8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11
12 OSCAR TAPIA CARMONA, Case No. 18-CV-05232-LHK
13 Plaintiff, ORDER GRANTING IN PART WITH PREJUDICE AND DENYING IN PART 14 v. MOTION TO DISMISS
15 COUNTY OF SAN MATEO; CARLOS G. Re: Dkt. No. 29 BOLANOS; and DOES 1-100, 16 Defendants. 17
18 The Second Amended Complaint of Plaintiff Oscar Tapia Carmona, an inmate at the 19 Maguire Correctional Facility in San Mateo County, California, sues Defendants Sheriff Carlos 20 Bolanos (“Sheriff Bolanos”); San Mateo County (“the County”); and Doe Deputies 1-100 (“Doe 21 Defendants”) (collectively, “Defendants”). Before the Court is Defendants’ motion to dismiss 22 Plaintiff’s Monell claim brought under 42 U.S.C. § 1983 against Defendants, as well as Plaintiff’s 23 remaining five causes of action but only as to Sheriff Bolanos. Having considered the parties’ 24 submissions, the relevant law, and the record in this case, the Court GRANTS Defendants’ motion 25 to dismiss with prejudice as to Plaintiff’s Monell claim against Defendants, but DENIES 26 Defendants’ motion to dismiss the remaining claims against Sheriff Bolanos. 27 I. BACKGROUND A. Factual Background 1 As alleged in the Second Amended Complaint (“SAC”), on March 28, 2018 at 2 approximately 11:00 p.m., an unidentified Deputy from the San Mateo County Sheriff’s Office 3 entered Plaintiff’s cell and directed Plaintiff to remove his clothes. ECF No. 28 ¶ 11. Plaintiff, a 4 native speaker of Spanish with a limited command of English, did not understand the Deputy’s 5 instruction. Id. The Deputy left Plaintiff’s cell, and a while later, a second unidentified Deputy 6 entered Plaintiff’s cell before also leaving without incident. Id. ¶ 12. As the Deputies were 7 arriving and leaving, Plaintiff remained on his bed. Id. ¶ 13. Around 2:00 a.m., four Deputies— 8 all “yet-to-be-identified”—and a trainee Deputy stood at Plaintiff’s cell door, shut off the lights, 9 opened Plaintiff’s cell, entered Plaintiff’s cell, and began to “violently and unnecessarily assault 10 Plaintiff.” Id. ¶¶ 14-15. The SAC concedes that Plaintiff did not recognize any of these deputies, 11 but claims that “[o]n information and belief, Defendant BOLANOS participated in the violent 12 assault of Plaintiff.” Id. ¶ 15. 13 The SAC alleges that “this violent and unnecessary assault continued for what seemed like 14 forty-five minutes” and that “about thirty minutes after the initial raiding, twenty more . . . 15 Deputies showed up at Plaintiff’s cell and a camera was brought in.” Id. ¶¶ 16, 18. “Forty-five 16 minutes after the initial raiding,” Plaintiff’s waist and hands were shackled, and Plaintiff was 17 allegedly brought out of his cell naked. Id. ¶ 18. Plaintiff was forced to walk in plain view of 18 other inmates and was brought to a chair within the pod. Id. Plaintiff was then allegedly punched 19 in the head by a Deputy and thrown to the floor by around six other unidentified Deputies, who 20 began jumping on Plaintiff. Id. ¶ 19. 21 Eventually, medical personnel were called to the pod to attend to Plaintiff. Id. ¶ 20. 22 Deputies allegedly told the medical personnel that Plaintiff simply needed to be “bandaged up.” 23 Id. Medical personnel, however, recognized that Plaintiff was seriously injured and gave Plaintiff 24 immediate medical attention. Id. ¶ 21. Plaintiff underwent surgery for a broken left arm and was 25 informed that he may “never recover full mobility and will have to undergo additional surgeries.” 26 Id. 27 B. Procedural History 1 On August 27, 2018, Plaintiff filed a pro se complaint against San Mateo County Sheriff 2 Officers Does 1-99. ECF No. 1 at 1. On November 29, 2018, the Court granted Plaintiff leave to 3 proceed in forma pauperis, ECF No. 13, but dismissed the complaint with leave to amend because 4 Plaintiff failed to name an appropriate defendant for service, ECF No. 12. 5 Plaintiff obtained counsel, who entered an appearance on December 12, 2018. ECF No. 6 14. On December 27, 2018, Plaintiff (through counsel) filed a First Amended Complaint against 7 Sheriff Bolanos, the County, and Doe Defendants. ECF No. 15 (“FAC”). The FAC alleged six 8 causes of action: (1) violations of the Fourth and Fourteenth Amendments of the United States 9 Constitution; (2) intentional infliction of emotional distress; (3) assault and battery; (4) 10 negligence; (5) a Monell claim; and (6) a violation of California Civil Code § 52.1. Id. ¶¶ 26-52. 11 Plaintiff asserted his fifth cause of action (the Monell claim) against all Defendants, but asserted 12 his remaining causes of action against only Doe Defendants. Id. 13 On February 27, 2019, Defendants filed a motion to dismiss Plaintiff’s fifth cause of action 14 (the Monell claim). ECF No. 20. On March 13, 2019, Plaintiff filed an opposition. ECF No. 22. 15 On March 19, 2019, Defendants filed a reply. ECF No. 23. On May 23, 2019, the Court held that 16 “the allegations regarding the purported policies of San Mateo County are unsupported by any 17 factual pleadings.” ECF No. 27 at 6. The Court dismissed the Monell claim against the County 18 with leave to amend. Id. at 6-7. 19 The Court also dismissed with prejudice the Monell claim against Sheriff Bolanos and Doe 20 Defendants in their official capacity because Plaintiff’s claims against these defendants in their 21 official capacity were “subsumed by Plaintiff’s Monell claim under § 1983 against San Mateo 22 County, the governmental employer.” Id. at 7, 9-10. Finally, the Court dismissed Plaintiff’s 23 Monell claim against Sheriff Bolanos and Doe Defendants in their individual capacity without 24 prejudice because the allegations were “[t]hreadbare recitations of the elements of a cause of 25 action, supported by mere conclusory statements.” Id. at 8, 10-11. The Court directed Plaintiff to 26 file an amended complaint within 30 days curing the identified deficiencies and prohibited 27 1 Plaintiff from adding new causes of actions or parties without leave of the Court or stipulation of 2 the parties. Id. at 11. 3 On June 24, 2019, Plaintiff filed the SAC. ECF No. 28. The SAC only included one 4 additional allegation not present in the FAC. Plaintiff alleged that “[o]n information and belief, 5 Defendant BOLANOS participated in the violent assault of Plaintiff.” Id. ¶ 15. At the same time, 6 the SAC continued to allege that Plaintiff could not recognize or identify any of the deputies who 7 allegedly attacked him. SAC ¶¶ 11-19. The SAC also added Sheriff Bolanos as a defendant to the 8 remaining five causes of action. The County, Sheriff Bolanos, and Doe Defendants remained as 9 defendants as to the Monell claim, the fifth cause of action. 10 Despite this Court’s order dismissing with prejudice the Monell claim against Sheriff 11 Bolanos and Doe Defendants in their official capacity, the Monell claim in Plaintiff’s SAC sued 12 both Sheriff Bolanos and Doe Defendants in their official capacity again. SAC ¶ 5 (Bolanos “is 13 sued individually and in his official capacity”); SAC ¶ 41 (asserts fifth cause of action (the Monell 14 claim) against the County, Bolanos, and Does 51-100 “individually and/or in their capacities as 15 official policy-maker(s) for COUNTY OF SAN MATEO, including the San Mateo Sheriff’s 16 Office”). The Court strikes this language in the SAC that violates the Court’s prior order and 17 admonishes Plaintiff that future violations of Court orders may result in sanctions. 18 On July 1, 2019, Defendants filed a motion to dismiss Plaintiff’s Monell claim as to all 19 Defendants and the remaining five causes of action as to Sheriff Bolanos. ECF No. 29 (“Mot.”). 20 On July 15, 2019, Plaintiff filed an opposition. ECF No. 30 (“Opp.”). On July 22, 2019, 21 Defendants filed a reply. ECF No. 31 (“Reply”). 22 II. LEGAL STANDARD 23 A. Motion to Dismiss under Rule 12(b)(6) 24 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a 25 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. 26 P. 8(a)(2). A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule 27 of Civil Procedure 12(b)(6). The U.S. Supreme Court has held that Rule 8(a) requires a plaintiff 1 to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 2 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads 3 factual content that allows the court to draw the reasonable inference that the defendant is liable 4 for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ 5 but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. 6 Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). For purposes of ruling on a Rule 7 12(b)(6) motion, the Court “accept[s] factual allegations in the complaint as true and construe[s] 8 the pleadings in the light most favorable to the non-moving party.” Manzarek v. St. Paul Fire & 9 Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.2008). The Court, however, need not “assume the 10 truth of legal conclusions merely because they are cast in the form of factual allegations.” Fayer 11 v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (internal quotation marks omitted). 12 Mere “conclusory allegations of law and unwarranted inferences are insufficient to defeat a 13 motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004). 14 B. Leave to Amend 15 If the Court determines that a complaint should be dismissed, it must then decide whether 16 to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to 17 amend “shall be freely given when justice so requires,” bearing in mind “the underlying purpose 18 of Rule 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities.” 19 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation 20 marks omitted). At the same time, a court is justified in denying leave to amend when a plaintiff 21 “repeated[ly] fail[s] to cure deficiencies by amendments previously allowed.” See Carvalho v. 22 Equifax Info. Servs., LLC, 629 F.3d 876, 892 (9th Cir. 2010). 23 III. DISCUSSION 24 The SAC asserted the same six causes of action as the FAC: (1) violations of the Fourth 25 and Fourteenth Amendments of the United States Constitution; (2) intentional infliction of 26 emotional distress; (3) assault and battery; (4) negligence; (5) a Monell claim; and (6) a violation 27 of California Civil Code § 52.1. SAC ¶¶ 26-52. Defendants Sheriff Carlos Bolanos (“Sheriff 1 Bolanos”); San Mateo County (“the County”); and Doe Deputies 1-100 (“Doe Defendants”) 2 (collectively, “Defendants”) move to dismiss Plaintiff’s fifth cause of action (the Monell claim) 3 against Defendants. Defendants also move to dismiss the remaining five causes of action, but only 4 as to Sheriff Bolanos. 5 The Court first addresses Plaintiff’s Monell claim against the County, Sheriff Bolanos, and 6 Doe Defendants and then analyzes Plaintiff’s remaining causes of action against Sheriff Bolanos. 7 A. Fifth Cause of Action (the Monell Claim) 8 The Court begins by noting that Plaintiff makes a threshold argument that a “relaxed 9 pleading standard” applies to Plaintiff’s Monell claim because “Plaintiff alleges facts based on 10 ‘information and belief.’” Opp. at 8-9. This argument, however, was thoroughly analyzed and 11 rejected in the Court’s previous order. ECF No. 27 at 4-5. Indeed, Plaintiff’s arguments here are 12 near-verbatim to those raised and rejected in the prior round of briefing. Compare Opp. at 8-9, 13 with ECF No. 22 at 7. The arguments are equally meritless here, as the Ninth Circuit has squarely 14 addressed the pleading requirements for Monell claims in the wake of Twombly and Iqbal. The 15 Ninth Circuit has held that allegations cannot merely state the elements of a cause of action and 16 that instead, factual allegations must plausibly suggest an entitlement to relief. AE ex rel. 17 Hernandez v. Cty. of Tulare, 666 F.3d 631, 636-37 (9th Cir. 2012) (noting that Twombly and Iqbal 18 “appl[y] to Monell claims and should govern future pleadings”); Starr v. Baca, 652 F.3d 1202, 19 1216 (9th Cir. 2011), cert. denied, 566 U.S. 982 (holding “allegations in a complaint or 20 counterclaim may not simply recite the elements of a cause of action” and that “factual allegations 21 that are taken as true must plausibly suggest an entitlement to relief”). 22 Numerous districts courts in the Ninth Circuit have also acknowledged as much and held 23 that previous decisions authorizing a lower pleading standard for Monell claims are no longer 24 valid after Twombly and Iqbal. See, e.g., Canas v. City of Sunnyvale, 2011 WL 1743910, at *5 25 (N.D. Cal. Jan. 19, 2011) (holding that cases that applied the Ninth Circuit’s “bare allegation” 26 standard “no longer are controlling in the post-Iqbal/Twombly era”); Young v. City of Visalia, 687 27 F. Supp. 2d 1141, 1148 (E.D. Cal. 2009) (“In light of Iqbal, it would seem that the prior Ninth 1 Circuit pleading standard for Monell claims (i.e. ‘bare allegations’) is no longer viable.”). 2 Accordingly, Plaintiff’s assertion that a relaxed pleading standard applies here contravenes 3 established Ninth Circuit precedent, which acknowledges the impact of Twombly and Iqbal on the 4 ability to plead a viable Monell claim. 5 Having determined that Twombly and Iqbal fully apply to the case at hand, the Court now 6 turns to the substance of Plaintiff’s Monell claim. 7 1. The County 8 It is well-established that a local government may not be sued under a theory of vicarious 9 liability for injuries inflicted by its employees or agents. Monell v. Dep’t of Social Servs. of City 10 of N.Y., 436 U.S. 658, 691 (1978). Instead, under Monell, a municipality may only be held liable 11 under § 1983 when “(1) the constitutional tort was the result of a longstanding practice or custom 12 which constitutes the standard operating procedure of the local government entity; (2) the 13 tortfeasor was an official whose acts fairly represent official policy such that the challenged action 14 constituted official policy; or (3) an official with final policy-making authority delegated that 15 authority to, or ratified the decision of, a subordinate.” Price v. Sery, 513 F.3d 962, 966 (9th Cir. 16 2008). “Additionally, in ‘limited circumstances,’ the failure to train municipal employees can 17 serve as the policy underlying a Monell claim.” Inman v. Anderson, 294 F. Supp. 3d 907, 920 18 (N.D. Cal. 2018) (quoting Bd. of the Cty. Comm’rs v. Brown, 520 U.S. 397, 407 (1997)). 19 Furthermore, “a plaintiff must demonstrate that the government’s official policy or custom 20 was the ‘moving force’ responsible for the infliction of the plaintiff’s injuries.” Id. (quoting 21 Monell, 436 U.S. at 694). “A policy or custom is considered a ‘moving force’ behind a 22 constitutional violation if both causation-in-fact and proximate causation can be established.” Id. 23 (quotation omitted). 24 Here, Plaintiff’s Monell claim against the County runs headlong into the identical problems 25 previously recognized in the Court’s prior order. See ECF No. 27 at 5-7. Again, Plaintiff vaguely 26 alleges that “the acts and/or omissions alleged in the Complaint herein are indicative and 27 representative of a repeated course of conduct by members of Defendant COUNTY and are 1 tantamount to a custom, policy or repeated practice of condoning and tacityl [sic] encouraging the 2 abuse of police authority on inmates under their custody.” SAC ¶ 41. Plaintiff also alleges that 3 there were “customs, policies and/or practices which included, but were not limited to, the failure 4 to adequately or appropriately hold officers accountable for their misconduct, the failure to 5 properly and fairly investigate complaints about officers’ misconduct, the failure to enact or adopt 6 policies to ensure adequate and/or appropriate oversight of officers to prevent continuing 7 violations of the rights of inmates.” Id. ¶ 44. 8 Plaintiff’s Monell claim against the County fails because Plaintiff has not adequately 9 alleged that “the constitutional tort was the result of a longstanding practice or custom which 10 constitutes the standard operating procedure of the local government entity.” See Price, 513 F.3d 11 at 966. Although Plaintiff must identify the “specific nature” of the challenged custom or policy, 12 AE, 666 F.3d at 637, Plaintiff’s assertions lack factual allegations that would distinguish them 13 from the “formulaic recitation of a cause of action’s elements” considered insufficient in Twombly, 14 see 550 U.S. at 555. In a similar case, the Ninth Circuit found as inadequate pleadings that 15 “lacked any factual allegations regarding key elements of the Monell claims, or, more specifically, 16 any facts demonstrating that [plaintiff’s] constitutional deprivation was the result of a custom or 17 practice of the [defendant] or that the custom or practice was the ‘moving force’ behind 18 [plaintiff’s] constitutional deprivation.” Dougherty v. City of Covina, 654 F.3d 892, 900-01 (9th 19 Cir. 2011). “Practice or custom means any permanent, widespread, well-settled practice or custom 20 that constitutes a standard operating procedure of the defendant.” Hunter v. Cty. of Sacramento, 21 652 F.3d 1225, 1235 (9th Cir. 2011). Here, as in Dougherty, Plaintiff fails to allege any facts that 22 show that the alleged customs were the official, established customs constituting a standard 23 operating procedure of the County. 24 Likewise, in White v. County of Los Angeles, the plaintiff claimed that it was Los Angeles 25 County’s custom to, inter alia, refuse to “supervise, reprimand, and/or discipline law enforcement 26 officers/deputies who engage in misconduct.” 2011 WL 13127545, at *3 (C.D. Cal. Apr. 14, 27 2011). However, the White court rejected plaintiff’s claim as conclusory because the plaintiff 1 “allege[d] no facts showing that the County actually ha[d] any such policies, practices, or 2 customs.” Id.; see also Duenas v. Cty. of Imperial, 2015 WL 12656291, at *4 (S.D. Cal. Mar. 9, 3 2015) (holding that a complaint “falls short of the requirements for pleading a Monell claim” 4 because plaintiffs set forth a speculative list of various policies but no “allegations of underlying 5 facts”). 6 Indeed, here, the SAC alleged a veritable laundry list of customs such as “the failure to 7 adequately or appropriately hold officers accountable for their misconduct, the failure to properly 8 and fairly investigate complaints about officers’ misconduct, the failure to enact or adopt policies 9 to ensure adequate and/or appropriate oversight of officers to prevent continuing violations of the 10 rights of inmates.” SAC ¶ 44. However, Plaintiff’s allegations regarding the purported customs 11 established by the County are wholly conclusory. Plaintiff’s laundry list of purported customs is 12 not buttressed by any allegations of fact showing that the alleged customs are in fact the County’s 13 established customs. Thus, like in Duenas, where the plaintiffs allege a “speculative list of 14 various policies” but no allegations of underlying facts, 2015 WL 12656291, at *4, Plaintiff’s 15 allegations cannot survive a Rule 12(b)(6) motion because the allegations regarding the purported 16 policies of the County are unsupported by any factual pleadings. See also Mendy v. City of 17 Fremont, 2014 WL 574599, at *3 (N.D. Cal. Feb. 12, 2014) (dismissing municipal liability claim 18 based on unsupported allegation of an “informal custom or policy that tolerates and promotes the 19 continued use of excessive force and cruel and unusual punishment against and violation of civil 20 rights of citizens by City police officers in the manner alleged [elsewhere in the complaint]”); 21 Mateos-Sandoval v. Cty of Sonoma, 942 F. Supp. 2d 890, 899 (N.D. Cal. 2013) (requiring the 22 complaint to “specify the content of the policies, customs, or practices the execution of which 23 gave rise to Plaintiffs’ constitutional injuries”). 24 In sum, Plaintiff has failed to adequately plead that the County violated his constitutional 25 rights. The Court GRANTS Defendants’ motion to dismiss Plaintiff’s Monell claim brought under 26 § 1983 as to the County with prejudice. Leave to amend may be denied if the moving party has 27 acted in bad faith, or if allowing amendment would unduly prejudice the opposing party, cause 1 undue delay, or be futile. See Leadsinger, 512 F.3d at 532. The Court previously granted 2 Defendants’ motion to dismiss on this exact claim, and the Court instructed the Plaintiff that 3 “failure to cure the deficiencies identified in this order or in Defendants’ briefs will result in 4 dismissal with prejudice of the claims dismissed in this order.” ECF No. 27 at 11. After this 5 dismissal, Plaintiff filed an almost identical SAC and motion to dismiss opposition. Compare 6 FAC, with SAC; compare Opp. at 8-9, with ECF No. 22 at 7. Because the SAC still fails to 7 adequately allege a claim against the County, the Court concludes that granting further leave to 8 amend would be futile and unduly prejudice the Defendants. See Carvalho, 629 F.3d at 892 9 (explaining “repeated failure to cure deficiencies by amendments previously allowed” justifies 10 denying leave to amend); see also Allen v. City of Beverly Hills, 911 F.2d 367, 373-74 (9th Cir. 11 1990) (affirming a district court’s denial of leave to amend where plaintiff had previous 12 opportunities to cure defects). Accordingly, the Court grants Defendants’ motion to dismiss 13 Plaintiff’s Monell claim against the County with prejudice. 14 2. Sheriff Bolanos 15 In its previous order, the Court granted with prejudice Defendants’ motion to dismiss 16 Plaintiff’s Monell claim against Sheriff Bolanos in his official capacity because the “Ninth Circuit 17 has held that § 1983 claims ‘against government officials in their official capacities are really suits 18 against the governmental employer because the employer must pay any damages awarded.’” ECF 19 No. 27 at 7 (quoting Butler v. Elle, 281 F.3d 1014, 1023 (9th Cir. 2002)). 20 Despite this Court’s order dismissing with prejudice the Monell claim against Sheriff 21 Bolanos in his official capacity, the Monell claim in Plaintiff’s SAC sued Sheriff Bolanos in his 22 official capacity again. SAC ¶ 5 (Bolanos “is sued individually and in his official capacity”); SAC 23 ¶ 41 (asserts fifth cause of action (the Monell claim) against the County, Bolanos, and Does 51- 24 100 “individually and/or in their capacities as official policy-maker(s) for COUNTY OF SAN 25 MATEO, including the San Mateo Sheriff’s Office”). The Court strikes this language in the SAC 26 that violates the Court’s prior order and admonishes Plaintiff that future violations of Court orders 27 may result in sanctions. 1 As a result, only Plaintiff’s Monell claim against Sheriff Bolanos in his individual capacity 2 is before the Court. 3 Plaintiff’s Monell claim against Sheriff Bolanos in his individual capacity is best construed 4 as a claim for supervisory liability for deliberate indifference. See ECF No. 27 at 7-8; Starr, 652 5 F.3d at 1205-06. “A defendant may be held liable as a supervisor under § 1983 if there exists 6 either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient 7 causal connection between the supervisor’s wrongful conduct and the constitutional violation.”1 8 Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012) (quotation marks omitted). 9 Supervisory liability is liability whereby plaintiffs can attempt to “hold supervisors individually 10 liable in § 1983 suits when culpable action, or inaction, is directly attributed to them.” Starr, 652 11 F.3d at 1205. Supervisory liability does not require that a supervisor “be directly and personally 12 involved in the same way as are the individual officers who are on the scene inflicting 13 constitutional injury.” Id. (internal quotation marks omitted). Rather, “[s]upervisory liability 14 exists even without overt personal participation in the offensive act if supervisory officials 15 implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is 16 the moving force of the constitutional violation.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 17 1989) (quotation marks omitted). Plaintiff alleges that “the acts and/or omissions herein are the 18 proximate results of a custom, policy, pattern or practice of deliberate indifference by Defendants 19 COUNTY, BOLANOS, and DOES 51-100 and/or each of them.” SAC ¶ 43 (emphasis added). 20 At the outset, the Court notes that Plaintiff abandoned his Monell claim against Sheriff 21 Bolanos. In their motion to dismiss, Defendants moved to dismiss the Monell claim “as to all 22 Defendants.” See Mot. Plaintiff’s opposition to the motion to dismiss never mentions the Monell 23 claim against Sheriff Bolanos. See Opp. at 8-9. It references the five other causes of action as to 24 Sheriff Bolanos, see id. at 10, but only refers to the County in relation to the Monell claim, see id. 25 26 1 Plaintiff also brings a claim against Sheriff Bolanos for his direct participation—i.e., his 27 “personal involvement”—in the alleged attack. That claim is brought in the first cause of action for violations of the Fourth and Fourteenth Amendments. SAC ¶¶ 26-30. 1 at 8-9. When a plaintiff fails to argue in support of a cause of action in opposition to a defendant’s 2 motion, that claim is abandoned. See Campbell v. Feld Entm’t, Inc., 75 F. Supp. 3d 1193, 1204 3 (N.D. Cal. 2014) (finding claims abandoned when Plaintiffs did not raise them in opposition to a 4 motion for summary judgment); Jenkins v. Cty. of Riverside, 398 F.3d 1093, 1095 (9th Cir. 2005) 5 (same). 6 Nonetheless, even if Plaintiff did not abandon the Monell claim against Sheriff Bolanos, 7 that claim still fails. Plaintiff alleges that the purported customs established by the County are also 8 Sheriff Bolanos’s customs and that these customs proximately caused the alleged attack. SAC 9 ¶ 43-45. As discussed previously, however, those customs are wholly conclusory and are not 10 buttressed by any allegations of fact. Starr v. Alameda Cty., 2015 WL 581333, at *7-8 (N.D. Cal. 11 Feb. 11, 2015) (granting summary judgment on a supervisory-liability claim because there were 12 no allegations or evidence of a deficient policy or custom); Duenas, 2015 WL 12656291, at *4 13 (dismissing claim based on allegations of a “speculative list of various policies” without 14 allegations of underlying facts). 15 Indeed, the SAC does not “specify the content of the policies, customs, or practices the 16 execution of which gave rise to [Plaintiff’s] constitutional injuries.” Sandoval, 942 F. Supp. 2d at 17 89; Mendy, 2014 WL 574599, at *3 (dismissing claims based on unsupported allegation of an 18 “informal custom or policy that tolerates and promotes the continued use of excessive force and 19 cruel and unusual punishment against and violation of civil rights of citizens by City police 20 officers in the manner alleged [elsewhere in the complaint]”). Therefore, Plaintiff’s Monell claim 21 against Sheriff Bolanos cannot survive a motion to dismiss. 22 Unlike Starr v. Baca, where the Ninth Circuit held that a supervisor could be held liable 23 for the culpable acts of subordinates because the supervisor had knowledge of prior, specific 24 incidents and had the ability to protect inmates, Plaintiff does not “specifically alleg[e] numerous 25 incidents” of unconstitutional conduct by subordinates or that Sheriff Bolanos was “specifically 26 . . . given notice of all of these incidents,” including specific allegations of “systematic problems 27 in the [jail] under his supervision.” See 652 F.3d at 1208, 1216. 1 As a result, Plaintiff has failed to allege that Sheriff Bolanos implemented a policy, 2 practice, or custom “so deficient that the policy itself [was] a repudiation of constitutional rights 3 and [was] the moving force of the constitutional violation.” See Hansen, 885 F.2d at 646 4 (quotation marks omitted). 5 In sum, Plaintiff’s Monell claim against Sheriff Bolanos cannot proceed. Plaintiff 6 abandoned the claim by not opposing Defendants’ motion to dismiss, and even if Plaintiff did not 7 abandon the claim, the SAC failed to adequately plead a custom, policy, or practice that violated 8 Plaintiff’s constitutional rights. Thus, the Court GRANTS Defendants’ motion to dismiss 9 Plaintiff’s Monell claim against Sheriff Bolanos with prejudice. Leave to amend may be denied if 10 the moving party has acted in bad faith, or if allowing amendment would unduly prejudice the 11 opposing party, cause undue delay, or be futile. See Leadsinger, 512 F.3d at 532. The Court 12 previously granted Defendants’ motion to dismiss on this exact claim, and the Court instructed the 13 Plaintiff that “failure to cure the deficiencies identified in this order or in Defendants’ briefs will 14 result in dismissal with prejudice of the claims dismissed in this order.” ECF No. 27 at 11. After 15 this dismissal, Plaintiff filed an almost identical SAC and motion to dismiss opposition. Compare 16 FAC, with SAC; compare Opp. at 8-9, with ECF No. 22 at 7. Because Plaintiff made minimal 17 amendments to the FAC when given the opportunity—and the SAC still fails to adequately allege 18 a Monell claim against Sheriff Bolanos—the Court concludes that granting further leave to amend 19 would be futile and unduly prejudice the Defendants. See Carvalho, 629 F.3d at 892 (explaining 20 “repeated failure to cure deficiencies by amendments previously allowed” justifies denying leave 21 to amend); see also Allen, 911 F.2d at 373-74. Accordingly, the Court grants Defendants’ motion 22 to dismiss Plaintiff’s Monell claim against Sheriff Bolanos with prejudice. 23 3. Doe Defendants 24 As with Sheriff Bolanos, the Court’s previous order granted with prejudice Defendants’ 25 motion to dismiss Plaintiff’s Monell claim against Doe Defendants in their official capacity 26 because “§ 1983 claims ‘against government officials in their official capacities are really suits 27 against the governmental employer because the employer must pay any damages awarded.’” ECF 1 No. 27 at 9 (quoting Butler, 281 F.3d at 1023). 2 Despite this Court’s order dismissing with prejudice the Monell claim against Doe 3 Defendants in their official capacity, the Monell claim in Plaintiff’s SAC sued Doe Defendants in 4 their official capacity again. SAC ¶ 41 (asserts fifth cause of action (the Monell claim) against the 5 County, Bolanos, and Does 51-100 “individually and/or in their capacities as official policy- 6 maker(s) for COUNTY OF SAN MATEO, including the San Mateo Sheriff’s Office”). The Court 7 strikes this language in the SAC that violates the Court’s prior order and admonishes Plaintiff that 8 future violations of Court orders may result in sanctions. 9 As a result, only Plaintiff’s Monell claim against Doe Defendants in their individual 10 capacity remains. 11 This claim, like Plaintiff’s Monell claim against Sheriff Bolanos, was abandoned. 12 Defendants moved to dismiss “as to all Defendants” in regards to the Monell claim, see ECF No. 13 29, and Plaintiff’s opposition to the motion to dismiss never mentions the Monell claim against 14 Doe Defendants, see ECF No. 30 at 8-9. Again, the opposition to the motion to dismiss only 15 refers to the County in relation to the Monell claim. See id. The Monell claim against Doe 16 Defendants is therefore abandoned. Campbell, 75 F. Supp. 3d at 1204; Jenkins, 398 F.3d at 1095. 17 Alternatively, even if the Monell claim against Doe Defendants was not abandoned, the 18 Court GRANTS Defendants’ motion to dismiss this claim with prejudice. In its prior order, the 19 Court held that this claim included only “[t]hreadbare recitations of the elements of a cause of 20 action” and was “supported by mere conclusory statements.” ECF No. 27 at 10 (quotation marks 21 omitted). Plaintiff’s only additional allegation involves Sheriff Bolanos, not any Doe Defendants. 22 Because of this, the SAC and the FAC are essentially the same as to Doe Defendants, and thus, the 23 SAC suffers from the same fatal deficiencies identified in the FAC. Plaintiff has failed to cure 24 these deficiencies, and consistent with the Court’s prior order, Plaintiff’s claim against Doe 25 Defendants is dismissed with prejudice. Id. at 11; Carvalho, 629 F.3d at 892 (explaining 26 “repeated failure to cure deficiencies by amendments previously allowed” justifies denying leave 27 to amend); Allen, 911 F.2d at 373-74. As a result, leave to amend Plaintiff’s Monell claim against 1 Doe Defendants is DENIED. 2 B. The First, Second, Third, Fourth, and Sixth Causes of Action Against Sheriff Bolanos 3 The Court now turns to the remaining causes of action against Sheriff Bolanos. As to 4 Sheriff Bolanos, the SAC alleged violations of the Fourth and Fourteenth Amendments of the 5 United States Constitution (first cause of action), intentional infliction of emotional distress 6 (second cause of action), assault and battery (third cause of action), negligence (fourth cause of 7 action), and a violation of California Civil Code § 52.1 (sixth cause of action). These claims, rest 8 on a single statement regarding Sheriff Bolanos’s involvement in the alleged attack. Plaintiff 9 pleads that “[o]n information and belief, Defendant BOLANOS participated in the violent assault 10 of Plaintiff.” SAC ¶ 15. Plaintiff pleads nothing more in support of this allegation. 11 Indeed, this allegation about Sheriff Bolanos’s participation in the attack is in tension with 12 other allegations in the SAC. Specifically, the SAC alleges on information and belief that Sheriff 13 Bolanos participated in the alleged attack, id., but the SAC simultaneously acknowledges that 14 Plaintiff could not recognize or identify any of the assailants, id. ¶¶ 11-19. Courts have held that 15 “[g]eneral, conclusory allegations need not be credited . . . when they are belied by more specific 16 allegations of the complaint.” Desio v. Russell Rd. Food & Beverage, LLC, 2016 WL 4721099, at 17 *5 (D. Nev. Sept. 9, 2016) (quoting Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 18 1995)); see also Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205-06 (11th Cir. 2007) (“Our duty 19 to accept the facts in the complaint as true does not require us to ignore specific factual details of 20 the pleading in favor of general or conclusory allegations.”). 21 At the same time, however, at this stage of the proceedings, the Court must “take all 22 allegations of material fact as true and construe them in the light most favorable to the nonmoving 23 party.” Disability Rights Montana, Inc. v. Batista, 930 F.3d 1090, 1097 (9th Cir. 2019) (quoting 24 Steinle v. City and Cty. of San Francisco, 919 F.3d 1154, 1160 (9th Cir. 2019)). Here, Plaintiff 25 could have further explained why Plaintiff believed Sheriff Bolanos was one of the persons who 26 attacked him. Nonetheless, the allegation involving Sheriff Bolanos is not so inconsistent with the 27 1 other allegations such that the Court should not take the new allegation into account. Accepting 2 this allegation as true and construing the facts in the light most favorable to Plaintiff, the SAC 3 adequately pleads that Sheriff Bolanos was one of the persons who participated in the alleged 4 attack. See id. 5 Accordingly, the SAC meets Rule 8’s pleading standard as to the first, second, third, 6 fourth, and sixth causes of action against Sheriff Bolanos. Therefore, the Court DENIES 7 Defendants’ motion to dismiss these claims as to Sheriff Bolanos. 8 IV. CONCLUSION 9 For the foregoing reasons, the Court GRANTS the motion to dismiss with prejudice with 10 respect to: 11 1. Plaintiff’s Monell claim under § 1983 (fifth cause of action) as to San Mateo County; 12 2. Plaintiff’s Monell claim under § 1983 (fifth cause of action) as to Sheriff Bolanos; 13 3. Plaintiff’s Monell claim under § 1983 (fifth cause of action) as to Doe Defendants. 14 For the foregoing reasons, the Court DENIES the motion to dismiss with respect to: 15 1. Plaintiff’s Fourth Amendment and Fourteenth Amendment claim under § 1983 (first 16 cause of action) as to Sheriff Bolanos; 17 2. Plaintiff’s intentional infliction of emotional distress claim (second cause of action) as 18 to Sheriff Bolanos; 19 3. Plaintiff’s assault and battery claim (third cause of action) as to Sheriff Bolanos; 20 4. Plaintiff’s negligence claim (fourth cause of action) as to Sheriff Bolanos; 21 5. Plaintiff’s California Civil Code § 52.1 claim (sixth cause of action) as to Sheriff 22 Bolanos. 23 IT IS SO ORDERED. 24 25 Dated: September 12, 2019 26 ______________________________________ LUCY H. KOH 27 United States District Judge