The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
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7 ANTHONY HARRISON OSTER, Case No. 21-cv-03562-SI
8 Plaintiff,
ORDER GRANTING DEFENDANTS'
9 v. MOTION TO DISMISS
10 CITY OF CAPITOLA, et al., Re: Dkt. No. 10
11 Defendants.
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13 On July 9, 2021, defendants City of Capitola, Police Chief Terry McManus, and officers
14 Samuel Estrada, Alberto Gonzalez, and Steven Anderson (collectively “defendants”) moved to
15 dismiss Anthony Oster’s complaint. Dkt. No. 10. The Court previously determined the motion was
16 appropriate for determination without oral argument, in accordance with Local Rule 7-1(b). For the
17 reasons set forth below, the motion is GRANTED. The amended complaint shall be filed on or
18 before September 17, 2021.
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20 BACKGROUND
21 I. Allegations re the May 9, 2020 Incident
22 Mr. Oster’s complaint arises from a May 9, 2020 incident with the Capitola police. Dkt. No.
23 2 at 15. Mr. Oster alleges he was riding his bicycle in the bike lane going eastbound on Capitola
24 Road shortly after midnight. Id at 15. Allegedly, Officer Estrada noticed plaintiff’s bicycle did not
25 have a rear red light or reflector and initiated the traffic stop. Id.
26 There were no outstanding warrants for Mr. Oster and Mr. Oster did not have any weapons
27 on his person. Id. at 18. Mr. Oster admits he was annoyed and rude to the officers when he was
1 complaint alleges Officer Estrada put his hand on Mr. Oster’s shoulder while Officer Gonzalez
2 “violently and without warning” took Mr. Oster to the ground and broke his left leg. Id. at 18. The
3 complaint alleges the officers initiated force without any verbal warning and, during the use of force,
4 the officers repeatedly yelled “stop resisting” even though Mr. Oster never resisted. Id. at 22.
5 Mr. Oster was transported to Dominican Hospital in Santa Cruz, CA, where doctors imaged
6 Mr. Oster’s left leg and determined his injuries were severe enough to require surgery. Id at 20.
7 Mr. Oster was then transported to Natividad Hospital Emergency Department in Salinas, CA, where
8 he underwent surgery to address the multiple fractures to his left leg – but the complaint is silent on
9 when this occurred. Id. at 20.
10 After the incident, Mr. Oster alleges the police officer defendants wrote inaccurate and
11 misleading police reports and omitted exculpatory evidence with respect to Mr. Oster. Id at 26.
12 The complaint alleges, again without providing dates, that Mr. Oster was at some point
13 arrested and criminally cited for resisting/delaying peace officers during the scope of their duties.
14 Id. at 21. The Santa Cruz County District Attorney’s Office prosecuted Mr. Oster, allegedly, based
15 on the misstatements and inaccuracies in the defendant officers’ police reports. Id at 28. All charges
16 against Mr. Oster were ultimately dropped. Id. at 29.
17 The Capitola Chief of Police, Terry McManus allegedly conducted an internal investigation
18 into the officers’ use of force against Mr. Oster and exonerated them. Id at 21.
19 Plaintiff filed suit in this Court on May 12, 2021, alleging nine causes of action for: (1) 4th
20 Amendment Violation – Excessive Force; (2) 4th Amendment Violation – Search & Seizure; (3) 4th
21 Amendment Violation – Malicious Prosecution; (4) Assault; (5) Battery; (6) False Arrest; (7)
22 Intentional Infliction of Emotional Distress; (8) Negligent Infliction of Emotional Distress; (9)
23 Violation of California’s Bane Act.
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25 II. Allegations re Custom, Practice & Policy
26 The complaint also alleges the City of Capitola and Police Chief Terry McManus embrace
27 customs, practices, and policies that encourage and/or condone unconstitutional practices,
a. To use, tolerate, or instruct the use of excessive and/or unjustified force;
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b. To engage in or tolerate unreasonable seizures and restraints;
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c. To engage in or tolerate the improper and dangerous use of police dogs;
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d. To fail to institute, require, and enforce proper and adequate training,
4 supervision, policies, and procedures concerning stops, arrests, and the use of force;
5 e. To fail to institute, require, and enforce proper and adequate training,
supervision, policies, and procedures concerning handling mentally ill and/or
6 emotionally disturbed people;
7 f. To hide or cover up violations of constitutional rights by any of the following:
8 i. By failing to properly investigate and/or evaluate complaints or incidents of
excessive and unreasonable force, unlawful seizures, and/or handling of mentally ill
9 and/or emotionally disturbed people;
10 ii. By ignoring and/or failing to properly investigate and/or discipline
unconstitutional or unlawful law enforcement activity;
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iii. By allowing, tolerating, and/or encouraging law enforcement officers to fail to
12 file complete and accurate reports; file false reports; make false statements; collude
in report writing; and/or obstruct or interfere with investigations of unconstitutional
13 or unlawful law enforcement conduct by withholding and/or concealing material
information;
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g. To allow, tolerate, and/or encourage a ‘code of silence’ among law enforcement
15 officers and police department personnel, whereby an officer or member of the
police department does not provide adverse information against a fellow officer or
16 member of the department; and
17 h. Defendants CITY OF CAPITOLA and chief TERRY MCMANUS failed to
properly hire, train, instruct, monitor, supervise, evaluate, investigate, and
18 discipline the individual officers involved herein, with deliberate indifference to
Plaintiff’s constitutional rights.
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Id at 35. The complaint further alleges the City of Capitola and Police Chief McManus inadequately
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and improperly investigate claims of excessive force and does not monitor or track the number of
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times his officers are accused of doing so. Id at 36-38.
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DISCUSSION
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Defendants move to dismiss all of plaintiff’s claims, but only with respect to the City of
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Capitola, Police Chief McManus, and Steven Anderson. See generally Dkt. No. 10 (Motion to
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Dismiss). It is implicit is defendants’ motion that the complaint adequately pleads causes of action
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against officers Gonzalez and Estrada. Defendants correctly point out that for many of plaintiff’s
1 claims, plaintiff fails to specify which defendants the claim is asserted against and fails to state facts
2 for each defendant. Dkt. No. 10 at 16. Indeed, plaintiff admits as much:
3 Upon review of Defendants’ Motion, Plaintiff concedes he made a serious,
unintentional error in drafting his Complaint. For each of the nine counts within
4 Plaintiff’s Complaint, Plaintiff neglected to specify with each count which Defendant
or Defendants to whom that count applies. Plaintiff asks the Court for leave to amend
5 accordingly…
6 Dkt. No. 11 at 5 (Opposition).
7 Further, while the complaint seems to allege all causes of action against all the officer
8 defendants, the complaint primarily contains facts with respect to officer Gonzalez. The complaint
9 is sparse at best with respect to Officer Estrada’s conduct and silent with respect to Officer
10 Anderson’s conduct. The complaint does not allege Officer Anderson ever touched or said anything
11 to plaintiff. To survive a motion to dismiss, plaintiff must make clear which causes of action are
12 asserted against which defendants with necessary allegations in support thereof.
13 Finally, the complaint is deficient as to plaintiff’s Monell claims, which are confusingly
14 included within the various causes of action. Local government entities are “persons” subject to
15 liability under § 1983 where official policy or custom causes a constitutional tort, see Monell, 436
16 U.S. at 690; however, a municipality may not be held vicariously liable for the unconstitutional acts
17 of its employees under the theory of respondeat superior, see Board of County Comm’rs v. Brown,
18 520 U.S. 397, 403 (1997); Monell, 436 U.S. 658 at 691 (1978). Thus, a public entity “cannot be held
19 liable solely because it employs a tortfeasor.” Monell, 436 U.S. at 691.
20 To establish an official policy that would give rise to Monell liability, a plaintiff must allege
21 facts to support one of the following to survive dismissal of its claim: (1) an unconstitutional custom
22 or policy behind the violation of rights; (2) a deliberately indifferent omission, such as a failure to
23 train or failure to have a needed policy; or (3) a final policymaker’s involvement in, or ratification
24 of, the conduct underlying the violation of rights. Clouthier v. County of Contra Costa, 591 F.3d
25 1232, 1249-50 (9th Cir. 2010) (synthesizing authorities), overruled on other grounds by Castro v.
26 Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016).
27 Here, plaintiff’s Monell claims suffer from several issues. First, all the Monell allegations
1 Capitola. Second, many of the Monell claims are conclusory and wholly unsupported by allegations.
2 || For example, plaintiff alleges a pattern/practice/custom of “engag[ing] in or tolerat[ing] the
3 || improper and dangerous use of police dogs.” Dkt. No. 2 at 35. However, the facts of the complaint
4 || do not so much as mention police dogs. Another example: plaintiff alleges the Capitola Police fail
5 “to properly investigate and/or evaluate complaints or incidents of excessive and unreasonable force,
6 || unlawful seizures, and/or handling of mentally ill and/or emotionally disturbed people.” Dkt. No.
7 2 at 35. But the complaint does not allege plaintiff was mentally ill or emotionally disturbed at the
8 time of the incident (or indeed at any time). Pleading Monell liability requires facts showing a causal
9 || link between the alleged policy and plaintiff's injury. See Monell, 436 U.S. at 690-92. It is
10 axiomatic that plaintiff may only plead alleged policies, practices, and customs he has standing to
11 bring.
12 For the reasons stated above, defendant’s motion to dismiss is GRANTED. Plaintiff shall
13 file an amended complaint on or before September 17, 2021.
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IT IS SO ORDERED.
a 16 Dated: August 25, 2021 Site WU tee
SUSAN ILLSTON
Z 18 United States District Judge
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