Segura v. City of San Diego

• Court: District Court, S.D. California
• Decided: April 18, 2024
• Docket: 3:22-cv-01029
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HECTOR SEGURA, Case No.: 3:22-cv-01029-RBM-AHG

12 Plaintiff, ORDER GRANTING DEFENDANTS’ 13 v. MOTION FOR JUDGMENT ON THE PLEADINGS 14 CITY OF SAN DIEGO, et al.,

15 Defendants. [Doc. 29] 16 17 Pending before the Court is Defendant City of San Diego’s (“Defendant”) motion 18 for judgment on the pleadings under FRCP 12(c) (“MJP”). (Doc. 29.) On October 3, 2023, 19 Defendant filed a statement of Plaintiff’s non-opposition in support of Defendant’s MJP. 20 (Doc. 31.) On October 17, 2023, Plaintiff filed an opposition to Defendant’s MJP. (Doc. 21 32.)1 On October 24, 2023, Defendant filed a reply. (Doc. 33.) 22 In the MJP, Defendant argues Plaintiff fails to identify any policy or allege sufficient 23 facts for any custom in his first amended complaint (“FAC”). (Doc. 29-1 at 4–6.) 24 Defendant argues that Plaintiff’s real complaint is not a concern with the City of San 25 Diego’s policies but with a violation of those policies. (Id. at 6.) Defendant argues Plaintiff 26 27 1 Plaintiff titles his document as an opposition to Defendant’s motion to dismiss (Id. at 1), 28 1 fails to establish that a government official with final policy-making authority ratified a 2 subordinate’s unconstitutional conduct and fails to identify which chief of police and 3 mayor he references. (Id. at 6–7.) 4 Defendant also argues Plaintiff fails to plead sufficient facts for his failure to train 5 claim concerning any training program and how it was inadequate, fails to plead a pattern 6 of similar constitutional violations, and fails to link a failure in training to the alleged 7 violation of his constitutional rights. (Id. at 7–8.) Defendant further contends Plaintiff’s 8 substantive due process claim should be dismissed because he fails to allege any egregious 9 or outrageous behavior on the part of the City of San Diego. (Id. at 8.) Defendant also 10 argues Plaintiff’s equal protection claim should be dismissed because he fails to plead 11 sufficient facts of purposeful discrimination. (Id. at 8–9.) 12 The Court finds the matter suitable for determination on the papers and without oral 13 argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons discussed below, 14 Defendant’s MJP (Doc. 29) is GRANTED. 15 I. BACKGROUND2 16 A. Initial Incident 17 “On April 24, 202[0], Plaintiff was cutting a tree to help the City of San Diego. Tony 18 Naputi, a police officer … approached Plaintiff, said, ‘come here’ signally with his hand. 19 He was in a fighting stance.” (FAC ¶ 11.)3 Officer Naputi said, “are you the one with 20 machete?” (Id. ¶ 12.) The machete, one of the tools Plaintiff used to cut the tree, was put 21 away and not next to Plaintiff at the time. (Id.) Plaintiff tried to turn on his phone camera 22 and Officer Naputi “jumped Plaintiff and put him in a choke hold.” (Id. ¶¶ 13–14.) 23 /// 24 25 2 The following factual and claim recitation is taken from Plaintiff’s FAC and does not 26 reflect the factual or legal opinions of the Court. 27 3 While paragraph 11 states the incident occurred on April 24, 2022, the FAC earlier states the incident occurred on April 24, 2020. (See FAC ¶¶ 1, 11.) It appears to the Court, based 28 1 When the ambulance arrived, paramedics told Officer Naputi to let Plaintiff go and 2 stated that Plaintiff “was having a mental break down.” (Id. ¶ 15.) The paramedics kept 3 telling Officer Naputi to get off of Plaintiff. (Id. ¶ 16.) 4 “A second officer arrived at the scene and said the officer was choking [Plaintiff] 5 because the officer choking [Plaintiff] knows jiu jitsu.” (Id. ¶ 17.) Officer Naputi told 6 Plaintiff he was choking him because Plaintiff is a “criminal.” (Id. ¶ 18.) 7 Plaintiff was “not arrested and [was] sent to a mental hospital that day. [He] felt [he] 8 almost died and suffered a mental breakdown.” (Id. ¶ 19.) As a direct and proximate result 9 of the Defendants’ conduct, Plaintiff’s Fourth, Fifth, and Fourteenth Amendment rights to 10 be free from unreasonable searches and seizures and rights to equal protection and the due 11 process of law were denied. (Id. ¶ 20.) Plaintiff suffered physical and emotional pain and 12 suffering, emotional trauma, loss of income and earning capacity, and seeks all costs 13 allowed by law. (Id.) He seeks $50,000 in damages. (Id. ¶ 1.) 14 B. Claims 1 Through 3 – Excessive Force, Failure to Supervise and Train, and 15 Monell Violations 16 1. Excessive Force 17 Plaintiff alleges “[t]he choke-hold and physical take down and beating up of 18 [Plaintiff] deprived [him] of [his] rights and privileges and immunities under the 4th, and 19 14th Amendments.” (Id. ¶ 22.) His “pain and suffering and now trauma and emotional 20 distress and now [he] panic[s] when [he] see[s] a police officer thinking they are going to 21 kill [him] [and] [they] violated [his] 1983 rights under 42 United States Code as the police 22 was acting under the color of authority and pursuant to the customs, policies, and 23 procedures by the Defendants and CITY OF SAN DIEGO police department.” (Id. ¶ 23 24 (cleaned up).) 25 2. Failure to Supervise and Train 26 The City of San Diego failed to supervise and train its police officers. (Id. ¶ 24.) 27 3. Monell Policy or Custom 28 The police department “[has] a culture of excessive force in dealing with citizens 1 who have mental issues and because of this, [Plaintiff] ha[s] been traumatized and afraid 2 to file a lawsuit and incapacitated to do so and should have any statute of limitations tolled.” 3 (Id. ¶ 25.) The police department “has been harassing [Plaintiff] since [he] was 11 years 4 old. They have been stalking [him] and pulling [him] over for no reason in [his] 5 neighborhood. … [He] [has] always complained and the supervisors and the people in 6 charge of the City of San Diego have done nothing about it.” (Id. ¶¶ 26–27.) “Although 7 the City of San Diego claims they follow their own rules they have for many years had a 8 custom and policy of following certain members of the community. For example, 9 [Plaintiff] ha[s] been targeted since [he] was 11 years old because [he] [is] a short, brown 10 skin minority.” (Id. ¶ 29.) 11 The City of San Diego was supposed to send a Psychiatric Emergency Response 12 Team (“PERT”), but instead sent Officer Naputi. (Id. ¶ 28.) “This custom and practice of 13 not sending the PERT team has been ratified by the Chief of Police and by the Mayor and 14 its workers.” (Id. ¶ 30.) 15 Internal Affairs informed Plaintiff that Officer Naputi “violated the policies about 16 excessive force and not wearing a cam so to prove [Plaintiff’s] case.” (Id. ¶ 35.) “The City 17 and the Police Officers have never in the past done anything to officers about not having 18 cameras or calling the PERT team and about excessive force. These actions by Tony 19 Naputi in other cases other than [Plaintiff’s] have always been ratified so he knew that he 20 was not going to be in trouble because he always engages in this behavior, and no one does 21 anything to him.” (Id. ¶ 36.) 22 C. Commission on Police Practices’ Letter 23 Plaintiff received a letter from Internal Affairs stating officers violated policy of the 24 San Diego Police Department and informed Plaintiff he had one year to file a lawsuit. (Id. 25 ¶ 38.) In a May 12, 2021 letter attached to Plaintiff’s FAC from the Commission on Police 26 Practices (“Commission”), the Commission explained it reviewed an Internal Affairs 27 Investigator’s report and all related materials including the Internal Affairs findings 28 concerning Plaintiff’s allegations. (Id. at 6.) Regarding Plaintiff’s allegation that “an 1 officer used force consisting of physical strength and the Carotid Restraint when he 2 detained [Plaintiff] and [Plaintiff] suffered cuts and scrapes on [his] elbow and knees as a 3 result of the force used in this incident[,]” Internal Affairs exonerated the officer because 4 the alleged act was legal, justified, and proper and within policy procedure and law; the 5 Commission agreed. (Id. at 7.) Regarding Plaintiff’s allegation that “the officer was 6 discourteous to [Plaintiff] when he called [him] a criminal[,]” Internal Affairs sustained the 7 allegation finding the officer committed all or part of the alleged act of misconduct; the 8 Commission agreed. (Id.) 9 Internal Affairs sustained, and the Commission agreed, that the investigation 10 discovered that “[a]n officer violated Department Procedure 1.49 Section Ia&c [when] he 11 failed to keep his BWC in buffer mode while on duty and activate his BWC while en-route 12 to an enforcement related radio call.” (Id.) Internal Affairs sustained, and the Commission 13 agreed, that the investigation discovered that “[t]wo officers violated Department 14 Procedure 1.04 Section VI.A, when they failed to describe all the force they used during 15 [Plaintiff’s] arrest and failed to complete a Use of Force, Blue Team Entry.” (Id.) 16 II. LEGAL STANDARD 17 Federal Rule of Civil Procedure 12(c) allows parties to move for judgment on the 18 pleadings after the pleadings have been closed but prior to trial, and “within such time as 19 not to delay the trial.” Fed. R. Civ. P. 12(c). The standard for determining a Rule 12(c) 20 motion for judgment on the pleadings is the same as the standard for a Rule 12(b)(6) motion 21 to dismiss. Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1053 & 22 n.4 (9th Cir. 2011) (“Rule 12(c) is ‘functionally identical’ to Rule 12(b)(6) and that ‘the 23 same standard of review’ applies to motions brought under either rule.”) (quoting Dworkin 24 v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989)). “Judgment on the 25 pleadings is proper when the moving party clearly establishes on the face of the pleadings 26 that no material issue of fact remains to be resolved and that it is entitled to judgment as a 27 matter of law.” Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 28 1550 (9th Cir. 1989). A court must not consider matters beyond the pleadings; otherwise, 1 such a proceeding must properly be treated as a motion for summary judgment. Id.; see 2 also Yakima Valley Mem’l Hosp. v. Wash. State Dep’t of Health, 654 F.3d 919, 925 n.6 3 (9th Cir. 2011) (“Judgment on the pleadings is limited to material included in the pleadings 4 … [o]therwise, the proceeding is converted to summary judgment.”) (citations omitted). 5 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 6 state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” 7 Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro 8 v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). An action may be dismissed for failure to 9 allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. 10 v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 11 pleads factual content that allows the court to draw the reasonable inference that the 12 defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 13 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant 14 acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). 15 For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations 16 in the complaint as true and construe[s] the pleadings in the light most favorable to the 17 nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 18 (9th Cir. 2008). 19 III. DISCUSSION 20 Defendant argues Plaintiff’s Monell claims fail as a matter of law because the FAC 21 lacks sufficient allegations to establish a claim against the City of San Diego under Monell 22 v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). (Doc. 29-1 at 4–8.) 23 Defendant also argues Plaintiff’s substantive due process claim should be dismissed 24 because the FAC fails to allege sufficient facts of egregious or outrageous behavior. (Id. 25 at 8.) Lastly, Defendant argues Plaintiff’s equal protection claim should be dismissed for 26 failure to allege sufficient facts of purposeful discrimination. (Id. at 8–9.) The Court will 27 address each of Defendant’s arguments in turn but will first address the timeliness of 28 Plaintiff’s Opposition. 1 A. Non-Opposition 2 On October 3, 2023, Defendant filed a statement of Plaintiff’s non-opposition in 3 support of Defendants’ MJP. (Doc. 31.) Defendant explained that Plaintiff’s opposition 4 to its MJP was due on September 26, 2023 and Plaintiff did not file an opposition or 5 statement of non-opposition as of Defendant’s filing on October 3, 2023. (Id. at 1.) 6 Defendant argues Plaintiff’s failure to respond should be construed as consent or waiver 7 under Civil Local Rule 7.1. (Id. at 3.) Defendant also explains that Plaintiff requested 8 additional time for his opposition on September 26, 2023, specifically one week, and 9 Defendant sent a joint motion to extend the time to respond, but Plaintiff never responded. 10 (Id. at 3–4.) Defendant argues Plaintiff also failed to express any need for an extension 11 until his opposition due date and failed to show good cause for an extension. (Id. at 4–5.) 12 Defendant requests the Court construe Plaintiff’s failure to file and serve his required 13 moving papers as consent to the granting of Defendant’s MJP. (Id. at 1–2.) 14 In Plaintiff’s opposition to Defendant’s MJP, Plaintiff argues that the City of San 15 Diego rescinded its chokehold policy that damaged him due to Officer Naputi’s actions. 16 (Doc. 32 at 1–2.) Plaintiff explains that if he did not include that allegation in his FAC, he 17 requests leave to amend to add it. (Id.) Plaintiff adds “[t]he City of San Diego did not train 18 the officers well or otherwise they would not be doing the chokehold.” (Id. at 2.) Plaintiff 19 attached a June 1, 2020 news article about the San Diego Police Department’s stopping the 20 use of carotid restrains, or chokeholds, as a use-of-force procedure. (Id. at 4–6.) 21 Defendant, in its reply, objects to consideration of Plaintiff’s opposition and objects to 22 Plaintiff’s untimely request to amend the FAC. (Doc. 33 at 1, 4.) 23 In the Court’s Prior Order on Defendant’s Motion to Dismiss, the Court cautioned 24 the parties “that in the event Plaintiff files an amended complaint, the Court will adhere to 25 this District’s Civil Local Rules and the Court’s Civil Chamber Rules.” (Doc. 9 at 9.) 26 Accordingly, the Court is entitled to disregard Plaintiff’s untimely opposition. However, 27 given Plaintiff’s pro se status, the Court will consider Plaintiff’s untimely opposition. 28 (Doc. 32). This is Plaintiff’s final warning. The Court will not entertain any further 1 untimely filings and will strike or otherwise reject any future filings that fail to comply 2 with the Local Rules, this Court’s Civil Chamber Rules, and the Federal Rules. 3 A. Monell claims 4 Municipalities cannot be held vicariously liable under 42 U.S.C. § 1983 for the 5 actions of their employees. Monell, 436 U.S. at 691. “Instead, it is when execution of a 6 government’s policy or custom, whether made by its lawmakers or by those whose edicts 7 or acts may fairly be said to represent official policy, inflicts the injury that the government 8 as an entity is responsible under § 1983.” Id. at 694. To prevail in a civil action against a 9 local governmental entity, the plaintiff must establish “(1) that he possessed a constitutional 10 right of which he was deprived; (2) that the municipality had a policy; (3) that this policy 11 ‘amounts to deliberate indifference’ to the plaintiff’s constitutional right; and (4) that the 12 policy is the ‘moving force behind the constitutional violation.’” Oviatt By & Through 13 Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 14 489 U.S. 378, 389–91 (1989)). 15 A plaintiff may establish municipal liability under 42 U.S.C. § 1983 in one of three 16 ways. “First, the plaintiff may prove that a city employee committed the alleged 17 constitutional violation pursuant to a formal governmental policy or a longstanding practice 18 or custom which constitutes the standard operating procedure of the local governmental 19 entity.” Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) (internal quotation marks 20 omitted) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). Second, the 21 plaintiff may establish that a governmental official with “final policy-making authority” 22 ratified a subordinate’s unconstitutional conduct. Id. at 1346–47 (citations omitted). 23 Finally, a municipality may be held liable for inadequate training of its employees, but only 24 where “the need for more or different training is so obvious, and the inadequacy so likely 25 to result in the violation of constitutional rights, that the policymakers of the city can 26 reasonably be said to have been deliberately indifferent to the need.” City of Canton, 489 27 U.S. at 390. 28 /// 1 1. Policy 2 Defendant argues Plaintiff “does not offer a single citation of any section of the City 3 of San Diego Municipal Code, a single policy, procedure, or order of its Police Department, 4 or point to any ‘formal governmental policy’ pursuant to which any employee of the City 5 of San Diego is supposed to have committed the constitutional violation or violations 6 Plaintiff alleges.” (Doc. 29-1 at 5.) Plaintiff argues that the City of San Diego rescinded 7 its chokehold policy that damaged him due to Officer Naputi’s actions. (Doc. 32 at 1–2.) 8 However, Plaintiff does not specify the City of San Diego’s chokehold policy at issue 9 anywhere in his FAC. Accordingly, Plaintiff has failed to identify a policy amounting to 10 deliberate indifference to his constitutional rights and that the policy was the moving force 11 behind the constitutional violation of his rights. See Pearce, 954 F.2d at 1474. 12 2. Custom 13 Defendant argues Plaintiff’s allegation that the San Diego Police Department has a 14 culture of excessive force in dealing with citizens who have mental health issues “is a 15 generalized allegation offering no specific examples, no facts to support the notion that the 16 ‘culture’ is so widespread that it constitutes a standard operating procedure, or how this 17 culture relates to the subject incident.” (Doc. 29-1 at 6.) Defendant further argues that 18 Plaintiff’s allegation that they have a custom of following certain members of the 19 community “lacks specific examples, suggests no inception date, and discusses no other 20 litigation, publications, or studies [supporting] the notion that this purported ‘custom’ is 21 longstanding or widespread enough to constitute a standard operating procedure.” (Id.) 22 Finally, Defendant argues Plaintiff’s issue is not with a failure in policy, but with a 23 violation of those policies. (Id.) 24 “Proof of random acts or isolated events is insufficient to establish custom.” Oyenik 25 v. Corizon Health Inc., 696 F. App’x 792, 794 (9th Cir. 2017) (quoting Navarro v. Block, 26 72 F.3d 712, 714 (9th Cir. 1995)). Rather, “[l]iability for improper custom … must be 27 founded upon practices of sufficient duration, frequency and consistency that the conduct 28 has become a traditional method of carrying out policy.” Id. (quoting Trevino v. Gates, 99 1 F.3d 911, 918 (9th Cir. 1996)). “A custom is ‘a widespread practice that, although not 2 authorized by written law or express municipal policy, is so permanent and well-settled as 3 to constitute a custom or usage with the force of law.’” J.M. by & Through Rodriguez v. 4 Cnty. of Stanislaus, No. 1:18-cv-01034-LJO-SAB, 2018 WL 5879725, at *3 (E.D. Cal. 5 Nov. 7, 2018) (quoting St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) and Los Angeles 6 Police Protective League v. Gates, 907 F.2d 879, 890 (9th Cir. 1990)). The Ninth Circuit 7 has explained that “[w]hile one or two incidents are insufficient to establish a custom or 8 policy, we have not established what number of similar incidents would be sufficient to 9 constitute a custom or policy.” Oyenik, 696 F. App’x at 794 (citations omitted). 10 Plaintiff fails to point to other instances for his three asserted bases of custom and 11 practice above, including a culture of excessive force in dealing with citizens with mental 12 health issues, harassing and stalking of following certain members of the community, and 13 not sending the PERT team. (See FAC ¶¶ 25–30.) See Oyenik, 696 F. App’x at 794. The 14 Court concludes Plaintiff fails to state sufficient allegations proving the existence of a 15 practice so widespread, permanent, and well settled as to constitute a custom or practice. 16 3. Ratification 17 Defendant argues Plaintiff fails to establish a government official with final policy- 18 making authority ratified a subordinate’s unconstitutional conduct by not specifying which 19 chief of police and mayor ratified Officer Naputi’s conduct, failing to identify any other 20 cases, and failing to describe how the purported ratification violated Plaintiff’s 21 constitutional rights. (Doc. 29-1 at 6–7.) Plaintiff alleges the chief of police and mayor 22 ratified the custom and practice of not sending the PERT team and that Officer Naputi’s 23 conduct in other cases was ratified so he knew he would not get in trouble for engaging in 24 this behavior. (FAC ¶¶ 30, 36.) 25 In Lytle v. Carl, the Ninth Circuit explained that a ratification theory of Monell 26 liability requires “a plaintiff to show that the ‘authorized policymakers’ approve[d] a 27 subordinate’s decision and the basis for it ... The policymaker must have [had] knowledge 28 of the constitutional violation and actually approve[d] of it.” 382 F.2d 978, 987 (9th Cir. 1 2004). The Court concludes Plaintiff’s ratification claim fails because he does not identify 2 specific policymakers with knowledge of Officer Naputi’s alleged constitutional violation 3 and approval of Officer Naputi’s basis for his decision, or knowledge of any similar alleged 4 violations in other cases. 5 4. Failure to Train 6 Defendant argues Plaintiff fails to plead facts for his failure to train claim concerning 7 any training program and how it was inadequate, fails to plead a pattern of similar 8 constitutional violations, and fails to link a failure in training to the alleged violation of his 9 constitutional rights. (Doc. 29-1 at 7–8.) Plaintiff responds that “[t]he City of San Diego 10 did not train the officers well or otherwise they would not be doing the chokehold.” (Doc. 11 32 at 2.) While Plaintiff alleged the City of San Diego failed to supervise and train its 12 police officers (FAC ¶ 24), Plaintiff has included no allegation suggesting “the need for 13 more or different training [was] so obvious” such that the City of San Diego was 14 “deliberately indifferent to the need.” City of Canton, 489 U.S. at 390. 15 B. Substantive Due Process 16 Defendant argues Plaintiff’s substantive due process claim fails because does not 17 allege any conduct on the part of the City of San Diego that was sufficiently egregious or 18 outrageous. (Doc. 29-1 at 8.) Plaintiff fails to respond to this argument and thus it is 19 deemed waived. See Galaviz v. Fed. Bureau of Investigation, Case No. C19-1611JLR, 20 2020 WL 208044, at *4 (W.D. Wash. Jan. 14, 2020) (“Federal courts consider the failure 21 to respond to a motion to dismiss a claim to constitute a waiver of the claim at issue.”); 22 Heraldez v. Bayview Loan Servicing, LLC, Case No. CV 16-1978-R, 2016 WL 10834101, 23 at *2 (C.D. Cal. Dec. 15, 2016) (“Failure to oppose constitutes a waiver or abandonment 24 of the issue.”) (citing Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. 25 Supp. 2d 1125, 1132 (C.D. Cal. 2011)). 26 C. Equal Protection 27 Defendant argues Plaintiff’s equal protection claim fails because he fails to allege 28 sufficient facts of purposeful discrimination. (Doc. 29-1 at 9–10.) Plaintiff fails to respond 1 to this argument and thus it is deemed waived. See Galaviz, 2020 WL 208044, at *4 2 (“Federal courts consider the failure to respond to a motion to dismiss a claim to constitute 3 a waiver of the claim at issue.”); Heraldez, 2016 WL 10834101, at *2 (“Failure to oppose 4 constitutes a waiver or abandonment of the issue.”) (citing Stichting Pensioenfonds ABP, 5 802 F. Supp. 2d at 1132). 6 D. Leave to Amend 7 In his opposition, Plaintiff requests leave to amend his FAC. (Doc. 32 at 1–2.) 8 Defendant, in its reply, objects to consideration of Plaintiff’s opposition and argues it 9 contains an untimely request to amend the FAC, to which Defendant objects. (Doc. 33 at 10 1, 4.) Generally, pro se litigants should be given an opportunity to amend their complaints. 11 Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). But a court is not required to allow 12 leave to amend if the amendment: (1) prejudices the opposing party; (2) is sought in bad 13 faith; (3) produces an undue delay in litigation; or (4) is futile. Bowles v. Reade, 198 F.3d 14 752, 758 (9th Cir. 1999) (internal citation omitted); see also Dixon v. O’Connor, 542 Fed. 15 App’x 561, 562 (9th Cir. 2013) (affirming dismissal without leave to amend when further 16 amendment would be futile). 17 The Court previously granted Plaintiff leave to amend his initial complaint. (Doc. 9 18 at 8.) Plaintiff failed to fix the pleading deficiencies in his Monell claims. Given Plaintiff’s 19 opportunity to fix these deficiencies, the Court determines that Plaintiff’s Monell custom, 20 ratification, and failure to train as well as his substantive due process and equal protection 21 claims are futile. Therefore, those claims are DISMISSED WITH PREJUDICE. 22 However, the Court determines Plaintiff’s Monell policy claim concerning a chokehold 23 policy articulated in his untimely opposition, not the FAC, is not necessarily futile and will 24 GRANT LEAVE TO AMEND that claim. See e.g., Ramsey v. City of Santa Ana, Case 25 No. 8:21-cv-00825-JLS-KES, 2023 WL 3432264, at *8 (C.D. Cal. Mar. 17, 2023) (denying 26 summary judgment on a Monell policy claim concerning a policy of the Santa Ana Police 27 Department allowing officers to use a chokehold if a subject’s “words ... demonstrate[ ] an 28 1 intention to be violent” and the subject “reasonably appears to have the potential to harm 2 officers” that was potentially resulting in unconstitutional excessive force). 3 IV. CONCLUSION 4 For the foregoing reasons, Defendant’s MJP (Doc. 29-1) is GRANTED. Plaintiff’s 5 Monell custom, ratification, and failure to train as well as substantive due process and equal 6 protection claims discussed above are DISMISSED WITH PREJUDICE. Plaintiff’s 7 Monell policy claim is DISMISSED WITH LEAVE TO AMEND. Plaintiff may file a 8 second amended complaint on or before May 3, 2024. Plaintiff’s excessive force claim 9 and Monell claim concerning officers not wearing cameras, which Defendant did not 10 address, survive the MJP. 11 IT IS SO ORDERED. 12 DATE: April 18, 2024 13 ____________________________________ HON. RUTH BERMUDEZ MONTENEGRO 14 UNITED STATES DISTRICT JUDGE 15

16 17 18 19 20 21 22 23 24 25 26 27 28