Soler v. San Diego, County of

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 JAMES SOLER, Case No. 14cv2470-MMA (RBB)

12 Plaintiff,

ORDER DENYING PLAINTIFF’S

13 v. MOTION FOR LEAVE TO FILE

FOURTH AMENDED COMPLAINT

14 COUNTY OF SAN DIEGO, et al.,

15 Defendants. [Doc. No. 210]

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20 Plaintiff James Soler brings a claim for municipal liability against Defendant

21 County of San Diego (“the County”) in this civil rights action pursuant to Monell v.

22 Department of Social Services, 436 U.S. 658, 690-91 (1978), and 42 U.S.C. § 1983. See

23 Doc. No. 60. Plaintiff moves for leave to file a Fourth Amended Complaint for the

24 purpose of amending his Monell claim against the County. See Doc. No. 210. The

25 County filed an opposition to the motion, to which Plaintiff replied. See Doc. Nos. 211,

26 212. The Court took the matter under submission on the briefs pursuant to Civil Local

27 Rule 7.1.d.1 and Federal Rule of Procedure 78(b). See Doc. No. 213. For the reasons set

28 forth below, the Court DENIES Plaintiff’s motion.

1 BACKGROUND

2 This action arises out of events involving Plaintiff’s arrest and detention for a

3 thirty-year old crime he did not commit.1 At the time of his arrest and upon being booked

4 into San Diego Central Jail, Plaintiff stated his innocence and argued that he was the

5 victim of a case of mistaken identity. Defendant San Diego County Sheriff’s Deputy

6 Ernesto Banuelos (“Banuelos”) was assigned to investigate Plaintiff’s claim. Ultimately,

7 Plaintiff was wrongfully detained for eight days before officials confirmed his identity

8 and released him.

9 Plaintiff brought a Fourteenth Amendment due process claim against Banuelos

10 based on Banuelos’ failure to adequately conduct a further investigation into Plaintiff’s

11 claim of mistaken identity.2 Plaintiff also brought a Monell claim against the County,

12 alleging that it was the practice of the San Diego County Sheriff’s Department to

13 undertake by “snail mail” the exchange of documents and information with other

14 agencies after effectuating an arrest, resulting in wrongful detention.

15 Banuelos and the County moved for summary judgment in their favor. See Doc.

16 No. 143. The Court granted judgment in favor of Banuelos on the ground that Plaintiff’s

17 “wrongful eight-day detention, while unfortunate, did not violate the Due Process Clause

18 of the Fourteenth Amendment.” Doc. No. 160 at 14.3 The Court also granted judgment

19 in favor of the County. The Court determined that “[b]ecause the individual [defendant]

20 officers did not violate Plaintiff’s constitutional rights, Plaintiff’s claim for municipal

21 liability” failed “as a matter of law.” Id. at 15. The Court further held that “[e]ven if a

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1 Based on the parties’ and the Court’s familiarity with Plaintiff’s factual allegations, the Court does not

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set forth a detailed recitation of those allegations herein except as relevant to the proposed amendment

25 of Plaintiff’s Monell claim and disposition of the instant motion.

26 2 Plaintiff’s Fourteenth Amendment claim against Banuelos is Plaintiff’s sole remaining claim in this

action against an employee of the County.

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3 Citations to electronically filed documents refer to the pagination assigned by the CM/ECF system.

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1 constitutional violation had occurred, Plaintiff has not demonstrated that ‘his deprivation

2 resulted from an official policy or custom established by a municipal policymaker

3 possessed with final authority to establish that policy.’” Id. at 16 (quoting Erdman v.

4 Cochise County, 926 F.2d 877, 882 (9th Cir. 1991)). Plaintiff sought to constructively

5 amend his claim, altering his theory of the County’s liability to avoid summary judgment.

6 The Court denied Plaintiff leave to amend his Monell claim on the grounds that

7 “amendment would be futile based on the Court’s determination that no underlying

8 constitutional violation occurred.” Id. at 16. The Court further noted that “[i]f Plaintiff is

9 allowed to amend his complaint . . . he will have effectively evaded the termination of his

10 lawsuit on summary judgment.” Id.

11 Plaintiff appealed. The Ninth Circuit reversed the Court’s judgment in favor of

12 Banuelos as to Plaintiff’s Fourteenth Amendment claim. The circuit court held that

13 “given the conflicting evidence about whether Banuelos initiated any further

14 investigation, a reasonable juror could conclude that he violated Soler’s rights.” Doc.

15 No. 203 at 8-9. The Ninth Circuit also held that Banuelos was not entitled to qualified

16 immunity from suit. The circuit court instructed this Court on remand to “reconsider

17 Soler’s request for leave to amend his complaint” with respect to his Monell claim based

18 on its determination “that a reasonable juror could conclude that” Banuelos violated

19 Plaintiff’s Fourteenth Amendment rights. Id. at 10.

20 Plaintiff requests that the Court reconsider its previous ruling and grant him leave

21 to amend his Monell claim against the County.

22 DISCUSSION

23 1. Legal Standard

24 Federal Rule of Civil Procedure 15(a) provides the relevant legal standard.4 “Rule

25 15(a) is very liberal and leave to amend ‘shall be freely given when justice so requires.’”

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4 The County cites Federal Rule of Civil Procedure 16 as providing the applicable legal standard. See

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1 AmerisourceBergen Corp. v. Dialysist West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006)

2 (quoting Fed. R. Civ. P. 15(a)). Courts consider “undue delay, bad faith, dilatory motive,

3 repeated failure to cure deficiencies by previous amendments, undue prejudice to the

4 opposing party, and futility of the proposed amendment” in deciding whether justice

5 requires granting leave to amend under Rule 15. Moore v. Kayport Package Express,

6 Inc., 885 F.2d 531, 538 (9th Cir. 1989) (citing Foman v. Davis, 370 U.S. 178, 182

7 (1962)). These factors are not of equal weight; prejudice to the opposing party is the

8 most crucial factor in determining whether to grant leave to amend. See Eminence

9 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (“As this circuit and

10 others have held, it is the consideration of prejudice to the opposing party that carries the

11 greatest weight.”); see also Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir.

12 1990); Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973). “The district

13 court’s discretion to deny leave to amend is particularly broad where plaintiff has

14 previously amended the complaint.” Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d

15 1149, 1160 (9th Cir. 1989).

16 2. Analysis

17 a) Futility of Amendment

18 First, the Court considers whether Plaintiff’s proposed amendment would

19 ultimately be futile. “Futility of amendment can, by itself, justify the denial of a motion

20 for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). “Leave to

21 amend need not be given if a complaint, as amended, is subject to dismissal.” Moore,

22 885 F.2d at 538. Plaintiff seeks leave to amend his Monell claim against the County

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26 a court-ordered deadline for doing so has passed. See Fed. R. Civ. P. 16(b)(4). On January 14, 2020,

the assigned magistrate judge issued the operative post-remand scheduling order setting forth a January

27 17, 2020 deadline for Plaintiff to file a motion to amend his complaint. See Doc. No. 209 ¶ 1. Plaintiff

timely filed the instant motion. Accordingly, Rule 16(b)(4) does not apply and Rule 15(a) provides the

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1 based on two theories of municipal liability. The Court considers the relevant law and

2 each proposed theory of liability in turn.

3 i. Relevant Law

4 “Local governing bodies . . . can be sued directly under § 1983 for monetary,

5 declaratory, or injunctive relief where, as here, the action that is alleged to be

6 unconstitutional implements or executes a policy statement, ordinance, regulation, or

7 decision officially adopted and promulgated by that body’s officers.” Monell, supra, 436

8 U.S. at 690. Put another way, to prevail on a claim against a municipal entity for a

9 constitutional violation, a plaintiff must demonstrate that his injury is attributable “to

10 official municipal policy of some nature.” Id. at 691. As such, “[m]unicipal liability

11 under Monell is established where ‘the appropriate officer or entity promulgates a

12 generally applicable statement of policy and the subsequent act complained of is simply

13 an implementation of that policy.’” Harper v. City of L.A., 533 F.3d 1010, 1024 (9th Cir.

14 2008) (quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 417 (1997)). The suspect

15 policy “need only cause [the] constitutional violation; it need not be unconstitutional per

16 se.” See Jackson v. Gates, 975 F.2d 648, 654 (9th Cir. 1992).

17 Importantly, “it is not enough for a § 1983 plaintiff merely to identify conduct

18 properly attributable to the municipality. The plaintiff must also demonstrate that,

19 through its deliberate conduct, the municipality was the ‘moving force’ behind the injury

20 alleged. That is, a plaintiff must show that the municipal action was taken with the

21 requisite degree of culpability and must demonstrate a direct causal link between the

22 municipal action and the deprivation of federal rights.” Bd. of Cty. Comm’rs, 520 U.S. at

23 404.

24 ii. Analysis

25 The question post-remand is whether Plaintiff plausibly alleges that a County

26 policy was the moving force behind Banuelos’ purportedly unconstitutional actions.

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1 a. Special Directive 25

2 Plaintiff’s first theory of municipal liability is based on San Diego District

3 Attorney’s Special Directive 25, “Fingerprint Comparisons,” a policy requiring

4 verification by a second examiner when fingerprints do not match. Plaintiff alleges that

5 Special Directive 25 was a moving force behind his prolonged wrongful detention.

6 According to Plaintiff:

7 Mr. Soler was arrested on January 13, 2014, and on January 16, 2014, a

fingerprint technician in the DA’s Office compared Mr. Soler’s and Mr.

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Dishman’s fingerprints and wrote a report stating that those fingerprints do

9 not match. Pursuant to the DA’s Special Directive 25, the prints were then

forwarded to another technician for review, who did not conduct the second

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fingerprint comparison until January 21, 2014, and at that time wrote a second

11 report stating that the men’s fingerprints do not match. Because of the

requirement for two fingerprint analyses found in Special Directive 25, Mr.

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Soler was not released from custody until that second print comparison was

13 done on January 21, 2014, thus that Directive was a moving force behind Mr.

Soler’s on-going unlawful detention.

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15 Id. ¶ 64.

16 The County argues that Plaintiff’s proffered amendment is futile because the

17 District Attorney was acting on behalf of the State of California, not the County, when

18 technicians fingerprinted Plaintiff in accordance with the procedures set forth in Special

19 Directive 25. The County further asserts that Banuelos was not tasked with

20 implementing or executing Special Directive 25.

21 Assuming without deciding that the District Attorney was acting on behalf of the

22 County when it conducted the analyses of Plaintiff’s fingerprints, Plaintiff nonetheless

23 fails to plausibly allege that Banuelos’ actions were the result of Special Directive 25, or

24 that at any time Banuelos was involved with implementing or executing the District

25 Attorney’s fingerprinting procedures. Plaintiff’s allegations suggest instead that the

26 District Attorney would not have had to conduct to a fingerprint comparison, thus

27 implicating the objectionable fingerprinting policy, but for Banuelos’ inadequate

28 investigation. Of course, Monell requires the implementation or execution of the suspect

1 policy to result in the constitutional violation, not the other way around. Accordingly,

2 amendment of Plaintiff’s Monell claim based on this theory of liability would be futile.

3 b. Policy Q.80

4 Plaintiff’s second theory of municipal liability is based on San Diego County

5 Sheriff’s Department Detention Services Bureau Policy/Procedure Q.80, “Possible

6 Wrong Person On Warrant.” The purpose of the policy is “[t]o ensure an inmate is

7 correctly identified as being the same subject named in the warrant or document on which

8 he/she is in custody.” Doc. No. 210-2 at 117. The policy provides that “[t]he Jail

9 Investigator will be responsible for determining if the inmate is the person named on the

10 warrant.” Id. The policy directs appropriate action based on the Jail Investigator’s

11 findings:

12 3. If the Jail Investigator is unable to determine if the inmate is the subject of

the warrant, the inmate will remain in custody. The Jail Investigator will notify

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the court of jurisdiction and arrange an identity hearing.

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4. If the inmate is determined to be the wrong person, the Watch Commander

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or his designate (in most cases the Processing Sergeant) will ensure the inmate

16 remains segregated and is processed and released from custody immediately.

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18 Id. Plaintiff alleges that “[t]he language of Policy Q.80, and how it is logically

19 understood by SDSD deputies, requires a deputy to have 100% confidence that the wrong

20 man is in custody before ordering that man’s release.” Id. at 239 (Proposed Fourth

21 Amended Complaint ¶ 63).

22 Plaintiff’s purported constitutional deprivation arises out of Banuelos’ alleged

23 failure to adequately investigate and verify Plaintiff’s identity. In order to establish the

24 requisite causal connection between Banuelos’ actions and Policy Q.80, Plaintiff must

25 allege that the County’s “deficient procedures are to blame for the misidentification.”

26 Garcia v. Cty. of Riverside, 817 F.3d 635, 642 (9th Cir. 2016). To this end, Plaintiff

27 claims:

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1 Deputy Banuelos concluded that there was not probable cause to believe that

Mr. Soler was the person wanted on the warrant (i.e., Steven Dishman), but

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he did not release Mr. Soler because he believed there was “some possibility”

3 that he was Mr. Dishman. A person, however, cannot be detained on a warrant

once there is no longer probable cause to believe he is the person wanted.

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Thus, even if there was probable cause for Mr. Soler’s initial arrest, when that

5 dissipated based on additional facts learned by Deputy Banuelos and others,

Deputy Banuelos and others were required to release Mr. Soler. Deputy

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Banuelos and others nonetheless continued to hold Mr. Soler because Policy

7 Q.80 indicated that was required, thus Policy Q.80 was a driving force behind

Mr. Soler’s detention continuing for several more days. The problem with

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Policy Q.80’s language was compounded by the fact that it provides almost

9 no direction as to how a deputy should carry out an investigation, nor is there

any other SDSD policy, procedure, or practice that provides such guidance,

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nor are deputies provided adequate training in this respect by the County of

11 San Diego or the SDSD.

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13 Id.

14 The County argues that this proffered amendment is futile because Plaintiff cannot

15 demonstrate that his injury, to wit, the wrongful eight-day detention, was attributable to

16 Policy Q.80. The County asserts that the policies and procedures of the Uniform

17 Criminal Extradition Act (“UCEA”), adopted and codified as California Penal Code §§

18 1548-1558, apply when individuals are detained pursuant to a Governor’s Warrant of

19 Rendition, and thus supersede the provisions of Policy Q.80 with which Plaintiff takes

20 issue. As such, the County argues that Policy Q.80 was not the moving force behind

21 Plaintiff’s prolonged detention.

22 While the UCEA provides the authority to detain an individual pursuant to a

23 Governor’s Warrant of Rendition, the gravamen of Plaintiff’s constitutional claim arises

24 out of Banuelos’ inadequate investigation into Plaintiff’s identity. Policy Q.80 sets forth

25 the County’s general procedures for investigating a detainee’s claim of mistaken identity.

26 Plaintiff has plausibly alleged that these procedures were deficient and acted as a moving

27 force behind Banuelos’ unlawful actions. Amendment of Plaintiff’s Monell claim on this

28 theory of liability would not be futile. Therefore, the Court must consider whether the

1 additional relevant factors support amendment of Plaintiff’s claim against the County at

2 this stage in the litigation.

3 b) Additional Factors

4 As noted above, if a proposed amendment is not futile, the most critical factor in

5 determining whether to grant leave to amend is prejudice to the opposing party. See

6 Eminence Capital, 316 F.3d at 1052 (“Prejudice is the touchstone of the inquiry under

7 rule 15(a)”) (internal quotes omitted). Prejudice must be substantial to justify denial of

8 leave to amend. See Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079

9 (9th Cir. 1990). “The party opposing amendment bears the burden of showing

10 prejudice.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987).

11 The County argues that amendment will result in prejudice because the County

12 never conducted discovery on Plaintiff’s new theories of liability, and discovery between

13 the parties has long since concluded. Plaintiff counters that the County will suffer no

14 prejudice, and in any event, he notified the County no later than May 2016 of his

15 intention to advance theories of liability against the County separate and distinct from the

16 theory set forth in his Third Amended Complaint. See Doc. No. 210-1 at 9. Plaintiff

17 points to his May 4, 2016 response to one of the County’s interrogatories, wherein he

18 identified “the County’s jail investigation policy and the recently produced policy

19 concerning fingerprint examinations” as facts supporting his Monell claim. Doc. No.

20 210-2 at 102. Plaintiff argues that the County had ample time to conduct any necessary

21 discovery into Plaintiff’s factual claims.

22 Plaintiff fails to acknowledge, however, that his “new allegations would totally

23 alter the basis of the action” against the County. M/V Am. Queen v. San Diego Marine

24 Constr. Corp., 708 F.2d 1483, 1492 (9th Cir. 1983). In addition to creating potential

25 discovery issues, Plaintiff’s new theories of municipal liability “would have greatly

26 altered the nature of the litigation and would have required [the County] to have

27 undertaken, at a late hour, an entirely new course of defense.” Morongo Band of Mission

28 Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990).

1 Moreover, because Plaintiff did not seek leave to amend his Monell claim prior to

2 the then-applicable deadline for filing dispositive motions, the County moved for

3 judgment in its favor on the grounds that Plaintiff’s original “snail mail” theory of

4 municipal liability failed as a matter of fact and law. In response, Plaintiff formally

5 abandoned this theory of liability and asserted that “[i]n light of the circumstances, there

6 is effectively no pending motion for summary judgment on the Monell claim.” Doc. No.

7 147 at 60. Plaintiff outlined his new theories of liability and remarked that “should the

8 Court conclude that it is necessary for the complaint to be amended to explicitly state

9 these theories, Soler requests leave to do so, or that the complaint be considered

10 constructively amended.” Id.

11 As the Court noted previously, a party may not circumvent summary judgment by

12 belatedly amending its claim. See Doc. No. 160 at 16 (citing Schlacter-Jones v. General

13 Telephone of California, 936 F.2d 435, 443 (9th Cir. 1990), abrogated in part on other

14 grounds by Cramer v. Consol. Freightways, Inc., 255 F.3d 683 (9th Cir. 2001)); see also

15 Roberts v. Arizona Bd. of Regents, 661 F.2d 796, 798 (9th Cir. 1981) (affirming the

16 denial of a motion for leave to amend solely because the district court found that raising

17 the new issue at the “eleventh hour” was prejudicial to the moving party). Yet this is

18 concededly what Plaintiff attempted to do, without a satisfactory explanation or legal

19 justification. The County moved for summary judgment based on the allegations in

20 Plaintiff’s Third Amended Complaint. In response, Plaintiff abandoned those allegations,

21 set forth new bases of liability, and then argued that because the County did “not direct[]

22 its summary judgment motion at the bases for Monell liability on which Soler will rely at

23 trial, . . . its motion should be denied.” Doc. No. 147 at 63. If the Court had allowed

24 Plaintiff to amend his Monell claim – despite the decidedly improper purpose for doing

25 so – the County would have suffered prejudice based on the “‘the time and expense of

26 continued litigation on a new theory, with the possibility of additional discovery,’” as

27 well as the inevitability of further dispositive motion practice. Ascon Properties, Inc.,

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1 866 F.2d at 1161 (quoting Troxel Manufacturing Co. v. Schwinn Bicycle Co., 489 F.2d

2 968, 971 (6th Cir. 1973)).

3 Plaintiff further disclaims any bad faith or undue delay, asserting that he notified

4 the County regarding his new theories of Monell liability “shortly after learning of them.”

5 Doc. No. 210-1 at 12. Plaintiff’s assertion does not aid his cause. Despite reformulating

6 his municipal theory of liability prior to the close of discovery and months before the

7 dispositive motion filing deadline, Plaintiff did not move for leave to amend his Monell

8 claim. “A party unduly delays seeking amendment by failing to seek amendment

9 reasonably promptly after it ‘knew or should have known’ that amendment was called

10 for.” Johnson v. Hewlett–Packard Co., 809 F.Supp.2d 1114, 1120 (N.D.Cal.2011), aff’d,

11 546 Fed. Appx. 613, 2013 WL 4757161 (9th Cir. 2013) (quoting AmerisourceBergen

12 Corp., 465 F.3d at 953); see also Lockheed Martin Corp. v. Network Solutions, Inc., 194

13 F.3d 980, 986 (9th Cir. 1999) (“A need to reopen discovery and thereby delay the

14 proceedings supports a district court’s finding of prejudice from a delayed motion to

15 amend.”).

16 To be clear, given the Ninth Circuit’s instruction to reconsider Plaintiff’s request to

17 amend his Monell claim, the Court does not find that Plaintiff has acted in bad faith or

18 with undue delay by bringing the instant motion. The issue lies with Plaintiff’s actions

19 prior to appeal – his delay in seeking amendment was unwarranted and his motive

20 dubious. Most importantly, however, the potential prejudice to the County both then and

21 now is substantial. Accordingly, the Court concludes that granting Plaintiff leave to

22 amend his claim against the County would not be “in the interest of justice,” Fed. R. Civ.

23 P. 15(a)(2), and therefore denies Plaintiff’s request for leave to amend his Monell claim.

24 See Solomon v. North American Life and Cas. Ins. Co., 151 F.3d 1132, 1139 (9th Cir.

25 1998) (finding that the district court did not abuse its discretion in denying leave to

26 amend based on undue delay and prejudice since the motion would have required

27 additional discovery and delayed the proceedings); see also AmerisourceBergen Corp.,

28 465 F.3d at 954 n.10 (quoting 6 Charles Alan Wright, Arthur R. Miller & Mary Kay

1 || Kane, Federal Practice and Procedure § 1487 (2d ed.1990) (“[I]f [an] . . . amendment

2 substantially changes the theory on which the case has been proceeding and is proposed

3 || late enough so that the opponent would be required to engage in significant new

4 || preparation, the court may deem it prejudicial.”’).

5 CONCLUSION

6 Based on the foregoing, the Court DENIES Plaintiff's motion for leave to amend

7 Monell claim against Defendant County of San Diego.

8 IT IS SO ORDERED.

9 || DATE: March 24, 2020 Ml. . Du _ / Vf -

10 HON. MICHAEL M. ANELLO

11 United States District Judge

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