Moffitt v. County of San Diego

Opinion

JOHN MOFFITT, Case No. 24-cv-1445-MMA-DDL

Plaintiff, NOTICE AND ORDER PROVIDING v. TENTATIVE RULINGS RE: DEFENDANT’S MOTION TO COUNTY OF SAN DIEGO, et al., DISMISS Defendants. [Doc. No. 22] On May 7, 2025, Plaintiff John Moffitt (“Plaintiff”) and Defendant City of San Diego (“the City”) will appear before the Court for a hearing on the City’s motion to dismiss Plaintiff’s Third Amended Complaint. Doc. No. 22. In anticipation of the hearing, the Court issues the following tentative ruling GRANTING IN PART and DENYING IN PART the City’s motion. As a preliminary matter, municipal departments and sub-units, including police departments, are generally not considered “persons” within the meaning of Section 1983. See Hervey v. Estes, 65 F.3d 784, 791–92 (9th Cir. 1995) (Finding that because an intergovernmental narcotics taskforce was not a itself a municipality or independent local governmental entity, but instead a municipality or local governmental entity’s creation, it was “only subject to suit if the parties that created [it] intended to create a separate legal entity.”); United States v. Kama, 394 F.3d 1236, 1239–40 (9th Cir. 2005) (Ferguson, J., concurring) (noting local government departments and bureaus are generally not considered “persons” within the meaning of § 1983). As such, neither the San Diego County Sheriff’s Department, San Diego County Jail, nor San Diego Police Department appear to be proper parties. Vance v. County of Santa Clara, 928 F. Supp. 993, 995–96 (C.D. Cal. 1996). The Court thus tentatively DISMISSES WITH PREJUDICE claims as to the San Diego County Sheriff’s Department, San Diego County Jail, and San Diego Police Department. Turning to its motion, the City moves to dismiss Plaintiff’s Third Amended Complaint insofar as he asserts claims against it. Doc. No. 22. It likewise moves to dismiss Plaintiff’s claims against the Doe Defendants. Id. at 9–10. The City argues that Plaintiff’s first and third causes of action—at least as alleged against the City—are truly a single cause of action for excessive force in violation of Plaintiff’s Fourth Amendment rights. Id. at 4. 1 The Court addressed this issue in previous orders and came to that the same conclusion. See Doc. No. 19 at 6–7, 17. In his TAC, Plaintiff still does not remedy or clarify the matter. Therefore, the Court will again construe the two causes of action, as relevant to the City, as a single claim for excessive force in violation of Plaintiff’s Fourth Amendment rights brought under 42 U.S.C. § 1983. 1. Doe Defendants The City moves to dismiss Plaintiff’s claims against the Doe Defendants on the grounds that the TAC fails to allege how each Doe Defendant “personally violated [Plaintiff’s] constitutional rights” or behaved in a manner allowing liability. Doc. No. 22 at 9. While Plaintiff may refer to unnamed defendants as “Does” at the pleading stage, he must still allege that Doe defendants personally participated in the alleged deprivation of

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. constitutional rights. See Brink v. Cnty. of San Diego, No. 23-cv-1756-DMS (SBC), 2024 WL 3315992 *3 (S.D. Cal. July 3, 2024). “A district court should dismiss claims against Doe defendants in a Section 1983 suit when the complaint does not ‘even minimally explain how any of the unidentified parties . . . personally caused a violation of [the plaintiff’s] constitutional rights.’” Id. (quoting Estate of Serna v. Cnty. of San Diego, No. 20-cv-2096-LAB (MSB), 2022 WL 827123, *3 (S.D. Cal. Mar. 18, 2022)). In his TAC, Plaintiff describes the relevant Doe Defendants as follows: At all relevant times, Defendant Officers, employed by the San Diego Police Department, [were] actively involved in executing the arrest of Plaintiff . . . at his residence. Defendant Officers had direct control over the deployment of a police canine and made the affirmative decision to release the dog into Plaintiff’s apartment . . . . Doc. No. 20 (“TAC”) ¶ 20. He expands on the referenced events described in detail. Id. ¶¶ 22–24, 46. Plaintiff also identifies as Doe Defendants medical and custodial employees in the County Jail, who he alleges violated his Fourteenth Amendment rights—a claim not dealt with here, with similar particularity. TAC ¶ 20. Though not a pinnacle of clarity, the Court tentatively finds that this sufficiently identifies how the Doe Defendants each violated his rights or incurred liability. The Court will also address the City’s arguments insofar as it asserts that Plaintiff fails to state a claim for excessive force against the Doe Defendants. See Doc. No. 22 at 4–7. Claims that an officer used excessive force are analyzed under the Fourth Amendment’s “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388, 394–95 (1989). Courts in the Ninth Circuit: (1) assess the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the type and amount of force inflicted; (2) evaluate the government’s interest in the use of force; and (3) “balance the gravity of the intrusion on the individual against the government’s need for that intrusion.” Glenn v. Washington Cnty., 673 F.3d 864, 871 (9th Cir. 2011) (quoting Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003)). Though the most important factor is whether the plaintiff “posed an immediate threat to the safety of the officers or others,” the Court must consider the totality of the circumstances. Mattos v. Agarano, 661 F.3d 433, 441, 449 (9th Cir. 2011); see also Glenn., 673 F.3d at 872. Reasonableness “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight[,]” and cannot consider an officer’s subjective intentions. Graham, 490 U.S. at 396–97; Cnty. of Los Angeles v. Mendez, 581 U.S. 420, 428 (2017). Plaintiff alleges that when officers arrived at his apartment late at night, he was asleep. TAC ¶ 46. He also alleges that at no point did he “threaten the officers, . . . lunge at the officers . . . or do anything while in the apartment” that put the officers at risk. Id. Despite this, he alleges that officers released a canine unit without “assess[ing] whether the plaintiff was present . . . asleep, or awake,” or announcing themselves in way that would not warn or awaken” him before releasing the canine unit. Id. Once released, the canine bit him, causing severe bite wounds. Id. ¶¶ 24–27, 46, 62. At a motion to dismiss, the Court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). 2 Here, the Court tentatively finds that Plaintiff sufficiently pleads that officers’ use of force in effecting his arrest was unreasonable in light of the circumstances. Thus, the Court tentatively DENIES the City’s motion on that basis. 2. Municipal Section 1983 Liability The City also moves to dismiss Plaintiff’s excessive force claim against it. Doc. No. 22 at 4. To seek damages against a municipality under § 1983, Plaintiff must allege that: (1) he was deprived of a constitutional right; (2) the City has a policy, custom or practice which amounted to deliberate indifference to that constitutional right; and (3) the policy, custom or practice was the moving force behind the constitutional violation. See

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 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 Dougherty v. City of Covina, 654 F.3d 892, 900–01 (9th Cir. 2011); Monell v. Department of Social Services, 436 U.S. 658, 694 (1978)). As with his past pleadings, Plaintiff’s claim against the City relies on allegations that the arresting officers’ actions were not in compliance with the San Diego Police Department Canine Manual’s provisions for use of police dogs in arrests. TAC ¶ 70–74. However, the Court tentatively finds he has not pleaded sufficient facts to plausibly allege the City has a policy, custom, or practice of not complying with the Canine Manual such that this noncompliance amounts to, itself, the actual custom, policy, or practice in place. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 167–68 (1970); Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), holding modified on other grounds by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001). (“The custom must be so ‘persistent and widespread’ that it constitutes a ‘permanent and well settled city policy.’”) (internal citations omitted). Plaintiff’s only relevant addition to this claim in the TAC is one paragraph alluding to “a substantial number of complaints and lawsuits [against the city] concerning the use and control of canine units in the field” and, in broad strokes, the underlying problems drawing those complaints. TAC ¶ 40. “While a complaint . . . does not need detailed factual allegations . . . [it] requires more than labels and conclusions, and a formulaic recitation of the elements . . . will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations, brackets, and citations omitted). The Court tentatively finds this is insufficient as Plaintiff provides no details as to how many complaints or lawsuits he is referencing and provides no insight as to how many individuals within the department “know of this issue,” or where they fall in the chain of command. TAC ¶ 40. Likewise, despite his arguments in opposition, the Court tentatively finds no indication that Plaintiff pleads facts to support a theory that the City fails to train officers to an extent that constitutes a policy or custom of inadequate training. See Doc. No. 26 at 2. Additionally, it tentatively appears that Plaintiff provides no facts alleging that any City policy is the moving force behind the violation he alleges. Dougherty, 654 F.3d at 900–01. Therefore, the Court tentatively finds Plaintiff fails to plead an excessive force claim against the City. And because Plaintiff has been unable, after three iterations, to plead a plausible claim against the City, the Court tentatively finds that leave to amend would be futile. Accordingly, the Court tentatively GRANTS the City’s motion, and tentatively DISMISSES with prejudice Plaintiff’s excessive force claim against the City. 3. State Law Claims (Claim 2) In its motion the City, in two sentences preceding its “Argument” section, asserts that “Plaintiff’s [s]econd [c]ause of [a]ction for Professional Negligence is . . . is improperly pled because it assumes that police officers, as opposed to [canines], must search an area before releasing a K-9 . . . .” Doc. No. 22 at 3. It makes no further argument, except to state that “[a]s a general matter, the use of police canines to search for and apprehend fleeing or concealed suspects is long-standing and widespread, and is lawful.” Id.3. However, the City dedicates a majority its reply to arguments that Plaintiff: fails to state a cause of action for negligence; failed to provide it notice of the claims against it; and is required to plead facts as to why officers sought his arrest. Doc. No. 27 at 3–5. The City also raises state-law immunity issues for the first time in its reply. Id. First, the Court already found that Plaintiff had sufficiently pleaded and could proceed with this claim against the City. Doc. No. 19 at 13–17. And to the extent the City raises new arguments in reply, the Court tentatively finds it would be unfair to reach these arguments as Plaintiff has not had an adequate opportunity to respond. Even if the Court reaches the merits of these newly raised arguments, the Court tentatively finds that the City is not entitled to dismissal of this claim. Plaintiff alleges a negligence claim consonant with California Civil Code § 1714, establishing a cause of action against harm caused by anyone failing to exercise “ordinary care or skill in the management of his or her property or person . . . .” TAC ¶ 58 (citing Cal. Civ. Code § 3 The case that the City cites in support did not, however, find that use of a police canine is per se 1714); Doc. No. 26 at 6. The Court addressed this claim at length in its prior order and sees no reason to reverse itself. Doc. No. 19 at 13-17. Moreover, while a plaintiff must identify a specific statute to allege direct liability against a municipal entity, public entities are still vicariously—trather than directly— lable for “employee[s’] negligent acts or omissions within the scope of employment ....° Eastburn v. Reg’l Fire Prot. Auth., 80 P.3d 656, 658 (Cal. 2003); Lallemand vy. Cnty. of Los Angeles, No. LACV1700781JAKSSX, 2018 WL 6136816 *9 (C.D. Cal. June 12, 2018); Cal. Gov. Code § 820(a). Plaintiff sufficiently alleges that the claim 1s brought against the City through the allegedly negligent acts of its employees in effecting arrest, leading to injury—allegations sufficient to invoke vicarious liability. TAC § 17, 31, 60; see also Doc. No. 26 at 6. Relevantly, it is also well established that “police officers have a duty in tort to act reasonably when employing deadly force against a suspect.” Golick v. State of California, 299 Cal. Rptr. 3d 229, 239 (Cal. Ct. App. 2022); Hayes v. Cnty. of San Diego, 305 P.3d 252, 255-56 (Cal. 2013). Therefore, the Court tentatively DENIES the City’s motion as to this claim. As these rulings are tentative, the Court looks forward to counsel’s arguments. Dated: April 28, 2025 Miku lM -£ hipblr HON. MICHAEL M. ANELLO United States District Judge