Page v. Phoenix, City of

• Court: District Court, D. Arizona
• Decided: May 5, 2025
• Docket: 2:24-cv-03505
• Status: Unknown

Opinion

1 WO KAB 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Chad Page, No. CV-24-03505-PHX-MTL (MTM) 10 Plaintiff, 11 v. ORDER 12 City of Phoenix, et al., 13 Defendants.

14 15 Plaintiff Chad Page, who is represented by counsel, brought this action pursuant to 16 42 U.S.C. § 1983 and Arizona state law. Defendants filed a Motion to Dismiss and Plaintiff 17 opposes the Motion. (Docs. 8, 11.) Also pending before the Court is Defendants’ Motion 18 to Strike. (Doc. 7.) 19 I. Background 20 In his operative Second Amended Complaint, Plaintiff alleges as follows. On 21 January 19, 2023, several City of Phoenix police officers, including Defendants Von 22 Holten and McKnight, were involved in arresting Plaintiff. (Doc. 3-1 at 6) Defendants 23 Von Holten and McKnight exited their patrol cars and pursued Plaintiff on foot because 24 they suspected him of fleeing after exiting a stolen vehicle. (Id.) When the officers exited 25 their patrol cars, Plaintiff stopped running and put his hands in the air and Defendants 26 commanded him to get on the ground. (Id. at 7.) Plaintiff obeyed and stated “I’m down 27 on the ground, I’m down.” (Id.) When Defendants reached Plaintiff, one or both of them 28 struck him in the upper back and/or back of the head and Von Holten grabbed his right 1 wrist and wrenched his right arm toward his shoulder or upper back until it caused an 2 audible “pop” and Plaintiff yelled out in pain. (Id.) Defendants then handcuffed Plaintiff 3 and caused the handcuffs to be excessively tight on Plaintiff’s wrists. (Id.) Defendants 4 then picked Plaintiff off the ground by lifting and squeezing his fractured and dislocated 5 arm and roughly escorted him to the police vehicle while questioning him. (Id.) The fire 6 department determined Plaintiff should be seen at Deer Valley Medical Center, where he 7 was diagnosed with a fracture and dislocation of his right elbow, a facial abrasion above 8 his left eye, and a concussion, and he was thereafter booked into jail. (Id. at 7-8.) 9 In Count One, Plaintiff alleges state-law assault and battery against the City and 10 Von Holten. In Count Two, Plaintiff alleges Fourth Amendment excessive force against 11 Defendants Van Holten and McKnight. In Count Three, Plaintiff alleges a Monell claim 12 against the City based on the City’s failure to train and supervise its officers in the proper 13 use of force. 14 II. Motion to Strike 15 Defendants move to strike paragraphs 57-76 of Plaintiffs’ Second Amended 16 Complaint and Exhibit A pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. 17 (Doc. 7.) These paragraphs primarily encompass Plaintiff’s Monell claim and contain 18 allegations about force used by non-Defendant City of Phoenix police officers. Exhibit A 19 is an investigation report of the United States Department of Justice of the City of Phoenix 20 Police Department. (Doc. 3-1 at 18-283.) Defendants assert that the allegations are 21 irrelevant to Plaintiff’s claims and the report of the Justice Department is not admissible 22 evidence. 23 Rule 12(f) authorizes the Court to strike from a pleading all allegations that are 24 “immaterial, impertinent or scandalous.” Fed. R. Civ. P. 12(f). Generally, Defendants 25 have the burden of showing “that the allegations being challenged are so unrelated to the 26 plaintiff’s claims as to be unworthy of any consideration as a defense and that their 27 presence in the pleading throughout the proceeding will be prejudicial to the moving 28 party.” See 5C Charles Alan Wright & Arthur Miller, Fed’l Prac. and Proc. § 1380 (3d 1 ed. updated April 2022); XY Skin Care & Cosmetics, LLC v. Hugo Boss USA, Inc., No. 2 CV–08–1467–PHX–ROS, 2009 WL 2382998, *1 (D. Ariz. 2009). 3 Defendants have not shown how they will suffer prejudice if the allegations remain 4 in the Second Amended Complaint. Although the allegations appear attenuated from the 5 underlying actions of the individual Defendants, Plaintiff asserts that they are relevant to 6 his underlying Monell claim. Although both parties discuss the admissibility of the 7 Department of Justice report, allegations in a pleading are simply allegations and are not 8 evidence. If Plaintiff intends to use the report as evidence in the future, proper evidentiary 9 objections can be made at that time. Accordingly, Defendants have not shown they will 10 suffer prejudice if the allegations remain in the Second Amended Complaint, and the 11 Motion to Strike will be denied. 12 III. Motion to Dismiss 13 A. Notice of Claim 14 Defendants assert that Plaintiff’s notice of claim was not specific because it 15 “provides only a date and a vague description of what he claims occurred on” June 27, 16 2023, and he failed “to provide a location or an incident report number to sufficiently 17 enable Defendants to investigate his Notice of Claim.” (Doc. 8 at 3.) 18 Arizona Revised Statutes § 12-821.01(A) states the following: 19 Persons who have claims against a public entity or a public employee shall file claims with the person or persons 20 authorized to accept service for the public entity or public 21 employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action 22 accrues. The claim shall contain facts sufficient to permit the 23 public entity or public employee to understand the basis upon which liability is claimed. The claim shall also contain a 24 specific amount for which the claim can be settled and the facts 25 supporting that amount. Any claim which is not filed within one hundred eighty days after the cause of action accrues is 26 barred and no action may be maintained thereon. 27 Ariz. Rev. Stat. § 12-821.01 (A). 28 In his Notice of Claim, Plaintiff stated his full name, that Phoenix Police Officers, 1 including Officer Brandon Von Holten and McKnight, used excessive force on him on 2 January 19, 2023, included Von Holten’s badge number, included details about the force 3 used, described that the Phoenix Fire Department was called and Plaintiff was transported 4 to Honor Health Deer Valley Medical Center, and was thereafter booked into the Maricopa 5 County Jail. (Doc. 8-1 at 3.) 6 The statute simply requires the Notice of Claim to contain facts sufficient to permit 7 the public entity or public employee to understand the basis upon which liability is claimed. 8 Nothing in the statute requires that Plaintiff provide a location or incident number when 9 filing a Notice of Claim. Defense counsel’s argument that “there was no way for the City 10 to determine the location of the incident based on the information provided in the Notice 11 of claim” (Doc. 8) is conclusory, unsupported by any evidence, and is implausible. See 12 Barcamerica Int’l USA Trust v. Tyfield Imps., Inc., 289 F.3d 589, 593 n.4 (9th Cir. 2002) 13 (“arguments and statements of counsel are not evidence”). Plaintiff provided the date of 14 the incident, his own name, the names of the officers involved, that Phoenix Fire 15 Department was called, that he was transported to the hospital, and that he was then 16 transported into Maricopa County Jail. There is simply nothing in this Record supporting 17 that the Notice of Claim does not contain facts sufficient to permit the public entity or 18 public employee to understand the basis upon which liability is claimed. Accordingly, the 19 Motion to Dismiss will be denied as to the Notice of Claim argument. 20 B. Arizona Revised Statutes section 12-820.05 21 The City asserts that it is entitled to dismissal of Plaintiff’s state law assault and 22 battery claims because it is statutorily immune from these claims under Arizona Revised 23 Statutes § 12-820.05(B). The City asserts that the allegations against it in Count One arise 24 out of alleged conduct by Officer Van Holten that if taken as true, would constitute the 25 felony of aggravated assault under Arizona Revised Statutes § 13-1204(A), which provides 26 that a person commits aggravated assault if they cause “serious physical injury to another”1 27 28 1 “‘Serious physical injury’ includes physical injury that creates a reasonable risk of death, or that causes serious and permanent disfigurement, serious impairment of health or 1 or “[i]f the person commits the assault by any means of force that causes temporary but 2 substantial disfigurement, temporary but substantial loss or impairment of any body organ 3 or part or a fracture of any body part.” Ariz. Rev. Stat. § 13-1204(A)(1) and (3). 4 In Response, Plaintiff argues that the City is not entitled to immunity as to Plaintiff’s 5 assault and battery claim because Plaintiff alleges torts of assault and battery, not felonies, 6 whether Defendants committed a felony is a factual question that cannot be resolved on a 7 motion to dismiss, and Plaintiff should be given an opportunity to conduct discovery to 8 support his claim that the City knew of the individual officer’s propensity to engage in 9 assault and battery. 10 Pursuant to Arizona Revised Statutes § 12-820.05, 11 A public entity is not liable for losses that arise out of and are directly attributable to an act or omission determined by a court 12 to be a criminal felony by a public employee unless the public 13 entity knew of the public employee’s propensity for that action. This subsection does not apply to acts or omissions arising out 14 of the operation or use of a motor vehicle. 15 Ariz. Rev. Stat. § 12-820.05 (B). 16 Taking Plaintiff’s allegations as true, although it appears that Plaintiff does allege 17 conduct that would constitute the felony of aggravated assault, courts are reluctant to 18 dismiss a claim at the pleading stage where factual development would aid the court’s 19 decision. See, e.g., Nees v. City of Phoenix, No. CV-21-01134-PHX-GMS, 2022 WL 20 17976322, at *6 (D. Ariz. Dec. 28, 2022) (“The Court declines to decide whether 21 Defendant Cooke's conduct was a ‘felony’ based solely on Plaintiff’s allegations. Whether 22 the shooting was justified, especially in light of the fact that Mr. Whitaker possessed a 23 firearm, is more properly considered upon a complete evidentiary record.”). Moreover, 24 Plaintiff alleges that the City knew of Von Holten’s propensity for this type of conduct. 25 The City argues that this is conclusory, but Plaintiff asserts that facts supporting the 26 allegation are solely in Defendants’ possession and he has properly alleged that Van Holten 27

28 loss or protracted impairment of the function of any bodily organ or limb.” Ariz. Rev. Stat. § 13-105 (39). 1 committed assault and battery, that officers within the City of Phoenix Police Department 2 were not properly trained on use of force, and that the City of Phoenix knew of Van 3 Holten’s propensity to commit assault and battery. Plaintiff has sufficiently alleged enough 4 facts to state a claim upon which relief may be granted. Whether the City is entitled to 5 immunity under Arizona Revised Statutes § 12-820.05 (B) is properly considered on a 6 more developed record. Accordingly, the Motion to Dismiss will be denied based on the 7 City’s claim that it is entitled to immunity under Arizona Revised Statutes § 12-820.05 (B). 8 C. Qualified Immunity 9 Defendants assert that they are entitled to qualified immunity on Plaintiff’s Fourth 10 Amendment excessive force claim because under the facts as alleged by Plaintiff, it was 11 not clearly established that they could not use “pain compliance techniques.” Defendants 12 rely on Forrester v. City of San Diego, 25 F.3d 804 (9th Cir. 1994) and Saccoccio v. City 13 of Phoenix, No. CV-20-01141-PHX-DJH (CDB), 2024 WL 5317421 (D. Ariz. Dec. 16, 14 2024) in support of their argument that the force they used was not clearly established 15 Defendants likewise assert that it was reasonable for them to quickly place Plaintiff 16 in handcuffs and seat him in a patrol car “to prevent him from fleeing and committing other 17 crimes.” (Doc. 8 at 10.) Defendants assert that Plaintiff does not allege that he ever told 18 the officers that his handcuffs were too tight. Defendants contend that “[c]ourts have only 19 found excessive force from tight handcuffing when ‘the arrestee was either in visible pain, 20 complained of pain, alerted the officer to pre-existing injuries,’ sustained severe injuries, 21 was in handcuffs for a long period of time, asked to have the tight handcuffs loosened, 22 ‘and/or alleged other forms of abusive conduct in conjunction with the tight handcuffing.’’ 23 (Id. at 11 (citations omitted).) 24 Government officials are entitled to qualified immunity from civil damages unless 25 their conduct violates “clearly established statutory or constitutional rights of which a 26 reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 27 In deciding if qualified immunity applies, the Court must determine: (1) whether the facts 28 alleged show the defendant’s conduct violated a constitutional right; and (2) whether that 1 right was clearly established at the time of the violation. Pearson v. Callahan, 555 U.S. 2 223, 230-32, 235-36 (2009) (courts may address either prong first depending on the 3 circumstances in the particular case). 4 Whether a right was clearly established must be determined “in light of the specific 5 context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 6 (2001). The plaintiff has the burden to show that the right was clearly established at the 7 time of the alleged violation. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002); Romero 8 v. Kitsap Cnty., 931 F.2d 624, 627 (9th Cir. 1991). Thus, “the contours of the right must 9 be sufficiently clear that at the time the allegedly unlawful act is [under]taken, a reasonable 10 official would understand that what he is doing violates that right;” and “in the light of pre- 11 existing law the unlawfulness must be apparent.” Mendoza v. Block, 27 F.3d 1357, 1361 12 (9th Cir. 1994) (quotations omitted). Regardless of whether the constitutional violation 13 occurred, the official should prevail if the right asserted by the plaintiff was not “clearly 14 established” or the official could have reasonably believed that his particular conduct was 15 lawful. Romero, 931 F.2d at 627. 16 When a motion to dismiss raises qualified immunity as a defense, the court assesses 17 whether the operative complaint alleges sufficient facts, taken as true, to withstand 18 qualified immunity. Keates v. Koile, 883 F.3d 1228, 1235 (9th Cir. 2018). Further, “[i]f 19 the operative complaint ‘contains even one allegation of a harmful act that would constitute 20 a violation of a clearly established constitutional right,’ then plaintiffs are ‘entitled to go 21 forward’ with their claims.” Id. (quoting Pelletier v. Fed. Home Loan Bank of San 22 Francisco, 968 F.2d 865, 872 (9th Cir. 1992)). 23 Granting dismissal based on qualified immunity pursuant to a Rule 12(b)(6) motion 24 is only appropriate if the Court can determine from the face of the complaint that qualified 25 immunity applies. Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001); NAACP of San 26 Jose/Silicon Valley v. City of San Jose, 562 F. Supp. 3d 382, 396 (N.D. Cal. 2021) (“While 27 defendants may ultimately prevail on many of the arguments [they] make[] now with 28 respect to qualified immunity, because the qualified immunity analysis often turns on the 1 specific facts of each alleged violation, . . . [those] arguments are better suited to summary 2 judgment”); Morley v. Walker, 175 F.3d 756, 761 (9th Cir. 1999) (because allegations in 3 the complaint are regarded as true on a motion to dismiss, dismissal based on qualified 4 immunity is inappropriate). 5 Here, the facts alleged are that the Defendant police officers suspected Plaintiff of 6 stealing a car, Plaintiff exited the vehicle and started running, and, as soon as the officers 7 exited their patrol cars, Plaintiff stopped running, complied with the officers’ commands, 8 verbally indicated that he was complying, and was lying on the ground when Defendants 9 approached him and struck him in the upper back and/or back of the head, grabbed his right 10 wrist and wrenched his right arm toward his shoulder or upper back until it caused an 11 audible “pop” and Plaintiff yelled out in pain. The Defendant officers then handcuffed 12 Plaintiff in an excessively tight manner and picked Plaintiff off the ground by lifting and 13 squeezing his fractured and dislocated arm and roughly escorted him to the police vehicle 14 while questioning him. 15 Given the facts alleged by Plaintiff, the cases relied on by Defendants are inapposite. 16 In Forrester, a jury found that the use of force was reasonable in that case based on the 17 particular circumstances of a group arrest of protesters. “For each arrest, the officers 18 warned the demonstrators that they would be subject to pain compliance measures if they 19 did not move, that such measures would hurt, and that they could reduce the pain by 20 standing up, eliminating the tension on their wrists and arms. The officers then forcibly 21 moved the arrestees by tightening OPNs around their wrists until they stood up and 22 walked.” 25 F. 3d at 806. Here, Plaintiff alleges that he was completely compliant and 23 was not given any warning before gratuitous force was used on him. 24 Likewise, in Saccoccio, police officers were faced with a group of protesters and 25 Plaintiff was injured by a pepper ball when he did not comply with officers’ repeated 26 commands to stop. 2024 WL 5317421, at *6. The Court found that it was undisputed that 27 Plaintiff was resisting arrest and the force was reasonable given the large protest police 28 were confronted with because “a reasonable officer experiencing the escalation in violence 1 over three nights of civil protests which included groups throwing objects at police, lighting 2 fires, setting off incendiary devices, and damaging property, could have reasonably 3 inferred that the group in the alley had engaged in or would engage in similar acts if 4 permitted to escape.” Id. at *16. Here, under the facts alleged by Plaintiff, he was not 5 resisting arrest and none of the other circumstances supporting the force in Soccoccio are 6 present in this case. In short, the circumstances in Soccoccio are far too attenuated to the 7 facts alleged by Plaintiff to make any determination as to whether the law was clearly 8 established as to the purported “pain compliance techniques” used here. 9 Plaintiff alleges that there was no basis for the use of force after he was compliant 10 on the ground. The Ninth Circuit has long held that “where there is no need for force, any 11 force used is constitutionally unreasonable.” See, e.g., Headwaters Forest Def. v. Cnty. of 12 Humboldt, 240 F.3d 1185, 1199 (9th Cir. 2000) (where there is no need for force, any force 13 used is excessive), vacated and remanded on other grounds, Cnty. of Humboldt v. 14 Headwaters Forest Def., 534 U.S. 801 (2001); see also Blankenhorn v. City of Orange, 15 485 F.3d 463, 480 (9th Cir. 2007) (citing Graham’s “clear principle” that “force is only 16 justified when there is a need for force”); Motley v. Parks, 432 F.3d 1072, 1088 (9th Cir. 17 2005) (“[t]he use of a force against a person who is helpless or has been subdued is 18 constitutionally prohibited”), overruled on other grounds by United States v. King, 687 19 F.3d 1189 (9th Cir. 2012); Fontana v. Haskin, 262 F.3d 871, 880 (9th Cir. 2001) 20 (“[g]ratuitous and completely unnecessary acts of violence by the police during a seizure 21 violate the Fourth Amendment”); P.B. v. Koch, 96 F.3d 1298, 1303–04 & n.4 (9th Cir. 22 1996) (“since there was no need for force, [the defendant’s] use of force was objectively 23 unreasonable”). Here, on the facts alleged by Plaintiff, he was fully compliant, on the 24 ground, and the police officers gratuitously struck him, pulled his wrist and arm so hard 25 that a pop could be heard and then lifted him by his arm after they dislocated it. If these 26 facts are true, these acts were gratuitous and unnecessary and the law was clearly 27 established that such force could not be used. Accordingly, Defendants’ Motion to Dismiss 28 based on qualified immunity based on these alleged facts will be denied. 1 As to the handcuffing, Plaintiff alleges that the handcuffing was too tight, but does 2 not allege other facts indicating that it was clearly established that the handcuffing itself 3 was unconstitutional. Plaintiff cites to LaLonde v. County of Riverside, 204 F. 3d 947, 959 4 (9th Cir. 2000), Wall v. County of Orange, 364 F.3d 1107, 1110-1112 (9th Cir. 2004), and 5 Hansen v. Black, 885 F.2d 642, 645 (9th Cir. 1989) to argue that it was clearly established 6 that the handcuffing at issue here was clearly unconstitutional. In Hansen, the plaintiff 7 sustained injuries to her wrist and upper arm from the handcuffing, in Wall v. County of 8 Orange, the handcuffing “hurt and damaged” the plaintiff’s wrist, and in LaLonde, the 9 plaintiff complained about excessively tight handcuffs and the officers refused to loosen 10 the cuffs. 885 F.2d at 645, 364 F.3d at 1112, 204 F. 3d at 960. Here, Plaintiff does not 11 allege that he complained about the excessively tight handcuffing or that he sustained any 12 injury from the handcuffing itself. Accordingly, Plaintiff has not alleged sufficient facts 13 from which the Court could determine that it was clearly established that the handcuffing 14 was excessive force, and the Motion to Dismiss will be granted as to the handcuffing 15 portion of Plaintiff’s Fourth Amendment excessive force claim. 16 D. Failure to State a Claim 17 Defendants assert that Plaintiff fails to state a Monell claim because Plaintiff relies 18 on other instances of force used by officers in the Phoenix Police Department related to 19 shootings and because Plaintiff was not shot by the individual officers, those allegations 20 are irrelevant. Defendants also argue that Plaintiff relies on findings by the United States 21 Department of Justice that do not establish a custom of using excessive force, and there is 22 no force alleged like the force at issue in this action. Defendants assert that Plaintiff does 23 not allege any other facts demonstrating that the City of Phoenix had a policy, practice, or 24 custom that resulted in a violation of Plaintiff Fourth Amendment rights. 25 In Response, Plaintiff asserts that he has sufficiently alleged facts demonstrating 26 that the City of Phoenix failed to properly train its officers in the lawful use of force. 27 Dismissal of a complaint, or any claim within it, for failure to state a claim under 28 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable 1 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 2 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting 3 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining 4 whether a complaint states a claim under this standard, the allegations in the complaint are 5 taken as true and the pleadings are construed in the light most favorable to the nonmovant. 6 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A 7 pleading must contain “a short and plain statement of the claim showing that the pleader is 8 entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the 9 statement need only give the defendant fair notice of what . . . the claim is and the grounds 10 upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation 11 omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible 12 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. 13 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 14 pleads factual content that allows the court to draw the reasonable inference that the 15 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 16 To state a Monell claim based on a policy, practice or custom of Defendants, 17 Plaintiff must allege facts showing (1) that his constitutional rights were violated by an 18 employee or employees of the Defendant; (2) that the Defendant has customs or policies 19 that amount to deliberate indifference; and (3) that the policies or customs were the moving 20 force behind the violation of Plaintiff’s constitutional rights in the sense that the Defendant 21 could have prevented the violation with an appropriate policy. See Gibson v. Cnty. of 22 Washoe, 290 F.3d 1175, 1193-94 (9th Cir. 2002). “Policies of omission regarding the 23 supervision of employees . . . can be policies or customs that create . . . liability . . . , but 24 only if the omission reflects a deliberate or conscious choice to countenance the possibility 25 of a constitutional violation.” Id. at 1194 (quotations omitted). 26 A “decision not to train certain employees about their legal duty to avoid violating 27 citizens’ rights may rise to the level of an official government policy for purposes of 28 § 1983.” Connick v. Thompson, 563 U.S. 51, 60 (2011). To support a Monell claim for 1 failure to train under § 1983, a plaintiff must allege facts demonstrating that the local 2 government’s failure to train amounts to “deliberate indifference to the rights of persons 3 with whom the [untrained employees] come into contact.” Connick, 563 U.S. at 61 (citing 4 City of Canton v. Harris, 489 U.S. 378, 388 (1989)). 5 Deliberate indifference may be shown if there are facts to support that “in light of 6 the duties assigned to specific officers or employees, the need for more or different training 7 is obvious, and the inadequacy so likely to result in violations of constitutional rights, that 8 the policy-makers . . . can reasonably be said to have been deliberately indifferent to the 9 need.” Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (citing Canton, 489 U.S. at 10 390). While, “[a] pattern of similar constitutional violations by untrained employees is 11 ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to 12 train” Connick, 563 U.S. at 62, a plaintiff may still prove a failure-to-train claim without 13 showing a pattern of constitutional violations where a violation “may be a highly 14 predictable consequence of a failure to equip law enforcement officers with specific tools 15 to handle recurring situations.” Long v. Cnty. of L.A., 442 F.3d 1178, 1186 (9th Cir. 2006) 16 (internal citation omitted). In such instances, “failing to train could be so patently obvious 17 that [an entity] could be liable under § 1983 without proof of a pre-existing pattern of 18 violations.” Connick, 563 F.3d at 64. 19 Here, Plaintiff has alleged sufficient facts to state a Monell claim against the City of 20 Phoenix. Plaintiff has alleged that the City did not properly train its officers on using force, 21 the City knew that more or different training was needed in such situations, and the City’s 22 failure to address these issues ultimately led to the use of excessive force against Plaintiff. 23 Whether an entity has engaged in a custom or practice giving rise to constitutional liability 24 is a necessarily fact-specific question that the Court cannot resolve at this stage of the 25 proceedings. See Oyenik v. Corizon Health Inc., 696 F. App’x 792, 794 (9th Cir. June 19, 26 2017) (a reasonable jury could conclude that at least a dozen instances of defendant Corizon 27 denying or delaying consultations and radiation treatment for cancer patient over a year 28 amounts to a custom or practice of deliberate indifference) (citing Oviatt By & Through 1 Waugh v. Pearce, 954 F.2d 1470, 1478 (9th Cir. 1992)); Mi Pueblo San Jose, Inc. v. City 2| of Oakland, C-06-4094 VRW, 2006 WL 2850016, at *4 (N.D. Cal. Oct. 4, 2006) (Whether actions by entity officers or employees amount to a custom “depends on such factors as 4| how longstanding the practice is, the number and percentage of officials engaged in the 5 | practice, and the gravity of the conduct.”). 6 Likewise, whether the conduct at issue is so egregious that the need to train is 7 | obvious is a fact-specific question that cannot be resolved at this stage of the proceedings. 8 Accordingly, the Motion to Dismiss will be denied as to the Monell claim. 9| ITIS ORDERED: 10 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 11 | Motion to Dismiss (Doc. 8). 12 (2) Defendants’ Motion to Dismiss (Doc. 8) is granted in part and denied in 13 | part as follows: 14 (a) | The Motion is granted as to the part of Plaintiff's Fourth Amendment 15 claim regarding handcuffing because Plaintiff has not shown that it 16 was clearly established that the handcuffing constituted excessive 17 force under the Fourth Amendment. 18 (b) The Motion is otherwise denied. 19 Dated this 2nd day of May, 2025. 20 Michal T. Hbhurdle Michael T. Liburdi 23 United States District Judge 24 25 26 27 28