Joe Kang v. Officer Michael Wheelus; Officer Jolene Thim; City of San Diego; Officer Bruno Lopes Contreras Silva

• Court: District Court, S.D. California
• Decided: October 24, 2025
• Docket: 3:25-cv-01621
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOE KANG, Case No.: 25-cv-1621-JES-KSC

12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 14 OFFICER MICHAEL WHEELUS;

OFFICER JOLENE THIM; CITY OF 15 [ECF No. 9] SAN DIEGO; and OFFICER BRUNO 16 LOPES CONTRERAS SILVA, 17 Defendants. 18 19 Plaintiff Joe Kang (“Plaintiff”) brings this action against Defendants Michael 20 Wheelus, Jolene Thim, Bruno Lopes Contreras Silva, and the City of San Diego 21 (“Defendants”), alleging various causes of action arising from his arrest at his home. ECF 22 No. 3 (“FAC”). Defendants move to dismiss Plaintiff’s complaint pursuant to Federal Rule 23 of Civil Procedure 12(b)(6). ECF No. 9 (“Mot.”). Plaintiff filed an opposition and 24 Defendants filed a reply. ECF Nos. 16, 18. Plaintiff also filed an Amended Request for 25 Judicial Notice. ECF No. 17. On October 22, 2025, the Court heard oral argument on the 26 motion. ECF No. 20. For the reasons stated herein, Defendants’ motion is GRANTED IN 27 PART AND DENIED IN PART, and Plaintiff is given leave to amend. 28 /// 1 I. BACKGROUND 2 The claims in this action arise from Plaintiff’s arrest by San Diego police officers at 3 his home. FAC ¶ 2. On June 25, 2023, Defendant Officers Wheelus, Thim, and Silva 4 responded to a domestic violence call at Plaintiff’s home. Id. Plaintiff states that the call 5 was based on false allegations following a fight within his family. Id. ¶¶ 15-19. Defendant 6 answered the door for the officers, and Officer Wheelus instructed him to step outside. Id. 7 ¶¶ 20-21. Officer Wheelus asked Plaintiff what was happening, and Plaintiff responded 8 that his daughter threw a chair at him and he was yelling at her as a result. Id. ¶ 23. 9 Plaintiff states that he then turned to retrieve his slippers, and Officer Wheelus 10 moved to handcuff him. Id. ¶ 26. Plaintiff alleges that Officers Wheelus and Thim twisted 11 Plaintiff’s arms violently, causing bruising, despite Plaintiff complying with being 12 handcuffed. Id. ¶¶ 26-28. Plaintiff states that he screamed and yelled that the officers were 13 breaking his arm. Id. ¶ 29. Plaintiff states that the officers then slammed his head against 14 the wall near his front door so forcefully that it caused a concussion and neck injury. Id. ¶ 15 30. 16 The officers escorted Plaintiff towards their patrol car. Id. ¶ 32. Plaintiff states that 17 the officers yanked and pulled his arms and threw him down on his lawn on the way to the 18 car, causing a back injury. Id. ¶ 33. Plaintiff states that his memory became fragmented 19 following being thrown to the ground due to head trauma and concussion. Id. ¶ 35. Plaintiff 20 states that he was then placed in the patrol car, and one of the officers reached behind his 21 back and squeezed the handcuffs so tightly that they cut through his skin, causing bleeding 22 and severe pain. Id. ¶ 35. 23 Plaintiff states that his wife, Young Kang, gave statements during the incident to 24 Officer Silva indicating that he had not been intentionally violent. Id. ¶ 38. Plaintiff was 25 transported to the emergency room and then to jail. Id. ¶ 41. Plaintiff states that he has 26 suffered significant injuries, costs, loss of work due to this incident, and public humiliation 27 and embarrassment. Id. ¶¶ 45, 47-49. 28 /// 1 II. LEGAL STANDARD 2 A motion to dismiss for failure to state a claim should be granted when the 3 allegations do not “state a claim to relief that is plausible on its face.” Aschroft v. Iqbal, 4 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 5 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 6 court to draw the reasonable inference that the defendant is liable for the misconduct 7 alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard ... asks 8 for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epsten 9 Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (internal quotation marks omitted). 10 When evaluating the sufficiency of a complaint's factual allegations, the court must 11 accept as true all well-pleaded material facts alleged in the complaint and construe them in 12 the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 13 1136, 1140 (9th Cir. 2012); see Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th 14 Cir. 2010). Allegations in a complaint “may not simply recite the elements of a cause of 15 action, but must contain sufficient allegations of underlying facts to give fair notice and to 16 enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 17 (9th Cir. 2011). While the court must draw all reasonable inferences from the factual 18 allegations in favor of the plaintiff, Newcal Industries, Inc. v. Ikon Office Solution, 513 19 F.3d 1038, 1043 n.2 (9th Cir. 2008), the court need not credit legal conclusions that are 20 couched as factual allegations, Iqbal, 556 U.S. at 678-79. 21 When a court dismisses a complaint under FRCP 12(b)(6), it must then decide 22 whether to grant leave to amend. FRCP 15(a) provides that a district court should “freely 23 give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a). A district court has 24 discretion to deny leave to amend when a proposed amendment would be futile. Chappel 25 v. Lab. Corp. of America, 232 F.3d 719, 725-26 (9th Cir. 2000). Dismissal without leave 26 to amend is appropriate only when the Court is satisfied that the deficiencies of the 27 complaint could not possibly be cured by amendment. Jackson v. Carey, 353 F.3d 750, 758 28 (9th Cir. 2003). In other words, if allowing a party to amend its pleading would be futile, 1 district courts properly decline to grant leave to amend. Thinket Ink Info. Res., Inc. v. Sun 2 Microsys., Inc., 368 F.3d 1053, 1061 (9th Cir. 2004) (citing Saul v. United States, 928 F.2d 3 829, 843 (9th Cir. 1991)). 4 III. DISCUSSION 5 A. Monell Liability 6 Defendants argue that Plaintiff does not state a claim for Monell liability because (1) 7 Monell is not an independent cause of action and (2) Plaintiff has not sufficiently alleged 8 Monell liability against the city. Mot. at 3, 8. 9 In Monell, the Supreme Court held that local governments can be held liable under 10 42 U.S.C. § 1983 for injuries caused by their officers’ unconstitutional actions when those 11 injuries result from official policy or custom attributable to the government. Monell v. 12 Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Defendants cite Krystal v. City of Carlsbad 13 for the proposition that “[Monell] does not, however, stand alone as a cause of action,” and 14 therefore Plaintiff’s Monell claim is subject to dismissal. Mot. at 3; No. 22-cv-1329-BAS- 15 JLB, 2023 WL 3829718, at *2 (S.D. Cal. Jun. 5, 2023). This citation is misleading without 16 the sentence that follows: “If the Court dismisses all other causes of action, then it must 17 also dismiss Plaintiff’s ‘Monell’ claim.” Id. This section of this case stands only for the 18 unremarkable notion that a Monell claim is not viable against a city if a plaintiff has not 19 suffered an underlying constitutional injury. Here, Plaintiff states underlying injuries that 20 are typical of excessive force claims, but does not explicitly state the basis for his Monell 21 claim. FAC ¶¶ 68-78, 89-111. At the motion hearing, Plaintiff conceded that he did not 22 explicitly state the grounds for his Monell claim and requested leave to amend. The Court 23 therefore GRANTS Defendants’ motion to dismiss Plaintiff’s second cause of action, but 24 grants Plaintiff leave to amend to clearly state the underlying constitutional injury upon 25 which his Monell claim is based. 26 Defendants also argue that Plaintiff’s Monell claim is subject to dismissal because 27 Plaintiff alleges insufficient evidence of the City’s custom or policy that led to his injury. 28 1 Mot. at 8. Monell caselaw shows three theories of liability under which a plaintiff may 2 proceed against a local government body: “(1) the constitutional violation was the result of 3 a governmental policy or a longstanding practice or custom; (2) the individual who 4 committed the constitutional violation was an official with final policy-making authority; 5 or (3) an official with final policy-making authority ratified the unconstitutional act.” 6 Perryman v. City of Pittsburg, 545 F. Supp. 3d 796, 799 (N.D. Cal. 2021). To show a 7 custom or practice entitled to the presumption of truth in a motion to dismiss, a complaint 8 must contain “sufficient allegations of underlying facts to give fair notice and to enable the 9 opposing party to defend itself effectively” and those facts, taken as true, “must plausibly 10 suggest an entitlement to relief.” AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 11 637 (9th Cir. 2012). 12 Here, Plaintiff alleges a pattern of excessive force by the San Diego Police 13 Department based on a 2016 Department of Justice report, external evaluations of the 14 department, and past instances of police misconduct. FAC ¶¶ 81-83. Plaintiff alleges that 15 the City was on notice of these issues from prior reports of police misconduct and 16 settlements against the Department, and that their failure to adequately train, supervise, and 17 discipline officers led to his injury. Id. ¶¶ 80-81. The Court finds Plaintiff’s allegations 18 give enough notice on his claims for the Defendant City to defend itself, and that his claims, 19 taken as true, plausibly suggest an entitlement to relief. See AE ex rel. Hernandez, 666 F3d 20 at 637. Plaintiff has thus pled a policy or custom entitled to the presumption of truth in a 21 motion to dismiss. As the Monell claims are dismissed with leave to amend on other 22 grounds, Plaintiff is free to amend and add additional allegations showing the policy or 23 custom he alleges and how it is connected to his specific claims, including the prior 24 incidents Plaintiff argued in his opposition that were included in documents Plaintiff 25 requests the Court take judicial notice. 26 B. False Arrest and False Imprisonment 27 Defendants argue that Plaintiff’s false arrest and false imprisonment claims should 28 be dismissed because (1) they are the same cause of action by different names and may not 1 be pled together, and (2) the police officers had probable cause to arrest him based on his 2 own recitation of facts. Mot. at 4. Defendants are correct in their first argument. In 3 California, “‘false arrest’ and ‘false imprisonment’ are not separate torts. False arrest is but 4 one way of committing a false imprisonment, and they are distinguishable only in 5 terminology.” Collins v. City and County of San Francisco, 50 Cal.App.3d 671, 673 6 (1975). Plaintiff may therefore plead either one of these causes of action, but not the same 7 cause of action twice by different names. Defendant’s motion to dismiss is thus 8 GRANTED on this basis, and Plaintiff is given leave to amend to select under which of 9 the two causes of action he wishes to proceed. 10 Defendant also argues that Plaintiff’s recitation of facts does not state a claim for 11 either cause of action because the facts in the FAC shows that the officer’s had probable 12 cause for his arrest. Mot. at 5. A warrantless arrest of an individual in a public place for a 13 felony, or a misdemeanor committed in the officer's presence, is consistent with the Fourth 14 Amendment if the arrest is supported by probable cause. Maryland v. Pringle, 540 U.S. 15 366, 370 (2003). Probable cause is difficult to define and determined based upon the 16 totality of circumstances in a case, including “the factual and practical considerations of 17 everyday life.” Illinois v. Gates, 462 U.S. 213, 231 (1983). However, in all cases, “[t]he 18 substance of all the definitions of probable cause is a reasonable ground for belief of guilt, 19 and that the belief of guilt must be particularized with respect to the person to be searched 20 or seized.” Pringle, 540 U.S. at 371 (internal quotations and citations omitted). 21 Here, Plaintiff states that he was arrested despite his and his wife’s statements that 22 the 911 call was a false claim against him by his daughter. FAC ¶¶ 23, 38, 43-44. Plaintiff 23 alleges that the officers actually knew of Plaintiff’s wife’s “unequivocal, exonerating 24 statement from the supposed victim,” yet arrested him “[i]n a deliberate act of legal fiction 25 designed to cover for their violent conduct.” Id. ¶ 44. Taken as true, as required in ruling 26 on a motion to dismiss, these statements are sufficient to allege that the officers did not 27 have probable cause to arrest Plaintiff. 28 /// 1 C. Deliberate Indifference to Medical Care 2 Defendants argue that Plaintiff’s deliberate indifference claim should be dismissed 3 because Defendant officers met their obligation by ensuring that Plaintiff received medical 4 care. Mot. at 6. 5 “[F]or persons who are detained by police in the course of an arrest, the Fourth 6 Amendment’s prohibition on the use of excessive force protects against the deprivation of 7 necessary medical care.” D’Braunstein v. California Highway Patrol, 131 F.4th 764, 769 8 (9th Cir. 2025) (citing Tatum v. City & Cnty. of S.F., 441 F.3d 1090, 1098-99 (9th Cir. 9 2006)). Under the Fourth Amendment “objectively reasonable post-arrest care,” is 10 required, meaning officers must “seek the necessary medical help or by taking the injured 11 detainee to a hospital.” D’Braunstein, 131 F.4th at 769 (internal citations and quotations 12 omitted). But this does not “require an officer to provide what hindsight reveals to be the 13 most effective medical care for an arrested suspect.” Id.; see Tatum, 441 F.3d at 1099 14 (officers who promptly requested an ambulance for an arrestee, but did not perform CPR 15 on him, acted in an objectively reasonable manner.). 16 Here, Plaintiff states that he was treated by emergency medical technicians 17 (“EMTs”) who were called to the scene. FAC ¶ 36. He argues that the EMTs’ assessment 18 was “brief and inadequate,” and that the officers thus failed to ensure that he received 19 adequate medical treatment. Id. However, the duty of the officers was to ensure that 20 Plaintiff received necessary medical help, not to ensure the adequacy of that treatment. See 21 D’Braunstein, 131 F.4th at 769. The officers’ conduct was objectively reasonable as they 22 sought the necessary medical help for Plaintiff. To hold otherwise would hold police 23 officers responsible for the errors of healthcare providers. The officers here met their duty 24 by ensuring that Plaintiff was treated by EMTs. The Plaintiff conceded this point at the 25 hearing on this motion. The motion to dismiss Plaintiff’s fifth cause of action is therefore 26 GRANTED without leave to amend. 27 /// 28 /// 1 D. Judicial Notice 2 Plaintiff requests judicial notice of documents supporting his Monell allegations. 3 ||ECF No. 17. Several of the documents are public records in which the Court can take 4 ||judicial notice. However, in light of the deficiencies noted above regarding the Monell 5 ||claim, and Plaintiff's request for leave to amend, the Court DENIES as moot the request 6 || to take judicial notice of the documents. As mentioned above, Plaintiff may incorporate 7 || facts from the public records into his amended complaint. 8 IV. CONCLUSION 9 For the foregoing reasons, Defendant’s motion to dismiss is GRANTED IN PART 10 || AND DENIED IN PART with leave to amend the Monell claim, and the false 11 |;/imprisonment or false arrest claim. Recognizing that Plaintiff may retain counsel per his 12 recent motion (ECF No. 19), the Court grants Plaintiff 90 days from the date of this Order 13 file his amended complaint. 14 IT IS SO ORDERED. 15 || Dated: October 24, 2025

17 Honorable James E. Sunmons Jr. 18 United States District Judge 19 20 21 22 23 24 25 26 27 28