McMillan v. County of Shasta

• Court: District Court, E.D. California
• Decided: February 2, 2021
• Docket: 2:20-cv-00564
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 JAMES I. McMILLAN, No. 2:20-cv-00564 JAM-JDP 13 Plaintiff, 14 v. ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS 15 COUNTY OF SHASTA, a public entity, et al., 16 Defendants. 17 18 This lawsuit exemplifies the well-known adage that if you 19 play with fire, you are likely to get burned. 20 On the evening of March 7, 2019, firemen in Anderson, 21 California responded to a report of fire at a local residence. 22 Second Amended Complaint (“SAC”) ¶ 6, ECF No. 20. At the 23 residence, the Anderson firemen found James I. McMillan 24 (“Plaintiff”). Id. Plaintiff was subsequently arrested and 25 transported to the Shasta County Jail. Id. ¶¶ 12,17. Criminal 26 charges were brought against Plaintiff and ultimately he entered 27 a no contest plea in the criminal proceeding. Id. ¶ 52. 28 Contending his arrest and custody at the Shasta County Jail 1 were unlawful, Plaintiff, a licensed attorney representing 2 himself, brought this action under Section 1983 of the Civil 3 Rights Act. See Complaint (“Compl.”), ECF No. 1. On August 12, 4 2020, Plaintiff filed a 47-page Second Amended Complaint with 5 sixteen causes of action against: the County of Shasta, the City 6 of Anderson, the Anderson Fire Protection District, the Anderson 7 Fire Chief Steve Lowe, Anderson Police Officer Kameron Lee, 8 Shasta County Sheriff-Coroner Bonsenko, County Jail Captain Dave 9 Kent, California Forensic Medical Group, and Jail Nurses Linda 10 Smith and Amanda Ream (collectively “Defendants”). See SAC. 11 Before the Court are two separate motions to dismiss by: 12 (1) the Anderson Fire Protection District and Fire Chief Steve 13 Lowe (collectively “the Fire Defendants”), and (2) the City of 14 Anderson and Anderson Police Officer Kameron Lee (collectively 15 “the City Defendants”). Mot. to Dismiss by Anderson Fire 16 Protection District and Chief Lowe (“Fire Mot.”), ECF No. 24; 17 Mot. to Dismiss by City of Anderson and Officer Lee (“City 18 Mot.”), ECF No. 25. Plaintiff opposed both motions. Opp’n to 19 Fire Mot. (“Fire Opp’n”), ECF No. 32; Opp’n to City Mot. (“City 20 Opp’n”), ECF No. 33. Defendants then replied. Reply by City 21 Defendants (“City Reply”), ECF No. 35; Reply by Fire Defendants 22 (“Fire Reply”), ECF No. 36. 23 For the reasons set forth below, the Court GRANTS 24 Defendants’ motions to dismiss.1 25 26

27 1 These motions were determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for October 27, 2020. 1 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 2 Around 10 p.m. on March 7, 2019, Anderson firemen responded 3 to reports of fire at a residential property where Plaintiff was 4 located. SAC ¶ 6. Plaintiff reluctantly led the firemen to the 5 backyard, where three small metal cans were discovered at the 6 bottom of an empty swimming pool. Id. Shortly thereafter, the 7 Anderson Fire Chief Steve Lowe (“Lowe”) arrived at the scene 8 along with a few Anderson Police officers, including Officer 9 Kameron Lee (“Lee”). Id. ¶¶ 8,10. Lowe asked Plaintiff to 10 provide his name, age, and driver’s license. Id. ¶ 8. Plaintiff 11 refused to provide his license insisting he was not required to 12 by law since he had not been driving. Id. ¶9. Lowe then 13 prepared a citation for violations of Cal. Health and Safety Code 14 Section 42400.2(c) and Cal. Penal Code Section 148(a)(1) and 15 asked Plaintiff to sign. Id. ¶ 11. Plaintiff refused. Id. He 16 was then arrested. Id. ¶ 12. 17 Plaintiff claims that Fire Chief Lowe placed him under 18 arrest. Id. Yet, all other factual allegations address only 19 Officer Lee’s actions: Lee handcuffed Plaintiff, Lee searched 20 him, Lee found and seized Plaintiff’s wallet taking out his 21 driver’s license to examine it, Lee took Plaintiff to his police 22 cruiser and ordered Plaintiff to get in, and finally Lee shut the 23 door on Plaintiff’s feet after warning him twice he was going to 24 do so. Id. ¶¶ 12-15. Lee’s actions caused Plaintiff pain and 25 physical injury. Id. ¶¶ 14-19. 26 Leaving Plaintiff in the back of his cruiser, Lee went over 27 to chat with other Anderson officers and firemen, including Lowe. 28 Id. ¶ 17. Ten minutes later, Lowe approached the cruiser, opened 1 the door, and asked Plaintiff if he was ready to sign the 2 citation. Id. Plaintiff again refused. Id. At that point, Lee 3 transported Plaintiff to the Shasta County Jail. Id. Plaintiff 4 remained in custody at the Shasta County Jail for twenty-six 5 hours.2 6 In the state court criminal proceedings that followed, 7 Plaintiff pled no contest to a violation of Pub. Resource Code 8 Section 4291 (Structures in Mountainous Areas: Flammable 9 Materials). Fire Opp’n at 5. However, Plaintiff alleges Lowe 10 fabricated evidence against him in these proceedings, submitting 11 what Plaintiff calls the “bogus” Investigative Narrative report 12 to the Shasta County Superior Court. Id. ¶¶ 40-42, 116. 13 II. OPINION 14 A. Judicial Notice 15 Rule 201 of the Federal Rules of Evidence allows a court to 16 take judicial notice of an adjudicative fact that is “not 17 subject to reasonable dispute,” because it (1) “is generally 18 known within the trial court’s territorial jurisdiction”; or 19 (2) “can be accurately and readily determined from sources whose 20 accuracy cannot reasonably be questioned.” Fed. R. Evid. 21 201(a)–(b). A court may take judicial notice of matters of 22 public record. United States ex rel. Lee v. Corinthian 23 Colleges, 655 F.3d 984, 999 (9th Cir. 2011). Matters of public 24 record include “documents on file in federal or state courts.” 25 Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). 26 2 Plaintiff’s allegations concerning his time in custody at the 27 Shasta County Jail, see SAC ¶¶ 20-37, are not discussed here as they do not involve the Fire or City Defendants and therefore are 28 not relevant to the present Motions. 1 They also include “government documents available from reliable 2 sources on the internet.” Cal. River Watch v. City of 3 Vacaville, No. 2:17-cv-00524-KJM-KJN, 2017 WL 3840265, at *2 n.1 4 (E.D. Cal. Sept. 1, 2017). 5 Fire Defendants ask the Court to take judicial notice of 6 the fact that Plaintiff is a licensed attorney in California. 7 See Fire Defs.’ Req. for Judicial Notice (“RJN”), ECF No. 24-1. 8 City Defendants request the Court take judicial notice of the 9 criminal complaint and docket from Plaintiff’s state court 10 criminal proceedings. See City Defs.’ RJN, ECF No. 25-2. 11 Plaintiff does not oppose Defendants’ requests, but does ask the 12 Court to take judicial notice of the first amended complaint in 13 Knighten v. City of Anderson, No. 2:15-cv-01751 (E.D. Cal. April 14 29, 2020). See Pl.’s RJN, ECF No. 34-1. The Court finds 15 Plaintiff’s State Bar of California record, the documents from 16 Plaintiff’s state court criminal proceedings, and the Knighten 17 complaint all to be matters of public record, and, therefore, 18 proper subjects of judicial notice. 19 Accordingly, the Court GRANTS all parties’ Requests for 20 Judicial Notice. In doing so, the Court judicially notices only 21 “the contents of the documents, not the truth of those contents.” 22 Gish v. Newsom, No. EDCV 20-755-JGB(KKx), at *2 (C.D. Cal. April 23 23, 2020). 24 B. Legal Standard 25 Federal Rule of Civil Procedure 8(a)(2) requires “a short 26 and plain statement of the claim showing that the pleader is 27 entitled to relief.” Fed. R. Civ. Proc. 8(a)(2). Courts must 28 dismiss a suit if the plaintiff fails to “state a claim upon 1 which relief can be granted.” Fed. R. Civ. Proc. 12(b)(6). To 2 defeat a Rule 12(b)(6) motion to dismiss, a plaintiff must 3 “plead enough facts to state a claim to relief that is plausible 4 on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 5 (2007). This plausibility standard requires “factual content 6 that allows the court to draw a reasonable inference that the 7 defendant is liable for the misconduct alleged.” Ashcroft v. 8 Iqbal, 556 U.S. 662, 678 (2009). At this stage, the Court “must 9 accept as true all of the allegations contained in a complaint.” 10 Id. But it need not “accept as true a legal conclusion couched 11 as a factual allegation.” Id. 12 C. Analysis 13 1. Section 1983 Claims 14 Plaintiff’s Section 1983 claims against the Fire and City 15 Defendants are not clearly or precisely pled and the Court has 16 made its best effort to properly evaluate these claims, including 17 considering the facts in the light most favorable to Plaintiff. 18 However, because Plaintiff mixes factual allegations and legal 19 arguments in a confusing manner and in particular has captioned 20 claims unclearly, the Court “cannot be sure [it] ha[s] correctly 21 understood all the averments.” McHenry v. Renne, 84 F.3d 1172, 22 1174 (9th. Cir. 1996) (finding the Plaintiffs’ 53-page long 23 complaint to be confusing and unfairly burdensome). If the Court 24 has not, Plaintiff has “only [himself] to blame.” Id. 25 Plaintiff’s claims under federal law include the following: 26 his first 1983 claim against both the Fire and City Defendants 27 for unreasonable search and seizure under the Fourth Amendment. 28 SAC ¶¶ 50-52. His second claim against the City Defendants for 1 cruel and unusual Punishment under the Eighth Amendment, 2 deliberate indifference under the Fourteenth Amendment, and 3 excessive force under the Fourth Amendment. Id. ¶¶ 53-55. His 4 third claim against the Fire Defendants likewise for cruel and 5 unusual Punishment under the Eighth Amendment, deliberate 6 indifference under the Fourteenth Amendment, and excessive force 7 under the Fourth Amendment. Id. ¶¶ 56-59. His sixth claim 8 against Lowe for judicial deception and fabrication of evidence 9 under the Fourteenth Amendment. Id. ¶¶ 67-75. His seventh claim, 10 a Monell claim, against the City of Anderson. Id. ¶¶ 76-79. His 11 eighth claim, also a Monell claim, against Anderson Fire 12 Protection District. Id. ¶¶ 80-108. Defendants move to dismiss 13 all of these claims. Fire Mot. at 3; City Mot. at 2. 14 a. First Claim: Fourth Amendment 15 Defendants argue that Plaintiff fails to state a claim for 16 an unreasonable search under the Fourth Amendment because Lee 17 performed a lawful search incident to arrest pursuant to U.S. v. 18 Robinson, 414 U.S. 218 (1973). City Mot. at 6; Fire Mot. at 7-9. 19 The Court agrees. 20 In Robinson, the Supreme Court held that searches incident 21 to a lawful arrest are not only an exception to the warrant 22 requirement, but also a reasonable search under the Fourth 23 Amendment. 414 U.S. at 235. Here, Plaintiff alleges the 24 unreasonable search took place when Lee “removed [his] wallet and 25 examined it without a warrant”, and did so “without justification 26 or authority, and without probable cause, exigency, or court 27 order.” SAC ¶ 51. But, as Defendants point out, Lee searched 28 Plaintiff’s wallet after he had been lawfully arrested following 1 his refusal to sign the citation confirming that he would appear 2 in court. Id. ¶¶ 11-12. Because Lee’s search of Plaintiff was 3 incident to a lawful arrest, it was permissible under Robinson. 4 To avoid the clear application of Robinson, Plaintiff 5 challenges the lawfulness of the predicate arrest. City Opp’n 6 at 3-6. This argument, however, is foreclosed by Heck v. 7 Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held 8 that “to recover damages for an allegedly unconstitutional 9 conviction or imprisonment, or for other harm caused by actions 10 whose unlawfulness would render a conviction or sentence 11 invalid, a Section 1983 plaintiff must prove that the conviction 12 or sentence has been” reversed, expunged, declared invalid, or 13 called into question. 512 U.S. at 487. In other words, if a 14 Plaintiff brings a claim for damages based on “a conviction or 15 sentence that has not been so invalidated,” the claim is not 16 cognizable under Section 1983. Id. Therefore, when a state 17 prisoner seeks damages in a Section 1983 suit, the district 18 court “must consider whether a judgment in favor of the 19 plaintiff would necessarily imply the invalidity of his 20 conviction or sentence.” Id. If it would, the complaint must 21 be dismissed unless the plaintiff can demonstrate that the 22 conviction or sentence has already been invalidated. Id. 23 Here, Plaintiff admits he pled no contest to violating Pub. 24 Resource Code § 4291 and that this conviction has not been 25 invalidated to date. Fire Opp’n at 5; City Opp’n at 4. 26 Nevertheless, Plaintiff insists that the Heck bar does not apply 27 and therefore that he may challenge his arrest. City Opp’n at 28 3-6. Specifically, Plaintiff’s argument seems to be that a no 1 contest plea to a “disassociated” charge cannot be treated as a 2 conviction for Heck purposes. Id. To support this contention, 3 Plaintiff cites to Lockett v. Ericson, 656 F.3d 892 (9th Cir. 4 2011), and Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005). 5 City Opp’n at 5. But, as Defendants argue in their briefs, 6 these two cases are readily distinguishable and do not further 7 Plaintiff’s argument that the Heck bar does not apply in light 8 of his no contest plea. Fire Reply at 2-3; City Reply at 2. 9 Lockett concerned evidence from an allegedly unlawful search 10 that preceded the plaintiff’s arrest. 656 F.3d at 894-895. 11 Here, the search Plaintiff challenges occurred after Plaintiff 12 had been arrested. SAC ¶¶ 12-13. Moreover, unlike the 13 plaintiff in Lockett, Plaintiff here does not challenge 14 illegally obtained evidence, see 656 F.3d at 895; rather he is 15 challenging the arrest itself. Lockett is therefore inapposite. 16 Likewise, Smith does not help Plaintiff because the Smith Court 17 made clear that a section 1983 claim targeting the arrest itself 18 and aiming to show the officers were “acting unlawfully at the 19 time [the] arrest was effected”– is barred by Heck. 394 F.3d at 20 697. Nor does Plaintiff address the authority unfavorable to 21 his position, in which courts have treated a no contest plea as 22 a conviction for Heck purposes. See e.g. Szajer v. City of Los 23 Angeles, 632 F. 3d 607 (9th Cir. 2011) (affirming the district 24 court’s treatment of plaintiffs’ no contest plea as a conviction 25 for Heck purposes and application and subsequent application of 26 the Heck bar). 27 Plaintiff further argues his plea to violation of Pub. 28 Resources Section 4291 cannot be a basis for Heck because he was 1 not initially charged with a violation of this code section and 2 it bears no significant factual relationship to the original 3 charges. City Opp’n at 4. Plaintiff does not cite any 4 authority to support this argument. Nor does he account for the 5 fact that his plea to Pub. Resources Code § 4291 was made in 6 exchange for a dismissal of the original charges of Cal. Health 7 and Safety Code §§ 41800/42400. City Reply at 2. Finally, the 8 plain language of the code sections belies Plaintiff’s 9 contention that there is no significant relationship between the 10 original charges and the Section 2491 charge. Id. at 2 n.2. 11 The Court thus finds that Plaintiff’s arguments as to why 12 the Heck bar does not apply are without merit. By contrast, 13 Defendants have persuasively argued that if Plaintiff were to 14 successfully challenge his arrest, that would necessarily imply 15 the invalidity of his conviction. Thus, the Court finds the 16 Heck bar applies. 17 The only remaining question is whether Plaintiff can 18 demonstrate that his conviction has already been invalidated in 19 order to avoid dismissal on Heck grounds. Heck, 512 U.S. at 20 487. Plaintiff points out his plea involved a deferred entry of 21 judgment by which his charge will be dismissed in June 2021 if 22 he commits no crimes before then. Fire Opp’n at 7; City Opp’n 23 at 4. However, the fact that Plaintiff’s conviction may 24 eventually be invalidated is of no avail to him now. The 25 language of Heck is clear: the conviction must have “already 26 been invalidated.” 512 U.S. at 487. Plaintiff cannot make this 27 showing and therefore cannot avoid dismissal on Heck grounds. 28 In sum, because Heck bars Plaintiff from collaterally 1 attacking the lawfulness of the predicate arrest and because 2 Plaintiff cannot show his conviction has been invalidated to 3 avoid the Heck bar, the Court finds Officer Lee’s search was 4 incident to a lawful arrest and thereby reasonable under 5 Robinson. 6 Accordingly, Plaintiff has failed to state a claim for 7 unreasonable search in violation of the Fourth Amendment. 8 Plaintiff’s first claim for relief is dismissed with prejudice. 9 See Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002) 10 (finding leave to amend need not be granted when amendment would 11 be futile). 12 b. Sixth Claim: Fourteenth Amendment 13 Fire Defendants argue that Plaintiff’s sixth claim against 14 Chief Lowe for judicial deception and fabrication of evidence is 15 also barred by Heck. Fire Mot. at 11-12. As discussed above, 16 Heck bars Section 1983 claims that would necessarily imply the 17 invalidity of the plaintiff’s conviction. 512 U.S. at 487. 18 Here, the application of Heck is straightforward: if this 19 Court were to find that the evidence submitted by Lowe to the 20 Shasta County Superior Court in his state criminal proceedings 21 was fabricated, that would necessarily imply the invalidity of 22 his conviction in those proceedings. 512 U.S. at 487. If 23 Plaintiff believed Lowe fabricated evidence, his remedy was to 24 contest the charges in state court. He did not. Instead, he 25 entered a no contest plea, which the state court accepted. Fire 26 Opp’n at 5. Heck prevents Plaintiff from now collaterally 27 attacking his conviction. As the Heck Court explained, a 28 plaintiff “has no cause of action under Section 1983 unless and 1 until the conviction or sentence is reversed, expunged, 2 invalidated, or impugned by the grant of a writ of habeas 3 corpus.” 512 U.S. at 489 (emphasis added). Here, there is no 4 allegation that Plaintiff’s conviction has been invalidated. As 5 such, this claim against Lowe is barred by Heck. 6 In a last-ditch effort to avoid the Heck bar, Plaintiff 7 argues in his opposition brief that the fabricated evidence is 8 separate and apart from his no contest plea and thus not subject 9 to Heck. Fire Opp’n at 5-7. But while Plaintiff may be able to 10 avoid the Heck bar through this line of argument, he runs into a 11 different issue that still renders him unable to state a claim. 12 Specifically, “to prevail on a § 1983 claim of deliberate 13 fabrication, a plaintiff must prove that (1) the defendant 14 official deliberately fabricated evidence and (2) the deliberate 15 fabrication caused the plaintiff's deprivation of liberty.” 16 Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017). By arguing 17 Lowe’s investigative report with the false statements is separate 18 and apart from his plea, Plaintiff can no longer explain how this 19 report caused a deprivation of liberty, as required under the 20 second prong of Spencer. Id. In this way, Plaintiff still fails 21 to state a claim for deliberate fabrication of evidence. 22 In sum, Plaintiff’s fabrication of evidence claim fails 23 “whether through Heck or by a simple failure to plead the 24 elements of his cause of action.” Fire Reply at 4. Accordingly, 25 Plaintiff’s sixth claim is dismissed with prejudice as the Court 26 also finds that further amendment would be futile. 27 c. Second and Third Claims: Excessive Force 28 As a preliminary matter, Plaintiff’s second and third claims 1 for relief are both improperly captioned in part “Fourteenth and 2 Fourth Amendments – Search, Seizure, Cruel and Unusual 3 Punishment, Deliberate Indifference.” SAC at 21, 22. However, 4 as City Defendants point out, Plaintiff does not have a 5 cognizable claim for cruel and unusual punishment or deliberate 6 indifference under either the Eighth or Fourteenth Amendments 7 because Plaintiff was neither a convicted prisoner nor a pre- 8 trial detainee during his interactions with Officer Kameron Lee. 9 City Mot. at 7. Plaintiff does not dispute this in his 10 opposition briefs. See Fire Opp’n; City Opp’n. Accordingly, the 11 Court’s analysis of Plaintiff’s second and third claims is 12 limited to excessive force claims under the Fourth Amendment. 13 In Graham v. Connor, the Supreme Court held that all claims 14 that law enforcement officers have used excessive force in the 15 course of an arrest should be analyzed under the Fourth Amendment 16 and its “reasonableness” standard. 490 U.S. 386, 395 (1989). 17 Thus, courts evaluating excessive force claims ask whether the 18 officer’s actions were objectively reasonable based on the 19 information the officer had when the force was used. Id. at 397. 20 Plaintiff insists his allegations sufficiently demonstrate 21 Officer Lee’s use of force was unreasonable. City Opp’n at 6-8. 22 The Court disagrees. Taking Plaintiff’s allegations concerning 23 Lee’s use of force altogether, see SAC ¶¶ 12-19, and drawing all 24 inferences in Plaintiff’s favor, the Court does not find these 25 allegations show Lee’s application of force was unreasonable. 26 Rather, the allegations indicate only a reasonable use of force, 27 the kind of force to be expected during an arrest; and as the 28 Graham Court explained, the right to make an arrest “necessarily 1 carries with it the right to use some degree of physical coercion 2 or threat thereof,” thus not every use of physical force violates 3 the Fourth Amendment. Graham, 490 at 396. Here, Plaintiff’s 4 allegations – only two of which involve Lee actually applying 5 physical force, his placement of the handcuffs too tightly and 6 his shutting the door on Plaintiff’s feet after warning Plaintiff 7 twice that he was going to be shutting the door - do not 8 plausibly state a claim that Lee’s use of force was unreasonable 9 under Graham. SAC ¶¶ 14-19. Nor do the three cases Plaintiff 10 cites in opposition help him avoid dismissal; as City Defendants 11 discuss in their reply brief, each of those cases involved more 12 than a de minimis use of force, unlike here where the allegations 13 indicate that Lee’s force was de minimis. City Reply at 3. 14 In sum, because Plaintiff has not plausibly alleged Lee’s 15 use of force was unreasonable under Graham, he fails to state a 16 claim for excessive force against City Defendants. Plaintiff’s 17 second claim therefore is dismissed without prejudice. 18 So too must the third claim for relief, Plaintiff’s 19 excessive force claim against the Fire Defendants, be dismissed. 20 The only legal basis for this claim is that Fire Chief Lowe was 21 an “integral participant” in Officer Lee’s use of excessive 22 force. SAC ¶ 51; see also Boyd v. Benton County, 374 F.3d 773 23 (9th Cir.2004) (articulating the “integral participant” theory of 24 liability for Fourth Amendment excessive force claims). Because 25 the Court finds that Plaintiff has not plausibly alleged an 26 excessive force claim against Lee, there is no predicate claim 27 for Lowe’s liability as an integral participant to attach. That 28 is, Lowe cannot be found liable as an integral participant if 1 there was no unlawful use of force in the first instance. 2 Accordingly, Plaintiff’s third claim against the Fire 3 Defendants is dismissed without prejudice. 4 d. Seventh and Eighth Monell Claims 5 Defendants also move to dismiss Plaintiff’s seventh and 6 eighth Monell claims for failure to allege a custom or practice. 7 Fire Mot. at 12-13; City Mot. at 10-12. 8 Municipalities may be held liable under Section 1983 for 9 constitutional injuries inflicted through a municipal policy or 10 custom. Monell v. Dep’t of Soc. Servs. of City of New York, 436 11 U.S. 658, 694 (1978). To establish municipal liability under 12 Section 1983, a plaintiff must show that (1) he was deprived of a 13 constitutional right; (2) the municipality had a policy; (3) the 14 policy amounted to a deliberate indifference to his 15 constitutional right; and (4) the policy was the moving force 16 behind the constitutional violation. Anderson v. Warner, 451 17 F.3d 1063, 1070 (9th Cir. 2006) (internal citations and 18 quotations omitted). To properly state a Monell claim, 19 allegations in a complaint “may not simply recite the elements of 20 a cause of action, but must contain sufficient allegations of 21 underlying facts to give fair notice and to enable the opposing 22 party to defend itself effectively.” AE ex rel. Hernandez v. 23 Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr 24 v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). 25 Plaintiff insists that he “does not merely recite the 26 elements” of a Monell claim, and that he does not “rely on pure 27 conclusory allegations.” City Opp’n at 9. The Court does not 28 agree. Rather, the Court finds Plaintiff’s allegations, SAC 1 ¶¶ 76-108, to be entirely conclusory. The only factual 2 allegations are those of Plaintiff’s own encounter with the 3 Anderson police and firemen. Yet Plaintiff asks the Court to 4 infer from only his experience the existence of a policy or 5 practice. But the well-settled law is that his experience alone 6 is insufficient to state a Monell claim. See Hicks v. Cty. of 7 Stanislaus, 2018 WL 347790, at *6 (E.D. Cal. Jan. 10, 2018) (a 8 “pattern of similar constitutional violations by untrained 9 employees is ordinarily necessary … isolated incidents of alleged 10 wrongdoing do not suffice”); Cain v. City of Sacramento, 2017 WL 11 4410116, at *3 (E.D. Cal. Oct. 3, 2017) (explaining that 12 “[d]istrict courts have dismissed complaints where a plaintiff 13 alleged a single incident of unconstitutional conduct as the 14 basis for their Monell claim”). 15 Because Plaintiff’s allegations of his own experience alone 16 do not suffice to state a Monell claim, Plaintiff’s seventh3 and 17 eighth claims are dismissed without prejudice. 18 2. State Law Claims for Relief 19 The Court now turns to the remaining state law claims 20 against the City and Fire Defendants, which the Court again 21 interprets as best it can. Plaintiff’s ninth claim for relief is 22 for false arrest against Fire Chief Lowe. SAC ¶¶ 111-117. 23 Plaintiff’s tenth claim is for elder abuse against both City and 24 Fire Defendants. SAC ¶¶ 118-122. His twelfth claim is for 25 violation of the Bane Act against the City and Fire Defendants. 26 3 Plaintiff brings the seventh claim against both the City of 27 Anderson and the County of Shasta. SAC at 28. However, a motion to dismiss by the County is not before the Court. This claim is 28 therefore dismissed only as to the City Defendants. 1 SAC ¶¶ 129-146; see also Cal. Civ. Code §51.2. His thirteenth 2 claim is for negligence per se against the Fire and City 3 Defendants. SAC ¶¶ 147-152. His fourteenth claim is for 4 negligence against the Fire and City Defendants. SAC ¶¶ 153-155. 5 As a threshold matter, the Court finds that Plaintiff has 6 not meaningfully addressed either the Fire Defendants’ or the 7 City Defendants’ legal arguments as to why Plaintiff’s state law 8 claims should be dismissed for failure to state a claim. See 9 Fire Opp’n; City Opp’n. In his opposition to the Fire 10 Defendants’ Motion, Plaintiff merely points the Court back to 11 certain paragraphs of the SAC and declares his state law claims 12 “are factually supported within each claim by incorporation.” 13 Fire Opp’n at 10. In his opposition to the City Defendants’ 14 Motion, Plaintiff discusses his state law claims at greater 15 length, see City Opp’n at 12-15, but his discussion is largely 16 untethered from the law and unresponsive to the arguments City 17 Defendants advance in their Motion. 18 Given Plaintiff’s failure to meaningfully address 19 Defendants’ legal arguments, the Court finds dismissal of these 20 claims warranted. Accordingly, Plaintiff’s ninth, tenth, 21 twelfth, thirteenth, and fourteenth claims are dismissed without 22 prejudice. 23 24 III. ORDER 25 For the reasons set forth above, the Court GRANTS the City 26 Defendants and the Fire Defendants’ Motions to Dismiss. 27 Plaintiff’s first and sixth claims for relief are DISMISSED WITH 28 PREJUDICE. Plaintiff’s second, third, seventh and eighth claims nee nen meen ene nnn nn nn nn eNO I EE eee

1 for relief are DISMISSED WITHOUT PREJUDICE. Plaintiff’s state law 2 claims for relief (ninth, tenth, twelfth, thirteenth and 3 fourteenth) are DISMISSED WITHOUT PREJUDICE. 4 If Plaintiff elects to amend his complaint, he shall file an 5 | Amended Complaint within twenty (20) days of this Order. 6 Defendants’ responsive pleadings are due twenty (20) days 7 thereafter. 8 IT IS SO ORDERED. 9 Dated: February 1, 2021 10 kA 1 teiren staves odermacr 7008 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18