1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL SANZ, No. 2:19-cv-02134-TLN-DB 12 Plaintiff, 13 v. ORDER 14 CITY OF VALLEJO, MARK THOMPSON, JASON BAUER, 15 BRETTON WAGONER, and DOES 1–25, 16 Defendants. 17 18 This matter is before the Court pursuant to Defendants City of Vallejo, Mark Thompson 19 (“Officer Thompson”), Jason Bauer (“Officer Bauer”), and Bretton Wagoner’s (“Officer 20 Wagoner”) (collectively, “Defendants”) Motion to Dismiss. (ECF No. 5.) Plaintiff Michael Sanz 21 (“Plaintiff’) opposes Defendants’ motion. (ECF No. 7.) Defendants have filed a reply. (ECF No. 22 10.) For the reasons set forth herein, Defendants’ Motion to Dismiss is hereby DENIED. (ECF 23 No. 5.) 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 This case arises from an arrest following a police chase where Plaintiff alleges 3 unreasonable and excessive force was used by Defendants. (See ECF No. 4.) On September 21, 4 2018, Plaintiff was driving a stolen car in the City of Vallejo while being pursued by Vallejo 5 police officers. (Id. at ¶ 10.) Plaintiff eventually left the car and fled on foot, hiding in some 6 bushes. (Id. at ¶ 11.) Defendants used a police K-9 to locate Plaintiff’s hiding place. (Id. at ¶ 7 12.) The K-9 began biting Plaintiff’s leg, causing him to scream out in severe pain. (Id.) 8 Plaintiff alleges Defendants “struck him several times while he “was laying on the ground, 9 writhing in pain, [and] no longer evading the police” and the K-9 “continue[d] to bite [him] for 10 approximately two minutes.” (Id. at ¶ 13.) Plaintiff further alleges Defendants subsequently 11 “dragged . . . Plaintiff to the street and beat him in order to get him to tell them his name until he 12 lost consciousness.” (Id. at ¶ 14.) Plaintiff was taken to the hospital and diagnosed with “severe 13 puncture wounds and a tib[i]a fracture” as a result of the K-9 bite, as well as “head injuries and 14 pain in his back and shoulders from his subsequent beating.” (Id. at ¶ 15.) 15 On October 22, 2019, Plaintiff initiated this action against Defendants, asserting various 16 state and federal claims arising from the arrest. (ECF No. 1.) On November 8, 2019, Plaintiff 17 filed the operative First Amended Complaint (“FAC”). (ECF No. 4.) On January 21, 2020, 18 Defendants moved to dismiss Plaintiff’s FAC in its entirety pursuant to Federal Rule of Civil 19 Procedure (“Rule”) 12(b)(6). (ECF No. 5 at 1.) On March 19, 2020, Plaintiff filed an opposition 20 (ECF No. 7), and on March 26, 2020, Defendants filed a reply (ECF No. 10). 21 II. STANDARD OF LAW 22 A motion to dismiss for failure to state a claim upon which relief can be granted under 23 Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th 24 Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the claim 25 showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 26 (2009). Under notice pleading in federal court, the complaint must “give the defendant fair notice 27 of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 28 544, 555 (2007) (internal quotations omitted). “This simplified notice pleading standard relies on 1 liberal discovery rules and summary judgment motions to define disputed facts and issues and to 2 dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 3 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 4 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give the plaintiff the benefit of every 5 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 6 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 7 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 8 relief.” Twombly, 550 U.S. at 570. 9 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 10 factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 11 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an 12 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 13 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 14 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 15 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 16 statements, do not suffice.”). Moreover, it is inappropriate to assume the plaintiff “can prove 17 facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not 18 been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 19 U.S. 519, 526 (1983). 20 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 21 facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting 22 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Id. at 680. While the plausibility requirement is not akin to a probability 25 requirement, it demands more than “a sheer possibility that a defendant has acted unlawfully.” 26 Id. at 678. This plausibility inquiry is “a context-specific task that requires the reviewing court to 27 draw on its judicial experience and common sense.” Id. at 679. 28 /// 1 In ruling on a motion to dismiss, a court may only consider the complaint, any exhibits 2 thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. 3 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. 4 Consumers Union of United States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998). 5 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 6 amend even if no request to amend the pleading was made, unless it determines that the pleading 7 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 8 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 1995)). 9 III. ANALYSIS 10 Plaintiff asserts four claims: (1) violation of his Fourth Amendment rights pursuant to 42 11 U.S.C. § 1983 (“§ 1983”); (2) battery; (3) negligence; and (4) violation of California Civil Code § 12 52.1 (the “Bane Act”). (See ECF No. 4.) Defendants move to dismiss all claims for failure to 13 state a claim upon which relief may be granted.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL SANZ, No. 2:19-cv-02134-TLN-DB 12 Plaintiff, 13 v. ORDER 14 CITY OF VALLEJO, MARK THOMPSON, JASON BAUER, 15 BRETTON WAGONER, and DOES 1–25, 16 Defendants. 17 18 This matter is before the Court pursuant to Defendants City of Vallejo, Mark Thompson 19 (“Officer Thompson”), Jason Bauer (“Officer Bauer”), and Bretton Wagoner’s (“Officer 20 Wagoner”) (collectively, “Defendants”) Motion to Dismiss. (ECF No. 5.) Plaintiff Michael Sanz 21 (“Plaintiff’) opposes Defendants’ motion. (ECF No. 7.) Defendants have filed a reply. (ECF No. 22 10.) For the reasons set forth herein, Defendants’ Motion to Dismiss is hereby DENIED. (ECF 23 No. 5.) 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 This case arises from an arrest following a police chase where Plaintiff alleges 3 unreasonable and excessive force was used by Defendants. (See ECF No. 4.) On September 21, 4 2018, Plaintiff was driving a stolen car in the City of Vallejo while being pursued by Vallejo 5 police officers. (Id. at ¶ 10.) Plaintiff eventually left the car and fled on foot, hiding in some 6 bushes. (Id. at ¶ 11.) Defendants used a police K-9 to locate Plaintiff’s hiding place. (Id. at ¶ 7 12.) The K-9 began biting Plaintiff’s leg, causing him to scream out in severe pain. (Id.) 8 Plaintiff alleges Defendants “struck him several times while he “was laying on the ground, 9 writhing in pain, [and] no longer evading the police” and the K-9 “continue[d] to bite [him] for 10 approximately two minutes.” (Id. at ¶ 13.) Plaintiff further alleges Defendants subsequently 11 “dragged . . . Plaintiff to the street and beat him in order to get him to tell them his name until he 12 lost consciousness.” (Id. at ¶ 14.) Plaintiff was taken to the hospital and diagnosed with “severe 13 puncture wounds and a tib[i]a fracture” as a result of the K-9 bite, as well as “head injuries and 14 pain in his back and shoulders from his subsequent beating.” (Id. at ¶ 15.) 15 On October 22, 2019, Plaintiff initiated this action against Defendants, asserting various 16 state and federal claims arising from the arrest. (ECF No. 1.) On November 8, 2019, Plaintiff 17 filed the operative First Amended Complaint (“FAC”). (ECF No. 4.) On January 21, 2020, 18 Defendants moved to dismiss Plaintiff’s FAC in its entirety pursuant to Federal Rule of Civil 19 Procedure (“Rule”) 12(b)(6). (ECF No. 5 at 1.) On March 19, 2020, Plaintiff filed an opposition 20 (ECF No. 7), and on March 26, 2020, Defendants filed a reply (ECF No. 10). 21 II. STANDARD OF LAW 22 A motion to dismiss for failure to state a claim upon which relief can be granted under 23 Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th 24 Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the claim 25 showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 26 (2009). Under notice pleading in federal court, the complaint must “give the defendant fair notice 27 of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 28 544, 555 (2007) (internal quotations omitted). “This simplified notice pleading standard relies on 1 liberal discovery rules and summary judgment motions to define disputed facts and issues and to 2 dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 3 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 4 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give the plaintiff the benefit of every 5 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 6 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 7 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 8 relief.” Twombly, 550 U.S. at 570. 9 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 10 factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 11 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an 12 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 13 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 14 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 15 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 16 statements, do not suffice.”). Moreover, it is inappropriate to assume the plaintiff “can prove 17 facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not 18 been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 19 U.S. 519, 526 (1983). 20 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 21 facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting 22 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Id. at 680. While the plausibility requirement is not akin to a probability 25 requirement, it demands more than “a sheer possibility that a defendant has acted unlawfully.” 26 Id. at 678. This plausibility inquiry is “a context-specific task that requires the reviewing court to 27 draw on its judicial experience and common sense.” Id. at 679. 28 /// 1 In ruling on a motion to dismiss, a court may only consider the complaint, any exhibits 2 thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. 3 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. 4 Consumers Union of United States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998). 5 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 6 amend even if no request to amend the pleading was made, unless it determines that the pleading 7 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 8 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 1995)). 9 III. ANALYSIS 10 Plaintiff asserts four claims: (1) violation of his Fourth Amendment rights pursuant to 42 11 U.S.C. § 1983 (“§ 1983”); (2) battery; (3) negligence; and (4) violation of California Civil Code § 12 52.1 (the “Bane Act”). (See ECF No. 4.) Defendants move to dismiss all claims for failure to 13 state a claim upon which relief may be granted. (See ECF No. 5.) The Court will first address 14 Defendants’ Request for Judicial Notice (ECF No. 5-2) and then evaluate Plaintiff’s claims. 15 A. Defendants’ Request for Judicial Notice 16 As a preliminary matter, Defendants request the Court to take judicial notice of Exhibits A 17 and B. (ECF No. 5-2.) Exhibit A is “a true and correct copy of the body-worn camera footage 18 captured by Officer Mark Thompson depicting the search and apprehension of [Plaintiff] by 19 Officer Thompson and K-9 Clyde.” (ECF No. 5-1 at 2; ECF No. 5-2.) Exhibit B is “a true and 20 correct copy of the body-worn camera footage captured by Officer Nickolas Sloan depicting the 21 end of the vehicular pursuit of [Plaintiff] by Officer Nickolas Sloan and Officer Dynelle Jones.” 22 (ECF No. 5-1 at 2; ECF No. 5-2.) 23 Defendants argue “the body camera footage shows Plaintiff was actively physically 24 resisting during [the time the police dog found him hiding and bit him] up through the point of 25 being handcuffed” for the entire period force was being used. (ECF No. 5 at 10.) Defendants 26 therefore assert Plaintiff’s allegations “that officers dragged Plaintiff to the street and beat him in 27 order to tell them his name is implausible and unbelievable.” (Id. at 4.) Defendants note that 28 Plaintiff has not challenged the authenticity of the video. (ECF No. 10 at 2.) In opposition, 1 Plaintiff asserts Defendants are attempting to judicially notice “the contents of the video to 2 purportedly show that [they] did not employ excessive force,” which is inappropriate at this stage. 3 (ECF No. 7 at 3.) 4 Judicial notice allows a court to consider an adjudicative fact “if it is not subject to 5 reasonable dispute.” Fed. R. Evid. 201(b). A fact is not subject to reasonable dispute if it can be 6 “accurately and readily determined from sources whose accuracy cannot reasonably be 7 questioned.” Fed. R. Evid. 201(b)(1)–(2). Generally, a court “may not consider any material 8 beyond the pleadings in a ruling on a 12(b)(6) motion.” Snyder v. HSBC Bank, USA, N.A., 913 F. 9 Supp. 2d 755, 768 (C.D. Cal. 2012) (citing Lee v. City of Los Angeles (Lee I), 250 F.3d 668, 688 10 (9th Cir. 2001)). There are two notable exceptions to this rule. Id. First, “a court may take 11 judicial notice of “matters of public record.” Id. Second, “a court may take judicial notice of 12 material which is either submitted as a part of the complaint or necessarily relied upon by the 13 complaint.” Snyder, 913 F. Supp. 2d at 768; Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 14 998 (9th Cir. 2018) (“[I]ncorporation-by-reference is a judicially created doctrine that treats 15 certain documents as though they are part of the complaint itself” and applies “if the plaintiff 16 refers extensively to the document or the document forms the basis of the plaintiff’s claims.”). 17 Here, while the body camera footage may be considered public record appropriate for 18 judicial notice, the substance of the video is subject to varying interpretations. See Muhaymin v. 19 City of Phoenix, No. CV-17-04565-PHX-SMB, 2019 WL 699170, at *3 (D. Ariz. Feb. 20, 2019) 20 (considering video from officers’ body-cameras as a matter of public record to the extent it is not 21 disputed); see also Lihosit v. Flam, No. CV-15-01224-PHX-NVW, 2016 WL 2865870 at *4 (D. 22 Ariz. May 17, 2016) (considering police body-worn camera “only to the extent that it [was] 23 unambiguous and not subject to multiple inferences”). The contents of the video are shaky and 24 dark, depicting only partial and unclear clips of the actual arrest. Further, the video cuts out right 25 after the K-9 is removed from Plaintiff, which does not address Plaintiff’s allegations regarding 26 what transpired as he was taken into custody. As such, taking judicial notice of the contents of 27 the video at this stage would be inappropriate because there is a reasonable dispute as to what the 28 video establishes. See Khoja, 899 F.3d at 1000; see also Brown v. City of San Diego, No. 3:17- 1 CV-00600-H-WVG, 2017 WL 3993955, at *2 (S.D. Cal. Sept. 11, 2017) (finding that a factual 2 dispute as to what was shown on police body-worn camera video precluded it from being 3 considered on a Rule 12(c) motion). 4 The Court further declines to incorporate by reference Exhibits A and B because Plaintiff 5 does not refer to the video footage extensively in the FAC nor does the video footage form the 6 basis of Plaintiff’s claims. (See ECF No. 4); see also Khoja, 899 F.3d at 1002; Covert v. City of 7 San Diego, No. 15-CV-2097 AJB (WVG), 2017 WL 1094020, at *5 (S.D. Cal. Mar. 23, 2017) 8 (considering body-worn camera videos on a Rule 12(b)(6) motion because they were 9 “incorporated into the FAC by reference and . . . partially form[ed] the basis of plaintiff’s 10 complaint”); Lee v. City of San Diego (Lee II), No. 18cv0159 W (BLM), 2019 WL 117775, at 11 *4–5 (S.D. Cal. Jan. 7, 2019) (declining to consider police body camera video on a Rule 12(c) 12 motion under the incorporation-by-reference doctrine where the plaintiff’s first amended 13 complaint did not refer to videos and plaintiff’s claims were not based on the videos). 14 Accordingly, Defendants’ Request for Judicial Notice of Exhibits A and B (ECF No. 5-2) 15 is DENIED. 16 B. Claims One, Two, and Three 17 In Claim One, Plaintiff alleges a § 1983 claim based on the officers’ alleged use of 18 unreasonable and excessive force in violation of his Fourth Amendment rights. More 19 specifically, Plaintiff alleges Officer Thompson “deliberately and intentionally allow[ed] his K-9 20 to repeatedly bite . . . Plaintiff for a period of several minutes” and Officers Bauer and Wagoner 21 “deliberately and intentionally issu[ed] multiple strikes to . . . Plaintiff’s body for a period of 22 several minutes.” (See ECF No. 4 at ¶¶ 18–21.) Plaintiff alleges both of these acts occurred 23 “after he was already laying down on the ground, no longer evading or resisting the police and 24 was physically surrounded by multiple police officers.” (Id.) In Claims Two and Three, Plaintiff 25 alleges claims for battery and negligence respectively, both of which are premised on the 26 unreasonable and excessive force in Claim One. (See id. at ¶¶ 22–36.) 27 Defendants move to dismiss Claim One, arguing the video footage in Exhibits A and B 28 show Plaintiff’s “excessive force allegations are meritless.” (ECF No. 5 at 7.) Defendants also 1 move to dismiss Claims Two and Three, arguing that “[c]laims of excessive force under 2 California law are analyzed under the same standard of objective reasonableness used in Fourth 3 Amendment claims.” (Id. at 13.) 4 As noted previously, the Court declines to judicially notice or incorporate by reference 5 Exhibits A and B. Because Defendants’ arguments are premised on judicial notice of the body- 6 worn camera footage, the Court declines to consider them at this stage. Accordingly, Defendants’ 7 Motion to Dismiss Claims One, Two, and Three is DENIED. 8 C. Claim Four 9 Defendants move to dismiss Claim Four, arguing Plaintiff fails to allege facts that 10 demonstrate Defendants intended to violate Plaintiff’s Fourth Amendment rights.1 (ECF No. 5 at 11 13 (citing Losee v. City of Chico, 738 F. App’x 398 (9th Cir. 2018).) In opposition, Plaintiff 12 asserts Defendants “displayed reckless disregard for Plaintiff’s constitutional rights by 13 surrounding [him] and striking him” while the K-9 continued to bite his leg for approximately 14 two minutes. (ECF No. 7 at 11.) Additionally, Plaintiff maintains Defendants “clearly displayed 15 a reckless disregard” for Plaintiff’s constitutional rights when they dragged him to the street and 16 beat him until he lost consciousness in order to get his name. (Id.) 17 The Bane Act creates a private cause of action against anyone who “interferes by threats, 18 intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the 19 exercise or enjoyment by an individual or individuals of rights secured by the Constitution or 20 laws of the United States, or laws and rights secured by the Constitution or laws of [California].” 21 Cal. Civ. Code § 52.1. A plaintiff bringing a claim pursuant to the Bane Act “must show (1) 22 intentional interference or attempted interference with a state or federal constitutional or legal 23 right, and (2) the interference or attempted interference was by threats, intimidation or coercion.” 24 Scalia v. Cty. of Kern, 308 F. Supp. 3d 1064, 1080 (E.D. Cal. 2018) (quoting Allen v. City of 25 Sacramento, 234 Cal. App. 4th 41, 67 (2015), as modified on denial of reh’g (Mar. 6, 2015).). 26 1 Defendants note that they “seek summary adjudication” with respect to Plaintiff’s Bane 27 Act claim (see ECF No. 5 at 13), but as their motion is brought as a motion to dismiss, the Court construes Defendants’ argument as seeking to dismiss this claim. 28 1 “[T]he egregiousness required by [§] 52.1 is tested by whether the circumstances indicate the 2 arresting officer had a specific intent to violate the arrestee’s right to freedom from unreasonable 3 seizure, not by whether the evidence shows something beyond the coercion ‘inherent’ in the 4 wrongful detention.” Cornell v. City & Cty. of San Francisco, 17 Cal. App. 5th 766, 801–02 5 (2017), as modified (Nov. 16, 2017). 6 The Ninth Circuit has found that the Bane Act “does not require the ‘threat, intimidation 7 or coercion’ element of the claim to be transactionally independent from the constitutional 8 violation alleged,” and also “requires ‘a specific intent to violate the arrestee’s right to freedom 9 from unreasonable seizure.’” Reese v. Cty. of Sacramento (Reese I), 888 F.3d 1030, 1043 (9th 10 Cir. 2018) (quoting Cornell, 17 Cal. App. 5th at 799–801). However, “a mere intention to use 11 force . . . is insufficient” and the defendants must have “intended not only the force, but its 12 unreasonableness, [and] its character as ‘more than necessary under the circumstances.’” United 13 States v. Reese (Reese II), 2 F.3d 870, 885 (9th Cir. 1993). The Ninth Circuit has clarified that a 14 specific intent to violate a person’s constitutional rights does not require the defendant to be 15 “thinking in constitutional or legal terms” and may be established by showing the defendant acted 16 with reckless disregard for the person’s rights. Id. (emphasis omitted). 17 Here, Plaintiff alleges he “was laying on the ground, writhing in pain, no longer evading 18 the police, and being bitten by the K-9, [when] Defendants surrounded [him], struck him several 19 times and allowed the K-9 to bite [him] for approximately two minutes. (ECF No. 4 at ¶ 13.) 20 Plaintiff further alleges he was dragged “to the street and beat . . . in order to get him to tell them 21 his name until he lost consciousness.” (Id. at ¶ 14.) “Plaintiff reasonably believed that if he 22 exercised his right to be free from the unlawful excessive force upon his person, 23 that . . . Defendants would commit violence against him.” (Id. at ¶ 38.) Based on these factual 24 allegations, it is plausible that Defendants intentionally interfered with Plaintiff’s constitutional 25 right to be free from unreasonable seizure and that Defendants’ actions were objectively 26 unreasonable and “more than necessary under the circumstances.” Reese II, 2 F.3d at 885. While 27 there is no indication Defendants specifically intended to violate Plaintiff’s constitutional rights, 28 the Court finds the facts alleged adequately show Defendants “acted with reckless disregard” 1 | towards Plaintiff's Fourth Amendment right to be free from unreasonable seizure. Id. 2 Based on the foregoing, the Court finds Plaintiff has sufficiently pleaded a Bane Act claim 3 | against Defendants, as the Court can “draw the reasonable inference that [Defendants are] liable 4 | for the misconduct alleged.” See Iqbal, 556 U.S. at 680. Accordingly, Defendants’ Motion to 5 | Dismiss Claim Four is DENIED. 6 D. City of Vallejo State Claims 7 Defendants argue all claims against City of Vallejo should be dismissed because none of 8 | the state law claims against the officers are viable and “the City therefore cannot be held liable for 9 || the acts or omissions of its employees.” (ECF No. 5 at 15.) Plaintiff asserts the City of Vallejo 10 | can be held liable under California Government Code § 815.2 “for injuries proximately caused by 11 | an act or omission of an employee of the public entity within the scope of his or her employment” 12 | and that his “state law claims are sufficient.” (ECF No. 7 at 11.) As the Court has found that 13 | Plaintiff has sufficiently pleaded a Bane Act claim and has not conclusively determined whether 14 | Plaintiffs other state law claims are viable, Defendants’ Motion to Dismiss all state law claims 15 | against City of Vallejo is DENIED. 16 IV. CONCLUSION 17 For the foregoing reasons, the Court hereby DENIES Defendants’ Motion to Dismiss 18 | (ECF No. 5) in its entirety. Defendants shall file an answer to the First Amended Complaint not 19 |} later than thirty (30) days after the electronic filing date of this Order. 20 IT IS SO ORDERED. 21 DATED: June 29, 2021 □□ /) 22 ( | jf / 23 “ MN Vasko 24 Troy L. Nuhlep ] United States District Judge 25 26 27 28