1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9
10 CHAD SOLIS, Case No. 20-cv-03912-NC 11 Plaintiff, ORDER GRANTING 12 DEFENDANTS’ MOTION TO v. DISMISS; GRANTING LEAVE 13 TO AMEND CITY OF SUNNYVALE, et al., 14 Re: Dkt. No. 14 Defendants. 15 16 17 Before the Court is Defendants’ motion to dismiss plaintiff Chad Solis’ complaint. 18 See Dkt. No. 14, MTD. In this civil rights action, plaintiff Chad Solis sues defendants City 19 of Sunnyvale, Chief of the Sunnyvale Department of Public Safety Phan Ngo, and police 20 officers Joel Lockwood, Kelly Nguyen, Matty Maxwell, and Joseph Meadows 21 (Defendants) for detaining him, applying excessive force, and forcefully taking his 22 apartment keys to search his apartment without consent. See Dkt. No. 1, Compl. Solis 23 asserts that Defendants’ actions violated the Fourth Amendment of the United States 24 Constitution, as well as California’s Tort Claims Act, and California’s Bane Act. See id. 25 The central issues are (1) whether there was a sufficient nexus between Ngo’s own conduct 26 and the constitutional violations of his subordinates, subjecting him to supervisorial 27 liability under 42 U.S.C. § 1983, and (2) whether the City of Sunnyvale is subject to 1 move to dismiss Solis’ claims against Chief Ngo and the City of Sunnyvale, and seek to 2 dismiss Solis’ claims for relief brought under the California Bane Act, and Article I, 3 section 13 of the California Constitution. See MTD. 4 The Court finds that Solis’ complaint fails to allege a sufficient nexus between 5 Ngo’s own conduct and the alleged constitutional violations of his subordinates. The 6 Court also finds that the complaint fails to sufficiently allege Monell liability against the 7 City of Sunnyvale. Accordingly, the Court GRANTS Defendants’ motion to dismiss with 8 LEAVE TO AMEND. 9 I. Background 10 A. Factual Allegations 11 The following factual allegations are assumed to be true for purposes of this order. 12 See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). On September 13, 13 2019, Chad Solis heard noises outside his apartment around 1:00 a.m., and went outside 14 his unit where he saw his neighbor Billy Pratt. Compl. ¶ 16. After speaking with him, 15 Pratt informed Solis that he recently dealt with discrimination, harassment, and excessive 16 force from the Sunnyvale Police Department. Id. ¶ 17. During this conversation, 17 uniformed Sunnyvale Police Department officers, Lockwood, Meadows, Maxwell, and 18 Nguyen, arrived at the apartment complex in response to a call about “loud noises and 19 concern about a ‘struggle to open an apartment door.’” Id. ¶ 18. Once the officers 20 “aggressively” approached, Pratt and Solis headed back toward their apartment units. Id. ¶ 21 19. One of the police officers, Defendant Lockwood, ordered Solis to step away from his 22 door, and Solis immediately complied. Id. ¶ 20. Several police officers separated Pratt 23 and Solis for questioning, and officers Maxwell and Meadows questioned Solis about the 24 events leading up to their arrival. Id. ¶¶ 21–22. Solis informed Defendants that he had a 25 conversation with Pratt, and that Pratt informed him of the recent harassment he dealt with 26 from the police. Id. ¶ 22. 27 Then Defendant Lockwood ordered his field officer trainee, Meadows, to take 1 search Solis’ home. Id. Solis saw that the other officers already handcuffed Pratt and 2 acted “aggressively” with him, which made Solis fearful that Defendants would harm him. 3 Id. ¶ 24. Solis informed Lockwood, Meadows, Maxwell, and Nguyen that they did not 4 have a warrant, and he declined to give them his key or access to his apartment unit. Id. ¶ 5 25. Lockwood immediately became agitated and “aggressively informed Solis” that “we 6 don’t need to” have a warrant, and “I’m not asking, give me the key.” Id. ¶ 26. Solis 7 persisted refusing consent to a search of his apartment, and asked why the officers had 8 probable cause. Id. ¶ 27. Lockwood claimed that “he needed to perform a security check 9 of Solis’ unit,” even though Solis believed there was no need for a safety check of his 10 home. Id. ¶ 28. Lockwood already searched Pratt’s apartment and noted debris, which 11 explained the origins of the loud noises complained of in the initial police call. Id. 12 Lockwood threatened Solis and informed him that he would be sent to jail if he did 13 not comply and give his key to the officers. Id. ¶ 29. Solis responded to Lockwood’s 14 threats by stating that any arrest would be wrongful. Id. ¶ 30. Lockwood however, denied 15 that the arrest would be wrongful, and demanded Solis’ apartment key once more stating 16 that Solis would go to jail if he refused. Id. ¶ 31. Once Solis asked for further 17 clarification, Lockwood used force to obtain Solis’ key. Id. ¶ 32. Lockwood grabbed 18 Solis’ arm and shoved him against the hallway wall, struck him in the throat with his hand, 19 and placed Solis’ left wrist in a wrist lock. Id. ¶ 33. Then Lockwood “yanked Solis away 20 from the wall,” and Meadows, Maxwell, and Nguyen threw Solis onto the floor. Id. ¶ 34. 21 All four officers then dogpiled on Solis, and each officer contorted a different body part. 22 Id. ¶ 35. Nguyen placed her knee and bodyweight on Solis’ back while grabbing his right 23 arm, Lockwood bent Solis’ left leg at the knee and cranked it toward his thigh, and 24 Maxwell and Meadows “forcefully maneuver[ed]” and handcuffed Solis while they pinned 25 him down on the ground. Id. ¶¶ 35–36. At no time did Solis attempt to strike the 26 Defendant officers or any other City officer during this encounter. Id. ¶ 43. 27 Defendants forcefully took Solis’ keys from him, pat searched him, and placed him 1 overnight for about six hours. Id. ¶ 38. The Santa Clara County District Attorney’s office 2 charged Solis with Penal Code § 415 Disturbing the Peace and Penal Code § 148(a)(1) 3 Resisting/Delaying Officers, but did not file any other criminal charges. Id. ¶ 41. Upon 4 release from jail, Defendants returned Solis his apartment keys, and upon return to his 5 apartment, Solis found his apartment door slightly ajar. Id. ¶¶ 39–40. Solis alleges that 6 Defendants entered his apartment unit after arresting him, even though they did not obtain 7 a warrant or Solis’ express permission to do so. Id. ¶ 40. Solis suffered humiliation, 8 emotional distress, and severe pain and physical injury, including abrasions to his arms. 9 Id. ¶ 42, 58–59. 10 Defendant Chief Phan Ngo is and was employed as the Chief of the Sunnyvale 11 Department of Public Safety. Id. ¶ 15. As the highest position in the Sunnyvale Police 12 Department, Solis alleges that Ngo is responsible for hiring, screening, training, retention, 13 supervision, discipline, counseling, and control of all department employees and their 14 agents. Id. Ngo is allegedly charged with administering the policies for the department’s 15 safety officers, and is responsible for the promulgation of the policies and procedures of 16 the department. Id. Ngo was not present during the events at issue in the complaint. See 17 generally Compl. The City of Sunnyvale employs the defendant officers. Id. ¶ 10. Solis 18 alleges, upon information and belief, that the City maintains the policies, practices, and 19 customs of “performing false arrests, unreasonable and warrantless searches and seizures, 20 and using excessive force.” Id. 21 B. Procedural History 22 On June 14, 2020, Solis filed a complaint asserting: (1) violation of the Fourth 23 Amendment under 42 U.S.C. § 1983; (2) false arrest, false imprisonment, and violation of 24 Cal. Const. art. I, § 13; (3) excessive force and unreasonable search and seizure in 25 violation of the Fourth Amendment under 42 U.S.C. § 1983; (4) municipal liability for 26 unconstitutional custom or policy under 42 U.S.C. § 1983; and (5) violation of California’s 27 Bane Act, Cal. Civ. Code § 52.1. See Compl. ¶¶ 61–95. Defendants now move to dismiss 1 second claim against all parties, and the fourth claim against the City of Sunnyvale. See 2 MTD. The motion is fully briefed and the Court vacated the hearing set for October 7, 3 2020. See Dkt. Nos. 14, 20, 23, 27. All parties have consented to the jurisdiction of a 4 magistrate judge. See Dkt. Nos. 6, 19. 5 II. Legal Standard 6 A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal 7 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Under 8 Rule 8(a), a complaint must include a short and plain statement showing that the pleader is 9 entitled to relief. See Fed. R. Civ. P. 8(a). Although a complaint need not allege detailed 10 factual allegations, it must contain sufficient factual matter, accepted as true, to “state a 11 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 12 (2007). The Court need not accept as true “allegations that are merely conclusory, 13 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. 14 Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). A claim is facially plausible when it “allows 15 the court to draw the reasonable inference that the defendant is liable for the misconduct 16 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The claim also “must contain 17 sufficient allegations of underlying facts to give fair notice and to enable the opposing 18 party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 19 To properly plead a claim under Monell, it is insufficient to allege simply that a 20 policy, custom, or practice exists that caused the constitutional violations. AE v. County of 21 Tulare, 666 F.3d 631, 636–37 (9th Cir. 2012). Pursuant to the more stringent pleading 22 requirements set forth in Iqbal, 556 U.S. at 670, and Twombly, 550 U.S. at 553–56, a 23 plaintiff suing a municipal entity must allege sufficient facts regarding the specific nature 24 of the alleged policy, custom or practice to allow the defendant to effectively defend itself, 25 and these facts must plausibly suggest that plaintiff is entitled to relief. AE, 666 F.3d at 26 636–37 (citing Starr, 652 F.3d at 1216, which summarized new pleading standards derived 27 from Iqbal, Twombly and related Supreme Court decisions). 1 pleading could not possibly be cured by the allegation of other facts. Lopez v. Smith, 203 2 F.3d 1122, 1127 (9th Cir. 2000). 3 III. Discussion 4 Defendants move to dismiss Solis’ complaint on the following grounds: (1) the first 5 claim for relief under 42 U.S.C. § 1983 fails to state a claim against Ngo; (2) the second 6 claim under Cal. Const. art. I, § 13 is meritless; (3) the third claim for relief under 42 7 U.S.C. § 1983 fails to state a claim against Ngo; (4) the fourth claim for Monell liability 8 under 42 U.S.C. § 1983 fails to state a claim against the City of Sunnyvale; and (5) the 9 fifth claim under California’s Bane Act fails to state a claim against Ngo. See MTD. 10 The central issues before the Court are (1) whether there was a sufficient nexus 11 between Ngo’s own conduct and the constitutional violations of his subordinates, 12 subjecting him to supervisorial liability under 42 U.S.C. § 1983, and (2) whether the City 13 is subject to municipal liability under any Monell theory under 42 U.S.C. § 1983. 14 A. 42 U.S.C. § 1983 15 To state a constitutional violation under 42 U.S.C. § 1983, a plaintiff must allege 16 that: (1) the conduct complained of was committed by a person acting under color of state 17 law; and (2) the conduct violated a right secured by the Constitution or laws of the United 18 States. Gomez v. Toledo, 446 U.S. 635, 639 (1980). Here, Solis alleges constitutional 19 violations of his Fourth Amendment rights, and seeks to impose Monell liability against 20 the City of Sunnyvale. 21 Solis’ first and third constitutional claims under section 1983 assert that Defendants 22 Lockwood, Meadows, Nguyen, and Maxwell violated his Fourth Amendment rights by 23 using excessive force to conduct an unreasonable search and seizure. See Compl. ¶¶ 62, 24 77. All of Solis’ claims against Ngo allege that in his supervisory capacity as the Chief of 25 Public Safety, Ngo acted under color of law and knew, or reasonably should have known, 26 that his subordinates were engaging in unlawful conduct. See id. ¶ 65. Defendants 27 contend that this fails to state a claim against Ngo. The Court agrees. 1 1. Excessive Force 2 A Fourth Amendment excessive force claim is analyzed under an “objective 3 reasonableness standard.” Saucier v. Katz, 533 U.S. 194, 204 (2001) (citing Graham v. 4 Connor, 490 U.S. 386, 388 (1989)). The objective reasonableness standard “balance[s] the 5 ‘nature and quality of the intrusion’ against the ‘countervailing governmental interests at 6 stake.’” Green v. City & Cty. of San Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014) 7 (quoting Graham, 490 U.S. at 396). 8 The Ninth Circuit has found supervisorial liability under section 1983 where the 9 supervisor was “personally involved in the constitutional deprivation or a sufficient causal 10 connection exists between the supervisor’s unlawful conduct and the constitutional 11 violation.” Lolli v. County of Orange, 351 F.3d 410, 418 (9th Cir. 2003). “Supervisors 12 can be held liable for: 1) their own culpable action or inaction in the training, supervision, 13 or control of subordinates; 2) their acquiescence in the constitutional deprivation of which 14 a complaint is made; or 3) for conduct that showed a reckless or callous indifference to the 15 rights of others.” Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000). The 16 requisite causal connection can be established by setting in motion a series of acts by 17 others, or by knowingly refusing to terminate a series of acts by others, which the 18 supervisor knew or reasonably should have known would cause others to inflict a 19 constitutional injury.” Starr, 652 F.3d at 1207–08 (internal quotations omitted). 20 Solis’ excessive force claim is based on Defendants’ methods of obtaining Solis’ 21 key. Lockwood allegedly “grabbed Solis’ arm and shoved him against the hallway wall,” 22 and “struck Solis in the throat with his hand and then proceeded to place Solis’ left wrist in 23 a wrist lock.” Compl. ¶ 33. Then, Lockwood, Nguyen, Meadows, and Maxwell “threw 24 him onto the floor” and “dogpiled on Solis with each officer grabbing a piece of his body 25 and contorting him,” while “Nguyen placed her knee and bodyweight on Solis’ back while 26 also grabbing his right arm,” and “Lockwood bent [his] left leg at the knee and cranked it 27 towards his thigh.” Id. ¶¶ 34–35. Defendants then handcuffed Solis and transported him 1 show excessive use of force by Lockwood, Maxwell, Meadows, and Nguyen. 2 But here, Solis alleges that Ngo is liable in his supervisory capacity because he 3 acted under color of law, and “knew, or reasonably should have known that his 4 subordinates” used excessive force, and “failed to act to prevent his subordinates from 5 engaging in such conduct.” Id. ¶ 65–66. Solis’ allegations do not indicate that Ngo 6 personally participated, or engaged in his own culpable action or inaction in the training, 7 supervision or control of his subordinates. But Solis argues that there was a sufficient 8 causal connection between Ngo’s wrongful conduct, and the constitutional violation, see 9 Dkt. No. 20 at 8, Opp’n, and Ngo therefore acquiesced in the excessive force against Solis. 10 Solis merely alleges that Chief Ngo is “responsible for the hiring . . . and control of all 11 Sunnyvale Department Public Safety employees and/or agents.” Id. ¶ 15. He also alleges 12 that Ngo is “charged by law with the administration of the [Department’s] policies for its 13 safety officers,” and was “responsible for the promulgation of the policies and procedures 14 and/or allowances of the practices/customs” at issue in the complaint. Id. 15 Solis makes much of the fact that Ngo had an “extensive career in law enforcement” 16 and that Ngo’s “attempt to change the City’s internal affairs investigation process” shows 17 Ngo’s “de facto acknowledge[ment] of the need to address the internal affairs process for 18 the City.” Opp’n at 9. But Solis does not make these allegations in the complaint, so these 19 arguments are insufficient to overcome dismissal. On a motion to dismiss, the Court is 20 limited to the allegations in the operative complaint. See Lee, 250 F.3d at 688. Even if 21 they were alleged in the complaint, attempting to change the City’s Internal Affairs 22 Investigation process, alone, does not indicate knowledge of the other defendants’ 23 constitutional violations nor a deliberate indifference in preventing them. Solis does not 24 show a causal connection between Ngo’s attempts to change the City’s internal affairs 25 processes, and Ngo’s knowledge of any issues with the way his subordinate officers were 26 being trained or supervised. 27 The Court finds that Solis did not adequately allege the required causal connection 1 others, or that he knowingly failed to terminate the excessive force by his subordinate 2 officers which he knew, or reasonably should have known, would inflict constitutional 3 injury to Solis. The Court finds there is no allegation of culpable indifference against Ngo. 4 Thus, the allegations do not show that Ngo personally played a role in the constitutional 5 violations. 6 2. Unreasonable Search and Seizure 7 The Fourth Amendment prohibits unreasonable seizures. See U.S. Const. amend. 8 IV. A seizure “occurs when a law enforcement officer, through coercion, ‘physical 9 force[,] or a show of authority, in some way’ . . . communicated to a reasonable person that 10 he was not at liberty to ignore the police presence and go about his business.” Hopkins v. 11 Bonvicino, 573 F.3d 752, 773 (9th Cir. 2009) (quoting United States v. Washington, 387 12 F.3d 1060, 1069 (9th Cir. 2004)). A seizure is lawful, however, if the seizing officer has 13 reasonable suspicion of criminal activity and the seizure was “sufficiently brief and 14 minimally intrusive.” Washington, 387 F.3d at 1069. Likewise, a warrantless arrest is 15 reasonable if the officer has probable cause. See Atwater v. City of Lago Vista, 532 U.S. 16 318, 354 (2001). 17 The Fourth Amendment prohibits warrantless searches. See U.S. Const. amend. IV. 18 A “search” occurs when the government “physically occupie[s] private property for 19 purposes of obtaining information.” Patel v. City of Montclair, 798 F.3d 895, 898 (9th Cir. 20 2015) (alterations in original) (quoting United States v. Jones, 565 U.S. 400, 404 (2012)). 21 Here, Solis sufficiently alleged that the Defendant officers seized him. According 22 to Solis, Lockwood, Maxwell, Meadows, and Nguyen all used force to restrain Solis and 23 obtain his key to his apartment. See Compl. ¶ 32. Assuming these allegations as true, as 24 the Court must on a motion to dismiss, the officers’ conduct amounted to a seizure and 25 warrantless arrest. Further, Lockwood already searched Mr. Pratt’s apartment and noted 26 debris, which explained where the alleged loud noises originated, see Compl. ¶ 28, so the 27 facts alleged also indicate that the officers lacked probable cause. 1 ordered Meadows to take Solis’ house keys to perform a warrantless search of his home. 2 Id. ¶ 23. Solis’ objected for lack of a warrant, and declined to give consent in the presence 3 of Lockwood, Meadows, Maxwell, and Nguyen. Id. ¶ 25. Solis alleges that when he 4 returned from custody, “he found the door to his apartment slightly open,” and believes 5 that “the Defendants entered his apartment unit after arresting him, without his express 6 permission, and performed a warrantless search of his home.” Id. ¶ 40. Thus, the Court 7 finds that Solis sufficiently alleged unreasonable search and seizure by Lockwood, 8 Meadows, Maxwell, and Nguyen. 9 Solis’ allegations, however, do not demonstrate that Ngo is liable for violating the 10 Fourth Amendment in his supervisory capacity. As discussed above, Solis again alleges 11 that Ngo failed to prevent his subordinates from engaging in an unlawful search and 12 seizure, see id. ¶ 82, and that Ngo knew or should have known that the defendant officers 13 were engaging in these acts which deprived Solis of his constitutional rights, see id. ¶ 81. 14 Ngo was not present during the events at issue in the complaint. Similar to his excessive 15 force claim, Solis did not sufficiently allege facts that show a causal connection between 16 Ngo’s own conduct or acquiescence, and the constitutional deprivations allegedly 17 committed by his subordinates. Accordingly, the Court GRANTS Defendants’ motion to 18 dismiss Solis’ first and third claims under the Fourth Amendment against Ngo, with 19 LEAVE TO AMEND. 20 B. False Arrest and False Imprisonment Remedies 21 To state a claim for false arrest, the plaintiff must allege: “(1) the nonconsensual, 22 intentional confinement of a person, (2) without lawful privilege, and (3) for an 23 appreciable period of time, however brief.” Tekle v. United States, 511 F.3d 839, 854 (9th 24 Cir. 2007) (quoting Easton v. Sutter Coast Hosp., 80 Cal. App. 4th 485, 496 (2000)). 25 Here, Solis’ second claim seeks damages for false arrest and imprisonment under 26 article I, section 13 of the California Constitution. See Compl. ¶¶ 70–75; Cal. Const. art. I, 27 § 13. The California Constitution does not provide a direct cause of action for damages. 1 (N.D. Cal. Jan. 22, 2007). But it does provide a non-monetary remedy to plaintiffs. See 2 Cal. Const. art. I, §§ 7, 13; see also Harvey v. City of Oakland, No. 07-cv-01681-MJJ, 3 2007 WL 3035529 (N.D. Cal. Oct. 16, 2007). Although Solis did not seek declaratory or 4 injunctive relief in his complaint, he contends that his false arrest claim has merit 5 otherwise. See Opp’n at 10–11. Solis does not object to a dismissal of the monetary 6 damages portion of his false arrest claim. See id. at 11. Accordingly, the Court GRANTS 7 Defendants’ motion to dismiss Solis’ false arrest claim with LEAVE TO AMEND to 8 reflect the adequate declaratory and injunctive relief sought under article I, §§ 7,13 of the 9 California Constitution. 10 C. Monell Liability 11 Solis’ fourth claim asserts municipal liability against the City of Sunnyvale for 12 violation of due process pursuant to 42 U.S.C. § 1983. See Compl. ¶¶ 85–94. Solis argues 13 the City is liable under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) for (1) its 14 custom of employing and retaining police officers, and its policy, custom, and practice of 15 using excessive force; (2) its failure to properly train officers; and (3) ratifying such 16 policies. See Compl. ¶¶ 85–94. 17 Under section 1983, a municipality is only liable when the alleged acts implement a 18 municipal policy or custom in violation of constitutional rights. See Monell, 436 U.S. at 19 690. “Under Monell, municipalities are subject to damages under § 1983 in three 20 situations: when the plaintiff was injured pursuant to an expressly adopted official policy, a 21 long-standing practice or custom, or the decision of a final policymaker.” Ellins v. City of 22 Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013). A plaintiff may also show that “an 23 official policymaker either delegated policymaking authority to a subordinate or ratified a 24 subordinate’s decision, approving the ‘decision and the basis for it.’” Fully v. City of 25 Oakland, Cal, 47 F.3d 1522, 1534 (9th Cir. 1995). 26 Here, Solis does not allege sufficient facts to support his claim that his injury 27 resulted from either an official policy or long-standing practice or custom, the City’s 1 policies. 2 1. Policy or Long-Standing Custom 3 Generally, a municipality cannot be held liable under section 1983 “solely because 4 it employs a tortfeasor.” Monell, 426 U.S. at 691. Rather, section 1983 liability may be 5 imposed only when a municipal “policy” or “custom” is the “moving force” behind a 6 violation of federally protected rights. Id. at 694. 7 Here, Solis describes the city’s “official recognized custom, policy, and practice” as 8 unconstitutional without citing any policy statement, ordinance, regulation, or decision 9 officially adopted or promulgated by the City of Sunnyvale. Compl. ¶ 87. Absent a 10 formal policy, a plaintiff must show a “longstanding practice or custom which constitutes 11 the standard operating procedure of the local government entity.” Trevino v. Gates, 99 12 F.3d 911, 918 (9th Cir. 1996). Solis’ allegations fail here. Solis contends that the City has 13 and maintains “an unconstitutional policy, custom, and practice of using excessive force,” 14 and these “practices . . . were done with deliberate indifference to individuals’ safety and 15 rights.” Compl. ¶ 88. He also alleges that they are “affirmatively linked to and were a 16 significantly influential force behind [Solis’] injuries.” Id. ¶ 91. Solis alleges that the City 17 “made a conscious decision to forgo fixing or changing its custom, policy, or practice, as 18 evidenced by [1] retaining several officers accused of excessive force against [] fellow 19 officers and detained suspects, [2] separate lawsuits for excessive force, and [3] citizen 20 complaints for excessive force.” Opp’n at 13. 21 First, municipal liability cannot be imposed on the City of Sunnyvale solely because 22 it retained several officers accused of excessive force. See Monell, 426 U.S. at 691. 23 Second, Solis uses the existence of separate excessive force lawsuits against the City to 24 show that there is a long-standing practice or custom, but these allegations are inapplicable 25 and too attenuated to the instant case. In his complaint, Solis cites to Wowak et al. v. City 26 of Sunnyvale et al., No. 03-cv-00394, 2003 WL 23688301, in which the plaintiff, a police 27 officer employed by the City, complained of use of excessive force against employees 1 practice or custom in the City of Sunnyvale because the complained of conduct there 2 occurred over fifteen years ago. See Hunter v. Cty of Sacramento, 652 F.3d 1225, 1227– 3 28 (9th Cir. 2011) (in a case where the practice occurred between 2000–2005, and the 4 complained of incident occurred in 2005, using evidence from a former employee 5 regarding pattern of excessive force is sufficient to show practice or custom). 6 Although statements of a former employee are sufficient to show a custom or 7 practice, the allegations here are not based on recent or factually similar prior lawsuits to 8 adequately state a claim that the City engaged in a pattern of unconstitutional conduct. 9 Solis also alleged that two more recent lawsuits showed the City’s custom of excessive 10 force, Compl. ¶ 53, but neither of those lawsuits resulted in judgments against the City, let 11 alone findings that the City maintained a custom of permitting excessive force. See Bagley 12 v. City of Sunnyvale, No. 16-cv-02250-LHK, 2017 WL 344998 (N.D. Cal. Jan. 24, 2017) 13 (plaintiff alleged that Sunnyvale had a policy of tolerating and promoting the continued 14 use of excessive force, but the Court found that plaintiff failed to sufficiently allege that 15 Sunnyvale’s policies caused the constitutional violations at issue); see also Purnell v. City 16 of Sunnyvale Police Dep’t, No. 18-cv-02113-EJD, 2020 WL 3833286 (N.D. Cal. July 8, 17 2020), appeal docketed, No. 20-16447 (9th Cir. Jul. 29, 2020) (plaintiff’s allegations that 18 Sunnyvale used excessive force resulted in summary judgment finding against the 19 plaintiff). Without facts alleging that these practices amount to a long-standing practice or 20 custom, the mere existence of lawsuits against the City does not adequately show that the 21 City adopted a custom of condoning excessive force. 22 This description of prior incidents is too vague to amount to a long-standing 23 practice or custom. See Clemmons v. City of Long Beach, 379 F. App’x 639, 641 (9th Cir. 24 2010) (holding that improper custom may not be predicated on isolated or sporadic 25 incidents; it must be founded upon practices of sufficient duration, frequency and 26 consistency that the conduct has become a traditional method of carrying out policy). 27 Solis mentioned three prior incidents, in which different plaintiffs complained of excessive 1 custom. See Meehan v. Los Angeles County, 856 F.2d 102 (9th Cir. 1988). 2 Finally, Solis’ vague allegations similarly fail to show that a long-standing practice 3 exists based on a history of citizen complaints. Solis alleges that there are “twenty-four 4 citizen complaints of excessive force against [the City] from 2007–Present,” and that upon 5 information and belief, “in every single one of these reported incidents . . . [the City] has 6 deemed the complaints regarding the officers to be “Unfounded,” “Not Sustained,” 7 “Exonerated,” and as an “Inquiry Only.” Compl. ¶ 50. The Court cannot draw 8 conclusions based on the fact that the City did not pursue twenty-four citizen complaints 9 over the course of thirteen years. Accordingly, the Court disregards Solis’ arguments 10 regarding policy or long-standing custom. 11 2. Inadequacy of Training 12 Inadequacy of training may also “serve as the basis for § 1983 liability,” but only 13 when a plaintiff can prove “deliberate indifference”— a “stringent standard of fault, 14 requiring proof that a municipal actor disregarded a known or obvious consequence of his 15 action.” Board of Comm’rs of Bryan County. v. Brown, 520 U.S. 397, 410 (1997) 16 (requiring a pattern of similar constitutional violations under a failure-to-train theory). 17 This type of indifference may be shown when, for example, “policymakers are on actual or 18 constructive notice that a particular omission in their training program causes city 19 employees to violate citizens’ constitutional rights” but still choose to retain that program. 20 Connick, 563 U.S. 51, 61. “A pattern of similar constitutional violations by untrained 21 employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of 22 failure to train.” Id. (emphasis added) (quoting Bryan Cty, 520 U.S. at 409). 23 Under this theory, Solis alleges that the City’s “failure to discipline and properly 24 train any of the involved Officers is evidence of an official policy, entrenched culture, and 25 posture of deliberate indifference toward protecting citizen’s [sic] rights,” and that his 26 injuries are a “proximate result of the [City’s] failure to properly supervise and train its 27 Police Officers.” Compl. ¶ 50. Similarly here, Solis has not alleged enough facts to show 1 and he relies on merely conclusory statements. Solis generally alleges that the City’s 2 training of officers is inadequate because they train in “following through with excessive 3 force, false arrest, and the unreasonable search and seizure.” Compl. ¶ 54. He also alleges 4 that the failure to train is evident based on the Sunnyvale Public Safety Manual which 5 states “[e]mployees shall obey the lawful orders given by higher ranking officers. An 6 employee shall not refuse or fail to obey an order given by a higher ranking officer.” 7 Compl. ¶ 54. Because defendant Lockwood is Meadows’ direct supervisor, Solis alleges 8 that when Lockwood directed and ordered Meadows to search Solis’ apartment without a 9 valid warrant, he did so as a result of the “approved and department-wide policy” and 10 Meadows “followed the lead and direction of Defendant Lockwood” per their training. Id. 11 Solis concludes that this provision of the public safety manual trains officers to use 12 excessive force, at their superior’s request. See id. ¶ 55. He bases this allegation on 13 Lockwood’s position as Meadows’ direct supervisor. Id. ¶ 54. Evidence of the failure to 14 train a single employee is ordinarily insufficient to establish that the failure to train was a 15 municipality’s deliberate policy. Connick, 563 U.S. 51, 66; see Blankenhorn v. City of 16 Orange, 485 F.3d 463, 484–85 (9th Cir. 2007) (absent evidence of a ‘program-wide 17 inadequacy in training,’ any shortfall in a single officer’s training was classified as 18 negligence rather than deliberate indifference). As defendants highlight in their motion to 19 dismiss, Solis’ statements present only “mere conclusory statements.” Dkt No. 23 at 1, 20 Reply. Thus, Solis’ allegations of inadequate training are insufficient to survive a motion 21 to dismiss. 22 3. Ratification 23 On Solis’ final theory of Monell liability, ratification occurs only where “a 24 deliberate choice to follow a course of action is made from among various alternatives by 25 the official or officials responsible for establishing a final policy with respect to the subject 26 matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). “If the 27 authorized policymakers approve a subordinate’s decision and the basis for it, their 1 ratification would be chargeable to the municipality.” City of St. Louis v. Praprotnik, 485 2 U.S. 112, 127 (1988). 3 Here, Solis’ ratification argument consists solely of a mere recitation of the 4 ratification elements. He claims that the City retained officers accused of excessive force, 5 see Opp’n at 15, and because the City had “either actual or constructive knowledge of the 6 deficient policies, practices, and customs alleged in the paragraphs above,” the Defendants 7 “condoned, tolerated, and . . . thereby ratified such policies,” Compl. ¶ 89. Solis also 8 alleges that the City’s “failure to discipline [Defendants], demonstrates the . . . practice of 9 promoting tolerating and/or ratifying with deliberate indifference, the use of excessive 10 force, the fabrication or omission of facts from official reports to cover up misconduct, 11 false arrest, unreasonable searches and seizures, as well as the obedience to supervisors 12 when ordered to violate a citizen’s constitutional rights.” Id. ¶ 47. The complaint is 13 devoid of facts showing that a final policy maker made a deliberate choice to follow a 14 course of action, or that it adopted a subordinate’s decision. 15 Because Solis’ Monell claim contains conclusory legal statements rather than 16 specific facts, and contains vague and inapposite allegations of prior incidents, the Court 17 finds that the Monell claim insufficiently states a claim for relief. The Court GRANTS the 18 motion to dismiss the section 1983 claim against the City of Sunnyvale with LEAVE TO 19 AMEND. 20 D. California Civil Code § 52.1 (Bane Act) 21 California Civil Code section 52.1 makes actionable “interfere[nce] by threat, 22 intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with 23 the exercise or enjoyment by any individual or individuals of rights secured by the 24 Constitution or laws of the United States, or of the rights secured by the Constitution or 25 laws of [California].” Cal. Civ. Code § 52.1(b). “[T]he elements of [an] excessive force 26 claim under Civil Code § 52.1 are the same as under § 1983.” Chaundry v. City of Los 27 Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014). Thus, if a plaintiff cannot prove a 1 || violation either. Pryor v. City and Cty. of San Francisco, 671 F. App’x 751, 752 (9th Cir. 2 || 2017). 3 In their motion to dismiss, Defendants argue that Solis’ fifth claim under the Bane 4 || Act fails with regard to Ngo because there is no showing of threats, intimidation, coercion, 5 || or violence by Ngo. See MTD at 14. Solis does not object to dismissing this claim against 6 || Ngo. See Opp’n at 19. Accordingly, the Court GRANTS Defendants’ motion to dismiss 7 || Solis’ Bane Act claim against Ngo WITHOUT LEAVE TO AMEND. 8 || IV. Conclusion 9 The Court orders the following: 10 e The motion to dismiss all claims under 42 U.S.C. § 1983 against Ngo is 11 hereby GRANTED with LEAVE TO AMEND; 3 12 e The motion to dismiss all claims against all defendants under Cal. Const. art. I, 13 § 13 is GRANTED with LEAVE TO AMEND to reflect the adequate 14 declaratory and injunctive relief sought; 15 e The motion to dismiss Solis’ claim against the City of Sunnyvale for Monell 16 liability is hereby GRANTED with LEAVE TO AMEND; and 5 17 e The motion to dismiss the Bane Act claim against Ngo is GRANTED 5 18 WITHOUT LEAVE TO AMEND. 19 Solis’ amended complaint, if any, must be filed by November 4, 2020. The amended 20 || complaint must cure the deficiencies noted in this order and may not add any claims or 21 || parties without leave of the Court. If Solis does not file a timely amended complaint, 22 Defendants LOCKWOOD, MEADOWS, NGUYEN, and MAXWELL must answer the 23 || complaint by November 18, 2020. 24 25 IT IS SO ORDERED. 26 27 || Dated: October 21, 2020 28 United States Magistrate Judge