Richard Bernier, III v. Walker

Opinion

1 2 3

6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 RICHARD CHARLES BERNIER III and ) Case No.: 1:18-cv-1131 JLT SKO NADEZHDA USTINENKOV, ) 12 ) ORDER GRANTING DEFENDANTS’ MOTIONS Plaintiffs, ) TO DISMISS AND GRANTING THE MOTION TO 13 ) STRIKE v. ) 14 ) (Docs. 81, 82) FRESNO POLICE OFFICER ANTHONY ) 15 RODRIGUEZ, et al., ) ) 16 Defendants. ) ) 17

18 Richard Bernier III and Nadezhda Ustinenkov contend Bernier was the victim of excessive 19 force used by Fresno County deputies and Fresno police officers during the course of an arrest and 20 suffered retaliatory acts for complaining about the actions of the involved officers. Plaintiffs seek to 21 hold the City of Fresno, Fresno County, police officers, and sheriff deputies liable for violations of 22 federal and state law. (Doc. 80.) 23 The City and County of Fresno seek dismissal of Bernier’s excessive force claim pursuant to 24 Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting the allegations are insufficient to 25 establish Monell liability. (Docs. 81, 82.) The City, Officer Anthony Rodriguez, and Officer Kevin 26 Jones assert the allegations are also insufficient to state a retaliation claim against the Fresno police 27 officers and seek dismissal of the claim. (Doc. 81.) The County Defendants also seek to strike a 28 portion of the Fourth Amended Complaint pursuant to Rule 12(f). (Doc. 82.) 1 The Court finds the matters suitable for decision without oral arguments, and no hearing date 2 will be set pursuant to Local Rule 230(g). For the reasons set forth below, the motions to dismiss and 3 the motion to strike are GRANTED. 4 I. Background and Allegations 5 Plaintiffs assert Bernier was driving home from a visit with a friend when he “noticed he was 6 being followed by a Fresno County Sheriff’s patrol car,” either late in the night of November 7 or early 7 morning of November 8, 2017. (Doc. 80 at 3, ¶ 11.) According to Plaintiffs, “Bernier was fearful and 8 wanted to get to family before he encountered law enforcement, so he continued to head home.” (Id.) 9 Plaintiffs assert “that [a]s the pursuit continued, Bernier was followed by several officers, including 10 defendants Fresno Police Officers Anthony Rodriguez and Kevin Jones, and Fresno County Sheriff’s 11 Deputies Garrett Majors, John Robinson, and Nathaniel Wilkinson.” (Id. at 3-4, ¶ 11.) 12 Plaintiffs allege that “[a]s he neared his residence, Bernier exited his vehicle and jogged toward 13 his front door.” (Doc. 80 at 4, ¶ 12.) Plaintiffs assert “one of the pursuing patrol cars drove onto the 14 lawn of an adjacent property after Bernier and ran over his left leg, causing his foot [to] break and [be] 15 pinned under the vehicle.” (Id.) Plaintiffs contend, “There was no justification for this use of force, as 16 Bernier did not appear to be armed and was not by his actions endangering any of the officers or any 17 third party.” (Id. at 4, ¶ 12.) 18 According to Plaintiffs, “Bernier was unable to stand up, and he was not a threat to any officer 19 or third party as he writhed in pain on the adjacent lawn.” (Doc. 80 at 4, ¶ 13.) They contend that 20 while “Bernier was lying on the ground and not resisting, he was surrounded by all of the individual 21 defendants with his arms handcuffed his hands behind his back.” (Id., emphasis omitted.) Plaintiffs 22 allege, “At that point, no reasonable officer would have believed that the additional use of injurious 23 force on Bernier was lawful.” (Id.) However, Plaintiffs assert “the individual defendants took out their 24 batons and began beating him on his head, face, and body.” (Id., ¶ 14.) 25 “Bernier recalls that some of the officers used their bare fists, others were kicking him, and 26 others were using batons at various times.” (Doc. 80 at 4, ¶ 14.) Plaintiffs assert: 27 [A]ll of the defendant officers were surrounding him and either personally using or enabling other officers to use excessive force, and they therefore 28 all acted as integral participants in this clearly excessive use of force. Available redacted body camera footage shows specifically that the two 1 officers beating and kicking Bernier were defendants Officers Rodriguez and Jones, since they were standing directly over Bernier at the time they 2 were using this force and wearing Fresno Police Department uniforms and were wearing their body cameras – of the three agencies involved in this 3 use of force only officers of the Fresno Police Department were at the time equipped with body worn cameras, and records provided in criminal 4 discovery indicate that the only two Fresno Police Department Officers who responded were Officers Rodriguez and Jones. 5

6 (Id., emphasis omitted.) Plaintiffs assert, “Bernier begged the defendant officers to stop and simply 7 arrest him,” but they continued to beat him “until he lost consciousness.” (Id.) “The last thing that 8 Bernier remembered before blacking out was being kicked in the head by one or more of the defendant 9 officers.” (Id. at 5, ¶ 14.) Plaintiffs assert “the defendant officers” caused Bernier “to sustain severe 10 head trauma, a broken orbital bond that ultimately required an implant and titanium plate, and 11 numerous contusions and abrasions all over his body.” (Id. at 4, ¶ 14.) 12 Plaintiffs report that “Bernier was transported by ambulance to Community Regional Medical 13 Center and was handcuffed to the bed.” (Doc. 80 at 5, ¶ 16.) Plaintiffs allege “at least some of the 14 defendant officers interfered with his receiving necessary medical treatment, so that he could be 15 rushed to jail.” (Id.) Plaintiffs contend this “interference followed Bernier’s protestations and 16 criticisms of the defendant officers’ actions, and also was intended to prevent documentation of the 17 full extent of Bernier’s injuries.” (Id.) Plaintiffs assert “Bernier was hurriedly released from the 18 hospital” and transported to the Fresno County Jail. (Id.) 19 According to Plaintiffs, “At the jail, Bernier was sent to one of the regular inmate floors 20 instead of the infirmary, which Bernier interpreted as meaning that the officers would permit or 21 encourage inmates to assault him, so that they would then be able to conceal or plausibly deny their 22 wrongdoing.” (Doc. 80 at 5, ¶ 18.) Plaintiffs assert: “Under state law, applicable jail standards, and 23 applicable jail policy, Bernier should not have been assigned to general population when he clearly 24 required medical attention and monitoring.” (Id. at 5-6, ¶ 18.) Thus, “Bernier believes his being sent 25 to general population was in retaliation for his criticism of the defendant officers and his asking them 26 to identify themselves, and also as part of a cover-up effort.” (Id. at 6, ¶ 18.) 27 Bernier was released “[s]everal hours later, after posting bail.” (Doc. 80 at 5, ¶ 16.) “Upon 28 being released, Bernier returned to Community Regional Medical Center for further treatment of his 1 injuries.” (Id. at 6, ¶ 19.) Plaintiffs report he “was admitted and remained at the hospital for several 2 days due to the severity of his injuries.” (Id.) 3 Plaintiffs assert that “at both the hospital and the jail, the defendant officers made numerous 4 sadistic and despicable comments to Bernier.” (Doc. 80 at 5, ¶ 17.) Bernier believes that all of the 5 defendant officers who sued force on him were present in the hospital and participated in this pattern of 6 retaliation and ridicule.” (Id., emphasis omitted.) Plaintiffs allege: 7 One of the defendant officers bragged about beating Bernier, saying that he and the others “tuned him up” and also saying “that is what happens when 8 you don’t listen to us.” One of the defendant officers also stated that Bernier was “lucky” they did not have a K-9 available. One of the 9 defendant officers made a comment about Bernier’s vehicle having Florida license plates and needing to learn “how things are done in Fresno.” 10 Moreover, when Bernier protested and criticized the defendant officers for what they had done to him and also for their comments, and also asked the 11 officers for their names and badge numbers, the officers refused to identify themselves and responded with expletives and comments that he would 12 have to “get a lawyer.”

13 (Id.) 14 Plaintiffs assert in December 2017, “Bernier received a notice that the District Attorney had 15 declined to prosecute him, that a copy of his arrest report had been sent to the Department of Justice, 16 and that his arrest had been retroactively deemed to be a detention.” (Doc. 80 at 6, ¶ 20.) “On 17 December 30, 2017, Bernier, through his retained attorney, sent a preservation request letter to the 18 Fresno County Sheriff’s Department, which informed that Bernier would be making a claim based on 19 the events of November 8, 2017….” (Id., ¶ 21.) On January 8, 2018, the District Attorney filed 20 charges against Bernier. (Id., ¶ 22.) Plaintiffs contend this was “[n]ot coincidently… after Bernier 21 gave notice that he was going to take legal action against those responsible for abusing him on 22 November 8, 2017.” (Id.) Thus, Plaintiffs allege it was “retaliatory prosecution.” (Id.) In addition, 23 Plaintiffs assert “[a]ll of the defendant officers wrote false reports that enabled this retaliatory 24 prosecution to commence, including Officers Jones and Rodriquez. (Id., emphasis omitted.) 25 According to Plaintiffs, “Bernier’s physical injuries have still not fully healed nearly two years 26 later.” (Doc. 64 at 6, ¶ 23.) For example, Plaintiffs report Bernier “has frequent headaches he never 27 had before” and “is simply not the same mentally or neurologically as he was previously – he has 28 severe memory and concentration issues and related dysfunction.” (Id. at 6-7, ¶ 23.) Plaintiffs assert 1 that “Bernier also has also been diagnosed with post-traumatic stress disorder and is plagued with 2 intrusive thoughts and nightmares about the abuse he suffered, as well as the currently pending 3 retaliatory prosecution.” (Id. at 7, ¶ 23.) 4 Nadezhda Ustinenkov, who has been married to Bernier for nine years, alleges she “also has 5 sustained considerable damages as a result of the harm the foregoing incidents have caused in her 6 marital relationship with Bernier.” (Doc. 80, ¶¶ 5, 24.) Plaintiffs contend, “Instead of being a spouse 7 and equal partner as she used to be, Ustinenkov is now more Bernier’s caretaker and protector and 8 source of comfort.” (Id. at 7, ¶ 24.) Plaintiffs assert that “Bernier’s and Ustinenkov’s marital 9 relationship has been damaged even further by the retaliatory prosecution currently pending against 10 them and the related upheaval they now experience.” (Id.) 11 Based upon the foregoing, Bernier identifies the following causes of action in the Fourth 12 Amended Complaint: (1) excessive force in violation of the Fourth and Fourteenth Amendments 13 against the individual/fictious defendants, the City, and the County; (2) retaliation in violation of the 14 First Amendment against all individual and fictitious defendants; (3) violation of the Bane Act against 15 the Fresno County deputies and the County; (4) battery against all County defendants; and (5) 16 negligence against all County defendants. (See generally Doc. 80 at 7-13.) In addition, Ustinekov 17 seeks to hold the County defendants liable for loss of consortium under state law. (Id. at 14.) 18 The City Defendants—including the City of Fresno, Officer Rodriguez, and Officer Jones— 19 filed their motion to dismiss on March 10, 2022. (Doc. 81.) Likewise, the County Defendants— 20 including the County of Fresno, Deputy Major Robinson, and Deputy Major Wilkinson— filed their 21 motion to dismiss and motion to strike on March 10, 2022. (Doc. 82.) Plaintiffs filed their opposition 22 to the motions on March 24, 2022. (Doc. 85.) The County Defendants filed a reply on April 1, 2022 23 (Doc. 86) and the City Defendants filed a reply on April 4, 2022 (Doc. 87). 24 II. Motion to Strike 25 Pursuant to Rule 12(f), a district court “may strike from a pleading … any redundant, 26 immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). A “redundant” matter is 27 comprised “of allegations that constitute a needless repetition of other averments or which are foreign 28 to the issue to be denied.” Wilkerson v. Butler, 229 F.R.D. 166, 170 (E.D. Cal. 2005). An immaterial 1 matter “has no essential or important relationship to the claim for relief or the defenses being pleaded,” 2 while an “[i]mpertinent matter consists of statements that do not pertain, and are not necessary, to the 3 issues in question.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other 4 grounds (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at 5 706-07, 711 (1990)). The purpose of a Rule 12(f) motion “is to avoid the expenditure of time and 6 money that must arise from litigating spurious issues by dispensing with those issues prior to trial.” 7 Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). 8 The County observes: “In the Fourth Amended Complaint on page 13 at line 18, Plaintiffs 9 reference ‘Officer Oliver,’ however, there is no defendant by the name of Oliver named in this action.” 10 (Doc. 82-1 at 14.) In addition, the County notes that “Plaintiffs acknowledged that this name and 11 reference should not be included in the Notice of Errata Re: Third Amended Complaint for Damages 12 and Injunctive Relief” filed on August 8, 2020. (Id., citing Doc. 65.) The County requests the 13 reference to “Officer Oliver” be stricken as it is “misleading, immaterial, and impertinent considering 14 there is no defendant by that name in the case and because Plaintiffs have already indicated that 15 reference was made in error…” (Id.) 16 Plaintiffs report they “do not oppose the request to strike the erroneous reference to a Deputy 17 Oliver….” (Doc. 85 at 2.) Accordingly, the unopposed motion to strike reference to “Officer Oliver” 18 in the Fourth Amended Complaint is granted. 19 III. Motions to Dismiss 20 A Rule 12(b)(6) motion “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 21 732 (9th Cir. 2001). In ruling on a motion to dismiss filed pursuant to Rule 12(b), the Court “may 22 generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and 23 matters properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 24 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). 25 Dismissal of a claim under Rule 12(b)(6) is appropriate when “the complaint lacks a cognizable 26 legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. 27 Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Thus, “[t]o survive a motion to dismiss, a complaint 28 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 1 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 2 570 (2007)). The Supreme Court explained, 3 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is 4 liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that 5 a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line 6 between possibility and plausibility of ‘entitlement to relief.’”

7 Iqbal, 556 U.S. at 678 (internal citations omitted). 8 When considering a motion to dismiss, the Court must accept the factual allegations made in 9 the complaint as true. Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976). A court 10 must construe the pleading in the light most favorable to the plaintiffs, and resolve all doubts in favor 11 of the plaintiffs. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legal conclusions need 12 not be taken as true when “cast in the form of factual allegations.” Ileto v. Glock, Inc., 349 F.3d 1191, 13 1200 (9th Cir. 2003). “The issue is not whether a plaintiff will ultimately prevail, but whether the 14 claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the 15 pleadings that a recovery is very remote and unlikely but that is not the test.” Scheuer v. Rhodes, 416 16 U.S. 232, 236 (1974). The Court “will dismiss any claim that, even when construed in the light most 17 favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action.” Student 18 Loan Marketing Assoc. v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). 19 The City and County of Fresno seek dismissal of Bernier’s excessive force claim, asserting the 20 allegations are insufficient to establish Monell liability. (Docs. 81, 82.) The City, Officer Anthony 21 Rodriguez, and Officer Kevin Jones assert the allegations are also insufficient to state a claim for 22 retaliation against the individual Fresno police officers. (Doc. 81 at 2.) 23 A. Section 1983 Claims 24 An individual may bring an action for the deprivation of civil rights pursuant to 42 U.S.C. § 25 1983 (“Section 1983”), which “is a method for vindicating federal rights elsewhere conferred.” 26 Albright v. Oliver, 510 U.S. 266, 271 (1994). In relevant part, Section 1983 provides: 27 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 28 subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any 1 rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or 2 other proper proceeding for redress…

3 42 U.S.C. § 1983. To state a cognizable claim for a Section 1983 violation, a plaintiff must allege: (1) 4 the deprivation of a constitutional right and (2) a person who committed the alleged violation acted 5 under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Williams v. Gorton, 529 F.2d 668, 670 6 (9th Cir. 1976). 7 A plaintiff must allege a specific injury was suffered and show causal relationship between the 8 defendant's conduct and the injury suffered. See Rizzo v. Goode, 423 U.S. 362, 371-72 (1976). Thus, 9 Section 1983 “requires that there be an actual connection or link between the actions of the defendants 10 and the deprivation alleged to have been suffered by the plaintiff.” Chavira v. Ruth, 2012 WL 11 1328636, at *2 (E.D. Cal. Apr. 17, 2012). A person deprives another of a constitutional right “if he 12 does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he 13 is legally required to do so that it causes the deprivation of which complaint is made.” Johnson v. 14 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In other words, “[s]ome culpable action or in action must be 15 attributable to defendants.” See Puckett v. Corcoran Prison - CDCR, 2012 WL 1292573, at *2 (E.D. 16 Cal. Apr. 13, 2012). 17 B. Excessive Force 18 The Supreme Court of the United States determined that the Due Process Clause of the 19 Fourteenth Amendment protects individuals who have not yet been convicted of a crime “from the use 20 of excessive force that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 388 (1989). 21 However, allegations of excessive force during an arrest are analyzed under the Fourth Amendment, 22 which prohibits arrests without probable cause or other justification. Id. (“claim[s] that law 23 enforcement officials used excessive force in the course of making an arrest, investigatory stop, or 24 other ‘seizure’ ... are properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ 25 standard”); see also Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994) (“the use of force to effect an 26 arrest is subject to the Fourth Amendment's prohibition on unreasonable seizures”). The Supreme 27 Court explained, 28 As in other Fourth Amendment contexts … the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the 1 officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent 2 or motivation. An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor 3 will an officer’s good intentions make an objectively unreasonable use of force constitutional. 4

5 Graham, 490 U.S. at 396-97 (1989) (internal citations omitted). In applying this standard, the Ninth 6 Circuit instructs courts to consider “the totality of the circumstances and . . . whatever specific factors 7 may be appropriate in a particular case.” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010). 8 1. Municipal liability 9 The Supreme Court observed that “Congress did not intend municipalities to be held liable 10 unless action pursuant to official municipal policy of some nature caused a constitutional tort.” 11 Monell v. New York City Dep’t. of Soc. Services, 436 U.S. 658, 691 (1978). Thus, a local government 12 unit may not be held responsible for the acts of its employees under a respondeat superior theory of 13 liability. Id., 436 U.S. at 691 (“a municipality cannot be held liable solely because it employs a 14 tortfeasor”). Rather, a local government entity may only be held liable if it inflicts the injury of which 15 a plaintiff complains through a governmental policy or custom. Id. at 694; Gibson v. County of 16 Washoe, 290 F.3d 1175, 1185 (9th Cir. 2002). 17 To establish municipal liability against the City and County, Plaintiffs must allege Bernier: (1) 18 was deprived of a constitutional right; (2) the City and County each had a policy; (3) these policies 19 amounted to deliberate indifference of his constitutional right; and (4) the policies were “the moving 20 force behind the constitutional violation.” See Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) 21 (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)); see also Monell, 436 U.S. at 690- 22 92. There are three methods by which a policy or custom of a government may be demonstrated when: 23 (1) A longstanding practice or custom...constitutes the standard operating procedure of the local government entity; 24 (2) The decision-making official was, as a matter of law, a final 25 policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision; or 26 (3) An official with final policymaking authority either delegated that 27 authority to, or ratified the decision of, a subordinate.

28 Pellum v. Fresno Police Dep’t, 2011 WL 350155, at *3 (E.D. Cal. Feb. 2, 2011) (citing Menotti v. City 1 of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005)). Furthermore, a policy may be inferred if there is 2 evidence of repeated constitutional violations for which officers were not reprimanded. Menotti, 409 3 F.3d at 1147. 4 A policy amounts to deliberate indifference where “the need for more or different action is so 5 obvious, and the inadequacy of the current procedure so likely to result in the violation of 6 constitutional rights, that the policymakers can reasonably be said to have been deliberately indifferent 7 to the need.” Mortimer v. Baca, 594 F.3d 714, 722 (9th Cir. 2010) (citing Oviatt, 954 F.2d at 1477-78), 8 accord Canton, 489 U.S. at 390. To establish deliberate indifference by a government, “the plaintiff 9 must show that the municipality was on actual or constructive notice that its omission would likely 10 result in a constitutional violation.” Gibson, 290 F.3d at 1186 (citing Farmer, 511 U.S. at 841). 11 Importantly, municipal liability for an “improper custom may not be predicated on isolated or sporadic 12 incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the 13 conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 14 (9th Cir. 1996). 15 Relevant to his claims of municipal liability, Plaintiffs assert the City and County “are 16 responsible for Bernier’s damages because their customs, policies and practices were the moving force 17 behind the individual defendant’s constitutional misconduct, since the attendant circumstances 18 indicate there was a pervasive culture of using excessive force and covering it up in these agencies.” 19 (Doc. 80 at 8, ¶ 29.) Specifically, Plaintiffs contend “these entity defendants’ customs, policies and 20 practices of failing to train, supervise and discipline officers who use excessive and unreasonable 21 injurious force and also is assisting said officers in concealing their misconduct by denying access to 22 public records and other pertinent information that would assist in exposing office misconduct.” (Id.) 23 Plaintiffs allege “[t]hese customs, policies and practices will be further specified during discovery in 24 this proceeding.” (Id.) 25 a. Failure to train 26 The Supreme Court held that “the inadequacy of police training may serve as the basis for 27 [Section] 1983 liability only where the failure to train amounts to deliberate indifference to the rights of 28 persons with whom the police come into contact.” Canton, 489 U.S. at 388. The omission of training 1 must reflect a “deliberate or conscious choice by a municipality” for the City or the County to be liable 2 for its failures under Section 1983. Id. Therefore, the municipal defendants would be liable under 3 Section 1983 if Bernier can show a failure to train the involved deputes and officers amounted to 4 deliberate indifference, and a causal connection existed between the failure to train and the injuries 5 Bernier claims. See Canell v. Lightner, 143 F.3d 1210, 1213-14 (9th Cir. 1998) (to impose liability on 6 a supervisor for failure to adequately train, a plaintiff must demonstrate that the training was 7 inadequate, the training was the deliberate or conscious choice of the supervisor, and the training 8 caused the alleged constitutional violation). 9 Plaintiffs contend that “[r]easonable officers working for an agency that provided proper 10 training and supervision would have never used grossly excessive force under such circumstances, if 11 only for fear of being reported by another officer or civilian on scene.” (Doc. 80 at 8, ¶ 29(A).) In 12 addition, Plaintiffs allege officers joked about the use of excessive force while at the hospital and jail, 13 and assert “reasonable officers working for an agency that provided proper training and supervision 14 would have never openly admitted and discussed using grossly excessive force under such 15 circumstances, if only for fear of being reported by another officer or by a healthcare provider who 16 overheard their statements.” (Id., ¶ 29(B).) Plaintiffs contend that though the officers wore body 17 cameras, the officers knew it “either had to be uploaded to the Fresno Police Department server or 18 would have to be erased in violation of written policy.” (Id. at 8-9, ¶ 29(C), (E).) Plaintiffs conclude: 19 [R]easonable officers working for an agency that provided proper training and supervision would not have used grossly excessive force, if only 20 because the existence of body worn footage would have documented conduct that could have cost them their jobs and/or subjected them to 21 criminal consequences. Likewise, reasonable officers working for an agency that provided proper training and supervision would not have used 22 grossly excessive force, if only because the erasure of available body worn camera footage would have been detectable by the agency’s supervision 23 and management and thus would have exposed them to severe professional or criminal consequences. 24

25 (Id. at 9, ¶ 29(E).) 26 The Court determined “these allegations are conclusory in nature” when reviewing the Third 27 Amended Complaint. (Doc. 78 at 12.) Plaintiffs have not amended the allegations in the complaint 28 related to the training provided by either the City or the County. (Compare Doc. 64 at 7-9 ¶ 29 with 1 Doc. 80 at 8-10, ¶ 29.) Instead, Plaintiffs only bolstered the allegations related to the use of body 2 cameras and their requests for camera footage from the City. (See Doc. 80 at 10.) Again, Plaintiffs do 3 not offer any facts related to the training “defendant officers”1 received—and may have defied— or 4 facts demonstrating the training failures were the product of deliberate indifference or conscious 5 choice by policymakers for either the City or the County. Plaintiffs merely re-assert allegations 6 regarding the conduct of the responding officers to attempt to impose liability under a thinly veiled 7 theory of respondeat superior. See Monell, 436 U.S. at 691. 8 Municipal liability has been imposed in “cases in which supervisors have been held liable 9 under a failure to train… theory involve conscious choices made with full knowledge that a problem 10 existed.” Woodward v. Kokor, 2017 WL 2572456, at *4 (E.D. Cal. June 13, 2017) (citation omitted); 11 see also Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003) (explaining that to impose liability for 12 failure to train, “a plaintiff must usually demonstrate a pattern of violations and that the inadequacy of 13 the training is obvious and obviously likely to result in a constitutional violation”). Plaintiffs fail to 14 allege facts supporting a conclusion the City had knowledge of a pattern of violations by its police 15 officers, or that the County had knowledge of a pattern of violations by its deputies, such that the 16 inadequacy of training would be obvious and amount to deliberate indifference by either municipality. 17 Moreover, to show allege deliberate indifference, it is “ordinarily necessary” to allege “a pattern 18 of similar constitutional violations by untrained employees.” Connick v. Thompson, 563 U.S. 51, 62 19 (2011). In certain cases, however, a showing of “obviousness … can substitute for the pattern of 20 violations ordinarily necessary to establish municipal liability.” Connick, 563 U.S. at 63. This may 21 occur in a situation where “the unconstitutional consequences of failing to train could be so patently 22 obvious that a city could be liable under § 1983 without proof of a pre-existing pattern of violations,” 23 such as arming a police force and failing to train the officers on the use of deadly force. Connick, 563 24 U.S. at 63; Canton, 489 U.S. at 390. However, there are no facts supporting a conclusion that this case 25 presents the type of “single incident” failure to train claim contemplated by the Supreme Court in 26

27 1 It is unclear whether Plaintiff is including the sheriff deputies in the allegations, or only referring to the police officers when using this term. This is particularly problematic because Plaintiffs seek to impose municipal liability upon both the 28 City and the County for the failure to train and supervise. For purposes of this motion only, the Court will assume the 1 Canton. Thus, the facts alleged remain insufficient to establish Monell liability for the City and the 2 County on the theory of failure to train employees. 3 b. Failure to supervise 4 A municipality’s failure to supervise its employees can also give rise to Section 1983 liability. 5 See Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014). Like the failure to adequately train, a 6 constitutional violation may arise where the failure to supervise amounts to “deliberate indifference.” 7 Canton, 489 U.S. at 388; Davis v. Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989) (observing there is 8 “no principled reason to apply a different standard in adequate supervision” cases than that applied in 9 inadequate training). “This requires showing that the defendant was on actual or constructive notice 10 that its omission would likely result in a constitutional violation.” Jackson, 749 F.3d at 763 (internal 11 quotations and citations omitted). “Mere negligence in training or supervision … does not give rise to 12 a Monell claim.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). 13 The County argues that “Plaintiffs have failed to add any factual allegations demonstrating that 14 the County was on notice that any of the Fresno County Deputies had a history or prior incidents of 15 similar bad conduct.” (Doc. 82-1 at 11.) Similarly, the City contends “[t]here are no allegations 16 contained in the FAC to support the assertion that the Defendant Fresno PD officers work for an 17 agency that does not provide proper supervision. Further, there is no factual support or allegations 18 which plausibly suggest the presence of a pattern of supervisory failures or that the circumstances 19 warrant ‘single-incident liability.’” (Doc. 81-1 at 14.) 20 Plaintiffs’ allegations concerning the failure to supervise are entwined with the allegations 21 related to the municipalities’ failure to train. (See Doc. 80 at 8-10, ¶ 29.) As the County and City 22 argue, the allegations remain insufficient to show knowledge— by either municipality— of a failure 23 to supervise the police officers and sheriff deputies, or that such pattern of a failure to supervise was 24 likely to result in a constitutional violation. Without such allegations, Bernier fails to establish Monell 25 liability on the theory of failure to supervise. See Canton, 489 U.S. at 388; Jackson, 749 F.3d at 763. 26 c. Failure to discipline 27 Plaintiffs allege the City and County are also liable for the “failure to discipline” the officers 28 and deputies who used excessive force. (Doc. 80 at 8, ¶ 29.) According to Plaintiffs, “based on 1 discovery in the criminal proceeding … none of the defendant officers were in any way investigated or 2 disciplined, although there is available body worn camera footage of Bernier being handcuffed and 3 prone on the ground and still being kicked in the face and injured by an officer who was seemingly 4 wearing a steel toe shoe or boot.” (Id. at 10, ¶ 29(G).) Plaintiffs allege, “Although such conduct 5 constitutes assault with a deadly weapon causing great bodily injury and is a serious and violent felony 6 under California Penal Code § 667.5, none of the defendant officers were required to answer for their 7 conduct in any way.” (Id.) Plaintiffs assert, in essence, the City and County are liable for ratifying the 8 actions of their employees. 9 The Ninth Circuit determined that “evidence of repeated constitutional violations for which the 10 errant municipal officers were not discharged or reprimanded” can be sufficient to support a finding of 11 municipal policy. Hunter v. Cty. of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011). The practice 12 must, however, be “of sufficient duration, frequency and consistency to constitute an actionable 13 policy.” Trevino, 99 F.3d at 920. Consequently, a single instance of failure to discipline an officer, 14 without something more, is insufficient to establish ratification. See Haugen v. Brosseau, 339 F.3d 15 857, 875 (9th Cir. 2003) (citing Santiago v. Fenton, 891 F.2d 373, 382 (1st Cir. 1989)); see also Kanae 16 v. Hodson, 294 F. Supp. 2d 1179, 1191 (D. Haw. 2003). 17 To state a cognizable claim based upon ratification, a plaintiff must allege an official with final 18 policymaking authority approved a subordinate’s action, as well as the basis for the action. Sheehan v. 19 City & Cty. of San Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014), rev’d in part on other by grounds 20 City & Cty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600 (2015); see also Paulos v. FCH1, LLC, 21 685 F. App’x 581, 582 (9th Cir. 2017) (relying on Sheehan to find a Monell claim failed because the 22 plaintiff did not provide sufficient evidence of a pattern of failure to discipline). Stated differently, a 23 final policymaker must make a deliberate choice to endorse the subordinate’s actions for the 24 municipality to be liable. Sheehan, 743 F.3d at 1231. “The policymaker must have knowledge of the 25 constitutional violation and actually approve of it,” and a “mere failure to overrule a subordinate’s 26 actions, without more, is insufficient to support a § 1983 claim.” Lytle v. Carl, 382 F.3d 978, 987 (9th 27 Cir. 2004). Similarly, the “mere failure to discipline [a subordinate] does not amount to ratification of 28 [the subordinate’s] allegedly unconstitutional actions.” Sheehan, 743 F.3d at 1231. 1 As the Court previously determined, Plaintiffs have not alleged facts sufficient to support 2 municipal liability based on the failure to discipline or ratification. Plaintiffs did not add allegations 3 concerning failure to discipline or ratification. There are no allegations of a pattern of repeated 4 behavior—whether with the identified defendants or other officers and deputies—such that the Court 5 may find a pattern of failure to discipline. Further, there are no allegations that policymakers for the 6 City and County were involved with the decisions to not discipline the employees. Thus, Bernier fails 7 to state a cognizable claim against the City and County for excessive force on these grounds. 8 d. Denial of access to public information 9 Plaintiffs allege the City and County have customs, policies, and practices through which they 10 are assisting “officers who use excessive and unreasonable injurious force… in concealing their 11 misconduct by denying access to public records and other pertinent information that would assist in 12 exposing office misconduct.” (Doc. 80 at 8, ¶ 29.) 13 This Court observed previously that Plaintiffs “have not cited any case applying Monell to such 14 a theory of liability.” (Doc. 63 at 10.) The closest analogy the Court identified was “the small number 15 of cases discussing the limited circumstances in which a ‘cover up’ may give rise to § 1983 liability.” 16 (Id., citing e.g., Johnston v. County of Sonoma, 2011 WL 855934, at *3 (N.D. Cal. Mar. 9, 2011 [“A 17 ‘cover up’ theory of section 1983 liability is only viable where the cover-up itself deprives a plaintiff 18 of constitutional rights”]; McNelis v. Ada Cty., 2013 WL 12139836, at *3 (D. Idaho Jan. 17, 2013).) 19 Indeed, Plaintiffs assert they believe actions were taken “as part of a cover-up effort.” (Doc. 80 at 6, ¶ 20 18; see also id. at 5, ¶ 15 [alleging “the defendant officers immediately went into ‘cover up mode’” 21 after Bernier’s injury].) As the Court explained, “It is possible that a “cover-up” that prevents a 22 person who has been wronged from vindicating his or her rights could violate their right of access to 23 the courts, but a causal connection between the alleged cover up and a constitutional violation would 24 also have to be alleged. (Doc. 63 at 10-11, citing McNelis, 2013 WL 12139836, at *3.) 25 Significantly, however, “[a] valid § 1983 cover-up claim requires that the conspiracy prevented 26 the plaintiff from obtaining redress for the violation that was the subject of the cover-up.” See 27 Nazarian v. City of Beverly Hills, 2020 WL 11027732, at *11 (C.D. Cal. Nov. 18, 2020) (citing Delew 28 v. Wagner, 143 F.3d 1219, 1222-23 (9th Cir. 1998); Karim-Panahi v. Los Angeles Police Dep’t, 839 1 F.2d 621, 625 (9th Cir. 1988). “In other words, a plaintiff must allege that the cover-up actually 2 precluded the individual from prevailing in a state or federal lawsuit against the wrongdoers.” Id. 3 (citing Delew, 143 F.3d at 1222-23). A claim for a cover-up is premature when “the plaintiff’s action 4 seeking redress for the underlying violations remains pending.” Id. (citing Karim-Panahi, 839 F.2d at 5 625). Because the action is currently pending in which the underlying violations are challenged, this 6 theory of liability appears premature. See Nazarian, 2020 WL 11027732, at *11; see also Karim- 7 Panahi, 839 F.2d at 625 (claim alleging a police cover-up of misconduct was premature when the 8 action challenging misconduct was pending). Moreover, Plaintiffs fail to link any denial of access to 9 information to a denial of access to the Court. Thus, Plaintiffs are unable to proceed based upon this 10 theory of municipal liability. 11 2. Conclusion 12 Plaintiffs failed to allege facts sufficient to impose municipal liability under Monell related to 13 the alleged use of excessive force against Bernier. Further, to the extent the municipal liability is 14 based upon a “cover up” theory, such a claim cannot proceed at this time. See Nazarian, 2020 WL 15 11027732, at *11; Karim-Panahi, 839 F.2d at 625. Consequently, the motions to dismiss the first 16 cause of action against the City and the County are granted. 17 C. Retaliation under the First Amendment 18 Bernier seeks to hold “all individual and individual and fictitious Defendant” liable for 19 retaliation in violation of the First Amendment. (Doc. 80 at 11, emphasis omitted.) “The First 20 Amendment forbids government officials from retaliating against individuals for speaking out.” Blair 21 v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010) (citing Hartman v. Moore, 547 U.S. 250, 256 22 (2006), Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).) It also “protects verbal 23 criticism, challenges, and profanity directed at police officers unless the speech is ‘shown likely to 24 produce a clear and present danger of a serious substantive evil that rises far above public 25 inconvenience, annoyance, or unrest.’” United States v. Poocha, 259 F.3d 1077, 1080 (9th Cir. 2001) 26 (quoting City of Houston v. Hill, 482 U.S. 451, 461 (1987)). 27 To state a cognizable claim for retaliation in violation of the First Amendment, Bernier must 28 allege: “(1) he engaged in a constitutionally protected activity; (2) as a result, he was subjected to 1 adverse action that would chill a person of ordinary firmness from continuing to undertake the activity; 2 and (3) there was a substantial causal relationship between the protected activity and the adverse 3 action.” Id. (footnote omitted). Accordingly, a plaintiff “must allege facts ultimately enabling him to 4 ‘prove the elements of retaliatory animus as the cause of injury,’ with causation being ‘understood to 5 be but-for causation.’” Lacey v. Maricopa County, 693 F.3d 896, 916-17 (9th Cir. 2012) (quoting 6 Hartman, 547 U.S. at 260). 7 The City Defendants seek dismissal of the second cause of action, to the extent it is stated 8 against Officers Jones and Rodriguez. (Doc. 81-1 at 16.) The City Defendants argue “[t]he additional 9 allegations included in the FAC are insufficient to cure the deficiency of Plaintiffs’ allegations with 10 respect to failing to attribute actions to Officers Rodriguez or Jones.” (Id. at 17.) Plaintiffs contend 11 the allegations are sufficient to support the claim and “[t]here is no lack of clarity in these allegations.” 12 (Doc. 85 at 4.) 13 1. Protected activity 14 In the FAC, Plaintiffs alleges: “The individual defendants, acting under color of law, retaliated 15 against Bernier to deter him from taking appropriate legal action against them, and also for criticizing 16 them and protesting their wrongdoing while he was at the hospital and the jail, and also in the aftermath 17 of his informing the individual defendants that he would be taking legal action.” (Doc. 80 at 77, ¶ 32.). 18 Further, Plaintiffs assert: 19 In the aftermath of his beating, at both the hospital and the jail, the defendant officers made numerous sadistic and despicable comments to 20 Bernier. Bernier believes that all of the defendant officers who [used] force on him were present in the hospital and participated in this pattern of 21 retaliation and ridicule. One of the defendant officers bragged about beating Bernier, saying that he and the others “tuned him up” and also 22 saying “that is what happens when you don’t listen to us.” One of the defendant officers also stated that Bernier was “lucky” they did not have a 23 K-9 available. One of the defendant officers made a comment about Bernier’s vehicle having Florida license plates and needing to learn “how 24 things are done in Fresno.” Moreover, when Bernier protested and criticized the defendant officers for what they had done to him and also for 25 their comments, and also asked the officers for their names and badge numbers, the officers refused to identify themselves and responded with 26 expletives and comments that he would have to “get a lawyer.”

27 (Doc. 80 at 5, ¶ 17, emphasis omitted.) 28 1 The City does not dispute that the activities identified are protected by the First Amendment.2 2 (See generally Doc. 81-1 at 16-18; Doc. 87 at 4.) Indeed, courts have determined that criticizing 3 officers and asking for badge numbers are protected activities under the First Amendment. See, e.g., 4 Hill, 482 U.S. at 461 (“the First Amendment protects a significant amount of verbal criticism and 5 challenge directed at police officers”); see also Engman v. City of Ont., 2011 (C.D. Cal. May 23, 6 2011) (indicating protected activities included “expletive-laced comments and gestures directed 7 toward the officers” as well as “demanding their badge numbers”); Hadden v, Wathen, 2018 WL 8 4222882, at *20 (W.D. Kent. Sept. 5, 2018) (finding the plaintiff “engaged in protected activity” 9 when he “asked [the officer] for his badge number”); Cruthird v. Boston Police Dep’t, 2010 WL 10 4449732, at *6 (D. Mass. Nov. 3, 2010) (holding the plaintiff stated a claim for unlawful retaliation 11 where she alleged that her arrest was in retaliation for exercising her First Amendment rights 12 “because she asked the officers for their badge numbers and protested her innocence”). However, the 13 City argues: “Plaintiffs do not allege that Bernier asked any Fresno Police Officers, Officer Jones, or 14 Officer Rodriguez, for their badge numbers or information or that Officers Rodriguez or Jones 15 specifically made any of the statements alleged or actually participated in the ‘pattern of retaliation 16 and ridicule’ at the hospital.” (Doc. 81-1 at 17.) 17 As the City observes, Plaintiffs do not allege specifically that Bernier asked Officers Jones or 18 Rodriguez for their badge numbers or allege that Bernier made comments protesting their actions to 19 those specific officers. Rather, Bernier alleges only that he “believes that all of the defendant officers 20 who [used] force on him were present in the hospital and participated in [a] pattern of retaliation and 21 ridicule.”3 (Doc. 80 at 5, ¶ 17, emphasis omitted.) In addition, Bernier alleges he “asked the officers 22 for their names and badge numbers [and] the officers refused,” but it is unclear whether these 23 unidentified officers included Rodriguez and Jones or included the County deputies who were present 24 at the time of the alleged use of excessive force. Nevertheless, for purposes of this motion only, the 25 Court will presume that Rodriguez and Jones had knowledge of the comments and criticisms made by 26 27 2 Plaintiffs assert: “The City defendants first contend that plaintiffs have failed to allege that Bernier engaged in activity 28 protected by the First Amendment…”. (Doc. 85 at 4, ¶ 5.) However, this argument is not raised by the defendants. 1 Bernier at the hospital, given the allegation that “all defendant officers who [used] force on him”— 2 including Rodriguez and Jones “were present in the hospital.” 3 2. Adverse actions 4 Plaintiffs allege “[t]he individual defendants, acting under color of law, retaliated against 5 Bernier” by taking the following actions: 6 (1) denying Bernier timely and necessary medical care, both at the hospital and the jail, on November 8, 2017, in the immediate aftermath of 7 his criticism and complaint about the individual defendants’ misconduct and also in an effort to prevent, deter and intimidate him from taking 8 legal action; (2) assigning Bernier to general population on November 8, 2017, despite his injures, in the immediate aftermath of his criticism and 9 complaint about the individual defendants’ misconduct and also in an effort to prevent, deter and intimidate him from taking legal action; and 10 (3) recommending the filing of criminal charges against Bernier after he made it known that he was going to take legal action, even though it had 11 previously been decided that no charges would be filed against him.

12 (Doc. 80 at 11, ¶ 32.) 13 The City Defendants do not argue these were not adverse actions under the First Amendment. 14 (See Doc. 81-1 at 17-18.) However, the defendants argue the allegations are insufficient against the 15 individual officers because “[i]t remains true that Plaintiffs have failed to allege that Officers Jones 16 and Rodriguez actually interfered with medical treatment or were in any way involved in Bernier’s 17 transport to Fresno County Jail.” (Id. at 15.) 18 On the other hand, Plaintiffs maintain the allegations are sufficient against the officers. (Doc. 19 85 at 4.) According to Plaintiffs, the City Defendants “ignore[] plaintiffs’ contention that all of the 20 named defendants participated in this pattern of retaliation….”4 (Id.) Plaintiffs argue: “There is no 21 lack of clarity in these allegations, and while discovery may show that only some subset of defendants 22 participated, Bernier … is not required, particularly without conducting any discovery, to specify the 23 precise roles of defendants he alleges engaged in joint activity.” (Id. at 4, citing Rutherford v. City of 24 Berkeley, 780 F.2d 1444, 1448 (9th Cir. 1986); Call v. Badgley, 254 F.Supp.3d 1051, 1066 (N.D. Cal. 25 2017).) 26

27 4 The assertion that officers were engaged in a “pattern of retaliation” is a legal conclusion cast as a factual allegation, and is not entitled to the assumption of truth. See Iqbal, 556 U.S. at 679; Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014) 28 (“mere legal conclusions ‘are not entitled to the assumption of truth’”). 1 a. Group liability theory 2 In Rutherford, the plaintiff called the police from a hotel to report his friend was assaulted by 3 the hotel manager, and then waited across the street from the hotel for the police to arrive. Id., 780 4 F.2d at 1445. Rutherford asserted that several officers responded to the hotel, at which time two 5 officers entered and “five or six other Berkeley officers,” including the named defendants: officers 6 Hood, McBride and Houpt, approached Rutherford,. Id. Rutherford alleged that “without any 7 provocation and without placing him under arrest, the officers detaining him threw him to the ground, 8 punched, kicked, and handcuffed him.” Id. Reviewing the appeal of summary adjudication in favor of 9 the officers, the Court observed: “While Rutherford could not specifically state whether defendants 10 Officers Houpt, McBride or Hood punched or kicked him, he did testify that they were among the five 11 or six officers who were surrounding him while he was being beaten and that he saw each of their 12 faces while he was being beaten.” Id. at 1448. In addition, the Court noted the “three officers agreed 13 that they were among the five or six officers who detained, arrested and handcuffed Rutherford, but 14 denied punching or kicking Rutherford.” Id. Thus, the Court found summary judgment should not 15 have been granted, because “a jury could reasonably infer that the named officers were participants in 16 punching or kicking Rutherford.” Id. 17 Bernier previously alleged only that he was followed by County sheriff deputies and City police 18 officers, which included Rodriguez and Jones. (See Doc. 64 at 3, ¶ 11.) However, Bernier now asserts 19 that “body camera footage shows specifically that the two officers beating and kicking Bernier were 20 defendants Officers Rodriguez and Jones.” (Doc. 80 at 4, ¶ 14, emphasis omitted.) On the other hand, 21 Bernier does not allege Rodriguez and Jones were involved in his transport to the Fresno County Jail— 22 a facility run by the County, rather than the City— or booking at the facility to have Bernier placed in 23 the general population. Rather, Bernier asserts that he “believes that at least some of the defendant 24 officers interfered with his receiving necessary medical treatment, so that he could be rushed to jail.” 25 (Id. at 5, ¶ 16, emphasis added.) Unlike the facts before the Court in Rutherford, Bernier has not 26 alleged facts sufficient to support a conclusion that Officers Rodriguez and Jones were involved in the 27 transport that allegedly interfered with medical treatment or were involved with placing Bernier in the 28 general population. Toward this end, Plaintiffs’ reliance upon Rutherford is misplaced. 1 The allegations in the FAC remain akin to Call—also cited by Plaintiffs— where the Northern 2 District indicated a plaintiff must do more than simply place an officer at the scene of an alleged 3 constitutional violation. Id., 254 F. Supp. 3d at 1065-66. In Call, the plaintiff asserted constitutional 4 violations by officers who executed a search warrant in his home. Id. at 1055, 1065-66. The court 5 found Call failed to present evidence “about which of the several officers may be responsible” for the 6 alleged violation, and instead “offer[ed] nothing more than their mere presence at his residence.” Id. 7 at 1065. The court explained Call “cannot sustain a group liability theory” because “[a]n officer’s 8 liability under section 1983 is predicated on his ‘integral participation’ in the alleged violation.’” Id. 9 (quoting Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007)). Likewise, here, the 10 facts alleged do not support a group liability theory simply based on the presence of Rodriguez and 11 Jones at the hospital. 12 b. Retaliatory prosecution 13 Finally, Plaintiffs also assert the defendants are liable for “retaliatory prosecution” under the 14 First Amendment due to the “recommending of filing of criminal charges.” (Doc. 80 at 6, ¶ 22; id. at 15 11, ¶ 32.) The City Defendants argue Bernier is unable to state a claim for retaliatory prosecution, 16 because “a plaintiff’s retaliatory prosecution claim requires the plaintiff to plead and prove the absence 17 of probable cause for the criminal charge in order to sustain the cause of action.” (Doc. 81-1 at 17, 18 citing Hartman v. Moore, 547 U.S. 250, 256 (2006).) Plaintiffs assert, “The decision relied upon by 19 the defendants, Hartman v. Moore, 547 U.S.250 (2006), only requires a finding of no probable cause 20 for malicious prosecution claims.” (Doc. 85 at 5.) According to Plaintiffs, he was not required to 21 plead a lack of probable cause because the FAC “does not allege Bernier was maliciously prosecuted 22 as part of his retaliation, but instead that the defendants – after originally deeming his arrest a 23 detention only – recommended the filing of criminal charges once he made it known he was going to 24 sue them.” (Id, emphasis omitted.) 25 Contrary to Plaintiffs’ assertion, “[w]hen a plaintiff claims he was prosecuted in retaliation for 26 an exercise of a First Amendment right, the plaintiff must plead and prove that the defendant lacked 27 probable cause.” Tranquilla v. City & County of San Francisco, 2014 WL 554536, at *7 (N.D. Cal. 28 Feb. 7, 2014), citing Hartman, 547 U.S. at 265-66 (2006); see also Lozman v. City of Riviera Beach, 1 Fla., 138 S. Ct. 1945, 1952-53 (2018) (“If there was probable cause, the case ends”); Cairns v. County 2 of El Dorado, 2015 WL 9319248, at *4 (E.D. Cal. Dec. 22, 2015) (“To state a claim for retaliation— 3 whether based on a retaliatory arrest or a retaliatory prosecution—a plaintiff must allege and prove the 4 absence of probable cause”). Put another way, to succeed on a claim for retaliatory prosecution, “[a] 5 plaintiff must show not only that the defendant official harbored retaliatory animus and thus sought to 6 induce prosecution, but also that the official succeeded—that is, that the ‘prosecutor [] would not have 7 pressed charges otherwise.’” Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1234 (9th Cir. 2006) 8 (internal citations omitted). 9 In the FAC, Plaintiffs do not provide any information regarding the charges made by the 10 District Attorney. (See Doc. 80 at 7.) According to the Fresno County Superior Court, the charges 11 against Bernier included: (1) fleeing a peace officer, reckless driving; (2) hit and run property damage; 12 (3) resisting a public or peace officer; (4) driving under the influence while white blood alcohol level 13 was 0.08% or more; and (5) driving under the influence of alcohol.5 Nevertheless, it is undisputed that 14 Bernier does not allege the absence of probable cause for each of the charges filed by the District 15 Attorney in the operative complaint. Consequently, Bernier fails to state a cognizable claim for 16 retaliatory prosecution in violation of the First Amendment against Officers Rodriguez and Jones. 17 IV. Request for Leave to Amend 18 Pursuant to Rule 15 of the Federal Rules of Civil Procedure, leave to amend “shall be freely 19 given when justice so requires,” bearing in mind “the underlying purpose of Rule 15 to facilitate 20 decisions on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 21 1127 (9th Cir. 2000) (en banc) (alterations, internal quotation marks omitted). When dismissing a 22

23 5 The Court may take judicial notice of a fact that “is not subject to reasonable dispute because it (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy 24 cannot reasonably be questioned.” Fed. R. Evid. 201; see also United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The official records of the Superior Court of Fresno County, as contained in the court’s official website, are sources 25 whose accuracy cannot reasonably be questioned, and judicial notice may be taken of information on the website of a state court. See Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (judicial notice may be taken of “undisputed 26 matters of public record, including documents on file in federal or state courts”); O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (“It is not uncommon for courts to take judicial notice of factual information found 27 on the world wide web”). Accordingly, the Court takes judicial notice of the Fresno County Superior Court docket in Case No. F18900078, including the filing dates and documents publicly available. This docket is available at https://www.sb- 28 court.org, and through the court's online portal at https://publicportal.fresno.courts.ca.gov/FRESNOPORTAL/. 1 complaint for failure to state a claim, “a district court should grant leave to amend even if no request to 2 amend the pleading was made, unless it determines that the pleading could not possibly be cured by 3 the allegation of other facts.” Id. at 1130 (internal quotation marks omitted). Accordingly, leave to 4 amend generally shall be denied only if allowing amendment would unduly prejudice the opposing 5 party, cause undue delay, or be futile, or if the moving party has acted in bad faith. Leadsinger, Inc. v. 6 BMG Music Publishing, 512 F.3d 522, 532 (9th Cir. 2008). 7 Plaintiffs request that if the motions to dismiss are granted, then further leave to amend also be 8 granted. (Doc. 85 at 6.) However, Plaintiffs repeatedly amended the allegations filed in this action, 9 and the operative pleading is the Fourth Amended Complaint. Plaintiffs failed to cure the identified 10 deficiencies related to the Monell claims and did not allege additional facts sufficient to support the 11 claim. Similarly, Plaintiffs did not allege facts to support Bernier’s claim for retaliation under the First 12 Amendment against Officers Rodriguez and Jones, despite his prior leave to amend. Therefore, the 13 Court finds further leave to amend would be futile. See, e.g., Zucco Partners, LLC v. Digimarc Corp., 14 552 F.3d 981, 1008 (9th Cir. 2009) (“repeated failure to cure deficiencies” constitutes “a strong 15 indication that the [plaintiff] has no additional facts to plead” and “that any attempt to amend would be 16 futile”). Therefore, the request for leave to amend is denied. 17 V. Conclusion and Order 18 For the reasons set forth above, the Court ORDERS: 19 1. The City Defendants’ motions to dismiss (Doc. 81) is GRANTED. 20 2. The County Defendants’ motion to dismiss and motion to strike (Doc. 82) are 21 GRANTED. 22 3. The first cause of action for excessive force, to the extent it is stated against against the 23 City of Fresno and the County of Fresno, is DISMISSED. 24 4. The second cause of action for retaliation in violation of the First Amendment, to the 25 extent it is stated against Officers Rodriguez and Jones, is DISMISSED. 26 5. Reference to “Officer Oliver” in the Fourth Amended Complaint is STRICKEN. 27 6. Plaintiffs’ request for further leave to amend is DENIED. 28 7. The action SHALL proceed with the Fourth Amended Complaint as the operative 1 pleading in the matter, with the above portions dismissed and stricken. 2 8. Defendants SHALL file their answers to the Fourth Amended Complaint within thirty 3 days of the date of service of this Order. 4 5 ||} IT IS SO ORDERED. 6 Dated: _ November 8, 2022 Charis [Tourn 7 TED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28