# Lopez v. City of El Cajon

> District Court, S.D. California · August 27, 2020

URL: https://www.frixlaw.com/law-library/cases/10081826

## Case

- **Court:** District Court, S.D. California
- **Decided:** August 27, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 FRANCISCO LOPEZ, Case No.: 20-cv-533-WQH-BLM

12 Plaintiff,
ORDER
13 v.
14 CITY OF EL CAJON; OFFICER
R. GRAY, in his individual
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capacity; and DOES 1-30,
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Defendants.
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HAYES, Judge:
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The matter before the Court is the Motion to Dismiss Plaintiff’s Complaint filed by
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Defendants City of El Cajon and Officer R. Gray. (ECF No. 7).
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I. BACKGROUND
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On March 20, 2020, Plaintiff Francisco Lopez filed a Complaint against Defendants
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City of El Cajon (the “City”), Officer R. Gray, and Does 1 through 30. (ECF No. 1). In the
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Complaint, Plaintiff alleges that “[o]n the morning of February 26, 2019, Officer R. Gray
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and other El Cajon police officers detained [Plaintiff]” for “being under the influence of
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controlled substances or for suffering from a mental disorder.” (Id. at 1 & ¶ 10). Plaintiff
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alleges that he was unarmed. Plaintiff alleges that the officers “knocked [Plaintiff] to the
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ground, punched, elbowed, [ ] hit . . .,” and “verbally threatened” Plaintiff. (Id. ¶¶ 12-13).
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1 Plaintiff alleges that the officers “fractured the medial wall of [Plaintiff’s] eye socket and
2 broke his rib.” (Id. ¶ 14). Plaintiff alleges that the beating “caused [Plaintiff] to sustain a
3 traumatic head injury, a concussion, severe bruising on multiple parts of his body, two
4 black eyes, swelling, contusions, and a jaw injury.” (Id. ¶ 15). Plaintiff alleges that his
5 “head, face, jaw, eyes, brain, nervous system, neck, back, shoulders, and ribs were all
6 injured.” (Id. ¶ 16). Plaintiff alleges that “[t]he beating caused [Plaintiff] to sustain post
7 concussive syndrome. His symptoms include blurred vision, floaters, vertigo, headaches,
8 and ongoing physical pain.” (Id. ¶ 18).
9 Plaintiff alleges that he was taken to the emergency room in an ambulance. Plaintiff
10 alleges that he “was still receiving treatment for his injuries five months after the officers
11 beat him.” (Id. ¶ 19). Plaintiff alleges that “[t]he police report notes that ‘Officer Gray used
12 physical force against [Plaintiff], causing visible injury to [Plaintiff]’s head and face.’” (Id.
13 ¶ 17). Plaintiff alleges that his injuries “led him to lose earning capacity and suffer from
14 lost wages.” (Id. ¶ 20). Plaintiff alleges that the officers “humiliated [Plaintiff], damaged
15 his reputation, and caused him emotional harm, including fear, anxiety, indignity,
16 embarrassment, and depression.” (Id. ¶ 21).
17 Plaintiff brings a claim against Officer Gray and Does 1 through 30 for excessive
18 force and failure to intercede under 42 U.S.C. § 1983. Plaintiff brings claims against all
19 Defendants for negligence and for violation of the Bane Act, Cal. Civ. Code § 52.1.
20 Plaintiff seeks general, special, and punitive damages; attorneys’ fees, costs, and interest;
21 and “all other relief this court deems just and proper.” (Id. at 7).
22 On April 22, 2020, the City and Officer Gray filed a Motion to Dismiss Plaintiff’s
23 Complaint. (ECF No. 7). Defendants move to dismiss the Complaint pursuant to Rule
24 12(b)(6) of the Federal Rules of Civil Procedure on the ground that Plaintiff fails to state a
25 claim upon which relief can be granted. On May 18, 2020, Plaintiff filed an Opposition to
26 the Motion to Dismiss. (ECF No. 8). On May 21, 2020, Defendants filed a Reply. (ECF
27 No. 9).
28 ///
1 II. LEGAL STANDARD
2 Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for “failure
3 to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order to state
4 a claim for relief, a pleading “must contain . . . a short and plain statement of the claim
5 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal under Rule
6 12(b)(6) “is proper only where there is no cognizable legal theory or an absence of
7 sufficient facts alleged to support a cognizable legal theory.” Shroyer v. New Cingular
8 Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citation omitted).
9 “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
10 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
11 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
12 “A claim has facial plausibility when the plaintiff pleads factual content that allows the
13 court to draw the reasonable inference that the defendant is liable for the misconduct
14 alleged.” Id. at 678 (citation omitted). However, “a plaintiff’s obligation to provide the
15 ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
16 formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S.
17 at 555 (alteration in original) (quoting Fed. R. Civ. P. 8(a)). A court is not “required to
18 accept as true allegations that are merely conclusory, unwarranted deductions of fact, or
19 unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.
20 2001). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual
21 content, and reasonable inferences from that content, must be plausibly suggestive of a
22 claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.
23 2009) (citation omitted).
24 III. 28 U.S.C. § 1983
25 Plaintiff brings a claim against Officer Gray and Does 1 through 30 for violating 42
26 U.S.C. § 1983 by using “excessive and unlawful physical force” while detaining Plaintiff.
27 (ECF No. 1 ¶ 25). Defendants contend that Plaintiff improperly “lump[s] defendants
28 together” and “does not specify what role each individual defendant actually had in causing
1 him harm.” (ECF No. 7-1 at 11-12). Defendants contend that Plaintiff fails to allege facts
2 from which the Court can infer that Officer Gray used force, the purpose of any use of
3 force, and that any use of force was excessive. Defendants contend that Plaintiff fails to
4 allege facts sufficient to support an inference that any use of force was objectively
5 unreasonable under the circumstances. Defendants contend that Officer Gray is entitled to
6 qualified immunity. Defendants contend that “[n]o decision by the Supreme Court has
7 clearly established that law enforcement officers, when confronted with a suspect who was
8 observed running in and out of traffic, under the influence of drugs or alcohol or mentally
9 ill, resisting arrest and biting an officer in a dangerous manner that creates an imminent
10 threat of serious injury to the officer may not use force.” (Id. at 18).
11 Plaintiff contends that “[Officer] Gray, and other officers, acting in concert,
12 brutalized Plaintiff to the point where he suffered a traumatic head injury.” (ECF No. 8 at
13 5). Plaintiff contends that “Defendants, including [Officer] Gray, used excessive force . . .
14 .” (Id.). Plaintiff contends that the amount of force used was “unquestioningly excessive”
15 because at the time of the beating, Plaintiff was unarmed, helpless, and on the ground, and
16 the only crime alleged was being under the influence of controlled substances or suffering
17 from a mental disorder. (Id. at 7). Plaintiff contends that Officer Gray is not entitled to
18 qualified immunity because it is clearly established in the Ninth Circuit that punching a
19 man whose resistance to arrest was minimal, and causing serious injuries, is
20 unconstitutional.
21 To state a claim against an individual defendant under § 1983, a plaintiff must show
22 “(1) that a person acting under color of state law committed the conduct at issue, and (2)
23 that the conduct deprived the claimant of some right, privilege, or immunity protected by
24 the Constitution or laws of the United States.” Leer v. Murphy, 844 F.2d 628, 632-33 (9th
25 Cir. 1988) (citation omitted). A plaintiff bringing an individual capacity claim under § 1983
26 must demonstrate that each defendant personally participated in the deprivation of his
27 rights. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “A person deprives
28 another ‘of a constitutional right, within the meaning of section 1983, if he does an
1 affirmative act, participates in another’s affirmative acts, or omits to perform an act which
2 he is legally required to do that causes the deprivation of which [the plaintiff complains].’”
3 Leer, 844 F.2d at 633 (alteration in original) (emphasis omitted) (quoting Johnson v. Duffy,
4 588 F.2d 740, 743 (9th Cir. 1978)).
5 Section 1983 claims based on excessive force during an investigation or arrest are
6 analyzed under the Fourth Amendment prohibition against unreasonable seizures. See
7 Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (per curiam). The Fourth Amendment
8 requires a police officer apprehending a person to use only an amount of force that is
9 objectively reasonable considering the circumstances. See Tennessee v. Garner, 471 U.S.
10 1, 7-8 (1985); see also Graham v. Connor, 490 U.S. 386, 397 (1989) (the question is
11 whether the use of force was “objectively reasonable in light of the facts and circumstances
12 confronting” the officer).
13 [The Court of Appeals for the Ninth Circuit] approach[es] an excessive force
claim in three stages. Espinosa v. City & Cty. of S.F., 598 F.3d 528, 537 (9th
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Cir. 2010). First, [the court] “assess[es] the severity of the intrusion on the
15 individual’s Fourth Amendment rights by evaluating the type and amount of
force inflicted.” Id. (citation and internal quotation marks omitted). Then, [the
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court] evaluate[s] the government’s interests by assessing the severity of the
17 crime; whether the suspect posed an immediate threat to the officers’ or
public’s safety; and whether the suspect was resisting arrest or attempting to
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escape. Id. Finally, [the court] “balance[s] the gravity of the intrusion on the
19 individual against the government’s need for that intrusion.” Id.; Graham v.
Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).
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21 Thompson v. Rahr, 885 F.3d 582, 586 (9th Cir. 2018).
22 In this case, Plaintiff alleges that “Officer R. Gray and other El Cajon police officers
23 detained [Plaintiff]” for “being under the influence of controlled substances or for suffering
24 from a mental disorder.” (ECF No. 1 at 1 & ¶ 10). Plaintiff alleges that he was unarmed
25 and that the officers “knocked [Plaintiff] to the ground, punched, elbowed, and hit him.”
26 (Id. ¶ 12). Plaintiff alleges that the officers “continued to use force on the plaintiff after he
27 was on the ground and unable to defend himself.” (Id. ¶ 26). Plaintiff alleges that “[t]he
28 police report notes that ‘Officer Gray used physical force against [Plaintiff], causing visible
1 injury to [Plaintiff’s] head and face.’” (Id. ¶ 17). Plaintiff alleges that he suffered a fractured
2 eye socket, broken ribs, a traumatic head injury, a concussion, severe bruising, two black
3 eyes, swelling, contusions, and a jaw injury. Plaintiff alleges that he was taken to the
4 emergency room in an ambulance and was still receiving treatment for his injuries five
5 months after the incident.
6 Plaintiff fails to allege facts regarding the “facts and circumstances confronting” the
7 officers, Graham, 490 U.S. at 397, sufficient to assess “whether [Plaintiff] posed an
8 immediate threat to the officers’ or public’s safety; and whether [Plaintiff] was resisting
9 arrest or attempting to escape.” Thompson, 885 F.3d at 586 (citing Espinosa, 598 F.3d at
10 537); see Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994) (the “most important single
11 element” is “whether the suspect poses an immediate threat to the safety of the officers or
12 others”); see also Lindsay v. Kiernan, 378 F. App’x 606, 608 (9th Cir. 2010) (explaining
13 on a motion for summary judgment that the plaintiff’s “intoxicated state, increasing
14 hostility, physical resistance, and repeated refusal to leave the gas station could have led a
15 reasonable officer to believe that [the plaintiff] posed an immediate threat to the safety of
16 the officers and the safety of the young female convenience store clerk”). Plaintiff fails to
17 state facts sufficient to support an inference that the use of force was unreasonable under
18 the circumstances. Taking Plaintiff’s factual allegations as true, Plaintiff fails to state a
19 claim under § 1983. Defendants’ Motion to Dismiss Plaintiff’s § 1983 claim is granted.
20 IV. STATE LAW CLAIMS
21 Plaintiff’s remaining claims arise under California state law and include causes of
22 action for negligence and for violation of the Bane Act. The federal supplemental
23 jurisdiction statute provides, “[I]n any civil action of which the district courts have original
24 jurisdiction, the district courts shall have supplemental jurisdiction over all other claims
25 that are so related to claims in the action within such original jurisdiction that they form
26 part of the same case or controversy under Article III of the United States Constitution.”
27 28 U.S.C. § 1367(a). “The district courts may decline to exercise supplemental
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1 ||jurisdiction” for a number of reasons, including if “the district court has dismissed all
2 claims over which it has original jurisdiction[.]” 28 U.S.C. § 1367(c)(3).
3 “Depending on a host of factors, then—including the circumstances of the particular
4 ||case, the nature of the state law claims, the character of the governing state law, and the
5 ||relationship between the state and federal claims—district courts may decline to exercise
6 || jurisdiction over supplemental state law claims.” City of Chicago v. Int’ Coll. of Surgeons,
7 |{522 U.S. 156, 173 (1997). “While discretion to decline to exercise supplemental
8 || jurisdiction over state law claims is triggered by the presence of one of the conditions in §
9 || 1367(c), it is informed by the [United Mine Workers of America v.| Gibbs[,] [383 U.S. 715
10 ||(1966),] values of economy, convenience, fairness, and comity.” Acri v. Varian Assocs.,
11 |} 114 F.3d 999, 1001 (9th Cir. 1997) (citation omitted). “‘[I]n the usual case in which
12 || federal-law claims are eliminated before trial, the balance of factors . . . will point toward
13 || declining to exercise jurisdiction over the remaining state law claims.’” Schneider v. TRW,
14 || Inc., 938 F.2d 986, 993 (9th Cir. 1991) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S.
15 || 343, 350 n.7 (1970)).
16 Plaintiff fails to state a claim over which this Court has original jurisdiction. The
17 Court cannot conclude that it has diversity jurisdiction over this action. The Court declines
18 || to exercise supplemental jurisdiction over Plaintiff's state law claims.
19 CONCLUSION
20 IT IS HEREBY ORDERED that the Motion to Dismiss Plaintiff's Complaint (ECF
21 || No. 7) is granted. The Complaint is dismissed without prejudice. No later than thirty (30)
22 from the date of this Order, Plaintiff may file any motion for leave to amend pursuant
23 Civil Local Rules 7.1 and 15.1(c).
24 || Dated: August 27, 2020 BME: ie Z. A a
25 Hon. William Q. Hayes
%6 United States District Court
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10081826. Public record. Not legal advice.