“[A]dequately trained officers 25 occasionally make mistakes; the fact that they do says little about the training program or 26 the legal basis for holding the city liable.”
How later courts described this case
- “[A]dequately trained officers 25 occasionally make mistakes; the fact that they do says little about the training program or 26 the legal basis for holding the city liable.”
- “[A] single incident of 26 unconstitutional activity is not sufficient to impose liability under Monell, unless” there is 27 proof that the incident “was caused by an existing, unconstitutional municipal policy.”
Written by the judges who cited it.
The opinion
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9 UNITED STATES DISTRICT COURT
10 SOUTHERN DISTRICT OF CALIFORNIA
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12 MIGUEL VILLA, Case No.: 20-CV-537-CAB-NLS
13 Plaintiff,
ORDER GRANTING DEFENDANT
14 v. COUNTY OF SAN DIEGO’S
MOTION TO DISMISS WITH
15 COUNTY OF SAN DIEGO and RUDY
LEAVE TO AMEND AND DENYING
PERAZA,
16 DEFENDANT RUDY PERAZA’S
Defendants. MOTION TO DISMISS
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[Doc. Nos. 6, 7]
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20 Before the Court are Defendant County of San Diego’s and Defendant Rudy
21 Peraza’s motions to dismiss. [Doc. Nos. 6, 7.] The Court finds them suitable for
22 determination on the papers submitted and without oral argument. See S.D. Cal. CivLR
23 7.1(d)(1). For the reasons set forth below, Defendant County of San Diego’s motion to
24 dismiss is granted with leave to amend and Defendant Rudy Peraza’s motion to dismiss is
25 denied.
26 I. BACKGROUND
27 Plaintiff Miguel Villa alleges that on March 14, 2019, he was brought into the San
28 Diego Central Jail for booking where Defendant Deputy Rudy Peraza (“Deputy Peraza”)
1 was working. [Doc. No. 1 at ¶¶ 9-10. ] While Plaintiff was in restraints Deputy Peraza
2 allegedly “punched and beat” Plaintiff and “bent [Plaintiff’s] fingers.” [Id. at ¶¶ 11-12.]
3 Plaintiff alleges he posed no threat to anyone when Deputy Peraza attacked him, and he
4 was unarmed and helpless. [Id. at ¶¶ 13-14.] No other deputy intervened to help when
5 Deputy Peraza attacked him. [Id. at ¶ 15.] Prior to the attack on Plaintiff, Deputy Peraza
6 allegedly attacked another inmate named Anthony Bolden in December 2018 by tasering
7 him and pulling him by his metal waist chain through a tray slot. [Id. at ¶¶ 16-17.]
8 On March 20, 2020, Plaintiff filed his complaint against Defendants County of San
9 Diego (the “County”) and Deputy Peraza alleging: (1) excessive force and failure to
10 intercede pursuant to 42 U.S.C. § 1983; (2) Monell violation pursuant to 42 U.S.C. § 1983;
11 (3) assault; (4) battery; (5) negligence: (6) intentional infliction of emotional distress; and
12 (7) violation of California Civil Code § 52.1 (the “Bane Act”). [Doc. No. 1.] On May 7,
13 2020, the County and Deputy Peraza each filed a motion to dismiss. [Doc. Nos. 6, 7.]
14 II. LEGAL STANDARD
15 The familiar standards on a motion to dismiss apply here. To survive a motion to
16 dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted
17 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
18 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus,
19 the Court “accept[s] factual allegations in the complaint as true and construe[s] the
20 pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire
21 & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). On the other hand, the Court is
22 “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556
23 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nor is the Court “required to accept as
24 true allegations that contradict exhibits attached to the Complaint or matters properly
25 subject to judicial notice, or allegations that are merely conclusory, unwarranted deductions
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1 of fact, or unreasonable inferences.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998
2 (9th Cir. 2010). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory
3 factual content, and reasonable inferences from that content, must be plausibly suggestive
4 of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969
5 (9th Cir. 2009) (quotation marks omitted).
6 III. REQUEST FOR JUDICIAL NOTICE
7 As a preliminary matter, the County requests the Court take judicial notice of the
8 ECF docket report in the pending case Bolden v. Peraza et. al, No. 3:19-cv-01022-AJB-
9 AHG. [Doc. No. 10-1.] Deputy Peraza requests the Court take judicial notice of the
10 complaint in Bolden v. Peraza et. al, No. 3:19-cv-01022-AJB-AHG, the complaint in
11 People v. Bolden, San Diego Superior Court Case No. CD280313, and the Plea of Guilty
12 in People v. Bolden, San Diego Superior Court Case No. CD280313. [Doc. No. 11-1.]
13 Facts proper for judicial notice are those not subject to reasonable dispute and either
14 “generally known” in the community or “capable of accurate and ready determination” by
15 reference to sources whose accuracy cannot be reasonably questioned. Fed. R. Evid. 201.
16 Here, the ECF docket report, the complaints, and the plea of guilty are proper subjects for
17 judicial notice and the Court GRANTS the Defendants’ requests for judicial notice. See
18 Reyna Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006)
19 (explaining that it is appropriate to take judicial notice of court filings and other matters of
20 public record, such as pleadings in related litigation).
21 IV. DISCUSSION
22 The County moves to dismiss Plaintiff’s complaint with prejudice contending that
23 Plaintiff’s Monell claim fails to allege the existence of a plausible policy that was the
24 “moving force” behind the alleged constitutional violation, the County is immune from
25 liability for Plaintiff’s tort claims, and Plaintiff has failed to state facts sufficient to support
26 a claim under the Bane Act. Deputy Peraza moves to dismiss Plaintiff’s complaint
27 contending that Plaintiff failed to set forth sufficient facts to allow the Court to draw the
28 reasonable inference that Deputy Peraza is liable for the alleged misconduct.
1 A. Monell Claim
2 Following Monell v. Department of Social Services, 436 U.S. 658 (1978), “it is well-
3 settled that in claims brought under 42 U.S.C. § 1983, municipalities are liable only for
4 constitutional violations resulting from an official ‘policy or custom.’” Fed’n of African
5 Am. Contractors v. City of Oakland, 96 F.3d 1204, 1216 (9th Cir. 1996) (quoting Monell,
6 436 U.S. at 694). “[A] municipality cannot be held liable solely because it employs a
7 tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a
8 respondeat superior theory.” Monell, 436 U.S. at 691 (emphasis in original). “Where a
9 court fails to adhere to rigorous requirements of culpability and causation, municipal
10 liability collapses into respondeat superior liability.” Bd. of Cty. Comm’rs v. Brown, 520
11 U.S. 397, 415 (1997). Put differently, “a municipality sued under § 1983 is not subject to
12 vicarious liability for the acts of its agents.” Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1141
13 (9th Cir. 2001).
14 “The ‘first inquiry in any case alleging municipal liability under § 1983 is the
15 question whether there is a direct causal link between a municipal policy or custom and the
16 alleged constitutional deprivation.’” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1075
17 (9th Cir. 2016) (en banc) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 392
18 (1989)). “[I]t is not enough for a § 1983 plaintiff to merely identify conduct properly
19 attributable to the municipality. The plaintiff must also demonstrate that, through its
20 deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.”
21 Brown, 520 U.S. at 404. “A plaintiff cannot prove the existence of a municipal policy or
22 custom based on solely on the occurrence of a single incident of unconstitutional action by
23 a non-policymaking employee.” Davis v. City of Ellensburg, 869 F.2d 1230, 1233-34 (9th
24 Cir. 1989); see also City of Canton, 489 U.S. at 391 (“[A]dequately trained officers
25 occasionally make mistakes; the fact that they do says little about the training program or
26 the legal basis for holding the city liable.”).
27 Plaintiff’s complaint asserts the following policies:
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1 a. Using excessive force, including deadly force on unarmed person who do not pose
2 a risk of imminent death or serious bodily injury to others;
3 b. Providing inadequate training regarding the use of force, including deadly force;
4 c. Maintaining grossly inadequate procedures for reporting, supervising,
5 investigating, reviewing, disciplining and controlling misconduct by County
6 Sheriff’s deputies, including the misconduct of the Defendant-deputy in this case;
7 d. Announcing that unjustified uses of force are “within policy,” even when they are
8 later determined in court to be unconstitutional;
9 e. Even where in-custody deaths are determined in court to be unconstitutional,
10 refusing to discipline, terminate, or retrain the deputies involved;
11 f. Maintaining a policy of inaction and an attitude of indifference towards soaring
12 numbers of in-custody deaths, including by failing to discipline, retrain, investigate,
13 terminate, and recommend deputies for criminal prosecution who participate in the
14 beating of unarmed, nonviolent, compliant, and/or potentially mentally impaired
15 people.
16 [Doc. No. 1 at ¶ 19.] Plaintiff then adds seven more purported policies later in the
17 complaint. [Id. at ¶ 30.] Allegations concerning Monell liability based on the existence of
18 a policy are subject to the pleading requirements of Twombly/Iqbal. As the Ninth Circuit
19 has explained, even in the context of a Monell claim, a complaint “may not simply recite
20 the elements of a cause of action, but must contain sufficient allegations of underlying facts
21 to give fair notice and to enable the opposing party to defend itself effectively,” and “the
22 factual allegations that are taken as true must plausibly suggest an entitlement to relief,
23 such that it is not unfair to require the opposing party to be subjected to the expense of
24 discovery and continued litigation.” AE ex rel. Hernandez v. County of Tulare, 666 F.3d
25 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)).
26 While the Ninth Circuit previously had a liberal pleading standard for Monell claims,
27 “[c]ourts in this circuit now generally dismiss claims that fail to identify the specific
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1 content of the municipal entity’s alleged policy or custom.” Little v. Gore, 148 F. Supp.
2 3d 936, 957 (S.D. Cal. 2015) (citation omitted).
3 Here, the complaint fails to adequately allege a specific official policy that caused
4 any of the constitutional violations alleged in the complaint. Instead, Plaintiff asserts
5 several purported policies without any factual support or causal relation to the incident that
6 merely amount to conclusory statements. Plaintiff’s citation to several cases involving
7 unrelated isolated incidents is likewise unhelpful as Plaintiff has not provided much detail
8 surrounding the circumstances of the incident while each of the cases cited involve distinct
9 and detailed factual circumstances. As both Defendants point out with their requests for
10 judicial notice, the allegation involving Deputy Peraza and another inmate involves a
11 pending case where no factual findings have been made and the inmate plead guilty for
12 “willfully & unlawfully attempt[ing]to deter an officer from performing [his] lawful duty
13 using force/violence.” [Doc. No. 11-1.]
14 Nor has Plaintiff sufficiently plead a failure to train, supervise, or discipline claim.
15 “A ‘pattern of similar constitutional violations by untrained employees is ordinarily
16 necessary to demonstrate deliberate indifference for purposes of failure to train.’” Flores
17 v. Cnty. of Los Angeles, 759 F.3d 1154, 1159 (9th Cir. 2014). Plaintiff has not
18 demonstrated a pattern of similar constitutional violations to demonstrate deliberate
19 indifference. Connick v. Thompson, 563, U.S. 51, 61 (2011) (Deliberate indifference is a
20 stringent standard that a municipal actor “disregarded a known or obvious consequence of
21 his action”, and can be demonstrated when “city policymakers are on actual or constructive
22 notice that a particular omission in their training program causes city employees to violate
23 citizens’ constitutional rights.” Finally, the Court does not agree that this incident, as plead
24 in the complaint, allows Plaintiff to proceed with a single-incident theory of liability. City
25 of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985) (“[A] single incident of
26 unconstitutional activity is not sufficient to impose liability under Monell, unless” there is
27 proof that the incident “was caused by an existing, unconstitutional municipal policy.”).
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1 Accordingly, the County’s motion to dismiss Plaintiff’s Monell claim is GRANTED and
2 Plaintiff’s second cause of action is DISMISSED without prejudice.
3 B. State Law Claims Alleged Against the County
4 The County moves to dismiss Plaintiff’s state law claims for assault, battery,
5 negligence, and intentional infliction of emotional distress contending that the County’s
6 liability for those claims is precluded by California Government Code section 844.6. The
7 County also contends Plaintiff failed to state a viable claim under the Bane Act. In his
8 opposition, Plaintiff asserts that while there are conflicting authorities in the case law,
9 Plaintiff elects to dismiss the state law causes of action for assault, battery, intentional
10 infliction of emotional distress, and violation of the Bane Act as against the County only.
11 While Plaintiff did not specifically mention his negligence claim, there is no other mention
12 or opposition to the dismissal of the negligence cause of action. Accordingly, the County’s
13 motion to dismiss Plaintiff’s state law causes of action is GRANTED and Plaintiff’s third,
14 fourth, fifth, sixth and seventh causes of action are DISMISSED with prejudice as against
15 the County only.
16 C. Excessive Force Claim
17 Deputy Peraza contends that Plaintiff has failed to provide the legal basis for his
18 excessive force claim and failed to set forth factual details regarding the type and extent of
19 force used. The incident in question revolves around Deputy Peraza’s use of force while
20 Plaintiff was brought in for booking and in restraints. Construing the complaint in
21 Plaintiff’s favor, it is reasonable to infer that Plaintiff is raising a Fourth Amendment
22 excessive force claim.
23 A Fourth Amendment claim of excessive force is analyzed under the framework set
24 forth by the Supreme Court in Graham v. Connor, 490 U.S. 386 (1989). That analysis
25 requires balancing the “nature and quality of the intrusion” on a person’s liberty with the
26 “countervailing governmental interests at stake” to determine whether the use of force was
27 objectively reasonable under the circumstances. Id. at 396. Determining whether a police
28 officer’s use of force was reasonable or excessive therefore “requires careful attention to
1 the facts and circumstances of each particular case” and a “careful balancing” of an
2 individual’s liberty with the government’s interest in the application of force. Id.; see
3 Deorle v. Rutherford, 272 F.3d 1272, 1279–81 (9th Cir. 2001).
4 Plaintiff has alleged he was in restraints, unarmed, and posed no threat to anyone
5 when Deputy Peraza punched and beat him and bent his fingers. Taking the facts as true
6 and construing them in Plaintiff’s favor at the motion to dismiss stage, Plaintiff has
7 adequately alleged a plausible excessive force claim. Accordingly, Deputy Peraza’s
8 motion to dismiss Plaintiff’s excessive force claim is DENIED.
9 D. Assault and Battery Claims
10 Deputy Peraza moves to dismiss Plaintiff’s assault and battery claims contending
11 Plaintiff has not plead facts to support such claims. Under California law, “assault” is the
12 “unlawful attempt, coupled with a present ability, to commit a violent injury on the person
13 of another.” Cal. Penal Code § 240. “Battery” is “any willful and unlawful use of force or
14 violence upon the person of another.” Id. § 242. Under either theory of liability, the
15 defendant must either threaten to touch or actually touch the plaintiff in a harmful or
16 offensive way. See Tekle v. United States, 511 F.3d 839, 855 (9th Cir.2006) (listing the
17 elements of assault and battery under California law). Deputy Peraza allegedly punched
18 and beat Plaintiff using unreasonable force while he was in restraints. Plaintiff’s
19 allegations are sufficient to state a claim for assault and battery against Deputy Peraza.
20 Accordingly, Deputy Peraza’s motion to dismiss Plaintiff’s assault and battery claims is
21 DENIED.
22 E. Negligence and Intentional Infliction of Emotional Distress Claims
23 Deputy Peraza contends Plaintiff’s fifth cause of action for negligence and sixth
24 cause of action for intentional infliction of emotional distress both fail because they are
25 premised upon an allegation of excessive and unreasonable force.
26 The elements of a negligence cause of action are: (1) a legal duty to use due care;
27 (2) a breach of such legal duty; (3) the breach was the proximate or legal cause of the
28 resulting injury; and (4) actual loss or damage resulting from the breach of the duty of care.
1 See Ladd v. County of San Mateo, 12 Cal. 4th 913, 917 (1996); Hanson v. Grode, 76 Cal.
2 App. 4th 601, 606 (1999). In California, police officers have a “duty to use reasonable care
3 in apprehending a suspect.” Munoz v. City of Union City, 120 Cal. App. 4th 1077, 1101
4 (2004). They owe “a duty to use reasonable care” in deciding whether to use and in fact
5 using force. Id. If a police officer fails to meet this duty, he or she may be held liable for
6 negligence. See id. “Determination of whether an officer breached such a duty is
7 ‘analyzed under the reasonableness standard of the Fourth Amendment to the United States
8 Constitution.’” Megargee v. Wittman, 550 F. Supp. 2d 1190, 1209 (E.D. Cal. 2008)
9 (quoting Munoz, 120 Cal. App. 4th at 1102 & n.6 (“[T]he plaintiff must prove the
10 unreasonableness of the officer’s conduct.”)). A plaintiff “may pursue inconsistent
11 intentional tort and negligence claims against a police officer.” Id. (citing Munoz, 24 Cal.
12 3d at 635).
13 The elements of a prima facie case of intentional infliction of emotional distress in
14 California are “‘(1) extreme and outrageous conduct by the defendant with the intention of
15 causing, or reckless disregard of the probability of causing, emotional distress; (2) the
16 plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate
17 causation of the emotional distress by the defendant's outrageous conduct.’” Davidson v.
18 City of Westminster, 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894, 901 (1982) (quoting
19 Cervantez v. J.C. Penney Co., 24 Cal.3d 579, 156 Cal.Rptr. 198, 595 P.2d 975, 983 (1979)).
20 As stated above, Plaintiff has adequately alleged a plausible excessive force claim,
21 and therefore has sufficiently alleged a claim for negligence and intentional infliction of
22 emotional distress against Deputy Peraza. Accordingly, Deputy Peraza’s motion to dismiss
23 Plaintiff’s negligence and intentional infliction of emotional distress claims is DENIED.
24 F. Violation of Bane Act Claim
25 Similarly, Deputy Peraza contends that because Plaintiff has failed to state facts
26 sufficient to support his excessive force claim, his Bane Act claim must also fail.
27 California’s Bane Act, California Civil Code § 52.1, provides that a person “whose exercise
28 or enjoyment” of constitutional rights has been interfered with “by threat, intimidation, or
1 coercion” may bring a civil action for damages and injunctive relief. Id. The essence of
2 such a claim is that “the defendant, by the specified improper means . . . tried to or did
3 prevent the plaintiff from doing something he or she had the right to do under the law or
4 force the plaintiff to do something he or she was not required to do.” Austin B. v. Escondido
5 Union Sch. Dist., 149 Cal. App. 4th 860, 883 (2007). The elements of an excessive force
6 claim under § 52.1 are essentially the same as under § 1983, Chaudhry v. City of Los
7 Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014), though a Bane Act claim additionally
8 requires a showing of “a specific intent to violate the arrestee’s right to freedom from
9 unreasonable seizure,” Reese v. Cty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018)
10 (citation omitted). “[R]eckless disregard for a person’s constitutional rights is evidence of
11 a specific intent to deprive that person of those rights.” Reese,888 F.3d at 1043 (quoting
12 United States v. Reese, 2 F.3d 870, 885 (9th Cir. 1993)).
13 Furthermore, the Ninth Circuit specifically addressed a Bane Act claim based on
14 excessive force in Reese v. Cty. of Sacramento, and again clarified that the Bane Act does
15 not “require[ ] coercion independent from the constitutional violation.” 888 F.3d at 1045.
16 Here, Plaintiff has sufficiently plead an excessive force claim against Deputy Peraza.
17 Accordingly, Deputy Peraza’s motion to dismiss Plaintiff’s Bane Act claim is DENIED.
18 V. CONCLUSION
19 For the foregoing reasons, the Court GRANTS the County’s motion to dismiss [Doc.
20 No. 6] and DENIES Deputy Peraza’s motion to dismiss [Doc. No. 7]. Plaintiff is instructed
21 to carefully consider the above-provided guidance, and to conduct any necessary
22 investigation and inquiry, such that if Plaintiff elects to re-present a claim based on
23 municipal liability, such claim shall not be based merely on bare conclusory allegations
24 that do not put the County on notice of the specific policies, acts, omissions, customs or
25 alleged deficiencies in training that he may allege to have been the cause of the alleged
26 constitutional violation at issue. Therefore, Plaintiff’s second cause of action is
27 DISMISSED without prejudice and Plaintiff’s third, fourth, fifth, sixth, and seventh state
28 law causes of action are DISMISSED with prejudice as against the County only.
1 || Accordingly, should Plaintiff choose to amend the only remaining cause of action against
2 ||the County will be Plaintiff’s second cause of action under Monell.
3 Plaintiff is granted leave to file a first amended complaint that cures the deficiencies
4 ||noted herein on or before June 24, 2020. If Plaintiff files an amended complaint within
5 || the time provided, Defendants are to file an answer on or before July 8, 2020, otherwise
6 || this case will proceed against Defendant Deputy Rudy Peraza who shall file his answer on
7 || or before July 8, 2020.
8 It is SO ORDERED.
9 Dated: June 11, 2020 € ZL
10
Hon. Cathy Ann Bencivengo
1 United States District Judge
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