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 DENYING DEFENDANTS’ 13 v. MOTION TO DISMISS
14 OFFICER MICHAEL WHEELUS; [ECF Nos. 24, 25] OFFICER JOLENE THIM; CITY OF 15 SAN DIEGO; and OFFICER BRUNO 16 LOPES CONTRERAS SILVA, 17 Defendants. 18 19 Pro se Plaintiff Joe Kang (“Plaintiff”) brings this action against Defendants Officers 20 Michael Wheelus (“Officer Wheelus”), Jolene Thim (“Officer Thim”), Bruno Lopes 21 Contreras Silva (“Officer Silva”), and the City of San Diego (“Defendants”), alleging 22 various causes of action arising from his arrest at his home. ECF No. 23 (“SAC”). As 23 Plaintiff’s First Amended Complaint (ECF No. 3) was previously dismissed in part by this 24 Court (ECF No. 22), the Second Amended Complaint is now the operative complaint in 25 this matter. See id. 26 Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). 27 ECF No. 24-1 (“Mot.”). Plaintiff filed an opposition and Defendants filed a reply. ECF 28 Nos. 25 (“Opp’n”), 27 (“Reply”). Plaintiff also filed a Request for Judicial Notice. ECF 1 No. 26. On March 25, 2026, the Court heard oral argument on the motion. ECF No. 29. 2 For the reasons stated herein, Defendants’ motion is DENIED. 3 I. BACKGROUND 4 The claims in this action arise from Plaintiff’s arrest by San Diego police officers at 5 his home. SAC ¶ 2. On June 25, 2023, Defendant Officers Wheelus, Thim, and Silva 6 responded to a domestic violence call at Plaintiff’s home. Id. Plaintiff states that the call 7 was based on false allegations following a fight within his family. Id. ¶¶ 15-18. Plaintiff 8 answered the door for the officers, and Officer Wheelus instructed him to step outside. Id. 9 ¶¶ 20-21. Officer Wheelus asked Plaintiff what was happening, and Plaintiff responded 10 that his daughter threw a chair at him and he was yelling at her as a result. Id. ¶ 22. 11 Plaintiff states that he then turned to retrieve his slippers, and Officer Wheelus 12 moved to handcuff him. Id. ¶¶ 24-25. Plaintiff alleges that Officers Wheelus and Thim 13 twisted Plaintiff’s arms violently, causing bruising to his elbow joints, despite Plaintiff 14 complying with being handcuffed. Id. ¶ 26. Plaintiff states that he screamed and yelled that 15 the officers were breaking his arm. Id. ¶ 27. Plaintiff states that the officers then slammed 16 his head against the wall near his front door so forcefully that it caused a concussion and 17 neck injury. Id. ¶ 28. 18 The officers escorted Plaintiff towards their patrol car. Id. ¶ 30. Plaintiff states that 19 the officers threw him down on the lawn twice, causing a back injury. Id. ¶ 31. Plaintiff 20 states that his memory became fragmented following being thrown to the ground due to 21 head trauma and a concussion. Id. ¶ 33. Plaintiff states that he was then placed in the patrol 22 car, and one of the officers reached behind his back and squeezed the handcuffs so tightly 23 that they cut through his skin, causing bleeding and severe pain, despite him repeatedly 24 saying the handcuffs were cutting him. Id. ¶ 34. 25 Plaintiff states that his wife, Young Kang, gave statements during the incident to 26 Officer Silva indicating that he had not been intentionally violent. Id. ¶ 36. Plaintiff was 27 transported to the emergency room and then to jail. Id. ¶ 40. Plaintiff states that he has 28 1 suffered significant injuries, costs, loss of work due to this incident, and public humiliation 2 and embarrassment. Id. ¶¶ 54-57. 3 II. LEGAL STANDARD 4 A motion to dismiss for failure to state a claim should be granted when the 5 allegations do not “state a claim to relief that is plausible on its face.” Aschroft v. Iqbal, 6 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 7 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 8 court to draw the reasonable inference that the defendant is liable for the misconduct 9 alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard ... asks 10 for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epsten 11 Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (internal quotation marks omitted). 12 When evaluating the sufficiency of a complaint's factual allegations, the court must 13 accept as true all well-pleaded material facts alleged in the complaint and construe them in 14 the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 15 1136, 1140 (9th Cir. 2012); see Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th 16 Cir. 2010). Allegations in a complaint “may not simply recite the elements of a cause of 17 action, but must contain sufficient allegations of underlying facts to give fair notice and to 18 enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 19 (9th Cir. 2011). While the court must draw all reasonable inferences from the factual 20 allegations in favor of the plaintiff, Newcal Industries, Inc. v. Ikon Office Solution, 513 21 F.3d 1038, 1043 n.2 (9th Cir. 2008), the court need not credit legal conclusions that are 22 couched as factual allegations, Iqbal, 556 U.S. at 678-79. 23 III. DISCUSSION 24 In the motion to dismiss, Defendants challenge only Count 4 of the Complaint. See 25 generally, Mot. Defendants argue that Count 4 is improperly pled as a stand-alone Monell 26 claim, and that Plaintiff states insufficient factual allegations to support ratification of 27 excessive force as required for Monell. Mot. at 3-6. The Court examines these arguments 28 below. 1 A. Monell Cause of Action 2 Defendants argue that Plaintiff does not state a claim for Monell liability because 3 Monell is not an independent cause of action. Mot. at 3-4. Plaintiff argues that he has stated 4 the underlying constitutional claim for his Monell action, and that it is properly pled. Opp’n 5 ¶¶ 13-15. Plaintiff is correct. 6 Defendants cite Segal v. City of New York, 459 F.3d 207 (2006), to argue that 7 Plaintiff’s claim fails because he does not separately raise a claim of failure to train. Mot. 8 at 4. In Segal, the court explained, “Monell does not provide a separate cause of action for 9 the failure by the government to train its employees; it extends liability to a municipal 10 organization where that organization's failure to train, or the policies or customs that it has 11 sanctioned, led to an independent constitutional violation.” 459 F. 3d at 219. In Segal, the 12 underlying constitutional claim was a due process violation in an employment case. Id. 13 When the underlying claim failed, the Monell claim failed. Id. The court held that 14 “[b]ecause the district court properly found no underlying constitutional violation, its 15 decision not to address the municipal defendants' liability under Monell was entirely 16 correct.” Id. That is to say, as the Court explained in its previous order, a Monell claim fails 17 if the underlying constitutional violation fails. ECF No. 22 at 4. Nowhere does Segal 18 suggest that the underlying violation must be pled as failure to train. 459 F. 3d at 219.
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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 DENYING DEFENDANTS’ 13 v. MOTION TO DISMISS
14 OFFICER MICHAEL WHEELUS; [ECF Nos. 24, 25] OFFICER JOLENE THIM; CITY OF 15 SAN DIEGO; and OFFICER BRUNO 16 LOPES CONTRERAS SILVA, 17 Defendants. 18 19 Pro se Plaintiff Joe Kang (“Plaintiff”) brings this action against Defendants Officers 20 Michael Wheelus (“Officer Wheelus”), Jolene Thim (“Officer Thim”), Bruno Lopes 21 Contreras Silva (“Officer Silva”), and the City of San Diego (“Defendants”), alleging 22 various causes of action arising from his arrest at his home. ECF No. 23 (“SAC”). As 23 Plaintiff’s First Amended Complaint (ECF No. 3) was previously dismissed in part by this 24 Court (ECF No. 22), the Second Amended Complaint is now the operative complaint in 25 this matter. See id. 26 Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). 27 ECF No. 24-1 (“Mot.”). Plaintiff filed an opposition and Defendants filed a reply. ECF 28 Nos. 25 (“Opp’n”), 27 (“Reply”). Plaintiff also filed a Request for Judicial Notice. ECF 1 No. 26. On March 25, 2026, the Court heard oral argument on the motion. ECF No. 29. 2 For the reasons stated herein, Defendants’ motion is DENIED. 3 I. BACKGROUND 4 The claims in this action arise from Plaintiff’s arrest by San Diego police officers at 5 his home. SAC ¶ 2. On June 25, 2023, Defendant Officers Wheelus, Thim, and Silva 6 responded to a domestic violence call at Plaintiff’s home. Id. Plaintiff states that the call 7 was based on false allegations following a fight within his family. Id. ¶¶ 15-18. Plaintiff 8 answered the door for the officers, and Officer Wheelus instructed him to step outside. Id. 9 ¶¶ 20-21. Officer Wheelus asked Plaintiff what was happening, and Plaintiff responded 10 that his daughter threw a chair at him and he was yelling at her as a result. Id. ¶ 22. 11 Plaintiff states that he then turned to retrieve his slippers, and Officer Wheelus 12 moved to handcuff him. Id. ¶¶ 24-25. Plaintiff alleges that Officers Wheelus and Thim 13 twisted Plaintiff’s arms violently, causing bruising to his elbow joints, despite Plaintiff 14 complying with being handcuffed. Id. ¶ 26. Plaintiff states that he screamed and yelled that 15 the officers were breaking his arm. Id. ¶ 27. Plaintiff states that the officers then slammed 16 his head against the wall near his front door so forcefully that it caused a concussion and 17 neck injury. Id. ¶ 28. 18 The officers escorted Plaintiff towards their patrol car. Id. ¶ 30. Plaintiff states that 19 the officers threw him down on the lawn twice, causing a back injury. Id. ¶ 31. Plaintiff 20 states that his memory became fragmented following being thrown to the ground due to 21 head trauma and a concussion. Id. ¶ 33. Plaintiff states that he was then placed in the patrol 22 car, and one of the officers reached behind his back and squeezed the handcuffs so tightly 23 that they cut through his skin, causing bleeding and severe pain, despite him repeatedly 24 saying the handcuffs were cutting him. Id. ¶ 34. 25 Plaintiff states that his wife, Young Kang, gave statements during the incident to 26 Officer Silva indicating that he had not been intentionally violent. Id. ¶ 36. Plaintiff was 27 transported to the emergency room and then to jail. Id. ¶ 40. Plaintiff states that he has 28 1 suffered significant injuries, costs, loss of work due to this incident, and public humiliation 2 and embarrassment. Id. ¶¶ 54-57. 3 II. LEGAL STANDARD 4 A motion to dismiss for failure to state a claim should be granted when the 5 allegations do not “state a claim to relief that is plausible on its face.” Aschroft v. Iqbal, 6 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 7 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 8 court to draw the reasonable inference that the defendant is liable for the misconduct 9 alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard ... asks 10 for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epsten 11 Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (internal quotation marks omitted). 12 When evaluating the sufficiency of a complaint's factual allegations, the court must 13 accept as true all well-pleaded material facts alleged in the complaint and construe them in 14 the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 15 1136, 1140 (9th Cir. 2012); see Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th 16 Cir. 2010). Allegations in a complaint “may not simply recite the elements of a cause of 17 action, but must contain sufficient allegations of underlying facts to give fair notice and to 18 enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 19 (9th Cir. 2011). While the court must draw all reasonable inferences from the factual 20 allegations in favor of the plaintiff, Newcal Industries, Inc. v. Ikon Office Solution, 513 21 F.3d 1038, 1043 n.2 (9th Cir. 2008), the court need not credit legal conclusions that are 22 couched as factual allegations, Iqbal, 556 U.S. at 678-79. 23 III. DISCUSSION 24 In the motion to dismiss, Defendants challenge only Count 4 of the Complaint. See 25 generally, Mot. Defendants argue that Count 4 is improperly pled as a stand-alone Monell 26 claim, and that Plaintiff states insufficient factual allegations to support ratification of 27 excessive force as required for Monell. Mot. at 3-6. The Court examines these arguments 28 below. 1 A. Monell Cause of Action 2 Defendants argue that Plaintiff does not state a claim for Monell liability because 3 Monell is not an independent cause of action. Mot. at 3-4. Plaintiff argues that he has stated 4 the underlying constitutional claim for his Monell action, and that it is properly pled. Opp’n 5 ¶¶ 13-15. Plaintiff is correct. 6 Defendants cite Segal v. City of New York, 459 F.3d 207 (2006), to argue that 7 Plaintiff’s claim fails because he does not separately raise a claim of failure to train. Mot. 8 at 4. In Segal, the court explained, “Monell does not provide a separate cause of action for 9 the failure by the government to train its employees; it extends liability to a municipal 10 organization where that organization's failure to train, or the policies or customs that it has 11 sanctioned, led to an independent constitutional violation.” 459 F. 3d at 219. In Segal, the 12 underlying constitutional claim was a due process violation in an employment case. Id. 13 When the underlying claim failed, the Monell claim failed. Id. The court held that 14 “[b]ecause the district court properly found no underlying constitutional violation, its 15 decision not to address the municipal defendants' liability under Monell was entirely 16 correct.” Id. That is to say, as the Court explained in its previous order, a Monell claim fails 17 if the underlying constitutional violation fails. ECF No. 22 at 4. Nowhere does Segal 18 suggest that the underlying violation must be pled as failure to train. 459 F. 3d at 219. 19 Here, Plaintiff’s Complaint clearly states that the underlying claim of the Monell 20 cause of action is an excessive force claim. SAC ¶ 80. Defendants are incorrect that 21 Plaintiff must plead failure to train as an independent violation. See, e.g., Segal, 459 F. 3d 22 at 219. Defendants are also incorrect in their argument that Plaintiff alleging customs 23 related to improper arrests or failure to intervene defeats the Monell claim. See Mot. at 3. 24 Defendants cite no authority showing that a Plaintiff’s inclusion of alleged customs 25 unrelated to the underlying constitutional violation defeats a Monell claim. See id. Nor is 26 the Court aware of any authority supporting such a proposition. The Motion to Dismiss the 27 Monell claim as improperly pled is DENIED. 28 1 B. Ratification of Conduct 2 Defendants also argue that the Monell claim is subject to dismissal because Plaintiff 3 does not properly allege that the City ratified the alleged excessive force. Mot. at 5-6. 4 Defendants also challenge the evidence underlying the excessive force claim. Id. 5 Ratification is not the only theory of Monell liability. As the Court explained in its 6 prior order: 7 Monell caselaw shows three theories of liability under which a plaintiff may proceed against a local government body: ‘(1) the constitutional violation was 8 the result of a governmental policy or a longstanding practice or custom; (2) 9 the individual who committed the constitutional violation was an official with final policy-making authority; or (3) an official with final policy-making 10 authority ratified the unconstitutional act.’ 11 ECF No. 22 at 5 (quoting Perryman v. City of Pittsburg, 545 F. Supp. 3d 796, 799 (N.D. 12 Cal. 2021)). For claims in the first category, “[o]fficial nonfeasance can constitute a Monell 13 violation when the municipality in effect ‘has a policy of inaction and such inaction 14 amounts to a failure to protect constitutional rights.’” Scanlon v. County of Los Angeles, 15 92 F.4th 781, 812 (9th Cir. 2024) (quoting Mortimer v. Baca, 594 F.3d 714, 722 (9th Cir. 16 2010)). 17 Because Plaintiff is making the first category of claim, he does not need to allege 18 ratification. See SAC ¶ 82 (“The City implemented these customs with deliberate 19 indifference.”). Defendant also argues that Plaintiff’s citations to Internal Affairs findings 20 to show a policy or custom do not support his claims because they show that internal 21 decisionmakers disapproved of those actions and thus did not ratify the conduct. Mot. at 5. 22 However, repeated reprimands for a series of excessive force claims can logically support 23 a claim of deliberate indifference. See City of Canton, Ohio v. Harris, 489 U.S. 378, 390, 24 (1989) (explaining that a deliberate indifference Monell claim could lie where issues are 25 obvious and the city still fails to act). Nor is the Court convinced by Defendants’ conclusory 26 argument that the other incidents cited by Plaintiff, such as the 2016 DOJ report which 27 allegedly “identified significant deficiencies in the City’s use-of-force policies,” are 28 1 |/irrelevant to Plaintiff's excessive force Monell claim. See Mot. at 6; SAC § 43. In 2 || conclusion, the Motion to Dismiss the Monell claim as lacking factual basis or allegations 3 || of ratification is DENIED. 4 IV. CONCLUSION 5 For the foregoing reasons, Defendant’s motion to dismiss is DENIED. 6 IT IS SO ORDERED. 7 || Dated: June 8, 2025
9 Honorable James E. Sunmons Jr. 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28