Jackson v. City of Modesto

Opinion

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2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4

5 ESTATE OF KIM JACKSON, et al., CASE NO. 1:21-CV-0415 AWI EPG 6 Plaintiffs ORDER ON DEFENDANTS’ MOTIONS 7 v. TO DISMISS 8 CITY OF MODESTO, et al., (Doc. Nos. 9, 16) 9 Defendants 10

12 This case stems from a fatal encounter between decedent Kim Jackson (“Jackson”) and 13 members of the Modesto Police Department (“MPD”). Plaintiffs, who are Jackson’s Estate (“the

14 Estate”) and family, bring claims under 42 U.S.C. § 1983 (for violations of the First, Fourth and

15 Fourteenth Amendments based on excessive force, interference with familial relationships, and

16 Monell liability), 29 U.S.C § 779 (the Rehabilitation Act (“RA”)), 42 U.S.C. § 12101 et seq. (Title

17 II of the Americans with Disabilities Act (“the ADA”)), as well as state law claims for violations

18 of the California Constitution, Cal. Civ. Code § 52.1 (the Bane Act), assault/battery, negligence,

19 and Cal. Code Civ. P. § 377.60 (wrongful death). Currently before the Court are two Rule

20 12(b)(6) motions to dismiss filed by Defendants, one by Officer Joseph Lamantia (“Lamantia”)

21 and one by the City of Modesto (“the City”), the MPD,1 Police Chief Galen Carroll (“Chief

22 Carroll”), Officer Alex Bettis (“Bettis”), and Officer Michael Callahan (“Callahan”).2 For the

23 reasons that follow, the motions will be granted in part and denied in part.

24 1 The MPD is an agency or subunit of the City. Generally when a municipality is already named as a defendant, also 25 naming an agency or subunit of that municipality is redundant. See Santor v. Howell, 2020 U.S. Dist. LEXIS 154306, *34 (E.D. Cal. Aug. 24, 2020); Abeytia v. Fresno Police Dept., 2009 U.S. Dist. LEXIS 49500, *24-*25 (E.D. Cal. 26 June 12, 2009). For purposes of this motion, the Court will view the MPD as an arm of the City.

2 Lamantia is represented by his own counsel. However, the arguments ma de by Lamantia in support of his motion 27 are substantially similar to the arguments made by the other Defendants. Unless the Court notes otherwise, a 28 reference to “Defendants’ arguments” means an argument that is substantially raised by all Defendants in t heir two respective motions. Case 1:21-cv-00415-AWI-EPG Document 25 Filed 10/15/21 Page 2 of 41

1 RULE 12(b)(6) FRAMEWORK 2 Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the 3 plaintiff’s “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In

4 reviewing a complaint under Rule 12(b)(6), all well-pleaded allegations of material fact are taken

5 as true and construed in the light most favorable to the non-moving party. Kwan v. SanMedica,

6 Int’l, 854 F.3d 1088, 1096 (9th Cir. 2017). However, complaints that offer no more than “labels

7 and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”

8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Johnson v. Federal Home Loan Mortg. Corp., 793

9 F.3d 1005, 1008 (9th Cir. 2015). The Court is “not required to accept as true allegations that

10 contradict exhibits attached to the Complaint or matters properly subject to judicial notice, or

11 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable

12 inferences.” Seven Arts Filmed Entm’t, Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254

13 (9th Cir. 2013). To avoid a Rule 12(b)(6) dismissal, “a complaint must contain sufficient factual

14 matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at

15 678; Mollett, 795 F.3d at 1065. “A claim has facial plausibility when the plaintiff pleads factual

16 content that allows the court to draw the reasonable inference that the defendant is liable for the

17 misconduct alleged.” Iqbal, 556 U.S. at 678; Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir.

18 2013). “Plausibility” means “more than a sheer possibility,” but less than a probability, and facts

19 that are “merely consistent” with liability fall short of “plausibility.” Iqbal, 556 U.S. at 678;

20 Somers, 729 F.3d at 960. If a motion to dismiss is granted, “[the] district court should grant leave

21 to amend even if no request to amend the pleading was made . . . .” Ebner v. Fresh, Inc., 838 F.3d

22 958, 962 (9th Cir. 2016). However, leave to amend need not be granted if amendment would be

23 futile or the plaintiff has failed to cure deficiencies despite repeated opportunities. Garmon, 828

24 F.3d at 842.

26 FACTUAL BACKGROUND 27 From the Complaint, in October 2016, Jackson was 52 years old and suffered from mental 28 health and substance abuse issues that substantially limited her ability to care for herself,

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1 concentrate, think, and communicate. She had an extensive record of law enforcement contacts

2 with the MPD under Cal. Wel. & Inst. Code § 5150.

3 On October 8, 2016, at 1:48 a.m. Glenn Jackson (“Glenn”), Jackson’s father, called 911 4 from his home to report that Jackson was intoxicated and vandalizing his residence, but that no

5 weapons were involved.

6 At 2:04 a.m., Defendant Callahan and another police officer arrived and spoke with Glenn. 7 Jackson was no longer present, but Glenn explained that Jackson had been drinking and had

8 threatened suicide. Glenn also explained that he did not want Jackson arrested, he just wanted her

9 to leave the residence. Callahan closed the case about thirty minutes later and left the residence.

10 At 3:04 a.m., Glenn called 911 and reported that Jackson had returned to his home and was 11 armed with a knife.

12 At 3:09 a.m., Callahan and Defendants Bettis and Lamantia arrived at Glenn’s home. 13 Bettis observed Jackson in the driveway and that she appeared to be agitated and screaming. The

14 officers discussed that they had been to the residence on prior occasions relating to Jackson, and

15 Callahan explained that he intended to take Jackson into custody through a Cal. Wel. & Inst. Code

16 § 5150 (“§ 5150”) mental health hold. However, the officers did not develop a “game plan” about

17 how to approach or detain Jackson or reasonably accommodate Jackson’s “present disabilities.”

18 Callahan armed himself with a Taser, Lamantia armed himself with a pistol, and Bet tis armed

19 himself with a shotgun. Bettis’s shotgun had been loaded with a breaching round, a special type

20 of ammunition used to penetrate door locks but not meant to be used against people.

21 The officers walked toward the residence with their weapons unholstered and displayed. 22 This show of force by the officers exacerbated Jackson’s mental illness and exacerbated her fear

23 and anxiety that the officers intended to harm her. Jackson approached the officers in the street,

24 and she had multi-colored kitchen knives in her hands. The officers “triangulated” Jackson’s

25 position, which exacerbated Jackson’s mental illness and increased her fear and anxiety. Jackson

26 then walked toward Lamantia.

27 Lamantia and Callahan then discharged their weapons. Lamantia’s bullet struck Jackson in 28 the chest from a distance of 11 or 12 feet, while Callahan’s taser probe struck Jackson’s left wrist

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1 from a distance of 17 feet. Jackson then dropped all of the knives that she had in her hand.

2 Jackson turned away from the officers and began to stagger away. Jackson posed no threat to the

3 officers or to anyone else after she turned and began staggering away.

4 While Jackson was staggering away from the officers, Bettis discharged his shotgun twice 5 from a distance of 22 feet. One of the rounds may have been a less-lethal “bean bag” round, but

6 the other round discharged was a breaching round. The breaching round penetrated Jackson’s rib,

7 left kidney, left adrenal, aorta, intestines, and stomach before finally lodging into her liver.

8 Lamantia also fired a second bullet at Jackson as she was staggering away. The bullet 9 grazed Jackson’s right forearm from a distance of 17 feet. Bettis and Lamantia both discharged

10 their second rounds at the same time.

11 Jackson then collapsed on the ground. She was transported to a hospital where she was 12 pronounced dead.

13 That night, Bettis informed City police personnel that he had “fucked up” because he 14 believed that he had previously loaded his shotgun with less-lethal bean bag rounds prior to

15 shooting Jackson, but the shotgun was also loaded with a lethal breaching round. Bettis also

16 stated that he was “out of position” when the officers confronted Jackson.

17 The officers were all wearing bodycams which were activated prior to the shooting of 18 Jackson. The video from Lamantia’s bodycam demonstrates Jackson’s positioning during the

19 officer involved shooting.

20 On October 10, 2016, the officers were interviewed regarding the shooting of Jackson. 21 Also on October 10, 2016, the City issued a public “news release” that described the shooting of

22 Jackson as follows:

23 Officers arrived and as they were walking up to the home, Jackson confronted them in the street, armed with multiple knives. As officers were giving verbal 24 commands for her to drop the knives, she advanced rapidly at them with knives raised above her head. Officers utilized a taser, bean bags, and one officer used his 25 duty weapon. She was rushed to a local hospital where she succumbed to her injuries. 26 News reports from the Modesto Bee newspaper and the KCRA television station conveyed 27 substantially similar information. Both news outlets indicated that police were summoned by 28

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1 Jackson’s parents, police went to the house twice because Jackson was gone the first time, Jackson

2 was armed with knives, Jackson confronted the officers, the officers told Jackson to stop or drop

3 the knives, but Jackson advanced quickly or ran towards the officers, and the officers used a taser,

4 bean bags, and a firearm. See Doc. No. 16-2.3

5 In April 2017, the MPD convened a “shooting review board” for the purposes of 6 evaluating the shooting of Jackson. The board consisted of Chief Carroll, Assistant Police Chief

7 Armendariz, and three Captains. The board unanimously concluded that the shooting was justified

8 and within policy.

9 The City and Chief Carroll did not make the bodycam footage available to Jackson’s 10 family or the public. Jackson’s family relied on the City’s October 10 press release, as well as a

11 July 2018 press release from the Stanislaus County District Attorney, to conclude that the officer

12 involved shooting was justified and that there was no legal basis to pursue legal action regarding

13 Jackson’s death. Plaintiffs allege that they had no reason to know that the officer-involved

14 shooting was not justified or that improper tactics and ammunition were utilized. Upon

15 information and belief, the City, Carroll, Bettis, Callahan, and Lamantia actively and intentionally

16 concealed critical details of the officer-involved shooting which would have demonstrated that the

17 shooting was unreasonable. Specifically, the following information was never publicly revealed:

18 (1) Bettis shot Jackson in the back with a breaching round; (2) Bettis admitted that he had “fucked

19 up” when he shot Jackson in the back with a breaching round; (3) Bettis admitted that he was out

20 of position prior to shooting Jackson; and (4) the officers did not discuss a game plan for

21 approaching and detaining Jackson. It was not until November 2020 that Plaintiffs obtained

22 access to the Shooting Review Board report and learned for the first time the unreasonable nature

23 of the shooting and the improper customs and practices of the City that were at work.

24 On January 21, 2021, Plaintiffs submitted a government claim to the City regarding the 25 officer involved shooting of Jackson. By March 8, 2021, the claim was deemed rejected.

26 3 Lamantia requests that the Court take judicial notice of the two news stories. See Doc. No. 16-2. Plaintiffs object. 27 However, the Ninth Circuit has held that courts may take judicial notice of publications in order to demo nstrate what was in the public realm at a relevant time. Von Saher v. Norton Museum of Art at Pasadena , 592 F.3d 954, 960 (9th 28 Cir. 2010). The Court will overrule Plaintiffs’ objection and grant judicial notice of the news articles, but only for the limited purpose of demonstrating what information was in the public realm as of October 2016. See id.

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1 On January 25, 2021, Plaintiffs submitted a citizen complaint to the MPD regarding the 2 officer involved shooting of Jackson. The next day, the MPD responded by stating that the

3 “complaint has already been investigated under Internal Affairs case number FD16-006. This

4 investigation was found to be “Within Policy.” The “Within Policy” response was not one of the

5 five responses mandated by the MPD’s Citizen Complaint Policy. Further, Internal Affairs case

6 number FD16-006 did not investigate the allegations of misconduct by the three officers and

7 concluded only that the officers’ use of force was “justified and within policy.”

8 Plaintiffs allege that the MPD has two general unconstitutional policies. First, the MPD 9 failed to have policies that were consistent with POST Learning Domain 37, regarding People

10 with Disabilities. The MPD’s general use of force policy did not provide guidance or training

11 concerning how officers should handle mentally unstable individuals in connection with a use of

12 force. The MPD never implemented policies or training regarding detaining and arresting

13 individuals that have disabilities or are taking substances that impair their ability to understand

14 and respond to the police. Second, the MPD has a policy or custom of tolerating excessive force.

15 This policy is reflected in the conduct of the three officers in their use of force against Jackson, as

16 well as a description of 22 incidents spanning February 2009 to December 2020 in which MPD

17 officers allegedly engaged in excessive force.

19 DEFENDANTS’ MOTIONS 20 I. Federal Claims – First, Second, Third, Fourth, & Fifth Causes of Action 21 Defendants’ Arguments 22 Defendants argue that Plaintiffs’ claims are barred by the statute of limitations. The 23 Complaint shows that all claims accrued on October 8, 2016, which is the date that Plaintiffs knew

24 or should have known of Jackson’s injuries when she was shot by police officers outside of her

25 parents’ home. The applicable statute of limitations for the various claims range from one to three

26 years. However, the Complaint was not filed until March 2021. Therefore all claims are untimely

27 on the face of the Complaint. Defendants also argue that equitable tolling and equitable estoppel

28 do not apply. There are no allegations that Plaintiffs took any actions to determine Jackson’s

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1 cause of death. Further, there are no allegations that the officers’ identities were withheld or that

2 any officers of City personnel stonewalled or made improper or false statements to Plaintiffs.

3 Defendants also argue that the claims against Chief Carroll are not plausible. There are no 4 allegations that he personally participated in the shooting of Jackson or that he has a sufficient

5 causal connection to the shooting. The allegations that are made against him are conclusory and

6 boilerplate that do not cross the plausibility threshold.

7 Defendants also argue that Plaintiffs’ RA and ADA claims fail because Plaintiffs have 8 failed to properly allege that Jackson has a “disability” for purposes of those laws. The Complaint

9 merely uses the definitions and language of those acts in conclusory fashion. The allegations

10 make it equally plausible that Jackson had substance abuse problems that do not fit the definition

11 of a “disability.”

12 Finally, Lamantia argues that Plaintiffs do not plead with the particularity the elements 13 necessary to establish equitable estoppel. Lamantia argues that two news stories that appeared in

14 the Modesto Bee and on the KCRA news broadcast on October 10, 2016, and a July 9, 2018 press

15 release by the Stanislaus County District Attorney’s Office describe critical details that would put

16 a reasonable plaintiff on inquiry notice. For examples, the news stories indicate that Jackson was

17 armed with multiple knives, she confronted the three identified officers, she was told to drop the

18 knives and back up, she started running towards the officers with knives raised, and was killed

19 when the officers utilized a taser, bean bag rounds, and a firearm. Further, Lamantia argues that

20 there are no allegations of affirmative misconduct by any Defendant, particularly him, that would

21 support equitable tolling. The Complaint merely identifies the passive non-disclosure of

22 information, even though no duty to disclose the information is identified.

23 Plaintiffs’ Opposition 24 Plaintiffs argue that their claims are timely. Various law enforcement agencies released 25 public statements stating that the officer-involved shooting of Jackson was justified less than two

26 years after the incident. Specifically, the MPD released a press release that falsely represented

27 that Bettis used a bean bag round when he in fact used a lethal breaching round. The Complaint

28 alleges that Plaintiffs relied on these public statements to conclude that the shooting of Jackson

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1 was justified. The Complaint explains that it was not until November 2020 that they learned of

2 the details of the officer involved shooting after obtaining access to the findings of the Shooting

3 Review Board. It was then that Plaintiffs learned that Bettis shot Jackson in the back with a

4 breaching round, not a bean bag round; that Bettis admitted that “fucked up” by shooting Jackson

5 with breaching round; that Bettis admitted that was out of position prior to shooting; and the

6 officers had no game plan for approaching and detaining Jackson. Thus, while Plaintiffs state that

7 they knew Jackson was killed, they did not know or have reason to know of the cause of the injury

8 until they obtained materials identifying critical information that demonstrated that the shooting

9 was not justified.

10 Plaintiffs also argue that equitable tolling applies. Plaintiffs argue that equitable tolling 11 applies when the plaintiff is prevented from asserting a claim by wrongful conduct by a defendant

12 or when extraordinary circumstances beyond the Plaintiffs’ control make it impossible to file a

13 claim. In this case, the Complaint identifies the public statements of the MPD, alleges that

14 Plaintiffs lacked access to the bodycam footage, and that the Defendants actively and intentionally

15 concealed critical details of the shooting that would have demonstrated an unjustified use of force.

16 This is sufficient for equitable tolling.

17 Plaintiffs also argue that equitable estoppel applies. The Complaint alleges that 18 Defendants knew of the true facts through either their participation in the shooting or the bodycam

19 footage at the time the MPD issued its misleading press release on October 10, 2016. The

20 Complaint also alleges that Defendants actively withheld critical details of the shooting as well as

21 the bodycam footage. The Complaint alleges that the Plaintiffs were ignorant of the true facts

22 until November 2020, and had relied on the public statements of the Defendants to conclude that

23 there was no basis for a legal action. The Ninth Circuit has found claims timely in similar cases.

24 Although Defendants are critical of Plaintiffs conduct, they cite no authority that would require

25 Plaintiffs to disbelieve the public statements of the MPD. Given the public press releases, there

26 was no apparent reason to do further investigation.

27 Plaintiffs further argue that Defendants’ accrual analysis regarding Monell and supervisory 28 liability claims is mistaken. Courts have recognized that a cause of action against a municipality

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1 accrues only when it is clear or should be clear that the harmful act is the consequence of a

2 municipal policy or custom. As alleged above, it was not until November 2020 when the Shooting

3 Review Board report was obtained that Plaintiffs knew or had reason to know of Monell and

4 supervisory liability claims.4

5 With respect to the supervisory liability claims against Chief Carroll, Plaintiffs contend 6 that it is not necessary to show that he directly participated in the shooting of Jackson. Instead,

7 Plaintiffs argue that the Complaint has identified three bases for Chief Carroll’s liability – failing

8 to implement sufficient policies, maintaining a custom of tolerating excessive force, and

9 ratification. The Complaint explains how there are an absence of policies regarding interactions

10 with mentally disabled people or those suffering from substance abuse problems that affect their

11 perception. The Complaint lists numerous instance of excessive force and notes that Chief Carroll

12 has never found an officer involved shooting to not be within policy. Finally, the Complaint

13 explains that Chief Carroll convened and sat on a Shooting Review Board that determined that the

14 shooting of Jackson was justified and within policy.

15 Finally, with respect to the ADA and RA claims, Plaintiffs argue that they have alleged 16 plausible claims. The Complaint identified major life activities of Jackson that were substantially

17 limited. The Complaint further explains that Jackson had been suffering from mental health

18 problems for years. Moreover, as long as the allegations and Plaintiffs’ theory are plausible, that

19 other theories, e.g. Jackson was suffering from the temporary effects of intoxication as opposed to

20 a mental disability, are also plausible does not mean that dismissal is appropriate.

21 Discussion 22 1. Statute of Limitations 23 If a federal statutory cause of action does not expressly supply a statute of limitations, 24 courts generally borrow the most closely analogous limitations period from the forum state.

25 Graham Cnty. Soil & Water Conservation Dist. v. United States, 545 U.S. 409, 414 (2005);

27 4Although not alleged in the Complaint, Plaintiffs’ Opposition indicates that they became aware of the Shooting Review Board through filings in another case pending in the Eastern District of California – Perkins v. City of 28 Modesto, 1:19-cv-0126 NONE EPG.

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1 DirecTV, Inc. v. Webb, 545 F.3d 837, 847 (9th Cir. 2008); Lukovsky v. City & Cnty. of San

2 Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008). Federal courts also borrow tolling and equitable

3 related exceptions from the forum state to the extent those tolling doctrines and equitable

4 exceptions are not inconsistent with federal law. Mills v. City of Covina, 921 F.3d 1161, 1166

5 (9th Cir. 2019); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1199 (9th Cir. 1988). However,

6 while state law sets the limitations period for a § 1983 action, federal law determines when a §

7 1983 claim accrues. Bird v. Department of Human Services, 935 F.3d 738, 743 (9th Cir. 2019);

8 Gregg v. Department of Pub. Safety, 870 F.3d 883, 887 (9th Cir. 2017). A claim accrues when the

9 plaintiff knows or has reason to know of the injury that is the basis of the action and the cause of

10 that injury. Gregg, 870 F.3d at 887; Bonneau v. Centennial Sch. Dist. No. 28J, 666 F.3d 577, 581

11 (9th Cir. 2012). An “injury” for purposes of accrual refers to an actual injury, not a legal wrong.

12 Lukovsky, 535 F.3d at 1051; see also Scheer v. Kelly, 817 F.3d 1183, 1189 (9th Cir. 2016). A

13 plaintiff must be diligent in discovering the critical facts of his case. Gregg, 870 F.3d at 887;

14 Klein v. City of Beverly Hills, 865 F.3d 1276, 1278 (9th Cir. 2017); see also Bonneau, 666 F.3d at

15 581. Accrual occurs even if the full extent of the injury is unknown. Gregg, 870 F.3d at 887.

16 Further, even if a plaintiff does not diligently investigate, equity will impute to the plaintiff

17 knowledge of the facts that would have been revealed by a reasonable investigation. Oracle Am.,

18 Inc. v. Hewlett Packard Enter. Co., 971 F.3d 1042, 1047-48 (9th Cir. 2020). The question of when

19 a claim accrues can often be a fact intensive inquiry. G&G Prods. LLC v. Rusic, 902 F.3d 940,

20 953 (9th Cir. 2018).

21 A claim may be dismissed under Rule 12(b)(6) as barred by the statute of limitations if the 22 running of the statute is apparent on the face of the complaint and it is beyond doubt that the

23 plaintiff can prove no set of facts that would establish the timeliness of the claim. United States ex

24 rel. Air Control Techs. v. Pre Con Indus., 720 F.3d 1174, 1178 (9th Cir. 2013); Von Saher v.

25 Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010). A plaintiff whose

26 complaint is susceptible to dismissal on limitations grounds has the burden of alleging facts that

27 demonstrate that his claims are in fact timely. See Wasco Prods. v. Southwall Techs., Inc., 435

28 F.3d 989, 991 (9th Cir. 2006); Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2001); Hinton v.

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1 Pacific Enters., 5 F.3d 391, 395 (9th Cir. 1993) The doctrines of equitable tolling and equitable

2 estoppel (sometimes called “fraudulent concealment”), which usually turn on factual

3 determinations, may extend the time for filing under the statute of limitations. Pesnell v.

4 Arsenault, 543 F.3d 1038, 1042 (9th Cir. 2008); Lukovsky, 535 F.3d at 1051.

5 In this case, Plaintiffs bring three § 1983 claims, one RA claim, and one ADA claim. 6 Neither § 1983, see Bird, 935 F.3d at 743, the RA, Ervine v. Desert View Reg’l Med. Ctr.

7 Holdings, LLC, 753 F.3d 862, 869 (9th Cir. 2014), nor Title II of the ADA, see Sharkey v.

8 O’Neal, 778 F.3d 767, 770 (9th Cir. 2015), contain express statutes of limitations and thus, courts

9 borrow state law limitations periods for such claims. For the § 1983 claims, the two year

10 limitations period of Cal. Code Civ. P. § 335.1 applies. See Wheeler v. City of Santa Clara, 894

11 F.3d 1046, 1059 (9th Cir. 2018). For the ADA claim, the three year limitations period of Cal.

12 Code Civ. P. § 338(a) applies. See Sharkey, 778 F.3d at 771. The Ninth Circuit has applied both

13 § 335.1 and § 338(a) to RA claims based on the arguments of the parties before them, but without

14 definitively deciding which statute applies. E.g. Estate of Stern v. Tuscan Retreat, Inc., 725 F.

15 App’x 518, 521 (9th Cir. 2018); Pickern v. Holiday Quality Foods, 293 F.3d 1133, 1137 n.2 (9th

16 Cir. 2002). Therefore, either a two or three year limitations period applies. West v. Palo Alto

17 Hous. Corp., 2019 U.S. Dist. LEXIS 103665, *43 (N.D. Cal. June 20, 2019). Because the result of

18 this motion will not change, the Court will follow the Ninth Circuit’s lead and assume without

19 deciding that the § 338(a) three year limitations period applies to Plaintiffs’ RA claim. See Estate

20 of Stern, 725 F. App’x at 521. With the understanding that a two year limitations period applies to

21 the § 1983 claims and a three year limitations period applies to the RA and ADA claims, the

22 question becomes when these claims accrued.

23 a. Accrual 24 (1) Individual Officers 25 (a) Fourth Amendment – Excessive Force 26 Fourth Amendment rights are considered “personal” and may not be vicariously asserted. 27 Jones v. Las Vegas Metro. Police Dept., 873 F.3d 1123, 1128 (9th Cir. 2017). However, pursuant

28 to 42 U.S.C. § 1988(a), a claim under § 1983 survives a decedent if the claim accrued before the

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1 decedent’s death, and if state law authorizes a survival action. George v. Morris, 736 F.3d 829,

2 833 n.6 (9th Cir. 2013); Tatum v. City & Cnty. of San Francisco, 441 F.3d 1090, 1093 n.2 (9th

3 Cir. 2006). California law authorizes survival actions. Chaudhry v. City of L.A., 751 F.3d 1096,

4 1103 (9th Cir. 2014); Smith v. City of Fontana, 818 F.2d 1411, 1416-17 (9th Cir. 1987).

5 Courts recognize that excessive force claims generally accrue on the date that excessive 6 force is used against an individual. See Soto v. Unknown Sweetman, 882 F.3d 865, 871 (9th Cir.

7 2018) (recognizing that excessive force claim accrued on the date that force was used); Cabrera v.

8 City of Huntington Park, 159 F.3d 374, 381 (9th Cir. 1998) (same); Crumpton v. Gates, 947 F.2d

9 1418, 1422 (9th Cir. 1991) (same). Force was used against Jackson on October 8, 2016 when the

10 officers shot and killed her. Moreover, this is not a situation in which it was unclear whether or by

11 whom force was used. Jackson’s parents called the MPD twice on October 8, MPD officers used

12 force and killed Jackson on October 8 while at the property of Jackson’s parents, and the City

13 acknowledged through a published press release on October 10, 2016, that MPD members used

14 force against Jackson that resulted in her death. Therefore, the Fourth Amendment excessive force

15 claim accrued on October 8, 2016. See id.

16 Plaintiffs argue that while they experienced an injury when Jackson was killed, they did 17 not know or have reason to know that the officers’ use of force was not justified or that improper

18 tactics and ammunition had been employed. In other words, Plaintiffs contend that they did not

19 know that constitutionally excessive force was involved at the time Jackson was shot. It was not

20 until November 2020 that they learned that the officers’ use of force was not justified and

21 unconstitutional. The Court cannot agree with Plaintiffs.

22 First, Plaintiffs’ argument is foreclosed by Lukovsky. Lukovsky adopted the rule that a 23 claim accrues upon awareness of an actual injury, not when the plaintiff suspects a “legal wrong.”

24 Lukovsky, 535 F.3d at 1049-51;5 see also Whiting v. City of Cathedral City, 735 F. App’x 927,

25 928 (9th Cir. 2018); Zamorano v. City of San Jacinto, 585 F. App’x 397, 397-98 (9th Cir. 2014).

26 Plaintiffs’ briefing admits that an actual injury was sustained on October 8 when the officers used

27 5The Court notes that while Lukovsky was an employment related case that relied in part on § 1983, the Ninth Circuit 28 has indicated that its “actual injury” rule of accrual applies equally to all cases brought under inter alia § 1983 and is not limited to an employment context. Zamorano v. City of San Jacinto, 585 F. App’x 397, 397-98 (9th Cir. 2014).

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1 force against Jackson. That admission is sufficient for setting the date of accrual. The additional

2 evidence discovered by Plaintiffs in November 2020 supports the theory that the legal wrong of

3 excessive force was committed, it does not change the actual injury that was suffered by Jackson

4 on October 8. Cf. Rotella v. Wood, 528 U.S. 549, 555 (2000) (“. . . discovery of the injury, not

5 discovery of the other elements of a claim, is what starts the [statute of limitations] clock.”).

6 Therefore, accrual did not begin in November 2020 when Plaintiffs became aware of the legal

7 injury of excessive force. See Whiting, 735 F. App’x at 928; Zamorano, 585 F. App’x at 397-98;

8 Lukovsky, 535 F.3d at 1049-51.

9 Second, survival actions are causes of action that existed and belonged to the d ecedent 10 while the decedent was alive, but survive the decedent’s death. Adams v. Superior Ct., 196

11 Cal.App.4th 71, 78 (2011); Quiroz v. Seventh Ave. Center, 140 Cal.App.4th 1256, 1264 (2006).

12 The Fourth Amendment claim is a survival action that belongs to Jackson’s estate. Tatum, 441

13 F.3d at 1093 n.2; Ruiz v. Podolsky, 50 Cal.4th 838, 850 n.3 (2010); Quiroz, 140 Cal.App.4th at

14 1264. It is asserted on behalf of the decedent. Estate of Elkins v. Pelayo, 2020 U.S. Dist. LEXIS

15 89857, *19-*21 (E.D. Cal. May 21, 2020); Brenner v. Universal Health Servs. of Rancho Springs,

16 Inc., 12 Cal.App.5th 589, 605 & n.9 (2017); Dominguez v. City of Alhambra, 118 Cal.App.3d

17 237, 243 (1981); see also Ruiz, 50 Cal.4th at 850 n.3. The Ninth Circuit has indicated that a

18 § 1983 survival claim is one that accrued prior to a decedent’s death. See 42 U.S.C. § 1988(a);

19 George, 736 F.3d at 833 n.6; Tatum, 441 F.3d at 1093 n.2; Smith, 818 F.2d at 1416. Therefore,

20 the focus of a survival claim for purposes of accrual is generally on what the decedent knew or

21 should have known. See Lawson v. Okmulgee County Criminal Justice Authority, 726 F. App'x

22 685, 691 (10th Cir. 2018); Miller v. Philadelphia Geriatric Ctr., 463 F.3d 266, 276 (3d Cir. 2006);

23 Garrett v. Corizon, LLC, 2019 U.S. Dist. LEXIS 88741, *6-*7 (M.D. Ala. May 28, 2019);

24 Lockhart-Mollah v. Gov't of the V.I., 2009 U.S. Dist. LEXIS 67541, *11-*12 (D.V.I. July 31,

25 2009). California law does not appear to be contrary. The relevant survival related statutes

26 discuss a decedent’s cause of action and the limitations period that would have applied if the

27 decedent had not died. That is, the statutes’ focus is the decedent, they do not discuss a different

28 limitations period applicable to the estate (with a possible limited six-month exception). See Cal.

13 Case 1:21-cv-00415-AWI-EPG Document 25 Filed 10/15/21 Page 14 of 41

1 Code Civ. P. § 366.1 (“If a person entitled to bring an action dies before the expiration of the

2 applicable limitations period, and the cause of action survives, an action may be commenced

3 before the expiration of the later of the following times: (a) Six months after the person’s death.

4 (b) The limitations period that would have been applicable if that person had not died.”); Cal.

5 Code Civ. P. § 377.20(a) (“[A] cause of action for . . . a person is not lost by reason of the

6 person’s death, but survives subject to the applicable limitations period.”); see also Brenner, 12

7 Cal.App.5th 605 & n.9; Dominguez, 118 Cal.App.3d at 243. Further, as stated above, California

8 courts recognize that the claim existed prior to the decedent’s death. See Adams, 196 Cal.App.4th

9 at 78; Quiroz, 140 Cal.App.4th at 1264. For a claim to belong to the decedent prior to death

10 indicates that accrual could not post-date death. Indeed, “[n]o civil claim can be asserted, on a

11 decedent’s personal behalf, for injury or damage to the decedent that occurs, or accrues, after the

12 decedent has died.” People v. Runyan, 54 Cal.4th 849, 861-62 (2012).

13 From the allegations in the Complaint, Jackson would have been aware that she was 14 running away from the officers, did not pose a threat to them, and was shot multiple times with

15 multiple projectiles despite not being a threat to the officers. Therefore, because Jackson was

16 aware of her injuries, that three officers of the City inflicted the injuries, and many of the facts that

17 were unknown to the Plaintiffs/representative of the Estate, the fact that the representative of

18 Estate actually learned of additional evidence in November 2020 is not relevant for purposes of

19 federal accrual. There is nothing to suggest that the general rule for accrual of an excessive force

20 case does not apply. See Soto, 882 F.3d at 871; Cabrera, 159 F.3d at 381; Crumpton, 947 F.2d at

21 1422.

22 (b) First and Fourteenth Amendment - Familial Relations 23 The First and Fourteenth Amendments protect against inter alia improper and 24 unwarranted interference with the familial relationship between parents and children. Keates v.

25 Kolie, 883 F.3d 1228, 1235-36 (9th Cir. 2018); Lee v. City of L.A., 250 F.3d 668, 687 (9th Cir.

26 2001). When separations are involved, a mere investigation or threat of interference is not

27 actionable, rather there must be an actual loss of control of the familial relationship. Dees v.

28 County of San Diego, 960 F.3d 1145, 1153 (9th Cir. 2020).

14 Case 1:21-cv-00415-AWI-EPG Document 25 Filed 10/15/21 Page 15 of 41

1 In this case, any interference with the familial relations occurred at the moment that the 2 defendant officers shot and killed Jackson. It was at that time, and no other time, that Jackson’s

3 parents and children lost their relationship with her because the relationship was permanently

4 extinguished. See Crumpton, 947 F.2d at 1422 (finding that action that interfered with an unborn

5 plaintiff’s right to familial association was the killing of the plaintiff’s father by law enforcement);

6 cf. Capp v. County of San Diego, 940 F.3d 1046, 1060 (9th Cir. 2019) (finding no interference

7 were plaintiff was investigated but never lost custody of children); Moore v. County of

8 Sacramento, 2020 U.S. Dist. LEXIS 85324, *18 (E.D. Cal. May 14, 2020) (finding that the act of

9 removing a child from the home was the act of interference for purposes of familial association

10 claim). Further, Jackson was killed outside her parents’ home after her parents requested

11 assistance from the City police. In the absence of contrary allegations, it is more than reasonable

12 to infer that Jackson’s parents became aware of Jackson’s death at the hands of City law

13 enforcement the same day Jackson was killed, October 8. While it is unknown precisely when

14 Jackson’s children would have become aware of Jackson’s death, it is likely that they also knew

15 from their grandparents about MPD officers shooting Jackson on the same day she was killed.

16 Therefore, in the absence of contrary allegations, the Complaint indicates that the familial

17 relationship claims accrued on October 8, 2016, because that is the date that Plaintiffs likely knew

18 that their relationship with Jackson was extinguished by the City police officers.

19 (2) The City 20 (a) First Cause of Action -- § 1983 Excessive Force 21 Municipalities are considered “persons” under 42 U.S.C. § 1983 and therefore may be 22 liable for causing a constitutional deprivation. Monell v. Department of Soc. Servs., 436 U.S. 658,

23 690 (1978); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). A

24 municipality, however, “cannot be held liable solely because it employs a tortfeasor or, in other

25 words, a municipality cannot be held liable under [42 U.S.C. § 1983] under a respondeat superior

26 theory.” Monell, 436 U.S. at 691; Benavidez v. County of San Diego, 993 F.3d 1134, 1153 (9th

27 Cir. 2021). Liability only attaches where the municipality itself causes the constitutional violation

28 through “execution of a government’s policy or custom, whether made by its lawmakers or by

15 Case 1:21-cv-00415-AWI-EPG Document 25 Filed 10/15/21 Page 16 of 41

1 those whose edicts or acts may fairly be said to represent official policy.” Monell, 436 U.S. at

2 694; Ulrich v. City & County of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002); see Pasadena

3 Republican Club v. Western Justice Ctr., 985 F.3d 1161, 1171-72 (9th Cir. 2021). Municipal

4 liability may be premised on: (1) conduct pursuant to an expressly adopted official policy; (2) a

5 longstanding practice or custom which constitutes the “standard operating procedure” of the local

6 government entity; (3) a decision of a decision-making official who was, as a matter of state law, a

7 final policymaking authority whose edicts or acts may fairly be said to represent official policy in

8 the area of decision; or (4) an official with final policymaking authority either delegating that

9 authority to, or ratifying the decision of, a subordinate. See Price v. Sery, 513 F.3d 962, 966 (9th

10 Cir. Or. 2008); Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004); Ulrich, 308 F.3d at 984-85;

11 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1995).

12 The Ninth Circuit has not expressly held when a Monell claim accrues – upon incurring the 13 injury or upon discovery (actual or constructive) that an official policy or custom caused the

14 injury.6 Marlowe v. City & Cnty. of San Francisco, 753 F. App’x 479, 479 (9th Cir. 2019). The

15 Second Circuit has held that, “[s]ince an actionable claim under § 1983 against a county or

16 municipality depends on a harm stemming from the municipality’s ‘policy or custom,’ a cause of

17 action against the municipality does not necessarily accrue upon the occurrence of a harmful act,

18 but only later when it is clear, or should be clear, that the harmful act is the consequence of a

19 county ‘policy or custom.’” Pinaud v. County of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995); see

20 Birch v. City of N.Y., 675 F. App’x 43, 45 (2d Cir. 2017). Some courts have rejected Pinaud.

21 E.g. King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 763 (5th Cir. 2015); Rich v. Hershl,

22 2021 U.S. Dist. LEXIS 118098, *34-*35 (D. Md. June 24, 2021). However, many courts within

24 6 In Lockett v. County of L.A., 977 F.3d 737 (9th Cir. 2020), the District Court denied a motion to dismiss in which the County had argued that a Monell claim was untimely because the plaintiff was beaten by police two years and five 25 months prior to filing suit. The District Court held that Lockett was entitled to eight months of tolling under Cal. Civ. Code § 945.3 (prohibiting certain claims against a peace officer or employing entity while criminal charges against a 26 plaintiff are pending). The Ninth Circuit accepted an interlocutory appeal on the issue of whether § 945.3 applies to Monell claims. See id. at 740. The Ninth Circuit held that § 945.3 tolling can apply to a Monell claim. See id. at 743. 27 However, the Ninth Circuit did not expressly discuss accrual, and it does not appear that Lockett made any arguments that challenged the County’s position that the Monell claim accrued on the date he was beaten. See Lockett v. County 28 of L.A., 2019 U.S. Dist. LEXIS 123817, *5-*6 (C.D. Cal. May 29, 2019).

16 Case 1:21-cv-00415-AWI-EPG Document 25 Filed 10/15/21 Page 17 of 41

1 the Ninth Circuit have followed Pinaud. See Moore v. County of Sacramento, 2020 U.S. Dist.

2 LEXIS 85324, *21-*22 (E.D. Cal. May 14, 2020); O’Shea v. County of San Diego, 2019 U.S.

3 Dist. LEXIS 164600, *5 (S.D. Cal. Sept. 24, 2019); Wilson v. Hays, 228 F.Supp.3d 1100, 1111-12

4 (S.D. Cal. 2017); Doe v. City of Eugene, 2016 U.S. Dist. LEXIS 46967, *1 (D. Or. Apr. 6, 2016);

5 Bodnar v. Riverside Cnty. Sheriff’s Dept., 2014 U.S. Dist. LEXIS 83110, *11 (C.D. Cal. Mar. 28,

6 2014); King v. County of L.A., 2012 U.S. Dist. LEXIS 201079, *12 (C.D. Cal. July 31, 2012);

7 Matheny v. Clackamas Cnty., 2012 U.S. Dist. LEXIS 6661, *12-*13 (D. Or. Jan. 19, 2012);

8 Temple v. Adams, 2006 U.S. Dist. LEXIS 97616, *31 (E.D. Cal. Aug. 23, 2006); but see Caples v.

9 City of Phoenix, 2018 U.S. Dist. LEXIS 188429, *7-*9 (D. Ariz. June 28, 2018).

10 The reasoning of these cases, either implicit or explicit, is well reflected in Wilson. The 11 reasoning is that a § 1983 claim accrues when a plaintiff knows or has reason to know of the

12 injury that is the basis of the action and the cause of that injury. Gregg, 870 F.3d at 887; Bonneau,

13 666 F.3d at 581; Wilson, 228 F.Supp.3d at 1112. A Monell claim is based on an injury that was

14 caused by a governmental policy, custom, or practice. Pasadena Republican Club, 985 F.3d at

15 1172; Wilson, 228 F.Supp.3d at 1112. “It follows that [a plaintiff’s Monell claim accrues] when

16 she knew or in the exercise of reasonable diligence should have known of not only her injury, but

17 also the [government]’s alleged wrongful policies – the cause of her injury for her Monell claim.”

18 Wilson, 228 F.Supp.3d at 1112.

19 The City does not argue that Pinaud or Wilson were wrongly decided or that the Court 20 should not follow this line of cases. In fact, the City accepts that Wilson is an accurate statement

21 of the law (at least within the Ninth Circuit). See Doc. No. 19 at 8:18-21. Wilson’s analysis and

22 Pinaud’s conclusion appear to be consistent with Gregg and Bonneau, as well as the Ninth

23 Circuit’s description of Monell liability, i.e. the municipality itself causes an injury through

24 policies, customs, or practices. Ulrich, 308 F.3d at 984. In the absence of briefing to the contrary,

25 the Court will follow Pinaud and Wilson. Therefore, the Estate’s Monell claims accrued when

26 Jackson was not only aware of her injuries, but also when she knew or should have known that her

27 injuries were caused by the City’s customs, policies, or practices. Pinaud, 52 F.3d at 1157;

28 Wilson, 228 F.Supp.3d at 1112.

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1 So applying this rule, the Court cannot determine when the § 1983 Monell claim accrued at 2 this time. Plaintiffs argue that the Monell claim accrued in November 2020 based on the

3 information that they learned. However, this is not the correct focus of an accrual analysis in the

4 context of a survival cause of action. As discussed above, survival claims are those that belonged

5 to the decedent and accrued before death. Therefore, the proper focus is on the decedent’s, i.e.

6 Jackson’s, knowledge or investigation. What Plaintiffs may have known or learned does not

7 address accrual of Jackson’s claim. On the other hand, the City agrees with the law as stated by

8 Wilson (and thus, Pinaud), but fails to explain why Jackson either would or would not have

9 knowledge that the City’s policies or customs were a cause of her injuries. Merely stating that the

10 claim accrued on October 8, 2016 without adequate explanation of Jackson’s knowledge or

11 citation to relevant authority does not establish a proper accrual date.

12 The Court can only dismiss a claim based on the expiration of the statute of limitations if 13 the face of the complaint shows that the claim is untimely. See Air Control, 720 F.3d at 1178;

14 Von Saher, 592 F.3d at 969. The question of accrual in this case is a highly factual one. See

15 G&G Prods., 902 F.3d at 953. Without an accrual date, the Court cannot determine if the two year

16 limitations period has run. Therefore, because the Court cannot hold at this time that the face of

17 the Complaint shows that the Estate’s Monell claims accrued more than two years from the filing

18 of the Complaint, dismissal of the Monell claims is inappropriate. See Air Control, 720 F.3d at

19 1178; Von Saher, 592 F.3d at 969.

20 (b) Rehabilitation & ADA Claims 21 While Title II of the ADA applies only to public entities and § 794 of the RA applies to 22 entities who receive federal funds, both prohibit discrimination on the basis of disability in the

23 provision of or participation in certain programs and services. See 29 U.S.C. § 794; 42 U.S.C. §

24 12132; Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Both of these provisions include

25 an affirmative obligation for public entities to make benefits, services, and programs accessible t o

26 people with disabilities. Updike v. Multnomah Cty., 870 F.3d 939, 949 (9th Cir. 2017). Title II of

27 the ADA was expressly modeled after § 794 of the RA. Duvall v. County of Kitsap, 260 F.3d

28 1124, 1135 (9th Cir. 2002). Title II essentially extends the anti-discrimination prohibition

18 Case 1:21-cv-00415-AWI-EPG Document 25 Filed 10/15/21 Page 19 of 41

1 embodied in § 794 to all actions of state and local government. Barden v. City of Sacramento, 292

2 F.3d 1073, 1077 (9th Cir. 2002). Therefore, there is no significant difference in the analysis of

3 rights and obligations created by the two statutes, City of L.A. v. AECOM Servs., 854 F.3d 1149,

4 1160 (9th Cir. 2017), and cases interpreting either statute are applicable and interchangeable.

5 Douglas v. California Dept. of Youth Auth., 285 F.3d 1226, 1229 n.3 (9th Cir. 2002). To establish

6 a violation of Title II of the ADA, a plaintiff must show: “(1) he is a ‘qualified individual with a

7 disability’; (2) he was either excluded from participation in or denied the benefits of a public

8 entity's services, programs, or activities, or was otherwise discriminated against by the public

9 entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his

10 disability.” Updike, 870 F.3d at 949; Duvall, 260 F.3d at 1135. An RA plaintiff must establish

11 essentially the same elements, except he must also demonstrate that the program providing the

12 benefit or services receives federal financial assistance.7 See Updike, 870 F.3d at 949; Lovell, 303

13 F.3d at 1052. Title II of the ADA and the RA apply to arrests. See Dunlap v. City of Sandy, 846

14 F. App’x 511, 513 (9th Cir. 2021); City & Cnty of San Francisco v. Sheehan, 743 F.3d 1211, 1232

15 (9th Cir. 2014).8 As relevant here, Title II and the RA can be violated when, although the police

16 properly investigate and arrest a person with a disability for a crime unrelated to that disability, the

17 police fail to reasonably accommodate the person’s disability in the course of investigation or

18 arrest, causing the disabled person greater injury or indignity in that process than other arrestees.

19 Sheehan, 743 F.3d at 1232. Additionally, the Ninth Circuit has held that, through application of

20 federal common law, a decedent’s ADA and RA compensatory damages claim do not abate at the

21 time of the decedent’s death (although punitive damages claims do abate) and may be pursued by

22 a relative or the estate of the decedent. Wheeler v. City of Santa Clara, 894 F.3d 1046, 1056-57

23 (9th Cir. 2018).

24 In this case, the ADA and RA claims are survival claims brought by the Estate that 25 survived Jackson’s death. The Complaint alleges that the defendant officers failed to

26 7 The four elements of an RA claim identified by the Ninth Circuit are: (1) the plaintiff is an individual with a 27 disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance. Updike, 870 F.3d at 949. 28 8 Reversed on other grounds, 575 U.S. 600 (2015).

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1 accommodate Jackson’s disability by failing to approach, speak, and interact with Jackson in a

2 non-confrontational manner that did not threaten force. See Complaint at ¶¶ 115, 121. The

3 Complaint also alleges that the City maintained policies or customs of action and inaction that

4 harmed Jackson. See id. at ¶¶ 116, 122. Plaintiffs contend that these allegations support liability

5 against the City for the City’s own policies and vicarious liability for the actions of its officers.

6 (i) Vicarious Liability 7 Under the RA and Title II of the ADA, a public entity may be held vicariously liable for 8 the acts of its employees. United States v. Town of Colorado City, 935 F.3d 804, 809 (9th Cir.

9 2019); Duvall, 260 F.3d at 1141.

10 The harm at issue in the RA and ADA claims is the failure of the officers to give a 11 reasonable accommodation to Jackson. The failure to give a reasonable accommodation is a form

12 of disability discrimination. See Updike, 870 F.3d at 951; A.G. v. Paradise Valley Unified Sch.

13 Dist. No. 69, 815 F.3d 1195, 1206 (9th Cir. 2016). An RA and ADA claim generally accrues upon

14 the occurrence of a distinct discriminatory act. See Ervine, 753 F.3d at 869-70 (explaining inter

15 alia that “[s]o long as an alleged violation of [the RA] is a discrete act and independently wrongful

16 discriminatory act, it causes a new claim to accrue and a new limitations period to run.”).

17 The positions of the parties on the issue of accrual are essentially identical to those taken 18 with respect to the § 1983 claims. The Court finds for largely identical reasons that the ADA and

19 RA vicarious liability claims accrued on October 8, 2016. The discriminatory acts/failure to

20 accommodate by the officers occurred on October 8, 2016. Moreover, Jackson would have known

21 of the officers’ actions and known that they did not honor any requested accommodations or

22 render any reasonably obvious accommodations during the incident. Further, while Jackson’s

23 estate or the estate’s representative may have learned additional evidence in November 2020, the

24 additional evidence merely augmented the probability of a legal wrong/injury; the actual injury,

25 i.e. the failure to accommodate, had already occurred on October 8, 2016. Therefore, the RA and

26 ADA claims for vicariously liability accrued on October 8, 2016.

27 (ii) Policy, Practice or Custom 28 Plaintiffs contend that the City may be held directly liable under the ADA and the RA

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1 through essentially Monell policy, custom, or practice theories. Plaintiffs correctly cite cases that

2 have recognized a failure to train theory of ADA and RA liability. However, Plaintiffs cite no

3 cases in which non-failure to train policy or practice theories have been applied in the ADA and

4 RA context. The Court is aware of one case in which policy, practice, and custom allegations

5 were stricken from an ADA claim as immaterial. See Banuelos v. City of San Bernardino, 2016

6 U.S. Dist. LEXIS 202028, *5-*6 (C.D. Cal. Dec. 1, 2016). Further, a failure to train theory under

7 the ADA and the RA does not appear to be universally accepted. See J.V. ex rel. C.V. v.

8 Albuquerque Pub. Sch., 813 F.3d 1289, 121297 & n.4 (10th Cir. 2016) (declining to determine

9 whether such a claim exists and noting the status of failure to train claims in other jurisdictions).

10 Nevertheless, a number of district court cases within the Ninth Circuit have accepted a failure to

11 train theory. Moreover, in O’Doan v. Sanford, 991 F.3d 1027, 1038 n.1 (9th Cir. 2021), the Ninth

12 Circuit held that summary judgment on an ADA failure to train claim was appropriately granted

13 because the evidence did not show that different training would have changed the result of the

14 confrontation in that case. The Ninth Circuit did not hold that a failure to train theory is not

15 cognizable under the ADA.9 Given O’Doan and the district court cases within the Ninth Circuit,

16 and in the absence of on point authority that supports Plaintiffs’ broader characterization of their

17 claims, the Court will read the Complaint as alleging direct liability of the RA and Title II of the

18 ADA based only on a failure to train.

19 For a failure to train claim under Title II of the ADA and the RA, Court’s utilize the 20 Monell framework for § 1983 claims. See Bauer v. City of Pleasanton, 2021 U.S. Dist. LEXIS

21 103627, *53-*54 (C.D. Cal. June 2, 2021) (assuming that a failure to train claim is cognizable and

22 granting summary judgment for the same reasons that a § 1983 Monell claim failed); O’Doan v.

23 Sanford, 2019 U.S. Dist. LEXIS 52810, *6-*7 (D. Nev. Mar. 26, 2019); Lerma v. City of Nogales,

24 2014 U.S. Dist. LEXIS 139613, *49-*50 (D. Ariz. May 19, 2014); Green v. Tri-Country

25 Metropolitan Transp. Dist. of Or., 909 F.Supp.2d 1211, 1220-21 (D. Or. 2012). As a Monell

26 related theory, the plaintiff must demonstrate inter alia that a municipality’s failure to train caused

28 9 However, O’Doan does not indicate whether the defendants actually challenged the validity of an ADA failure to train theory.

21 Case 1:21-cv-00415-AWI-EPG Document 25 Filed 10/15/21 Page 22 of 41

1 an injury. See Tanner v. Heise, 879 F.2d 572, 582-83 (9th Cir. 1989); see also O’Doan, 991 F.3d

2 at 1038 n.1 (dismissing claim where additional training would not have changed the outcome of

3 the confrontation with the disabled plaintiff).

4 Because the Monell framework applies to the ADA and RA failure to train claim, the 5 Court’s above § 1983 Monell accrual analysis applies. The parties have not sufficiently

6 demonstrated or explained when Jackson knew or should have known that the City’s failure to

7 train caused her injuries. In other words, the Court cannot determine at this time when the RA and

8 ADA failure to train claims accrued. Without an accrual date, the Court cannot determine when

9 the statute of limitations expired. Thus, the RA and ADA failure to train claims cannot be

10 dismissed based on the expiration of the statute of limitations. See Air Control, 720 F.3d at 1178;

11 Von Saher, 592 F.3d at 969.

12 (3) Chief Carroll 13 Supervisors may not be held vicariously liable under § 1983 for the constitutional 14 violations inflicted by their subordinates. Lemire v. California Dept. of Corr. & Rehab., 726 F.3d

15 1062, 1074 (9th Cir. 2013); Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989). Rather, a

16 “supervisor may be liable under § 1983 only if there exists either (1) his or her personal

17 involvement in the constitutional deprivation, or (2) a sufficient causal connection between the

18 supervisor’s wrongful conduct and the constitutional violation.” Keates , 883 F.3d at 1242-43;

19 Hansen, 885 F.2d at 646. “The requisite causal connection may be established when an official

20 sets in motion a series of acts by others which the actor knows or reasonably should know would

21 cause others to inflict constitutional harms.” Vazquez v. County of Kern, 949 F.3d 1153, 1166

22 (9th Cir. 2020); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As such, the Ninth Circuit

23 has recognized that a supervisor may be liable: (1) for his own culpable action or inaction in the

24 training, supervision, or control of his subordinates; (2) for his acquiescence in the constitutional

25 deprivations of which the complaint is made; or (3) for conduct that showed a reckless or callous

26 indifference to the rights of others.” Keates, 883 F.3d at 1243; Lemire, 726 F.3d at 1074. If a

27 subordinate’s actions do not violate the Constitution, then the supervisor will not be liable.

28 Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998).

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1 The accrual analysis for Chief Carroll is similar to the accrual analysis for the City. Chief 2 Carroll was not present at and did not participate in the shooting. The Complaint alleges liability

3 based on ratification/acquiescence and improper training and supervision, i.e. no training

4 regarding approaching and detaining the mentally disabled and tolerating a custom of excessive

5 force. As with the Monell claim, the Court cannot determine at this time when the supervisory

6 claims against Chief Carroll accrued. Plaintiffs focus on their own knowledge of facts without

7 addressing Jackson’s knowledge, and Chief Carroll does not explain how or why Jackson would

8 have knowledge of improper supervision. Without an accrual date, the Court cannot determine

9 when the statute of limitations expired. Therefore, the supervisory liability claims against Chief

10 Carroll cannot be dismissed at this time based on the expiration of the statute of limitations. See

11 Air Control, 720 F.3d at 1178; Von Saher, 592 F.3d at 969.

12 b. Tolling and Estoppel 13 The federal claims at issue can generally be divided into two groups: claims premised on 14 the conduct of individual officers and claims premised on the execution of a policy, practice, or

15 custom. The Court has determined that the accrual date for the latter group of claims as well as

16 the supervisory claims against Chief Carroll cannot be determined at this time and thus, the Court

17 cannot hold that these claims are time-barred. However, the Court has determined that the former

18 group of claims all accrued on October 8, 2016 and thus, appear to be time barred from the face of

19 the Complaint. Plaintiffs contend that the doctrines of equitable tolling and equitable estoppel

20 apply such that dismissal due to expiration of the statute of limitations is inappropriate. The Court

21 will address the tolling and estoppel doctrines separately.

22 (1) Equitable Tolling 23 When a California statute of limitations is borrowed, federal courts also borrow 24 California’s equitable tolling doctrine. Butler v. National Cmty. Renaissance of Cal., 766 F.3d

25 1191, 1204 (9th Cir. 2014). Under California law, equitable tolling developed from three strands

26 of case law to allow courts “occasionally and in special situations” to exercise their inherent

27 equitable powers to “soften the harsh impact of technical rules.” Saint Francis Mem’l Hosp. v.

28 State Dep’t of Pub. Health, 9 Cal.5th 710, 724 (2020); Addison v. State of California, 21 Cal.3d

23 Case 1:21-cv-00415-AWI-EPG Document 25 Filed 10/15/21 Page 24 of 41

1 313, 316-17 (1978). Equitable tolling “suspend[s] or extend[s] a statute of limitations as

2 necessary to ensure fundamental practicality and fairness.” Saint Francis, 9 Cal.5th at 719;

3 McDonald v. Antelope Valley Community College Dist., 45 Cal.4th 88, 99 (2008). Equitable

4 tolling today will apply when three “elements” are present: “(1) timely notice [to the defendant],

5 (2) lack of prejudice to the defendant, and (3) reasonable and good faith conduct on the part of the

6 plaintiff.” Saint Francis, 9 Cal.5th at 724; Addison, 21 Cal.3d at 319; see also Butler, 766 F.3d at

7 1204. These requirements “balanc[e] … the injustice to the plaintiff occasioned by the bar of his

8 claim against the effect upon the important public interest or policy expressed by the [operative]

9 limitations statute.” Saint Francis, 9 Cal.5th at 724-25; Addison, 21 Cal.3d at 321. The first

10 element, “timely notice,” is to be interpreted literally and courts must examine each case on its

11 facts to determine whether the defendant received timely notice of the plaintiff’s intent to file suit.

12 Saint Francis, 9 Cal.5th at 727. For purposes of the second element, a defendant is prejudiced if

13 application of equitable tolling would prevent the defendant from defending a claim on the merits.

14 Id. at 728; Addison, 21 Cal.3d at 318. Lastly, the third element requires that a plaintiff’s conduct

15 be objectively reasonable and subjectively in good faith. Saint Francis, 9 Cal.5th at 729.

16 In this case, the Complaint does not support application of equitable tolling. There are no 17 allegations that address the first element of equitable tolling. Nothing in the Complaint suggests

18 that any Defendant received notice of any kind that Plaintiffs intended to file a suit against them

19 by October 8, 2018. Because the Complaint does not plausibly allege the first element of

20 equitable tolling, equitable tolling will not prevent dismissal.

21 (2) Equitable Estoppel 22 When a California statute of limitations is borrowed, federal courts also borrow 23 California’s equitable estoppel doctrine. Lukovsky, 535 F.3d at 1051-52.10 Equitable estoppel

24 may be appropriate where the defendant’s act or omission actually and reasonably induced the

25 10The Ninth Circuit has not consistently cited to or relied on California’s equitable estoppel law in § 1983 cases. See 26 Hidalgo v. Engle, 2021 U.S. Dist. LEXIS 183571, *9 n.1 (C.D. Cal. Aug. 30, 2021) (citing various Ninth Circuit cases). Nevertheless, the general rule is that federal courts borrow state law equitable doctrines in relation to 27 borrowed state law statutes of limitation. See Emrich, 846 F.2d at 1199. Further, Lukovsky found that California’s equitable estoppel law is consistent with federal common law. In the absence of clearer instruction from the Ninth 28 Circuit, the Court will read Lukovsky as endorsing the view that federal courts borrow California ’s equitable estoppel law when they also borrow a California statute of limitations for a federal claim.

24 Case 1:21-cv-00415-AWI-EPG Document 25 Filed 10/15/21 Page 25 of 41

1 plaintiff to refrain from filing a timely suit. Doe v. Marten, 49 Cal.App.5th 1022, 1028 (2020).

2 The act or omission must be one that constitutes a misrepresentation or non-disclosure of material

3 fact, rather than law. Millview Cnty. Water Dist. v. State Water Resources Control Bd., 32

4 Cal.App.5th 585, 599 (2019). Generally, a plaintiff must show four elements to apply the doctrine

5 of equitable estoppel: “(1) the party to be estopped must be apprised of the facts; (2) he must

6 intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had

7 a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts;

8 and (4) he must rely upon the conduct to his injury.” J.M. v. Huntington Beach Union High Sch.

9 Dist., 2 Cal.5th 648, 656 (2017); Honeywell v. Workers’ Comp. Appeals Bd., 35 Cal.4th 24, 37

10 (2005); see Lukovsky, 535 F.3d at 1051-52; see also Estate of Amaro v. City of Oakland, 653 F.3d

11 808, 813 (9th Cir. 2011). When a governmental entity is the party to be estopped, there must also

12 be a showing that affirmative acts or affirmative misrepresentations by the governmental entity

13 were involved and application of estoppel must not effectively nullify a strong rule of policy that

14 has been adopted for the benefit of the public. See J.M., 2 Cal.5th at 657 (discussing affirmative

15 acts or misrepresentations); Lentz v. McMahon, 49 Cal.3d 393, 399-400 (1989) (discussing public

16 policy concerns); see also Estate of Amaro, 653 F.3d at 813. The rule of equitable estoppel

17 includes the requirement that the plaintiff exercise reasonable diligence. Bernson v. Broning-

18 Ferris Industries, 7 Cal.4th 926, 936 (1994). A plaintiff must plead with particularity the facts that

19 give rise to equitable estoppel/fraudulent concealment. Guerrero v. Gates, 442 F.3d 697, 707 (9th

20 Cir. 2006).

21 (a) The City 22 The parties’ dispute essentially boils down to the issues of misconduct and sufficient 23 diligence.

24 As for misconduct, Plaintiffs rely on two press releases11 and the failure of the City to 25 11 The opposition and the Complaint explain that the District Attorney issued a statement approximately 21 months 26 after the shooting. However, because the statement was issued by the District Attorney, a public official who is separate and apart from the City and its officers, it is unclear how the press release can be imputed to any Defendant in 27 this case. Equitable estoppel applies against a defendant when that defendant engages in improper conduct. See Lukovsky, 535 F.3d at 1051-52; J.M., 2 Cal.5th at 656. Plaintiffs cite no authority that would permit the actions of a 28 seemingly independent third party to be attributed to other Defendants. Without such authority, the Court will not consider the press release by the District Attorney for purposes of misconduct .

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1 disclose the findings of the Shooting Review Board report, key facts, and the bodycam videos, to

2 argue that there was misconduct by the City. With respect to the City’s general failure to disclose,

3 there are insufficient allegations and insufficient arguments to suggest that the City engaged in any

4 misconduct. Missing from Plaintiffs’ arguments are any indication that Plaintiffs requested any of

5 the materials or information that were not disclosed, or that the City somehow had an affirmative

6 obligation to release the identified materials or information to either the public at large or to

7 Plaintiffs in particular. Plaintiffs cite no authority that indicates misconduct is present from mere

8 “silence” in the absence of some obligation to “speak.” In the absence of an obligation on the City

9 or request by Plaintiffs (which could support a stonewalling argument), the mere non-disclosure of

10 the identified materials or information is not sufficient misconduct for purposes of equitable

11 estoppel.

12 With respect to the City’s October 10 press release, the press release indicates that the 13 officers confronted Jackson as she rapidly approached them with knives and that the officers used

14 a combination of lethal and non-lethal force, which ultimately lead to Jackson’s death. The press

15 release suggests that the shooting was reasonable and justified. However, the press release

16 omitted the fact that Jackson was shot with a breaching round in the back, that the officer who

17 fired the breaching round was out of position and did not intend to fire a breaching round, that no

18 “game plan” was discussed, and that Jackson was shot in the back with the breaching round and a

19 pistol round after she had dropped the knives and was staggering away from the officers. It is not

20 reasonable to argue that each of these omissions are things that would naturally appear in a press

21 release. Nevertheless, these omitted facts paint a very different picture of the confrontation with

22 Jackson and the officers. Particularly troubling is the press release’s statement that “bean bags”

23 were deployed. The statement is inaccurate in that, according to the Complaint, at best only one

24 bean bag was deployed. Completely omitted from the press release is the fact that a breaching

25 round was used against Jackson, a round that apparently caused severe injury to Jackson. The

26 press release identified three of the four types of force used against Jackson. It was the omitted

27 breaching round which would have raised significant questions to a reasonable person because the

28 breaching round is not intended to be used against people, it is used to aid in making entries into

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1 buildings and locked doors. Identification of the breaching round would have been consistent with

2 the structure of the press release, and it would have raised questions regarding why that force was

3 used, particularly since two non-lethal or less lethal force options that are intended to be used

4 against people are identified. Construing the allegations in the light most favorable to the

5 Plaintiffs, see Kwan, 854 F.3d at 1096, at this time the Court is satisfied that the press release

6 constitutes affirmative misconduct because: (1) it suggests that all force used against Jackson was

7 reasonable and justified, despite the bodycam video which allegedly indicates that that not all of

8 the force used was reasonable; (2) it misrepresented that multiple bean bag rounds were deployed;

9 and (3) it failed to disclose that a breaching round was deployed while listing every other force

10 medium that was deployed.

11 As for diligence, there are no allegations that Plaintiffs undertook any kind of investigation 12 or made any requests on the City until November 2020, well after the applicable limitation periods

13 expired. This suggests the absence of any diligence. Plaintiffs rely on the October 10 press

14 release and inter alia an unpublished Ninth Circuit case, Gomez v. City of Torrance, 311 F. App’x

15 967 (9th Cir. 2009).

16 In Gomez, the Ninth Circuit reversed the District Court’s decision on summary judgment 17 that equitable estoppel did not apply. See id. at 969. In relevant part, the Ninth Circuit explained:

18 Here, plaintiffs alleged facts and offered evidence that, if proved, would have led reasonable persons to believe that they did not have a claim for relief until they 19 viewed the surveillance video of the shooting. See Gibson v. United States, 781 F.2d 1334, 1344-45 (9th Cir. 1986). Plaintiffs presented evidence that the police 20 and the district attorney's office provided them with a false and misleading investigative report, which concluded that officers acted lawfully when they shot 21 Gomez. They submitted affidavits stating that they relied on the investigative report in deciding not to file suit. Additionally, plaintiffs introduced evidence that police 22 withheld a surveillance video of the shooting until after the expiration of the limitations period; this video contradicted the investigative report in several 23 important respects. 24 Id.

25 In this case, the Complaint indicates that Plaintiffs knew that Jackson had significant and 26 lengthy mental health and substance abuse problems that resulted in multiple police encounters

27 over the years, including § 5150 welfare detentions. Moreover, Glenn believed that Jackson was

28 drunk and suicidal in the early morning hours of October 8 and reported these facts to Bettis,

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1 Callahan, and Lamantia. Glenn had called the police in the first instance because Jackson was

2 vandalizing his home, which could be considered violent conduct (at least towards property, if not

3 also towards the property owner). Further, as discussed above, the press release suggests that the

4 force used was justified. The press release indicated that the officers confronted Jackson in front

5 of or at her parents’ home and that Jackson moved rapidly towards the officers with knives raised

6 above her head, which is clearly dangerous and aggressive conduct and consistent with suicidal

7 behavior.12 Also, by identifying two non-lethal/less-lethal force options, it is reasonable to assume

8 that the officers attempted to detain Jackson by first using less-lethal force followed by lethal

9 force. However, as discussed above, the press release contains a key omission concerning the

10 breaching round and paints a different picture of the entire confrontation than that of the bodycam

11 videos.

12 Admittedly, this is a close question. Plaintiffs’ opposition does nothing to dispel the 13 notion that they did nothing in terms of an investigation between October 2016 and November

14 2020. Plaintiffs cite no cases in which no investigation or inquiry of any kind had been performed

15 by the plaintiff. However, the issue of whether a plaintiff has exercised reasonable diligence is

16 generally a question of fact. Cleveland v. Internet Specialties West, Inc., 171 Cal.App.4th 24, 31

17 (2009); April Enterprises, Inc. v. KTTV, 147 Cal.App.3d 805, 833 (1983); see also Pesnell, 543

18 F.3d at 1042 (application of equitable estoppel is factually intensive inquiry that is generally not

19 suitable for resolution under Rule 12(b)(6)); Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 1112 (1988)

20 (application of statute of limitations is generally a question of fact). Given the October 10 press

21 release and the information known to Plaintiffs before and at the time of the shooting, for purposes

22 of this Rule 12(b)(6) motion, the Court cannot say that this case is so distinguishable from Gomez

23 that equitable estoppel cannot apply. There is nothing per se unreasonable about relying on the

24 public press releases of a municipality. Therefore, the Court concludes that the allegations

25 concerning Jackson’s known history and behavior combined with the October 10 press release are

26 sufficient to suggest that equitable estoppel could apply to the RA and ADA vicarious liability

28 12“Suicide by cop” is a recognized and regrettable phenomenon. See Lal v. California , 746 F.3d 1112, 1117-20 (9th Cir. 2014); George, 736 F.3d at 844 (Trott, J., dissenting).

28 Case 1:21-cv-00415-AWI-EPG Document 25 Filed 10/15/21 Page 29 of 41

1 claims against the City. Dismissal of the RA and ADA vicarious liability claims against the City

2 based on the expiration of the statute of limitations is inappropriate.

3 (b) Individual Officers 4 By virtue of the bodycam footage and the presence of the individual officers at the 5 shooting, the Court can accept that all Defendants knew the true state of events at the shooting.

6 Further, the Court will also accept that Plaintiffs did not know of the absence of any game plan for

7 detaining Jackson, that the force used against Jackson was at a time when she was staggering away

8 from the officers and not a danger to anyone, and that a breaching round was erroneously used

9 against Jackson. However, there is a problem with misconduct and reliance.

10 The Court has found for purposes of this Rule 12(b)(6) motion that the City’s October 11 10 press release is misleading and contains a key omission; thus, it constitutes sufficient

12 misconduct for purposes of equitable estoppel. The Complaint identifies no comparable conduct

13 by Bettis, Callahan, and Lamantia. The Complaint indicates that Bettis, Callahan, and Lamantia

14 used force against Jackson and then were interviewed by MPD personnel. No other clear conduct

15 by these officers is alleged. Further, in the absence of an express allegation to the contrary, the

16 Court will not infer that ordinary patrol officers13 determined whether to issue the October 10

17 press release or determined the content of the October 10 press release. The press release is

18 something that appears to be an organizational decision that was made by and is attributable to the

19 MPD and thus, the City.14 Equitable estoppel examines misconduct by a particular defendant that

20 justifies tolling the statute of limitations as to that defendant. The three officers’ silence after the

21 shooting is not sufficient misconduct. In the absence of factual allegations that show misconduct

22 apart from simply remaining silent, or allegations or relevant case authority that would impute the

23 October 10 press release to the officers, the allegations do not demonstrate sufficient misconduct

24 13 The Court in no way is using the term “ordinary patrol officers” in a derogatory sense. Patrol officers perform 25 invaluable services to their communities. The Court uses the term to attempt to convey that the three off icers do not appear to be high enough within a typical law enforcement hierarchy to determine when or if a press release is issued 26 or what the content of the press release may be.

27 14 The Complaint’s allegations suggest that Chief Carroll played a role in t he press release. However, the Court has determined that dismissing the federal claims against Chief Carroll is inappropriate at this time because an accurate 28 accrual date cannot be determined. The Court expresses no opinions at this time regarding Chief Carroll and equitable estoppel.

29 Case 1:21-cv-00415-AWI-EPG Document 25 Filed 10/15/21 Page 30 of 41

1 by the three officers or reasonable reliance on that misconduct by the Plaintiffs. Therefore, the

2 Complaint does not adequately allege equitable estoppel as to Bettis, Callahan, and Lamantia, and

3 dismissal of these three Defendants based on the expiration of the statute of limitations is

4 appropriate.

5 2. Pleading Sufficiency15 6 Defendants argue that the federal claims against chief Carroll are not plausible because 7 there is an insufficient link between Chief Carroll and the use of force against Jackson.

8 As explained above, a supervisor may be liable: (1) for his own culpable action or inaction 9 in the training, supervision, or control of his subordinates; (2) for his acquiescence in the

10 constitutional deprivations of which the complaint is made; or (3) for conduct that showed a

11 reckless or callous indifference to the rights of others.” Keates, 883 F.3d at 1243; Lemire, 726

12 F.3d at 1074.

13 Here, the Complaint plausibly alleges acquiescence. A Shooting Review Board was 14 convened in April 2017, and Chief Carroll was part of that board. The Complaint also alleges that

15 the officers’ bodycams were on and that the shooting of Jackson was recorded. There is no

16 allegation that the Shooting Review Board examined the bodycam videos, but it is reasonably

17 inferred that the videos were reviewed by the board. The unanimous conclusion of the Shooting

18 Review Board was that the shooting was within policy, despite the fact that a breaching round was

19 used against Jackson as her back was turned and she was staggering away from the officers and

20 not posing a threat. Considering the evidence that would have been available to and considered by

21 the Shooting Review Board, Chief Carroll’s membership on that board and apparent agreement

22 that the shooting was “within policy” is sufficient for purposes of this Rule 12(b)(6) motion to

23 plausibly allege acquiescence.

24 15 25 In their reply, Defendants argue for the first time that the Monell allegations, as opposed to the supervisory allegations, are too conclusory and inappropriately rely on prior instances of alleged excessive force. Raising these 26 new issues for the first time in the reply is improper as it gives Plaintiffs no opportunity to respond. Therefore, the Court will not consider Defendants’ arguments relating to the sufficiency of the Estate’s Monell claims. See Mitchell 27 v. United States, 971 F.3d 1081, 1084 n.4 (9th Cir. 2020); Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007); Defazio v. Hollister, 636 F.Supp.2d 1045, 1071 (E.D. Cal. 2009); Association of Irritated Residents v. C&R 28 Vanderham Dairy, 435 F.Supp.2d 1079, 1089 (E.D. Cal. 2006).

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1 Additionally, the Court agrees with Plaintiffs that the Complaint adequately alleges 2 inadequate supervision. The Complaint indicates that no training, policies, or particular

3 supervision were provided for contacts with those impaired due to substances or mental health

4 conditions. Further, the Complaint identifies numerous instances of alleged excessive force that

5 occurred during Chief Carroll’s tenure as police chief as further support for the assertion that

6 Chief Carroll does not adequately supervise his officers’ use of force. 16

7 In sum, the Court does not find that the allegations are too conclusory to plausibly state a 8 claim. Therefore, dismissal of the supervisory claims against Chief Carroll is inappropriate.

9 b. RA and ADA Claims 10 A “disability” is a “physical or mental impairment that substantially limits one or more 11 major life activities of [the] individual [who claims the disability,] or “a record of such an

12 impairment,” or “being regarded as having such an impairment.” 42 U.S.C. § 12102(1); Weaving

13 v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014). The term “major life activities” is non-

14 exclusively defined to include “caring for oneself, performing manual tasks, seeing, hearing,

15 eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading,

16 concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A); Weaving, 763

17 F.3d at 1111. These definitions are to be construed in favor of broad coverage. 42 U.S.C. §

18 12102(4); Weaving, 763 F.3d at 1111. Determining whether an impairment is substantially

19 limiting requires an individualized assessment in comparison to most people in the general

20 population. Weaving, 763 F.3d at 1111.

21 The City contends that the Complaint does not adequately allege that Jackson had a 22 disability. The Complaint alleges that Jackson struggled with mental health and substance abuse

23 issues over the course of several years and that she had an extensive record of law enforcement

24 16 In terms of Chief Carroll’s liability, the Court does not find that instances of excessive force that either pre -date or 25 post-date Chief Carroll’s tenure are relevant. Further, not all of the instances of alleged excessive force are relevant to the claims against either the City or Chief Carroll. For example, the Melgoza case identified in the Complaint ended 26 with a jury verdict that found no Constitutional violations, no battery, and no outrageous conduct, but did find plaintiff to be 80% negligent and the defendant officer to be 20% negligent; $1 was awarded in total damages. See Doc. Nos. 27 70 & 71 in Melgoza v. City of Modesto, 1:11-cv-0066 AWI BAM. Melgoza simply does not aid Plaintiffs. That being said, the Court will not assess each case identified in the Complaint. In the context of this Rule 12(b)(6) motion, it is 28 enough to note that Plaintiffs are supporting part of their supervisory liability and Monell liability claims on prior instances of alleged excessive force, but not all of the cases identified are relevant.

31 Case 1:21-cv-00415-AWI-EPG Document 25 Filed 10/15/21 Page 32 of 41

1 contacts with MPD that included three § 5150 welfare detentions. See Complaint ¶¶ 17, 18. The

2 Complaint also alleges that Jackson was known to MPD to be a disabled woman and that

3 Jackson’s mental health and substance abuse problems substantially limited her ability to care for

4 herself, concentrate, think, and communicate. See id. at ¶¶ 17, 18.

5 The above allegations are sufficient to demonstrate that Jackson had a significant history of 6 mental health and substance abuse problems and that she had multiple interactions with MPD

7 officers over a period of years. The Complaint also adequately identifies major life activities that

8 were affected by Jackson’s mental health and substance abuse problems. However, the Complaint

9 does not adequately describe what Jackson’s mental health problems were, nor does the Complaint

10 adequately allege how her mental health conditions limited any of the identified major life

11 activities. Without allegations that clarify Jackson’s mental health conditions and explain how

12 those conditions affected the identified major life activities, no plausible ADA or RA claim is

13 stated because the allegations do not plausibly suggest that an identified impairment substantially

14 limited a major life activity. See Coates v. Washoe Cnty. Sch. Dist., 2020 U.S. Dist. LEXIS

15 229102, *15-*16 (D. Nev. Dec. 4, 2020); Laface v. E. Suffolk Boces, 2020 U.S. Dist. LEXIS

16 85343, *27-*28 (E.D. N.Y. May 14, 2020); Brooks v. Agate Res., Inc., 2019 U.S. Dist. LEXIS

17 83681, *17-*18 (D. Or. Mar. 25, 2019); Zambrano v. Rite Aid Corp., 2018 U.S. Dist. LEXIS

18 223154, *12-*13 (C.D. Cal. Dec. 21, 2018); McKenna v. Permanente Med. Grp., Inc., 894

19 F.Supp.2d 1258, 1278 (E.D. Cal. 2012). Therefore, dismissal of the ADA and RA causes of

20 action is appropriate. See id.

22 II. State Law Claims – Sixth, Seventh, Eighth, Ninth, & Tenth Causes of Action 23 Defendants’ Arguments 24 Defendants argue that all state law claims are barred by the failure to timely comply with 25 the requirements of the California Government Claims Act. A plaintiff is required to submit a

26 written claim to a government entity within six months of the time his cause of action accrues and

27 must file suit within six months of the entity’s denial of his written claim. The Complaint shows

28 that all state law claims accrued on October 8, 2016, which is the date Plaintiffs knew or should

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1 have known of Jackson’s injuries when she was shot and killed. Plaintiffs did not file a written

2 claim until January 21, 2021, well beyond the applicable six month period.

3 Defendants also argue that the Complaint alleges a single claim for assault and battery 4 even though assault and battery are two distinct torts. Because there is a failure to make distinct

5 allegations that support an assault claim that is separate from a battery claim, the Complaint

6 should be viewed as alleging merely battery.

7 Finally, Defendants argue that the claims against Chief Carroll are barred by Cal. Gov. 8 Code § 820.8.

9 Plaintiffs’ Opposition 10 Plaintiffs argue that the belated discovery rule applies in this case. Although Jackson was 11 shot and killed on October 8, 2016, Plaintiffs did not discover the circumstances giving rise to the

12 claims until November 2020, when they obtained access to the Shooting Review Board (and the

13 access was obtained through the public docket of another case against the City). The failure to

14 discover facts sooner was justified because the Defendants actively and intentionally concealed the

15 bodycam videos and other critical details and stated that the shooting was lawful and justified .

16 With a November 2020 accrual, the January 21, 2021 government claim was timely. Alternatively,

17 for the reasons that equitable estoppel applies to the § 1983 claims, equitable estoppel also applies

18 to the state law claims.

19 With respect to Chief Carroll, Plaintiffs argue that § 820.8 immunity does not apply 20 because the Complaint is attempting to hold him liable for his own conduct as a supervisor, and

21 not vicariously liable for the actions of Bettis, Callahan, and Lamantia.

22 Discussion 23 1. Assault 24 Plaintiffs do not address Defendants’ argument that the battery/assault cause of action 25 should be read as alleging only a battery claim. The torts of “assault” and “battery” conceptually

26 distinct causes of action. Brown v. Ransweiller, 171 Cal.App.4th 516, 523 n.6 (2009). The

27 allegations under the cause of action appear to be more readily susceptible to a battery cause of

28 action because a harmful, offensive, or unwanted touching of Jackson’s person is clearly

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1 implicated. See Conte v. Girard Orthopaedic Surgeons Medical Grp., Inc., 107 Cal.App.4th 1260,

2 1266 (2003) (discussing the nature of a civil battery claim). In the absence of any kind of defense

3 of an assault claim, the Court will dismiss any claim for assault under the seventh cause of action

4 and limit that cause of action to a tortious battery claim. Cf. Culinary Studios, Inc. v. Newsom,

5 517 F.Supp.3d 1042, 1066 (E.D. Cal. 2021) (finding that a plaintiff’s failure to defend a claim in

6 opposition to a motion to dismiss could be viewed as either a concession that no plausible claim

7 was stated or possible abandonment of the claim); Brown, 171 Cal.App.4th at 523 n.6 (viewing a

8 claim for “assault and battery” as one for battery where the plaintiff focused only on the battery

9 cause of action).

10 2. Government Claims Act Limitations Period 11 As a prerequisite for filing suit for “money or damages” against a public entity, the 12 California Government Claim Act requires presentation of a claim to the public entity. See Cal.

13 Gov. Code § 945.4; State of California v. Superior Ct., 32 Cal.4th 1234, 1240-44 (2004)

14 (“Bodde”). Lawsuits that seek monetary relief based on claims sounding in tort, as well as claims

15 sounding in contract, are lawsuits for “money or damages.” See City of Stockton v. Superior

16 Court, 42 Cal.4th 730, 738 (2007); Sparks v. Kern County Bd. of Supervisors, 173 Cal.App.4th

17 794, 798 (2009); Baines Pickwick, Ltd. v. City of Los Angeles, 72 Cal.App.4th 298, 307 (1999).

18 Claims relating to a cause of action for death or injuries to the person or injuries to personal

19 property must be presented no later than six months after the accrual of the cause of action. See

20 Cal. Gov. Code § 911.2(a). The term “injury” means “death, injury to a person, damage to or loss

21 of property, or any other injury that a person may suffer to his person, reputation, character,

22 feelings, or estate, of such nature that it would be actionable if inflicted by a private person.” Cal.

23 Gov. Code § 810.8; Holt v. Kelly, 20 Cal.3d 560, 564 n.4 (1978); Ovando v. County of Los

24 Angeles, 159 Cal.App.4th 42, 63 n.7 (2008). Claims relating to “any other cause of action” must

25 be presented no later than one year after the accrual of the cause of action. See Cal. Gov. Code §

26 911.2(a). “Accrual of the cause of action for purposes of the government claims statute is the date

27 of accrual that would pertain under the statute of limitations applicable to a dispute between

28 private litigants.” Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 208-09 (2007); K.J. v.

34 Case 1:21-cv-00415-AWI-EPG Document 25 Filed 10/15/21 Page 35 of 41

1 Arcadia Unified Sch. Dist., 172 Cal.App.4th 1229, 1234 (2009). The claims presentation

2 requirements also apply to claims against public employees for injuries resulting from his scope of

3 employment as a public employee. See Cal. Gov. Code 950.2; Williams v. Hovarth, 16 Cal.3d

4 834, 838 (1976); Olson v. Manhattan Beach Unified Sch. Dist., 17 Cal.App.5t h 1052, 1055 n.1

5 (2017); Massa v. Southern Cal. Rapid Transit Dist., 43 Cal.App.4th 1217, 1222-23 (1996); Fowler

6 v. Howell, 42 Cal.App.4th 1746, 1750-51 (1996). “Timely claim presentation is not merely a

7 procedural requirement, but is . . . a condition precedent to a plaintiff maintaining an action against

8 [a public entity], and thus [is] an element of the plaintiff’s cause of action.” Shirk, 42 Cal.4th at

9 209; see DiCampli-Mintz v. County of Santa Clara, 55 Cal.4th 983, 991 (2012); Bodde, 32 Cal.4th

10 at 1240. Accordingly, the failure to timely present a claim for money or damages to a public

11 entity bars the plaintiff from bringing suit against that entity or its employee. City of Stockton, 42

12 Cal.4th at 738; Bodde, 32 Cal.4th at 1239; Sparks, 173 Cal.App.4th at 798; Fowler, 42

13 Cal.App.4th at 1753.

14 Under California law, a cause of action accrues at the time when the cause of action is 15 complete with all of its elements. Rubenstein v. Doe no. 1, 3 Cal.5th 903, 911 (2017). Therefore,

16 a cause of action accrues upon the occurrence of the last element of the cause of action. Aryeh v.

17 Canon Bus. Sols., Inc., 55 Cal.4th 1185, 1191 (2013). Under California’s discovery rule,

18 however, accrual may be postponed and the running of the limitations period tolled until the

19 plaintiff either discovers or has reason to discover, the cause of action. Quarry v. Doe 1, 53

20 Cal.4th 945, 960 (2012); Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 807 (2005). A

21 plaintiff has reason to discover a cause of action when he has reason at least to suspect a factual

22 basis for its elements. Quarry, 53 Cal.4th at 960; Fox, 35 Cal.4th at 807. Suspicion of one or

23 more elements of a cause of action, coupled with knowledge of any remaining elements, will

24 generally trigger the statute of limitations period. Quarry, 53 Cal.4th at 960; Fox, 35 Cal.4th at

25 807. The term “elements” is not used in a hyper-technical sense, but refers to the generic elements

26 of wrongdoing, causation, and harm. Fox, 35 Cal.4th at 807; Nguyen v. Western Digital Corp.,

27 229 Cal.App.4th 1522, 1552 (2014). Therefore, courts look to whether the plaintiff has reason to

28 at least suspect that a type of wrongdoing has injured him. Fox, 35 Cal.4t h at 807; Nguyen, 229

35 Case 1:21-cv-00415-AWI-EPG Document 25 Filed 10/15/21 Page 36 of 41

1 Cal.App.4th at 1552. An “injury” in this context means both a person’s physical condition and its

2 wrongful or negligent cause. See Fox, 35 Cal.4th at 808 n.2; Nguyen, 229 Cal.App.4th at 1553.

3 As long as a plaintiff has an adequate suspicion of wrongdoing, he must go find the facts and

4 cannot wait for the facts to find him. Genisman v. Carley, 29 Cal.App.5th 45, 51 (2018).

5 However, if a person only reasonably suspects one type of wrongdoing, the statute of limitations

6 will not begin to run on a wholly different cause of action based on a different type of

7 wrongdoing, the facts of which the person may not yet be aware. See Fox, 35 Cal.4th at 814-15;

8 Rosas v. BASF Corp., 236 Cal.App.4th 1378, 1394 (2015). Issues surrounding the statute of

9 limitations, including accrual and reasonable discovery, are normally questions of fact. See Fox,

10 35 Cal.4th 810; Rosas, 236 Cal.App.4th at 1394; Nguyen, 229 Cal.App.4th at 1552.

11 a. Accrual 12 (1) Survival Claims 13 Four of the five state law claims are brought by the Estate (excessive force under the 14 California constitution, § 52.1, assault/battery, and negligence). Plaintiffs attempt to argue an

15 accrual date for the survival claims based on their own knowledge and suspicions. Plaintiffs cite

16 no authority in support of their implied premise that accrual in a survival case is measured by what

17 the estate’s representative knew or suspected, as opposed to what the decedent knew or suspected.

18 However, as survival actions, these claims existed before Jackson died, survived her death, and are

19 brought by the Estate on her behalf. See Brenner, 12 Cal.App.5th at 605 & n.9; Dominguez, 118

20 Cal.App.3d at 243; Adams, 196 Cal.App.4th at 78; Quiroz, 140 Cal.App.4th at 1264; see also

21 Ruiz, 50 Cal.4th at 850 n.3. In the absence of contrary authority cited by Plaintiffs, the Court will

22 examine what Jackson (not Plaintiffs) would have known or suspected for purposes of accrual of

23 the survival claims.

24 In this case, Jackson would have been aware of the conduct of the officers as well as the 25 physical injuries she suffered by the officers’ use of force, including Bettis’s use of a breaching

26 round, on October 8, 2016. That is, Jackson would have known or at least suspected a number of

27 wrongful acts by the officers caused her an injury on October 8. Therefore, the Court concludes

28 that the state law survival claims alleged against Bettis, Callahan, and Lamantia, as well as the

36 Case 1:21-cv-00415-AWI-EPG Document 25 Filed 10/15/21 Page 37 of 41

1 vicarious liability theory against the City for these three officers’ conduct, accrued on October 8,

2 2016.

3 With respect to Chief Carroll, the state law claims alleged against him are essentially based 4 on his supervision of MPD police officers. As with the federal claims alleged against him, the

5 Court cannot determine in the context of this Rule 12(b)(6) motion when Jackson had at least a

6 suspicion that she was harmed by the alleged inadequate supervision and training of MPD officers.

7 Jackson clearly suffered physical injuries at the hands of individual officers and would have

8 clearly known or at least suspected that wrongdoing in the form negligence or “excessive force”

9 by those officers injured her. However, the parties do not adequately address what Jackson would

10 have known or suspected about Chief Carroll’s own culpable conduct in causing her injuries.

11 Therefore, the Court cannot determine an accrual date at this time for the state law claims against

12 Chief Carroll or the vicarious liability theories against the City for Chief Carroll’s conduct.

13 (2) Tenth Cause of Action- Wrongful Death 14 California’s wrongful death statute (Cal. Code Civ. P. § 377.60) “creates a new cause of 15 action in favor of the heirs as beneficiaries, based upon their own independent pecuniary injury

16 suffered by loss of a relative, and distinct from any the deceased might have maintained had he

17 survived.” Ruiz, 50 Cal.4t h at 844; Horwich v. Superior Ct., 21 Cal.4th 272, 283 (1999). “[A]

18 wrongful death action has its own statute of limitations, which runs from the date of death rather

19 than any antecedent injury.” Horwich v. Superior Ct., 21 Cal.4th 272, 283 (1999); see also

20 Scroggs v. Coast Cmty. Coll. Dist., 193 Cal.App.3d 1399, 1403 (1987) (“The longstanding rule is

21 that a wrongful death action is a separate and distinct right belonging to the heirs, and it does not

22 arise until the death of the decedent.”). In this case, Jackson died on October 8, 2016. Therefore,

23 the statute of limitations began to run on October 8, 2016. Horwich, 21 Cal.4th at 283.

24 b. Equitable Estoppel17 25 The parties make no arguments that are substantively different with respect to equitable 26 estoppel for the federal and state claims. Indeed, the same standard for equitable estoppel applies

27 17The Court notes that Plaintiffs did not raise the issue of equitable tolling with respect to the state law claims. 28 Recent California a uthority holds that the doctrine of equitable tolling cannot be invoked to suspend § 911.2’s six - month deadline for filing a government claim. Willis v. City of Carlsbad, 48 Cal.App.5th 1104, 1121 (2020).

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1 to both the state and § 1983 claims. Therefore, the Court’s analysis is the same. With respect to

2 Bettis, Lamantia, and Callahan, there is a failure to sufficiently allege misconduct and reliance.

3 With respect to the City, there is sufficient misconduct alleged through the October 10, 2016 press

4 release, and the press release combined with the Plaintiffs’ knowledge of Jackson’s mental health

5 history and existing condition at the time of the shooting present factual questions that the Court

6 cannot resolve in the context of Rule 12(b)(6). Therefore, dismissal of the claims against Bettis,

7 Callahan, and Lamantia based on the expiration of the statute of limitations is appropriate, but

8 dismissal of the claims against the Chief Carroll and the vicarious liability claims against the City

9 is inappropriate.

10 3. Vicarious Liability Immunity 11 Chief Carroll contends that he is entitled to immunity under Cal. Gov’t Code § 820.8. That 12 section provides in relevant part that, except as may otherwise be provided by statute, “a public

13 employee is not liable for an injury caused by the act or omission of another person.” Cal. Gov’t

14 Code § 820.8. Section 820.8, however, does not shield a public employee from his own allegedly

15 wrongful acts. Id. (“Nothing in this section exonerates a public employee from liability for injury

16 proximately caused by his own negligent or wrongful act.”); Weaver v. State of California, 63

17 Cal.App.4th 188, 202 (1998). Section 820.8 has been held to be inapplicable to claims against a

18 supervisor for his own improper or negligent supervision and training. E.g. Rodriguez v. County

19 of L.A., 891 F.3d 776, 799 (9th Cir. 2018); Figueroa v. Kern Cty., 2021 U.S. Dist. LEXIS 41068,

20 *22-*23 (E.D. Cal. Mar. 3, 2021) (and cases cited therein).

21 Here, the Court does not read any of the state law claims as attempting to allege vicarious 22 liability against Chief Carroll. The Complaint expressly alleges when it relies on vicarious

23 liability, and those instances involve holding the City vicariously liable for the acts of its police

24 officers. The Court reads the Complaint as alleging state law claims against Chief Carroll based

25 on his own actions in supervising and training his officers. Therefore, § 820.8 has no application

26 to this case, and dismissal due to application of § 820.8 is inappropriate. See Rodriguez, 891 F.3d

27 at 799; Figueroa v. Kern Cty., 2021 U.S. Dist. LEXIS 41068 at *22-*23.

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1 III. AMENDMENT & ADDITIONAL ISSUES 2 The Court is dismissing all claims against Bettis, Callahan, and Lamantia due to the 3 expiration of the statute of limitations. Leave to amend is the general rule. See Ebner, 838 F.3d at

4 962. Because the Court cannot determine whether amendment would necessarily be futile, the

5 Court will dismiss the claims against these Defendants with leave amend. Any amendments must

6 address the statute of limitations related problems identified in this order. Further, as part of the

7 amendment process, if Plaintiffs can allege additional facts to support their own diligence, they

8 should do so.

9 The Court is also dismissing the RA and ADA claims against the City as implausibly pled. 10 Because it is not clear that amendment would futile, dismissal will be with leave to amend.

11 The Court is also dismissing the assault cause of action because Plaintiffs did not defend 12 the claim. Since Plaintiffs did not defend the claim, any amended complaint should not include an

13 assault cause of action and should be limited to alleging battery only.

14 Additionally, the Complaint names both the City and MPD as separate defendants. The 15 MPD is an agency or sub-unit of the City. The Court is aware of no utility or purpose in naming

16 both the City and the MPD as separate defendants in this case. Therefore, the Court will dismiss

17 the MPD as an unnecessary and redundant party. Any amended complaint shall simply name the

18 City as a defendant.18 Further, Plaintiffs should reconsider their reliance on the numerous

19 instances of alleged excessive force and prune any case that does not actually support Monell or

20 supervisory liability, such as the Melgoza case.

21 Apart from whether leave to amend is granted or denied, the Court has two concerns that 22 have been raised through the briefing process, but not actually addressed in the briefs. First, the

23 briefing has raised the possibility that a number of the claims at issue may have accrued in

24 November 2020. A survival claim involves a claim that existed and accrued before death. See

25 George, 736 F.3d at 833 n.6; Tatum, 441 F.3d at 1093 n.2; Smith, 818 F.2d at 1416; Runyan,

26 18If Plaintiffs have a legitimate and legally relevant basis for naming both the City and its sub-unit the MPD as 27 separate defendants in this action, then Plaintiffs may file a motion for reconsideration. The motion must be supported by citation to relevant authority and explain why Plaintiffs wish to p ursue claims against both the City and 28 the MPD. Otherwise, the Court remains of the position that naming a municipality and its sub -unit/agency as separate defendants in the same case is an unnecessary redundancy that leads to unnecessary inefficiencies a nd complications.

39 Case 1:21-cv-00415-AWI-EPG Document 25 Filed 10/15/21 Page 40 of 41

1 54Cal.4th at 861-62; see also Cal. Code Civ. Proc. §§ 366.1, 377.20. If Plaintiffs’ position is

2 correct that November 2020 is the proper accrual date for many of the claims, then those claims

3 accrued about four years after Jackson’s death. Those claims would not have belonged to Jackson,

4 and her Estate could not pursue them. See id. In the amendment process, Plaintiffs need to be

5 cognizant of when a claim truly accrued, and whether the claim can be properly pursued by the

6 Estate.

7 Second, the Complaint acknowledges that Jackson was drunk, may have been suicidal, and 8 approached the officers with multi-colored knives in her hands. Importantly, the Complaint

9 alleges that after Lamantia fired his first pistol shot and Callahan discharged his taser, Jackson

10 dropped the knives, turned, and began to stagger away; it was at that point that Jackson was

11 allegedly no longer a threat to the officers or anyone else. See Complaint at ¶¶ 41-49. There are

12 no allegations regarding whether officers gave orders for Jackson to stop or whether Lamantia

13 gave a warning when one was feasible that he would use his pistol if Jackson did not stop.

14 Nevertheless, the allegations suggest that Jackson was a real threat to the officers at least as of the

15 time that Callahan discharged his taser and Lamantia fired his first round. Cf. Booke v. County of

16 Fresno, 98 F.Supp.3d 1103, 1117 (E.D. Cal. 2015) (discussing considerations applicable to a use

17 of force). A taser is considered a less-lethal force option that temporarily immobilizes a suspect.

18 See Bryan v. MacPherson, 630 F.3d 805, 825-26 (9th Cir. 2010) (describing tasers); Sanders v.

19 City of Fresno, 551 F.Supp.2d 1149, 1168 (E.D. Cal. 2008) (same). Its use would seem to fit a

20 situation such as the one confronting Callahan. If the Estate wishes to pursue excessive force

21 claims based on Lamantia’s first pistol shot and/or Callahan’s use of a taser, then additional

22 factual allegations that demonstrate the unreasonableness of those two uses of force should be

23 included in any amended complaint.19

24 //

25 //

26 //

27 19 The Court may raise pleading inadequacies sua sponte. See Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981). 28

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1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Defendant Lamantia’s motion to dismiss (Doc. No. 16) is GRANTED and all claims 4 alleged against him are DISMISSED with leave to amend, except for the assault claim 5 which is dismissed without leave to amend; 6 2. Defendants the City of Modesto, Bettis, Callahan, and Carroll’s motion to dismiss (Doc. 7 No. 9) is GRANTED in part as follows: 8 a. All claims alleged against Defendants Bettis and Callahan are DISMISSED with 9 leave to amend, except for the assault claim which is dismissed without leave to 10 amend; 11 b. The Estate’s Rehabilitation Act and Americans with Disabilities Act causes of 12 action are DISMISSED with leave to amend; 13 c. The assault claim is DISMISSED without leave to amend; 14 3. Defendant Modesto Police Department is DISMISSED as an unnecessary and redundant 15 party; 16 4. Defendants the City of Modesto, Bettis, Callahan, and Carroll’s motion to dismiss is 17 otherwise DENIED; 18 5. Plaintiffs may file an amended complaint consistent with the analysis of this order within 19 twenty-eight (28) days of service of this order; 20 6. If Plaintiffs fail to file a timely amended complaint, then leave to amend will be withdrawn 21 without further notice, Defendants Bettis, Callahan, and Lamantia will be terminated from 22 this case, and the remaining Defendants shall file an answer within forty-two (42) days of 23 service of this order. 24 IT IS SO ORDERED. 25

26 Dated: October 14, 2021 SENIOR DISTRICT JUDGE 27