Capolupo v. Eills

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6 EUREKA DIVISION

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8 CARRIE ANN CAPOLUPO, Case No. 18-cv-07458-RMI

9 Plaintiff,

ORDER ON DEFENDANT

10 v. HUMBOLDT COUNTY’S MOTION TO

DISMISS PLAINTIFF’S THIRD

11 COUNTY OF HUMBOLDT, et al., AMENDED COMPLAINT

12 Defendants. Re: Dkt. No. 64

13

14 Now pending before the court is a Motion (dkt. 64) filed by Defendant Humboldt County

15 (“County”) seeking dismissal from Plaintiff’s Third Amended Complaint (“TAC”) (dkt. 62). On

16 February 25, 2019, the matter came to be heard at oral argument (dkts. 65, 66), following which

17 Plaintiff was given leave to file a post-hearing brief in opposition (dkt. 67), to which the County

18 has filed a reply brief (dkt. 80). For the reasons stated below, the County’s request for a dismissal

19 is granted in part, denied in part.

20 BACKGROUND

21 Plaintiff’s claim against the County was previously dismissed with prejudice from the

22 Second Amended Complaint (dkt. 49), in which the County had been named under a municipal

23 liability theory pertaining to policies and customs relating to its child welfare functions. See Order

24 of December 5, 2020 (dkt. 60) at 24-25 (“Plaintiff’s municipal liability claim is dismissed with

25 prejudice . . .”). In that same order, while also dismissing all claims against the individual and

26 institutional social worker defendants, the court granted Plaintiff leave to amend such that she

27 could plead her claims against law enforcement defendants that had been mentioned in passing but

1 of law enforcement officers, and also once again named the County, but under a new theory of

2 municipal liability that pertained to the role played by the law enforcement officers, rather than

3 social workers, in the alleged violation of her rights. See TAC (dkt. 62) at 2, 5. However, the

4 municipal liability claim in the TAC was given short-shrift when it came to factual allegations in

5 support of Plaintiff’s claim against the County. See id. at 5. Accordingly, on January 17, 2020, the

6 County moved to dismiss Plaintiff’s municipal liability claim with prejudice, arguing that the

7 inclusion of a municipal liability claim violated the court’s previous order and exceeded the scope

8 of the leave to amend; and, that dismissal is independently warranted because Plaintiff’s TAC has

9 failed to allege any of the required facts that might indicate the specific nature of any involved

10 policy or describe how any of the alleged actions attributed to the individual law enforcement

11 officers pursuant to such policy operated to allegedly violate her rights. See Def.’s Mot. (dkt. 64)

12 at 2, 7-9.

13 At the hearing of February 25, 2020 (dkt. 66), when the court asked Plaintiff why she had

14 not filed any written response to the County’s motion seeking dismissal, Plaintiff responded that

15 she was under the impression that she could deliver her response orally at the hearing. See PDF

16 with attached audio recording (dkt. 66) at 00:30 - 1:01. The court then invited Plaintiff to respond

17 to the County’s argument to the effect that it should be dismissed from the TAC because of

18 Plaintiff’s failure to allege facts about a municipal policy to which the allegedly unlawful actions

19 of the law enforcement officers in this case may be attributed – Plaintiff responded that “[t]he

20 policy would be the issuing of the warrant, period, and that they brought, you know, six sheriffs

21 with them to enforce this policy, and in that, umm - - you know, they could see the home was - -

22 uh - - clean and safe and the children were healthy but yet I was still - - you know there’s nothing

23 about seizing me in the warrant, it’s just to get in the home to interview the child, and so - - umm

24 [inaudible] that policy alone allowed them to violate my - - umm.” Id. at 3:27 - 4:02. The court

25 then asked Plaintiff whether she challenged a policy of the County that permitted the securing of

26 the warrant to enter her home under these circumstances, or whether Plaintiff challenged a County

27 policy pertaining to how the warrant was to be enforced, or both, and Plaintiff responded that she

1 the Motion to Dismiss (dkt. 64) was brought only by the County and that the individual law

2 enforcement defendants were not part of this motion to dismiss. Id. at 7:00 - 7:30.

3 In her post-hearing briefing, Plaintiff submits that it was her understanding that the

4 previous dismissal, with prejudice, of her claim of municipal liability against the County pertained

5 only to the County’s child protective services functions and not necessarily to its law enforcement

6 functions. See Pl.’s Opp. (dkt. 67) at 4. In this regard, Plaintiff added that the County was the

7 “moving force” behind the law enforcement officers’ allegedly flawed execution of the child

8 welfare investigation warrant, as well as the officers’ “flagrantly disregard[ing] the[] scope of the

9 warrant [and] therefore amounting to deliberat[e] indifference towards [Plaintiff’s] constitutional

10 rights.” Id.

11 DISCUSSION

12 Turning to the first of the County’s two arguments in support of its request for a dismissal

13 with prejudice, the court notes that Plaintiff’s apparent confusion about the nature of the court’s

14 order previously dismissing her municipal liability claim counsels in favor giving her one final

15 chance to articulate her newly formulated municipal liability claim. As mentioned, the court

16 previously dismissed Plaintiff’s municipal liability claim against the County with prejudice, as

17 well as dismissing Plaintiff’s claims against the various social worker defendants also with

18 prejudice, while at the same time granting Plaintiff leave to amend her complaint such that she

19 could plead her claims against law enforcement defendants that had been mentioned in passing but

20 not named as defendants. See Order (dkt. 60) at 25, 27-28. Thus, in light of Plaintiff’s pro se

21 status, and her apparent confusion about the nature and scope of the court’s previous order, it

22 would be inequitable for the court to rely on a previous dismissal with prejudice of her municipal

23 liability claim, focused on social worker defendants, such as to operate as a bar to Plaintiff now

24 articulating a different municipal liability claim, focused on law enforcement defendants.

25 On the other hand, as to the County’s secondary argument, some form of dismissal of

26 Plaintiff’s municipal liability claim, as currently pleaded (see TAC (dkt. 62) at 5) is unavoidable

27 due to the defect that is manifest in the TAC’s failure to allege facts as to the nature of any

1 alleged actions attributed to the individual law enforcement officers were made pursuant to such

2 policy. See Def.’s Mot. (dkt. 64) at 2, 7-9. Under Fed. R. Civ. P. 12(b)(6), a motion to dismiss may

3 be granted with or without prejudice, and with or without leave to amend. In this regard, district

4 courts have been instructed to “grant leave to amend even if no request to amend the pleading was

5 made, unless [the court] determines that the pleading could not possibly be cured by the allegation

6 of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States,

7 58 F.3d 494, 497 (9th Cir. 1995)). Here, while the TAC has alleged nearly nothing to support a

8 claim of municipal liability under the standards previously set forth for Plaintiff (see Order of May

9 31, 2019 (dkt. 48) at 15), Plaintiff’s statements at the hearing mentioned above take a substantial

10 step in the right direction, giving her municipal liability claim a hint of conceivability. Therefore,

11 despite the fact that the claim is still subject to dismissal, the court cannot conclude that it is not

12 possible for Plaintiff to allege sufficient facts to state a plausible claim for relief if given one final

13 opportunity to amend such that Plaintiff can “nudge[] [her] claim[] across the line from

14 conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).1

15 Accordingly, because Plaintiff is proceeding pro se, the court will provide further, more

16 detailed guidance on the applicable standards for the articulation of a cognizable claim for

17 municipal liability. As previously noted (see Order (dkt. 48) at 15), local government entities are

18 considered “persons” for the purposes of being subject to liability under 42 U.S.C. § 1983 in cases

19 where an official policy or custom associated with that local government entity causes a

20 constitutional tort. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978). However, a

21 municipality may not be held vicariously liable for the unconstitutional acts of its employees

22 under the theory of respondeat superior. See Board of County Comm’rs v. Brown, 520 U.S. 397,

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1 Plaintiff has already had ample opportunities for amendment. Plaintiff’s original Complaint (dkt. 1) was

25 amended as a matter of course in lieu of responding to Defendants’ first dismissal motion. Thereafter, the

court granted Plaintiff leave to amend following the dismissal of her First Amended Complaint (see Order

26 of May 31, 2019 (dkt. 48)); and the court again granted Plaintiff leave to file an amended pleading

following the dismissal of her Second Amended Complaint (see Order of December 5, 2019 (dkt. 60)).

27 Thus, this will be Plaintiff’s final opportunity to file an amendment to her operative complaint because

while Plaintiff’s pro se status entitles her to some degree of leniency when it comes to the enforcement of

1 403 (1997); Monell, 436 U.S. at 691. Thus, Plaintiff is reminded that the County may not be sued

2 under this approach simply because Plaintiff thinks that as an employer the municipality should be

3 held to account for its employees’ unlawful actions. Instead, in order to properly impose municipal

4 liability under § 1983 for a violation of constitutional rights, a plaintiff must establish: (1) that the

5 plaintiff possessed a constitutional right of which she was deprived; (2) that the municipality had a

6 policy, custom or practice; (3) that the policy, custom or practice amounted to deliberate

7 indifference to the plaintiff’s constitutional rights; and (4) that the policy, custom or practice was

8 the moving force behind the constitutional violation. See Plumeau v. School Dist. # 40, 130 F.3d

9 432, 438 (9th Cir. 1997); see also AE ex rel. Hernandez v. County of Tulare, 666

10 F.3d 631, 636 (9th Cir. 2012). It is not enough for Plaintiff to simply allege that some policy,

11 custom, or practice exists that somehow caused the alleged constitutional violations (see AE ex rel.

12 Hernandez, 666 F.3d at 636-37); instead, Plaintiff must allege sufficient facts regarding the

13 specific nature of that policy, custom or practice such as to allow the County to effectively defend

14 itself, and those alleged facts must plausibly suggest that Plaintiff is entitled to relief against the

15 County. See id. at 637.

16 Additionally, as it appears related to the instant context, the court will also note that

17 holding a municipality liable in the absence of a formal governmental policy (that is, a Monell

18 claim based upon an omission rather than an actual and existing policy) appears to be more or less

19 interchangeable with those cases finding liability based upon a custom or practice. See e.g.,

20 Matysik v. Cnty. of Santa Clara, No. 16-CV-06223-LHK, 2018 U.S. Dist. LEXIS 19552, at *32-

21 37 (N.D. Cal. Feb. 6, 2018). In such cases, ones that are focused on discussing a custom or

22 practice rather than a formal policy, a plaintiff may instead establish the existence a “longstanding

23 practice or custom which constitutes the standard operating procedure of the local governmental

24 entity.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). For present purposes, certain customs

25 can be viewed as the substantial equivalent of a policy or a law because, “an act performed

26 pursuant to a ‘custom’ that has not been formally approved by an appropriate decision maker may

27 fairly subject a municipality to liability on the theory that the relevant practice is so widespread as

1 Baca, 514 F. Supp. 2d 1201, 1206 (C.D. Cal. 2007). As is the case when bringing a Monell claim

2 based on a policy, Plaintiffs relying on a custom must allege facts that make clear that the relevant

3 custom was the “moving force” behind the constitutional injuries, which would require Plaintiff to

4 establish that the custom is “closely related to the ultimate injury,” and that the injury “would have

5 been avoided had proper policies been implemented.” Thomas, 514 F. Supp. 2d at 1206 (quoting

6 Long v. County of L.A., 442 F.3d 1178, 1190 (9th Cir. 2006)). It should not go without mention,

7 however, that liability for an allegedly improper custom may not be predicated upon an isolated or

8 sporadic event or events; instead, “it must be founded upon practices of sufficient duration,

9 frequency and consistency [such] that the conduct has become a traditional method of carrying out

10 policy.” Trevino, 99 F.3d at 918.

11 Under a different approach, municipal liability may also be imposed for a single decision

12 by a municipal policy-making official, at least under certain circumstances. See Pembaur v. City of

13 Cincinnati, 475 U.S. 469, 480 (1986). In such cases, it is possible for a single decision rendered by

14 such an official to constitute an act of official government policy. Id. However, not every such

15 decision by a municipal officer would automatically subject the municipality to § 1983 liability.

16 See id. at 481. This species of municipal liability attaches only where the decision-making official

17 possesses final authority to establish municipal policy with respect to the action ordered. Id.

18 Further, “[t]he [mere] fact that a particular official – even a policymaking official – has discretion

19 in the exercise of particular functions does not, without more, give rise to municipal liability based

20 on an exercise of that discretion . . . [in addition] [t]he official must also be responsible for

21 establishing final government policy respecting such activity before the municipality can be held

22 liable.” Id. at 481-83. Plaintiff should note that the question of “[w]hether a particular official has

23 ‘final policymaking authority’ is a question of state law” (Praprotnik, 485 U.S. at 123), and thus,

24 it would be for the court to identify the officials whose decisions might constitute the official

25 policy of a municipality or other governmental unit. See Jett v. Dallas Indep. School Dist., 491

26 U.S. 701, 737 (1989). Hence, under this approach, § 1983 municipal liability only lies if there is a

27 deliberate choice to follow a particular course of action, from among various alternatives, and

1 final policy with respect to the subject matter in question. See Pembaur, 475 U.S. at 483 (finding

2 municipal liability where a county prosecutor made a decision and directed officers to forcibly

3 enter the petitioner’s clinic, causing a violation of petitioner’s Fourth Amendment rights).

4 Additionally, under the ratification doctrine, if a municipal policy-making official ratifies any

5 unconstitutional conduct, this may also be sufficient to trigger § 1983 municipal liability. See

6 Praprotnik, 485 U.S. at 127.

7 As mentioned above, in the absence of a formal policy, a plaintiff could base a Monell

8 claim on “a longstanding practice or custom which constitutes the standard operating procedure of

9 the local government entity.” Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008). Where “[l]ability

10 for improper custom may not be predicated on isolated or sporadic incidents [] [and] must be

11 founded upon practices of sufficient duration, frequency and consistency that the conduct has

12 become a traditional method of carrying out [de facto] policy” (Trevino, 99 F.3d at 918); on the

13 other hand, with respect to an adopted municipal policy, a single incident can serve as the basis of

14 a Monell claim so long as “proof of the incident includes proof that it was caused by an existing,

15 unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.”

16 City of Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985). It should also be noted that, in certain

17 contexts, the “lack of affirmative policies or procedures to guide employees can amount to

18 deliberate indifference even when other general policies are in place.” Claypole v. County of San

19 Mateo, No. 14-cv-2730-BLF, 2016 U.S. Dist. LEXIS 3849, 2016 WL 127450, at *11 (N.D. Cal.

20 Jan. 12, 2016). Thus, if the need to remedy an omission in the framework of a municipality’s

21 policies is so obvious that the inadequacy is clearly likely to result in the violation of

22 constitutional rights, the policymakers of that municipality can reasonably be said to have been

23 deliberately indifferent to the need to remedy that omission. See id.

24 An illustrative example is present in Long v. County of Los Angeles, 442 F.3d 1178, 1190

25 (9th Cir. 2006), where an elderly man suffering from congestive heart failure reported to the

26 county jail to serve a four-month sentence, during the first few weeks of which he received

27 uncoordinated and inadequate medical care and ultimately died; whereupon it was held that the

1 relevant policies amounted to deliberate indifference to that person’s constitutional rights. See id.;

2 see also Oviatt v. Pearce, 954 F.2d 1470, 1477-78 (9th Cir. 1992) (upholding a jury verdict based

3 on a sheriff’s refusal to create a procedure to remedy the problem of untimely arraignments).

4 Likewise, in Gibson v. County of Washoe, 290 F.3d 1175, 1180 (9th Cir. 2002), a person with

5 manic depressive disorder was arrested during one of his manic phases when he was combative

6 and difficult to control, and although the jail medical staff noted that the he had psychotropic

7 medications with him at the time of his arrest, the jail medical staff did not act on this information,

8 and eventually, he suffered a heart attack and died while several deputies were trying to restrain

9 him. Id. at 1182-83. While Washoe County had policies requiring arresting officers to give the jail

10 medical staff any prescription medications found with an incoming detainee, and a policy

11 requiring jail medical staff to secure the medication in the infirmary, there was no policy that

12 required the jail medical staff to “act on any information that the medication might bear.” Id. at

13 1195. Washoe County policy also precluded medical evaluations from being conducted for any

14 detainees who were uncooperative, combative, or intoxicated. Id. In that case, it was ultimately

15 held that there was a triable issue as to whether Washoe County’s policy-based failure to require

16 the jail medical staff to act on information that they learned from a detainee’s prescription label

17 caused that person’s death. See id. at 1195-96; see also Wakefield v. Thompson, 177 F.3d 1160,

18 1164 (9th Cir. 1999) (requiring prisons to provide prisoners with a transitional supply of

19 medication upon release based on the recognition that “as a matter of common sense . . . a

20 prisoner’s ability to secure medication ‘on his own behalf’ is not necessarily restored the instant he

21 walks through the prison gates and into the civilian world”); see also United States v. County of

22 Los Angeles, No. CV 15-5903 DDP (JEMx), 2016 U.S. Dist. LEXIS 65049, 2016 WL 2885855, at

23 *5 (C.D. Cal. May 17, 2016) (citing Wakefield in a case about the necessity of discharge planning

24 for inmates with dementia, among other disabilities, for the proposition that “Defendants

25 presumably do not, and could not, for example, simply show a severely ill inmate to an exit

26 without any concern for what might befall that inmate on the other side of the door.”).

27 Lastly, Plaintiff may allege Monell liability on the basis of inadequate training or a failure

1 liability only where the failure to train amounts to deliberate indifference to the rights of persons

2 with whom the police come into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388

3 (1989). The court will also note that a failure to train may support a Monell claim only when the

4 flawed training, or lack of training, itself caused the constitutional violation — not in situations

5 where an errant employee caused a constitutional violation, despite adequate training, as this

6 ensures that responsibility lies with the correct entity. See Waggy v. Spokane Cnty., 594 F.3d 707,

7 713 (9th Cir. 2010).

8 CONCLUSION

9 Thus, Plaintiff is instructed to carefully consider the above-provided guidance, and to

10 conduct any necessary investigation and inquiry, such that if Plaintiff elects to re-present a claim

11 based on municipal liability, such claim would not be based merely on bare conclusory allegations

12 that do not put the County on notice of the specific policies, acts, omissions, customs or alleged

13 deficiencies in training that she may allege to have been the cause of the alleged constitutional

14 violation at issue. For the reasons stated above, Plaintiff fails to allege any theory of Monell

15 liability that would be sufficiently articulated such as to survive the County’s motion to dismiss.

16 Therefore, the County’s Motion to Dismiss (dkt. 64) is GRANTED IN PART, DENIED IN

17 PART, and Claim-1 in the TAC (dkt. 62 at 5) is DISMISSED without prejudice because the

18 deficiencies therein may conceivably be cured by amendment in light of the guidance provided

19 above. If Plaintiff wishes to re-present her municipal liability claim, she is hereby ORDERED to

20 file a supplemental complaint containing only the municipal liability claim along with any

21 necessary underlying factual allegations no later than 30 days from the date of this order.

22 Further, due to COVID-19, the McKinleyville Federal Courthouse remains closed and all

23 documents sent there by U.S. Mail are forwarded to the San Francisco Federal Courthouse where

24 the mail is processed twice a week. See General Order 73. To avoid mail-related delays, Plaintiff

25 may elect to file her documents electronically. Pursuant to General Order 72-2, pro se litigants are

26 not required to request permission from the assigned judge to use the court’s Electronic Case

27 Filing (“ECF”) system pending further notice. Plaintiff may register for electronic filing through

1 E-filing registration instructions for pro se litigants are available on the court’s website at:

2 || https://www.cand.uscourts.gov/cases-e-filing/cm-ect/setting-up-my-account/register-for-e-filing-

3 pro-se-litigants/. If Plaintiff has any questions about how to register, she may call 415-522-2000,

4 || or Plaintiff may communicate her questions by e-mail ECFHELPDESK @cand.uscourts.gov.

5 IT IS SO ORDERED.

6 Dated: May 5, 2020

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ROBERT M. ILLMAN

9 United States Magistrate Judge

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