1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 IBRAHIM NIMER SHIHEIBER, 7 Case No. 21-cv-00609-JCS Plaintiff, 8 v. ORDER GRANTING MOTION TO 9 DISMISS WITH LEAVE TO AMEND OFFICER HERNANDEZ BADGE #4039, 10 et al., Re: Dkt. No. 15 11 Defendants.
12 13 I. INTRODUCTION 14 Plaintiff Ibrahim Shiheiber, proceeding pro se, brings this civil rights action based on an 15 encounter with officers of the San Francisco Police Department that occurred on January 24, 2019. 16 He names Officer Hernandez1 and the City of San Francisco as defendants. Plaintiff alleges that 17 Officer Hernandez subjected him to an unlawful detention and search and used excessive force on 18 him, in violation of his Fourth Amendment rights. He further alleges that when he later attempted 19 to file a citizen’s complaint against the officer, he was sent on a “wild goose chase,” suggesting a 20 custom or practice on the part of the City of discouraging citizens from filing complaints against 21 the police, giving rise to liability on the part of the City under Monell v. Dep’t of Soc. Servs., 436 22
23 1 At the hearing, Plaintiff explained that there were two officers at the scene with the surname Hernandez – the one described as the “female officer” in the complaint and the male officer who is 24 alleged to have used excessive force against him. The badge number of the former is #4309 and of the latter is #307. Plaintiff clarified that he inadvertently named the female Officer Hernandez 25 (#4309) as a defendant whereas he intended to sue the male Officer Hernandez (#307). Defendants’ counsel represented that the name of the male officer is Brett Hernandez. Plaintiff 26 will be permitted to amend the complaint to name the correct officer. In describing the factual allegations, the Court’s references to “Officer Hernandez” are to the male Officer Hernandez, 27 #309. Like Plaintiff, the Court will refer to Officer Hernandez, #4309, as “the female officer” to 1 U.S. 658, 691–92 (1978) as to the excessive force claim. The City brings a Motion to Dismiss 2 (“Motion”) seeking dismissal of the Monell claim. A hearing on the Motion was held on 3 November 5, 2021. For the reasons stated below, the Motion is GRANTED.2 4 II. BACKGROUND3 5 A. The Amended Complaint 6 In the Amended Complaint, which is the operative complaint, Plaintiff alleges that on 7 January 24, 2019, he noticed a police vehicle in his rear-view mirror as he parked in front of a 8 sandwich shop in San Francisco. Amended Complaint ¶ 6. He exited his own car and was 9 walking around the back of it when an officer in the police vehicle called to him to “come here.” 10 Id. ¶ 7. Plaintiff said, “no thank you” and the officer responded, “then you are being detained.” 11 Id. Plaintiff understood the statement as a command and immediately put his hands in the air. Id. 12 The officers got out of the vehicle and surrounded Plaintiff. Id. 13 According to Plaintiff, when he asked why he was being detained, a female officer told 14 him it was because he was parked in a red zone. Id. ¶ 8. When he offered to move the car, 15 however, Officer Hernandez put his hand on Plaintiff’s chest and pushed him while the officer’s 16 partner cornered Plaintiff from the other side. Id. Plaintiff said, “don’t touch me” to Officer 17 Hernandez, who responded “oh, I am going to touch you.” Id. ¶ 9. Officer Hernandez told 18 Plaintiff he was going to pat him down for weapons and Plaintiff told the officer that he did not 19 consent to the search. Id. When Plaintiff “turned [his] attention to the left away from the officer,” 20 the officer grabbed Plaintiff, who ended up on the ground. Id. ¶ 10. Plaintiff told the officer to 21 “stop” and that he was hurting Plaintiff. Id. “Fearing for [his] life,” Plaintiff “freed [himself] 22 from the threat of eminent [sic] danger” and he was “then attacked again and slammed into the 23 street.” Id ¶ 11. Plaintiff alleges that Officer Hernandez then kneeled on his back as he put 24 handcuffs on Plaintiff and that Plaintiff was in severe pain. Id. Plaintiff complained that the 25 handcuffs were “hella tight.” Id. 26 2 The parties have consented to the jurisdiction of a United States magistrate judge pursuant to 28 27 U.S.C. § 636(c). 1 More officers arrived on the scene and Plaintiff was put in a police car. Id. ¶ 14. Plaintiff 2 heard one of the officers say, “did you get him good? Too bad we got here late. If I was here I 3 would have dipped him on his head.” Id. Plaintiff alleges that “[t]he comments of the arriving 4 officers suggest a custom or practice by the City of San Francisco Police Officers to [use] 5 excessive force against citizens.” Id. ¶ 15. Plaintiff alleges that he was detained in the police car 6 for half an hour while the officers search his fiancé’s car and that he was given a parking ticket. 7 Id. 16. 8 According to Plaintiff, “[a]fter the incident [he] initially went to 850 Bryant [Street], San 9 Francisco, to the first floor window and told them [he] would like to file a [complaint] against an 10 officer.” Id. 18. Plaintiff alleges that “[t]he two officers on duty told [him] to try another location 11 and stated they ‘don’t do that here.’” Id. Plaintiff then went to the Third Street Station, where he 12 was “dismissed and directed to go back to 850 Bryant.” Id. When he returned there, “two white 13 female employees treated [him] like a vagrant.” Id. Plaintiff alleges that “[t]he disrespect was 14 blatant as they offered no information or assistance of any kind and actualy [sic] said ‘you 15 probably deserved what you got.’ ” Id. ¶ 20. Then “[a]n African American officer or clerk 16 leaned over and quietly advised [Plaintiff] that [he] should go to the Department of 17 Accountability, which [he] did immediately [sic] where [he] was treated with respect which all 18 human beings deserve.” Id. ¶ 21.4 19 Plaintiff alleges that “[b]eing turned away at multiple locations by the City of San 20 Francisco officials and sent on a wild [goose] chase from station to station suggests a custom or 21 practice to deter and discourage complaints being filed against police.” Id. ¶ 19. He further 22 alleges that “[t]he whispering of information [by the clerk who directed Plaintiff to the Office of 23 Accountability] suggests she was going against custom or practice to provide [Plaintiff] such 24 information.” Id. ¶ 22. According to Plaintiff, even though he had been “victimized” he was 25 “treated with total disregard and disrespect” and was “ denied information at two separate stations 26 and therefore denied [his] right to file charges.” Id. ¶ 23. He contends “[t]his was a Lack of 27 1 Reasonable Diligence by multiple personel [sic] employed by the City of San Francisco.” Id. 2 In his Amended Complaint, Plaintiff asserts three claims against Officer Hernandez under 3 42 U.S.C. § 1983 and the Fourth Amendment, for unlawful detainment, excessive force and illegal 4 search. He also asserts the Fourth Amendment claim for excessive force (Claim Two) against the 5 City. 6 B. The Motion 7 The instant motion is brought only by the City. In the Motion, the City argues that Plaintiff 8 has not alleged facts sufficient to establish municipal liability under 42 U.S.C. § 1983 and Monell. 9 Motion at 3-4. Plaintiff opposed the Motion on the basis of his allegations that he was denied 10 assistance in filing a citizen’s complaint, indicating there is an “unspoken code or policy” by the 11 City of “denying victims of police adequate avenues to seek justice against police.” Opposition at 12 4.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 IBRAHIM NIMER SHIHEIBER, 7 Case No. 21-cv-00609-JCS Plaintiff, 8 v. ORDER GRANTING MOTION TO 9 DISMISS WITH LEAVE TO AMEND OFFICER HERNANDEZ BADGE #4039, 10 et al., Re: Dkt. No. 15 11 Defendants.
12 13 I. INTRODUCTION 14 Plaintiff Ibrahim Shiheiber, proceeding pro se, brings this civil rights action based on an 15 encounter with officers of the San Francisco Police Department that occurred on January 24, 2019. 16 He names Officer Hernandez1 and the City of San Francisco as defendants. Plaintiff alleges that 17 Officer Hernandez subjected him to an unlawful detention and search and used excessive force on 18 him, in violation of his Fourth Amendment rights. He further alleges that when he later attempted 19 to file a citizen’s complaint against the officer, he was sent on a “wild goose chase,” suggesting a 20 custom or practice on the part of the City of discouraging citizens from filing complaints against 21 the police, giving rise to liability on the part of the City under Monell v. Dep’t of Soc. Servs., 436 22
23 1 At the hearing, Plaintiff explained that there were two officers at the scene with the surname Hernandez – the one described as the “female officer” in the complaint and the male officer who is 24 alleged to have used excessive force against him. The badge number of the former is #4309 and of the latter is #307. Plaintiff clarified that he inadvertently named the female Officer Hernandez 25 (#4309) as a defendant whereas he intended to sue the male Officer Hernandez (#307). Defendants’ counsel represented that the name of the male officer is Brett Hernandez. Plaintiff 26 will be permitted to amend the complaint to name the correct officer. In describing the factual allegations, the Court’s references to “Officer Hernandez” are to the male Officer Hernandez, 27 #309. Like Plaintiff, the Court will refer to Officer Hernandez, #4309, as “the female officer” to 1 U.S. 658, 691–92 (1978) as to the excessive force claim. The City brings a Motion to Dismiss 2 (“Motion”) seeking dismissal of the Monell claim. A hearing on the Motion was held on 3 November 5, 2021. For the reasons stated below, the Motion is GRANTED.2 4 II. BACKGROUND3 5 A. The Amended Complaint 6 In the Amended Complaint, which is the operative complaint, Plaintiff alleges that on 7 January 24, 2019, he noticed a police vehicle in his rear-view mirror as he parked in front of a 8 sandwich shop in San Francisco. Amended Complaint ¶ 6. He exited his own car and was 9 walking around the back of it when an officer in the police vehicle called to him to “come here.” 10 Id. ¶ 7. Plaintiff said, “no thank you” and the officer responded, “then you are being detained.” 11 Id. Plaintiff understood the statement as a command and immediately put his hands in the air. Id. 12 The officers got out of the vehicle and surrounded Plaintiff. Id. 13 According to Plaintiff, when he asked why he was being detained, a female officer told 14 him it was because he was parked in a red zone. Id. ¶ 8. When he offered to move the car, 15 however, Officer Hernandez put his hand on Plaintiff’s chest and pushed him while the officer’s 16 partner cornered Plaintiff from the other side. Id. Plaintiff said, “don’t touch me” to Officer 17 Hernandez, who responded “oh, I am going to touch you.” Id. ¶ 9. Officer Hernandez told 18 Plaintiff he was going to pat him down for weapons and Plaintiff told the officer that he did not 19 consent to the search. Id. When Plaintiff “turned [his] attention to the left away from the officer,” 20 the officer grabbed Plaintiff, who ended up on the ground. Id. ¶ 10. Plaintiff told the officer to 21 “stop” and that he was hurting Plaintiff. Id. “Fearing for [his] life,” Plaintiff “freed [himself] 22 from the threat of eminent [sic] danger” and he was “then attacked again and slammed into the 23 street.” Id ¶ 11. Plaintiff alleges that Officer Hernandez then kneeled on his back as he put 24 handcuffs on Plaintiff and that Plaintiff was in severe pain. Id. Plaintiff complained that the 25 handcuffs were “hella tight.” Id. 26 2 The parties have consented to the jurisdiction of a United States magistrate judge pursuant to 28 27 U.S.C. § 636(c). 1 More officers arrived on the scene and Plaintiff was put in a police car. Id. ¶ 14. Plaintiff 2 heard one of the officers say, “did you get him good? Too bad we got here late. If I was here I 3 would have dipped him on his head.” Id. Plaintiff alleges that “[t]he comments of the arriving 4 officers suggest a custom or practice by the City of San Francisco Police Officers to [use] 5 excessive force against citizens.” Id. ¶ 15. Plaintiff alleges that he was detained in the police car 6 for half an hour while the officers search his fiancé’s car and that he was given a parking ticket. 7 Id. 16. 8 According to Plaintiff, “[a]fter the incident [he] initially went to 850 Bryant [Street], San 9 Francisco, to the first floor window and told them [he] would like to file a [complaint] against an 10 officer.” Id. 18. Plaintiff alleges that “[t]he two officers on duty told [him] to try another location 11 and stated they ‘don’t do that here.’” Id. Plaintiff then went to the Third Street Station, where he 12 was “dismissed and directed to go back to 850 Bryant.” Id. When he returned there, “two white 13 female employees treated [him] like a vagrant.” Id. Plaintiff alleges that “[t]he disrespect was 14 blatant as they offered no information or assistance of any kind and actualy [sic] said ‘you 15 probably deserved what you got.’ ” Id. ¶ 20. Then “[a]n African American officer or clerk 16 leaned over and quietly advised [Plaintiff] that [he] should go to the Department of 17 Accountability, which [he] did immediately [sic] where [he] was treated with respect which all 18 human beings deserve.” Id. ¶ 21.4 19 Plaintiff alleges that “[b]eing turned away at multiple locations by the City of San 20 Francisco officials and sent on a wild [goose] chase from station to station suggests a custom or 21 practice to deter and discourage complaints being filed against police.” Id. ¶ 19. He further 22 alleges that “[t]he whispering of information [by the clerk who directed Plaintiff to the Office of 23 Accountability] suggests she was going against custom or practice to provide [Plaintiff] such 24 information.” Id. ¶ 22. According to Plaintiff, even though he had been “victimized” he was 25 “treated with total disregard and disrespect” and was “ denied information at two separate stations 26 and therefore denied [his] right to file charges.” Id. ¶ 23. He contends “[t]his was a Lack of 27 1 Reasonable Diligence by multiple personel [sic] employed by the City of San Francisco.” Id. 2 In his Amended Complaint, Plaintiff asserts three claims against Officer Hernandez under 3 42 U.S.C. § 1983 and the Fourth Amendment, for unlawful detainment, excessive force and illegal 4 search. He also asserts the Fourth Amendment claim for excessive force (Claim Two) against the 5 City. 6 B. The Motion 7 The instant motion is brought only by the City. In the Motion, the City argues that Plaintiff 8 has not alleged facts sufficient to establish municipal liability under 42 U.S.C. § 1983 and Monell. 9 Motion at 3-4. Plaintiff opposed the Motion on the basis of his allegations that he was denied 10 assistance in filing a citizen’s complaint, indicating there is an “unspoken code or policy” by the 11 City of “denying victims of police adequate avenues to seek justice against police.” Opposition at 12 4. In its Reply, the City contends Plaintiff’s argument fails because isolated and sporadic 13 incidents are insufficient to establish a policy or practice and he has not identified any right that 14 was violated by the alleged unhelpfulness of the City employees. Reply at 2-3. In any event, the 15 City asserts, any claim Plaintiff might have had based on interference with his right to lodge a 16 citizen’s complaint is moot because the allegations make clear that Plaintiff was ultimately 17 successful in filing his claim. Id. at 3 (citing Hernandez v. City of Napa, 781 F.Supp.2d 975, 1003 18 (N.D. Cal. 2011)). 19 III. ANALYSIS 20 A. Legal Standards Under Rule 12(b)(6) 21 A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure 22 for failure to state a claim on which relief can be granted. “The purpose of a motion to dismiss 23 under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. 24 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a plaintiff’s burden at the pleading stage 25 is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that a “pleading which 26 sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing 27 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 1 takes “all allegations of material fact as true and construe[s] them in the light most favorable to the 2 non-moving party.” Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 3 Dismissal may be based on a lack of a cognizable legal theory or on the absence of facts that 4 would support a valid theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 5 1990). A complaint must “contain either direct or inferential allegations respecting all the material 6 elements necessary to sustain recovery under some viable legal theory.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 562 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 8 1106 (7th Cir. 1984)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation 9 of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 10 (quoting Twombly, 550 U.S. at 555). “[C]ourts ‘are not bound to accept as true a legal conclusion 11 couched as a factual allegation.’” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 12 265, 286 (1986)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of 13 ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) 14 (alteration in original). Rather, the claim must be “‘plausible on its face,’” meaning that the 15 plaintiff must plead sufficient factual allegations to “allow[] the court to draw the reasonable 16 inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. 17 at 570). 18 B. Discussion 19 Under Monell, a municipality cannot be held liable for constitutional injuries inflicted by 20 its employees on a theory of respondeat superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 21 691 (1978). “Instead, it is when execution of a government’s policy or custom, whether made by 22 its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, 23 inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694. A 24 plaintiff seeking to establish municipal liability under section 1983 may do so in one of three 25 ways: 1) the plaintiff may demonstrate that a municipal employee committed the alleged 26 constitutional violation “pursuant to a formal governmental policy or longstanding practice or 27 custom which constitutes the standard operating procedure of the local governmental entity;” 2) 1 an official with “final policy-making authority and that the challenged action itself thus constituted 2 an act of official government policy;” or 3) the plaintiff may demonstrate that “an official with 3 final policy-making authority ratified a subordinate’s unconstitutional decision or action and the 4 basis for it.” Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992). 5 Here, Plaintiff attempts to state a claim based on a longstanding policy or practice of 6 making it difficult to hold police accountable for use of excessive force against citizens. The 7 Supreme Court has recognized that a municipality may be held liable on the basis of an 8 unconstitutional policy if the plaintiff can “prove the existence of a widespread practice that, 9 although not authorized by written law or express municipal policy, is ‘so permanent and well 10 settled as to constitute a “custom or usage” with the force of law.’ ” City of St. Louis v. Praprotnik, 11 485 U.S. 112, 127 (1988) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970)). 12 Plaintiff’s allegations, however, relate only to his own experience of being subjected to rude 13 behavior when he tried to make a citizen’s complaint before being referred to the correct 14 department by an African-American employee who spoke “quietly.” These allegations are not 15 sufficient to raise a plausible inference of a longstanding policy or practice under Monell. See 16 Lozano v. Cty. of Santa Clara, No. 19-CV-02634-EMC, 2019 WL 6841215, at *18 (N.D. Cal. 17 Dec. 16, 2019) (dismissing Monell claim based on custom and practice on the pleadings because 18 the plaintiff had not alleged that any other person was subjected to similar treatment). Similarly, 19 an isolated comment by an officer who arrived on the scene after the alleged use of force by 20 Officer Hernandez about the force the other officer would have used on Plaintiff, while troubling 21 if true, is not sufficient to establish a policy or custom under Monell. 22 Nor has Plaintiff alleged facts showing that the alleged comment and rude conduct was a 23 reflection of a custom or policy that caused the use of excessive force by Officer Hernandez. See 24 McDade v. West, 223 F.3d 1135, 1141 (9th Cir. 2000) (no Monell liability where the plaintiff 25 “failed to demonstrate a ‘direct causal link’ to any municipal policy or custom”) (quoting City of 26 Canton v. Harris, 489 U.S. 378, 385 (1989)). Moreover, any possible inference that such a 27 custom prevents citizens from filing complaints with the Department of Accountability and 1 experience is the only specific example of the alleged custom or policy) successfully filed such a 2 || complaint. 3 || IV. CONCLUSION 4 For the reasons stated above, the Court GRANTS the Motion and dismisses the Monell 5 claim asserted against the City for failure to state a claim under Rule 12(b)(6). Plaintiff may file 6 an amended complaint to address the deficiencies identified herein, namely, that he has named the 7 || wrong officer defendant and has not adequately alleged his Monell claim. Plaintiff's amended 8 || complaint shall be filed no later than December 10, 2021. Plaintiff, who is not represented by 9 || counsel, is encouraged to contact the Federal Pro Bono Project’s Pro Se Help Desk for assistance 10 as he continues to pursue this case. Lawyers at the Help Desk can provide basic assistance to 11 parties representing themselves but cannot provide legal representation. Although in-person 12 || appointments are not currently available due to the COVID-19 public health emergency, Plaintiff 5 13 may contact the Help Desk at (415) 782-8982 or FedPro@sfbar.org to schedule a telephonic 14 appointment. 3 15 IT IS SO ORDERED. 16
= 17 Dated: November 5, 2021 5 J Cao J PH C. SPERO 19 ief Magistrate Judge 20 21 22 23 24 25 26 27 28