Wood v. City of Sacramento

Opinion

----oo0oo---- BRANDY WOOD, an individual, No. 2:20-cv-00497 WBS DB Plaintiff, v. ORDER RE: MOTION TO DISMISS CITY OF SACRAMENTO, a municipal corporation; LEAH ANTONETTI, in her individual capacity as a police officer for the Sacramento Police Department; and DOES 1-50, inclusive, Defendants.

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

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

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

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

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