“Dismissal of a complaint without leave to amend 4 || is only proper when, upon de novo review, it is clear that the complaint could not be saved by any 5 amendment.”
How later courts described this case
- “Dismissal of a complaint without leave to amend 4 || is only proper when, upon de novo review, it is clear that the complaint could not be saved by any 5 amendment.”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 TRENELL PERRYMAN, Case No. 20-cv-03408-SI
8 Plaintiff,
ORDER GRANTING IN PART AND
9 v. DENYING IN PART DEFENDANT'S
MOTION TO DISMISS PORTIONS OF
10 CITY OF PITTSBURG, et al., PLAINTIFF'S FIRST AMENDED
COMPLAINT
11 Defendants.
Re: Dkt. No. 28
12
13 On February 5, 2021, the Court held a hearing on defendant’s motion to dismiss portions of
14 plaintiff’s First Amended Complaint (“FAC”). Dkt. No. 36. Having considered the arguments made
15 and the papers submitted, the Court hereby GRANTS in part and DENIES in part defendant’s
16 motion to dismiss.
17
18 BACKGROUND
19 I. Factual Background
20 Plaintiff Trenell Perryman alleges that, on April 26, 2019, plaintiff was driving his twelve-
21 year-old son to school in Pittsburg, CA when plaintiff’s vehicle ran out of gas. First Amended
22 Compl. (“FAC”), Dkt. No. 24, ¶ 21. Plaintiff walked to the gas station to buy gasoline while his
23 son remained in the vehicle. Id. ¶ 22. As plaintiff walked back to his vehicle, holding a can of gas,
24 plaintiff saw defendants Sharon Kumar (“Kumar”) and Officer Lee Borman (“Borman”) near
25 plaintiff’s vehicle. Id. ¶ 23.
26 Plaintiff claims that defendant Borman approached plaintiff and wrongfully accused him of
27 driving a stolen vehicle. Id. ¶ 27. Defendant Borman then conducted “multiple, increasingly
1 any contraband on plaintiff during the pat downs, defendant Borman attempted to place plaintiff in
2 handcuffs. Id. ¶¶ 28-29. After plaintiff “attempted to terminate [the] unwarranted intrusion,”
3 defendant Borman pursued and tackled plaintiff, causing plaintiff to tear his right shoulder rotator
4 cuff. Id. ¶¶ 30-31. Plaintiff’s vehicle was searched and seized. Id. ¶ 32.
5
6 II. Procedural Background
7 On May 19, 2020, plaintiff filed a complaint alleging civil rights violations against
8 defendants Lee Borman, Sharon Kumar, Erica Lefterov, Kalin Seaborn, Sankara Dumpa, the City
9 of Pittsburg, and DOES 1-50. Dkt. No. 1. The parties stipulated to plaintiff filing an amended
10 complaint no later than November 18, 2020. Dkt. No. 22.
11 On November 17, 2020, plaintiff filed a FAC alleging six causes of action: (1) 42 U.S.C.
12 § 1983 against defendants Borman and DOES 1-30;1 (2) 42 U.S.C. § 1983 (Monell liability) against
13 defendants City of Pittsburg and DOES 31-50; (3) California Civil Code § 52.1 against defendants
14 Borman and DOES 1-30; (4) CAL. CONST. ART. I, § 13 against defendants Borman and DOES 1-30;
15 (5) assault and battery against defendants Borman and DOES 1-30; and (6) negligence against
16 defendants Borman and DOES 1-30. Dkt. No. 24. By the present motion, defendant City of
17 Pittsburg filed a motion to dismiss plaintiff’s second cause of action for failure to state a claim under
18 Federal Rule of Procedure 12(b)(6). Dkt. No. 28.
19
20 LEGAL STANDARD
21 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if
22 the complaint fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6)
23 motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible
24 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility”
25
1 Plaintiff’s FAC names DOES 1-50 as defendants. In the FAC, plaintiff stated that the “true
26
names or capacities, whether individual, corporate, associate, or otherwise of Defendants named
herein as DOES 1 -50 are unknown to Plaintiff.” Dkt. No. 24 ¶ 9. Plaintiff believes that DOES 1-
27
50 are “in some manner responsible for the acts, omissions, and injuries alleged”. Id. Plaintiff will
1 standard requires the plaintiff to allege facts that add up to “more than a sheer possibility that a
2 defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not
3 require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a
4 right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570.
5 In deciding whether a plaintiff has stated a claim upon which relief can be granted, the court
6 must assume that the plaintiff's allegations are true and must draw all reasonable inferences in the
7 plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However,
8 the court is not required to “accept as true allegations that are merely conclusory, unwarranted
9 deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055
10 (9th Cir. 2008). The court, for example, need not accept as true “allegations that contradict matters
11 properly subject to judicial notice or by exhibit.” Sprewell v. Golden State Warriors, 266 F.3d 979,
12 988 (9th Cir. 2001).
13 Generally, the court may not consider materials beyond the pleadings when ruling on a Rule
14 12(b)(6) motion. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). However, pursuant
15 to Federal Rule of Evidence 201, the court may take judicial notice of “matters of public record,”
16 such as prior court proceedings. Id. at 688-89. The court may also consider “documents attached
17 to the complaint [and] documents incorporated by reference in the complaint ...without converting
18 the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903,
19 908 (9th Cir. 2003).
20 If the court dismisses the complaint, it must then decide whether to grant leave to amend.
21 The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no
22 request to amend the pleading was made, unless it determines that the pleading could not possibly
23 be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)
24 (citations and internal quotation marks omitted).
25
26 DISCUSSION
27 Under Monell, a plaintiff may establish municipal liability by demonstrating (1) the
1 (2) the individual who committed the constitutional violation was an official with final policy-
2 making authority; or (3) an official with final policy-making authority ratified the unconstitutional
3 act. Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir.1992). The FAC presents two theories
4 of municipal liability resulting in an alleged violation of plaintiff’s fourth amendment rights: (1)
5 governmental policy or a longstanding practice or custom and (2) ratification of unconstitutional act
6 by policy-making authority. See Dkt. No. 24 at 10-14. Defendant City of Pittsburg (hereafter
7 “defendant”) moves to dismiss plaintiff’s second cause of action relating to Monell liability under
8 both theories of municipal liability. Dkt. No. 28 at 6-12.
9
10 I. Policy or Custom Theory of Municipal Liability
11 A municipality may be held liable as a “person” under 42 U.S.C. § 1983 when it maintains
12 a policy or custom that causes the deprivation of a plaintiff's federally protected rights. Monell v.
13 Dep't of Social Servs., 436 U.S. 658, 690 (1978). However, a city or county may not be held
14 vicariously liable for the unconstitutional acts of its employees under the theory of respondeat
15 superior. See Board of Cty. Comm'rs. of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell,
16 436 U.S. at 691; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). To establish an
17 official policy that would give rise to Monell liability, a plaintiff must allege facts to support one of
18 the following: (1) an unconstitutional custom or policy behind the violation of rights; (2) a
19 deliberately indifferent omission, such as a failure to train or failure to have a needed policy; or (3)
20 a final policy-maker's involvement in, or ratification of, the conduct underlying the violation of
21 rights. Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir. 2010) (synthesizing
22 authorities), overruled on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir.
23 2016).
24 Defendant argues that plaintiff has not sufficiently pled facts supporting (A) that defendant
25 had a policy, custom, or practice and (B) that the alleged policy, custom, or practice amounted to
26 deliberate indifference to the plaintiff's constitutional rights.
27
1 A. Custom or Practice
2 Defendant argues that plaintiff’s FAC failed to include “factually similar situations of
3 sufficient duration, frequency and consistency that put the [defendant] on notice regarding the
4 unconstitutional custom.” Dkt. No. 28 at 9 (emphasis added).
5 The Ninth Circuit has applied the following two-part rule for determining whether factual
6 allegations are properly pled for a Monell claim:
7
“First, to be entitled to the presumption of truth, allegations in a
8
complaint or counterclaim may not simply recite the elements of a
9 cause of action, but must contain sufficient allegations of underlying
facts to give fair notice and to enable the opposing party to defend
10 itself effectively. Second, the factual allegations that are taken as true
must plausibly suggest an entitlement to relief, such that it is not
11 unfair to require the opposing party to be subjected to the expense of
discovery and continued litigation.”
12
AE, 666 F.3d at 637 (quoting Starr v. Baca, 652 F.3d 1203, 1216 (9th Cir. 2011)).
13
Applying the first part of Ninth Circuit’s rule, the Court finds that the FAC contains
14
sufficient allegations of underlying facts to provide defendant fair notice. The FAC states the
15
specific customs or policies that allegedly caused plaintiff’s constitutional violation. FAC ¶ 45.
16
The alleged customs or policies include “hurt a person – charge a person” where “if an officer
17
wrongly hurts, detains, searches, or arrests a person, the officer will falsely arrest the person and/or
18
seek to secure the filing and prosecution of a criminal charge against the person” and a custom of
19
covering up violations of constitutional rights by “failing to properly investigate and/or evaluate
20
complaints . . . . encouraging police officers to: fail to file complete and accurate police reports; file
21
false police reports; make false statements; intimidate, bias and/or ‘coach’ witnesses to give false
22
information”. Id.
23
In addition to specifying the customs and policies of the police department, the FAC also
24
includes ten lawsuits that involve incidents where individuals were injured after encounters with
25
defendant’s police officers. 2 Id. ¶ 47. The FAC included parenthetical information for each case
26
27
2 The lawsuits include:
1 detailing conduct similar to that complained of by the plaintiff, such as being “violently knocked to
2 the ground,” “violently pushed,” “sweeping side arm blow,” “slamming citizen onto parked van,”
3 “face smashed into the ground,” “deliberate tripping” followed by being “repeatedly struck” by
4 officers, improper punches, and “manhandling . . . wrenching” of arm. FAC ¶ 47. Similar to the
5 present case where plaintiff was “violently tackled” by Officer Borman, Id. ¶ 31, the incidents in
6 the listed cases in the FAC involve allegations of excessive force amounting to physical altercations
7 between citizens and police officers. See Starr, 652 F.3d at 1216 (finding plaintiff’s allegations of
8 specific and numerous other incidents involving conduct similar to that complained of by the
9 plaintiff and notice of all incidents as sufficient for Monell pleading).
10 The Court also finds that the FAC contains sufficient allegations of underlying facts to give
11 fair notice and enables defendant to defend itself. The FAC states that defendant was given notice
12 of the prior incidents through its own “internal affairs investigations or other internal reviews of the
13 incidents.” FAC ¶ 47. Moreover, all of the cases listed in the FAC are accompanied by a case
14 number and the cases name defendant City of Pittsburg as a defendant in the case. As a named
15
identification, turns to run away while apparently unarmed, is shot in buttocks); Bengard, et
16
al. v. City of Pittsburg, et al., USDC (N.D. Cal.) Case No.: 4:17-cv-02730-KAW (15 year
old repeatedly tasered while allegedly posing no threat; pregnant woman “violently knocked
17
to the ground”; female victim/911 caller re: domestic violence “violently pushed” to the
ground; taser deployed on another citizen under “unconscionable and unjustifiable”
18
circumstances); Boone v. City of Pittsburgh [sic], et al., USDC (N.D. Cal.) Case No.: 3:15-
cv-01231-EDL (police vehicle deliberately used to strike and pin citizen, unnecessarily
19
prolonging the period of time the citizen’s leg was “crushed” underneath its tire); Crosley,
et al. v. City of Pittsburg, et al., USDC (N.D. Cal.) Case No.: 3:05- cv-04051-JSW (sweeping
20
side arm blow knocking female citizen to concrete sidewalk and “trampling” on her, causing
severe leg injuries); Jackson, et al. v. City of Pittsburg, et al., USDC (N.D. Cal.) Case No.:
21
3:09-cv-01016-WHA (excessive force alleged as to four plaintiffs – two of whom were
minors); Jiles v. City of Pittsburg, et al., USDC (N.D. Cal.) Case No.: 3:12-cv03795-MEJ
22
(excessive force consisting of slamming citizen onto parked van, hair grabbing, knee strikes
to head and chest, and release of police dog after citizen was face down on pavement after
23
surrender with multiple officers’ weight upon him); Jones v. City of Pittsburg, et al., USDC
(N.D. Cal.) Case No.: 3:11-cv-00294-THE (face smashed into the ground, “beating” of
24
citizen, and officer’s foot applied to hold citizen’s face and head to the ground); Martinez v.
City of Pittsburg, et al., USDC (N.D. Cal.) Case No.: 4:11-cv-01017-DMR (deliberate
25
tripping to the ground of handcuffed citizen following which officers repeatedly struck him);
Martinez v. City of Pittsburg, et al., USDC (N.D. Cal.) Case No.: 3:17-cv-04246-RS
26
(improper carotid hold, gun pointing, taser deployments, punches, elbow strikes and knee
strikes resulting in death of the citizen); Harvey v. City of Antioch, et al., USDC (N.D. Cal.)
27
Case No.: 3:11-cv-04986-LB (taser deployment “manhandling” and “wrenching” of
1 defendant in all ten cases, the Court can reasonably infer that defendant was served with actual
2 notice of these prior proceedings. See Mateos–Sandoval v. Cty. of Sonoma, 942 F.Supp.2d 890, 899
3 (N.D. Cal. 2013) (concluding allegations that “specify the content of the policies . . . are sufficient
4 to ‘give fair notice and to enable the opposing party to defend itself effectively,’ particularly since
5 information relating to the policies, customs, and practices of County Defendants . . . [are] likely to
6 be easily available to them”).
7 Regarding the second part of the Ninth Circuit’s rule, taking plaintiff’s factual allegations as
8 true, the Court finds that there is no “obvious alternative explanation” for why defendant did not
9 take steps to prevent future constitutional violations despite being on notice of the prior lawsuits
10 against the defendant. In Twombly, the Supreme Court stated that there is no “probability
11 requirement at the pleading stage . . . [pleading] simply calls for enough fact to raise a reasonable
12 expectation that discovery will reveal evidence” to support the allegations.” Twombly, 550 U.S. at
13 556. In Starr, the Ninth Circuit explained that the standard at the motion to dismiss stage of litigation
14 “is not that plaintiff’s explanation must be true or even probable. The factual allegations of the
15 complaint need only ‘plausibly suggest an entitlement to relief.’” Starr, 652 F.3d at 1216-17.
16 Defendant has not presented an alternative explanation for the city’s failure to act considering the
17 lawsuits filed against defendant. See id. at 16 (“Plaintiff's complaint may be dismissed only when
18 defendant's plausible alternative explanation is so convincing that plaintiff's explanation is
19 implausible.”) Therefore, the Court finds that the factual allegations in the FAC plausibly suggest
20 that plaintiff is entitled to relief.
21
22 B. Deliberate Indifference
23 Defendant argues that plaintiff must plead “factually similar situations of sufficient duration,
24 frequency and consistency that put the [defendant] on notice” to show deliberate indifference. Dkt.
25 No. 28 at 9 (emphasis added).
26 The Supreme Court has held that deliberate indifference “is a stringent standard of fault,
27 requiring proof that a municipal actor disregarded a known or obvious consequence of his action.”
1 indifference exists when the need “for more or different” action “is so obvious, and the inadequacy
2 [of existing practice] so likely to result in the violation of constitutional rights, that the policymakers
3 of the city can reasonably be said to have been deliberately indifferent to the need.” City of Canton
4 v. Harris, 489 U.S. 378, 390 (1989). In Hyun Ju Park, the Ninth Circuit explained that a plaintiff
5 can demonstrate deliberate indifference in two ways:
6
In some circumstances, the policy may be so facially deficient that
7
any reasonable policymaker would recognize the need to take action
8 . . . When that is the case, a plaintiff need point only to the policy itself
to establish that the municipality's policymakers were on notice that
9 the plaintiff's federally protected rights would likely be violated if
they failed to act . . . Alternatively, if the policy is not obviously,
10 facially deficient, a plaintiff must ordinarily point to a pattern of
prior, similar violations of federally protected rights, of which the
11
relevant policymakers had actual or constructive notice.
12
Hyun Ju Park v. City and County of Honolulu, 952 F.3d 1136, 1141-42 (9th Cir. 2020) (internal
13
citations omitted) (emphasis added).
14
Regardless of whether defendant’s policies were facially deficient, the Court finds that the
15
FAC provides sufficient facts to plead defendant’s alleged policy, custom, or practice amounted to
16
deliberate indifference to the plaintiff's constitutional rights. Assuming the policies were facially
17
deficient, the FAC satisfies the pleading standard by specifically listing the various policies in the
18
FAC. See supra, Section I(A). Assuming the policies were not obviously deficient, the FAC meets
19
the pleading standard by showing a pattern of prior violations of federally protected rights, of which
20
the city’s policymakers had actual or constructive notice. As discussed previously, the defendant
21
was listed as a defendant in each of the similar cases listed in the FAC. See supra, Section I(A).
22
Therefore, the FAC sufficiently pleads facts showing deliberate indifference.
23
Accordingly, the Court DENIES defendant’s motion dismiss plaintiff’s Monell liability
24
claim based to the extent that it is based on custom and policy theory.
25
26
II. Ratification Theory of Municipal Liability
27
1 because plaintiff “failed to provide any facts demonstrating [defendant] or any policymaker had
2 knowledge of the alleged unconstitutional actions by [police] officers” or any evidence that
3 defendant made a conscious or affirmative choice to ratify defendant Borman’s alleged
4 unconstitutional conduct. Dkt. No. 28 at 12.
5 In Lytle, the Ninth Circuit stated that a ratification theory of Monell liability requires “a
6 plaintiff to show that the ‘authorized policymakers’ approve a subordinate’s decision and the basis
7 for it. . . The policymaker must have knowledge of the constitutional violation and actually approve
8 of it.” Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004).
9 Plaintiff argues that paragraphs 48-49 of the FAC sufficiently plead Monell liability based
10 on ratification. Dkt. No. 29 at 19. The FAC states:
11
that such policymakers [within the City of Pittsburg] have direct
12 knowledge of the facts of this incident. Notwithstanding this
knowledge, the authorized policymakers. . . have approved of the
13 conduct of Defendants BORMAN . . .and other Police Department
personnel, and have made a deliberate choice to endorse the decisions
14 of those defendant officers and the basis for those decisions. By so
doing, the authorized policy makers within the CITY and the PPD
15
have shown affirmative agreement with the individual defendant
16 officers’ actions, and have ratified the unconstitutional acts of the
individual defendant officers.”
17
Dkt. No. 24 at 13.
18
The Court finds that the FAC does not have sufficient facts to support a claim for municipal
19
liability based upon ratification. Even though the FAC includes sufficient facts to plead that
20
defendant was aware of prior instances of alleged police misconduct, plaintiff has failed to plead
21
facts as to how policymakers ratified police conduct. The FAC states that defendant’s “authorized
22
policymakers … approved . . . prior conduct” and thus “made a deliberate choice to endorse
23
defendant [officers’] decisions and the basis for those decisions.” These allegations are conclusory
24
and lacking factual support of ratification. The FAC does not state what action by the defendant
25
constituted approval. Cf. Lytle, 382 F.3d at 987 (“A mere failure to overrule a subordinate's actions,
26
without more, is insufficient to support a § 1983 claim”).
27
Therefore, the Court GRANTS defendant’s motion to dismiss plaintiff’s Monell liability
1 claim to the extent that it is based on ratification theory, with leave to amend the complaint to
2 || demonstrate how policymakers ratified alleged prior misconduct. See Ariz. Students’ Assn. v. Ariz.
3 || Bd. of Regents, 824 F.3d 858, 871 (9th Cir. 2016) (“Dismissal of a complaint without leave to amend
4 || is only proper when, upon de novo review, it is clear that the complaint could not be saved by any
5 amendment.”) The Court takes no position on whether plaintiff will or should amend at this point.
6 || Ifhe chooses to do so, he must file his amended complaint no later than February 26, 2021.
7
8 CONCLUSION
9 For the foregoing reasons and for good cause shown, the Court hereby GRANTS
10 || defendant’s motion to dismiss plaintiffs Monell claim to the extent that the claim is based on a
11 ratification theory and DENIES defendant’s motion to dismiss to the extent that the claim is based
12 || onacustom and policy theory of Monell liability. The Court GRANTS plaintiff leave to amend its
5 13 First Amended Complaint to conform with the requirements of this order.
14
IT IS SO ORDERED.
a 16 || Dated: February 10, 2021 Stn Ml ee
8 SUSAN ILLSTON.
United States District Judge
19
20
21
22
23
24
25
26
27
28