1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Richard Burnside, No. CV-25-00902-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 City of Mesa, et al.,
13 Defendants. 14 15 Pending before the Court is Defendants City of Mesa (the “City”) and Officer 16 Jessica Martinez’s Motion for Judgment on the Pleadings (Doc. 11). The Motion has been 17 fully briefed. For the following reasons, the Court grants Defendants’ Motion. 18 I. BACKGROUND 19 Plaintiff Richard Burnside, in his First Amended Complaint (“FAC”), alleges that 20 Officer Martinez shot him with “Super-Sock Bean Bag” ammunition while responding to 21 a disturbance call at a Mesa residence. (Doc. 1-1 at 9 ¶ 11–12, 10 ¶ 15.) Plaintiff alleges 22 that the City knew—or should have known—that this ammunition “had a propensity to 23 discharge at a much higher velocity than advertised by the manufacturer, making the 24 ammunition much more likely to cause injury.” (Id. ¶ 16.) Accordingly, Plaintiff brings: 25 (1) a claim of excessive force by Officer Martinez in violation of 42 U.S.C. § 1983; and 26 (2) a Monell claim under § 1983 against the City for having unconstitutional policies and 27 customs and for failing to train and supervise. 28 Plaintiff requests leave to amend the FAC “to correct the mistaken allegation that 1 Defendant Martinez shot Plaintiff with beanbag ammunition” because “she actually tased 2 him.” (Doc. 18 at 1.) Plaintiff contends that a different officer shot him with beanbag 3 ammunition. (Id. at 2.) 4 II. LEGAL STANDARD 5 Federal Rule of Civil Procedure (“Rule”) 12(c) provides: “After the pleadings are 6 closed—but early enough not to delay trial—a party may move for judgment on the 7 pleadings.” “[A] Rule 12(c) motion is functionally identical to a Rule 12(b)(6) motion” 8 and the same legal standard applies to both motions. Gregg v. Haw., Dep’t of Pub. Safety, 9 870 F.3d 883, 887 (9th Cir. 2017) (citation modified); see also Dworkin v. Hustler 10 Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). The Court “must accept all factual 11 allegations in the complaint as true and construe them in the light most favorable to the 12 non-moving party.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). “Judgment 13 on the pleadings is properly granted when there is no issue of material fact in dispute, and 14 the moving party is entitled to judgment as a matter of law.” Id. 15 Rule 15(a)(2) provides: “The court should freely give leave when justice so 16 requires.” However, leave to amend is inappropriate if “the proposed amendment either 17 lacks merit or would not serve any purpose because to grant it would be futile in saving the 18 plaintiff’s suit.” Universal Mortg. Co. v. Prudential Ins. Co., 799 F.2d 458, 459 (9th Cir. 19 1986). Therefore, “a district court should grant leave to amend even if no request to amend 20 the pleading was made, unless it determines that the pleading could not possibly be cured 21 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) 22 (citation modified). 23 III. DISCUSSION 24 The Court first evaluates Plaintiff’s excessive force claim. The Court then evaluates 25 Plaintiff’s Monell claim. 26 A. Excessive Force Claim 27 Defendants contend, and Plaintiff concedes, that Officer Martinez used a taser, not 28 a beanbag gun. (Doc. 11 at 1; Doc. 18 at 3.) Given this uncontroverted and material factual 1 misstatement, the Court grants Defendants’ Motion regarding Plaintiff’s excessive force 2 claim. The Court will give Plaintiff leave, as requested, to “correct this mistake by 3 referencing Defendant Martinez’s unreasonable use of a Taser.” (Doc, 18 at 3.) According 4 to Plaintiff, “[t]his correction would only apply to the excessive force claim against Officer 5 Martinez and would not affect Plaintiff’s Monell claim, which clearly is based upon the 6 use of beanbag ammunition by a different Mesa police officer who is not named in the 7 FAC.” (Id.)1 8 B. Monell Claim 9 The Court next turns to address Plaintiff’s Monell claim which is based on a police 10 officer’s alleged use of excessive force by using beanbag ammunition. (Doc. 18 at 3.) 11 Section 1983 provides a cause of action against state actors who deprive individuals of 12 their constitutional rights. See WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 13 1999) (en banc). A city can be a “state actor” amenable to suit under § 1983. Monell v. 14 Dep’t of Soc. Servs., 436 U.S. 658, 693–94 (1978). However, § 1983 does not “impose 15 liability vicariously on governing bodies solely on the basis of the existence of an 16 employer-employee relationship with a tortfeasor.” Bd. of Cnty. Comm’rs v. Brown, 520 17 U.S. 397, 403 (1997) (quoting Monell, 436 U.S. at 692). “Instead, in Monell and 18 subsequent cases, [the Supreme Court] required a plaintiff seeking to impose liability on a 19 municipality under § 1983 to identify a municipal ‘policy’ or ‘custom’ that caused the 20 plaintiff’s injury.” Id. Such claims are commonly known as “Monell claim[s].” E.g., 21 Lockett v. County of Los Angeles, 977 F.3d 737, 740 (9th Cir. 2020). 22 To assert a Monell claim, a plaintiff must prove: “(1) that the plaintiff possessed a 23 constitutional right of which she was deprived; (2) that the municipality had a policy; 24 (3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional right; 25 and (4) that the policy is the moving force behind the constitutional violation.” Plumeau
26 1 The Court notes that a bare assertion that an officer used a taser on a suspect would be insufficient as the use of a taser is not invariably excessive force. See, e.g., Mattos v. 27 Agarano, 661 F.3d 433, 446–47 (9th Cir. 2011) (discussing cases finding the use of a taser to be reasonable); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting that a complaint 28 must contain enough “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”) 1 v. Sch. Dist. No 40, 130 F.3d 432, 438 (9th Cir. 1997) (citation modified). Ultimately, 2 “there must be ‘a direct causal link between a municipal policy or custom and the alleged 3 constitutional deprivation.’” Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 957 4 (9th Cir. 2008) (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)). Claimants 5 “need not sue the individual tortfeasors . . . but may proceed solely against the 6 municipality.” Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Richard Burnside, No. CV-25-00902-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 City of Mesa, et al.,
13 Defendants. 14 15 Pending before the Court is Defendants City of Mesa (the “City”) and Officer 16 Jessica Martinez’s Motion for Judgment on the Pleadings (Doc. 11). The Motion has been 17 fully briefed. For the following reasons, the Court grants Defendants’ Motion. 18 I. BACKGROUND 19 Plaintiff Richard Burnside, in his First Amended Complaint (“FAC”), alleges that 20 Officer Martinez shot him with “Super-Sock Bean Bag” ammunition while responding to 21 a disturbance call at a Mesa residence. (Doc. 1-1 at 9 ¶ 11–12, 10 ¶ 15.) Plaintiff alleges 22 that the City knew—or should have known—that this ammunition “had a propensity to 23 discharge at a much higher velocity than advertised by the manufacturer, making the 24 ammunition much more likely to cause injury.” (Id. ¶ 16.) Accordingly, Plaintiff brings: 25 (1) a claim of excessive force by Officer Martinez in violation of 42 U.S.C. § 1983; and 26 (2) a Monell claim under § 1983 against the City for having unconstitutional policies and 27 customs and for failing to train and supervise. 28 Plaintiff requests leave to amend the FAC “to correct the mistaken allegation that 1 Defendant Martinez shot Plaintiff with beanbag ammunition” because “she actually tased 2 him.” (Doc. 18 at 1.) Plaintiff contends that a different officer shot him with beanbag 3 ammunition. (Id. at 2.) 4 II. LEGAL STANDARD 5 Federal Rule of Civil Procedure (“Rule”) 12(c) provides: “After the pleadings are 6 closed—but early enough not to delay trial—a party may move for judgment on the 7 pleadings.” “[A] Rule 12(c) motion is functionally identical to a Rule 12(b)(6) motion” 8 and the same legal standard applies to both motions. Gregg v. Haw., Dep’t of Pub. Safety, 9 870 F.3d 883, 887 (9th Cir. 2017) (citation modified); see also Dworkin v. Hustler 10 Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). The Court “must accept all factual 11 allegations in the complaint as true and construe them in the light most favorable to the 12 non-moving party.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). “Judgment 13 on the pleadings is properly granted when there is no issue of material fact in dispute, and 14 the moving party is entitled to judgment as a matter of law.” Id. 15 Rule 15(a)(2) provides: “The court should freely give leave when justice so 16 requires.” However, leave to amend is inappropriate if “the proposed amendment either 17 lacks merit or would not serve any purpose because to grant it would be futile in saving the 18 plaintiff’s suit.” Universal Mortg. Co. v. Prudential Ins. Co., 799 F.2d 458, 459 (9th Cir. 19 1986). Therefore, “a district court should grant leave to amend even if no request to amend 20 the pleading was made, unless it determines that the pleading could not possibly be cured 21 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) 22 (citation modified). 23 III. DISCUSSION 24 The Court first evaluates Plaintiff’s excessive force claim. The Court then evaluates 25 Plaintiff’s Monell claim. 26 A. Excessive Force Claim 27 Defendants contend, and Plaintiff concedes, that Officer Martinez used a taser, not 28 a beanbag gun. (Doc. 11 at 1; Doc. 18 at 3.) Given this uncontroverted and material factual 1 misstatement, the Court grants Defendants’ Motion regarding Plaintiff’s excessive force 2 claim. The Court will give Plaintiff leave, as requested, to “correct this mistake by 3 referencing Defendant Martinez’s unreasonable use of a Taser.” (Doc, 18 at 3.) According 4 to Plaintiff, “[t]his correction would only apply to the excessive force claim against Officer 5 Martinez and would not affect Plaintiff’s Monell claim, which clearly is based upon the 6 use of beanbag ammunition by a different Mesa police officer who is not named in the 7 FAC.” (Id.)1 8 B. Monell Claim 9 The Court next turns to address Plaintiff’s Monell claim which is based on a police 10 officer’s alleged use of excessive force by using beanbag ammunition. (Doc. 18 at 3.) 11 Section 1983 provides a cause of action against state actors who deprive individuals of 12 their constitutional rights. See WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 13 1999) (en banc). A city can be a “state actor” amenable to suit under § 1983. Monell v. 14 Dep’t of Soc. Servs., 436 U.S. 658, 693–94 (1978). However, § 1983 does not “impose 15 liability vicariously on governing bodies solely on the basis of the existence of an 16 employer-employee relationship with a tortfeasor.” Bd. of Cnty. Comm’rs v. Brown, 520 17 U.S. 397, 403 (1997) (quoting Monell, 436 U.S. at 692). “Instead, in Monell and 18 subsequent cases, [the Supreme Court] required a plaintiff seeking to impose liability on a 19 municipality under § 1983 to identify a municipal ‘policy’ or ‘custom’ that caused the 20 plaintiff’s injury.” Id. Such claims are commonly known as “Monell claim[s].” E.g., 21 Lockett v. County of Los Angeles, 977 F.3d 737, 740 (9th Cir. 2020). 22 To assert a Monell claim, a plaintiff must prove: “(1) that the plaintiff possessed a 23 constitutional right of which she was deprived; (2) that the municipality had a policy; 24 (3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional right; 25 and (4) that the policy is the moving force behind the constitutional violation.” Plumeau
26 1 The Court notes that a bare assertion that an officer used a taser on a suspect would be insufficient as the use of a taser is not invariably excessive force. See, e.g., Mattos v. 27 Agarano, 661 F.3d 433, 446–47 (9th Cir. 2011) (discussing cases finding the use of a taser to be reasonable); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting that a complaint 28 must contain enough “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”) 1 v. Sch. Dist. No 40, 130 F.3d 432, 438 (9th Cir. 1997) (citation modified). Ultimately, 2 “there must be ‘a direct causal link between a municipal policy or custom and the alleged 3 constitutional deprivation.’” Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 957 4 (9th Cir. 2008) (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)). Claimants 5 “need not sue the individual tortfeasors . . . but may proceed solely against the 6 municipality.” Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013). 7 “The use of excessive force by police officers in the course of an arrest can violate 8 the arrestee’s Fourth Amendment right to be free from unreasonable seizures.” Oakry v. 9 City of Tempe, 629 F. Supp. 3d 974, 984 (D. Ariz. 2022). Whether a seizure is unreasonable 10 is an objective inquiry; “the question is whether the officers’ actions are ‘objectively 11 reasonable’ in light of the facts and circumstances confronting them, without regard to their 12 underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). As the 13 Supreme Court has noted: The “reasonableness” of a particular use of force must be judged from the 14 perspective of a reasonable officer on the scene, rather than with the 20/20 15 vision of hindsight. . . . Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth 16 Amendment. 17 Id. at 396 (citation modified). “Whether a particular use of force was ‘objectively 18 reasonable’ depends on several factors, including the severity of the crime that prompted 19 the use of force, the threat posed by a suspect to the police or to others, and whether the 20 suspect was resisting arrest.” Tatum v. City and County of San Francisco, 441 F.3d 1090, 21 1095 (9th Cir. 2006). 22 Plaintiff fails to adequality plead the use of excessive force. Plaintiff does not 23 identify any facts suggesting that the use of beanbag ammunition against him was 24 unreasonable. As noted, whether a particular use of force is reasonable can only be judged 25 considering the attendant circumstances. See Tatum, 441 F.3d at 1095. Here, the 26 Complaint does not describe what information police had before arriving at the residence 27 or what police saw upon arriving at the residence. The bare allegation that police were 28 responding to a “disturbance call” does not enable this Court to evaluate whether the use 1 of force here is reasonable. An officer’s perspective might change depending on whether 2 he is responding to a verbal disturbance versus a violent physical disturbance. 3 Without providing any surrounding details, Plaintiff merely alleges that he was shot 4 multiple times with beanbag ammunition discharged at higher-than-advertised velocities. 5 (Doc. 1-1 at 9–10). While the use of beanbag ammunition “is permissible only when a 6 strong governmental interest compels the employment of such force,” the use of such 7 ammunition is not excessive force per se. Glenn v. Washington County, 673 F.3d 864, 871 8 (9th Cir. 2011) (applying the Graham factors to evaluate an excessive force claim 9 predicated on the use of a beanbag shotgun). Plaintiff does not identify any facts or 10 circumstances surrounding the use of the beanbag ammunition. Plaintiff fails to describe 11 either the facts and circumstances surrounding the use of the beanbag ammunition or the 12 nature and extent of his injuries. Simply stating that the use of beanbag ammunition was 13 unreasonable does not make it so. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the 14 elements of a cause of action, supported by mere conclusory statements, do not suffice.”). 15 Accordingly, the Court grants Defendants’ Motion regarding Plaintiff’s Monell 16 claim. The Court will grant Plaintiff leave to amend his Monell claim. The Court 17 highlights “that a plaintiff asserting Monell claims may not simply recite the elements of a 18 cause of action but must allege sufficient underlying facts to give fair notice and to enable 19 the opposing party to defend itself effectively.” Figueroa v. Kern County, 506 F. Supp. 3d 20 1051, 1060 (E.D. Cal. 2020) (citing AE ex rel. Hernandez v. County of Tulare, 666 F.3d 21 631, 637 (9th Cir. 2012)). “Allegations that provide such notice could include, but are not 22 limited to, past incidents of misconduct to others, multiple harms that occurred to the 23 plaintiff himself, misconduct that occurred in the open, the involvement of multiple 24 officials in the misconduct, or the specific topic of the challenged policy or training 25 inadequacy.” Estate of Osuna v. County of Stanislaus, 392 F. Supp. 3d 1162, 1174 (E.D. 26 Cal. 2019) (quoting Thomas v. City of Galveston, 800 F. Supp. 2d 826, 843–44 (S.D. Tex. 27 2011). “[A] complaint alleging a Monell claim must pair general averments of a policy or 28 custom with particular examples.” Id. at 1175 (citation modified). IV. CONCLUSION 2 Accordingly, 3 IT IS HEREBY ORDERED granting Defendants’ Motion for Judgment on the 4|| Pleadings (Doc. 11.) 5 IT IS FURTHER ORDERED granting Plaintiff leave to amend his claims. If || Plaintiff so chooses, he must file a Second Amended Complaint no later than thirty (30) 7\| days after the date this Order is issued. 8 Dated this 10th day of December, 2025. 9 = . 10 SO te ll A lonorable Susan M. Brnovich United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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