Nick Stein v. The City of San Diego et al.

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 Case No.: 24-cv-00953-DMS-AHG 9 NICK STEIN,

10 Plaintiff, ORDER GRANTING 11 v. THE CITY’S MOTION TO DISMISS WITH PREJUDICE THE CITY OF SAN DIEGO et al., 12 AS TO CAUSES OF ACTION S E V E N , E I G H T , A N D N I N E 13 Defendants. 14 15 16 17 Pending before the Court is the City of San Diego’s Motion to Dismiss Second 18 Amended Complaint for failure to state a claim (“Motion”) and Plaintiff’s Motion for 19 Leave to File Third Amended Complaint (“TAC Motion”). (ECF Nos. 23, 26). In response 20 to the Motion, Plaintiff filed a notice of supplemental authority and an opposition, the City 21 filed a reply, and Plaintiff filed a sur-reply. (ECF Nos. 24, 25, 27, 30). In response to the 22 TAC Motion, the City filed an opposition and Plaintiff filed a reply. (ECF Nos. 32, 33). 23 The Court vacated oral argument on both motions. (ECF Nos. 28, 34). For the following 24 reasons, the City’s Motion is granted and Plaintiff’s TAC Motion is denied. 25 I. BACKGROUND 26 Plaintiff Nick Stein, proceeding pro se, brings various federal and state-law claims 27 against the City, the former San Diego police chief, four police officers, and seven 28 unnamed private individuals (“Doe Defendants”). (SAC, ECF No. 21 ¶¶ 15–21). 1 Plaintiff alleges that on June 29, 2022, he was attacked and threatened by Doe 2 Defendants while exercising at Mission Beach Park. (Id. ¶ 38). Plaintiff states that he then 3 ran toward a San Diego Police Department (“SDPD”) officer, Defendant Luisito Fanlo, for 4 help and reported “that Mexican Gang members had physically attacked him . . . [and] said 5 they [were] going to kill and scalp [him].” (Id.). Plaintiff, “a Caucasian male,” alleges that 6 Officer Fanlo, “a Filipino immigrant,” became angry when Plaintiff described his assailants 7 as Mexican and “became angrier every time Plaintiff used the word ‘Mexican.’” (Id. ¶ 43). 8 Plaintiff claims that after taking his statements, Officer Fanlo told him to wait, turned to 9 walk away, and then “spun back around . . . [and] lunged at Plaintiff who was seated on 10 the grass.” (Id. ¶ 39). Plaintiff alleges that “Officer Fanlo grabbed [him] by the arms and 11 yanked him off the ground and shook him violently causing Plaintiff injuries to his 12 shoulder, pain, humiliation, and emotional distress.” (Id.). Plaintiff states that he was 13 subsequently handcuffed and placed in the back of a police car. (Id. ¶ 40). When Plaintiff 14 asked why he was being detained, Officer Fanlo allegedly replied “For doing flutter kicks 15 and that’s weird.” (Id.). Plaintiff alleges that in a subsequent police report, Officer Fanlo 16 mischaracterized him as “the main aggressor” who “was on drugs.” (Id. ¶ 48). After his 17 arrest, Plaintiff filed a complaint with the SDPD Internal Affairs Unit, although the 18 allegations were later dismissed as unfounded. (Id. ¶¶ 33–34). 19 On May 31, 2024, Plaintiff initiated this action, moved to proceed in forma pauperis 20 (“IFP”), and requested appointment of counsel. (ECF Nos. 1, 2, 3). The Court granted his 21 IFP motion but dismissed the Complaint for failure to state a claim. (ECF No. 4). Plaintiff 22 subsequently filed a First Amended Complaint (“FAC”) and IFP status was again granted. 23 (ECF Nos. 5, 6). Plaintiff once more requested appointment of counsel but the motion was 24 later denied. (ECF Nos. 14, 19). On August 14, 2025, the City moved to dismiss the three 25 Monell claims brought against it. (ECF No. 15; see ECF Nos. 16, 17); Monell v. Dep’t of 26 Soc. Servs., 436 U.S. 658 (1978). After full briefing, the Court granted the City’s motion, 27 finding Plaintiff had failed to plausibly allege the claims. (ECF No. 20). The Court gave 28 Plaintiff fourteen days to file “a final attempt to amend his [complaint] against the City.” 1 (Id. at 7). On January 26, 2026, Plaintiff filed a Second Amended Complaint (“SAC”) 2 which contained new allegations about a 2018 interaction with the SDPD that had been the 3 subject of a prior lawsuit. (SAC ¶¶ 26–30, 151).1 The City then filed the present Motion, 4 arguing that the SAC is “largely the same” as the FAC and similarly fails to state a claim, 5 despite any new factual allegations. (ECF No. 23; see ECF Nos. 24, 25, 27, 30). In 6 response to the City’s argument that two incidents do not amount to a Monell policy or 7 custom, Plaintiff filed a notice of supplemental authority with facts about a 2015 interaction 8 with the Oceanside Police Department. (ECF No. 24). It is these allegations that Plaintiff 9 seeks to add in a third amended complaint. (ECF No. 26; see ECF Nos. 32, 33). However, 10 establishing “municipal liability under Monell” requires showing that “the municipality had 11 a policy.” Lockett v. County of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020) (emphasis 12 added). As the Oceanside Police Department is an entirely different “local government 13 entity,” allegations against it cannot be used to show a policy or custom on behalf of the 14 SDPD. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Accordingly, Plaintiff’s TAC 15 Motion is denied for futility. See Foman v. Davis, 371 U.S. 178, 182 (1962) (listing futility 16 and the repeated failure to cure deficiencies among the reasons a court may deny leave to 17 amend). The Court now turns to the City’s Motion. 18 II. LEGAL STANDARD 19 A. Rule 12(b)(6) 20 Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss on the 21 grounds that a complaint fails to state a claim upon which relief can be granted. “A Rule 22 12(b)(6) motion tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 23 732 (9th Cir. 2001). “To survive a motion to dismiss, a complaint must contain sufficient 24 25 1 Plaintiff alleges that on March 15, 2018, he “was lawfully present in a public space” when he was 26 approached by two SDPD officers “without probable cause or reasonable suspicion.” (SAC ¶ 27). According to Plaintiff, “[t]he officers forcibly arrested [him],” used “a full-body restraint device” on him, 27 and subsequently “filed a police report containing demonstrably false statements.” (Id. ¶ 28). Plaintiff states that he filed a formal complaint and the SDPD Internal Affairs Unit later determined the allegations 28 1 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 2 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 3 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content 4 that allows the court to draw the reasonable inference that the defendant is liable for the 5 misconduct alleged.” Id. 6 In reviewing the plausibility of a complaint on a motion to dismiss, a court must 7 “accept factual allegations in the complaint as true and construe the pleadings in the light 8 most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 9 519 F.3d 1025, 1031 (9th Cir. 2008). But courts are not “required to accept as true 10 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 11 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting 12 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). “Determining 13 whether a complaint states a plausible claim for relief will . . . be a context-specific task 14 that requires the reviewing court to draw on its judicial experience and common sense.” 15 Iqbal, 556 U.S. at 679. The “[f]actual allegations must be enough to raise a right to relief 16 above the speculative level.” Twombly, 550 U.S. at 555. If the plaintiff has not “nudged 17 their claims across the line from conceivable to plausible, their complaint must be 18 dismissed.” Id. at 570. Additionally, pro se filings are construed “liberally [] to afford the 19 [plaintiff] the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) 20 (citation modified). 21 III. DISCUSSION 22 A. Policy or Custom 23 Plaintiff’s seventh cause of action is a Monell claim alleging that the City 24 “maintained a policy or custom of permitting, condoning, encouraging, or covering up 25 police officer’s selective enforcement of the law and abuses of law enforcement power.” 26 (SAC ¶ 140). “To establish municipal liability under Monell, [Plaintiff] must prove that 27 (1) he was deprived of a constitutional right; (2) the municipality had a policy; (3) the 28 policy amounted to deliberate indifference to [his] constitutional right; and (4) the policy 1 was the moving force behind the constitutional violation.” Lockett, 977 F.3d at 741. A 2 policy is “a deliberate choice to follow a course of action [] made from among various 3 alternatives by the official or officials responsible for establishing final policy with respect 4 to the subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). 5 A policy can come in the form of an expressly adopted official policy or a longstanding 6 practice or custom. Gordon v. County of Orange, 6 F.4th 961, 973–74 (9th Cir. 2021). 7 Even assuming a constitutional violation, the SAC does not allege the existence of a 8 relevant official policy, and the City argues that “cobbling together two personal incidents” 9 is insufficient to allege a longstanding custom. (Mot. 6). Plaintiff contends that in light of 10 the 2015 incident, “three incidents spanning eleven years” constitute “a pattern that is more 11 than sufficient to survive a motion to dismiss.” (Opp’n 2). However, as previously 12 discussed, the 2015 incident cannot be used to prove a custom on behalf of an entirely 13 different entity. Moreover, “[l]iability for improper custom may not be predicated on 14 isolated or sporadic incidents; it must be founded upon practices of sufficient duration, 15 frequency and consistency that the conduct has become a traditional method of carrying 16 out policy.” Trevino, 99 F.3d at 918. Here, two negative interactions with the SDPD are 17 insufficient to show a custom which is “so ‘persistent and widespread’ that it constitutes a 18 ‘permanent and well settled city policy.’” Id. (quoting Monell, 436 U.S. at 691); see Oyenik 19 v. Corizon Health Inc., 696 F. App’x 792, 794 (9th Cir. 2017) (“[O]ne or two incidents are 20 insufficient to establish a custom or policy . . . .”). Thus, Plaintiff has not moved this claim 21 “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. 22 B. Failure to Train, Supervise, and Discipline 23 Plaintiff’s eighth cause of action is a Monell claim alleging that the City “failed to 24 enact any effective policies or procedures to train officers against filing false reports, to 25 supervise officers in their interactions with crime victims, or to discipline officers who 26 engage in such misconduct.” (SAC ¶ 152). “To allege a failure to train, a plaintiff must 27 include sufficient facts to support a reasonable inference (1) of a constitutional violation; 28 (2) of a municipal training policy that amounts to a deliberate indifference to constitutional 1 rights; and (3) that the constitutional injury would not have resulted if the municipality 2 properly trained their employees.” Benavidez v. County of San Diego, 993 F.3d 1134, 3 1153–54 (9th Cir. 2021). “Deliberate indifference is a high legal standard, ‘requiring proof 4 that a municipal actor disregarded a known or obvious consequence of his action.’” Perez 5 v. City of Fresno, 98 F.4th 919, 931 (9th Cir. 2024) (quoting Connick v. Thompson, 563 6 U.S. 51, 61 (2011)). Ordinarily, this requires “[a] pattern of similar constitutional 7 violations by untrained employees,” however “single-incident liability may exist in the rare 8 case where the unconstitutional consequences of failing to train are patently obvious.” 9 Connick, 563 U.S. at 62; Perez, 98 F.4th at 931 (citation modified). Here, Plaintiff argues 10 that with the addition of the 2018 incident, he has alleged “a pattern of similar constitutional 11 violations involving false reports and abuse of power.” (SAC ¶ 153). However, despite 12 Plaintiff’s characterization of the incidents as “an identical pattern of misconduct 13 perpetrated against [him],” there are significant differences between the two incidents. 14 (Compare SAC ¶¶ 26–30 (describing 2018 arrest and use of force with full-body restraint 15 device), with SAC ¶¶ 31–36 (describing 2022 refusal to take crime report and subsequent 16 characterization of Plaintiff as “main aggressor”)). These two incidents are not similar 17 enough to put the City on notice “that specific training was necessary to avoid this 18 constitutional violation.” Connick, 563 U.S. at 62–63. Furthermore, as discussed in the 19 Court’s previous order, the single-incident exception does not apply here. This is because 20 despite Plaintiff’s argument that the City failed to train officers not to file false reports and 21 to interact appropriately with crime victims, “the proper response is obvious to all without 22 training or supervision.” Flores v. County of Los Angeles, 758 F.3d 1154, 1160 (9th Cir. 23 2014) (citation modified). For these reasons, Plaintiff has not plausibly alleged a failure to 24 train, supervise, or discipline claim. 25 C. Ratification 26 Plaintiff’s ninth cause of action is a Monell claim alleging that the City “squarely 27 ratified the unconstitutional conduct that occurred by SDPD officers on June 29, 2022.” 28 (SAC ¶ 90). A municipality “may be held liable under Section 1983 when . . . an official 1 with final policy-making authority” who had “knowledge of the constitutional violation” 2 makes a “conscious, affirmative choice” to approve of it. Gordon, 6 F.4th at 974 (citation 3 modified); Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004); Gillette v. Delmore, 979 F.2d 4 1342, 1347 (9th Cir. 1992). Plaintiff alleges that in 2022, he sent letters describing Officer 5 Fanlo’s conduct to the Mayor, Chief of Police, and an SDPD Internal Affairs Unit officer, 6 but that the “City made no effort to implement any sort of corrective actions to prevent 7 similar incidents of misconduct in the future.” (SAC ¶¶ 84, 89). Even assuming the Mayor 8 and Chief of Police received the letters and knew of the alleged constitutional violation, 9 Plaintiff does not plausibly allege that they made an affirmative decision to approve of 10 Officer Fanlo’s conduct. See Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999) (“[A] 11 policymaker’s mere refusal to overrule a subordinate’s completed act does not constitute 12 approval.”); see also Dodge v. Evergreen Sch. Dist. #114, 56 F.4th 767, 788 (9th Cir. 2022) 13 (“A mere failure to discipline does not amount to ratification of allegedly unconstitutional 14 actions.” (citation modified)). Furthermore, the letter to an Internal Affairs Unit officer 15 cannot support ratification because “there is no support for the view that an entire 16 organization . . . or a unit within an organization—such as Internal Affairs—can constitute 17 an official with final policymaking authority.” Williams v. City of Los Angeles, No. 2:20- 18 cv-06961-MEMF-AFMx, 2023 WL 3317064, at *16 (C.D. Cal. Mar. 7, 2023). Finally, the 19 closing of an Internal Affairs Unit investigation does not support the inference of 20 ratification. Garza v. City of Los Angeles, No. 19-55952, 2021 WL 3140574, at *1 n.2 (9th 21 Cir. July 26, 2021) (noting that ratification does not occur “anytime a letter summarizing 22 an internal affairs report exonerating an officer is mailed on official letterhead”). 23 Therefore, Plaintiff has not plausibly alleged a Monell claim under the theory of 24 ratification. 25 IV. CONCLUSION AND ORDER 26 “Courts should not dismiss a pro se complaint without leave to amend unless it is 27 absolutely clear that the deficiencies of the complaint could not be cured by amendment.” 28 Spencer v. City of San Diego, No. 23-cv-771-GPC-BLM, 2023 WL 7555311, at *3 (S.D. 1 || Cal. Nov. 14, 2023) (citation modified); Fed. R. Civ. P. 15(a) (courts should “freely give 2 leave [to amend] when justice so requires”). Here, Plaintiff has amended his Complaint 3 ||multiple times and it is clear the deficiencies cannot be cured. Therefore, the Court 4 ||GRANTS the City’s Motion to Dismiss with prejudice as to causes of action seven, eight, 5 |}and nine. As previously discussed, the Court DENIES Plaintiff's Motion for Leave to File 6 || Third Amended Complaint. 7 IT IS SO ORDERED. 8 || Dated: June 5, 2026 2» J ] \ 9 rn Yn « 10 Hon. Dana M. Sabraw 1 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28