, that he breached that duty, and that 25 the breach was the proximate or legal cause of the resulting injury.” Nally v. Grace Cmty. 26 Church, 47 Cal. 3d 278, 292 (1988). 27 / / / 28 / / / 1 1. Officer Medina 2 Plaintiff pleads Officer Medina owed him “a duty to exercise reasonable care in the 3 planning and execution of all law-enforcement actions” including to use only necessary 4 force, to deescalate when safe to do so, to avoid tactics that would foreseeably cause 5 unnecessary injury to a handcuffed, non-resisting individual, and to promptly summon and 6 allow medical care for visibly injured persons in their custody. (FAC ¶ 67.) California 7 law provides that all state law enforcement agencies must maintain a policy that provides 8 a minimum standard on the use of force and implements the following requirements: 9 officers may only use a level of force that they reasonably believe is proportional to the 10 seriousness of the suspected offense or the reasonably perceived level of actual or 11 threatened resistance; officers shall utilize de-escalation techniques and other alternatives 12 to force when feasible; and officers shall promptly procure medical assistance for persons 13 injured in a use of force incident, when reasonable and safe to do so. See Cal. Gov. Code 14 §§ 7286(b)(1), (2), and (15). Accordingly, the Court FINDS Plaintiff adequately pleads 15 Officer Medina owed him a duty of reasonable care during their encounter on August 15, 16 2024. 17 Plaintiff then pleads Officer Medina breached these duties by, inter alia, initiating a 18 physical confrontation without cause, failing to deescalate or await backup, striking 19 Plaintiff while he was handcuffed and compliant, and attempting to block medical 20 personnel from treating him despite visible bleeding. (FAC ¶ 68.) These facts, as pleaded, 21 constitute a breach of Officer Medina’s duty of reasonable care he owed Plaintiff during 22 their encounter on August 15, 2024. Next, Plaintiff pleads Officer Medina’s conduct (i.e., 23 his use of excessive force against Plaintiff) was a direct and proximate cause of his physical 24 pain and bodily injuries, “including soft tissue injuries and ligament damage to his right 25 knee, in addition to emotional distress.” (FAC ¶ 70.) These facts, as pleaded, constitute 26 the proximate or legal cause of Plaintiff’s resulting injury. Accordingly, accepting 27 Plaintiff’s allegations as true, the Court FINDS Plaintiff sufficiently pleads a claim of 28 negligence against Officer Medina under California law. 1 The remaining question is whether Officer Medina’s negligent conduct is subject to 2 any state law immunities. Importantly, “California denies immunity to police officers who 3 use excessive force in arresting a suspect.” Robinson v. Solano Cnty., 278 F.3d 1007, 1016 4 (9th Cir. 2002) (collecting cases). Because Plaintiff’s negligence claim arises from Officer 5 Medina’s use of excessive force against him, the Court FINDS Officer Medina is not 6 immune from this suit under California law. Accordingly, to the extent Defendant’s 7 Motion seeks to dismiss Plaintiff’s sixth cause of action against Officer Medina, the Court 8 DENIES the Motion. 9 2. DOE Defendants 1-20 10 Regarding DOE Defendants 1-20, Plaintiff pleads facts regarding their duties to 11 exercise reasonable care and their breach of those duties only. (See FAC ¶¶ 67–68.) 12 Problematically, Plaintiff pleads no facts consistent with the remaining elements of 13 negligence (i.e., causation and injury). (See generally id.) Accordingly, the Court FINDS 14 Plaintiff’s common law negligence claim against DOE Defendants 1-20 is insufficiently 15 plead as a matter of law. The Court therefore DISMISSES WITHOUT PREJUDICE 16 Plaintiff’s sixth cause of action against DOE Defendants 1-20. 17 B. City of San Diego 18 With respect to the City of San Diego, Plaintiff pleads “Officer Medina’s negligence 19 was committed within the scope of his employment” and thus “the City is vicariously liable 20 for state law torts committed by Officer Medina, including his negligence, pursuant to 21 California Governmental Code section 815.2(a).” (FAC ¶ 71.) Defendants argue that 22 Plaintiff’s negligence claim against the City of San Diego fails as a matter of law because 23 there is no statute that provides for liability against the City for general negligence. (Mot. 24 at 7 (citing Cal. Gov. Code §§ 810–998.3).) For the reasons below, Plaintiff is correct. 25 Pursuant to California Government Code § 815.2(a), a public entity is liable for an 26 injury caused by an act or omission of an employee within the scope of his employment if 27 the act or omission would have given rise to a cause of action against that employee. See 28 Hayes, 57 Cal. 4th at 629 (“[P]ublic entities are generally liable for injuries caused by the | ||negligence of their employees acting in the scope of their employment.”) A public entity 2 not liable for an injury resulting from an act or omission of an employee of the public 3 entity, however, if the employee himself is immune from liability. See Cal. Gov. Code 4 815.2(b); see also White v. Cnty. of Orange, 166 Cal.App.3d 566, 570 (1985) (“[I]n 5 || governmental tort cases, the rule is liability, immunity is the exception’) (citations and 6 || internal quotations omitted). 7 Considering Officer Medina acted within the scope of his employment, (see FAC 8 71), and the Court’s finding that Officer Medina is not immune from liability regarding 9 negligent conduct, (see supra Discussion Section [V.A.1), the Court FINDS the City 10 |}of San Diego is not immune from negligence liability either. Accordingly, to the extent 11 || Defendants’ Motion seeks dismissal of Plaintiff's sixth cause of action against the City of 12 Diego, the Motion is DENIED. 13 CONCLUSION 14 In light of the foregoing, the Court GRANTS IN PART and DENIES IN PART 15 ||Defendant’s Motion to Dismiss. In particular, the Court DISMISSES WITHOUT 16 || PREJUDICE the first and sixth causes of action as they pertain to DOE Defendants 1-20. 17 || Plaintiff SHALL FILE a Second Amended Complaint within twenty-one (21) days of the 18 || electronic docketing of this Order. 19 IT IS SO ORDERED. 20 || Dated: March 24, 2026 —— 21 [| aD (2 (re Honorable Todd W. Robinson United States District Judge 23 24 25 26 27 28