Rosenbaum v. City Of San Jose

• Court: District Court, N.D. California
• Decided: April 13, 2021
• Docket: 5:20-cv-04777
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11

12 ZACHARY ROSENBAUM, Case No. 20-CV-04777-LHK

13 Plaintiff, ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND 14 v. Re: Dkt. No. 30 15 CITY OF SAN JOSE, et al. 16 Defendants. 17 Plaintiff Zachary Rosenbaum (“Plaintiff”) sues the City of San Jose (“the City”), Officer 18 Ryan Ferguson, Sergeant Hatzenbuhler, Sergeant Gutierrez, Officer Dunn, Officer Anderson, 19 Officer Tapia, Officer Vallejo, Officer Ochoa, and individuals whose identities are unknown to 20 Plaintiffs (collectively, “Defendants”) for (1) violation of the Fourth Amendment under 42 U.S.C. 21 § 1983; (2) battery; (3) violation of the Bane Act; and (4) negligence. Before the Court is 22 Defendants’ motion to dismiss Plaintiff’s Second Amended Complaint. ECF No. 30.1 Having 23 considered the parties’ submissions, the relevant law, and the record in this case, the Court 24 25

26 1 Defendants’ motion contains a notice of motion paginated separately from the memorandum of points and authorities in support of the motion. Civil Local Rule 7-2(b) provides 27 that the notice of motion and points and authorities must be contained in one document with the same pagination. 1 GRANTS Defendants’ motion to dismiss with leave to amend. 2 I. BACKGROUND 3 A. The Alleged Use of Excessive Force Against Plaintiff 4 According to Plaintiff, on September 10, 2019, Plaintiff was sleeping in an upstairs 5 bedroom at the home he shared with his fiancé. ECF No. 26 (“SAC”) ¶ 15. Plaintiff was awakened 6 by “the sound of San Jose police officers inside his home calling his name.” Id. ¶ 16. Plaintiff 7 “walked to the top of his stairs and saw multiple police officers (Defendants) shining their lights at 8 Plaintiff’s face and pointing their handguns at Plaintiff.” Id. 9 The Court refers to Sergeants Hatzenbuhler and Gutierrez and Officers Anderson, Tapia, 10 Vallejo, and Ochoa collectively as the “Bystander Officers.” Plaintiff alleges that the Bystander 11 Officers “trained their firearms on Plaintiff and took defensive positions” on the first floor of 12 Plaintiff’s home. Id. ¶ 20. In addition, Plaintiff alleges that both Sergeants Gutierrez and 13 Hatzenbuhler “had supervisory authority at the scene” of Plaintiff’s seizure. Id. Sergeant Gutierrez 14 “was the on-scene supervisor in charge of the seizure” and Sergeant Hatzenbuhler “commanded 15 several of the officers to take positions inside” Plaintiff’s home. Id. 16 Plaintiff allegedly “put his hands up where the Defendants could see them and asked the 17 Defendants in a polite and respectful manner why they were inside his home and what they wanted 18 with him.” Id. ¶ 17. “The Defendants informed Plaintiff that he was under arrest but did not tell 19 Plaintiff what for.” Id. “Instead, Defendants issued commands for the Plaintiff to come down the 20 stairs.” Id. 21 Plaintiff, “with his hands remaining visibly raised,” again “asked the Defendants what he 22 was being arrested for and what they wanted with him.” Id. ¶ 18. “Defendants . . . repeatedly 23 refused to tell Plaintiff the reason for his purported arrest and commanded the Plaintiff to come 24 down the stairs.” Id. “[A]t least one officer warned Plaintiff that if he did not obey the officers’ 25 commands, a police K-9 would be deployed.” Id. 26 Plaintiff allegedly continued “to keep his hands visibly raised” and continued “asking why 27 Defendants were inside his home and what they wanted with him.” Id. ¶ 19. “Plaintiff did not 1 threaten any of the officers either verbally or physically at any point.” Id. 2 “Losing patience with the Plaintiff’s questions, [Officer Dunn] deployed a police K-9 to 3 attack the Plaintiff.” Id. ¶ 21. The police dog was deployed “even though Plaintiff had his hands 4 visibly raised in a surrender position, was not armed, was not trying to evade arrest, and had posed 5 no threat to the officers.” Id. ¶ 22. At the time that the police dog was deployed, the Bystander 6 Officers were allegedly integral participants in the use of force because they “continued pointing 7 their weapons at Plaintiff” and took no actions “to prevent, or otherwise intervene[], in the use of 8 force against Plaintiff” despite being “aware that [Officer Dunn] was threatening to release the 9 police K-9.” Id. Plaintiff alleges that, “after the K-9 was deployed to bite the Plaintiff, and while 10 the Plaintiff was laying on his stomach in full surrender with his hands stretched out and 11 surrounded by all named Defendants with their firearms trained on him, . . . the K-9 was allowed 12 to continue biting the [Plaintiff] . . for over 20 seconds” before being pulled away. Id. 13 “Within a second of the K-9 being deployed, [Officer Ferguson] shot the Plaintiff with a 14 less lethal shotgun bean-bag projectile weapon, striking the Plaintiff in the stomach.” Id. ¶ 21. 15 Plaintiff allegedly “had his hands visibly raised in surrender, was not threatening any of the 16 officers, was not armed or trying to evade arrest.” Id. ¶ 23. “All the while,” the Bystander Officers 17 were allegedly integral participants in the use of force because they “had their firearms trained on 18 Plaintiff” and “failed to intervene to prevent the use of excessive force against Plaintiff.” Id. ¶ 21. 19 As a result of the force used against him, Plaintiff allegedly “suffered severe physical and 20 physical and psychological injuries.” Id. ¶ 22. Plaintiff alleges that he “had to undergo several 21 surgeries and procedures as a result of Defendants’ actions.” Id. Plaintiff alleges that Plaintiff still 22 “has not regained full use of his arm and suffers from significant scarring.” Id. ¶ 22. 23 Following this incident, Plaintiff filed a government claim with the City on March 9, 2020. 24 Id. ¶ 27. On April 28, 2020, the City rejected Plaintiff’s claim. Id. ¶ 27. 25 B. The City’s Alleged Customs, Practices, and Policies 26 According to Plaintiff, the City has a policy, custom, and practice of “allowing, or at the 27 very least not adequately disciplining, its officers for using severe force to effectuate arrests even 1 when the target, such as Plaintiff in this case, has not engaged in any behavior necessitating the 2 use of such force.” Id. ¶¶ 27, 42. On October 4, 2020, “the San Jose Mercury News released a 3 report detailing that between 2014 and 2018, San Jose Police Department officers who used 4 excessive force on suspects and citizens were ‘rarely disciplined.’” Id. ¶ 26. Plaintiff further 5 alleges that the City’s custom and practice of not disciplining officers who use excessive force 6 “has been fostered by Chief of Police Eddie Garcia who fails to discipline San Jose Police Officers 7 no matter how egregious their deviations from use of force policies or how obvious their 8 unconstitutional behavior.” Id. ¶ 26. 9 Plaintiff alleges that the City “has a policy, custom and practice of encouraging and 10 permitting the . . . excessive use of police K-9s, even on persons who are not evading arrest, or 11 posing a threat to officers or bystanders.” Id. ¶ 39. Additionally, Plaintiff alleges that the City has 12 “a policy, custom, and/or practice of allowing/training its police K-9s to ‘bite and hold’ suspects 13 even where a suspect is surrendering.” Id. ¶ 39. Plaintiff alleges that the City’s police department 14 “employs K-9s to bite residents at higher rates than any other police department in the state.” Id. ¶ 15 25. According to data released by the Marshall Project for the years 2017 to 2019, less than 1 per 16 100,000 residents in San Francisco is bitten by a police dog each year, while 8 per 100,000 17 residents of the City are bitten by police dogs each year. Id. Los Angeles also uses police dogs 40 18 percent less frequently than the City does. Id. Plaintiff alleges that these “customs, practices, and 19 policies regarding the use of police K-9s were moving forces behind Plaintiff’s constitutional 20 injuries.” Id. ¶ 27. 21 Finally, Plaintiff alleges that the City has a “policy, custom, and practice for allowing the 22 deployment of less lethal shotguns on persons who are not evading arrest or posing a threat to 23 officers or bystanders.” Id. ¶ 40. Plaintiff alleges that the policy, custom, and practice were 24 “moving forces behind the Plaintiff’s constitutional injuries as said policies, customs, and 25 practices make it predictable that constitutional violations would take place.” Id. 26 C. Procedural History 27 On July 16, 2020, Plaintiff filed the instant case. ECF No. 1. On September 25, 2020, 1 Defendants filed a motion to dismiss Plaintiff’s Complaint. ECF No. 18. On October 11, 2020, 2 Plaintiff filed an Amended Complaint in lieu of opposing Defendant’s motion to dismiss. ECF No. 3 21. On October 23, 2020, the Court denied Defendants’ motion to dismiss as moot. ECF No. 25. 4 On October 16, 2020, Plaintiff filed a Corrected First Amended Complaint. ECF No. 22. 5 On October 21, 2020, the parties stipulated to permit Plaintiff to file a Second Amended 6 Complaint. ECF No. 23. On October 23, 2020, the Court granted the parties’ stipulation. ECF No. 7 24. 8 On October 24, 2020, Plaintiff filed the Second Amended Complaint (“SAC”). SAC. 9 Plaintiff alleges four causes of action: (1) violation of the Fourth Amendment under 42 U.S.C. § 10 1983; (2) battery; (3) violation of the Bane Act; and (4) negligence. Id. ¶¶ 28–62. 11 On November 13, 2020, Defendants filed the instant motion. ECF No. 30 (“Mot.”). On 12 November 30, 2020, Plaintiff filed an opposition. ECF No. 32 (“Opp’n”). On December 9, 2020, 13 Defendants filed a reply. ECF No. 34 (“Reply”). 14 II. LEGAL STANDARD 15 A. Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(6) 16 Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint to include “a short 17 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 18 A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil 19 Procedure 12(b)(6). Rule 8(a) requires a plaintiff to plead “enough facts to state a claim to relief 20 that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim 21 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 22 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 23 U.S. 662, 678 (2009). “The plausibility standard is not akin to a probability requirement, but it 24 asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal 25 quotation marks omitted). For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] 26 factual allegations in the complaint as true and construe[s] the pleadings in the light most 27 favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1 1031 (9th Cir. 2008). 2 The Court, however, need not accept as true allegations contradicted by judicially 3 noticeable facts, see Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and it “may look 4 beyond the plaintiff’s complaint to matters of public record” without converting the Rule 12(b)(6) 5 motion into a motion for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 6 1995). Nor must the Court “assume the truth of legal conclusions merely because they are cast in 7 the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per 8 curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Mere 9 “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to 10 dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004). 11 B. Leave to Amend 12 If the Court determines that a complaint should be dismissed, it must then decide whether 13 to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend 14 “shall be freely given when justice so requires,” bearing in mind “the underlying purpose of Rule 15 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities.” Lopez v. 16 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation marks 17 omitted). When dismissing a complaint for failure to state a claim, “'a district court should grant 18 leave to amend even if no request to amend the pleading was made, unless it determines that the 19 pleading could not possibly be cured by the allegation of other facts.” Id. at 1130 (internal 20 quotation marks omitted). Accordingly, leave to amend generally shall be denied only if allowing 21 amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the 22 moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 23 (9th Cir. 2008). 24 III. DISCUSSION 25 Plaintiff sues the following: the City of San Jose (“the City”) and the following officers to 26 whom the Court will refer collectively as “the Officers”: Sergeants Hatzenbuhler and Gutierrez 27 and Officers Anderson, Ochoa, Tapia, Vallejo, Dunn, and Ferguson. The Court refers collectively 1 to all the defendants as “Defendants.” Plaintiff brings the following four claims against 2 Defendants: (1) violation of the Fourth Amendment under 42 U.S.C. § 1983; (2) battery; (3) 3 violation of the Bane Act; and (4) negligence. Defendants move to dismiss all four claims. The 4 Court addresses each claim in turn. 5 A. Section 1983 Claim 6 Plaintiff brings a Section 1983 claim against Defendants. The Court first addresses 7 Plaintiff’s Section 1983 claim against the Officers. The Court then addresses Plaintiff’s Section 8 1983 claim against the City. 9 1. Section 1983 Claim Against the Officers 10 To state a Section 1983 claim, the plaintiff must plead that “(1) the defendants acted under 11 color of state law and (2) deprived plaintiff of rights secured by the Constitution or federal 12 statutes.” WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 1999) (en banc) (quoting Gibson 13 v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986)). 14 In the instant motion, Defendants do not contend that the Officers were not acting under 15 color of state law. A police officer acts under color of state law when his or her actions are “in 16 some way ‘related to the performance of his [or her] official duties.’” Van Ort v. Estate of 17 Stanewich, 92 F.3d 832, 838 (9th Cir. 1996) (quotation omitted). In the instant case, Plaintiff has 18 plausibly alleged that the Officers were acting under color of state law because their actions were 19 taken while effecting a seizure on Plaintiff, which is part of their official duties. 20 Defendants contend that Plaintiff has failed to state a Section 1983 claim against the 21 Officers because Plaintiff has not alleged sufficient facts about the circumstances under which the 22 Officers allegedly used excessive force. Mot. at 13–14. The Court agrees for the reasons explained 23 below. 24 In order to state a plausible claim for relief, Plaintiff must allege “factual content that 25 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 26 alleged.” Iqbal, 556 U.S. at 678. Furthermore, to determine whether a defendant used excessive 27 force, courts must decide “whether the officers’ actions [were] ‘objectively reasonable’ in light of 1 the facts and circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989) 2 (citation omitted). “Determining whether the force used to effect a particular seizure is 3 ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality 4 of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing 5 governmental interests at stake.” Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). 6 In engaging in this careful balancing, courts must give “careful attention to the facts and 7 circumstances of each particular case, including the severity of the crime at issue, whether the 8 suspect poses an immediate threat to the safety of the officers or others, and whether he is actively 9 resisting arrest or attempting to evade arrest by flight.” Id. (emphasis added); accord Lowry v. City 10 of San Diego, 858 F.3d 1248, 1254 (9th Cir. 2017) (weighing “the severity of the crime at issue” 11 to determine whether the deployment of a police dog violated the plaintiff’s Fourth Amendment 12 rights). 13 Because excessive force claims rely on fact-intensive inquiries, a plaintiff bringing an 14 excessive force claim must make allegations about the circumstances under which the defendant 15 allegedly used excessive force. See Gonzales v. City of Clovis, 2012 WL 4671179, at *7 (E.D. Cal. 16 Oct. 3, 2012) (granting motion to dismiss excessive force claim based on alleged deployment of a 17 flash bang device “[d]ue to the lack of details regarding the circumstances under which the 18 officers deployed the ‘flash bang’ device”). For example, the plaintiff must allege the crime for 19 which he was arrested. See Parks v. Chocano, 2020 WL 8457441, at *3 (C.D. Cal. Dec. 29, 2020) 20 (granting motion to dismiss excessive force claim because the plaintiff “failed to allege the ‘facts 21 and circumstances confronting’ [the defendant] before the arrest to demonstrate that the alleged 22 force was unreasonable, such as . . . for what crimes he was arrested”); Newman v. Barrett 23 Township, 2015 WL 7755672, at *6 (M.D. Pa. Dec. 2, 2015) (dismissing excessive force claim 24 “because [the plaintiff] fails to allege the crime for which he was arrested,” meaning that the Court 25 could not “consider the severity of the crime at issue” in the excessive force analysis). “Without 26 specific allegations” about the circumstances in which the officers used the force, “the Court has 27 no basis on which ‘to draw the reasonable inference that the [officers are] liable for the 1 misconduct alleged.’” Hager v. County of San Bernardino, 2013 WL 5771148, at *4 (C.D. Cal. 2 Oct. 24, 2013) (quoting Iqbal, 556 U.S. at 678). 3 In the instant case, the Second Amended Complaint provides no details about the 4 circumstances that brought the Officers to Plaintiff’s residence, including the crime for which 5 Plaintiff was being arrested. As the United States Supreme Court has held, “the severity of the 6 crime at issue” is a key factor in the excessive force analysis. Graham, 490 U.S. at 396; accord 7 Lowry, 858 F.3d at 1248. Indeed, there are some uses of force that might be justified where 8 officers are confronting a suspect accused of a serious, violent crime, but not where the suspect is 9 accused of a non-violent crime. See, e.g., Garner, 471 U.S. at 11–12 (If “there is probable cause to 10 believe that [the suspect] has committed a crime involving the infliction or threatened infliction of 11 serious physical harm, deadly force may be used if necessary to prevent escape, and if, where 12 feasible, some warning has been given.”). 13 Accordingly, in order for the Court to determine whether Plaintiff has plausibly alleged 14 that the Officers’ use of force was unreasonable, Plaintiff must make allegations about the crime 15 for which he was being arrested. See Parks, 2020 WL 8457441, at *3 (granting motion to dismiss 16 excessive force claim because the plaintiff “failed to allege the ‘facts and circumstances 17 confronting’ [the defendant] before the arrest to demonstrate that the alleged force was 18 unreasonable, such as . . . for what crimes he was arrested”); Newman, 2015 WL 7755672, at *6 19 (dismissing excessive force claim “because [the plaintiff] fails to allege the crime for which he 20 was arrested,” meaning that the Court could not “consider the severity of the crime at issue”). 21 Thus, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s Section 1983 claim against 22 the Officers. The Court does so with leave to amend because amendment would not be futile, 23 unduly prejudice the opposing parties, or cause undue delay, and Plaintiff has not acted in bad 24 faith. See Leadsinger, 512 F.3d at 532. Indeed, Plaintiff can cure this deficiency by adding 25 allegations about the crime for which he was being arrested. 2 26

27 2 In a footnote in his opposition brief, Plaintiff states that “Plaintiff was being arrested based on a purported domestic violence complaint.” Opp’n at 5 n.1. However, in ruling on a motion to 2. Section 1983 Claim Against the City 1 Defendants also contend that Plaintiff has failed to state a Section 1983 claim against the 2 City. Mot. at 15–22. “A government entity cannot be held liable under 42 U.S.C. § 1983, unless a 3 policy, practice, or custom of the entity can be shown to be a moving force behind a violation of 4 constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing 5 Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978)). To establish a 6 governmental entity’s liability, a plaintiff must show: “(1) that [the plaintiff] possessed a 7 constitutional right of which [s]he was deprived; (2) that the municipality had a policy; (3) that 8 this policy amounts to deliberate indifference to the plaintiff’s constitutional right; and (4) that the 9 policy is the moving force behind the constitutional violation.” Id. (quoting Plumeau v. Sch. Dist. 10 No. 40 Cty. Of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). 11 In the instant case, as explained above, supra Section III(A)(1), Plaintiff has not plausibly 12 alleged that he was deprived of his constitutional rights because he has not alleged the crime for 13 which he was being arrested. Without alleging that he was deprived of his constitutional rights, 14 Plaintiff cannot state a Monell claim. See Dougherty, 654 F.3d at 900; accord Lowry, 858 F.3d at 15 1260 (declining to address the plaintiff’s Monell claim because plaintiff did not show a violation 16 of her constitutional rights). Thus, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s 17 Section 1983 claim against the City. The Court does so with leave to amend because amendment 18 would not be futile, unduly prejudice the opposing parties, or cause undue delay, and Plaintiff has 19 not acted in bad faith. See Leadsinger, 512 F.3d at 532. 20 B. Battery 21 Plaintiff additionally brings a battery claim against Defendants. SAC ¶¶ 43–49. Defendants 22 contend that the battery claim should be dismissed. Mot. at 8, 12–13, 14. 23 “[B]attery is a state law tort counterpart to a 42 U.S.C. § 1983 excessive force claim.” 24 25 dismiss, the Court cannot look beyond Plaintiff’s Second Amended Complaint to Plaintiff’s 26 opposition brief. See Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1988) (stating that, in ruling on a motion to dismiss, “a court may not look beyond the complaint to a 27 plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s motion to dismiss”). 1 Redmond v. San Jose Police Dep’t, 2017 WL 5495977, at *31 (N.D. Cal. Nov. 16, 2017) (quoting 2 J.P. ex rel. Balderas v. City of Porterville, 801 F. Supp. 2d 965, 992 (E.D. Cal. 2011)). 3 As explained above, supra Section III(A)(1), Plaintiff has not plausibly alleged that the 4 Officers used excessive force because Plaintiff has not sufficiently alleged the circumstances 5 under which force was used. Accordingly, because Plaintiff has not plausibly alleged that the 6 Officers used excessive force, Plaintiff has not stated a battery claim against Defendants. See J.P., 7 801 F. Supp. 2d at 992 (“Because there was no excessive force and the officers acted reasonably, 8 there is no liability for state law battery.”). Thus, the Court GRANTS Defendants’ motion to 9 dismiss Plaintiff’s battery claim. The Court does so with leave to amend because amendment 10 would not be futile, unduly prejudice the opposing parties, or cause undue delay, and Plaintiff has 11 not acted in bad faith. See Leadsinger, 512 F.3d at 532. 12 C. Bane Act 13 Plaintiff also brings a Bane Act claim against Defendants. SAC ¶¶ 50–56. Defendants 14 contend that this claim should be dismissed. Mot. at 8–9, 12–13, 14–15. 15 The Bane Act provides a cause of action against a person who “interferes by threats, 16 intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the 17 exercise or enjoyment by any individual or individuals of rights secured by the Constitution or 18 laws of the United States.” Cal. Civ. Code § 52.1; accord Shoyoye v. County of Los Angeles, 203 19 Cal. App. 4th 947, 955–56 (2012). Plaintiff alleges the same facts to support his Bane Act claim as 20 he does to support his Section 1983 claim. 21 As explained above, supra Section III(A)(1), Plaintiff has not alleged that Defendants 22 violated his constitutional rights. Accordingly, for the same reasons explained above, Plaintiff also 23 cannot state a claim under the Bane Act. See, e.g., Wilson v. County of Contra Costa, 2015 WL 24 217298, at *5 (N.D. Cal. Jan. 15, 2015) (“For the same reasons plaintiff’s allegations are 25 insufficient to support his § 1983 claims, they are insufficient to plead his Bane Act claim.”); see 26 also Redmond, 2017 WL 5495977, at *29 (describing the Bane Act as “analogous to § 1983”); 27 Sacco v. Benzinger, 2003 WL 24108414, at *1 (N.D. Cal. Dec. 18, 2003) (describing the Bane Act 1 as the “state equivalent” of Section 1983). Thus, the Court GRANTS Defendants’ motion to 2 dismiss Plaintiff’s Bane Act claim. The Court does so with leave to amend because amendment 3 would not be futile, unduly prejudice the opposing parties, or cause undue delay, and Plaintiff has 4 not acted in bad faith. See Leadsinger, 512 F.3d at 532. 5 D. Negligence 6 Finally, Plaintiff brings a negligence claim against Defendants. SAC ¶¶ 57–62. Defendants 7 contend that the negligence claim should be dismissed. Mot. at 9–10, 12. 8 Under California law, “[t]he elements of a negligence claim against a police officer are: (1) 9 the officer owed plaintiff a duty of care; (2) the officer breached that duty by failing to use such 10 skill, prudence, and diligence as other members of the profession commonly possess; (3) 11 proximate cause between the negligent conduct an the resulting injury; and (4) actual loss or 12 damage resulting from the officer’s negligence.” Black Lives Matter-Stockton Chapter v. San 13 Joaquin County Sheriff’s Office, 398 F. Supp. 3d 660, 681 (E.D. Cal. 2019). To prevail on a 14 negligence claim against a police officer, the plaintiff must allege that “the police officer acted 15 unreasonably and that the unreasonable behavior harmed” the plaintiff. Ortega v. City of Oakland, 16 2008 WL 4532550, at *14 (N.D. Cal. Oct. 8, 2008). 17 As explained above, supra Section III(A)(1), Plaintiff has not alleged that the Officers 18 acted unreasonably. See Graham, 490 U.S. at 397 (explaining that an excessive force claim 19 requires determining whether an officer’s actions were objectively unreasonable). Because 20 Plaintiff has failed to allege that the Officers acted unreasonably, Plaintiff has failed to state a 21 negligence claim. See Ortega, 2008 WL 4532550, at *14 (rejecting the plaintiff’s negligence claim 22 because the court concluded that the officers had acted reasonably). Thus, the Court GRANTS 23 Defendants’ motion to dismiss Plaintiff’s negligence claim. The Court does so with leave to 24 amend because amendment would not be futile, unduly prejudice the opposing parties, or cause 25 undue delay, and Plaintiff has not acted in bad faith. See Leadsinger, 512 F.3d at 532. 26 IV. CONCLUSION 27 For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss with leave 1 to amend. Plaintiff shall file any amended complaint within 30 days of this Order. Failure to do so, 2 or failure to cure deficiencies identified herein or identified in the instant motion to dismiss, will 3 result in dismissal of the deficient claims with prejudice. Plaintiff may not add new causes of 4 action or add new parties without stipulation or leave of the Court. Plaintiff is directed to file a 5 || redlined complaint comparing the complaint to any amended complaint as an attachment to 6 || Plaintiff’s amended complaint. 7 || ITISSO ORDERED. 8 9 || Dated: April 13, 2021 For LUCY H. KOH United States District Judge 12

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