Johansen v. County of Napa

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3 UNITED STATES DISTRICT COURT

4 NORTHERN DISTRICT OF CALIFORNIA

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7 VIRGINIA JOHANSEN ., Case No.: 21-CV-1892 YGR

8 Plaintiffs, ORDER GRANTING MOTION TO DISMISS

WITH LEAVE TO AMEND

9 vs.

10 COUNTY OF NAPA .,

11 Defendants.

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13 Pending before this Court is defendants’ partial motion to dismiss.1 Having carefully

14 considered the pleadings and papers submitted, and for the reasons set forth below, the Court

15 GRANTS defendants’ motion.

16 The legal standard is not in dispute and will not be repeated here.

17 1. Second Cause of Action

18 With respect to the motion to dismiss the Fourteenth Amendment claim brought by

19 plaintiffs Kurt Nylander, the decedent’s uncle and Kristine Brott the decedent’s aunt, the claim is

20 based on excessive use of force and is properly analyzed under the Fourth Amendment as it

21 provides the explicit textual source of constitutional protection for allegations of excessive force in

22 the course of an arrest, investigatory stop, or other ‘seizure’ of a free person. See Graham v.

23 Connor, 490 U.S. 386, 395 (1989); Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). Plaintiffs’

24 claim under the Fourteenth Amendment is duplicative and cannot be sustained. Further, only

25 decedent’s parents, children, personal representative, or successor in interest will have a right to

26 bring a substantive due process claim under the Fourteenth Amendment, it is improper to allow the

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1 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court

28 finds that this motion is appropriate for decision without oral argument. Accordingly, the Court

VACATES the hearing set for September 21, 2021.

1 claim to be brought by a decedent’s uncle or aunt when they do not fulfill the necessary roles set

2 forth above. Palacio v. City of Oakland, 970 F. Supp. 732, 745 (1997) (holding that while mother

3 could assert a due process claim based on deprivation of familial relationship with her son based on

4 alleged use of excessive force against him, uncle and half-sisters did not have substantive due

5 process rights as to their nephew/half-brother).

6 The motion is granted without leave to amend.

7 2. Third, Fourth, and Fifth Causes of Action

8 Defendants’ motion argues that the claims for Monell liability are conclusory and require

9 factual allegations to state plausible claims for relief.

10 Rarely, if ever, can a practice be based on a single, isolated, event. Here, the complaint fails

11 to advise of any basis from which the Court can discern an actionable claim. More is required to

12 give notice. Board of the County Comm’rs v. Brown, 520 U.S. 397, 409 (1997). Plaintiffs have not

13 alleged specific factual allegations illustrating any of the essential elements of Monell liability:

14 An unconstitutional policy need not be formal or written to create municipal

liability under Section 1983; however, it must be “so permanent and well

15 settled as to constitute a ‘custom or usage’ with the force of law.” Adickes v.

S.H. Kress & Co., 398 U.S. 144, 167–68, 90 S.Ct. 1598, 26 L.Ed.2d 142

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(1970); see also Monell, 436 U.S. at 691, 98 S.Ct. 2018 (unwritten policy or

17 custom must be so “persistent and widespread” that it constitutes a

“permanent and well settled” practice) (quoting Adickes, 398 U.S. at 167–68,

18 90 S.Ct. 1598)). “Liability for improper custom may not be predicated on

19 isolated or sporadic incidents; it must be founded upon practices of sufficient

duration, frequency and consistency that the conduct has become a

20 traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911,

918 (9th Cir. 1996).

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22 Gordon v. Cty. of Orange, 6 F.4th 961, 974 (9th Cir. 2021). The motion is granted on this basis

23 with leave to amend.

24 Similarly, the complaint further fails to provide sufficient facts to state a claim based on

25 ratification. Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004). The proffered references to District

26 Attorney Allison Haley are insufficient and confusing. It’s not clear whether the complaint seeks to

27 name her as a defendant and whether they would even survive immunity defenses.

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1 It could be that plaintiff does not have sufficient facts at this juncture to state a claim and

2 || discovery will be required before pursuing any Monell liability. If so, that issue is appropriately

3 || addressed at the case management conference.

4 3. Wrongful Death Claims

5 Defendants’ argument that plaintiffs should not be allowed to amend to bring a wrongful

6 || death claim in addition to a Section 1983 claim does not persuade. These are independent claims

7 || even if they rely on the same or similar sets of facts. The motion is denied on this basis.

8 That said, the “elements of the cause of action for wrongful death are the tort (negligence or

9 || other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered

10 || by the heirs.” Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th 1256, 1264 (2006) (citation omitted)

11 || (emphasis in original). Plaintiffs shall disentangle the state claim from the federal claim if they are

12 || alleging a distinct cause of action. Further, apparently, plaintiffs can amend to allege compliance

E 13 || with the Government Claims Act, which is also required. The motion to dismiss is granted on this

14 || basis with leave to amend.

8 15 Conclusion

§ 16 Plaintiffs shall file an amended complaint within 21 days of this order. Plaintiffs are

17 || advised that the proffered complaint remains insufficient. Defendants shall respond within 21 days

= 18 thereafter. Defendants shall not make any new arguments which could have been made during this

2 19 round of motions.

20 IT IS SO ORDERED.

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Date: September 14, 2021

22 | 3 YVONNE ROGERS 3

3 UNITED STATES DISTRICT COURT JUDGE

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