Wood v. City of Sacramento

Opinion

1 2 3 4 5 6 7 10 ----oo0oo---- 11 12 BRANDY WOOD, an individual, No. 2:20-cv-00497 WBS DB 13 Plaintiff, 14 v. ORDER RE: MOTION TO DISMISS 15 CITY OF SACRAMENTO, a municipal corporation; LEAH ANTONETTI, in 16 her individual capacity as a police officer for the 17 Sacramento Police Department; and DOES 1-50, inclusive, 18 Defendants. 19

20 ----oo0oo---- 21 22 Plaintiff Brandy Wood brought this § 1983 action 23 against the City of Sacramento, Sacramento police officer Leah 24 Antonetti, and Doe officials 1-50 (collectively “defendants”), 25 alleging violations of her federal civil rights and of state law 26 based on defendants’ alleged conduct during a 2019 protest. 27 (Third Amended Complaint (“TAC”) (Docket No. 36).) She asserts 28 claims for (1) excessive force, (2) unlawful arrest, 1 (3) retaliation, (4) municipal liability, (5) denial of medical 2 care and state-created danger, (6) violation of California’s Tom 3 Bane Act, Cal. Civ. Code § 52.1, (7) battery, (8) negligence, 4 (9) false imprisonment, and (10) false arrest. (Id.) Defendants 5 now move to dismiss plaintiff’s fourth and sixth claims, alleging 6 municipal liability and violation of the Tom Bane Act. (Mot. 7 (Docket No. 41-1).) 8 I. Factual Background1 9 In early 2019, the Sacramento District Attorney’s 10 office announced it would not press criminal charges against 11 Sacramento police officers who shot and killed Stephon Clark. 12 (TAC at ¶ 11.) Plaintiff and others joined a march to protest 13 this decision and Clark’s killing in East Sacramento on March 4, 14 2019. (Id. at ¶¶ 1, 11.) 15 Dozens of Sacramento police officers, including 16 Antonetti and Doe officers 1-25, responded to the protest by 17 surrounding the protestors and funneling them into a closed-off 18 location. (Id. at ¶ 12-13.) Once there, the officers ordered 19 the protestors to line up and began to arrest them. (Id. at 20 ¶ 12.) Plaintiff and her family were among the protestors who 21 lined up to be arrested, pursuant to the officers’ orders. (Id. 22 at ¶ 13.) While plaintiff was in line, Antonetti, a bicycle 23 officer, rammed her bicycle into plaintiff’s leg without warning, 24 breaking plaintiff’s leg. (Id.) Antonetti did not stop to 25 document the injury or summon medical care, and instead moved on. 26 (Id.) Plaintiff was then arrested; imprisoned for hours without 27 1 All facts stated herein are as alleged in the Third 28 1 medical care, despite complaining about her injury; and 2 ultimately secured medical attention after being released. (Id. 3 at ¶¶ 2, 14.) 4 II. Legal Standard 5 Federal Rule of Civil Procedure 12(b)(6) allows for 6 dismissal when the plaintiff’s complaint fails to state a claim 7 upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). 8 “A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” 9 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The inquiry 10 before the court is whether, accepting the allegations in the 11 complaint as true and drawing all reasonable inferences in the 12 plaintiff’s favor, the complaint has alleged “sufficient facts 13 . . . to support a cognizable legal theory,” id., and thereby 14 stated “a claim to relief that is plausible on its face,” Bell 15 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In deciding 16 such a motion, all material allegations of the complaint are 17 accepted as true, as well as all reasonable inferences to be 18 drawn from them. Id. 19 Courts are not, however, “required to accept as true 20 allegations that are merely conclusory, unwarranted deductions of 21 fact, or unreasonable inferences.” Sprewell v. Golden State 22 Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see Bell Atl., 550 23 U.S. at 555. Accordingly, “for a complaint to survive a motion 24 to dismiss, the non-conclusory ‘factual content,’ and reasonable 25 inferences from that content, must be plausibly suggestive of a 26 claim entitling the plaintiff to relief.” Moss v. U.S. Secret 27 Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Ashcroft v. 28 Iqbal, 556 U.S. 662, 678 (2009)). 1 III. Discussion 2 A. Municipal Liability Claim 3 Because § 1983 does not provide for vicarious 4 liability, a local government “may not be sued under § 1983 for 5 an injury inflicted solely by its employees or agents.” Monell 6 v. Dept. of Soc. Servs. of the City of N.Y., 436 U.S. 658, 694 7 (1978). “Liability may attach to a municipality only where the 8 municipality itself causes the constitutional violation through 9 ‘execution of a government’s policy or custom, whether made by 10 its lawmakers or by those whose edicts or acts may fairly be said 11 to represent official policy.’” Ulrich v. City & Cnty. of San 12 Francisco, 308 F.3d 968, 984 (9th Cir. 2002) (quoting Monell, 436 13 U.S. at 694). That particular challenged acts “may be fairly 14 said to represent official policy,” thereby demonstrating the 15 existence of a § 1983 claim for municipal liability, may be shown 16 in multiple ways relevant to plaintiff’s allegations. 17 1. Unlawful Policy, Custom, or Practice 18 One method of demonstrating municipal liability is by 19 “prov[ing] the existence of a widespread practice that, although 20 not authorized by written law or express municipal policy, is ‘so 21 permanent and well settled as to constitute a custom or usage 22 with the force of law.’” City of St. Louis v. Praprotnik, 485 23 U.S. 112, 127 (1988) (plurality opinion) (quoting Adickes v. S.H. 24 Kress & Co., 398 U.S. 144, 167-68 (1970)). Such a “policy, 25 custom, or practice” must “constitute[ ] the standard operating 26 procedure of the local government entity” and be “the moving 27 force behind the constitutional violation [the plaintiff] 28 suffered.” A.E. ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 1 631, 636 (9th Cir. 2012) (citation and internal quotation marks 2 omitted); Ulrich, 308 F.3d at 984 (quoting Jett v. Dallas Indep. 3 Sch. Dist., 491 U.S. 701, 737 (1989)). 4 At the motion to dismiss stage, a plaintiff must do 5 more than simply allege that a municipal defendant “maintained or 6 permitted an official policy, custom, or practice of knowingly 7 permitting the occurrence of the type of wrongs” alleged 8 elsewhere in the complaint. See A.E., 666 F.3d at 637. The 9 complaint must allege “additional facts regarding the specific 10 nature of that alleged policy, custom[,] or practice”; merely 11 stating the subject to which the policy relates (i.e., excessive 12 force) is insufficient. See id. 13 Further, “random acts” or “isolated or sporadic 14 incidents” are insufficient to prove the existence of an 15 unconstitutional custom or practice. Navarro v. Block, 72 F.3d 16 712, 714 (9th Cir. 1995); Trevino v. Gates, 99 F.3d 911, 918 (9th 17 Cir. 1996). The plaintiff must instead demonstrate that the 18 custom or practice in question has “sufficient duration, 19 frequency[,] and consistency that [it] has become a traditional 20 method of carrying out policy.” Trevino, 99 F.3d at 918. To do 21 so, the plaintiff “must ordinarily point to a pattern of prior, 22 similar violations of federally protected rights, of which the 23 relevant policymakers had actual or constructive notice.” Hyun 24 Ju Park v. City & Cnty. of Honolulu, 952 F.3d 1136, 1142 (9th 25 Cir. 2020) (citations omitted); see, e.g., Perryman v. City of 26 Pittsburg, 545 F. Supp. 3d 796, 800-01 (N.D. Cal. 2021) 27 (considering prior incidents in deciding whether complaint 28 adequately alleged pattern of past violations); Hughey v. 1 Drummond, 2:14-cv-00037 TLN AC, 2017 WL 590265, at *6 (E.D. Cal. 2 Feb. 14, 2017) (same); Bagley v. City of Sunnyvale, 16-cv-02250 3 LHK, 2017 WL 344998, at *15 (N.D. Cal. Jan. 24, 2017) (granting 4 motion to dismiss Monell claim because plaintiff failed to 5 “allege any facts that indicate that the [city’s] police force is 6 regularly taking actions involving excessive force or unlawful 7 arrests” and instead “only [pled] actions related to his own 8 arrest and prosecution”). 9 Plaintiff alleges that defendants have engaged in a 10 “repeated course of conduct . . . tantamount to a custom, policy 11 or repeated practice of condoning and tacitly encouraging the 12 abuse of police authority, and disregard for the constitutional 13 rights of citizens.” (Compl. at ¶ 32.) In support, plaintiff 14 provides five examples of uses of force by Sacramento police in 15 recent years that plaintiff contends show the requisite pattern 16 of similar violations. (See id. at ¶ 28.) These allegations 17 consist of (1) two officers attempting to hit an individual with 18 their patrol car before getting out and shooting him, (2) three 19 officers chasing an individual into a hospital before tasing him 20 and pressing their body weight onto him until he asphyxiated, 21 (3) an officer “choke slamm[ing]” an individual and punching him 22 in the face, (4) officers shooting and killing an individual 23 based on the false belief that he was armed, and (5) an officer 24 hitting a teenager with his patrol car. (See id.) 25 These allegations fail to plausibly show the existence 26 of an unofficial custom or policy as broad as the one for which 27 plaintiff offers them. Police officers sometimes use force in 28 the performance of their duties, and five instances in which 1 force is used in different ways and contexts over several years 2 does not indicate abuses of authority or violations of 3 constitutional rights, much less a “standard operating procedure” 4 that is “so permanent and well settled as to constitute a custom 5 or usage with the force of law.” A.E., 666 F.3d at 636; 6 Praprotnik, 485 U.S. at 127.2 Nor do these allegations 7 demonstrate a “pattern of prior, similar violations of federally 8 protected rights” as would be necessary to indicate a narrower, 9 more specific unlawful policy or custom, such as one of using 10 police vehicles to injure members of the public. (See Compl. at 11 ¶ 33(c)); Hyun Ju Park, 952 F.3d at 1142. Two prior instances of 12 using (or attempting to use) patrol cars are insufficient to 13 indicate the existence of a practice so widespread as to 14 effectively constitute municipal policy. 15 Plaintiff’s complaint also includes a variety of other 16 alleged unlawful customs, policies, or practices. (See Compl. at 17 ¶ 33.) Many of these lack any accompanying factual allegations 18 suggesting that they are, in fact, customs, policies, or regular 19 practices. For example, plaintiff alleges that the City, through 20 its police department, routinely “cover[s] up violations of 21 constitutional rights” by “failing to properly investigate . . . 22 complaints or incidents of excessive and unreasonable force.” 23 (Id. at ¶ 33(a)(i).) Yet nowhere in the complaint does plaintiff 24 allege that any prior incidents involving alleged excessive force

25 2 For the same reason, plaintiff’s allegation that none of the officers involved in these incidents were disciplined does 26 not, on its own, suggest the existence of a “permanent and well 27 settled” practice of “ignoring and/or failing to properly and adequately . . . discipline . . . unlawful police activity.” 28 1 were not investigated, nor does she state how investigations that 2 did occur were inadequate. Similarly, plaintiff also alleges 3 that the City “allow[s], tolerate[s], and/or encourag[es]” police 4 officers failing to file complete and accurate reports, make 5 false statements, intimidate witnesses, or obstruct 6 investigations, among other forms of wrongdoing, (id. at 7 ¶ 33(a)(iii)), but nowhere does the complaint allege any facts 8 involving such misconduct.3 9 Finally, plaintiff alleges that the Department has a 10 custom, policy, or practice of “fail[ing] to have and enforce 11 necessary, appropriate, and lawful policies, procedures, and 12 training programs to prevent or correct the unconstitutional 13 conduct, customs, and procedures described in this Complaint.” 14 (Id. at ¶ 33(e).) This, however, is merely an allegation that 15 the City “maintained or permitted an official policy, custom, or 16 3 The same is true regarding the alleged customs, 17 policies, or practices of “allow[ing], tolerat[ing], and/or 18 encourag[ing] a ‘code of silence’ among law enforcement officers and police department personnel,” and of “us[ing] or tolerat[ing] 19 inadequate . . . procedures for handling . . . complaints of officer misconduct made under California Government Code § 910.” 20 (Id. at ¶ 33(b), (d).) Similarly, plaintiff also alleges that the City “failed 21 to properly train” Sacramento police officers, (id. at ¶ 34), but 22 does not identify how training that police officers received was inadequate. See Anakin v. Contra Costa Regional Med. Ctr., 16- 23 cv-161 MEJ, 2016 WL 2893257, at *5 (N.D. Cal. May 18, 2016) (claim for municipal liability stated based on failure to train 24 where complaint identified discrete training issues that were “sufficient to put the County on notice of the specific training 25 policies that allegedly caused the constitutional violation at issue”). Such allegations are necessary because “adequately 26 trained officers occasionally make mistakes[, and] the fact that 27 they do says little about the training program or the legal basis for holding the city liable.” City of Canton v. Harris, 489 U.S. 28 1 practice of knowingly permitting the occurrence of the type of 2 wrongs” alleged elsewhere in the complaint, which cannot suffice 3 to state a claim for municipal liability. See A.E., 666 F.3d at 4 637. The Third Amended Complaint therefore fails to state a 5 claim for municipal liability based on an unlawful custom, 6 policy, or practice.4 7 2. Action or Ratification by Final Policymaker 8 A municipality also “may be held liable . . . for acts 9 for which the municipality itself is actually responsible, ‘that 10 is, acts which the municipality has officially sanctioned or 11 ordered.’” City of St. Louis v. Praprotnik, 485 U.S. 112, 123 12 (1988) (plurality opinion) (quoting Pembaur v. Cincinatti, 475 13 U.S. 469, 480 (1986)). Actions of individual municipal officials 14 may represent official policy, and thereby suffice to demonstrate 15 municipal liability, if the officials “have final policymaking 16 authority.” Id. (emphasis omitted) (quoting Pembaur, 475 U.S. at 17 483). Similarly, “when a subordinate’s decision is subject to 18 review by the municipality’s authorized policymakers,” who 19 “approve a subordinate’s decision and the basis for it, their 20 ratification [is] chargeable to the municipality because their 21 decision is final.” Id. at 127. And likewise, “[a]uthority to 22

23 4 At oral argument, counsel for plaintiff also indicated that one theory of municipal liability plaintiff intends to 24 advance is that the City has an unofficial policy, custom, or practice of corralling all individuals at public protests and 25 arresting them, regardless of whether they have obeyed dispersal orders and without making individualized determinations of 26 probable cause. Counsel also indicated that this theory could be 27 premised on a failure to train. However, this theory of municipal liability does not appear in the Third Amended 28 1 make municipal policy . . . may be delegated by an official who 2 possesses such authority.” Pembaur, 475 U.S. at 483. 3 Plaintiff alleges that defendant officers unlawfully 4 arrested her and other protestors without probable cause pursuant 5 to “orders from high-ranking supervisors.” (Compl. at ¶ 29.) 6 She likewise alleges that “the action of corralling and arresting 7 peaceful protesters without discretion was coordinated and 8 enforce[d] by high-ranking policymakers within the police 9 department.” (Id. at ¶ 35.) 10 These allegations, however, fall short of what is 11 required in order to allege municipal liability based on the 12 actions of a final policymaker. As the Supreme Court has made 13 clear, for an official’s actions to be attributable to the 14 municipality itself, the official must not simply have some 15 ability to influence policy decisions, but rather must have “the 16 authority to make final policy.” Praprotnik, 485 U.S. at 127 17 (citing Pembaur, 475 U.S. at 481-84). Plaintiff has not alleged 18 that her alleged unlawful arrest was performed at the direction 19 of an official with final policymaking authority -- i.e., an 20 official whose policymaking decisions are not subject to review 21 or constraint by more senior officials -- nor by an official who 22 has been delegated such authority. See id. at 123; Pembaur, 475 23 U.S. at 483.5 Nor has she included allegations indicating the 24 identity of such an official or officials, beyond the fact that

25 5 The same is true as to plaintiff’s averments that defendants’ alleged unconstitutional conduct was subsequently 26 ratified by senior officials. (See Compl. at ¶¶ 30, 35.) For 27 municipal liability to attach based on such allegations, the ratifying officials must likewise possess or have been delegated 28 1 they hold unidentified senior positions within the police 2 department. 3 Because plaintiff is required to allege that the 4 asserted unconstitutional conduct was done at the direction of, 5 or ratified by, an official who possessed or had been delegated 6 final policymaking authority, her complaint fails to state a 7 claim for municipal liability. Accordingly, that claim will be 8 dismissed. 9 B. Tom Bane Act Claim 10 Defendants also seek to dismiss plaintiff’s claim under 11 the Tom Bane Act, Cal. Civ. Code § 52.1. The Tom Bane Act is 12 similar to 42 U.S.C. § 1983 in that it “provides a cause of 13 action for violations of a plaintiff’s state or federal civil 14 rights,” though those violations must also be “committed by 15 ‘threat[ ], intimidation, or coercion.’” Chaudhry v. City of Los 16 Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014) (quoting Cal. Civ. 17 Code § 52.1). The “threat, intimidation, or coercion” need not 18 “be independent from the constitutional violation alleged.” 19 Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) 20 (quoting Cornell v. City & Cnty. of San Francisco, 17 Cal. App. 21 5th 766, 800 (1st Dist. 2017)). 22 A plaintiff pursuing a Tom Bane Act claim must also 23 show that “the [defendant] officer had a specific intent to 24 violate” the state or federal right at issue. Cornell, 17 Cal. 25 App. 5th at 801-02. “[S]pecific intent” may be shown by 26 demonstrating that the officer “acted . . . ‘in reckless 27 disregard of constitutional or statutory prohibitions or 28 guarantees.’” See id. at 803-04 (quoting People v. Lashley, 1 1 Cal. App. 4th 938, 948-49 (2d Dist. 1991)); Reese, 888 F.3d at 2 1045 (“[A] reckless disregard for a person’s constitutional 3 rights is evidence of a specific intent to deprive that person of 4 those rights.”) (quoting United States v. Reese, 2 F.3d 870, 885 5 (9th Cir. 1993)). 6 Plaintiff alleges liability of Antonetti under the Tom 7 Bane Act for “ramm[ing]” her bike into plaintiff, thereby using 8 “unlawful force” against plaintiff and breaking plaintiff’s leg. 9 (TAC at ¶¶ 2, 44-49; see Opp. at 7-8 (Docket No. 42).) 10 Defendants argue that this claim fails, however, because the 11 Third Amended Complaint “does not plausibly allege that Ofc. 12 Antonetti specifically intended to violate Wood’s rights when she 13 allegedly struck Wood with her bicycle.” (Mot. at 9.) 14 This argument is unavailing. In the Third Amended 15 Complaint, plaintiff alleges that Antonetti’s conduct consisted 16 of “volitional, intentional acts, done with reckless disregard 17 for Plaintiff’s rights,” and that no act “was accidental or 18 merely negligent.” (TAC at ¶ 48.) Defendants do not acknowledge 19 this allegation, and it contradicts their contention that “[t]he 20 first time Wood mentions Antonetti’s ‘intent’ is in her 21 opposition [brief].” (Reply at 6 (Docket No. 43); see Mot. at 22 9.) 23 Moreover, plaintiff’s factual allegations regarding 24 Antonetti’s conduct during the protest plausibly suggest that 25 Antonetti acted in “reckless disregard” for plaintiff’s federal 26 and state constitutional rights to be free from excessive force. 27 Plaintiff alleges that, while she was standing in line to be 28 arrested pursuant to police officers’ orders, Antonetti rode her ene nnn ene nn on nnn nn nn ND eee

1 bike directly into plaintiff without warning, breaking 2} plaintiff’s leg, and that Antonetti did not so much as stop to 3 check if plaintiff had been hurt. (TAC at 7 2, 13.) 4 These allegations at minimum suggest that Antonetti 5 recklessly disregarded the high likelihood that plaintiff would 6 | be injured when Antonetti rode her bike into plaintiff, or that 7 plaintiff had in fact been injured by the crash. Because it is 8 sufficient for plaintiff to allege facts plausibly showing that 9 } Antonetti acted with “reckless disregard” for plaintiff’s rights, 10 | see Reese, 888 F.3d at 1045; Cornell, 17 Cal. App. Sth at 803-04; 11 Navarro, 250 F.3d at 732, plaintiff has stated a claim under the 12 Tom Bane Act. Defendants’ motion will therefore be denied as to 13 that claim. 14 IT IS THEREFORE ORDERED that defendants’ motion to 15 dismiss the complaint (Docket No. 41-1) be, and the same hereby 16 is, GRANTED as to plaintiff’s fourth claim, alleging municipal 17 liability, and DENIED as to plaintiff’s sixth claim, alleging 18 violation of the Tom Bane Act. Plaintiff has twenty days from 19 | the date of this Order to file an amended complaint, if she can 20 do so consistent with this Order. Any proposed amendment shall 21 be limited to plaintiff’s claim of municipal liability. 22 Dated: June 1, 2022 23 / ' . ak. 24 □□□□□□□□□□□□□□□□□□□□□□ 26 27 28 13