London Wallace v. City of Fresno

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 LONDON WALLACE, by and through his CASE NO. 1:19-CV-1199 AWI SAB guardian ad litem Lois Robinson, 8 Plaintiff ORDER ON DEFENDANTS’ RULE 9 12(b)(6) MOTION TO DISMISS v. 10 CITY OF FRESNO, FRESNO POLICE (Doc. No. 17) 11 DEPARTMENT, OFFICER CHRISTOPHER MARTINEZ, OFFICER 12 RICARDO LOZA, and DOES 2 to 25, inclusive, 13 Defendants 14 15 16 This case arises from a confrontation involving minor Plaintiff London Wallace 17 (“Wallace”) and two members of the Fresno Police Department (“FPD”). Wallace alleges claims 18 under 42 U.S.C. § 1983 for excessive force in violation of the Fourth Amendment and Monell 19 liability, as well as state law claims for battery, negligence, intentional infliction of emotional 20 distress, false imprisonment, and the Bane Act.1 The operative complaint is the First Amended 21 Complaint (“FAC”). Currently before the Court is Defendants’ Rule 12(b)(6) motion to dismiss 22 the third cause of action for Monell liability. For the reasons that follow, Defendants’ motion will 23 be granted. 24 25 RULE 12(b)(6) FRAMEWORK 26 Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the 27

28 1 By stipulation, Wallace’s claims for negligent infliction of emotional distress and violation of the Fourteenth 1 plaintiff’s “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A 2 dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the 3 absence of sufficient facts alleged under a cognizable legal theory. See Mollett v. Netflix, Inc., 4 795 F.3d 1062, 1065 (9th Cir. 2015). In reviewing a complaint under Rule 12(b)(6), all well- 5 pleaded allegations of material fact are taken as true and construed in the light most favorable to 6 the non-moving party. Kwan v. SanMedica, Int’l, 854 F.3d 1088, 1096 (9th Cir. 2017). However, 7 complaints that offer no more than “labels and conclusions” or “a formulaic recitation of the 8 elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Johnson 9 v. Federal Home Loan Mortg. Corp., 793 F.3d 1005, 1008 (9th Cir. 2015). The Court is “not 10 required to accept as true allegations that contradict exhibits attached to the Complaint or matters 11 properly subject to judicial notice, or allegations that are merely conclusory, unwarranted 12 deductions of fact, or unreasonable inferences.” Seven Arts Filmed Entm’t, Ltd. v. Content Media 13 Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013). To avoid a Rule 12(b)(6) dismissal, “a 14 complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is 15 plausible on its face.” Iqbal, 556 U.S. at 678; Mollett, 795 F.3d at 1065. “A claim has facial 16 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 17 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; Somers 18 v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). “Plausibility” means “more than a sheer 19 possibility,” but less than a probability, and facts that are “merely consistent” with liability fall 20 short of “plausibility.” Iqbal, 556 U.S. at 678; Somers, 729 F.3d at 960. The Ninth Circuit has 21 distilled the following principles for Rule 12(b)(6) motions: (1) to be entitled to the presumption 22 of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause 23 of action, but must contain sufficient allegations of underlying facts to give fair notice and to 24 enable the opposing party to defend itself effectively; (2) the factual allegations that are taken as 25 true must plausibly suggest entitlement to relief, such that it is not unfair to require the opposing 26 party to be subjected to the expense of discovery and continued litigation. Levitt v. Yelp! Inc., 27 765 F.3d 1123, 1135 (9th Cir. 2014). In assessing a motion to dismiss, courts may consider 28 documents attached to the complaint, documents incorporated by reference in the complaint, or 1 matters subject to judicial notice. In re NVIDIA Corp. Sec. Litig., 768 F.3d 1046, 1051 (9th Cir. 2 2014). If a motion to dismiss is granted, “[the] district court should grant leave to amend even if 3 no request to amend the pleading was made . . . .” Ebner v. Fresh, Inc., 838 F.3d 958, 962 (9th 4 Cir. 2016). However, leave to amend need not be granted if amendment would be futile or the 5 plaintiff has failed to cure deficiencies despite repeated opportunities. Garmon v. County of L.A., 6 828 F.3d 837, 842 (9th Cir. 2016). 7 8 BACKGROUND 9 From the FAC, on January 23, 2019, City of Fresno (“the City”) police officers arrived at 10 an apartment in order to conduct a probation search. The officers ordered and forced everyone in 11 the apartment to go outside. Everyone who had been in the apartment, including Wallace, was 12 forced outside, searched, and detained. Wallace was not in possession of any illegal substances, 13 drugs, or weapons. After being searched, Wallace was told to sit along a wall until directed 14 otherwise. Before Wallace could sit down, Defendant Officer Christopher Martinez attacked, 15 punched, and tackled Wallace to the ground. Wallace sustained serious injuries, including a 16 broken nose, bleeding, and emotional distress. At no point did Wallace disobey orders, pose a 17 threat, or consent to being searched. 18 19 DEFENDANTS’ MOTION 20 Defendants’ Argument 21 Defendants argue that the FAC contains no factual allegations that plausibly indicate 22 Monell liability. Instead, there are only improper legal conclusions that amount to little more than 23 boilerplate. Because there are insufficient factual allegations that demonstrate a constitutional 24 violation through either a policy, custom, practice, or ratification, dismissal is proper. 25 Plaintiff’s Opposition 26 Wallace argues that a Monell claim is properly pled if it alleges that the plaintiff was 27 deprived of constitutional right by defendants and their employees acting under state law, that the 28 defendants have customs or policies which amount to deliberate indifference to their constitutional 1 rights, and the policies or customs were the moving force behind the constitutional violation. 2 Wallace also argues that it is improper to dismiss Monell claims at the pleading stage, even where 3 the claims are made in conclusory language. As the Ninth Circuit has acknowledge, dismissal is 4 improper even when there is nothing more than a bare allegation that the individual officer’s 5 conduct conformed to an official policy, custom, or practice. Here, the FAC alleges a repeated 6 practice of conditioning and tacitly encouraging abuse of authority and a disregard of 7 constitutional rights. The FAC also alleges inadequate supervision, training, control, assignment, 8 and discipline of officers, as well as inadequate procedures for reporting, supervising, 9 investigating, revealing, disciplining, and controlling misconduct. Finally, the FAC alleges a 10 longstanding history of hurried public advocacy, perpetuating, sanctioning, ratifying, fostering, 11 and tolerating outrageous police conduct. These allegations amount to more than the bare 12 allegations that the Ninth Circuit accepts and are sufficient to state a claim. Alternatively, Wallace 13 requests leave to amend if the Court reaches a contrary conclusion. 14 Relevant Allegations 15 In relevant part, the FAC alleges: 16 The [City and FPD] have a long history of examples of its pattern and practice in the use of excessive force in handling issues with its citizens. There is a pattern 17 and practice of officers not being properly disciplined for their actions involving use of excessive force. As a result of this failure to address and discipline, the 18 [City and FPD] have fostered an environment and created a culture and belief that it is permissible to use excessive force against civilians and their property without 19 fear of repercussion, accountability, or disciplinary action by [the City and FPD].

20 The actions of Defendants who were involved in this incident were taken contrary to written policies and practices of [the City and FPD]. Those actions were 21 consistent with [FPD’s] culture of deliberate indifference to the use of excessive force in encounters with civilians, when it is a grossly disproportionate response to 22 a situation, and even when no reasonable basis exists for any use of force whatsoever, as in this case. 23 Despite Defendants’ knowledge of these illegal policies and practices, the 24 supervisory and policy-making employees of [the City and FPD] have maliciously and with deliberate indifference, taken no effective steps to terminate the policies 25 and practices. The [FPD] has not effectively disciplined or otherwise properly supervised the officers who engage in these policies and practices; has not 26 effectively trained their officers with regard to the proper constitutional and statutory limits of the exercise of their authority; and has sanctioned the policies 27 and practices through their deliberate or grossly negligent indifference to their detrimental effect on the constitutional rights of local residents. Based upon 28 information and belief, [the City]’s supervisory and policy making personnel have 1 the policies and practices or change the [FPD’s] culture of its illegal policies and practices in dealing with its citizens including, but not limited to, [Wallace]. [The 2 City] routinely failed to effectively discipline and properly supervise the officers who engage in this policies, procedures, and practices of the [FPD] and have not 3 effectively trained its officers with regard to the proper Constitutional and statutory limits of the exercise of its officers’ authority. Rather, [the City and the FPD] have 4 sanctioned the policies and practices through their deliberate and/or grossly negligent indifference to their detrimental effect on the Constitutional rights of 5 [City citizens].

6 Despite [the City and FPD] knowing of civil rights abuses by its employees/police officers, they failed to remedy or address these violations, knowingly and with 7 deliberate indifference, and promulgated policies on the use of excessive force by officers and deliberately disregard the Constitutional rights of the [City’s citizens]. 8 Based upon information and belief, the acts, omission, practices, policies, failure to discipline, and long history of complete and utter support by the [FPD and the City] 9 of its police officers involved in such situations and incidents of civil rights abuses, were ratification and approval by [the City] and its employees and/or agents, which 10 resulted in [Wallace’s] injuries and damages.

11 . . . . .

12 . . . [Wallace] alleges that the acts and/or omissions alleged in [the FAC] are indicative of a repeated practice of conditioning and tacitly encouraging the abuse 13 of authority and disregard for the Constitutional rights of citizens including, but not limited to, [Wallace]. 14 On or about January 23, 2019, Defendants, and each of them, deprived [Wallace] of 15 the rights and liberties secured by [the Fourth Amendment]. In doing so, Defendants . . . along with their supervising and managing employees, agents, and 16 representatives, acting with gross negligence, reckless disregard, and deliberate indifference to the rights and liberties of the public in general . . . knowingly 17 maintained, enforced, and applied an official recognized custom, policy and practice of inadequately supervising, training, controlling, assigning and 18 disciplining [FPD] officers and other personnel, including maintaining grossly inadequate procedures for reporting, supervising, investigating, revealing 19 disciplining, and controlling the misconduct of its officers.

20 The longstanding history of hurried public advocacy, perpetuating, sanctioning, ratifying, fostering, and tolerating outrageous police conduct and other acts, 21 Defendants . . . acted within intentional, reckless and callous disregard for the well being of [Wallace] and his Constitutional rights. The actions of Defendants . . . 22 were willful, wanton, oppressive, malicious, fraudulent, extremely offensive, and unconscionable to any person or normal sensibilities. 23 FAC ¶¶ 18-21, 35-37. 24 Legal Standard 25 Municipalities are considered “persons” under 42 U.S.C. § 1983 and therefore may be 26 liable for causing a constitutional deprivation. Monell v. Department of Soc. Servs., 436 U.S. 658, 27 690 (1978); Castro v. County of L.A., 797 F.3d 654, 670 (9th Cir. 2015). A municipality, 28 1 however, “cannot be held liable solely because it employs a tortfeasor or, in other words, a 2 municipality cannot be held liable under [42 U.S.C. § 1983] under a respondeat superior theory.” 3 Monell, 436 U.S. at 691; see Castro, 797 F.3d at 670. Liability only attaches where the 4 municipality itself causes the constitutional violation through “execution of a government’s policy 5 or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to 6 represent official policy.” Monell, 436 U.S. at 694; Price v. Sery, 513 F.3d 962, 966 (9th Cir. 7 2008). Municipal liability may be premised on: (1) conduct pursuant to a formal or expressly 8 adopted official policy; (2) a longstanding practice or custom which constitutes the “standard 9 operating procedure” of the local government entity; (3) a decision of a decision-making official 10 who was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly 11 be said to represent official policy in the area of decision; or (4) an official with final 12 policymaking authority either delegating that authority to, or ratifying the decision of, a 13 subordinate. See Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014); Price, 513 14 F.3d at 966. 15 A failure to train or inadequate training may form the basis for municipal liability under § 16 1983 where the training or failure to train amounts to deliberate indifference to the rights of the 17 persons with whom the municipality's employees come into contact. Flores v. County of L.A., 18 758 F.3d 1154, 1158 (9th Cir. 2014); Long v. County of L.A., 442 F.3d 1178, 1186 (9th Cir. 19 2006). Under such a theory, the “issue is whether the training program is adequate and, if it is not, 20 whether such inadequate training can justifiably be said to represent municipal policy.” Long, 442 21 F.3d at 1186. A municipality is deliberately indifferent when the need for more or different action 22 is “so obvious, and the inadequacy [of the current procedure] so likely to result in the violation of 23 constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately 24 indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390, 109 S. Ct. 1197, 103 L. Ed. 25 2d 412 (1989); Mortimer v. Baca, 594 F.3d 714, 723 (9th Cir. 2010). 26 Allegations of Monell liability involving a policy, practice, or custom will be sufficient for 27 purposes of Rule 12(b)(6) where they: (1) identify the challenged policy/custom; (2) explain how 28 the policy/custom is deficient; (3) explain how the policy/custom caused the plaintiff harm; and 1 (4) reflect how the policy/custom amounted to deliberate indifference, i.e. show how the 2 deficiency involved was obvious and the constitutional injury was likely to occur. McFarland v. 3 City of Clovis, 163 F.Supp.3d 798, 802 (E.D. Cal. 2016); Young v. City of Visalia, 687 F. Supp. 4 2d 1141, 1149-50 (E.D. Cal. 2009). 5 Discussion 6 Initially, Wallace is incorrect to cite pre-Iqbal Ninth Circuit cases for the proposition that a 7 “bare allegation” of Monell liability is sufficient. In the same year as Iqbal, 2009, this Court 8 found that the “bare allegation” pleading standard was incompatible with Iqbal and no longer 9 viable. See Young, 687 F.Supp.2d at 1148. The Ninth Circuit itself confirmed this conclusion in 10 2012. See AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 637-38 (9th Cir. 2012) 11 (noting that Twombly and Iqbal “appl[y] to Monell claims and should govern future pleadings”). 12 Defendants’ motion expressly cited to and relied upon Twombly, Iqbal, and Young, yet Wallace 13 did not cite to or in any way even address those controlling cases. Wallace’s reliance on a legal 14 proposition that has been defunct for a decade is inexplicable and improper.2 15 1. Policy or Custom 16 The FAC contains many legal conclusions and boilerplate-type allegations, but a clear 17 identification of a policy, practice, or custom is absent. Nevertheless, it appears that Wallace is 18 alleging that the City has an unconstitutional policy or custom in three areas: (1) improperly or 19 ineffectively disciplining officers involved in uses of excessive force, (2) ineffectively training 20 officers regarding the proper limits of their authority, and (3) improperly or ineffectively 21 supervising its employees, including assignments, investigations, and reporting misconduct.3 So 22 viewing the FAC, no plausible Monell policy/custom claim has been alleged. 23 The FAC fails to explain how any of the above policies or customs are deficient. There are 24 a number of ways in which training, supervision, and discipline may be “improper” or 25 “ineffective.” For example, training may be ineffective because there is a complete absence of 26 2 In the same vein, the Court notes that Wallace’s opposition cites pre-Twombly and Iqbal cases with respect to Rule 8 27 pleading standards.

28 3 Because the Court is going to dismiss the third cause of action with leave to amend, Wallace should clearly identify 1 training on a particular subject, or because an incorrect standard is taught. Simply stating that 2 something is improperly, inadequately, or ineffectively done is conclusory and does not provide 3 sufficient notice of the aspect of the policy or custom that is unlawful or deficient. See Jack v. 4 County of Stanislaus, 2017 U.S. Dist. LEXIS 150367, *29-*34 (E.D. Cal. Sept. 15, 2017); 5 McFarland, 163 F.Supp.3d at 803; cf. Lucas v. City of Visalia, 2010 U.S. Dist. LEXIS 35631, 6 *13-*16 (E.D. Cal. Apr. 8, 2010) (finding allegations that identified particular deficiencies in 7 policy plausibly stated a Monell claim). Additionally, except for allegations relating to a policy of 8 inadequate discipline, the FAC does not explain how either the inadequate training or supervision 9 caused Wallace’s rights to be violated. While the FAC does allege that inadequate discipline has 10 “created a culture and belief that it is permissible to use excessive force against civilians and their 11 property without fear of repercussion, accountability, or disciplinary action,” without identifying 12 what about the City’s discipline policy or custom is inadequate, the allegation is not plausible. It 13 is the identification of the particular deficiency, for example a failure to impose any discipline, 14 that gives the causation allegation further support and moves it beyond a mere conclusory 15 allegation into the realm of plausibility. Finally, without sufficient allegations that identify a 16 particular deficiency in a policy or custom, and with insufficient allegations that show or support 17 causation, it cannot be determined whether the City acted with deliberate indifference. For these 18 reasons, there are no plausible Monell policy or custom claims in the third cause of action. 19 Dismissal of these claims is appropriate. See Jack, 2017 U.S. Dist. LEXIS 150367 at *29-*34; 20 McFarland, 163 F.Supp.3d at 806. 21 2. Ratification 22 Whether Wallace is pursuing a ratification theory is unclear. Defendants’ motion to 23 dismiss challenged the allegations that mention ratification, but Wallace did not address or attempt 24 to defend such a theory. To the extent that the FAC can be read as attempting to allege 25 ratification, dismissal is appropriate. 26 As stated above, Monell liability may be premised on an official with final policymaking 27 authority ratifying the actions or decisions of a subordinate. See Thomas, 763 F.3d at 1170. 28 Ratification is not the same as merely failing to discipline, rather it is approving a constitutional 1 | violation and the basis for it. See Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211, 1231 2 Cir. 2014).* State differently, a policymaker must make a deliberate choice to endorse the 3 | subordinate’s actions, merely acquiescing is not sufficient. Id. Here, there are no allegations that 4 | discuss or identify any policymakers, nor are there allegations that describe any kind of 5 | endorsement by a policymaker of the police officers’ actions toward Wallace. The FAC merely 6 mentions the term “ratified” without any supporting factual allegations. This kind of conclusory 7 | pleading does meet the /gbal standard. Therefore, any Monell ratification claim contained in the 8 cause of action is dismissed. See Jack, 2017 U.S. Dist. LEXIS 150367 at *39. 9 10 ORDER 11 Accordingly, IT IS HEREBY ORDERED that: 12 Defendant’s motion to dismiss is GRANTED; 13 The third cause of action is DISMISSED with leave to amend; 14 Plaintiff may file an amended complaint no later than twenty-one (21) days from service of 15 this order; and 16 |/4. If Plaintiff fails to file a timely amended complaint, leave to amend shall be automatically 17 withdrawn without further order and Defendants shall file an answer twenty-eight (28) 18 days from service of this order. 19 20 IT IS SO ORDERED. 91 Dated: _ November 19, 2019 —= ZS Cb □□ — SENIOR DISTRICT JUDGE 22 23 24 25 26 27 28 * Rev'd in part on other grounds, 135 S.Ct. 1765 (2015). OQ