Sekerke v. City of National City

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 KEITH SEKERKE, Case No.: 19cv1360-LAB (MSB)

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Plaintiff,

13 REPORT AND RECOMMENDATION

v.

REGARDING DEFENDANTS’ MOTION TO

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CITY OF NATIONAL CITY, et al., DISMISS [ECF NO. 23]

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Defendants.

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19 Keith Sekerke (“Plaintiff”), has filed a civil rights action pursuant to 42 U.S.C. §

20 1983 against the City of National City (“National City”), and eleven National City Police

21 Department (“NCPD”) officers: Kevin Hirsh, Matt Smith, Anthony Sabala, Omar Ramirez,

22 Steven Anderson, Vincent Fernando, Emma Cabata, Shane McClure, Matthew Cardoza,

23 John Doughert, and Matthew Cardoza (collectively, “Defendants,” while the individually

24 named officers will be referred to as “Individual Defendants”). (See ECF No. 1 at 1-2.)

25 Currently pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s Second

26 Amended Complaint, filed on March 4, 2020. (ECF No. 23.) This Court has considered

27 the Second Amended Complaint (“SAC”), (ECF No. 6), Defendants’ Motion to Dismiss,

2 submitted to United States Chief District Judge Larry A. Burns pursuant to 28 U.S.C.A. §

3 636(b) and Civil Local Rules 72.3 of the United States District Court for the Southern

4 District of California. For the reasons set forth below, this Court RECOMMENDS that

5 Defendants’ Motion to Dismiss for Failure to State a Claim be GRANTED.

6 I. PROCEDURAL HISTORY

7 On July 19, 2019, Plaintiff, Keith Sekerke, a state prisoner proceeding in forma

8 pauperis and represented by counsel, filed a complaint alleging causes of action under

9 the Civil Rights Act pursuant to 42 U.S.C.A. § 1983 and state law against the City of

10 National City, NCPD, and Individual Defendants related to Individual Defendants’

11 impound of Plaintiff’s vehicle and failure to secure Plaintiff’s home subsequent to

12 Plaintiff’s arrest. (ECF No. 1.) Plaintiff filed his First Amended Complaint on September

13 10, 2019. (ECF No. 4.)

14 On November 4, 2019, Chief Judge Burns granted Plaintiff’s request to proceed in

15 forma pauperis and screened his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and

16 1915A(b). (ECF No. 5.) Chief Judge Burns dismissed all causes of action against NCPD,

17 which was an improper defendant, (id. at 5), dismissed Plaintiff’s § 1983 claim based on

18 the Fourteenth Amendment because available state law remedies precluded federal

19 relief, (id. at 7), found Younger1 abstention appropriate as to Plaintiff’s § 1983 claim

20 based on the Fourth Amendment, (id. at 9), and declined to exercise supplemental

21 jurisdiction over Plaintiff’s state law claims, (id. at 9). Finally, Chief Judge Burns

22 permitted Plaintiff 45 days to file his SAC. (Id. at 10-11.)

23 Plaintiff filed his SAC on December 18, 2019, (ECF No. 6), and the Court ordered

24 the U.S. Marshall to effect service thereof on January 10, 2020, (ECF No. 7). Plaintiff’s

25 SAC alleges causes of action against Individual Defendants for Fourth Amendment

26 violations under § 1983 (Cause One) and negligence and conversion pursuant to state

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2 under § 1983 (Monell2 Claim, Cause Four) and public entity liability pursuant to state law

3 (Cause Five). (ECF No. 6 at 5-12.) Defendants filed their Motion to Dismiss on March 4,

4 2020. (ECF No. 23). Plaintiff filed his Opposition on April 17, 2020. (ECF No. 24.)

5 Defendants filed their Reply on April 23, 2020. (ECF No. 25.)

6 II. FACTUAL ALLEGATIONS IN COMPLAINT

7 On October 11, 2019, “[Individual]3 Defendants broke down Plaintiff’s fence

8 around his house.” (ECF No. 6 at 3). Plaintiff permitted Individual Defendants to enter

9 his house, where they arrested him. (Id.) Individual Defendants “took possession of

10 Plaintiff’s keys” and “called Plaintiff’s girlfriend to pick up his dog.” (Id.) Plaintiff asked

11 Individual Defendants to “lock his door to secure his residence.” (Id.) However,

12 Individual Defendants “failed to secure Plaintiff’s house and left Plaintiff’s keys on his

13 car.” (Id.) Individual Defendants also “possessed Plaintiff’s car” and “impounded it for a

14 crime he was never charged with.” (Id. at 4.)

15 The following day, when Plaintiff’s girlfriend returned to the home, she

16 discovered that “Plaintiff’s home was looted and squatted in” and his “personal

17 property was stolen and destroyed.” (Id.) Plaintiff alleges on information and belief

18 that his car “has since been dispensed with in a way that renders him unable to retrieve

19 it.” (Id.)

20 III. LEGAL STANDARD

21 Under Federal Rule of Civil Procedure4 12(b)(6), a motion to dismiss for failure to

22 state a claim tests the legal sufficiency of the claims within the complaint. Fed. R. Civ. P.

23 12(b)(6); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The pleading standards in

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2 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

26 3 The Court notes that in the SAC, Plaintiff used the term “Defendants” to refer only to the individual

NCPD officers named in the complaint, while the Court uses Individual Defendants to describe the

27 same group herein. (See ECF No. 6 at 1-2.)

2 pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . .

3 claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

4 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Rule 8 imposes upon the

5 plaintiff, “the obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief,’” which

6 requires factual allegations that consist of “more than labels and conclusions, and a

7 formulaic recitation[s] of the elements of a cause of action.” Id. at 555. To survive a

8 motion to dismiss, the pleading in a complaint requires enough facts to state a claim to

9 relief that is plausible on its face and not merely speculative. Ashcroft v. Iqbal, 556 U.S.

10 662, 678 (2009); Twombly, 550 U.S. at 555, 570.

11 “A claim has facial plausibility when the plaintiff pleads factual content that

12 allows the court to draw the reasonable inference that the defendant is liable for the

13 misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint that only pleads facts

14 consistent with a defendant’s liability “stops short of the line between possibility and

15 plausibility of ‘entitlement to relief.’” Twombly, 550 U.S. at 557. A complaint should be

16 dismissed “if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

17 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).

18 On the other hand, under Rule 8(a)(2), courts are hesitant to “countenance

19 dismissal of a complaint for imperfect statement of the legal theory supporting the

20 claim asserted.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 11 (2014). When the

21 complaint contains well-pleaded factual allegations, “a court should assume their

22 veracity and then determine whether they plausibly give rise to an entitlement to

23 relief.” Id. at 679. In ruling on a motion to dismiss, the Court does not look at whether

24 the plaintiff will “ultimately prevail but whether the claimant is entitled to offer

25 evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also

26 Twombly, 550 U.S. at 563.

27 Under Rule 7(a), a plaintiff’s opposition to a motion to dismiss does not constitute

2 Therapeutics, Inc., 899 F.3d 988, 1014 (9th Cir. 2018).

3 Generally, courts dismissing a case should freely grant leave to amend. See Fed.

4 R. Civ. P. 15(a)(2); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401

5 (9th Cir. 1986). However, leave to amend may be denied when “the court determines

6 that the allegation of other facts consistent with the challenged pleading could not

7 possibly cure the deficiency.” Schreiber Distrib., 806 F.2d at 1401 (citing Bonanno v.

8 Thomas, 309 F.2d 320, 322 (9th Cir. 1962)).

9 IV. DISCUSSION

10 A. Younger Abstention

11 Defendants argue this Court should abstain pursuant to Younger v. Harris, 401

12 U.S. 37 (1971), from reaching Plaintiff’s § 1983 claim because it is based on events that

13 occurred during his criminal arrest and the Court previously found on November 4, 2019

14 that Plaintiff was awaiting trial on charges for which the arrest in this case occurred.

15 (ECF No. 23-1 at 12.) In general, federal courts are unable to enjoin, interfere with, or

16 encroach upon pending state law criminal proceedings that raise or implicate

17 constitutional issues. Younger, 401 U.S. at 49. The Court in Younger considered

18 whether a defendant from a state court prosecution could sue in federal court to enjoin

19 the state prosecution based on a purportedly unconstitutional statute. Reiterating the

20 long-standing, statutorily-supported national policy of permitting state courts to try

21 criminal cases free from interference by federal courts, the Court held that “the possible

22 unconstitutionality of a statute ‘on its face’ does not in itself justify an injunction against

23 good faith attempts to enforce it,” particularly where the plaintiff could raise the

24 constitutional claims in the state proceeding. Id. at 43-54. “Younger abstention involves

25 only such interference as . . . would have the same practical effect on the state

26 proceeding as a formal injunction.” Gilbertson v. Albright, 381 F.3d 965, 977-78 (9th Cir.

27 2004). Therefore, if a state criminal proceeding is ongoing, “and if the federal litigant is

2 would interfere in a way that Younger disapproves.” Id. at 978 (noting that the three-

3 part test from Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S.

4 423 (1982) is intended to determine whether Younger applies to specific noncriminal

5 proceedings, and therefore does not apply to criminal state proceedings); see also

6 Samuels v. Mackell, 401 U.S. 66, 69 (1971) (“[A] federal court should not enjoin a state

7 criminal prosecution begun prior to the institution of the federal suit except in very

8 unusual situations, where necessary to prevent immediate irreparable injury.”).

9 Younger requires abstention in § 1983 claims when a party can adequately litigate

10 the constitutional issue in the state criminal proceedings, and where the federal action

11 “would have a substantially disruptive effect upon the ongoing state criminal

12 proceeding.” Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986). Applying this standard,

13 the Ninth Circuit in Mann found that abstention from a § 1983 action for a Sixth

14 Amendment right-to-counsel violation in ongoing state criminal case was appropriate

15 where federal plaintiff could adequately address any deprivation of his right to counsel

16 in the criminal case, because the “potential for federal-state friction [was] obvious.” Id.

17 In contrast, in Lebbos v. Judges of Superior Court, Santa Clara Cty., 883 F.2d 810, 817

18 (9th Cir. 1989), the court determined abstention from a § 1983 action was not

19 appropriate where the constitutional defense in the state court action (possible defense

20 of racial discrimination to an unlawful detainer case) was “wholly unrelated” to § 1983

21 claims that certain debt collection statutes violate the due process and equal protection

22 clauses of the Fourteenth Amendment. Id. at 812-17. Based on the lack of relationship

23 between the state court defense and the basis for the § 1983 claim, the court did “not

24 believe that consideration of the [§] 1983 damage claims against the private appellees

25 [would] in any way interfere with the state court proceedings.” Id. at 817.

26 Following the reasoning of Mann and Lebbos, abstention is not appropriate in the

27 case at hand. The allegations in Plaintiff’s SAC concern whether Individual Defendants

2 [Individual] Defendants’ failure to secure Plaintiff’s residence, Plaintiff’s home was

3 looted and squatted in” and “[Individual] Defendants also possessed Plaintiff’s car . . .

4 and impounded it for a crime he was never charged with. . . . Plaintiff . . . alleges[] that

5 his car has since been dispensed with in a way that renders him unable to retrieve it”).)

6 It follows that any property that was lost or destroyed would not be used to prosecute

7 Plaintiff in any ongoing criminal case, and so Plaintiff would not likely bring a Fourth

8 Amendment challenge regarding the alleged behavior as a defense therein. Defendant,

9 in moving this Court to abstain pursuant to Younger has not submitted any evidence or

10 argument to show that the constitutionality of the alleged behavior has been or is likely

11 to become an issue in the ongoing state criminal case, or that the litigation of Plaintiff’s

12 § 1983 claim will enjoin or cause friction with the state court.5

13 On the record before the Court, it is not evident how the instant § 1983 action is

14 likely to enjoin the state criminal case. See Herrera v. City of Palmdale, 918 F.3d 1037,

15 1049 (9th Cir. 2019) (holding that the district court erred in abstaining from Fourth

16 Amendment-based § 1983 claims where “[a]lthough the allegations of Fourth

17 Amendment violations [arose] from investigations conducted in the course of the state

18 enforcement action, [the court did not] see how determinations on such claims by the

19 federal court would intrude in the ongoing state nuisance proceeding in [an]

20 impermissible way”). This Court therefore RECOMMENDS DENYING Defendants’

21 motion to abstain based on Younger, and will accordingly address Defendants’

22 remaining arguments.

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5 Defendants primarily rely on the District Court’s screening order, finding abstention appropriate, and

27 argue that the SAC does not overcome that finding. (ECF No. 23-1 at 12-13.) In doing so, Defendants

2 Defendants argue the SAC’s first through third causes, which Plaintiff brings

3 against Individual Defendants should be dismissed pursuant to Rule 8(a)(2) because

4 Plaintiff has engaged in “group pleading” and therefore has failed to state the “role each

5 [I]ndividual [D]efendant actually had in causing [Plaintiff] harm.” (ECF No. 23-1 at 11.)

6 Individual Defendants note Plaintiff alleges his injuries were inflicted by all eleven6

7 Individual Defendants, collectively, but does not identify the unlawful actions of any

8 particular officer. (Id.) In response, Plaintiff contends, under the holding from

9 Wakefield v. Thompson, 177 F.3d 1160 (9th Cir. 1999), he should be “given an

10 opportunity through discovery to identify” the actions of each officer in relation to

11 Plaintiff’s purported injuries. (ECF No. 24 at 8.)

12 In evaluating a complaint under Rule 12(b)(6), a court must determine whether

13 the pleadings contain enough factual content to “draw the reasonable inference that

14 the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678-79. Personal

15 liability under § 1983 demands that a plaintiff plead “that each [g]overnment-official

16 defendant, through the official’s own individual actions, has violated the Constitution.”

17 Iqbal, 556 U.S. at 676; see also Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988)

18 (pleading standards governing § 1983 claims necessarily compel the plaintiff to “set

19 forth specific facts as to each individual defendants’” contributory role in the resulting

20 constitutional injury). Causation can be established if the pleadings illustrate that the

21 state actor did “an affirmative act, participate[d] in another’s affirmative acts, or

22 omit[ted] to perform an act which he [was] legally required to do that cause[d] the

23 deprivation of which [the] complaint is made” or set “in motion a series of acts by

24 others which the actor knows or reasonably should know would cause others to inflict

25 the constitutional injury.” Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

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2 Pardus, 551 U.S. 89, 93-94 (2007). A complaint must give the opposing party fair notice

3 of the claims against them as well as detail the grounds upon which each claim rests. Id.

4 (citing Twombly, 550 U.S. at 555). The notice requirement is imperative as it “enable[s]

5 the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th

6 Cir. 2011); see also Ortez v. Washington County, State of Or., 88 F.3d 804, 810 (9th Cir.

7 1996) (to survive a motion to dismiss, a plaintiff must “allege overt acts with some

8 degree of particularity such that his claim is set forth clearly enough to give defendants

9 fair notice” of the allegations against them). Pleadings that lack an affirmative link

10 between the injury and the conduct of the defendant will not state a cause of action

11 under § 1983. See Rizzo v. Goode, 423 U.S. 362, 370-72 (1976).

12 Plaintiff’s SAC does not satisfy Rule 8 because it fails to identify which of the

13 eleven Individual Defendants performed each act in the complaint and thereby does not

14 allege affirmative action by any of the defendants. In the first place, Plaintiff describes

15 the Individual Defendants as “the agents or employees or co-conspirator of National

16 City, the National City Police Department[], and each of the remaining defendants.”

17 (ECF No. 6 at 2.) However, Plaintiff never identifies facts to support any of these

18 relationships. See, e.g., Crowe v. Cty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (to

19 show conspiracy, a plaintiff “must show ‘an agreement or meeting of the minds to

20 violate constitutional rights,’ and ‘[t]o be liable, each participant in the conspiracy need

21 not know the exact details of the plan, but each participant must at least share the

22 common objective of the conspiracy’”). After initially listing each of the Individual

23 Defendants by name, Plaintiff never again distinguishes between them. (See id.)

24 Instead, Plaintiff groups all Individual Defendants together and alleges all of them did

25 each alleged action. Plaintiff alleges, for example, “[Individual] Defendants arrested

26 Plaintiff,” “[Individual] Defendants took possession of Plaintiff’s keys,” and “[Individual]

27 Defendants called Plaintiff’s girlfriend to pick up his dog.” (Id. at 3.)

2 Rather, reason dictates that specific, unidentified officers performed each of the

3 described acts. This logical conclusion is further supported by Plaintiff’s Opposition, in

4 which he explains that he needs discovery to ascertain the actions of the individual

5 officers, and that “the most Plaintiff could do is name the officers who were part of the

6 arrest.” (See ECF No. 24 at 8.) But “a police officer is not liable simply because he was

7 present at a search.” Young v. City of Visalia, 687 F. Supp.2d 1141, 1153 (E.D. Cal. 2009)

8 (citing Motley v. Parks, 432 F.3d 1072, 1082 (9th Cir. 2005)). When all defendants are

9 lumped together in factual allegations, such pleading does not provide the defendants

10 with notice of the basis for allegations. Eunice v. U.S., No. 12cv1635-GPC(BGS), 2013 WL

11 756168, at *3 (S.D. Cal. Feb. 26, 2013) (collecting cases). Furthermore, an officer may

12 not be held personally liable based only upon “membership in a group without a

13 showing of individual participation in unlawful conduct.” Jones v. Williams, 297F.3d

14 930, 935 (9th Cir. 2002) (citing Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996)). By

15 failing to identify the factual basis for each Individual Defendants’ personal participation

16 in the alleged violation of Plaintiff’s Fourth Amendment rights, Plaintiff has failed to

17 state a claim against any Individual Defendant. See, e.g., Gen-Probe, Inc. v. Amoco

18 Corp., 926 F. Supp. 948, 960-61 (S.D. Cal. 1996) (finding dismissal proper where

19 complaint accused “all defendants of all types of infringement,” but it was “unclear

20 which of the five is accused of which type of infringement” because complaint “lumps

21 together . . . multiple defendants in one broad allegation”); Gauvin v. Trombatore, 682

22 F. Supp. 1067, 1070-71 (N.D. Cal. 1988) (plaintiff’s complaint “lumped” all defendants

23 “together in a single, broad allegation” without “stating with any specificity how each

24 private defendant allegedly deprived [plaintiff] of a right secured by the Constitution”

25 when plaintiff “allege[d] the conduct of each of the defendants deprived [him] of the

26 opportunity ‘to secure meaningful and gainful employment’”); Better Homes Realty, Inc.

27 v. Watmore, Case No. 3:16-cv-01607-BEN-MDD, 2017 WL 1400065, at *4 (S.D. Cal. Apr.

2 Application Litig., No. 11-MD-02250-LHK, 2011 WL 4403963, at *8 (N.D. Cal. Sept. 20,

3 2011) (finding to survive a motion to dismiss, complaint must “identify what action each

4 Defendant took that caused Plaintiffs’ harm, without resort to generalized allegations

5 against Defendants as a whole” so that defendants can respond to allegations); cf.

6 Adobe Systems Incorporated v. Blue Source Group, Inc., No. 14-cv-02147-LHK, 2015 WL

7 5118509, at *964 (N.D. Cal. Aug 31, 2015) (finding that complaint that included group

8 pleading was not deficient where a few specific allegations identified the individual

9 defendant’s wrongdoing).

10 Plaintiff’s reliance on Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999),

11 does nothing to address the deficiencies noted above. (See ECF No. 24 at 8.) The Ninth

12 Circuit in Wakefield evaluated the propriety of a district court’s dismissal of the

13 plaintiff’s § 1983 claim against an unidentified correctional officer, sued as “John Doe,”

14 based on the observation that “Doe defendants are not favored in the Ninth Circuit.” Id.

15 at 1162-64. The Court reiterated its earlier holding that “where the identity of the

16 alleged defendant is not known prior to the filing of a complaint, the plaintiff should be

17 given an opportunity through discovery to identify the unknown defendants, unless it is

18 clear that discovery would not uncover the identities, or that the complaint would be

19 dismissed on other grounds.” Id. at 1163 (quoting Gillespie v. Civiletti, 629 F.2d 637, 642

20 (9th Cir. 1980), quotation cleaned up). Having determined that the plaintiff’s use of a

21 Doe defendant was an insufficient reason to dismiss the case, the court then considered

22 whether the complaint would be dismissed on other grounds, even if the correctional

23 officer were identified. Id.

24 The issue discussed in Wakefield simply has no bearing on the sufficiency of

25 Plaintiff’s factual allegations in this case to sue Individual Defendants. Plaintiff has not

26 sued unidentified Doe defendants so that he might discover the deeds of each before

27 naming allegedly culpable defendants in a future amended complaint; without

2 have done. See Fed. R. Civ. P. 12. In so doing, he has failed to identify the factual

3 allegations against any of the Individual Defendants, and his causes of action against

4 them should be dismissed.

5 For the reasons stated above, this Court RECOMMENDS Defendants’ motion to

6 dismiss for failure to state a claim be GRANTED as to Plaintiff’s first, second and third

7 causes of action.

8 C. § 1983 Claim Against Individual Defendants for Fourth Amendment Violations

9 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

10 elements: (1) that a right secured by the constitution or laws of the United States was

11 violated; and (2) that the alleged violation was committed by a person acting under the

12 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

13 Plaintiff alleged in his Complaint that Individual Defendants unreasonably seized

14 both his home and his car in violation of the Fourth Amendment. (ECF No. 6 at 5-6.)

15 Defendants here do not challenge whether they were state actors, but instead argue

16 they are protected by qualified immunity, because Plaintiff has not adequately pled any

17 Fourth Amendment violations and Individual Defendants did not violate any clearly

18 established right. (ECF No. 23-1 at 15-18.) As discussed in section IV.B., supra, Plaintiff’s

19 failure to plead facts showing that any of the Individual Defendants personally

20 participated in the alleged violation renders the SAC inadequate against all Defendants.

21 Nevertheless, the Court considers whether Plaintiff’s allegations are sufficient to state a

22 claim against any hypothetical defendant.

23 “Qualified immunity balances two important interests—the need to hold public

24 officials accountable when they exercise power irresponsibly and the need to shield

25 officials from harassment, distraction, and liability when they perform their duties

26 reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The doctrine therefore

27 protects state actors from liability in a § 1983 lawsuit, “as long as their actions could

2 one—focused on “clearly established statutory or constitutional rights of which a

3 reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

4 When applicable, qualified immunity completely insulates state actors from § 1983

5 litigation. Anderson, 483 U.S. at 646. To achieve qualified immunity’s primary purpose

6 of resolving meritless “insubstantial claims” brought against state actors prior to

7 discovery, immunity questions should be resolved as early as possible in litigation.

8 Pearson, 555 U.S. at 231-32 (quoting Anderson, 483 U.S. at 640, n.2).

9 When evaluating a case wherein the defendant asserts the defense of qualified

10 immunity, courts examine (1) whether the state actor’s alleged misconduct violated a

11 constitutional right and (2) whether the right was clearly established at the time of the

12 alleged misconduct. Id. at 232. The defense of qualified immunity fails only if the court

13 finds both that a constitutional right has been violated and that the right was clearly

14 established at the time. Id. While the “Constitution’s ‘elaboration from case to case’”

15 favors considering whether there was a constitutional violation before determining

16 whether the same was clearly established, (id. (quoting Saucier v. Katz, 533 U.S. 194,

17 201 (2001)), courts have discretion to consider these elements in any order they choose,

18 (id. at 236).

19 1. Plaintiff’s Fourth Amendment claims

20 Plaintiff’s complaint asserts Fourth Amendment violations based on two different

21 factual bases: (1) “by failing to secure the premises [(Plaintiff’s house)] after taking

22 control, [Individual] Defendants unreasonably seized them and everything within them,”

23 and (2) “[b]y taking possession, impounding, and dispensing with the car, [Individual]

24 Defendants unreasonably seized it.” (ECF No. 6 at 6.) Individual Defendants dispute

25 both theories, noting the facts alleged into the SAC pertaining to the failure to secure

26 Plaintiff’s home do not qualify as a seizure under the Fourth Amendment and Plaintiff

27 has not pled the “absence of all legitimate reasons to seize and impound [Plaintiff’s]

2 persons, houses, papers, and effects, against unreasonable searches and seizures.”

3 United States v. Jones, 565 U.S. 400, 404 (2012). The Fourteenth Amendment applies

4 the protections of the Fourth Amendment to the states. Mapp v. Ohio, 367 U.S. 643,

5 654-55 (1961). The problem addressed by the Fourth Amendment is the “‘misuse of

6 power,’ . . . not the accidental effects of otherwise lawful government conduct.” Brower

7 v. Cty. of Inyo, 489 U.S. 593, 596 (1989) (quoting Byars v. United States, 273 U.S. 28, 33

8 (1927)). The constitutional protection of the Fourth Amendment applies solely to

9 searches and seizures inflicted by government actors. United States v. Jacobsen, 466

10 U.S. 109, 113 (1984).

11 “A ‘seizure’ of property occurs when there is some meaningful interference with

12 an individual's possessory interests in that property.” Id.; see also Soldal v. Cook County,

13 Ill., 506 U.S. 56, 69 (1992) (holding that when law enforcement officers assisted a

14 landlord in dispossessing the plaintiff of his mobile home by “physically tearing [the

15 home] from its foundation and towing it to another lot,” those actions constituted a

16 seizure, stressing how the actions clearly interfered with the plaintiff’s possession of his

17 home). Once property has been seized, the question becomes whether the defendants

18 “acted reasonably under the Fourth Amendment.” Lavan v. City of Los Angeles, 693

19 F.3d 1022, 1030 (9th Cir. 2012).

20 a. Failure to secure the house

21 The Court first turns to Plaintiff’s claim that Individual Defendants’ failure to

22 secure his house was an unreasonable seizure of his home and everything therein that

23 violated the Fourth Amendment. (See ECF No. 6 at 6.) Defendants argue that the

24 alleged actions do not describe a seizure for Fourth Amendment purposes, as failing to

25 lock Plaintiff’s home did not interfere “with his possessory interest in his house.” (ECF

26 No. 23-1 at 16.)

27 The specific facts relevant to the Individual Defendants’ actions vis a vis Plaintiff’s

2 lock the door to his house as they were arresting him, (4) Defendants failed to secure

3 Plaintiff’s house, and (5) when Plaintiff’s girlfriend asked at least one Individual for the

4 key to lock up, that person or people refused. (See ECF No 6 at 3-4.) Plaintiff’s other

5 allegations, causally connecting Individual Defendants’ actions to third party looting, (id.

6 at 4 (alleging “because of Defendants’ failure to secure Plaintiff’s residence, Plaintiff’s

7 home was looted and squatted in”)), or asserting the legal significance of various

8 actions, (id. at 5 (“Defendants took control of Plaintiff’s residence by removing him from

9 the premises and taking his keys.”) and 6 (“By failing to secure the premises after taking

10 control, Defendants unreasonably seized them and everything within them.”), are not

11 factual allegations, but legal conclusions based on the facts presented, which the Court

12 is not required to assume are true. See Iqbal, 556 U.S. at 678 (“[T]he tenet that a court

13 must accept as true all of the allegations contained in a complaint is inapplicable to legal

14 conclusions.”).

15 Though Plaintiff does not address Defendant’s position that these pleaded facts

16 fail to describe a Fourth Amendment seizure, he cited in the SAC to Soldal, for the

17 proposition that the Fourth Amendment protects “property being seized ‘to collect

18 evidence, verify compliance with a housing regulation, effect an eviction by the police,

19 or on whim, for no reason at all.’” (ECF No. 6 at 5.) The Court in Soldal considered

20 whether a police officer’s facilitation of the disconnection and relocation of the

21 plaintiff’s mobile home was a seizure for Fourth Amendment purposes. Soldal, 506 U.S.

22 at 61-62. The Court rejected the appellate court’s determination that while technically a

23 seizure, the seizure had not implicated the Fourth Amendment, “because the officers

24 had not entered Soldal’s house, rummaged through his possessions, or . . . interfered

25 with his liberty in the course of the eviction.” Id. at 62-63. The Court explained that

26 “the Amendment [unmistakably] protects property as well as privacy,” despite the

27 appellate court’s belief that privacy and liberty were the amendment’s primary

2 interest, Soldal added little to the law regarding when a seizure occurs—minimal

3 discussion was required for the Court to determine that disconnecting a mobile home

4 from its foundation and towing it away met the Jacobsen standard by interfering with

5 Soldal’s possession of his home. See id. at 61-62 (citing Jacobsen, 466 U.S. at 113).

6 Though it addressed the seizure of a person rather than property, the Court finds

7 the case of Brower v. County of Inyo, 489 U.S. 593 (1989), instructive on what

8 constitutes a seizure. In Brower, the Court considered whether police officers’ use of a

9 barricade to stop a fleeing driver constituted a seizure, where the law stated that a

10 person is seized “[w]henever an officer restrains the freedom of a person to walk away.”

11 Id. at 594-95 (quoting Tennessee v. Garner, 471 U.S. 1, 7 (1985)). Justice Scalia, writing

12 for the majority, rejected the lower court’s finding that there had been no seizure

13 because the fleeing driver’s voluntary failure to stop, rather than the road block, had

14 terminated his movement. Id. at 595. Justice Scalia explained that “[v]iolation of the

15 Fourth Amendment requires an intentional acquisition of physical control” and that “the

16 taking itself must be willful.” Id. at 596 (emphasis added). The Court determined the

17 creation of the roadblock was a seizure because it is “enough for a seizure that a person

18 be stopped by the very instrumentality set in motion or put in place in order to achieve

19 that result.” Id. at 599 (emphasis added). The Court distinguished the scenario of the

20 roadblock from a hypothetical scenario in which a fleeing driver simply loses control of

21 the vehicle and crashes, because unlike the roadblock, the officer’s attempt to stop the

22 driver by pursuing him with flashing lights does not stop the hypothetical fleeing driver,

23 his unintended loss of control does. Id. at 597.

24 Plaintiff’s alleged facts do not demonstrate that Individual Defendants took

25 possession of his Plaintiff’s home and its contents or dispossessed him of it. (See ECF

26 No. 6.) Instead he alleges that Individual Defendants “failed to secure his home,” or left

27 it unlocked, and presumably other unidentified third parties, not the defendants,

2 lawfulness of which Plaintiff does not challenge here) prevented Plaintiff from returning

3 to his home. Further, Plaintiff could have sent his girlfriend or another agent to

4 safeguard his home. The stated facts simply do not describe officers’ substantial

5 interference with Plaintiff’s possession of his home or other property therein by any

6 willful action intended for that purpose as Brower requires.

7 Accordingly, this Court concludes that Plaintiff has failed to allege facts showing

8 that any officers violated Plaintiff’s Fourth Amendment rights by failing to secure his

9 home and the property therein, and therefore the Court need not ascertain whether

10 their actions were reasonable. See Calvin v. Whatcom Cty., No. C07-273RSL, 2010 WL

11 724679, at *3 (W.D. Wash. Feb. 26, 2010) (“[T]he Court cannot discern how a violation

12 of [the right to be free from unreasonable seizure] is plausibly supported by plaintiff's

13 allegations that defendants failed to adequately lock plaintiff's residence and that third

14 parties later burglarized and/or vandalized his residence.”). In reaching this conclusion,

15 the Court notes a distinction drawn by previous courts in § 1983 actions, that the issue

16 of whether specific conduct violates the constitution is distinct from whether it is

17 otherwise wrong or may justify tort liability. See, e.g., Baker v. McCollan, 443 U.S. 137,

18 142 (1979) (“Respondent's claim is that his detention in the Potter County jail was

19 wrongful. Under a tort-law analysis it may well have been. The question here, however,

20 is whether his detention was unconstitutional.”); Jessop v. City of Fresno, 936 F.3d 937,

21 942 (9th Cir. 2019) (“We recognize that the allegation of any theft by police officers—

22 most certainly the theft of over $225,000—is deeply disturbing. Whether that conduct

23 violates the Fourth Amendment’s prohibition on unreasonable searches and seizures,

24 however, would not ‘be “clear to a reasonable officer.”’”).

25 In support of his argument that Individual Defendants are liable for the

26 subsequent actions of third parties, Plaintiff cites to several cases for the principle that

27 “[t]he obligation to safeguard property is well-established.” (ECF No. 24 at 24.)

2 property while executing a search warrant. See San Jose Charter of Hells Angels

3 Motorcycle Club v. City of San Jose, 402 F.3d 962, 971-75 (9th Cir. 2005) (considering

4 whether officer’s order to seize every item with indicia of Hells Angels affiliation, which

5 required the seizure and destruction of “truckloads” of property was unreasonable

6 when the search warrant authorized the seizure of any such indicia); Mena v. City of

7 Simi Valley, 226 F.3d 1031, 1041 (9th Cir. 2000) (considering whether officers “callously

8 and needlessly ransacking [plaintiffs’] home and destroying property” during execution

9 of search warrant violated the Fourth Amendment); Bergquist v. County of Cochise, 806

10 F.2d 1364, 1369 (9th Cir. 2000) (remanding to lower court to consider whether officer’s

11 destruction of plaintiffs’ property was reasonably necessary to the execution of a search

12 warrant, as required to be reasonable under the Fourth Amendment). Since Plaintiff

13 does not allege that Individual Defendants personally destroyed or seized his property,

14 these cases are inapplicable.

15 Similarly, Plaintiff cites to several cases in his Opposition regarding the state-

16 created danger doctrine. (ECF No. 24 at 9.) Defendants accurately point out that

17 Plaintiff’s cited cases are again inapplicable to the facts and claims now before the

18 Court. (ECF No. 25 at 9.) The application in those cases of the principle that an officer

19 may violate an individual’s “interest in personal security under the fourteenth

20 amendment” by acting with deliberate indifference regarding the plaintiff’s physical

21 safety, has no bearing on the Fourth Amendment claims Plaintiff raises here. See Wood

22 v. Ostrander, 879 F.2d 583, 588 (9th Cir. 1989) (holding that where facts showed an

23 officer arrested the driver, impounded his car, and left the female passenger by the side

24 of the road in a high crime area, plaintiff had shown disregard to the passenger’s safety

25 amounting to deliberate indifference); L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992)

26 (explaining that the “danger-creation” exception applies to the general rule that

27 “members of the public have no right [under the Fourteenth Amendment] to sue state

2 Penilla v. City of Huntington Park, 115 F.3d 707, 709-710 (9th Cir. 1997) (discussing the

3 state-created doctrine in the context of claim that officers violated the Fourteenth

4 Amendment by depriving the decedent of his life without due process of law when after

5 determining he was in medical distress, officers cancelled the ambulance that had be

6 dispatched to assist him, and locked decedent in his home, alone and out-of-view);

7 Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061-62 (9th Cir. 2006) (analyzing the

8 plaintiff’s claim that the defendant “violated her Fourteenth Amendment right to

9 substantive due process by placing her in a known danger with deliberate indifference

10 to her personal, physical safety”); Johnson v. City of Seattle, 474 F.3d 634, 641 (9th Cir.

11 2007) (finding the “the [plaintiffs] have failed to offer evidence that the [d]efendants

12 engaged in affirmative conduct that enhanced the dangers the [plaintiffs] exposed

13 themselves to” and so they had not stated a due process violation); Henry A. v. Willden,

14 678 F.3d 991, 1002 (9th Cir. 2012) (applying rule that “[t]he State can also be held liable

15 under the Fourteenth Amendment's Due Process clause for failing to protect an

16 individual from harm by third parties ‘where the state action “affirmatively place[s] the

17 plaintiff in a position of danger,” that is, where state action creates or exposes an

18 individual to a danger which he or she would not have otherwise faced’”) (internal

19 citations omitted). Plaintiff has offered no authority that this rule extends to property

20 rather than personal safety, or applies at all outside of the Fourteenth Amendment

21 context. Because Plaintiff’s § 1983 cause of action against Individual Defendants relies

22 on the Fourth Amendment’s protection of property and not the Fourteenth

23 Amendment’s protection of personal safety, these cases have no applicability to this

24 cause of action.

25 b. Impound of Plaintiff’s car

26 Plaintiff alleges that “[b]y taking[] possession, impounding, and dispensing with

27 [his] car, Defendants unreasonably seized it.” (ECF No. 6 at 6.) He further alleges that

2 because Plaintiff did not allege facts that establish “the absence of all legitimate reasons

3 to seize and impound his car,” as would be necessary to permit “more than the mere

4 possibility of misconduct.” (ECF No. 23-1 at 16 (quoting Twombly, 550 U.S. at 555), ECF

5 No. 25 at 7-8 (same).) Plaintiff concedes that “seizing a car and not charging a person

6 with a crime does not, alone violate the Fourth Amendment,” and that such facts do not

7 state a cause of action. (ECF No. 24 at 14.) Plaintiff instead argues that Defendants

8 violated the Fourth Amendment when they “dispense[d] with the car so Plaintiff cannot

9 retrieve it or the property in it.”7 (Id.) Defendants counter that Plaintiff has not pled

10 facts sufficient to show that the alleged disposal was unreasonable because he has not

11 pled that it was unjustified. (ECF No. 25 at 7.)

12 While the continued impound or deprivation of lawfully seized property may

13 violate the Fourth Amendment if unjustified, Plaintiff has not pled facts alleging that the

14 disposal of his vehicle was not legally justified such that it violated the Fourth

15 Amendment. See Brewster v. Beck, 859 F.3d 1194, 1197 (9th Cir. 2017) (finding the

16 impound of a vehicle is a seizure, which is only reasonable so long as “the government’s

17 justification holds force”). Plaintiff simply states the legal conclusion that the

18 “Defendants unreasonably seized [his car]” without stating the facts that are alleged to

19 have made the treatment of the car unreasonable. (See ECF No. 6 at 6.) While Plaintiff

20 alleges that “Defendants’ seizures of Plaintiff’s home and personal property are

21 unrelated to any criminal prosecution or warrant. . . .[and] concern the Defendants’

22 failure to secure Plaintiff’s property in the course of an arrest,” this statement does not

23 appear to pertain to Plaintiff’s car, which Plaintiff alleges was impounded rather than

24

25

26

7 Plaintiff states in his argument in opposition that a court ordered the car to be released back,

27 however his SAC does not mention this. (See ECF No. 24 at 14.) The Court does not consider this fact

2 stated a Fourth Amendment claim pertaining to the seizure of his car.

3 2. While there is no clearly established law that law enforcement’s failure to

4 secure a person’s property after arrest violates the Fourth Amendment,

5 the law is clear that unjustified deprivation of a lawfully seized property

6 violates the Fourth Amendment.

7 Because Plaintiff has failed to adequately plead that Individual Defendants

8 violated his rights under the Fourth Amendment, the Court’s recommendation to grant

9 Defendants’ motion to dismiss does not require this Court to determine whether

10 Individual Defendants would be entitled to qualified immunity from a properly pled

11 cause of action. However, such a determination is relevant to Defendant’s position that

12 the Court should dismiss Plaintiff’s federal claims without leave to amend. (See ECF No.

13 23-1 at 22 (asking the Court to dismiss without leave to amend); ECF No. 25 at 13

14 (same)); see also Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (“[W]e have repeatedly

15 held that ‘a district court should grant leave to amend even if no request to amend the

16 pleading was made, unless it determines that the pleading could not possibly be cured

17 by the allegation of other facts.’”). The Court will therefore discuss whether the law

18 regarding Individual Defendant’s alleged Fourth Amendment violations is clearly

19 established such that qualified immunity would not bar Plaintiff’s claims, if properly

20 pled.

21 For a state actor to be held liable for a constitutional violation under § 1983,

22 clearly established law must have provided the defendant with fair warning that the

23 conduct in question was unconstitutional. Jessop, 936 F.3d at 940 (citing Tolan v.

24 Cotton, 572 U.S. 650, 656 (2014)). There need not be a case directly on point, “but

25 existing precedent must have placed the . . . constitutional question beyond debate.”

26 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). The key question is whether the “contours

27 of the right [are] sufficiently clear that a reasonable official would understand that what

2 officer’s failure to secure Plaintiff’s home would be an unreasonable seizure that

3 violated the Fourth Amendment. Therefore, Individual Defendants would not have

4 been on notice that such conduct would violate the Fourth Amendment, and the claim

5 would be barred by qualified immunity. This Court finds that the alleged facts regarding

6 officers’ failure to secure Plaintiff’s home do not describe a Fourth Amendment

7 violation, and certainly not a violation of clearly established law, which further supports

8 dismissal of Plaintiff’s first cause of action. On this basis, the Court also RECOMMENDS

9 Plaintiff not be permitted leave to amend a § 1983 claim regarding officers’ failure to

10 secure his home.

11 However, Ninth Circuit case law from 2017 held, in the context of an extended

12 vehicle impound, that “[a] seizure is justified under the Fourth Amendment only to the

13 extent that the government’s justification holds force. Thereafter, the government

14 must cease the seizure or secure a new justification.” Brewster, 859 F.3d at 1197; see

15 also Jessop, 936 F.3d at 941 (“Although the City Officers seized Appellants’ money and

16 coins pursuant to a lawful warrant, their continued retention—and alleged theft—of the

17 property might have been a Fourth Amendment seizure because ‘[t]he Fourth

18 Amendment doesn’t become irrelevant once an initial seizure has run its course.’”)

19 (quoting Brewster, 859 F.3d at 1197). It is therefore possible that, should Plaintiff

20 sufficiently plead a § 1983 cause of action based on a state actor’s continued unjustified

21 seizure or disposal of Plaintiff’s car, the claim could survive qualified immunity. This

22 further supports dismissal of Plaintiff’s first cause of action, but this Court

23 RECOMMENDS that Plaintiff be permitted leave to amend his § 1983 claim based on the

24 extended impound and disposal of his vehicle.

25 D. Plaintiff’s Monell Claim

26 The parties disagree about whether Plaintiff’s allegations support a § 1983 claim

27 against the City of National City under Monell v. Dep’t of Soc. Servs., 436 U.S. 658

2 Defendants’ alleged constitutional violations “were proximately cause by National City’s

3 deliberate indifference to the maintenance, training, and control of NCPD, and the

4 injuries and constitutional violations set forth herein were proximately caused by the

5 customs, practices, policies, and decisions of the Defendant National City, including

6 inadequately training and supervising Deputies regarding the reasonable and proper

7 securing of premises and proper investigation of persons when responding to

8 individuals.” (ECF No. 6 at 10-11.) Plaintiff further alleges, on information and belief,

9 that “the details of this incident has been revealed to the authorized policymakers

10 within National City, and that such policymakers directly know that the seizure of

11 Plaintiff’s property was not justified,” and yet the policymakers have deliberately chosen

12 to approve and endorse Individual Defendants’ actions. (Id. at 10.) Defendants argue

13 the Monell claim fails because Plaintiff’s SAC fails to allege a constitutional violation

14 against National City and generally lack facts sufficient to support a Monell claim, and

15 instead relies on an unsupported recitation of the elements of a Monell claim. (ECF No.

16 23-1 at 19-20; ECF No. 25 at 10.)

17 A municipal entity may be named as a defendant in a § 1983 lawsuit if the

18 municipality cause the plaintiff’s injury. Monell, 436 U.S. at 690-91. However, such an

19 entity may not be held liable for an individual employee or agent’s action on a theory of

20 respondeat superior or vicarious liability. Id. at 691-93. “A § 1983 plaintiff can establish

21 municipal liability in three ways: (1) the municipal employee committed the

22 constitutional violation pursuant to an official policy; (2) the employee acted pursuant

23 to a longstanding practice or custom; and (3) the employee functioned as a final

24 policymaker.” Barone v. City of Springfield, Oregon, 902 F.3d 1091, 1107 (9th Cir. 2018)

25 (citing Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004)). To state a Monell claim against

26 National City, Plaintiff must allege facts demonstrating that (1) he was deprived of a

27 constitutional right, (2) the municipality had a policy, (3) the policy evinces deliberate

2 654 F.3d 892, 900 (9th Cir. 2011) (quoting Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill,

3 130 F.3d 432, 438 (9th Cir.1997)). After Iqbal, to survive a motion to dismiss for failure

4 to state a claim, a plaintiff alleging a Monell violation must “(1) identify the challenged

5 policy/custom; (2) explain how the policy/custom is deficient; (3) explain how the

6 policy/custom caused the plaintiff harm; and (4) reflect how the policy custom

7 amounted to deliberate indifference, i.e. show how the deficiency involved was obvious

8 and the constitutional injury was likely to occur.” Koistra v. Cty. of San Diego, CASE NO.

9 16cv2539-GPC(AGS), 2017 WL 4700073, at *7 (S.D. Cal. Oct. 19, 2017) (quoting Young v.

10 City of Visalia, 687 F.Supp.2d 1155, 1163 (E.D. Cal. 2010)).

11 Monell claims, governed by Rule 8, require a plaintiff to plead more than

12 “[t]hreadbare recitals of the elements of a cause of action, supported by mere

13 conclusory statements.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

14 “While legal conclusions can provide the framework for a complaint, they must be

15 supported by factual allegations.” Id. at 679. A cognizable Monell claim must contain

16 factual allegations to support causation between the municipal program and the

17 plaintiff’s injury. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“the fact

18 that the departmental regulations might have authorized” an unconstitutional policy

19 was irrelevant to the plaintiff’s § 1983 claim where Plaintiff’s constitutional rights were

20 not, in fact, violated).

21 1. Plaintiff’s Monell claim fails because Plaintiff has not pled a constitutional

22 violation.

23 Because this Court has found that Plaintiff has not pled a constitutional violation,

24 this Court also RECOMMENDS Defendants’ motion to dismiss the Fourth Cause of

25 Action alleging municipal liability against National City be GRANTED. Atayde v. Napa

26 State Hospital, No. 1:16-cv-00398-DAD-SAB, 2016 WL 4943959, at *5 (E.D. Cal. Sept. 15,

27 2016) (citing Hansen v. Black, 855F.2d 642, 646 (9th Cir. 1989)). By reasoning of the

2 departmental regulations might have authorized [unconstitutional actions] is quite

3 beside the point.” 475 U.S. 796, 799 (1986) (emphasis in original).

4 2. Plaintiff has not alleged sufficient facts to support his Monell claim.

5 While Plaintiff’s failure to demonstrate the first element of a Monell claim, as

6 discussed above, alone justifies dismissal, the Court will briefly discuss the sufficiency of

7 Plaintiff’s allegations as to other elements of his municipal liability claim to inform any

8 potential third amended complaint.

9 Plaintiff’s allegations in the instant case essentially recite the elements for a

10 municipal violation based on theories of policy and custom, failure to train, and

11 ratification of conduct by a decision maker. (See ECF No. 6 at 8-12; ECF No. 24 at 15

12 (arguing that Plaintiff has adequately pled that National City has a policy or custom by

13 stating that “National City ‘knew their[sic] officers were engaging in unlawful seizures of

14 arrestees’ homes and property’ and has ‘policies or customs of permitting the wrongs

15 set forth above, by deliberate indifference to widespread police abuses, failing and

16 refusing to fairly and impartially investigate, discipline or prosecute peace officers who

17 commit acts of unlawful seizure, each ratified and approved by National City through

18 NCPD.’”).) Plaintiff’s SAC does not satisfy the post-Iqbal pleading requirements. Each of

19 the allegations Plaintiff makes are conclusory and not accompanied by facts which might

20 permit the Court to infer that National City caused any constitutional violation that

21 might entitle Plaintiff to relief. See, e.g., Koistra, 2017 WL 4700073, at *8 (finding

22 plaintiff’s Monell claim was “merely present[ed] a recitation of elements of Monell

23 causes of action based on policy, practice or custom, and failure to train and supervise

24 and [did] not provide any supporting facts,” where pleadings in complaint were very

25 similar to those in this case).

26 E. Fifth Cause of Action

27 The Court has not yet addressed Plaintiff’s fifth cause of action, based on state

2 through fourth causes of action, the Court also RECOMMENDS the District Court

3 exercise its discretion to DISMISS Plaintiff’s fifth cause of action without prejudice. 28

4 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental

5 jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all

6 claims over which it has original jurisdiction.”); United Mine Workers of Am. V. Gibbs,

7 383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are dismissed before trial, . . .

8 the state claims should be dismissed as well.”).

9 V. SUMMARY OF RECOMMENDATIONS

10 To summarize the above recommendations, the Court recommends that the

11 District Judge grant Defendants’ Motion to Dismiss. In reaching this recommendation,

12 the Court specifically recommends that:

13 (1) Plaintiff’s first cause of action pursuant to § 1983 violations based on

14 violations of the Fourth Amendment be dismissed for failure to state a claim, and that

15 the dismissal of this cause of action be with leave to amend only in a manner consistent

16 with this Report and Recommendation;

17 (2) Plaintiff’s second and third causes of action based on state law be

18 dismissed for failure to state a claim with leave to amend;

19 (3) Plaintiff’s fourth cause of action for Monell liability be dismissed for failure

20 to state a claim with leave to amend only in a manner consistent with this this Report

21 and Recommendation; and

22 (4) Plaintiff’s fifth cause of action based on state law be dismissed pursuant to

23 the Court’s discretion not to exercise supplemental jurisdiction.

24 VI. CONCLUSION AND RECOMMENDATION

25 For the foregoing reasons, it is RECOMMENDED that the District Court issue an

26 Order: (1) approving and adopting this Report and Recommendation; and (2) GRANTING

27 Defendants’ Motion to Dismiss Plaintiff’s SAC as summarized above.

1 IT IS ORDERED that no later than August 14, 2020, any party to this action may

2 || file written objections with the Court and serve a copy on all parties. The document

3 ||should be captioned “Objections to Report and Recommendation.”

4 IT Is FURTHER ORDERED that any reply to the objections shall be filed with the

5 Court and served on all parties no later than August 28, 2020. The parties are advised

6 || that failure to file objections within the specified time may waive the right to raise those

7 || objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th

8 || Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir. 1991).

9 IT IS SO ORDERED.

10 Dated: July 31, 2020 =

_ 2 FF

D Honorable Michael S. Berg

United States Magistrate Judge

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