1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 JOHN MOFFITT, Case No. 24-cv-1445-MMA-DDL
13 Plaintiff, NOTICE AND ORDER PROVIDING 14 v. TENTATIVE RULINGS RE: DEFENDANT’S MOTION TO 15 COUNTY OF SAN DIEGO, et al., DISMISS 16 Defendants. [Doc. No. 22] 17 18 19 On May 7, 2025, Plaintiff John Moffitt (“Plaintiff”) and Defendant City of San 20 Diego (“the City”) will appear before the Court for a hearing on the City’s motion to 21 dismiss Plaintiff’s Third Amended Complaint. Doc. No. 22. In anticipation of the 22 hearing, the Court issues the following tentative ruling GRANTING IN PART and 23 DENYING IN PART the City’s motion. 24 As a preliminary matter, municipal departments and sub-units, including police 25 departments, are generally not considered “persons” within the meaning of Section 1983. 26 See Hervey v. Estes, 65 F.3d 784, 791–92 (9th Cir. 1995) (Finding that because an 27 intergovernmental narcotics taskforce was not a itself a municipality or independent local 28 governmental entity, but instead a municipality or local governmental entity’s creation, it 1 was “only subject to suit if the parties that created [it] intended to create a separate legal 2 entity.”); United States v. Kama, 394 F.3d 1236, 1239–40 (9th Cir. 2005) (Ferguson, J., 3 concurring) (noting local government departments and bureaus are generally not 4 considered “persons” within the meaning of § 1983). As such, neither the San Diego 5 County Sheriff’s Department, San Diego County Jail, nor San Diego Police Department 6 appear to be proper parties. Vance v. County of Santa Clara, 928 F. Supp. 993, 995–96 7 (C.D. Cal. 1996). The Court thus tentatively DISMISSES WITH PREJUDICE claims 8 as to the San Diego County Sheriff’s Department, San Diego County Jail, and San Diego 9 Police Department. 10 Turning to its motion, the City moves to dismiss Plaintiff’s Third Amended 11 Complaint insofar as he asserts claims against it. Doc. No. 22. It likewise moves to 12 dismiss Plaintiff’s claims against the Doe Defendants. Id. at 9–10. The City argues that 13 Plaintiff’s first and third causes of action—at least as alleged against the City—are truly a 14 single cause of action for excessive force in violation of Plaintiff’s Fourth Amendment 15 rights. Id. at 4. 1 The Court addressed this issue in previous orders and came to that the 16 same conclusion. See Doc. No. 19 at 6–7, 17. In his TAC, Plaintiff still does not remedy 17 or clarify the matter. Therefore, the Court will again construe the two causes of action, as 18 relevant to the City, as a single claim for excessive force in violation of Plaintiff’s Fourth 19 Amendment rights brought under 42 U.S.C. § 1983. 20 1. Doe Defendants 21 The City moves to dismiss Plaintiff’s claims against the Doe Defendants on the 22 grounds that the TAC fails to allege how each Doe Defendant “personally violated 23 [Plaintiff’s] constitutional rights” or behaved in a manner allowing liability. Doc. No. 22 24 at 9. While Plaintiff may refer to unnamed defendants as “Does” at the pleading stage, he 25 must still allege that Doe defendants personally participated in the alleged deprivation of 26
27 1 The Court has, in prior orders, determined that Plaintiff’s claims concerning his medical treatment in jail are asserted against the County of San Diego (“County”) and County employees. Doc. No. 19 at 7. 28 1 constitutional rights. See Brink v. Cnty. of San Diego, No. 23-cv-1756-DMS (SBC), 2 2024 WL 3315992 *3 (S.D. Cal. July 3, 2024). “A district court should dismiss claims 3 against Doe defendants in a Section 1983 suit when the complaint does not ‘even 4 minimally explain how any of the unidentified parties . . . personally caused a violation of 5 [the plaintiff’s] constitutional rights.’” Id. (quoting Estate of Serna v. Cnty. of San Diego, 6 No. 20-cv-2096-LAB (MSB), 2022 WL 827123, *3 (S.D. Cal. Mar. 18, 2022)). 7 In his TAC, Plaintiff describes the relevant Doe Defendants as follows: 8 At all relevant times, Defendant Officers, employed by the San Diego Police 9 Department, [were] actively involved in executing the arrest of Plaintiff . . . at 10 his residence. Defendant Officers had direct control over the deployment of a police canine and made the affirmative decision to release the dog into 11 Plaintiff’s apartment . . . . 12 13 Doc. No. 20 (“TAC”) ¶ 20. He expands on the referenced events described in detail. Id. 14 ¶¶ 22–24, 46. Plaintiff also identifies as Doe Defendants medical and custodial 15 employees in the County Jail, who he alleges violated his Fourteenth Amendment 16 rights—a claim not dealt with here, with similar particularity. TAC ¶ 20. Though not a 17 pinnacle of clarity, the Court tentatively finds that this sufficiently identifies how the Doe 18 Defendants each violated his rights or incurred liability. 19 The Court will also address the City’s arguments insofar as it asserts that Plaintiff 20 fails to state a claim for excessive force against the Doe Defendants. See Doc. No. 22 at 21 4–7. Claims that an officer used excessive force are analyzed under the Fourth 22 Amendment’s “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 23 388, 394–95 (1989). Courts in the Ninth Circuit: (1) assess the severity of the intrusion 24 on the individual’s Fourth Amendment rights by evaluating the type and amount of force 25 inflicted; (2) evaluate the government’s interest in the use of force; and (3) “balance the 26 gravity of the intrusion on the individual against the government’s need for that 27 intrusion.” Glenn v. Washington Cnty., 673 F.3d 864, 871 (9th Cir. 2011) (quoting Miller 28 v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003)). Though the most important factor is 1 whether the plaintiff “posed an immediate threat to the safety of the officers or others,” 2 the Court must consider the totality of the circumstances. Mattos v. Agarano, 661 F.3d 3 433, 441, 449 (9th Cir. 2011); see also Glenn., 673 F.3d at 872. Reasonableness “must 4 be judged from the perspective of a reasonable officer on the scene, rather than with the 5 20/20 vision of hindsight[,]” and cannot consider an officer’s subjective intentions. 6 Graham, 490 U.S. at 396–97; Cnty. of Los Angeles v. Mendez, 581 U.S. 420, 428 (2017). 7 Plaintiff alleges that when officers arrived at his apartment late at night, he was 8 asleep. TAC ¶ 46. He also alleges that at no point did he “threaten the officers, . . . lunge 9 at the officers . . . or do anything while in the apartment” that put the officers at risk. Id. 10 Despite this, he alleges that officers released a canine unit without “assess[ing] whether 11 the plaintiff was present . . . asleep, or awake,” or announcing themselves in way that 12 would not warn or awaken” him before releasing the canine unit. Id. Once released, the 13 canine bit him, causing severe bite wounds. Id. ¶¶ 24–27, 46, 62. At a motion to dismiss, 14 the Court must assume the truth of all factual allegations and must construe them in the 15 light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 16 336, 337–38 (9th Cir. 1996). 2 Here, the Court tentatively finds that Plaintiff sufficiently 17 pleads that officers’ use of force in effecting his arrest was unreasonable in light of the 18 circumstances. Thus, the Court tentatively DENIES the City’s motion on that basis. 19 2.
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 JOHN MOFFITT, Case No. 24-cv-1445-MMA-DDL
13 Plaintiff, NOTICE AND ORDER PROVIDING 14 v. TENTATIVE RULINGS RE: DEFENDANT’S MOTION TO 15 COUNTY OF SAN DIEGO, et al., DISMISS 16 Defendants. [Doc. No. 22] 17 18 19 On May 7, 2025, Plaintiff John Moffitt (“Plaintiff”) and Defendant City of San 20 Diego (“the City”) will appear before the Court for a hearing on the City’s motion to 21 dismiss Plaintiff’s Third Amended Complaint. Doc. No. 22. In anticipation of the 22 hearing, the Court issues the following tentative ruling GRANTING IN PART and 23 DENYING IN PART the City’s motion. 24 As a preliminary matter, municipal departments and sub-units, including police 25 departments, are generally not considered “persons” within the meaning of Section 1983. 26 See Hervey v. Estes, 65 F.3d 784, 791–92 (9th Cir. 1995) (Finding that because an 27 intergovernmental narcotics taskforce was not a itself a municipality or independent local 28 governmental entity, but instead a municipality or local governmental entity’s creation, it 1 was “only subject to suit if the parties that created [it] intended to create a separate legal 2 entity.”); United States v. Kama, 394 F.3d 1236, 1239–40 (9th Cir. 2005) (Ferguson, J., 3 concurring) (noting local government departments and bureaus are generally not 4 considered “persons” within the meaning of § 1983). As such, neither the San Diego 5 County Sheriff’s Department, San Diego County Jail, nor San Diego Police Department 6 appear to be proper parties. Vance v. County of Santa Clara, 928 F. Supp. 993, 995–96 7 (C.D. Cal. 1996). The Court thus tentatively DISMISSES WITH PREJUDICE claims 8 as to the San Diego County Sheriff’s Department, San Diego County Jail, and San Diego 9 Police Department. 10 Turning to its motion, the City moves to dismiss Plaintiff’s Third Amended 11 Complaint insofar as he asserts claims against it. Doc. No. 22. It likewise moves to 12 dismiss Plaintiff’s claims against the Doe Defendants. Id. at 9–10. The City argues that 13 Plaintiff’s first and third causes of action—at least as alleged against the City—are truly a 14 single cause of action for excessive force in violation of Plaintiff’s Fourth Amendment 15 rights. Id. at 4. 1 The Court addressed this issue in previous orders and came to that the 16 same conclusion. See Doc. No. 19 at 6–7, 17. In his TAC, Plaintiff still does not remedy 17 or clarify the matter. Therefore, the Court will again construe the two causes of action, as 18 relevant to the City, as a single claim for excessive force in violation of Plaintiff’s Fourth 19 Amendment rights brought under 42 U.S.C. § 1983. 20 1. Doe Defendants 21 The City moves to dismiss Plaintiff’s claims against the Doe Defendants on the 22 grounds that the TAC fails to allege how each Doe Defendant “personally violated 23 [Plaintiff’s] constitutional rights” or behaved in a manner allowing liability. Doc. No. 22 24 at 9. While Plaintiff may refer to unnamed defendants as “Does” at the pleading stage, he 25 must still allege that Doe defendants personally participated in the alleged deprivation of 26
27 1 The Court has, in prior orders, determined that Plaintiff’s claims concerning his medical treatment in jail are asserted against the County of San Diego (“County”) and County employees. Doc. No. 19 at 7. 28 1 constitutional rights. See Brink v. Cnty. of San Diego, No. 23-cv-1756-DMS (SBC), 2 2024 WL 3315992 *3 (S.D. Cal. July 3, 2024). “A district court should dismiss claims 3 against Doe defendants in a Section 1983 suit when the complaint does not ‘even 4 minimally explain how any of the unidentified parties . . . personally caused a violation of 5 [the plaintiff’s] constitutional rights.’” Id. (quoting Estate of Serna v. Cnty. of San Diego, 6 No. 20-cv-2096-LAB (MSB), 2022 WL 827123, *3 (S.D. Cal. Mar. 18, 2022)). 7 In his TAC, Plaintiff describes the relevant Doe Defendants as follows: 8 At all relevant times, Defendant Officers, employed by the San Diego Police 9 Department, [were] actively involved in executing the arrest of Plaintiff . . . at 10 his residence. Defendant Officers had direct control over the deployment of a police canine and made the affirmative decision to release the dog into 11 Plaintiff’s apartment . . . . 12 13 Doc. No. 20 (“TAC”) ¶ 20. He expands on the referenced events described in detail. Id. 14 ¶¶ 22–24, 46. Plaintiff also identifies as Doe Defendants medical and custodial 15 employees in the County Jail, who he alleges violated his Fourteenth Amendment 16 rights—a claim not dealt with here, with similar particularity. TAC ¶ 20. Though not a 17 pinnacle of clarity, the Court tentatively finds that this sufficiently identifies how the Doe 18 Defendants each violated his rights or incurred liability. 19 The Court will also address the City’s arguments insofar as it asserts that Plaintiff 20 fails to state a claim for excessive force against the Doe Defendants. See Doc. No. 22 at 21 4–7. Claims that an officer used excessive force are analyzed under the Fourth 22 Amendment’s “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 23 388, 394–95 (1989). Courts in the Ninth Circuit: (1) assess the severity of the intrusion 24 on the individual’s Fourth Amendment rights by evaluating the type and amount of force 25 inflicted; (2) evaluate the government’s interest in the use of force; and (3) “balance the 26 gravity of the intrusion on the individual against the government’s need for that 27 intrusion.” Glenn v. Washington Cnty., 673 F.3d 864, 871 (9th Cir. 2011) (quoting Miller 28 v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003)). Though the most important factor is 1 whether the plaintiff “posed an immediate threat to the safety of the officers or others,” 2 the Court must consider the totality of the circumstances. Mattos v. Agarano, 661 F.3d 3 433, 441, 449 (9th Cir. 2011); see also Glenn., 673 F.3d at 872. Reasonableness “must 4 be judged from the perspective of a reasonable officer on the scene, rather than with the 5 20/20 vision of hindsight[,]” and cannot consider an officer’s subjective intentions. 6 Graham, 490 U.S. at 396–97; Cnty. of Los Angeles v. Mendez, 581 U.S. 420, 428 (2017). 7 Plaintiff alleges that when officers arrived at his apartment late at night, he was 8 asleep. TAC ¶ 46. He also alleges that at no point did he “threaten the officers, . . . lunge 9 at the officers . . . or do anything while in the apartment” that put the officers at risk. Id. 10 Despite this, he alleges that officers released a canine unit without “assess[ing] whether 11 the plaintiff was present . . . asleep, or awake,” or announcing themselves in way that 12 would not warn or awaken” him before releasing the canine unit. Id. Once released, the 13 canine bit him, causing severe bite wounds. Id. ¶¶ 24–27, 46, 62. At a motion to dismiss, 14 the Court must assume the truth of all factual allegations and must construe them in the 15 light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 16 336, 337–38 (9th Cir. 1996). 2 Here, the Court tentatively finds that Plaintiff sufficiently 17 pleads that officers’ use of force in effecting his arrest was unreasonable in light of the 18 circumstances. Thus, the Court tentatively DENIES the City’s motion on that basis. 19 2. Municipal Section 1983 Liability 20 The City also moves to dismiss Plaintiff’s excessive force claim against it. Doc. 21 No. 22 at 4. To seek damages against a municipality under § 1983, Plaintiff must allege 22 that: (1) he was deprived of a constitutional right; (2) the City has a policy, custom or 23 practice which amounted to deliberate indifference to that constitutional right; and (3) the 24 policy, custom or practice was the moving force behind the constitutional violation. See 25
26 2 The City cites Vera Cruz v. City of Escondido to argue that Plaintiff must plead facts as to the crime for which officers sought his arrest. Doc. No. 22 at 7 (citing 139 F.3d 659 (9th Cir. 1997), as amended on 27 denial of reh’g and reh’g en banc (Mar. 31, 1998)); Doc. No. 27 at 4–5. The Court does not share this reading. See also Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (partially overturning Vera 28 1 Dougherty v. City of Covina, 654 F.3d 892, 900–01 (9th Cir. 2011); Monell v. 2 Department of Social Services, 436 U.S. 658, 694 (1978)). As with his past pleadings, 3 Plaintiff’s claim against the City relies on allegations that the arresting officers’ actions 4 were not in compliance with the San Diego Police Department Canine Manual’s 5 provisions for use of police dogs in arrests. TAC ¶ 70–74. However, the Court 6 tentatively finds he has not pleaded sufficient facts to plausibly allege the City has a 7 policy, custom, or practice of not complying with the Canine Manual such that this 8 noncompliance amounts to, itself, the actual custom, policy, or practice in place. See 9 Adickes v. S. H. Kress & Co., 398 U.S. 144, 167–68 (1970); Trevino v. Gates, 99 F.3d 10 911, 918 (9th Cir. 1996), holding modified on other grounds by Navarro v. Block, 250 11 F.3d 729 (9th Cir. 2001). (“The custom must be so ‘persistent and widespread’ that it 12 constitutes a ‘permanent and well settled city policy.’”) (internal citations omitted). 13 Plaintiff’s only relevant addition to this claim in the TAC is one paragraph alluding 14 to “a substantial number of complaints and lawsuits [against the city] concerning the use 15 and control of canine units in the field” and, in broad strokes, the underlying problems 16 drawing those complaints. TAC ¶ 40. “While a complaint . . . does not need detailed 17 factual allegations . . . [it] requires more than labels and conclusions, and a formulaic 18 recitation of the elements . . . will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 19 (2007) (internal quotations, brackets, and citations omitted). The Court tentatively finds 20 this is insufficient as Plaintiff provides no details as to how many complaints or lawsuits 21 he is referencing and provides no insight as to how many individuals within the 22 department “know of this issue,” or where they fall in the chain of command. TAC ¶ 40. 23 Likewise, despite his arguments in opposition, the Court tentatively finds no indication 24 that Plaintiff pleads facts to support a theory that the City fails to train officers to an 25 extent that constitutes a policy or custom of inadequate training. See Doc. No. 26 at 2. 26 Additionally, it tentatively appears that Plaintiff provides no facts alleging that any 27 City policy is the moving force behind the violation he alleges. Dougherty, 654 F.3d at 28 900–01. Therefore, the Court tentatively finds Plaintiff fails to plead an excessive force 1 claim against the City. And because Plaintiff has been unable, after three iterations, to 2 plead a plausible claim against the City, the Court tentatively finds that leave to amend 3 would be futile. Accordingly, the Court tentatively GRANTS the City’s motion, and 4 tentatively DISMISSES with prejudice Plaintiff’s excessive force claim against the 5 City. 6 3. State Law Claims (Claim 2) 7 In its motion the City, in two sentences preceding its “Argument” section, asserts 8 that “Plaintiff’s [s]econd [c]ause of [a]ction for Professional Negligence is . . . is 9 improperly pled because it assumes that police officers, as opposed to [canines], must 10 search an area before releasing a K-9 . . . .” Doc. No. 22 at 3. It makes no further 11 argument, except to state that “[a]s a general matter, the use of police canines to search 12 for and apprehend fleeing or concealed suspects is long-standing and widespread, and is 13 lawful.” Id.3. However, the City dedicates a majority its reply to arguments that 14 Plaintiff: fails to state a cause of action for negligence; failed to provide it notice of the 15 claims against it; and is required to plead facts as to why officers sought his arrest. Doc. 16 No. 27 at 3–5. The City also raises state-law immunity issues for the first time in its 17 reply. Id. 18 First, the Court already found that Plaintiff had sufficiently pleaded and could 19 proceed with this claim against the City. Doc. No. 19 at 13–17. And to the extent the 20 City raises new arguments in reply, the Court tentatively finds it would be unfair to reach 21 these arguments as Plaintiff has not had an adequate opportunity to respond. 22 Even if the Court reaches the merits of these newly raised arguments, the Court 23 tentatively finds that the City is not entitled to dismissal of this claim. Plaintiff alleges a 24 negligence claim consonant with California Civil Code § 1714, establishing a cause of 25 action against harm caused by anyone failing to exercise “ordinary care or skill in the 26 management of his or her property or person . . . .” TAC ¶ 58 (citing Cal. Civ. Code § 27 3 The case that the City cites in support did not, however, find that use of a police canine is per se 28 1 1714); Doc. No. 26 at 6. The Court addressed this claim at length in its prior order and 2 ||sees no reason to reverse itself. Doc. No. 19 at 13-17. 3 Moreover, while a plaintiff must identify a specific statute to allege direct liability 4 against a municipal entity, public entities are still vicariously—trather than directly— 5 || lable for “employee[s’] negligent acts or omissions within the scope of employment 6 ||....° Eastburn v. Reg’l Fire Prot. Auth., 80 P.3d 656, 658 (Cal. 2003); Lallemand vy. 7 || Cnty. of Los Angeles, No. LACV1700781JAKSSX, 2018 WL 6136816 *9 (C.D. Cal. 8 || June 12, 2018); Cal. Gov. Code § 820(a). Plaintiff sufficiently alleges that the claim 1s 9 || brought against the City through the allegedly negligent acts of its employees in effecting 10 arrest, leading to injury—allegations sufficient to invoke vicarious liability. TAC 11 ||§ 17, 31, 60; see also Doc. No. 26 at 6. Relevantly, it is also well established that “police 12 || officers have a duty in tort to act reasonably when employing deadly force against a 13 || suspect.” Golick v. State of California, 299 Cal. Rptr. 3d 229, 239 (Cal. Ct. App. 2022); 14 || Hayes v. Cnty. of San Diego, 305 P.3d 252, 255-56 (Cal. 2013). Therefore, the Court 15 || tentatively DENIES the City’s motion as to this claim. 16 As these rulings are tentative, the Court looks forward to counsel’s arguments. 17 IT IS SO ORDERED. 18 ||Dated: April 28, 2025 Miku lM -£ hipblr 19 HON. MICHAEL M. ANELLO 0 United States District Judge 21 22 23 24 25 26 27 28