# Lien v. City of San Diego

> District Court, S.D. California · May 24, 2021

URL: https://www.frixlaw.com/law-library/cases/10083753

## Case

- **Court:** District Court, S.D. California
- **Decided:** May 24, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- reversing a district court’s grant of summary judgment in favor of a city 7 where it may be inferred that there was a policy of viewpoint discrimination against anti- 8 WTO demonstrators given five incidents of speech suppression on the same day
- declining to consider arguments raised for first time in a 22 reply brief

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 MANDY LIEN and ERIN SMITH, Case No. 21-cv-224-MMA (WVG)

12 Plaintiffs,
ORDER GRANTING DEFENDANTS’
13 v. MOTION TO DISMISS AND
GRANTING IN PART AND
14 CITY OF SAN DIEGO, et al.,
DENYING IN PART DEFENDANTS’
15 Defendants. MOTION TO STRIKE

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[Doc. No. 3]
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19 Plaintiffs Mandy Lien (“Lien”) and Erin Smith (“Smith”) (collectively,
20 “Plaintiffs”) bring this civil rights action under 42 U.S.C. § 1983 against Defendants City
21 of San Diego (“City”), David Nisleit (“Nisleit”), Todd Gloria (“Gloria”), and unidentified
22 Does (collectively, “Defendants”). See Doc. No. 1 (“Compl.”). Defendants move to
23 dismiss each cause of action pursuant to Federal Rule of Civil Procedure 12(b)(6) and
24 move to strike several allegations from the Complaint pursuant to Federal Rule of Civil
25 Procedure 12(f). See Doc. No. 3. Plaintiffs filed an opposition to Defendants’ motion,
26 and Defendants replied. See Doc. Nos. 4, 5. The Court found the matter suitable for
27 determination on the papers and without oral argument pursuant to Federal Rule of Civil
28 Procedure 78(b) and Civil Local Rule 7.1.d.1. See Doc. No. 6. For the reasons set forth
1 below, the Court GRANTS Defendants’ motion to dismiss and GRANTS in part and
2 DENIES in part Defendants’ motion to strike.
3 I. BACKGROUND1
4 Plaintiffs’ action arises from a demonstration involving supporters and opponents
5 of former President Donald Trump (“Trump”) that took place in Pacific Beach on
6 January 9, 2021. See Compl. ¶¶ 1, 2, 21.
7 Lien arrived in Pacific Beach at 1:05 P.M. on January 9 “to peacefully protest a
8 white nationalist rally led by hate groups from East County.” Id. ¶ 21. She was wearing
9 a shirt that said “don’t pretend your patriotism isn’t racism” and a red hat that supports
10 Black Lives Matter. Smith walked to the area “to peacefully counter protest a rally
11 bringing neo-nazis from out of town.” Id. ¶ 29. Lien and her friends walked and
12 chanted, hoping to “discourage those that mean to spread hate.” Id. ¶ 23. A few
13 unidentified individuals showed up “to instigate and agitate.” Id. Lien and her friends
14 then walked to the intersection of Mission Boulevard and Hornblend Street. Id. At the
15 intersection, Lien saw “a line of officers and the group of white nationalists behind
16 them.” Id. There were twenty-five officers dressed in riot gear facing Lien and her
17 group; there were less than ten officers facing the “the white nationalist group that is
18 known for carrying weapons.” Id. ¶ 24. People from the white nationalist group were
19 “instigating and pepper spraying people.” Id. ¶ 25.
20 At some point, San Diego Police Department (“SDPD”) officers declared an
21 “unlawful assembly” against anti-Trump protestors. See id. ¶¶ 4, 39, 43. “When it was
22 apparent the police were only interested in using excessive force against the counter
23 protestors, Lien and her mom friends decided it was in their best interest to leave to avoid
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27 1 Because this matter is before the Court on a motion to dismiss, the Court must accept as true the
allegations set forth in the Complaint. See Hosp. Bldg. Co. v. Trs. Of Rex Hosp., 425 U.S. 738, 740
28
1 injury.” Id. ¶ 26. As they were leaving, police moved forward and began to pepper ball
2 the crowd. Id. SDPD officers yelled “Move! Move! Move!” Id. ¶ 29.
3 Smith tripped after an officer shoved her with a baton. Id. ¶¶ 26, 30. Police then
4 hit Smith with batons and yelled at her while she was on the ground. Id. ¶¶ 26, 29, 31.
5 While being hit by male officers, Smith screamed “I just tripped! I just tripped!” Id.
6 ¶ 32. While Lien tried to help Smith stand up, officers surrounded Smith to hide what
7 was happening, and a female officer hit Lien and told her to stay back. Id. ¶¶ 26, 33.
8 After Smith stood up, police shot her with a pepper ball in the back of her arm, which
9 caused a large welt. Id. ¶ 34. Smith and Lien then moved to a safe place while being
10 verbally threatened by unidentified pro-Trump supporters. Id. ¶¶ 27, 36.
11 On the other hand, pro-Trump demonstrators were treated differently. See id.
12 ¶¶ 3–4. For example, SDPD officers “high-fived and chatted it up with the violent pro-
13 Trump side, including some who were later arrested by the FBI for being part of the
14 assault on the U.S. Capitol.” Id. ¶ 3. The SDPD declared an “unlawful assembly”
15 against the anti-Trump demonstrators while allowing pro-Trump demonstrators to
16 continue in the same area and towards the Pacific Beach boardwalk. Id. ¶ 4.
17 Plaintiffs claim that the SDPD engaged in viewpoint discrimination by declaring
18 an unlawful assembly only against the anti-Trump protestors, which violated Plaintiffs’
19 First Amendment rights. See id. ¶¶ 3, 12, 24, 26, 29, 39. Plaintiffs further allege that
20 SDPD’s actions amounted to an unlawful seizure under the Fourth Amendment and a
21 violation of their due process rights under the Fourteenth Amendment. See id. ¶¶ 26, 30–
22 34, 39, 44.
23 Based on these allegations, Plaintiffs bring two causes of action: (1) municipal
24 liability against the City pursuant to Monell v. Department of Social Services, 436 U.S.
25 658, 690–91 (1978), and 42 U.S.C. § 1983 and (2) individual liability against Nisleit,
26 Gloria, and Doe Defendants pursuant to 42 U.S.C. § 1983. See id. ¶¶ 37–44. Defendants
27 move to dismiss the causes of action for failure to state a claim under Rule 12(b)(6) and
28 move to strike allegations from the Complaint under Rule 12(f). See Doc. No. 3.
1 II. MOTION TO DISMISS
2 A. Legal Standard
3 A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro
4 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain
5 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
6 8(a)(2). However, plaintiffs must also plead “enough facts to state a claim to relief that is
7 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also
8 Fed. R. Civ. P. 12(b)(6). The plausibility standard demands more than a “formulaic
9 recitation of the elements of a cause of action,” or “‘naked assertions’ devoid of ‘further
10 factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
11 550 U.S. at 555, 557). Instead, the complaint “must contain sufficient allegations of
12 underlying facts to give fair notice and to enable the opposing party to defend itself
13 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
14 In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth
15 of all factual allegations and must construe them in the light most favorable to the
16 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996)
17 (citing Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1340 (9th Cir. 1995)). The court need
18 not take legal conclusions as true merely because they are cast in the form of factual
19 allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting W. Min.
20 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Similarly, “conclusory allegations
21 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.”
22 Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).
23 In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not
24 look beyond the complaint for additional facts. See United States v. Ritchie, 342 F.3d
25 903, 907–08 (9th Cir. 2003). “A court may, however, consider certain materials—
26 documents attached to the complaint, documents incorporated by reference in the
27 complaint, or matters of judicial notice—without converting the motion to dismiss into a
28 motion for summary judgment.” Id. at 908; see also Lee v. City of Los Angeles, 250 F.3d
1 668, 688 (9th Cir. 2001), overruled on other grounds by Galbraith v. County of Santa
2 Clara, 307 F.3d 1119, 1125–26 (9th Cir. 2002). “However, [courts] are not required to
3 accept as true conclusory allegations which are contradicted by documents referred to in
4 the complaint.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998)
5 (citing In re Stac Electronics Securities Litigation, 89 F.3d 1399, 1403 (9th Cir. 1996)).
6 Where dismissal is appropriate, a court should grant leave to amend unless the
7 plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of
8 Phoenix, 566 F.3d 936, 942 (9th Cir. 2009) (quoting Lopez v. Smith, 203 F.3d 1122, 1127
9 (9th Cir. 2000)).
10 B. Discussion
11 Defendants challenge each of Plaintiffs’ two causes of action. See Doc. No. 3.
12 The Court assesses each of Plaintiffs’ claims in turn.
13 1. Municipal Liability Under § 1983 – First Cause of Action
14 Defendants argue that Plaintiffs do not sufficiently allege a specific municipal
15 policy. See Doc. No 3-1 at 10.2 Defendants challenge Plaintiffs’ reliance on alleged
16 similar occurrences at a May 2016 Trump rally and a Women’s March to support a
17 municipal policy. See id. at 10–11 (citing Compl. ¶¶ 7, 9); see also Doc. No. 5 at 2–3.3
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2 All citations to electronically filed documents refer to the pagination assigned by the CM/ECF system.
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3 Defendants request that the Court take judicial notice of several orders from consolidated actions in
22 this district: Ramirez v. Zimmerman, No. 17-cv-1230-BAS (AHG) (S.D. Cal.) and Pease v. Gore, No.
18-cv-1062-BAS (AHG) (S.D. Cal.). See Doc. No. 3-2. Plaintiffs do not appear to object to
23 Defendants’ request. See Doc. No. 4 at 2. Accordingly, because these documents are court orders and
Plaintiffs do not object, the Court GRANTS Defendants’ request for judicial notice to the extent the
24
Court relies upon the documents. See Fed. R. Evid. 201; Harris v. County of Orange, 682 F.3d 1126,
25 1132 (9th Cir. 2012) (“We may take judicial notice of undisputed matters of public record, including
documents on file in federal or state courts.”); see also M/V Am. Queen v. San Diego Marine Const.
26 Corp., 708 F.2d 1483, 1491 (9th Cir. 1983) (citing 29 Am. Jur. 2d Evidence § 58 (1967)) (“As a general
rule, a court may not take judicial notice of proceedings or records in another cause so as to supply,
27 without formal introduction of evidence, facts essential to support a contention in a cause then before it.
But a court can properly notice a doctrine or rule of law from such prior case and apply that principle
28
1 Defendants further contend that Plaintiffs fail to allege any facts that Chief Nisleit or
2 Mayor Gloria possessed final policy-making authority for the alleged decisions. See Doc.
3 No 3-1 at 12. Relatedly, Defendants assert that Plaintiffs fail to allege a specific policy
4 that Chief Nisleit or Mayor Gloria “directed, approved or ratified.” Doc. No 3-1 at 12;
5 see also Doc. No. 5 at 3. Plaintiffs respond that they base their First Amendment theory
6 on “Defendants unlawfully declar[ing] the assembly to be unlawful, and then engag[ing]
7 in viewpoint discrimination by enforcing the order only against the anti-Trump side.”
8 See Doc. No. 4 at 4. Plaintiffs add that their Complaint shows a violation of the Fourth
9 Amendment through SDPD’s use of physical force. See id. As to their Fourteenth
10 Amendment theory, Plaintiffs argue Defendants deprived Plaintiffs of their “right to
11 remain in a place of one’s choosing.” Id.
12 “Section 1983 provides a cause of action for ‘the deprivation of any rights,
13 privileges, or immunities secured by the Constitution and laws’ of the United States.”
14 Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).
15 Section 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a method
16 for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386,
17 393–94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
18 Municipalities cannot be held vicariously liable under § 1983 for the actions of their
19 employees. Monell, 436 U.S. at 691, 694. “Instead, it is when execution of a
20 government’s policy or custom, whether made by its lawmakers or by those whose edicts
21 or acts may fairly be said to represent official policy, inflicts the injury that the
22 government as an entity is responsible under § 1983.” Id. at 694.
23 To establish liability for governmental entities under Monell, a plaintiff must prove
24 “(1) that the plaintiff possessed a constitutional right of which she was deprived; (2) that
25 the municipality had a policy; (3) that this policy amounts to deliberate indifference to the
26 plaintiff’s constitutional right; and[] (4) that the policy is the moving force behind the
27 constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)
28
1 (brackets omitted) (quoting Plumeau v. Sch. Dist. No. 40 County of Yamhill, 130 F.3d
2 432, 438 (9th Cir. 1997)).
3 As to the second element—the policy—municipal liability under § 1983 may be
4 premised on several grounds: (1) conduct pursuant to an expressly adopted official
5 policy; (2) a longstanding practice or custom which constitutes the “standard operating
6 procedure” of the local government entity; (3) a decision of a decision-making official
7 who was, as a matter of state law, a final policymaking authority whose edicts or acts
8 may fairly be said to represent official policy in the area of decision; or (4) an official
9 with final policymaking authority either delegating that authority to, or ratifying the
10 decision of, a subordinate. See Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008); Lytle v.
11 Carl, 382 F.3d 978, 982 (9th Cir. 2004); Ulrich v. City & County of San Francisco, 308
12 F.3d 968, 984-85 (9th Cir. 2002); Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).
13 District courts have found that Monell allegations are sufficient for Rule 12(b)(6)
14 purposes where the allegations “(1) identify the challenged policy/custom; (2) explain
15 how the policy/custom is deficient; (3) explain how the policy/custom caused the plaintiff
16 harm; and (4) reflect how the policy/custom amounted to deliberate indifference, i.e.
17 show how the deficiency was obvious and that the constitutional injury was likely to
18 occur.” Soler v. County of San Diego, No. 14-cv-2470-MMA (RBB), 2015 WL
19 13828659, at *4 (S.D. Cal. Mar. 19, 2015) (quoting Lucas v. City of Visalia, No. 1:09-cv-
20 1015 AWI DLB, 2010 WL 1444667, at *4 (E.D. Cal. Apr. 12, 2010)).
21 Defendants’ motion focuses on the policy element of Plaintiffs’ Monell claim. See
22 Doc. No. 3-1 at 9–12; see also Doc. No. 5 at 2–3. Thus, the Court narrows its analysis to
23 this element.
24 Plaintiffs appear to allege that the City enforces a policy of anti-Trump viewpoint
25 discrimination, which was created through “a deeply engrained pattern and practice” as
26 well as through the direction, approval, or ratification by top policymaking officials Chief
27 Nisleit and Mayor Gloria. Compl. ¶ 40; see id. ¶¶ 38–41.
28
1 As to the alleged pattern and practice, Plaintiffs’ allegations are currently
2 insufficiently pleaded to support a Monell claim. To base Monell liability on a
3 longstanding practice or custom, the custom must be “persistent and widespread” to the
4 extent it “constitutes a ‘permanent and well settled city policy.’” Trevino, 99 F.3d at 918
5 (quoting Monell, 436 U.S. at 691). “[I]solated or sporadic incidents” are insufficient to
6 form the basis for a custom. Hunter v. County of Sacramento, 652 F.3d 1225, 1233 (9th
7 Cir. 2011) (quoting Trevino, 99 F.3d at 918). Rather, the custom must rest upon
8 “practices of sufficient duration, frequency and consistency that the conduct has become
9 a traditional method of carrying out policy.” Trevino, 99 F.3d at 918 (citing Bennett v.
10 City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984)). To support a “a deeply engrained
11 pattern and practice,” Compl. ¶ 40, Plaintiffs point to two prior demonstrations. First,
12 Plaintiffs allege that SDPD declared an unlawful assembly at the intersection of 5th
13 Street and L Street near the San Diego Convention Center on May 27, 2016. See id. ¶¶ 7,
14 40. As with the case here, Plaintiffs allege that SDPD dispersed mostly anti-Trump
15 demonstrators. See id. ¶ 7. As to the second demonstration, Plaintiffs claim that “SDPD
16 allowed a violent pro-Trump mob to storm the event stage for a Women’s March.” Id.
17 ¶ 9. Rather than dispersing the pro-Trump demonstrators, Plaintiffs aver that SDPD
18 dispersed the Women’s March participants “while the pro-Trump mob took over the area
19 the Women’s March had been permitted for.” Id. Plaintiffs do not provide a date of the
20 Women’s March.
21 The line between “isolated or sporadic incidents” and “persistent and widespread
22 conduct” is not clear. Estate of Mendez v. City of Ceres, 390 F. Supp. 3d 1189, 1209
23 (E.D. Cal. 2019) (citing Gonzalez v. County of Merced, 289 F. Supp. 3d 1094, 1099 (E.D.
24 Cal. 2017)); J.M. by & Through Rodriguez v. County of Stanislaus, No. 1:18-cv-01034-
25 LJO-SAB, 2018 WL 5879725, at *5 (E.D. Cal. Nov. 7, 2018). “Perhaps the most that
26 can be said is that one or two incidents ordinarily cannot establish a policy or custom,
27 while more incidents may permit the inference of a policy, taking into account their
28 similarity, their timing, and subsequent actions by the municipality.” Estate of Mendez,
1 390 F. Supp. 3d at 1209 (quoting J.M., 2018 WL 5879725, at *5). As currently pleaded,
2 Plaintiffs’ proffered two prior incidents are insufficient to state a plausible longstanding
3 custom. Compare Meehan v. County of Los Angeles, 856 F.2d 102, 107 (9th Cir. 1988)
4 (holding that two prior unconstitutional assaults within three months were not enough to
5 establish a policy or custom), with Menotti v. City of Seattle, 409 F.3d 1113, 1148 (9th
6 Cir. 2005) (reversing a district court’s grant of summary judgment in favor of a city
7 where it may be inferred that there was a policy of viewpoint discrimination against anti-
8 WTO demonstrators given five incidents of speech suppression on the same day).
9 Additionally, Plaintiffs do not provide a date of the Women’s March incident, which
10 prevents the Court from determining whether Plaintiffs plead a plausible and persistent
11 pattern of prior, similar constitutional violations. Overall, Plaintiffs lack sufficient
12 allegations to show how the City maintains a persistent and widespread policy of
13 engaging in viewpoint discrimination against anti-Trump demonstrators.
14 As to the alleged direction, approval, or ratification by Nisleit and Gloria, the
15 Court finds Plaintiffs rely upon mere conclusive or implausible averments. Plaintiffs fail
16 to allege facts showing how Nisleit or Gloria directed, approved, or ratified the decision
17 to engage in the First Amendment violation. In their Complaint, Plaintiffs claim that
18 Gloria admitted to the San Diego Union Tribune on January 11 that he ratified the
19 SDPD’s actions by stating “[t]here will be consequences for those who bring that kind of
20 behavior to our city.” Compl. ¶ 6. However, Plaintiffs also note that he did not
21 “address[] the viewpoint discrimination issue.” Id. Plaintiffs attempt to allege ratification
22 when pairing Gloria’s statement to the newspaper with the consequences directed only to
23 the anti-Trump protestors. As currently pleaded, the Court finds the inference of
24 ratification is implausible to support an actionable policy. Regardless of whether the
25 statement was too general to constitute a ratification, there is a causation issue. The at-
26 issue policy must be the “moving force behind the constitutional violation.” Dougherty,
27 654 F.3d at 900 (quoting Plumeau, 130 F.3d at 438). Because Plaintiffs allege that the
28 ratification occurred on January 11 and after the events of January 9, the alleged
1 ratification could not have been the moving force behind the January 9 constitutional
2 violations. Aside from Plaintiffs’ unsuccessful reliance on Gloria’s statement to the
3 newspaper, Plaintiffs provide mere conclusive statements that Nisleit and Gloria directed,
4 approved, or ratified a policy of viewpoint discrimination against anti-Trump protestors.
5 Additionally, Plaintiffs fail to sufficiently plead a Monell claim premised on the
6 alleged Fourth or Fourteenth Amendment violations. Plaintiffs fail to allege facts
7 supporting any pattern and practice regarding the Fourth and Fourteenth Amendment
8 violations. Further, Plaintiffs fail to provide facts showing how Nisleit or Gloria directed,
9 approved, or ratified a policy pertaining to the Fourth or Fourteenth Amendment
10 violations.
11 In sum, the Court finds that Plaintiffs have not sufficiently alleged a plausible
12 policy to sustain their Monell claim. Accordingly, the Court GRANTS Defendants’
13 motion and DISMISSES the § 1983 municipal liability claim with leave to amend.
14 2. Individual Liability Under § 1983 – Second Cause of Action
15 Defendants argue that the claim against the Doe Defendants should be dismissed.
16 See Doc. No. 3-1 at 12. Defendants assert that Doe Defendants are “disfavored.”
17 Defendants also contend that the allegations are unclear whether SDPD officers hit
18 Plaintiffs or whether Plaintiffs would be able to identify these officers. See id. at 12–13;
19 see also Doc. No. 5 at 4. As to Nisleit and Gloria, Defendants argue that Plaintiffs do not
20 plead facts to allege a conspiracy to violate Plaintiffs’ constitutional rights. See id. at 13;
21 see also Doc. No. 5 at 3–4. Plaintiffs respond that they allege supervisory liability
22 against Nisleit and Gloria. See Doc. No. 4 at 9. Plaintiffs criticize Defendants’ attempt
23 to make Plaintiffs prove their allegations at the pleadings stage. Id. at 7. Plaintiffs
24 further argue that they allege Nisleit and Gloria conspired to use unlawful assembly
25 statutes as a pretext to disperse anti-Trump demonstrators. See id. As to the Doe
26 Defendants, Plaintiffs contend that it would be easy to identify the SDPD officers
27 because they have bodycams that they are required to activate when an unlawful
28 assembly is declared. See id.
1 “To state a claim under § 1983, a plaintiff [1] must allege the violation of a right
2 secured by the Constitution and laws of the United States, and [2] must show that the
3 alleged deprivation was committed by a person acting under color of state law.” Naffe v.
4 Frey, 789 F.3d 1030, 1035–36 (9th Cir. 2015) (quoting West v. Atkins, 487 U.S. 42, 48
5 (1988)). “A defendant may be held liable as a supervisor under § 1983 ‘if there exists
6 either (1) his or her personal involvement in the constitutional deprivation, or (2) a
7 sufficient causal connection between the supervisor’s wrongful conduct and the
8 constitutional violation.’” Starr, 652 F.3d at 1207 (quoting Hansen v. Black, 885 F.2d
9 642, 646 (9th Cir. 1989)).
10 i. Allegations Against Nisleit and Gloria
11 Plaintiffs lack “sufficient allegations of underlying facts to give fair notice and to
12 enable the opposing party to defend itself effectively.” Id. at 1216. Instead, Plaintiffs
13 merely allege that Nisleit is the Chief of Police and “the top policymaking official for
14 SDPD,” Gloria is the Mayor and “the top policymaking official for the [City],” and
15 Nisleit and Gloria “conspired in their individual capacities to violate and did violate
16 and/or ratify the violation of the First, Fourth, and Fourteenth Amendment rights of
17 Plaintiffs by falsely declaring an ‘unlawful assembly’ to exist only on the anti-Trump”
18 side of the demonstration. Compl. ¶¶ 18, 19, 43. Plaintiffs provide no facts showing
19 Nisleit’s or Gloria’s personal involvement in or connection to the alleged First, Fourth, or
20 Fourteenth Amendment violations.4 Additionally, as to Plaintiffs’ conclusory conspiracy
21 allegations, they do not allege an agreement to deprive the anti-Trump demonstrators of
22 their constitutional rights. See Steel v. City of San Diego, 726 F. Supp. 2d 1172, 1179
23 (S.D. Cal. 2010) (quoting Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002)) (“In order
24
25

26
4 As noted with the Monell claim, the after-the-fact statement by Mayor Gloria in the newspaper article
27 does not establish the requisite causal connection or show his personal involvement with the events of,
or in leading up to, January 9. See supra Section II.B.1; see also Starr, 652 F.3d at 1207–08 (detailing
28
1 to allege a conspiracy under § 1983, a plaintiff must show ‘an agreement or “meeting of
2 the minds” to violate constitutional rights.’”).
3 To overcome Defendants’ motion to dismiss, Plaintiffs’ must allege “sufficient
4 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
5 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). However, Plaintiffs rest
6 upon conclusory allegations and do not provide sufficient factual support to sustain a
7 plausible claim. Thus, Plaintiffs do not state a § 1983 claim for individual liability
8 against Nisleit or Gloria. Accordingly, the Court GRANTS Defendants’ motion and
9 DISMISSES the § 1983 individual liability claim with leave to amend.
10 ii. Allegations Against Doe Defendants
11 In certain circumstances, when an alleged defendant’s identity is unknown prior to
12 the plaintiff filing the complaint, “the plaintiff should be given an opportunity through
13 discovery to identify the unknown defendants, unless it is clear that discovery would not
14 uncover the identities, or that the complaint would be dismissed on other grounds.”
15 Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quoting Gillespie v.
16 Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)) (holding that the plaintiff alleged sufficient
17 facts to support a claim of deliberate indifference to medical needs and thus the district
18 court erred in dismissing the complaint against the doe defendant).
19 Dismissal of Plaintiffs’ claims against the Doe Defendants is premature at this
20 point. The Court declines to dismiss the § 1983 claim against the Doe Defendants simply
21 because Plaintiffs were not aware of their identities at the time they filed the Complaint.
22 See Wakefield, 177 F.3d at 1163. Indeed, dismissal would only be warranted if (1)
23 discovery would not uncover their identities or (2) dismissal is warranted on other
24 grounds. See id. (quoting Gillespie, 629 F.2d at 642); see also Palacios v. County of San
25 Diego, No. 20-cv-450-MMA (DEB), 2020 WL 4201686, at *4 (S.D. Cal. July 22, 2020).
26 Here, the Court finds that discovery could uncover the Doe Defendants’ identities
27 from among the SDPD officers who were stationed at the demonstration on January 9.
28 Defendants argue that the “the allegations are vague as to whether it was SDPD officers
1 who allegedly hit plaintiff Smith with batons and a pepperball. . . . In fact, the Doe
2 allegation does not even say that the Doe defendants are SDPD officers.” Doc. No. 3-1 at
3 12–13. The Court finds Defendants’ argument unavailing. Assuming the truth of
4 Plaintiffs’ well-pleaded allegations and construing them in their favor, Cahill, 80 F.3d at
5 337–38 (citing Nat’l Wildlife Fed’n, 45 F.3d at 1340), the Court finds that is plausible
6 that the Doe Defendants are SDPD officers. Plaintiffs refer to SDPD officers throughout
7 their Complaint; allege they declared the unlawful assembly against the anti-Trump
8 protestors; and claim that they “spray[ed] peaceful protesters with pepper spray, [shot]
9 them with pepperballs, and beat[] them with batons.” See Compl. ¶¶ 3–4; see also id.
10 ¶¶ 6, 25, 29, 32, 35.
11 The Court now turns to whether dismissal is warranted “on other grounds”—such
12 as whether Plaintiffs state a § 1983 claim upon which relief can be granted. See
13 Wakefield, 177 F.3d at 1163. In their motion, Defendants do not argue that the § 1983
14 claim against Doe Defendants is deficient under the Rule 12(b)(6) standard or, similarly,
15 address how Plaintiffs fail to allege a constitutional violation under the First, Fourth, or
16 Fourteenth Amendments. See Doc. No. 3-1 at 12–13. Defendants raise this argument for
17 the first time in their reply brief. See Doc. No. 5 at 4–5. The Court declines to consider
18 this argument raised for the first time in the reply brief. See United States v. Bohn, 956
19 F.2d 208, 209 (9th Cir. 1992) (“[W]e ordinarily decline to consider arguments raised for
20 the first time in a reply brief.”); Munoz v. InGenesis STGI Partners, LLC, 182 F. Supp. 3d
21 1097, 1112 (S.D. Cal. 2016) (declining to consider arguments raised for first time in a
22 reply brief); see also Lane v. Dep’t of Interior, 523 F.3d 1128, 1140 (9th Cir. 2008)
23 (noting that consideration of an argument first raised in a reply brief is discretionary).
24 Thus, at this juncture, the Court declines to determine whether Plaintiffs state a viable
25 claim against Doe Defendants.
26 In sum, the Court finds that discovery could uncover the Doe Defendants’
27 identities, and the Court declines to determine whether Plaintiffs state a viable § 1983
28
1 claim against the Doe Defendants. Accordingly, the Court declines to dismiss the Doe
2 Defendants at this time.
3 C. Conclusion
4 For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss
5 with leave to amend.
6 III. MOTION TO STRIKE
7 A. Legal Standard
8 A Rule 12(f) motion to strike allows a court to “strike from a pleading an
9 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
10 Fed. R. Civ. P. 12(f). For the purposes of this rule, “‘[i]mmaterial’ matter is that which
11 has no essential or important relationship to the claim for relief or the defenses being
12 pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (quoting 5
13 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at 706–07
14 (1990)), rev’d on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994); see
15 also Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010).
16 “‘Impertinent’ matter consists of statements that do not pertain, and are not necessary, to
17 the issues in question.” Fantasy, Inc., 984 F.2d at 1527 (quoting 5 Charles A. Wright &
18 Arthur R. Miller, at 711); see also Whittlestone, Inc., 618 F.3d at 974. “In order to show
19 that a defense is insufficient, ‘the moving party must demonstrate that there are no
20 questions of fact, that any questions of law are clear and not in dispute, and that under no
21 set of circumstances could the defense succeed.’” Diaz v. Alternative Recovery Mgmt.,
22 No. 12-cv-1742-MMA (BGS), 2013 WL 1942198, at *1 (S.D. Cal. May 8, 2013)
23 (quoting S.E.C. v. Sands, 902 F. Supp. 1149, 1165 (C.D. Cal. 1995)).
24 The purpose of a Rule 12(f) motion is “to avoid the expenditure of time and money
25 that must arise from litigating spurious issues by dispensing with those issues prior to
26 trial.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). “Motions
27 to strike are generally disfavored, unless ‘it is clear that the matter to be stricken could
28 have no possible bearing on the subject matter of the litigation.’” Haghayeghi v. Guess?,
1 Inc., No. 14-cv-00020 JAH-NLS, 2015 WL 1345302, at *5 (S.D. Cal. Mar. 24, 2015)
2 (quoting LeDuc v. Kentucky Cent. Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992));
3 see also Cairns v. Franklin Mint Co., 24 F. Supp. 2d 1013, 1037 (C.D. Cal. 1998)). In
4 ruling on a motion to strike, the court may only consider the face of the pleading or
5 matters subject to judicial notice. See Fantasy, Inc., 984 F.2d at 1528; Sands, 902 F.
6 Supp. at 1165. “With a motion to strike, just as with a motion to dismiss, the court
7 should view the pleading in the light most favorable to the nonmoving party.” Snap!
8 Mobile, Inc. v. Croghan, No. 18-cv-04686-LHK, 2019 WL 884177, at *3 (N.D. Cal. Feb.
9 22, 2019) (quoting Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D.
10 Cal. 2004)). Ultimately, the decision about whether to strike allegations is a matter
11 within the district court’s discretion. California Dep’t of Toxic Substances Control v.
12 Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002) (citing Fantasy, Inc., 984
13 F.2d at 1528); see also Whittlestone, Inc., 618 F.3d at 974 (quoting Nurse v. United
14 States, 226 F.3d 996, 1000 (9th Cir. 2000)).
15 B. Discussion
16 Defendants seek to strike the following five allegations from Plaintiffs’ Complaint:
17
18 • Allegation 1: “The [SDPD], whose ranks and command structure are
infested with racist, secessionist supporters of Donald Trump . . . .”
19
Compl. ¶ 3.
20
• Allegation 2: “SDPD has a history of this kind of racial and viewpoint
21
discrimination when it comes to Donald Trump rall[i]es. Following a
22 May 27, 2016 Donald Trump speech at the Convention Center, at which
Trump riled up his supporters, threatened a sitting Southern District
23
federal judge, and then left town, SDPD declared an ‘unlawful assembly’
24 to exist at the intersection of 5th & L Street downtown, across from the
Convention Center. But then SDPD dispersed only those to the east of
25
the intersection, which was the largely brown and black anti-Trump side,
26 while leaving the almost entirely white side on the west side of the
intersection free to chant and jeer as the anti-Trump side was being
27
dispersed. SDPD then pushed the anti-Trump side for a mile along
28 Harbor Drive, sealing off all avenues of ingress and egress, forcing the
1 peaceful demonstrators all the way to Barrio Logan and sealing off the
base of the overpass to prevent them from even returning to their cars.”
2
Id. ¶ 7.
3
• Allegation 3: “The City improperly withheld bodycam videos in that case
4
for two years, which detailed the viewpoint discrimination and disparate
5 treatment of demonstrators on opposite sides of the same intersection.
The Court ruled that plaintiffs in that case had waited too long to bring
6
viewpoint discrimination claims, allowing the City to benefit from its
7 violation of discovery rules.” Id. ¶ 8.

8
• Allegation 4: “The City . . . has learned that it can not only get away with
9 such criminal behavior, but that it can even loudly proclaim its intentions
in the media and assume no one will hold it to account.” Id. ¶ 10.
10

11 • Allegation 5: “The purpose of the unlaw assembly statutes, Penal Code
12 §§ 407–409, are to allow police in emergencies to treat bystanders the
same as instigators of violence and to disperse everyone for public safety.
13 The purpose is not to allow police to favor one side of a conflict, and to
14 disperse mere bystanders and peaceful demonstrators on the side police
disagree with. If police have the ability to distinguish instigators and
15 lawbreakers from bystanders and peaceful demonstrators, they are to
16 arrest the former for the protection of the latter and the general public.
Dispersing bystanders and peaceful demonstrators on only one side of a
17 dispute violates the First, Fourth, and Fourteenth Amendments to the
18 United States Constitution.” Id. ¶ 12.

19
20 Doc. No. 3-1 at 15–16. Defendants argue that these allegations are not “relevant,
21 necessary or pertinent” to this action. Id. at 16. Additionally, Defendants contend that
22 the allegations regarding SDPD being infestated with racists and secessionists,
23 withholding body cameras, and learning it can get away with criminal behavior are
24 irrelevant, immaterial, superfluous, and scandalous. See id. at 16–17; see also Doc. No. 5
25 at 5. Plaintiffs briefly respond that these allegations are material to their claims
26 regardless of whether Defendants wish Plaintiffs did not include them. See Doc. No. 4 at
27 9.
28
1 As to Allegation 1, the allegation is clearly inflammatory—and arguably
2 conclusory and irrelevant. However, the Court finds that it is conceivably relevant to
3 Plaintiffs’ First Amendment claim that Defendants targeted Plaintiffs and other anti-
4 Trump demonstrators because of their viewpoints. See Compl. ¶¶ 2, 3, 21, 29. Although
5 the Court may have opted for a different word choice if it were in Plaintiffs’ shoes in
6 presenting the differing at-issue viewpoints, it is generally not the Court’s role to edit
7 Plaintiffs’ complaint to craft seemly allegations. Because the allegation may have some
8 relevance to the issue of viewpoint discrimination, the Court finds that Defendants have
9 not met their burden to strike this allegation. See 5 Charles A. Wright & Arthur R.
10 Miller, Federal Practice and Procedure § 1382 (3d ed.) (“It is not enough that the matter
11 offends the sensibilities of the objecting party if the challenged allegations describe acts
12 or events that are relevant to the action.”). Accordingly, the Court DENIES Defendants’
13 motion to strike Allegation 1.
14 As to Allegation 2, the allegation is relevant, material, and pertinent to Plaintiffs’
15 Monell claim. The allegation pertains to a separate event from several years ago.
16 However, the allegation relates to whether there was a policy—through longstanding
17 practice or custom—to sustain Plaintiffs’ present Monell claim. Accordingly, the Court
18 DENIES Defendants’ motion to strike Allegation 2.
19 As to Allegation 3, the allegation is immaterial and impertinent to this action. The
20 events of the May 2016 rally and demonstration are relevant to how SDPD responded for
21 the purposes of establishing a policy under Monell. However, Plaintiffs’ disagreement
22 over bodycam footage is not relevant and appears to be an attempt to relitigate a previous
23 discovery dispute and denial for leave to amend. The bodycam footage from 2016 does
24 not appear to pertain to Plaintiffs or the at-issue events of January 9, 2021. Accordingly,
25 to the extent Plaintiffs allege improperly withheld bodycam videos from May 2016 that
26 do not relate to Plaintiffs’ claims arising from January 2021, the Court GRANTS
27 Defendants’ motion to strike Allegation 3.
28
1 As to Allegation 4, the allegation is immaterial and impertinent to this action.
2 ||Plaintiffs ascribe criminal motive to the city. However, this is a civil case, and “criminal
3 ||behavior” is not at-issue in this action. Regardless of how Plaintiffs perceive the City’s
4 ||behavior, conclusory and subjective opinions of the City’s criminal behavior and motive
5 |/are immaterial and unnecessary in this civil action alleging violations of the First, Fourth,
6 ||and Fourteenth Amendment under § 1983. Accordingly, to the extent Plaintiffs ascribe
7 ||criminal motive to the City, the Court GRANTS Defendants’ motion to strike Allegation
8
9 As to Allegation 5, the allegation is relevant to the context of the unlawful
10 ||assembly declaration in January 2021 and whether it was a means to effectuate viewpoint
11 ||discrimination. The allegation relates and pertains to Plaintiffs’ theory that the
12 ||declaration of an unlawful assembly under the Penal Code was a pretext to violate
13 Plaintiffs’ First Amendment rights. Accordingly, the Court DENIES Defendants’ motion
14 ||to strike Allegation 5.
15 ||C. Conclusion
16 For the foregoing reasons, the Court GRANTS in part and DENIES in part
17 ||Defendants’ motion to strike.
18 IV. CONCLUSION
19 For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss and
20 ||GRANTS in part and DENIES in part Defendants’ motion to strike. Plaintiffs must
21 an amended complaint curing the deficiencies noted herein on or before
22 ||June 7, 2021.
23 IT IS SO ORDERED.
24
25 ||Dated: May 21, 2021
26 YW
28 United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10083753. Public record. Not legal advice.