THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF GUAM 8 JOSE ARLINE DADIVAS DEVELLES, CIVIL CASE NO. 24-00019 9 Plaintiff, ORDER 10 v. 11 GOVERNMENT OF GUAM, et al., 12 Defendants. 13 14 15 This matter comes before the Court on the Government of Guam’s motion to dismiss 16 (Dkt. No. 62), which the Court GRANTS in part and DENIES in part as explained below, after 17 having thoroughly considered the briefing and the record. 18 This is a civil rights case. (See generally Dkt. No. 40.) Plaintiff alleges that certain Guam 19 Police Department officers used excessive force during a traffic stop when removing him from 20 his vehicle and then stole money from a wallet in the vehicle. (See id. at 3–5.) Plaintiff further 21 alleges other officers were complicit in this conduct. (See id. at 5–6.) Plaintiff also alleges that 22 the incident is in accord with the Department’s generalized customs and practices. (See id. at 18– 23 21.) 24 In total, the complaint asserts twelve counts against all defendants, four of which against 25 the Government of Guam (through its relationship to the Guam Police Department). (See id. at 26 6–24.) They are Count V (Vicarious Liability for Officers’ Negligent Conduct), Count VI 1 (Negligent Hiring, Retention, Supervision), County IX (Failure to Supervise or Train Officers 2 pursuant to 18 U.S.C. § 1983), and Count XI (Conversion). (Id. at 10–13, 18–23.) The 3 Government moves to dismiss each pursuant to Rules 12(b)(1) and 12(b)(6). (Dkt. No. 63.) It 4 argues that (a) the Court lacks subject matter jurisdiction for counts resulting in state law claims 5 (Counts V, VI, and XI) and (b) Plaintiff fails to plausibly assert claims for the count the Court 6 would have original jurisdiction over (Count IX). (See generally id.) 7 Rule 12(b)(1) motions challenge “[]the Court’s subject matter jurisdiction.” Svenson v. 8 Google Inc., 65 F. Supp. 3d 717, 721 (N.D. Cal. 2014). In summary, the Court may only exercise 9 supplemental jurisdiction over claims arising under state law “that are so related to” the federal 10 claim “that they form part of the same case or controversy.” 28 U.S.C. § 1367(a). If the Court 11 dismisses the federal claim, it may—and generally should—decline to exercise supplemental 12 jurisdiction over the remaining state law claims. 28 U.S.C. § 1367(c)(3); see also Carnegie– 13 Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Whereas Rule 12(b)(6) motions challenge 14 the sufficiency of the allegations in asserting a colorable cause of action. Thus, to avoid 15 dismissal, a plaintiff must point to factual allegations that “state a claim to relief that ‘is plausible 16 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 17 550 U.S. 544, 570 (2007)). Said another way, the Court must be able to conclude that the movant 18 is entitled to judgment as a matter of law, even after accepting allegations as true and construing 19 them in the light most favorable to the non-moving party. Adams v. Johnson, 355 F.3d 1179, 20 1183 (9th Cir. 2004). However, conclusory allegations of law and unwarranted inferences will 21 not defeat an otherwise proper Rule 12(b)(6) motion. Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 22 (9th Cir. 2007). 23 The Court first addresses the sufficiency of the allegations supporting Plaintiff’s federal 24 claim, in accord with Iqbal and Twombly. This is because, to establish the Court’s jurisdiction 25 over a state law claim based on 18 U.S.C. § 1367, it must first be anchored by a colorable federal 26 claim. 28 U.S.C. 1367(a). And the federal claim here, as described in Count IX, is the one 1 Plaintiff brings pursuant to 42 U.S.C. § 1983. (See Dkt. No. 40 at 18–21.) To state a §1983 2 claim, a plaintiff must allege that the defendant (1) acted under color of state law, and (2) 3 deprived them of rights secured by the Constitution or federal law. Long v. County of Los 4 Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Because, at least for purposes of the instant 5 motion, Plaintiff’s excessive force § 1983 claim is brought against the Government of Guam, it 6 must also satisfy the standard for municipal liability, namely (1) the existence of a municipal 7 policy, practice, or custom, (2) that the policy was the moving force behind a constitutional 8 deprivation, and (3) the existence of deliberate indifference (where relevant). Monell v. Dep’t of Soc. 9 Servs., 436 U.S. 658 (1978) 10 In Count IX, the excessive force § 1983 claim, Plaintiff describes the “atmosphere of 11 lawlessness and carelessness” along with the “long-standing, department-wide discretionary 12 customs, law enforcement policies, procedures, customs [and] practices” leading to the Guam 13 Police Department’s failure to train and supervise its officers, resulting in the deliberate 14 indifference alleged in this case.” (Dkt. No. 40 at 19.) These allegations, alone, would be 15 insufficiently conclusory to withstand the Government’s motion. But the complaint goes on. It 16 incorporates by reference1 particularized accounts of similar instances reasonably supporting the 17 notion of an implied policy, practice, or custom, which are consistent with Plaintiff’s generalized 18 allegations. (See id at 19–20.) Collectively, these allegations, coupled with Plaintiff’s personal 19 experience, (see id. at 3–8, 29–69), are sufficient to plead an excessive force § 1983 claim 20 against Guam. Thus, Count IX survives the Government’s motion to dismiss.2 21 With a plausibly pleaded federal Count IX, the Court sees no reason not to exercise 22 supplemental jurisdiction over the remaining counts, namely Counts V, VI, and XI (to the extent 23 1 See, e.g., Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). 24 2 In moving to dismiss Count IX, the Government also asks that Plaintiff’s request for injunctive 25 relief be dismissed due to a lack of pleaded imminent threat. (See Dkt. No. 63 at 4.) But, given the alleged pervasive and lawless application of excessive force, (see Dkt. No. 40 at 19–20), the 26 Court cannot say that such threat as pleaded, is not imminent as to Plaintiff. 1 they are otherwise colorable) pursuant to Exxon Mobil Corp. v. Allapattah Services, Inc., 545 2 U.S. 546, 558 (2005). This is because each is based on the same events as Count IX, so they 3 clearly arise from the same case or controversy. (See Dkt. No. 40 at 10–23.) Nevertheless, the 4 Government argues that Count VI is inadequately pleaded and Count XI, as an intentional tort, 5 lacks statutory support. (See Dkt. No. 63 at 7.) The argument as to Count VI is not well taken.
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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF GUAM 8 JOSE ARLINE DADIVAS DEVELLES, CIVIL CASE NO. 24-00019 9 Plaintiff, ORDER 10 v. 11 GOVERNMENT OF GUAM, et al., 12 Defendants. 13 14 15 This matter comes before the Court on the Government of Guam’s motion to dismiss 16 (Dkt. No. 62), which the Court GRANTS in part and DENIES in part as explained below, after 17 having thoroughly considered the briefing and the record. 18 This is a civil rights case. (See generally Dkt. No. 40.) Plaintiff alleges that certain Guam 19 Police Department officers used excessive force during a traffic stop when removing him from 20 his vehicle and then stole money from a wallet in the vehicle. (See id. at 3–5.) Plaintiff further 21 alleges other officers were complicit in this conduct. (See id. at 5–6.) Plaintiff also alleges that 22 the incident is in accord with the Department’s generalized customs and practices. (See id. at 18– 23 21.) 24 In total, the complaint asserts twelve counts against all defendants, four of which against 25 the Government of Guam (through its relationship to the Guam Police Department). (See id. at 26 6–24.) They are Count V (Vicarious Liability for Officers’ Negligent Conduct), Count VI 1 (Negligent Hiring, Retention, Supervision), County IX (Failure to Supervise or Train Officers 2 pursuant to 18 U.S.C. § 1983), and Count XI (Conversion). (Id. at 10–13, 18–23.) The 3 Government moves to dismiss each pursuant to Rules 12(b)(1) and 12(b)(6). (Dkt. No. 63.) It 4 argues that (a) the Court lacks subject matter jurisdiction for counts resulting in state law claims 5 (Counts V, VI, and XI) and (b) Plaintiff fails to plausibly assert claims for the count the Court 6 would have original jurisdiction over (Count IX). (See generally id.) 7 Rule 12(b)(1) motions challenge “[]the Court’s subject matter jurisdiction.” Svenson v. 8 Google Inc., 65 F. Supp. 3d 717, 721 (N.D. Cal. 2014). In summary, the Court may only exercise 9 supplemental jurisdiction over claims arising under state law “that are so related to” the federal 10 claim “that they form part of the same case or controversy.” 28 U.S.C. § 1367(a). If the Court 11 dismisses the federal claim, it may—and generally should—decline to exercise supplemental 12 jurisdiction over the remaining state law claims. 28 U.S.C. § 1367(c)(3); see also Carnegie– 13 Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Whereas Rule 12(b)(6) motions challenge 14 the sufficiency of the allegations in asserting a colorable cause of action. Thus, to avoid 15 dismissal, a plaintiff must point to factual allegations that “state a claim to relief that ‘is plausible 16 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 17 550 U.S. 544, 570 (2007)). Said another way, the Court must be able to conclude that the movant 18 is entitled to judgment as a matter of law, even after accepting allegations as true and construing 19 them in the light most favorable to the non-moving party. Adams v. Johnson, 355 F.3d 1179, 20 1183 (9th Cir. 2004). However, conclusory allegations of law and unwarranted inferences will 21 not defeat an otherwise proper Rule 12(b)(6) motion. Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 22 (9th Cir. 2007). 23 The Court first addresses the sufficiency of the allegations supporting Plaintiff’s federal 24 claim, in accord with Iqbal and Twombly. This is because, to establish the Court’s jurisdiction 25 over a state law claim based on 18 U.S.C. § 1367, it must first be anchored by a colorable federal 26 claim. 28 U.S.C. 1367(a). And the federal claim here, as described in Count IX, is the one 1 Plaintiff brings pursuant to 42 U.S.C. § 1983. (See Dkt. No. 40 at 18–21.) To state a §1983 2 claim, a plaintiff must allege that the defendant (1) acted under color of state law, and (2) 3 deprived them of rights secured by the Constitution or federal law. Long v. County of Los 4 Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Because, at least for purposes of the instant 5 motion, Plaintiff’s excessive force § 1983 claim is brought against the Government of Guam, it 6 must also satisfy the standard for municipal liability, namely (1) the existence of a municipal 7 policy, practice, or custom, (2) that the policy was the moving force behind a constitutional 8 deprivation, and (3) the existence of deliberate indifference (where relevant). Monell v. Dep’t of Soc. 9 Servs., 436 U.S. 658 (1978) 10 In Count IX, the excessive force § 1983 claim, Plaintiff describes the “atmosphere of 11 lawlessness and carelessness” along with the “long-standing, department-wide discretionary 12 customs, law enforcement policies, procedures, customs [and] practices” leading to the Guam 13 Police Department’s failure to train and supervise its officers, resulting in the deliberate 14 indifference alleged in this case.” (Dkt. No. 40 at 19.) These allegations, alone, would be 15 insufficiently conclusory to withstand the Government’s motion. But the complaint goes on. It 16 incorporates by reference1 particularized accounts of similar instances reasonably supporting the 17 notion of an implied policy, practice, or custom, which are consistent with Plaintiff’s generalized 18 allegations. (See id at 19–20.) Collectively, these allegations, coupled with Plaintiff’s personal 19 experience, (see id. at 3–8, 29–69), are sufficient to plead an excessive force § 1983 claim 20 against Guam. Thus, Count IX survives the Government’s motion to dismiss.2 21 With a plausibly pleaded federal Count IX, the Court sees no reason not to exercise 22 supplemental jurisdiction over the remaining counts, namely Counts V, VI, and XI (to the extent 23 1 See, e.g., Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). 24 2 In moving to dismiss Count IX, the Government also asks that Plaintiff’s request for injunctive 25 relief be dismissed due to a lack of pleaded imminent threat. (See Dkt. No. 63 at 4.) But, given the alleged pervasive and lawless application of excessive force, (see Dkt. No. 40 at 19–20), the 26 Court cannot say that such threat as pleaded, is not imminent as to Plaintiff. 1 they are otherwise colorable) pursuant to Exxon Mobil Corp. v. Allapattah Services, Inc., 545 2 U.S. 546, 558 (2005). This is because each is based on the same events as Count IX, so they 3 clearly arise from the same case or controversy. (See Dkt. No. 40 at 10–23.) Nevertheless, the 4 Government argues that Count VI is inadequately pleaded and Count XI, as an intentional tort, 5 lacks statutory support. (See Dkt. No. 63 at 7.) The argument as to Count VI is not well taken. 6 Although the Court agrees with the Government as to Count XI. 7 As to Count VI, the negligent hiring, retention, and supervision claim, the complaint 8 alleges that the officers at issue had “prior history and records of employment misconduct . . . 9 and related propensities to offensive behavior and harm to others.” (Dkt. No. 40 at 11.) Further, 10 the Government of Guam “knew or reasonably should have known, of the malicious, negligent, 11 and intentional misconduct propensities” of these officers. (Id. at 12.) And finally, the 12 Government “failed to conduct reasonable and necessary screening; failed to properly evaluate 13 their conduct and performance as employees of GPD; failed to exercise the due diligence 14 incumbent upon employers and supervisors to investigate employee misconduct and to take 15 appropriate disciplinary action.” (Id. at 13.) These allegations, in a vacuum, border on 16 conclusory. But when viewed in the context of all then allegations in the complaint, including 17 those described above, they plausibly state a negligent hiring, retention, and supervision claim. 18 Thus, Count VI survives the Government’s motion to dismiss. 19 As to Count XI, the conversion claim, as an intentional tort, requires a waiver of 20 sovereign immunity. See Wood v. Guam Power Auth., 2000 Guam 18 (Guam 2000) (citing 1 21 GCA § 405. And Plaintiff concedes no such waiver exists. (See Dkt. No. 68 at 16.) Thus, the 22 Court need not address this issue further. Count XI does not survive the Government’s motion. 23 Finally, the Government asks the Court to “strike any demand for punitive damages” 24 against it. (Dkt. No. 63 at 8.) It contends such damages “are generally barred except where 25 statute permits.” (Id.) But it provides no authority for this proposition. So, at least for now, the 26 Court declines the Government’s request. Should it wish to renew the request through a Rule 1 12(c) or Rule 56 motion, the Court reminds the Government to support its position with relevant 2 authority. See Saevik v. Swedish Med. Ctr., 2021 WL 5918595, slip op. at 4 (W.D. Wash. 2021) 3 (quoting Cyntegra, Inc. v. IDEXX Lab’ys, Inc., 322 F. App’x 569, 571 n.2 (9th Cir. 2009)) 4 (Courts “need not consider allegations ‘unsupported by citations to the record or legal 5 authority.’”). 6 For the foregoing reasons, the Government of Guam’s motion to dismiss (Dkt. No. 62) is 7 GRANTED as to Count XI, which is DISMISSED. The motion is DENIED as to the remaining 8 Counts (Counts V, VI, and IX). 9 10 11 So DATED this 18th day of May 2026. A 12 13 14 John C. Coughenour 15 UNITED STATES DISTRICT JUDGE
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