Lua v. McNett

• Court: District Court, S.D. California
• Decided: October 12, 2023
• Docket: 3:23-cv-00032
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SALVADOR LUA, Case No.: 23cv32-JAH-BLM

12 Plaintiff, ORDER: 13 v. (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ 14 OFFICER IAN MCNETT, CITY OF SAN REQUEST FOR JUDUICAL NOTICE DIEGO 15 Defendants. (2) DENYING DEFENDANTS’ 16 MOTION TO DISMISS 17 (ECF Nos. 5-1, 5-2) 18 19 20 Pending before the Court is Defendant Officer Ian McNett (“Defendant McNett”), 21 and City of San Diego’s (“City of San Diego” or “City”) (jointly, “Defendants”) Motion to 22 Dismiss Plaintiff’s Complaint, (“Motion”, ECF No. 5-1), and Request for Judicial Notice 23 in Support of the Motion to Dismiss (“Judicial Notice”, ECF No. 5-2). On March 9, 2023, 24 Plaintiff Salvador Lua filed a response in opposition to the Motion, (ECF No. 6), and a 25 response in opposition to the request for judicial notice (ECF No. 7). Defendants filed a 26 reply in support of their Motion (ECF No. 8), on April 12, 2023. 27 28 1 For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN 2 PART Defendants’ Request for Judicial Notice and DENIES Defendants’ Motion to 3 Dismiss. 4 BACKGROUND 5 On January 6, 2023, Plaintiff filed his Complaint against Defendants’ asserting three 6 causes of action: (1) violation of the Bane Act, Cal. Civ. Code § 52.1; (2) negligence; and 7 (3) liability under Monell v. Department of Social Services of New York, 436 U.S. 658 8 (1978). He alleges Defendant McNett executed a “leg sweep” on him, driving him face 9 first into the concrete, while attempting to detain him on suspicion of having unlocked an 10 electric scooter on the boardwalk in Mission Beach on August 31, 2019. As a result, 11 Plaintiff suffered a shattered eye-socket, cheekbone and mandible. (Complaint, ECF No. 12 1 ¶¶ 1,14, 19, 20). He also alleges Defendant McNett sat his knee on Plaintiff’s neck while 13 he was prone, unresistant, and Defendant McNett intentionally bent Plaintiff’s handcuffed 14 wrists backwards, causing Plaintiff to cry out in pain. (Id. ¶¶ 2, 22, 23, 24, 25). 15 Additionally, Plaintiff alleges he was taken to UCSD Medical Center in Hillcrest, 16 where he was surgically treated for a zygomaticomaxillary complex fracture and, over the 17 next 11 months, ongoing treatment of his injuries required at least 10-follow up visits to 18 the doctor. (Id. ¶ 26). Subsequently, Plaintiff entered a plea to one count of misdemeanor 19 resisting an officer in violation of California Penal Code § 69. (Id. ¶ 27). 20 Plaintiff further alleges, in the months leading up to the encounter Defendant McNett 21 repeatedly used excessive force against other individuals, including spraying a handcuffed, 22 unresistant woman directly in the face with pepper spray. (Id. ¶ 3). Although the San 23 Diego Police Department was aware of this pattern of behavior, Plaintiff asserts, it did not 24 address it. (Id.). 25 LEGAL STANDARD 26 Defendants seek an order dismissing the complaint pursuant to Rule 12(b)(6) of the 27 Federal Rules of Civil Procedure. Rule 12(b)(6) tests the sufficiency of the complaint. 28 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 1 12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter 2 Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 3 326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a 4 dispositive issue of law.”). Alternatively, a complaint may be dismissed where it presents 5 a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 6 749 F.2d at 534. While a plaintiff need not give “detailed factual allegations,” he must 7 plead sufficient facts that, if true, “raise a right to relief above the speculative level.” Bell 8 Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). 9 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 10 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 11 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially plausible 12 when the factual allegations permit “the court to draw the reasonable inference that the 13 defendant is liable for the misconduct alleged.” Id. In other words, “the non-conclusory 14 ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive 15 of a claim entitling the plaintiff to relief. Moss v. U.S. Secret Service, 572 F.3d 962, 969 16 (9th Cir. 2009). “Determining whether a complaint states a plausible claim for relief will 17 ... be a context-specific task that requires the reviewing court to draw on its judicial 18 experience and common sense.” Iqbal, 556 U.S. at 679. 19 In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the 20 truth of all factual allegations and must construe all inferences from them in the light most 21 favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); 22 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal 23 conclusions need not be taken as true merely because they are cast in the form of factual 24 allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); Western Mining 25 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to dismiss, 26 the Court may consider the facts alleged in the complaint, documents attached to the 27 complaint, documents relied upon but not attached to the complaint when authenticity is 28 not contested and matters of which the Court takes judicial notice. Lee v. City of Los 1 Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). If a court determines that a complaint fails 2 to state a claim, the court should grant leave to amend unless it determines that the pleading 3 could not possibly be cured by the allegation of other facts. See Doe v. United States, 58 4 F.3d 494, 497 (9th Cir. 1995). 5 DISCUSSION 6 I. Judicial Notice 7 Defendants request that this Court take judicial notice of Arresting Officer Herzog’s 8 Police Report, (Def’s Mot., Exh. 1, ECF 5-2 at 6), District Attorney’s Criminal Complaint 9 Against Plaintiff, (Def’s Mot., Exh 2, Id. at 15), and Plaintiff’s Guilty Plea Documentation, 10 (Def’s Mot., Exh. 3, Id. at 19), in support of their motion to dismiss under Federal Rules 11 of Evidence 201 (b) and 803 (8). The Plaintiff does not dispute the authenticity of these 12 documents. 13 Courts may take judicial notice of an adjudicative fact that is “not subject to 14 reasonable dispute.” Fed.R.Evid. 201(b). Facts are indisputable, and thus subject to 15 judicial notice, only if they are either generally known under Rule 201 (b)(1) or “capable 16 of accurate and ready determination by resort to sources whose accuracy cannot be 17 reasonably questioned under Rule 201 (b)(2).” United States v. Ritchie, 342 F.3d 903, 909 18 (9th Cir. 2003). While a district court may not take judicial notice of a fact that is subject 19 to reasonable dispute, the court may take judicial notice of undisputed matters of public 20 record. See Lee, 250 F.3d at 689-90. 21 Plaintiff does not oppose this Court taking judicial notice of the criminal complaint 22 or the guilty plea documentation. The documents contain undisputed objective information 23 of public record and are appropriate for judicial notice. Plaintiff, however, opposes the 24 request to take judicial notice of the existence and content of the police report. He argues 25 the allegations contained therein are hearsay and are routinely disputed. Defendant argues 26 that Officer Herzog’s police report is subject to judicial notice because the record is not 27 subject to reasonable dispute given Plaintiff's guilty plea. 28 1 The existence and content of a police report are not proper subjects for judicial 2 notice. Ritchie, 342 F.3d at 909; (citing Pina v. Henderson, 752 F.2d 47, 50 (2nd Cir. 3 1985)). Plaintiff’s plea of guilty to the charge of misdemeanor resisting an officer 4 stemming from the incident on August 31, 2019, does not mean the facts within the police 5 report are not subject to reasonable dispute. Pursuant to the guilty plea, Plaintiff stipulated 6 that he “willfully prevent[ed] [an] officer from performing [his] duty” only, not to the 7 recollection of events presented in Officer Herzog’s police report. (ECF No. 5-2 at 6). 8 Furthermore, Officer Herzog’s police report contains adjudicative facts that are derived 9 from sources whose accuracy can be reasonably questioned. The police report provides 10 paraphrased statements by witnesses that contradict Defendant McNett’s recollection. (Id. 11 at 14). Moreover, a reasonable dispute exists as to whether Defendant McNett used 12 excessive force during his altercation with Plaintiff despite the information within the 13 police report. Accordingly, the request is GRANTED as to the criminal complaint and 14 guilty plea documentation and DENIED as to the police report. 15 II. Motion to Dismiss 16 Defendant argues the complaint should be dismissed in its entirety because 17 Plaintiff’s claims are barred by Heck v. Humphrey, 512 U.S. 477 (1984), Plaintiff fails to 18 state a claim under the Bane Act and Plaintiff fails to state a claim under Monell. 19 A. Heck v. Humphrey 20 Defendant argues Plaintiff’s Bane Act cause of action and negligence cause of action 21 are barred by Heck. Under Heck, a civil rights claim is barred if “a judgment in favor of 22 the plaintiff would necessarily imply the invalidity of his conviction or sentence.” Id. at 23 487. “But if the district court determines that the plaintiff’s action, even if successful, will 24 not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, 25 the action should be allowed to proceed.” Id. (emphasis in original). State law claims that 26 challenge criminal convictions are similarly barred. Yount v. City of Sacramento, 43 27 Cal.4th 885, 902 (2008) (Extending the Heck bar to state law causes of action). 28 1 Defendant argues that Plaintiff’s lawsuit violates Heck as an impermissible collateral 2 attack on his criminal conviction. Citing People v. Olguin, 119 Cal. App. 3d 39, 44 (1981) 3 and People v. White, 101 Cal. App. 3d 161, 167 (1980), Defendant argues that under 4 California law an officer cannot be engaged in the lawful performance of the officer’s 5 duties if the officer is subjecting an arrestee to excessive force. Therefore, he argues, if 6 Plaintiff’s excessive force claim arises from the same conduct that formed the basis of his 7 guilty plea, Plaintiff’s civil rights claim and negligence claim would, if proven, necessarily 8 imply the invalidity of that conviction. Citing Smith v. City of Hemet, 394 F.3d 689 (9th 9 Cir. 2005), Defendant also argues that because there was no temporal distinction in his 10 actions separate from the factual basis of Plaintiff’s conviction, his Bane Act claim and 11 negligence claim are barred by Heck. 12 Plaintiff argues that his allegations do not “necessarily” require showing that his 13 misdemeanor conviction for resisting in violation of Penal Code § 69 was improper. Citing 14 Lemos v. Cnty of Somona, 40 F.4th 1002, 1006 (9th Cir. 2022), Plaintiff contends 15 determination of whether his allegations imply his conviction was unlawful requires 16 looking at the factual basis for the conviction. Plaintiff maintains the factual basis of his 17 misdemeanor plea, that he “willfully prevented an officer from performing his or her duty,” 18 does not establish he used violence against Defendant McNett. (ECF 6 at 6). Plaintiff 19 contends, Defendants’ argument is based on an unsupported notion that the Penal Code § 20 69 conviction proves Plaintiff used violence against the officer. He argues the 21 unlawfulness of Defendant McNett’s actions has no bearing on the legal validity of the § 22 69 conviction. In addition, Plaintiff argues the actions that are the basis of his claims are 23 temporally distinct from his act of resisting being handcuffed. 24 Plaintiff pleaded guilty to a single count of violating California Penal Code § 69 (a), 25 a misdemeanor. (ECF No. 5-2 at 20). Under Penal Code § 69 (a), 26 Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer 27 by law, or who knowingly resists, by the use of force or violence, the officer, in 28 the performance of his or her duty, is punishable by a fine not exceeding ten 1 thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and 2 imprisonment. 3 4 Plaintiff waived a preliminary hearing and stipulated he “did willfully prevent [the] officer 5 from performing [his] duty.” (ECF No. 5-2 at 22). 6 In support of his first and second causes of action, Plaintiff alleges Defendant 7 McNett used excessive force in violation of his Fourth Amendment and Fourteenth 8 Amendments rights. (ECF No. 1 ¶ 31). Specifically, he alleges Defendant McNett 9 assaulted him by executing a “leg sweep”, sitting on top of his neck with his knee and 10 continuously bending Plaintiff’s handcuffed wrists while sitting on him to cause him 11 further pain. (Id. ¶¶ 1,14, 19, 20). 12 In Hooper v. Cnty. of San Diego, the Ninth Circuit recognized that the California 13 Supreme Court held that a conviction under California Penal Code § 148 (a)(1) can be valid 14 even if, during a single continuous chain of events, some of the officer’s conduct was 15 unlawful because § 148 (a)(1) contains no requirement that there be a distinct temporal 16 separation between the use of reasonable force and the use of excessive force. 629 F.3d 17 1127, 1132 (9th Cir. 2011) (citing Yount, 43 Cal.4th 885). Specifically, the court found 18 that “[s]ection 148(a)(1) does not require that an officer’s lawful and unlawful behavior be 19 divisible into discrete ‘phases’ or time periods.” Id. It recognized that “[i]t is sufficient 20 for a valid conviction under section 148(a)(1) that at some time during a continuous 21 transaction an individual resisted, delayed or obstructed an officer when the officer was 22 acting lawfully” and “[i]t does not matter that the officer might also, at some other time 23 during that same continuous transaction, have acted unlawfully.” Id. 24 § 69 (a) shares § 148 (a)(1)’s element of deterring or delaying an executive officer 25 from performing their duties. Similar to the facts in Yount, Plaintiff’s allegations show his 26 acts of resistance were part of one continuous transaction involving Defendant McNett’s 27 efforts to effect his arrest and cannot be segregated into an investigation stage and 28 independent arrest phase. Plaintiff alleges he resisted when Defendant McNett first 1 attempted to arrest him but alleges Defendant McNett responded with excessive force to 2 effect his arrest. Plaintiff’s act of resisting, which is a violation of § 69 (a), does not lose 3 its character as a violation of § 69 (a), “if at some other time during the same ‘continuous 4 transaction,” [Defendant McNett] use[d] excessive force.” Id. 5 Here, the unlawfulness of Plaintiff’s attempt to resist his arrest does not necessarily 6 negate the subsequent use of allegedly excessive force by Defendant McNett. Though 7 occurring in one continuous chain of events, two isolated factual contexts could exist, the 8 first, Plaintiff resisting arrest giving rise to criminal liability and the second, during which 9 Defendant McNett allegedly used excessive force giving rise to civil liability. Therefore, 10 Plaintiff’s claims, if proven, would not necessarily imply the invalidity of his conviction 11 nor be an impermissible collateral attack on his criminal conviction. Accordingly, the 12 Court DENIES Defendant’s motion to dismiss as barred by Heck and Yount. 13 B. Bane Act 14 Defendants argue Plaintiff fails to state a claim under the Bane Act. The Bane Act 15 provides a private cause of action for “[a]ny individual whose exercise or enjoyment of 16 rights secured by the Constitution or laws of the United States, or of rights secured by the 17 Constitution or laws of [California], has been interfered with, or attempted to be interfered 18 with through the use of “threat, intimidation, or coercion.” Cal. Civ. Code § 52.1(a). 19 Allegations of excessive force can be enough to satisfy the “threat, intimidation or 20 coercion” element. Reese v. Cnty of Sacramento, 888 F.3d 1030, 1043-44 (citing Cornell 21 v. City and Cnty of San Francisco, 17 Cal.App.5th 766 (2017)). However, an excessive 22 force claim under “the Bane act requires a ‘a specific intent’ to violate the arrestee’s 23 [constitutional] right.” Id. at 1043. 24 Defendant contends that Plaintiff’s Bane Act claim is supported by only conclusory 25 allegations. Specifically, Defendant contends Plaintiff fails to allege Defendant McNett 26 used threats, intimidation, or coercion to violate his constitutional rights and fails to allege 27 facts showing that Officer McNett intended to violate Plaintiff’s rights other than just 28 concluding that he did so. Therefore, Defendant argues, the Court should dismiss this cause 1 of action. In opposition, Plaintiff argues that the Bane Act cause of action incorporates by 2 reference the detailed statement of facts of the Complaint, which “extensively illustrat[e] 3 the violent and coercive tactics employed by Officer McNett.” (ECF No. 5 at 8). He 4 specifically points to the allegations that Defendant McNett abruptly used a high degree of 5 force against Plaintiff, causing him serious injuries, at a time when he was either minimally 6 resistant or entirely unresistant and lying flat on his face on the concrete. 7 “Plaintiff reasserts, realleges, and incorporates” the allegations contained in the 8 preceding paragraphs of his complaint in support of his Bane Act claim. (ECF No. 1 ¶ 30). 9 In those preceding paragraphs, Plaintiff specifically alleges that Defendant McNett used 10 excessive force by executing a “leg sweep”, driving him face first into the concrete, 11 shattering his eye-socket, cheek and mandible, and while sitting on top of Plaintiff’s neck 12 with his knee, he continuously bent Plaintiff’s handcuffed wrists, even after Plaintiff 13 informed Defendant McNett that his wrist was hurting. (ECF No. 1 ¶¶ 1, 2, 14, 19, 20, 22, 14 23, 24). Assuming the truth of all factual allegations and construing all inferences from 15 them in the light most favorable to Plaintiff, the allegations set forth in the complaint 16 illustrate that Defendant McNett consciously disregarded a substantial and unjustifiable 17 risk when he sat on the Plaintiff’s neck with his knee and continuously bent Plaintiff’s 18 handcuffed wrist even after being informed that Plaintiff was in pain. Id. Reckless 19 disregard for Plaintiff’s “constitutional rights is evidence of a specific intent to deprive that 20 person of those rights.” Reese, 888 F.3d at 1045 (citing United States v. Reese, 2 F.3d 870, 21 885 (9th Cir. 1993)). Therefore, the Court finds that Plaintiff’s allegations sufficiently 22 allege specific intent to deprive him of his constitutional rights and properly allege a Bane 23 Act claim. Accordingly, the Court DENIES Defendant’s motion to dismiss the Bane Act 24 claim. 25 C. 42 U.S.C. § 1983 - Monell Liability 26 Defendant City argues Plaintiff fails to properly allege a Monell claim. 27 Municipalities may be held directly liable under 42 U.S.C. § 1983 for constitutional 28 violations, but not liable based on a respondeat superior theory. Monell v. Dep’t of Soc. 1 Servs., 436 U.S. 658, 691 (1978). If an employee commits an alleged constitutional 2 violation pursuant to a formal governmental policy or a longstanding practice or custom 3 which constitutes the standard operating procedure of the local governmental entity, a 4 municipality may be liable under 42 U.S.C. § 1983. Trevino v. Gates, 99 F.3d 911, 918 5 (9th Cir. 1996). Absent a formal governmental policy or procedure, plaintiff must show a 6 “longstanding practice or custom which constitutes the standard operating procedure of the 7 local government entity.” Id. (citing Gillette v. Delmore, 970 F.2d 1342, 1346-47 (9th Cir. 8 1992)). “[A] custom or practice can be inferred from . . . evidence of repeated 9 constitutional violations for which the errant municipal officers were not discharged or 10 reprimanded.” Velazquez v. City of Long Beach, 793 F.3d 1010, 1027 (9th Cir. 2015); 11 (citing Hunter v. Cnty of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011)) (internal 12 quotation marks omitted). 13 Plaintiff alleges several theories of Monell liability: (1) Defendant McNett was not 14 disciplined in a timely way; and (2) the Department failed to adequately train and supervise 15 him and allowed him to continue performing his duties as a patrol officer. (ECF No. 1 at 16 12). 17 1. Failure to Discipline in a Timely Manner 18 Defendant City argues that Internal Affairs timing and discipline determinations are 19 matters that are largely protected by various investigative and discretionary immunities. 20 Furthermore, Defendant argues that Plaintiff has pled no allegations that Internal Affair’s 21 determinations amounted to any deliberate indifference or a widespread and systematic 22 deprivation of constitutional rights throughout the City’s Internal Affairs. In opposition, 23 Plaintiff alleges that despite the mounting evidence by Internal Affairs that Defendant 24 McNett engaged in a pattern of unreasonable and excessive use of force prior to the August 25 31, 2019, incident with Plaintiff, Defendant McNett was allowed, by the San Diego Police 26 Department, to continue acting as a patrol officer and was not disciplined in a timely way. 27 In the complaint, Plaintiff alleges two other use of force incidents involving 28 Defendant McNett within the city of San Diego. Plaintiff alleges the first incident occurred 1 in May 2019 on the boardwalk in Pacific Beach. (ECF No. 1. ¶ 42). A woman reported to 2 the San Diego Police Department that Defendant McNett used excessive force against her 3 when he performed an improper arrest for simply holding an unlit cigarette and then 4 handcuffed her and overtightened her handcuffs. (Id. ¶ 43). A witness reported that 5 “McNett manhandled [the woman] and put her hands behind her back” while writing her a 6 ticket. (Id.). An Internal Affairs report from the San Diego Police Department concluded 7 that Defendant McNett did not have probable cause to make an arrest but determined he 8 did not overtighten the handcuffs. (Id. ¶ 44). However, the internal affairs report stated it 9 was not “clear whether Officer McNett actually used physical force while detaining” the 10 woman. (Id.). Defendant McNett was not disciplined by the San Diego Police Department 11 until June of 2020 for the incident even though Internal Affairs determined ten months 12 earlier, on August 7, 2019, that the arrest was illegal. (Id. ¶ 45). Defendant McNett would 13 later refuse to sign the forms documenting his reprimand. (Id. ¶ 46). 14 The second incident occurred in June 2019 when Defendant McNett arrested a 15 woman near the boardwalk in Pacific beach for smoking. (Id. ¶ 47). According to a May 16 2019 complaint, Defendant McNett pulled the woman out of a patrol car and sprayed her 17 directly in the face with pepper spray for four seconds while she was lying on the ground, 18 handcuffed and motionless, for five seconds prior to the deployment of the pepper spray. 19 (Id. ¶ 48). Defendant McNett later claimed in a police report that his actions were in 20 response to the woman kicking him. (Id.) Defendant McNett’s body camera captured him 21 dousing the handcuffed, prone woman directly in the face with pepper spray. (Id. ¶ 49). 22 An Internal Affairs report from the San Diego Police Department concluded that Defendant 23 McNett had misrepresented the reason he used force against the woman and that his body 24 camera contradicted his claim he had been kicked. (Id.¶ 50). Defendant McNett was 25 disciplined for this incident more than two and a half years later on March 24, 2022. (Id. 26 ¶ 51). Defendant McNett refused to sign the forms documenting his reprimand. (Id. ¶ 52). 27 The Court finds these incidents involving Defendant McNett are similar to the 28 incident in the pending case. First, they occurred within a four-month timeframe. Second, 1 they occurred within the boardwalk areas of Mission Beach and Pacific Beach, both areas 2 of the city of San Diego where Defendant McNett was patrolling with heavy foot traffic. 3 Third, they involved offenses that are usually resolved with issuing a citation. Fourth, and 4 most importantly, they involved allegations that Defendant McNett used excessive force 5 and misrepresented the reason for and amount of force he used. These incidents which 6 resulted in Internal Affairs investigations support Plaintiff’s allegations that the San Diego 7 Police Department was put on notice Defendant McNett engaged in a pattern of using 8 unconstitutional excessive force and took no action. The Court finds these incidents are 9 sufficient to allege a pattern, custom or policy of deliberate indifference on part of the City 10 of not disciplining Officer McNett in a timely way for incidents of excessive force. 11 2. Failure to Train and Supervise 12 Defendant City of San Diego argues that Plaintiff fails to plead facts showing a 13 “particular deficiency in the City’s police program or supervisory program.” (ECF No. 5- 14 1 at 13). Defendant further argues Plaintiff fails to allege any facts indicating a policy, or 15 pattern of excessive force or deliberate indifference on the part of the City beyond 16 Defendant McNett’s prior actions. In support of his claim, Plaintiff relies on the incidents 17 involving Defendant McNett that the Court outlined above in alleging Defendant McNett 18 was not retrained on the use of force prior to the August 31, 2019, incident. 19 Under Monell, a municipality can be liable under 42 U.S.C § 1983 for polices of 20 action as well of policies of inaction. Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014); 21 see Gibson v. Cnty. Of Washoe, 290 F.3d 1175, 1185-86 (9th Cir. 2002). “A failure to 22 implement procedural safeguards to prevent constitutional violations” by a municipality 23 constitutes a policy of inaction. Jackson, 290 F.3d at 763; (citing Tsao v. Desert Palace, 24 Inc., 698 F.3d 1128, 1143 (9th Cir. 2012)). For inaction cases, a plaintiff must first show 25 “that [the] policy amounts to deliberate indifference to the plaintiff’s constitutional right.” 26 Id. (citations and internal quotation marks omitted). “[D]eliberate indifference’ is a 27 stringent standard of fault, requiring proof that a municipal actor disregarded a known or 28 obvious consequence of his action.” Board of Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 1 397, 410 (1997). The plaintiff must then show “that the policy caused the violation in the 2 sense the municipality could have prevented the violation with an appropriate policy.” 3 Jackson, 290 F.3d at 763; (citing Tsao 698 F.3d at 1143 (citations and internal quotation 4 marks omitted)). Additionally, the plaintiff must show that the defendant municipality 5 “was on actual or constructive notice that its omission would likely result in a constitutional 6 violation.” Id. (citations omitted). 7 Plaintiff provides ‘a short and plain statement of the claim’ that includes other 8 similar incidents that sufficiently allege a pattern of deliberate indifference on the behalf 9 of the City. The Department’s failure to train or supervise Defendant McNett, even after 10 they had determined on August 7, 2019, nearly three weeks before Plaintiff’s August 31, 11 2019 incident, that Defendant McNett conducted an illegal arrest and were aware of the 12 allegations of excessive force in two incidents months prior, indicates a pattern of 13 deliberate indifference on behalf of the City. The allegations demonstrate the San Diego 14 Police Department failed to properly supervise Defendant McNett and failed to address 15 Defendant McNett’s use of excessive force with training, despite ample time to remedy the 16 issue before the August 31, 2019, incident. Additionally, the two other use of force 17 incidents involving Defendant McNett within the city of San Diego provide sufficient 18 similarities to the incident in this action to show the incidents are not isolated or sporadic. 19 Assuming the truth of all factual allegations and construing all inferences from them in the 20 light most favorable to Plaintiff, the Court finds that Plaintiff’s allegations that the City 21 made a deliberate choice to avoid adequate supervision and training are sufficient to 22 survive a motion to dismiss. 23 Accordingly, the Court DENIES Defendants’ motion to dismiss for failure to state 24 a claim. 25 CONCLUSION 26 For the foregoing reasons, IT IS HEREBY ORDERED: 27 (1) Defendants’ Request for Judicial Notice is GRANTED IN PART AND 28 DENIED IN PART. The Request is GRANTED as to Arresting Officer Herzog’s Police Report and the District Attorney’s Criminal Complaint Against Plaintiff and 2 DENIED at to Plaintiff's Guilty Plea Documentation. 3 (2) Defendants’ Motion to Dismiss the Complaint is DENIED. 4 || DATED: October 12, 2023

7 JOHN A. HOUSTON WITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28