1 2 3 4 5 6 7 10 11 ABDULLAH WRIGHT, Case No.: 24cv2089-GPC(BLM)
12 Plaintiff, ORDER DENYING DEFENDANTS’ 13 v. MOTION FOR ORDER CERTIFYING FOR INTERLOCUTORY APPEAL AND BRANDON LOPEZ, Defendants. 16 [Dkt. No. 18.] 17 18 Before the Court is Defendants’ motion for order certifying for interlocutory 19 appeal the question: “[c]an statistical data or media reports make a prima facie 20 showing of a Monell claim and constitute credible evidence of the existence of a 21 constitutionally violative policy against a municipality?” (Dkt. No. 18 at 2.1) Plaintiff 22 filed an opposition and Defendants filed a reply. (Dkt. Nos. 20, 21.) On June 17, 2025, 23 Plaintiff filed a motion to strike Defendants’ reply, or in the alternative, construe and 24 permit his filing as a surreply. (Dkt. No. 22.) Based on the reasoning below, the Court 25 26 27 28 1 GRANTS Plaintiff’s motion to permit the filing of a surreply and DENIES Defendants’ 2 motion for order certifying for interlocutory appeal and staying case. 3 Background 4 On November 7, 2024, Plaintiff Abdullah Wright (“Plaintiff”) filed a 42 U.S.C. § 5 1983 civil rights complaint against Defendants City of San Diego (the “City”) and San 6 Diego Police Officer B. Lopez (collectively “Defendants”) alleging the following: (1) 7 violation of his Fourth/Fourteenth Amendment right against an unlawful seizure under 42 8 U.S.C. § 1983 against Defendant Officer Lopez; (2) violation of his Fourteenth 9 Amendment right to equal protection under 42 U.S.C. § 1983 against Defendant Officer 10 Lopez; (3) 42 U.S.C. § 1983 Monell claim for failure to properly train against the City of 11 San Diego; (4) violation of the Bane Act pursuant to California Civil Code section 52.1 12 against both Defendants; (5) negligence against both Defendants; and (6) false arrest 13 against both Defendants. (Dkt. No. 1, Compl.) On January 10, 2025, Defendants filed a 14 motion to dismiss the second through fourth causes of action. (Dkt. No. 6.) After fully 15 briefing, (Dkt. Nos. 9, 10), on April 28, 2025, the Court granted dismissal of the second 16 cause of action alleging an equal protection claim with leave to amend to correct the 17 comparator class, (Dkt. No. 13 at 9-10), and denied dismissal on the third cause of action 18 for failure to train under Monell and the fourth cause of action pursuant to the Bane Act. 19 (Id. at 10-15.) 20 On May 15, 2025, Defendants filed a motion for certification of interlocutory 21 appeal based on the Court’s ruling on the Monell claim which is fully briefed. (Dkt. Nos. 22 18, 20, 21.) On June 17, 2025, in a motion to strike Defendants’ reply, or in the 23 alternative, construe and permit the filing as a surreply, Plaintiff contends that the 24 arguments raised in the reply is improper because Defendants reargue the merits of their 25 motion to dismiss and improperly expand the question originally posed for certification. 26 (Dkt. No. 22.) The Court agrees with Plaintiff that Defendants have raised a new issue 27 for the first time in its reply by changing the question originally posed for certification on 28 interlocutory appeal 1 As discussed more fully below, it appears that the question raised for certification 2 is whether statistics can be used, at all, to allege a Monell cause of action. (Dkt. No. 18.) 3 But the reply asserts that statistics, while it can be used to show discriminatory impact, 4 cannot be used to show discriminatory intent to support an equal protection claim or 5 deliberate indifference under Monell. (Dkt. No. 21.) Because Defendants raise a new 6 issue for the first time in the reply, the Court declines to address it and addresses the 7 question originally posed in their moving papers. See Zamani v. Carnes, 491 F.3d 990, 8 997 (9th Cir. 2007) (“[D]istrict court[s] need not consider arguments raised for the first 9 time in a reply brief.”) (citation omitted); see also FT Travel--New York, LLC v. Your 10 Travel Ctr., Inc., 112 F. Supp. 3d 1063, 1079 (C.D. Cal. 2015) (“Courts decline to 11 consider arguments that are raised for the first time in reply.”) (collecting cases). 12 Discussion 13 In the motion, Defendants seek to certify the following question for interlocutory 14 appeal they have stated in two ways: (1) “[c]an statistical data constitute sufficient factual 15 matter of a Monell claim to allege the prima facie existence of a constitutionally violative 16 policy against a municipality?”, (Dkt. No. 18 at 12); (2) “[c]an statistical data or media 17 reports make a prima facie showing of a Monell claim and constitute credible evidence of 18 the existence of a constitutionally violative policy against a municipality?” (Id. at 2, 5.) 19 As a starting point, Defendants’ question for interlocutory appeal appears to 20 conflate the standard on summary judgment (or at trial), requiring the presentation of 21 evidence, and the standard on a Federal Rule of Civil Procedure 12(b)(6) motion to 22 dismiss, requiring a plaintiff to present allegations, not evidence, to plausibly state a 23 claim. As noted by the United States Supreme Court, a “prima facie case” is used by 24 “courts to describe the plaintiff's burden of producing enough evidence to permit the trier 25 of fact to infer the fact at issue.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 26 254 n. 7 (1981) (citing 9 J. Wigmore, Evidence § 2494 (3d ed. 1940)). Defendants’ use 27 of “prima facie” and “credible evidence” in their question is not the proper standard 28 relating to a Rule 12(b)(6) motion and was not the standard addressed in the Court’s 1 order. (See Dkt. No. 13.) The Court addressed a Rule 12(b)(6) motion to dismiss where 2 the court determines whether a plaintiff has alleged “sufficient factual matter, accepted as 3 true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 4 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A 5 claim has facial plausibility when the plaintiff pleads factual content that allows the court 6 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 7 Id. In its order, the Court concluded that Plaintiff alleged the City’s deliberate 8 indifference to support a Monell failure to train claim based on the allegations in the 9 complaint which relied on statistical data that showed that the San Diego Police stopped 10 Black people at the highest rates than any other group and Black San Diegans are stopped 11 4.2 times as often as White San Diegans. (Dkt. No. 13 at 13.) Contrary to Defendants’ 12 argument, the Court did not rely on statistical data as evidence to support a prima facie 13 case of Monell liability. In fact, the Court even noted that the data and statistics created a 14 plausible inference of support a Monell failure to train claim at the motion to dismiss 15 stage where the plaintiff is without discovery or retained experts. (Id. at 8 n. 3.) The 16 Court did not use the statistics and data provided by Plaintiff as evidence to support a 17 prima facie case of Monell liability.
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1 2 3 4 5 6 7 10 11 ABDULLAH WRIGHT, Case No.: 24cv2089-GPC(BLM)
12 Plaintiff, ORDER DENYING DEFENDANTS’ 13 v. MOTION FOR ORDER CERTIFYING FOR INTERLOCUTORY APPEAL AND BRANDON LOPEZ, Defendants. 16 [Dkt. No. 18.] 17 18 Before the Court is Defendants’ motion for order certifying for interlocutory 19 appeal the question: “[c]an statistical data or media reports make a prima facie 20 showing of a Monell claim and constitute credible evidence of the existence of a 21 constitutionally violative policy against a municipality?” (Dkt. No. 18 at 2.1) Plaintiff 22 filed an opposition and Defendants filed a reply. (Dkt. Nos. 20, 21.) On June 17, 2025, 23 Plaintiff filed a motion to strike Defendants’ reply, or in the alternative, construe and 24 permit his filing as a surreply. (Dkt. No. 22.) Based on the reasoning below, the Court 25 26 27 28 1 GRANTS Plaintiff’s motion to permit the filing of a surreply and DENIES Defendants’ 2 motion for order certifying for interlocutory appeal and staying case. 3 Background 4 On November 7, 2024, Plaintiff Abdullah Wright (“Plaintiff”) filed a 42 U.S.C. § 5 1983 civil rights complaint against Defendants City of San Diego (the “City”) and San 6 Diego Police Officer B. Lopez (collectively “Defendants”) alleging the following: (1) 7 violation of his Fourth/Fourteenth Amendment right against an unlawful seizure under 42 8 U.S.C. § 1983 against Defendant Officer Lopez; (2) violation of his Fourteenth 9 Amendment right to equal protection under 42 U.S.C. § 1983 against Defendant Officer 10 Lopez; (3) 42 U.S.C. § 1983 Monell claim for failure to properly train against the City of 11 San Diego; (4) violation of the Bane Act pursuant to California Civil Code section 52.1 12 against both Defendants; (5) negligence against both Defendants; and (6) false arrest 13 against both Defendants. (Dkt. No. 1, Compl.) On January 10, 2025, Defendants filed a 14 motion to dismiss the second through fourth causes of action. (Dkt. No. 6.) After fully 15 briefing, (Dkt. Nos. 9, 10), on April 28, 2025, the Court granted dismissal of the second 16 cause of action alleging an equal protection claim with leave to amend to correct the 17 comparator class, (Dkt. No. 13 at 9-10), and denied dismissal on the third cause of action 18 for failure to train under Monell and the fourth cause of action pursuant to the Bane Act. 19 (Id. at 10-15.) 20 On May 15, 2025, Defendants filed a motion for certification of interlocutory 21 appeal based on the Court’s ruling on the Monell claim which is fully briefed. (Dkt. Nos. 22 18, 20, 21.) On June 17, 2025, in a motion to strike Defendants’ reply, or in the 23 alternative, construe and permit the filing as a surreply, Plaintiff contends that the 24 arguments raised in the reply is improper because Defendants reargue the merits of their 25 motion to dismiss and improperly expand the question originally posed for certification. 26 (Dkt. No. 22.) The Court agrees with Plaintiff that Defendants have raised a new issue 27 for the first time in its reply by changing the question originally posed for certification on 28 interlocutory appeal 1 As discussed more fully below, it appears that the question raised for certification 2 is whether statistics can be used, at all, to allege a Monell cause of action. (Dkt. No. 18.) 3 But the reply asserts that statistics, while it can be used to show discriminatory impact, 4 cannot be used to show discriminatory intent to support an equal protection claim or 5 deliberate indifference under Monell. (Dkt. No. 21.) Because Defendants raise a new 6 issue for the first time in the reply, the Court declines to address it and addresses the 7 question originally posed in their moving papers. See Zamani v. Carnes, 491 F.3d 990, 8 997 (9th Cir. 2007) (“[D]istrict court[s] need not consider arguments raised for the first 9 time in a reply brief.”) (citation omitted); see also FT Travel--New York, LLC v. Your 10 Travel Ctr., Inc., 112 F. Supp. 3d 1063, 1079 (C.D. Cal. 2015) (“Courts decline to 11 consider arguments that are raised for the first time in reply.”) (collecting cases). 12 Discussion 13 In the motion, Defendants seek to certify the following question for interlocutory 14 appeal they have stated in two ways: (1) “[c]an statistical data constitute sufficient factual 15 matter of a Monell claim to allege the prima facie existence of a constitutionally violative 16 policy against a municipality?”, (Dkt. No. 18 at 12); (2) “[c]an statistical data or media 17 reports make a prima facie showing of a Monell claim and constitute credible evidence of 18 the existence of a constitutionally violative policy against a municipality?” (Id. at 2, 5.) 19 As a starting point, Defendants’ question for interlocutory appeal appears to 20 conflate the standard on summary judgment (or at trial), requiring the presentation of 21 evidence, and the standard on a Federal Rule of Civil Procedure 12(b)(6) motion to 22 dismiss, requiring a plaintiff to present allegations, not evidence, to plausibly state a 23 claim. As noted by the United States Supreme Court, a “prima facie case” is used by 24 “courts to describe the plaintiff's burden of producing enough evidence to permit the trier 25 of fact to infer the fact at issue.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 26 254 n. 7 (1981) (citing 9 J. Wigmore, Evidence § 2494 (3d ed. 1940)). Defendants’ use 27 of “prima facie” and “credible evidence” in their question is not the proper standard 28 relating to a Rule 12(b)(6) motion and was not the standard addressed in the Court’s 1 order. (See Dkt. No. 13.) The Court addressed a Rule 12(b)(6) motion to dismiss where 2 the court determines whether a plaintiff has alleged “sufficient factual matter, accepted as 3 true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 4 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A 5 claim has facial plausibility when the plaintiff pleads factual content that allows the court 6 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 7 Id. In its order, the Court concluded that Plaintiff alleged the City’s deliberate 8 indifference to support a Monell failure to train claim based on the allegations in the 9 complaint which relied on statistical data that showed that the San Diego Police stopped 10 Black people at the highest rates than any other group and Black San Diegans are stopped 11 4.2 times as often as White San Diegans. (Dkt. No. 13 at 13.) Contrary to Defendants’ 12 argument, the Court did not rely on statistical data as evidence to support a prima facie 13 case of Monell liability. In fact, the Court even noted that the data and statistics created a 14 plausible inference of support a Monell failure to train claim at the motion to dismiss 15 stage where the plaintiff is without discovery or retained experts. (Id. at 8 n. 3.) The 16 Court did not use the statistics and data provided by Plaintiff as evidence to support a 17 prima facie case of Monell liability. Therefore, because Defendants’ question for 18 certification on appeal was not addressed by the Court, it DENIES Defendants’ motion to 19 for certification of interlocutory appeal. 20 To the extent Defendants may also be arguing that statistical data can never be 21 used to support a Monell allegation of deliberate indifference against the City on a Rule 22 12(b)(6) motion, the Court addresses that issue. 23 Discussion 24 A. Legal Standard for Certification of Interlocutory Appeal 25 Under the final judgment rule, a court of appeal has jurisdiction over appeals from 26 all final decisions of the district courts of the United States. 28 U.S.C. § 1291; Couch v. 27 Telescope, 611 F.3d 629, 632 (9th Cir. 2010). “Thus parties may appeal only from orders 28 which end the litigation on the merits and leave nothing for the court to do but execute 1 the judgment.” Id. (citing Romoland Sch. Dist. v. Inland Empire Energy Ctr., 548 F.3d 2 738, 747 (9th Cir. 2008)). A narrow exception to the final judgment rule exists as laid 3 out in 28 U.S.C. § 1292(b), which states that: 4 When a district judge, in making in a civil action an order not otherwise 5 appealable under this section, shall be of the opinion that such order involves 6 a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may 7 materially advance the ultimate termination of the litigation, he shall so state 8 in writing such order.
9 28 U.S.C. § 1292(b). In other words, before a court of appeal has jurisdiction to hear an 10 interlocutory appeal, the district court must certify its order for appeal. This requires that 11 the district court determine: (1) that there is a controlling question of law; (2) that there is 12 substantial ground for difference of opinion as to that controlling question; and (3) that an 13 immediate resolution of the question may materially advance the ultimate termination of 14 the litigation. ICTSI Oregon, Inc. v. Int. Longshore and Warehouse Union, 22 F.4th 15 1125, 1130 (9th Cir. 2022) (citing In re Cement Antitrust Litig. (MDL No. 296), 673 F.2d 16 1020, 1026 (9th Cir. 1981)). 17 The controlling question must be one of law, not fact, and its resolution “must 18 materially affect the outcome of litigation in the district court.” Id. The “substantial 19 grounds” prong is satisfied when novel legal issues are presented, “on which fair-minded 20 jurists might reach contradictory conclusions.” Id. (citing Reese v. BP Expl. (Alaska) 21 Inc., 643 F.3d 681, 688 (9th Cir. 2011)). Finally, the “materially advance” factor is met 22 when “the resolution of the question ‘may appreciably shorten the time, effort, or expense 23 of conducting’ the district court proceedings.” Id. (citing In re Cement, 673 F.2d at 24 1027). 25 “The decision to certify an issue for interlocutory appeal is discretionary . . . and 26 the district court should apply the requirements strictly and certify for interlocutory 27 appeal only when exceptional circumstances justify a departure from the well-established 28 1 policy of postponing appellate review until after a final judgment.” Stiner v. Brookdale 2 Sr. Living, Inc., 383 F. Supp. 3d 949, 957 (N.D. Cal. 2019) (internal quotation marks and 3 citations omitted). The party seeking the interlocutory appeal bears the burden of 4 demonstrating that the certification requirements have been met. Couch, 611 F.3d at 633. 5 B. Analysis 6 1. Controlling Question of Law 7 Under the first prong, Defendants must present “[a] controlling question of law” 8 and not a question of fact. ICTSI Oregon, Inc., 22 F.4th at 1130. 9 Defendants assert “[w]hether or not a plaintiff can show the prima facie existence 10 of a municipal policy in a complaint is a controlling question of law.” (Dkt. No. 18 at 7.) 11 In reply, they pivot and claim the controlling question of law to be “whether statistics can 12 be used to prove a prima facie case of Monell liability.” (Dkt. No 21 at 6.) Plaintiff 13 responds that Defendants’ question seeks a ruling from the Ninth Circuit that statistical 14 evidence can never be used to show a pattern and practice of unconstitutional activity or 15 to support a finding of “deliberate indifference” for a Monell claim. (Dkt. No. 20 at 9.) 16 As discussed above, Defendants do not properly articulate a controlling question of law 17 concerning the Court’s ruling. However, to the extent, Defendants appear to be seeking 18 to certify the question whether statistics or data can be used, at all, to allege a Monell 19 cause of action at the Rule 12(b)(6) stage, (Dkt. No. 18), that question is a controlling 20 issue of law. 21 2. Substantial Ground for Difference of Opinion 22 “To determine if a ‘substantial ground for difference of opinion’ exists under § 23 1292(b), courts must examine to what extent the controlling law is unclear.” Couch, 611 24 F.3d at 633. Traditionally, courts have found a substantial ground for difference of 25 opinion exists where “‘the circuits are in dispute on the question and the court of appeals 26 of the circuit has not spoken on the point, if complicated questions arise under foreign 27 law, or if novel and difficult questions of first impression are presented.’” Id. (citing 3 28 Federal Procedure, Lawyers Edition § 3:212 (2010)). “Just because a court is the first to 1 rule on a particular question or just because counsel contends that one precedent rather 2 than another is controlling does not mean there is such a substantial difference of opinion 3 as will support an interlocutory appeal.” Id. Further, “a party's strong disagreement with 4 the Court's ruling is not sufficient for there to be a substantial ground for difference.” Id. 5 Defendants argue there is a substantial ground for difference on the question to be 6 certified because district courts within this district have ruled differently, (Dkt. No. 18 at 7 9 (chart of nine cases)), concerning similar statistics that this Court has relied on and the 8 Ninth Circuit has not ruled on this issue. (Dkt. No. 18 at 8-9.) First, Defendants have 9 failed to meaningfully analyze any of the nine cases cited and merely list cases where 10 statistical evidence was relied upon by a plaintiff and report whether a motion to dismiss 11 a Monell claim was granted or denied. Plaintiff points out that none of the cases in the 12 chart of cases provided by Defendants hold that empirical evidence cannot be used to 13 support a Monell claim. (Dkt. No. 20 at 10-11.) Instead, these cases involved district 14 courts assessing the factual allegations, including the empirical data, in each case, and 15 determined whether each plaintiff stated a claim under Rule 12(b)(6). (Id. at 11-15.) 16 Plaintiff submits that none of these cases held that statistical data can never be used to 17 support a Monell failure to train claim. (Id.) In reply, Defendants rely on two out of 18 district cases from the Eastern District of New York dismissing Monell claims at the 19 motion to dismiss stage based on statistical evidence or media reports. (Dkt. No. 21 at 4- 20 5.) 21 The Court agrees with Plaintiff’s analysis as to the cases cited by Defendants. All 22 nine cases from this District considered statistical evidence and data in analyzing whether 23 they alleged a failure to train claim under Monell. None of the district courts held that 24 statistical evidence can never be used to support a Monell claim on a Rule 12(b)(6) 25 motion. Moreover, the cases from the Eastern District of New York do not support 26 Defendants’ position because the district courts in those two cases did not object to the 27 use of statistics to support a Monell claim but only objected to the conclusory use of 28 statistics. See Nance v City of New York, No. 09cv2786 (ENV)(VVP), 2011 WL 1 2837491, at *3 (E.D.N.Y. July 14, 2011) (plaintiff’s summary allegation that “a 2 statistically significant portion of [substitute] teachers are older teachers, in part, because 3 defendant now has a practice, policy and custom of relegating older teachers to 4 [substitute status]” did not allege a Monell claim in an age discrimination employment 5 case); Perez v. New York City Dept. of Corrections, No. 10–CV–2697 (RRM)(RML), 6 2012 WL 3704744, at *3 (E.D.N.Y. Aug. 27, 2012) (district court concluded that 7 “articles cited by plaintiff, if true, at best cite a handful of instances the specifics of which 8 are not clear” and “did not sufficiently plead facts to establish constitutional violations 9 that were so pervasive and widespread as to amount to a custom, policy or practice 10 attributed to or acquiesced in by municipal policymakers” in an excessive force case 11 brought by inmate). Accordingly, Defendant has failed to demonstrate a substantial 12 ground for difference of opinion on the question presented. 13 As dictated by the Supreme Court in Connick, deliberate indifference on a Monell 14 failure to train claim can be shown by a “pattern of similar constitutional violations by 15 untrained employees” noting that similar prior incidents provide notice to the public 16 entity that “specific training was necessary to avoid this constitutional violation.” 17 Connick v. Thompson, 563 U.S. 51, 62-62 (2011). Therefore, the Court sees no reason 18 why statistics involving prior, similar instances and reasonable inferences derived from 19 those statistics cannot be considered at the motion to dismiss stage to allege a Monell 20 failure to train claim. 21 Because Defendant have failed to demonstrate a substantial ground for difference 22 in opinion, the Court need not address the third ground. See Couch, 611 F.3d at 633 23 (“Certification under § 1292(b) requires the district court to expressly find in writing that 24 all three § 1292(b) requirements are met.”); McFall v. Perrigo Co., Case No. 2:20-cv- 25 07752-FLA (MRWx), 2021 WL 3185083, at *3 (C.D. Cal. June 15, 2021) (“As Perrigo 26 fails to establish a controlling question of law, . . . the court need not address the parties' 27 remaining arguments regarding the second and third elements.”). In conclusion, the 28 Court DENIES Defendants’ motion for order certifying issue for interlocutory appeal. 1 Conclusion 2 Based on the reasoning above, the Court DENIES Defendants’ motion for order 3 || certifying for interlocutory appeal and staying the case. The also GRANTS Plaintiff’s 4 ||request to permit the filing of a surreply. The hearing set on June 27, 2025 shall be 5 || vacated. 7 ||Dated: June 24, 2025 <=
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