Sekerke v. City of National City

Opinion

KEITH SEKERKE, Case No.: 19cv1360-LAB (MSB) Plaintiff, REPORT AND RECOMMENDATION v. REGARDING DEFENDANTS’ MOTION TO CITY OF NATIONAL CITY, et al., DISMISS [ECF NO. 23]

Defendants. Keith Sekerke (“Plaintiff”), has filed a civil rights action pursuant to 42 U.S.C. § 1983 against the City of National City (“National City”), and eleven National City Police Department (“NCPD”) officers: Kevin Hirsh, Matt Smith, Anthony Sabala, Omar Ramirez, Steven Anderson, Vincent Fernando, Emma Cabata, Shane McClure, Matthew Cardoza, John Doughert, and Matthew Cardoza (collectively, “Defendants,” while the individually named officers will be referred to as “Individual Defendants”). (See ECF No. 1 at 1-2.) Currently pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint, filed on March 4, 2020. (ECF No. 23.) This Court has considered the Second Amended Complaint (“SAC”), (ECF No. 6), Defendants’ Motion to Dismiss, submitted to United States Chief District Judge Larry A. Burns pursuant to 28 U.S.C.A. § 636(b) and Civil Local Rules 72.3 of the United States District Court for the Southern District of California. For the reasons set forth below, this Court RECOMMENDS that Defendants’ Motion to Dismiss for Failure to State a Claim be GRANTED. On July 19, 2019, Plaintiff, Keith Sekerke, a state prisoner proceeding in forma pauperis and represented by counsel, filed a complaint alleging causes of action under the Civil Rights Act pursuant to 42 U.S.C.A. § 1983 and state law against the City of National City, NCPD, and Individual Defendants related to Individual Defendants’ impound of Plaintiff’s vehicle and failure to secure Plaintiff’s home subsequent to Plaintiff’s arrest. (ECF No. 1.) Plaintiff filed his First Amended Complaint on September 10, 2019. (ECF No. 4.) On November 4, 2019, Chief Judge Burns granted Plaintiff’s request to proceed in forma pauperis and screened his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). (ECF No. 5.) Chief Judge Burns dismissed all causes of action against NCPD, which was an improper defendant, (id. at 5), dismissed Plaintiff’s § 1983 claim based on the Fourteenth Amendment because available state law remedies precluded federal relief, (id. at 7), found Younger1 abstention appropriate as to Plaintiff’s § 1983 claim based on the Fourth Amendment, (id. at 9), and declined to exercise supplemental jurisdiction over Plaintiff’s state law claims, (id. at 9). Finally, Chief Judge Burns permitted Plaintiff 45 days to file his SAC. (Id. at 10-11.) Plaintiff filed his SAC on December 18, 2019, (ECF No. 6), and the Court ordered the U.S. Marshall to effect service thereof on January 10, 2020, (ECF No. 7). Plaintiff’s SAC alleges causes of action against Individual Defendants for Fourth Amendment violations under § 1983 (Cause One) and negligence and conversion pursuant to state under § 1983 (Monell2 Claim, Cause Four) and public entity liability pursuant to state law (Cause Five). (ECF No. 6 at 5-12.) Defendants filed their Motion to Dismiss on March 4, 2020. (ECF No. 23). Plaintiff filed his Opposition on April 17, 2020. (ECF No. 24.) Defendants filed their Reply on April 23, 2020. (ECF No. 25.) On October 11, 2019, “[Individual]3 Defendants broke down Plaintiff’s fence around his house.” (ECF No. 6 at 3). Plaintiff permitted Individual Defendants to enter his house, where they arrested him. (Id.) Individual Defendants “took possession of Plaintiff’s keys” and “called Plaintiff’s girlfriend to pick up his dog.” (Id.) Plaintiff asked Individual Defendants to “lock his door to secure his residence.” (Id.) However, Individual Defendants “failed to secure Plaintiff’s house and left Plaintiff’s keys on his car.” (Id.) Individual Defendants also “possessed Plaintiff’s car” and “impounded it for a crime he was never charged with.” (Id. at 4.) The following day, when Plaintiff’s girlfriend returned to the home, she discovered that “Plaintiff’s home was looted and squatted in” and his “personal property was stolen and destroyed.” (Id.) Plaintiff alleges on information and belief that his car “has since been dispensed with in a way that renders him unable to retrieve it.” (Id.) Under Federal Rule of Civil Procedure4 12(b)(6), a motion to dismiss for failure to state a claim tests the legal sufficiency of the claims within the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The pleading standards in

2 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). 3 The Court notes that in the SAC, Plaintiff used the term “Defendants” to refer only to the individual NCPD officers named in the complaint, while the Court uses Individual Defendants to describe the same group herein. (See ECF No. 6 at 1-2.) pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Rule 8 imposes upon the plaintiff, “the obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief,’” which requires factual allegations that consist of “more than labels and conclusions, and a formulaic recitation[s] of the elements of a cause of action.” Id. at 555. To survive a motion to dismiss, the pleading in a complaint requires enough facts to state a claim to relief that is plausible on its face and not merely speculative. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Twombly, 550 U.S. at 555, 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint that only pleads facts consistent with a defendant’s liability “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Twombly, 550 U.S. at 557. A complaint should be dismissed “if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557). On the other hand, under Rule 8(a)(2), courts are hesitant to “countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 11 (2014). When the complaint contains well-pleaded factual allegations, “a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. In ruling on a motion to dismiss, the Court does not look at whether the plaintiff will “ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Twombly, 550 U.S. at 563. Under Rule 7(a), a plaintiff’s opposition to a motion to dismiss does not constitute Therapeutics, Inc., 899 F.3d 988, 1014 (9th Cir. 2018). Generally, courts dismissing a case should freely grant leave to amend. See Fed. R. Civ. P. 15(a)(2); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). However, leave to amend may be denied when “the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Schreiber Distrib., 806 F.2d at 1401 (citing Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962)). A. Younger Abstention Defendants argue this Court should abstain pursuant to Younger v. Harris, 401 U.S. 37 (1971), from reaching Plaintiff’s § 1983 claim because it is based on events that occurred during his criminal arrest and the Court previously found on November 4, 2019 that Plaintiff was awaiting trial on charges for which the arrest in this case occurred. (ECF No. 23-1 at 12.) In general, federal courts are unable to enjoin, interfere with, or encroach upon pending state law criminal proceedings that raise or implicate constitutional issues. Younger, 401 U.S. at 49. The Court in Younger considered whether a defendant from a state court prosecution could sue in federal court to enjoin the state prosecution based on a purportedly unconstitutional statute. Reiterating the long-standing, statutorily-supported national policy of permitting state courts to try criminal cases free from interference by federal courts, the Court held that “the possible unconstitutionality of a statute ‘on its face’ does not in itself justify an injunction against good faith attempts to enforce it,” particularly where the plaintiff could raise the constitutional claims in the state proceeding. Id. at 43-54. “Younger abstention involves only such interference as . . . would have the same practical effect on the state proceeding as a formal injunction.” Gilbertson v. Albright, 381 F.3d 965, 977-78 (9th Cir. 2004). Therefore, if a state criminal proceeding is ongoing, “and if the federal litigant is would interfere in a way that Younger disapproves.” Id. at 978 (noting that the three- part test from Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423 (1982) is intended to determine whether Younger applies to specific noncriminal proceedings, and therefore does not apply to criminal state proceedings); see also Samuels v. Mackell, 401 U.S. 66, 69 (1971) (“[A] federal court should not enjoin a state criminal prosecution begun prior to the institution of the federal suit except in very unusual situations, where necessary to prevent immediate irreparable injury.”). Younger requires abstention in § 1983 claims when a party can adequately litigate the constitutional issue in the state criminal proceedings, and where the federal action “would have a substantially disruptive effect upon the ongoing state criminal proceeding.” Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986). Applying this standard, the Ninth Circuit in Mann found that abstention from a § 1983 action for a Sixth Amendment right-to-counsel violation in ongoing state criminal case was appropriate where federal plaintiff could adequately address any deprivation of his right to counsel in the criminal case, because the “potential for federal-state friction [was] obvious.” Id. In contrast, in Lebbos v. Judges of Superior Court, Santa Clara Cty., 883 F.2d 810, 817 (9th Cir. 1989), the court determined abstention from a § 1983 action was not appropriate where the constitutional defense in the state court action (possible defense of racial discrimination to an unlawful detainer case) was “wholly unrelated” to § 1983 claims that certain debt collection statutes violate the due process and equal protection clauses of the Fourteenth Amendment. Id. at 812-17. Based on the lack of relationship between the state court defense and the basis for the § 1983 claim, the court did “not believe that consideration of the [§] 1983 damage claims against the private appellees [would] in any way interfere with the state court proceedings.” Id. at 817. Following the reasoning of Mann and Lebbos, abstention is not appropriate in the case at hand. The allegations in Plaintiff’s SAC concern whether Individual Defendants [Individual] Defendants’ failure to secure Plaintiff’s residence, Plaintiff’s home was looted and squatted in” and “[Individual] Defendants also possessed Plaintiff’s car . . . and impounded it for a crime he was never charged with. . . . Plaintiff . . . alleges[] that his car has since been dispensed with in a way that renders him unable to retrieve it”).) It follows that any property that was lost or destroyed would not be used to prosecute Plaintiff in any ongoing criminal case, and so Plaintiff would not likely bring a Fourth Amendment challenge regarding the alleged behavior as a defense therein. Defendant, in moving this Court to abstain pursuant to Younger has not submitted any evidence or argument to show that the constitutionality of the alleged behavior has been or is likely to become an issue in the ongoing state criminal case, or that the litigation of Plaintiff’s § 1983 claim will enjoin or cause friction with the state court.5 On the record before the Court, it is not evident how the instant § 1983 action is likely to enjoin the state criminal case. See Herrera v. City of Palmdale, 918 F.3d 1037, 1049 (9th Cir. 2019) (holding that the district court erred in abstaining from Fourth Amendment-based § 1983 claims where “[a]lthough the allegations of Fourth Amendment violations [arose] from investigations conducted in the course of the state enforcement action, [the court did not] see how determinations on such claims by the federal court would intrude in the ongoing state nuisance proceeding in [an] impermissible way”). This Court therefore RECOMMENDS DENYING Defendants’ motion to abstain based on Younger, and will accordingly address Defendants’ remaining arguments. / / / / / / 5 Defendants primarily rely on the District Court’s screening order, finding abstention appropriate, and argue that the SAC does not overcome that finding. (ECF No. 23-1 at 12-13.) In doing so, Defendants Defendants argue the SAC’s first through third causes, which Plaintiff brings against Individual Defendants should be dismissed pursuant to Rule 8(a)(2) because Plaintiff has engaged in “group pleading” and therefore has failed to state the “role each [I]ndividual [D]efendant actually had in causing [Plaintiff] harm.” (ECF No. 23-1 at 11.) Individual Defendants note Plaintiff alleges his injuries were inflicted by all eleven6 Individual Defendants, collectively, but does not identify the unlawful actions of any particular officer. (Id.) In response, Plaintiff contends, under the holding from Wakefield v. Thompson, 177 F.3d 1160 (9th Cir. 1999), he should be “given an opportunity through discovery to identify” the actions of each officer in relation to Plaintiff’s purported injuries. (ECF No. 24 at 8.) In evaluating a complaint under Rule 12(b)(6), a court must determine whether the pleadings contain enough factual content to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678-79. Personal liability under § 1983 demands that a plaintiff plead “that each [g]overnment-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676; see also Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (pleading standards governing § 1983 claims necessarily compel the plaintiff to “set forth specific facts as to each individual defendants’” contributory role in the resulting constitutional injury). Causation can be established if the pleadings illustrate that the state actor did “an affirmative act, participate[d] in another’s affirmative acts, or omit[ted] to perform an act which he [was] legally required to do that cause[d] the deprivation of which [the] complaint is made” or set “in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). Pardus, 551 U.S. 89, 93-94 (2007). A complaint must give the opposing party fair notice of the claims against them as well as detail the grounds upon which each claim rests. Id. (citing Twombly, 550 U.S. at 555). The notice requirement is imperative as it “enable[s] the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011); see also Ortez v. Washington County, State of Or., 88 F.3d 804, 810 (9th Cir. 1996) (to survive a motion to dismiss, a plaintiff must “allege overt acts with some degree of particularity such that his claim is set forth clearly enough to give defendants fair notice” of the allegations against them). Pleadings that lack an affirmative link between the injury and the conduct of the defendant will not state a cause of action under § 1983. See Rizzo v. Goode, 423 U.S. 362, 370-72 (1976). Plaintiff’s SAC does not satisfy Rule 8 because it fails to identify which of the eleven Individual Defendants performed each act in the complaint and thereby does not allege affirmative action by any of the defendants. In the first place, Plaintiff describes the Individual Defendants as “the agents or employees or co-conspirator of National City, the National City Police Department[], and each of the remaining defendants.” (ECF No. 6 at 2.) However, Plaintiff never identifies facts to support any of these relationships. See, e.g., Crowe v. Cty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (to show conspiracy, a plaintiff “must show ‘an agreement or meeting of the minds to violate constitutional rights,’ and ‘[t]o be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy’”). After initially listing each of the Individual Defendants by name, Plaintiff never again distinguishes between them. (See id.) Instead, Plaintiff groups all Individual Defendants together and alleges all of them did each alleged action. Plaintiff alleges, for example, “[Individual] Defendants arrested Plaintiff,” “[Individual] Defendants took possession of Plaintiff’s keys,” and “[Individual] Defendants called Plaintiff’s girlfriend to pick up his dog.” (Id. at 3.) Rather, reason dictates that specific, unidentified officers performed each of the described acts. This logical conclusion is further supported by Plaintiff’s Opposition, in which he explains that he needs discovery to ascertain the actions of the individual officers, and that “the most Plaintiff could do is name the officers who were part of the arrest.” (See ECF No. 24 at 8.) But “a police officer is not liable simply because he was present at a search.” Young v. City of Visalia, 687 F. Supp.2d 1141, 1153 (E.D. Cal. 2009) (citing Motley v. Parks, 432 F.3d 1072, 1082 (9th Cir. 2005)). When all defendants are lumped together in factual allegations, such pleading does not provide the defendants with notice of the basis for allegations. Eunice v. U.S., No. 12cv1635-GPC(BGS), 2013 WL 756168, at *3 (S.D. Cal. Feb. 26, 2013) (collecting cases). Furthermore, an officer may not be held personally liable based only upon “membership in a group without a showing of individual participation in unlawful conduct.” Jones v. Williams, 297F.3d 930, 935 (9th Cir. 2002) (citing Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996)). By failing to identify the factual basis for each Individual Defendants’ personal participation in the alleged violation of Plaintiff’s Fourth Amendment rights, Plaintiff has failed to state a claim against any Individual Defendant. See, e.g., Gen-Probe, Inc. v. Amoco Corp., 926 F. Supp. 948, 960-61 (S.D. Cal. 1996) (finding dismissal proper where complaint accused “all defendants of all types of infringement,” but it was “unclear which of the five is accused of which type of infringement” because complaint “lumps together . . . multiple defendants in one broad allegation”); Gauvin v. Trombatore, 682 F. Supp. 1067, 1070-71 (N.D. Cal. 1988) (plaintiff’s complaint “lumped” all defendants “together in a single, broad allegation” without “stating with any specificity how each private defendant allegedly deprived [plaintiff] of a right secured by the Constitution” when plaintiff “allege[d] the conduct of each of the defendants deprived [him] of the opportunity ‘to secure meaningful and gainful employment’”); Better Homes Realty, Inc. v. Watmore, Case No. 3:16-cv-01607-BEN-MDD, 2017 WL 1400065, at *4 (S.D. Cal. Apr. Application Litig., No. 11-MD-02250-LHK, 2011 WL 4403963, at *8 (N.D. Cal. Sept. 20, 2011) (finding to survive a motion to dismiss, complaint must “identify what action each Defendant took that caused Plaintiffs’ harm, without resort to generalized allegations against Defendants as a whole” so that defendants can respond to allegations); cf. Adobe Systems Incorporated v. Blue Source Group, Inc., No. 14-cv-02147-LHK, 2015 WL 5118509, at *964 (N.D. Cal. Aug 31, 2015) (finding that complaint that included group pleading was not deficient where a few specific allegations identified the individual defendant’s wrongdoing). Plaintiff’s reliance on Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999), does nothing to address the deficiencies noted above. (See ECF No. 24 at 8.) The Ninth Circuit in Wakefield evaluated the propriety of a district court’s dismissal of the plaintiff’s § 1983 claim against an unidentified correctional officer, sued as “John Doe,” based on the observation that “Doe defendants are not favored in the Ninth Circuit.” Id. at 1162-64. The Court reiterated its earlier holding that “where the identity of the alleged defendant is not known prior to the filing of a complaint, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.” Id. at 1163 (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), quotation cleaned up). Having determined that the plaintiff’s use of a Doe defendant was an insufficient reason to dismiss the case, the court then considered whether the complaint would be dismissed on other grounds, even if the correctional officer were identified. Id. The issue discussed in Wakefield simply has no bearing on the sufficiency of Plaintiff’s factual allegations in this case to sue Individual Defendants. Plaintiff has not sued unidentified Doe defendants so that he might discover the deeds of each before naming allegedly culpable defendants in a future amended complaint; without have done. See Fed. R. Civ. P. 12. In so doing, he has failed to identify the factual allegations against any of the Individual Defendants, and his causes of action against them should be dismissed. For the reasons stated above, this Court RECOMMENDS Defendants’ motion to dismiss for failure to state a claim be GRANTED as to Plaintiff’s first, second and third causes of action. C. § 1983 Claim Against Individual Defendants for Fourth Amendment Violations To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the constitution or laws of the United States was violated; and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff alleged in his Complaint that Individual Defendants unreasonably seized both his home and his car in violation of the Fourth Amendment. (ECF No. 6 at 5-6.) Defendants here do not challenge whether they were state actors, but instead argue they are protected by qualified immunity, because Plaintiff has not adequately pled any Fourth Amendment violations and Individual Defendants did not violate any clearly established right. (ECF No. 23-1 at 15-18.) As discussed in section IV.B., supra, Plaintiff’s failure to plead facts showing that any of the Individual Defendants personally participated in the alleged violation renders the SAC inadequate against all Defendants. Nevertheless, the Court considers whether Plaintiff’s allegations are sufficient to state a claim against any hypothetical defendant. “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The doctrine therefore protects state actors from liability in a § 1983 lawsuit, “as long as their actions could one—focused on “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When applicable, qualified immunity completely insulates state actors from § 1983 litigation. Anderson, 483 U.S. at 646. To achieve qualified immunity’s primary purpose of resolving meritless “insubstantial claims” brought against state actors prior to discovery, immunity questions should be resolved as early as possible in litigation. Pearson, 555 U.S. at 231-32 (quoting Anderson, 483 U.S. at 640, n.2). When evaluating a case wherein the defendant asserts the defense of qualified immunity, courts examine (1) whether the state actor’s alleged misconduct violated a constitutional right and (2) whether the right was clearly established at the time of the alleged misconduct. Id. at 232. The defense of qualified immunity fails only if the court finds both that a constitutional right has been violated and that the right was clearly established at the time. Id. While the “Constitution’s ‘elaboration from case to case’” favors considering whether there was a constitutional violation before determining whether the same was clearly established, (id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)), courts have discretion to consider these elements in any order they choose, (id. at 236). 1. Plaintiff’s Fourth Amendment claims Plaintiff’s complaint asserts Fourth Amendment violations based on two different factual bases: (1) “by failing to secure the premises [(Plaintiff’s house)] after taking control, [Individual] Defendants unreasonably seized them and everything within them,” and (2) “[b]y taking possession, impounding, and dispensing with the car, [Individual] Defendants unreasonably seized it.” (ECF No. 6 at 6.) Individual Defendants dispute both theories, noting the facts alleged into the SAC pertaining to the failure to secure Plaintiff’s home do not qualify as a seizure under the Fourth Amendment and Plaintiff has not pled the “absence of all legitimate reasons to seize and impound [Plaintiff’s] persons, houses, papers, and effects, against unreasonable searches and seizures.” United States v. Jones, 565 U.S. 400, 404 (2012). The Fourteenth Amendment applies the protections of the Fourth Amendment to the states. Mapp v. Ohio, 367 U.S. 643, 654-55 (1961). The problem addressed by the Fourth Amendment is the “‘misuse of power,’ . . . not the accidental effects of otherwise lawful government conduct.” Brower v. Cty. of Inyo, 489 U.S. 593, 596 (1989) (quoting Byars v. United States, 273 U.S. 28, 33 (1927)). The constitutional protection of the Fourth Amendment applies solely to searches and seizures inflicted by government actors. United States v. Jacobsen, 466 U.S. 109, 113 (1984). “A ‘seizure’ of property occurs when there is some meaningful interference with an individual's possessory interests in that property.” Id.; see also Soldal v. Cook County, Ill., 506 U.S. 56, 69 (1992) (holding that when law enforcement officers assisted a landlord in dispossessing the plaintiff of his mobile home by “physically tearing [the home] from its foundation and towing it to another lot,” those actions constituted a seizure, stressing how the actions clearly interfered with the plaintiff’s possession of his home). Once property has been seized, the question becomes whether the defendants “acted reasonably under the Fourth Amendment.” Lavan v. City of Los Angeles, 693 F.3d 1022, 1030 (9th Cir. 2012). a. Failure to secure the house The Court first turns to Plaintiff’s claim that Individual Defendants’ failure to secure his house was an unreasonable seizure of his home and everything therein that violated the Fourth Amendment. (See ECF No. 6 at 6.) Defendants argue that the alleged actions do not describe a seizure for Fourth Amendment purposes, as failing to lock Plaintiff’s home did not interfere “with his possessory interest in his house.” (ECF No. 23-1 at 16.) The specific facts relevant to the Individual Defendants’ actions vis a vis Plaintiff’s lock the door to his house as they were arresting him, (4) Defendants failed to secure Plaintiff’s house, and (5) when Plaintiff’s girlfriend asked at least one Individual for the key to lock up, that person or people refused. (See ECF No 6 at 3-4.) Plaintiff’s other allegations, causally connecting Individual Defendants’ actions to third party looting, (id. at 4 (alleging “because of Defendants’ failure to secure Plaintiff’s residence, Plaintiff’s home was looted and squatted in”)), or asserting the legal significance of various actions, (id. at 5 (“Defendants took control of Plaintiff’s residence by removing him from the premises and taking his keys.”) and 6 (“By failing to secure the premises after taking control, Defendants unreasonably seized them and everything within them.”), are not factual allegations, but legal conclusions based on the facts presented, which the Court is not required to assume are true. See Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). Though Plaintiff does not address Defendant’s position that these pleaded facts fail to describe a Fourth Amendment seizure, he cited in the SAC to Soldal, for the proposition that the Fourth Amendment protects “property being seized ‘to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on whim, for no reason at all.’” (ECF No. 6 at 5.) The Court in Soldal considered whether a police officer’s facilitation of the disconnection and relocation of the plaintiff’s mobile home was a seizure for Fourth Amendment purposes. Soldal, 506 U.S. at 61-62. The Court rejected the appellate court’s determination that while technically a seizure, the seizure had not implicated the Fourth Amendment, “because the officers had not entered Soldal’s house, rummaged through his possessions, or . . . interfered with his liberty in the course of the eviction.” Id. at 62-63. The Court explained that “the Amendment [unmistakably] protects property as well as privacy,” despite the appellate court’s belief that privacy and liberty were the amendment’s primary interest, Soldal added little to the law regarding when a seizure occurs—minimal discussion was required for the Court to determine that disconnecting a mobile home from its foundation and towing it away met the Jacobsen standard by interfering with Soldal’s possession of his home. See id. at 61-62 (citing Jacobsen, 466 U.S. at 113). Though it addressed the seizure of a person rather than property, the Court finds the case of Brower v. County of Inyo, 489 U.S. 593 (1989), instructive on what constitutes a seizure. In Brower, the Court considered whether police officers’ use of a barricade to stop a fleeing driver constituted a seizure, where the law stated that a person is seized “[w]henever an officer restrains the freedom of a person to walk away.” Id. at 594-95 (quoting Tennessee v. Garner, 471 U.S. 1, 7 (1985)). Justice Scalia, writing for the majority, rejected the lower court’s finding that there had been no seizure because the fleeing driver’s voluntary failure to stop, rather than the road block, had terminated his movement. Id. at 595. Justice Scalia explained that “[v]iolation of the Fourth Amendment requires an intentional acquisition of physical control” and that “the taking itself must be willful.” Id. at 596 (emphasis added). The Court determined the creation of the roadblock was a seizure because it is “enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.” Id. at 599 (emphasis added). The Court distinguished the scenario of the roadblock from a hypothetical scenario in which a fleeing driver simply loses control of the vehicle and crashes, because unlike the roadblock, the officer’s attempt to stop the driver by pursuing him with flashing lights does not stop the hypothetical fleeing driver, his unintended loss of control does. Id. at 597. Plaintiff’s alleged facts do not demonstrate that Individual Defendants took possession of his Plaintiff’s home and its contents or dispossessed him of it. (See ECF No. 6.) Instead he alleges that Individual Defendants “failed to secure his home,” or left it unlocked, and presumably other unidentified third parties, not the defendants, lawfulness of which Plaintiff does not challenge here) prevented Plaintiff from returning to his home. Further, Plaintiff could have sent his girlfriend or another agent to safeguard his home. The stated facts simply do not describe officers’ substantial interference with Plaintiff’s possession of his home or other property therein by any willful action intended for that purpose as Brower requires. Accordingly, this Court concludes that Plaintiff has failed to allege facts showing that any officers violated Plaintiff’s Fourth Amendment rights by failing to secure his home and the property therein, and therefore the Court need not ascertain whether their actions were reasonable. See Calvin v. Whatcom Cty., No. C07-273RSL, 2010 WL 724679, at *3 (W.D. Wash. Feb. 26, 2010) (“[T]he Court cannot discern how a violation of [the right to be free from unreasonable seizure] is plausibly supported by plaintiff's allegations that defendants failed to adequately lock plaintiff's residence and that third parties later burglarized and/or vandalized his residence.”). In reaching this conclusion, the Court notes a distinction drawn by previous courts in § 1983 actions, that the issue of whether specific conduct violates the constitution is distinct from whether it is otherwise wrong or may justify tort liability. See, e.g., Baker v. McCollan, 443 U.S. 137, 142 (1979) (“Respondent's claim is that his detention in the Potter County jail was wrongful. Under a tort-law analysis it may well have been. The question here, however, is whether his detention was unconstitutional.”); Jessop v. City of Fresno, 936 F.3d 937, 942 (9th Cir. 2019) (“We recognize that the allegation of any theft by police officers— most certainly the theft of over $225,000—is deeply disturbing. Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, would not ‘be “clear to a reasonable officer.”’”). In support of his argument that Individual Defendants are liable for the subsequent actions of third parties, Plaintiff cites to several cases for the principle that “[t]he obligation to safeguard property is well-established.” (ECF No. 24 at 24.) property while executing a search warrant. See San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 971-75 (9th Cir. 2005) (considering whether officer’s order to seize every item with indicia of Hells Angels affiliation, which required the seizure and destruction of “truckloads” of property was unreasonable when the search warrant authorized the seizure of any such indicia); Mena v. City of Simi Valley, 226 F.3d 1031, 1041 (9th Cir. 2000) (considering whether officers “callously and needlessly ransacking [plaintiffs’] home and destroying property” during execution of search warrant violated the Fourth Amendment); Bergquist v. County of Cochise, 806 F.2d 1364, 1369 (9th Cir. 2000) (remanding to lower court to consider whether officer’s destruction of plaintiffs’ property was reasonably necessary to the execution of a search warrant, as required to be reasonable under the Fourth Amendment). Since Plaintiff does not allege that Individual Defendants personally destroyed or seized his property, these cases are inapplicable. Similarly, Plaintiff cites to several cases in his Opposition regarding the state- created danger doctrine. (ECF No. 24 at 9.) Defendants accurately point out that Plaintiff’s cited cases are again inapplicable to the facts and claims now before the Court. (ECF No. 25 at 9.) The application in those cases of the principle that an officer may violate an individual’s “interest in personal security under the fourteenth amendment” by acting with deliberate indifference regarding the plaintiff’s physical safety, has no bearing on the Fourth Amendment claims Plaintiff raises here. See Wood v. Ostrander, 879 F.2d 583, 588 (9th Cir. 1989) (holding that where facts showed an officer arrested the driver, impounded his car, and left the female passenger by the side of the road in a high crime area, plaintiff had shown disregard to the passenger’s safety amounting to deliberate indifference); L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992) (explaining that the “danger-creation” exception applies to the general rule that “members of the public have no right [under the Fourteenth Amendment] to sue state Penilla v. City of Huntington Park, 115 F.3d 707, 709-710 (9th Cir. 1997) (discussing the state-created doctrine in the context of claim that officers violated the Fourteenth Amendment by depriving the decedent of his life without due process of law when after determining he was in medical distress, officers cancelled the ambulance that had be dispatched to assist him, and locked decedent in his home, alone and out-of-view); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061-62 (9th Cir. 2006) (analyzing the plaintiff’s claim that the defendant “violated her Fourteenth Amendment right to substantive due process by placing her in a known danger with deliberate indifference to her personal, physical safety”); Johnson v. City of Seattle, 474 F.3d 634, 641 (9th Cir. 2007) (finding the “the [plaintiffs] have failed to offer evidence that the [d]efendants engaged in affirmative conduct that enhanced the dangers the [plaintiffs] exposed themselves to” and so they had not stated a due process violation); Henry A. v. Willden, 678 F.3d 991, 1002 (9th Cir. 2012) (applying rule that “[t]he State can also be held liable under the Fourteenth Amendment's Due Process clause for failing to protect an individual from harm by third parties ‘where the state action “affirmatively place[s] the plaintiff in a position of danger,” that is, where state action creates or exposes an individual to a danger which he or she would not have otherwise faced’”) (internal citations omitted). Plaintiff has offered no authority that this rule extends to property rather than personal safety, or applies at all outside of the Fourteenth Amendment context. Because Plaintiff’s § 1983 cause of action against Individual Defendants relies on the Fourth Amendment’s protection of property and not the Fourteenth Amendment’s protection of personal safety, these cases have no applicability to this cause of action. b. Impound of Plaintiff’s car Plaintiff alleges that “[b]y taking[] possession, impounding, and dispensing with [his] car, Defendants unreasonably seized it.” (ECF No. 6 at 6.) He further alleges that because Plaintiff did not allege facts that establish “the absence of all legitimate reasons to seize and impound his car,” as would be necessary to permit “more than the mere possibility of misconduct.” (ECF No. 23-1 at 16 (quoting Twombly, 550 U.S. at 555), ECF No. 25 at 7-8 (same).) Plaintiff concedes that “seizing a car and not charging a person with a crime does not, alone violate the Fourth Amendment,” and that such facts do not state a cause of action. (ECF No. 24 at 14.) Plaintiff instead argues that Defendants violated the Fourth Amendment when they “dispense[d] with the car so Plaintiff cannot retrieve it or the property in it.”7 (Id.) Defendants counter that Plaintiff has not pled facts sufficient to show that the alleged disposal was unreasonable because he has not pled that it was unjustified. (ECF No. 25 at 7.) While the continued impound or deprivation of lawfully seized property may violate the Fourth Amendment if unjustified, Plaintiff has not pled facts alleging that the disposal of his vehicle was not legally justified such that it violated the Fourth Amendment. See Brewster v. Beck, 859 F.3d 1194, 1197 (9th Cir. 2017) (finding the impound of a vehicle is a seizure, which is only reasonable so long as “the government’s justification holds force”). Plaintiff simply states the legal conclusion that the “Defendants unreasonably seized [his car]” without stating the facts that are alleged to have made the treatment of the car unreasonable. (See ECF No. 6 at 6.) While Plaintiff alleges that “Defendants’ seizures of Plaintiff’s home and personal property are unrelated to any criminal prosecution or warrant. . . .[and] concern the Defendants’ failure to secure Plaintiff’s property in the course of an arrest,” this statement does not appear to pertain to Plaintiff’s car, which Plaintiff alleges was impounded rather than 7 Plaintiff states in his argument in opposition that a court ordered the car to be released back, however his SAC does not mention this. (See ECF No. 24 at 14.) The Court does not consider this fact stated a Fourth Amendment claim pertaining to the seizure of his car. 2. While there is no clearly established law that law enforcement’s failure to secure a person’s property after arrest violates the Fourth Amendment, the law is clear that unjustified deprivation of a lawfully seized property violates the Fourth Amendment. Because Plaintiff has failed to adequately plead that Individual Defendants violated his rights under the Fourth Amendment, the Court’s recommendation to grant Defendants’ motion to dismiss does not require this Court to determine whether Individual Defendants would be entitled to qualified immunity from a properly pled cause of action. However, such a determination is relevant to Defendant’s position that the Court should dismiss Plaintiff’s federal claims without leave to amend. (See ECF No. 23-1 at 22 (asking the Court to dismiss without leave to amend); ECF No. 25 at 13 (same)); see also Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (“[W]e have repeatedly held that ‘a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.’”). The Court will therefore discuss whether the law regarding Individual Defendant’s alleged Fourth Amendment violations is clearly established such that qualified immunity would not bar Plaintiff’s claims, if properly pled. For a state actor to be held liable for a constitutional violation under § 1983, clearly established law must have provided the defendant with fair warning that the conduct in question was unconstitutional. Jessop, 936 F.3d at 940 (citing Tolan v. Cotton, 572 U.S. 650, 656 (2014)). There need not be a case directly on point, “but existing precedent must have placed the . . . constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). The key question is whether the “contours of the right [are] sufficiently clear that a reasonable official would understand that what officer’s failure to secure Plaintiff’s home would be an unreasonable seizure that violated the Fourth Amendment. Therefore, Individual Defendants would not have been on notice that such conduct would violate the Fourth Amendment, and the claim would be barred by qualified immunity. This Court finds that the alleged facts regarding officers’ failure to secure Plaintiff’s home do not describe a Fourth Amendment violation, and certainly not a violation of clearly established law, which further supports dismissal of Plaintiff’s first cause of action. On this basis, the Court also RECOMMENDS Plaintiff not be permitted leave to amend a § 1983 claim regarding officers’ failure to secure his home. However, Ninth Circuit case law from 2017 held, in the context of an extended vehicle impound, that “[a] seizure is justified under the Fourth Amendment only to the extent that the government’s justification holds force. Thereafter, the government must cease the seizure or secure a new justification.” Brewster, 859 F.3d at 1197; see also Jessop, 936 F.3d at 941 (“Although the City Officers seized Appellants’ money and coins pursuant to a lawful warrant, their continued retention—and alleged theft—of the property might have been a Fourth Amendment seizure because ‘[t]he Fourth Amendment doesn’t become irrelevant once an initial seizure has run its course.’”) (quoting Brewster, 859 F.3d at 1197). It is therefore possible that, should Plaintiff sufficiently plead a § 1983 cause of action based on a state actor’s continued unjustified seizure or disposal of Plaintiff’s car, the claim could survive qualified immunity. This further supports dismissal of Plaintiff’s first cause of action, but this Court RECOMMENDS that Plaintiff be permitted leave to amend his § 1983 claim based on the extended impound and disposal of his vehicle. D. Plaintiff’s Monell Claim The parties disagree about whether Plaintiff’s allegations support a § 1983 claim against the City of National City under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 Defendants’ alleged constitutional violations “were proximately cause by National City’s deliberate indifference to the maintenance, training, and control of NCPD, and the injuries and constitutional violations set forth herein were proximately caused by the customs, practices, policies, and decisions of the Defendant National City, including inadequately training and supervising Deputies regarding the reasonable and proper securing of premises and proper investigation of persons when responding to individuals.” (ECF No. 6 at 10-11.) Plaintiff further alleges, on information and belief, that “the details of this incident has been revealed to the authorized policymakers within National City, and that such policymakers directly know that the seizure of Plaintiff’s property was not justified,” and yet the policymakers have deliberately chosen to approve and endorse Individual Defendants’ actions. (Id. at 10.) Defendants argue the Monell claim fails because Plaintiff’s SAC fails to allege a constitutional violation against National City and generally lack facts sufficient to support a Monell claim, and instead relies on an unsupported recitation of the elements of a Monell claim. (ECF No. 23-1 at 19-20; ECF No. 25 at 10.) A municipal entity may be named as a defendant in a § 1983 lawsuit if the municipality cause the plaintiff’s injury. Monell, 436 U.S. at 690-91. However, such an entity may not be held liable for an individual employee or agent’s action on a theory of respondeat superior or vicarious liability. Id. at 691-93. “A § 1983 plaintiff can establish municipal liability in three ways: (1) the municipal employee committed the constitutional violation pursuant to an official policy; (2) the employee acted pursuant to a longstanding practice or custom; and (3) the employee functioned as a final policymaker.” Barone v. City of Springfield, Oregon, 902 F.3d 1091, 1107 (9th Cir. 2018) (citing Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004)). To state a Monell claim against National City, Plaintiff must allege facts demonstrating that (1) he was deprived of a constitutional right, (2) the municipality had a policy, (3) the policy evinces deliberate 654 F.3d 892, 900 (9th Cir. 2011) (quoting Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir.1997)). After Iqbal, to survive a motion to dismiss for failure to state a claim, a plaintiff alleging a Monell violation must “(1) identify the challenged policy/custom; (2) explain how the policy/custom is deficient; (3) explain how the policy/custom caused the plaintiff harm; and (4) reflect how the policy custom amounted to deliberate indifference, i.e. show how the deficiency involved was obvious and the constitutional injury was likely to occur.” Koistra v. Cty. of San Diego, CASE NO. 16cv2539-GPC(AGS), 2017 WL 4700073, at *7 (S.D. Cal. Oct. 19, 2017) (quoting Young v. City of Visalia, 687 F.Supp.2d 1155, 1163 (E.D. Cal. 2010)). Monell claims, governed by Rule 8, require a plaintiff to plead more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). “While legal conclusions can provide the framework for a complaint, they must be supported by factual allegations.” Id. at 679. A cognizable Monell claim must contain factual allegations to support causation between the municipal program and the plaintiff’s injury. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“the fact that the departmental regulations might have authorized” an unconstitutional policy was irrelevant to the plaintiff’s § 1983 claim where Plaintiff’s constitutional rights were not, in fact, violated). 1. Plaintiff’s Monell claim fails because Plaintiff has not pled a constitutional violation. Because this Court has found that Plaintiff has not pled a constitutional violation, this Court also RECOMMENDS Defendants’ motion to dismiss the Fourth Cause of Action alleging municipal liability against National City be GRANTED. Atayde v. Napa State Hospital, No. 1:16-cv-00398-DAD-SAB, 2016 WL 4943959, at *5 (E.D. Cal. Sept. 15, 2016) (citing Hansen v. Black, 855F.2d 642, 646 (9th Cir. 1989)). By reasoning of the departmental regulations might have authorized [unconstitutional actions] is quite beside the point.” 475 U.S. 796, 799 (1986) (emphasis in original). 2. Plaintiff has not alleged sufficient facts to support his Monell claim. While Plaintiff’s failure to demonstrate the first element of a Monell claim, as discussed above, alone justifies dismissal, the Court will briefly discuss the sufficiency of Plaintiff’s allegations as to other elements of his municipal liability claim to inform any potential third amended complaint. Plaintiff’s allegations in the instant case essentially recite the elements for a municipal violation based on theories of policy and custom, failure to train, and ratification of conduct by a decision maker. (See ECF No. 6 at 8-12; ECF No. 24 at 15 (arguing that Plaintiff has adequately pled that National City has a policy or custom by stating that “National City ‘knew their[sic] officers were engaging in unlawful seizures of arrestees’ homes and property’ and has ‘policies or customs of permitting the wrongs set forth above, by deliberate indifference to widespread police abuses, failing and refusing to fairly and impartially investigate, discipline or prosecute peace officers who commit acts of unlawful seizure, each ratified and approved by National City through NCPD.’”).) Plaintiff’s SAC does not satisfy the post-Iqbal pleading requirements. Each of the allegations Plaintiff makes are conclusory and not accompanied by facts which might permit the Court to infer that National City caused any constitutional violation that might entitle Plaintiff to relief. See, e.g., Koistra, 2017 WL 4700073, at *8 (finding plaintiff’s Monell claim was “merely present[ed] a recitation of elements of Monell causes of action based on policy, practice or custom, and failure to train and supervise and [did] not provide any supporting facts,” where pleadings in complaint were very similar to those in this case). E. Fifth Cause of Action The Court has not yet addressed Plaintiff’s fifth cause of action, based on state through fourth causes of action, the Court also RECOMMENDS the District Court exercise its discretion to DISMISS Plaintiff’s fifth cause of action without prejudice. 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all claims over which it has original jurisdiction.”); United Mine Workers of Am. V. Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well.”). To summarize the above recommendations, the Court recommends that the District Judge grant Defendants’ Motion to Dismiss. In reaching this recommendation, the Court specifically recommends that: (1) Plaintiff’s first cause of action pursuant to § 1983 violations based on violations of the Fourth Amendment be dismissed for failure to state a claim, and that the dismissal of this cause of action be with leave to amend only in a manner consistent with this Report and Recommendation; (2) Plaintiff’s second and third causes of action based on state law be dismissed for failure to state a claim with leave to amend; (3) Plaintiff’s fourth cause of action for Monell liability be dismissed for failure to state a claim with leave to amend only in a manner consistent with this this Report and Recommendation; and (4) Plaintiff’s fifth cause of action based on state law be dismissed pursuant to the Court’s discretion not to exercise supplemental jurisdiction. For the foregoing reasons, it is RECOMMENDED that the District Court issue an Order: (1) approving and adopting this Report and Recommendation; and (2) GRANTING Defendants’ Motion to Dismiss Plaintiff’s SAC as summarized above. IT IS ORDERED that no later than August 14, 2020, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned “Objections to Report and Recommendation.” IT Is FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than August 28, 2020. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir. 1991). Dated: July 31, 2020 = _ 2 FF D Honorable Michael S. Berg United States Magistrate Judge