# Bhandari v. National City

> District Court, S.D. California · May 2, 2022

URL: https://www.frixlaw.com/law-library/cases/10085696

## Case

- **Court:** District Court, S.D. California
- **Decided:** May 2, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10085696

## How later opinions describe it (automated extraction)

- finding "a bare allegation that the 9 [individual officers'] conduct conformed to some unidentified government policy or 10 custom" is insufficient to state a Monell claim

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 Case No.: 3:21-cv-01652-BTM-
SOPHIA BHANDARI, individually MDD
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and as Successor in Interest to
13 TONY GARZA WILSON, ORDER RE MOTION TO
Deceased, and SIERRA DISMISS
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WILSON and TONY PHILIP
15 WILSON, individually, [ECF NO. 7]
Plaintiffs,
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v.
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NATIONAL CITY, a municipal
18 corporation, NATIONAL CITY
POLICE DEPARTMENT, CHIEF
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JOSE TELLEZ, OFFICERS
20 JONATHAN TAYLOR and EVAN
DAVIS; and CORPORAL
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CHARLES STEVENS, and DOES
22 1-50, inclusive,
23 Defendants.
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25 Pending before the Court is Defendants’ motion to dismiss the complaint for
26 failure to state a claim. (ECF No. 7 (“Mot.”).)1 For the reasons discussed below,
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1 the Court GRANTS in part and DENIES in part the motion.
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BACKGROUND
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Plaintiffs Sophia Bhandari, Sierra Wilson, and Tony Philip Wilson are the
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children of the decedent in this action, Tony Garza Wilson (“Wilson”). (ECF No. 1
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(“Compl.”), 2 (¶ 4).) The complaint makes the following allegations. Shortly after
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midnight on Sunday, September 29, 2019, National City Police Department
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(“NCPD”) dispatched officers in response to multiple calls concerning Wilson, who
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was “breaking and throwing things,” and “clearly having some form of emotional
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disturbance or psychotic break.” (Id. at 3 (¶ 4).)
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Officers Taylor and Davis arrived first. Plaintiffs allege that the officers could
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see that Wilson was an older gentleman and below average in size, specifically, 5
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feet, 6 inches and 150 pounds. (Id. at 4 (¶ 15).) Wilson was 61 years old. (Id.) Both
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officers had their firearms drawn and Wilson put his hands in the air, indicating
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surrender. (Id. (¶ 16).) Officers Taylor and Davis then screamed at Wilson to “get
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down” to which Wilson “immediately dropped to the cement porch on his hands
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and knees.” (Id. (¶ 17).) Despite complying with the officers’ demands to the best
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of Wilson’s abilities given the size of the porch (about “4 feet wide”), and the lack
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of time to process the commands, Officer Taylor grabbed Wilson by the back of
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the head or neck and “violently smashed his face into the concrete.” (Id. (¶ 18).)
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The complaint further alleges that Officer Taylor repeatedly shocked Wilson with a
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Taser in drive-stun mode and that there was no legitimate purpose to the shocks.
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(Id. (¶ 19).)
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Corporal Stevens arrived and joined Officers Taylor and Davis in pinning
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Wilson to the porch and holding him down so Wilson could not breath. (Id. at 5 (¶
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20).) Wilson “flailed his legs in response to being suffocated,” but the officers
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1 ordered him to stop kicking. (Id.) Officer Taylor continued to use the drive-stun on
2 Wilson “for no purpose other than the wanton infliction of excruciating pain.” (Id.)
3 Wilson went into cardiac arrest from the combined effects of the trauma and
4 compression asphyxia. (Id.)
5 The complaint alleges that the officers did not timely administer aid and
6 Wilson was taken to Scripps Hospital, “where he was diagnosed with anoxic
7 encephalopathy, a brain injury due to the oxygen deprivation caused by the cardiac
8 arrest and lack of timely CPR.” (Id. (¶¶ 21; 23).) After placing Wilson on life support
9 for more than two weeks, the family, following medical advice, removed the life
10 support. Wilson died on October 15, 2019. (Id. (¶ 23).)
11 Plaintiff Bhandari brings Wilson’s cause of action as his successor-in-
12 interest. According to Plaintiffs, the use of force against Wilson was “excessive and
13 objectively unreasonable under the circumstances, especially because [Wilson]
14 was unarmed and never posed a threat.” (Id. (¶ 22).) Plaintiffs also bring a
15 substantive due process claim, as well as municipal and supervisory liability claims
16 under 42 U.S.C. § 1983 against National City (“City”), NCPD, and Chief Jose Tellez
17 (“Tellez”) for maintaining an unconstitutional policy or custom and failure to
18 adequately train employees.
19 Defendants now move to dismiss Plaintiffs’ Complaint pursuant to Federal
20 Rule of Civil Procedure 12(b)(6). (Mot.)
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LEGAL STANDARD
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Under Federal Rule of Civil Procedure 8, each pleading must include “a short
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and plain statement of the claim showing that the pleader is entitled to relief” and
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“give the defendant fair notice of what the . . . claim is and the grounds upon which
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it rests.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
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Fed. R. Civ. P. 8(a)(2)). Federal Rule of Civil Procedure 12(b)(6) permits dismissal
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for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
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1 12(b)(6). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks
2 a cognizable legal theory or sufficient facts to support a cognizable legal theory.
3 See Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990).
4 A complaint may survive a motion to dismiss only if it contains enough facts
5 to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
6 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The court must be able to
7 "draw the reasonable inference that the defendant is liable for the misconduct
8 alleged." Id. at 663. “Threadbare recitals of the elements of a cause of action,
9 supported by mere conclusory statements, do not suffice.” Id. In reviewing a Rule
10 12(b)(6) motion, the Court accepts as true all facts alleged in the complaint and
11 draws all reasonable inferences in favor of the plaintiff. al-Kidd v. Ashcroft, 580
12 F.3d 949, 956 (9th Cir. 2009).
13 Where a motion to dismiss is granted, “[l]eave to amend should be granted
14 unless the pleading ‘could not possibly be cured by the allegation of other facts.’”
15 Velez v. Cloghan Concepts LLC, 387 F. Supp. 3d 1072, 1078 (S.D. Cal. 2019)
16 (quoting Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003)).
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DISCUSSION
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1. Survival Action
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Defendants claim that Plaintiffs have failed to establish standing to bring a
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survival action because the required declaration of the successor in interest was
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filed after the complaint. They also claim the untimely declaration is deficient
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because it does not contain all the required statutory language and Plaintiffs
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provided no signature by the siblings attesting to their agreement that Plaintiff
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Bhandari be the successor in interest.
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In § 1983 actions, a decedent’s survivors may bring a claim for the violation
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of their or the decedent’s substantive constitutional rights. Ruiz v. City of San
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Diego, 2020 U.S. Dist. LEXIS 227467, *4 (S.D. Cal. 2020). The party seeking to
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1 bring the survival action bears the burden of demonstrating that state law
2 authorizes a survival action, and that the plaintiff meets the requirements to bring
3 the survival action. Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369
4 (9th Cir. 1998).
5 California law provides that a survival action “may be commenced by the
6 decedent’s personal representative or, if none, by the decedent’s successor in
7 interest.” Cal. Civ. Code § 377.30. The person seeking to commence an action as
8 the decedent’s successor in interest is required to “execute and file an affidavit or
9 declaration” stating, inter alia, (1) the decedent's name; (2) the date and place of
10 decedent's death; (3) that no proceedings are pending in California for the
11 administration of the decedent's estate; (4) either that the declarant is the
12 decedent's successor in interest or is authorized to act on behalf of the decedent's
13 successor in interest; and (5) that no other person has a superior right to
14 commence the action or proceeding for the decedent. Cal. Civ. Code § 377.32(a).
15 Additionally, the plaintiff must attach a certified copy of the decedent’s death
16 certificate to the affidavit or declaration. Cal. Civ. Code § 377.32(c).
17 As a preliminary matter, there is no statutory command that the declaration
18 be filed with the complaint. See Parsons v. Tickner, 31 Cal. App. 4th 1513, 1523-
19 24 (1995) (“[Section § 377.32] does not require that the affidavit be filed as a
20 condition precedent to commencing or continuing the action.”). After filing the
21 complaint, Plaintiffs provided a declaration with an attached death certificate noting
22 the time and place of death as mandated. (ECF No. 6.) This was permissible.
23 Defendants further argue that, while Plaintiff Bhandari’s declaration
24 acknowledges that all siblings have equal right to commence the action, she
25 qualifies the statement by attesting the siblings agreed Bhandari should be the
26 successor in interest in this action. Section 377.30’s express language provides
27 for “the decedent’s successor in interest” as a singular individual. Cal. Civ. Code §
28 377.30. Other provisions of the survival statute “indicate that a single successor in
1 interest may properly commence an action, even if other ‘beneficiaries’ exist.”
2 Estate of Elkins v. Pelayo, 2020 U.S. Dist. LEXIS 89857, *16-17 (E.D. Cal. 2020).
3 In that light, Plaintiff Bhandari may proceed as the sole successor in interest
4 despite having siblings. There is also no requirement that the siblings must affirm
5 their agreement via signatures. Instead, § 377.33 “authorizes courts ‘to issue
6 orders to ensure that awards of survival damages are properly administered by
7 successors in interest” because “there may be beneficiaries who are not acting as
8 successors and who may be prejudiced by the single party who is acting as the
9 successor in interest.” Id. at *18. See also Cal. Law Revision Com., West's Ann.
10 Cal. Code Civ. Proc. § 377.33. Accordingly, Plaintiffs have proceeded properly
11 under the statute.
12 2. Qualified Immunity
13 Defendants seek dismissal of Plaintiffs’ first and second claims of excessive
14 force on the assertion of qualified immunity.2
15 "Government officials enjoy qualified immunity from civil damages unless
16 their conduct violates 'clearly established statutory or constitutional rights of which
17 a reasonable person would have known.'" Jeffers v. Gomez, 267 F.3d 895, 910
18 (9th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When
19 presented with a qualified immunity defense, the central questions for the court
20 are: (1) whether the facts alleged, taken in the light most favorable to Plaintiff,
21 demonstrate that the Defendant's conduct violated a statutory or constitutional
22 right; and (2) whether the right at issue was "clearly established" at the time it is
23 alleged to have been violated. Saucier v. Katz, 533 U.S. 194, 201 (2001). Although
24 Saucier originally required the Court to answer these questions in order, the U.S.
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27 2 Defendants argue that Plaintiffs do not properly allege any conduct by Tellez as part of their first or second
causes of action. The complaint states that the first and second claims for relief are based on individual liability,
28 and Plaintiffs have clarified that Tellez is not a party to the first or second claims for relief and is only alleged to be
1 Supreme Court has since held that "while the sequence set forth [in Saucier] is
2 often appropriate, it should no longer be regarded as mandatory." Pearson v.
3 Callahan, 555 U.S. 223, 236 (2009).
4 As alleged, the officer Defendants used excessive force in violation of
5 Wilson’s Fourth Amendment rights by smashing his head into the concrete and
6 shocking him with a Taser during apprehension. The complaint alleges that Wilson
7 was unarmed, posed no threat, and was not trying to flee when officers arrived on
8 scene. Instead, according to the allegations in the complaint, Wilson tried to
9 comply with the officers’ demands despite the narrowness of the porch and without
10 time to process the commands. Construing the facts and inferences in the light
11 most favorable to Plaintiffs, Wilson was not resisting at all when Officer Taylor
12 “smashed his face into the concrete porch” and continued to shock him with a
13 Taser in drive-stun mode. (Compl., 4-5 (¶¶ 18-20).) Even if Wilson’s failure to
14 comply with the officers’ orders could be perceived as some degree of resistance
15 as Defendants argue, genuine issues of material fact exist as to whether the
16 officers used excessive force in response to Wilson’s resistance. Thus, "the next .
17 . . step is to ask whether the right was clearly established." Saucier, 533 U.S. at
18 201.
19 A right is "clearly established" when its contours are "sufficiently clear that a
20 reasonable official would understand that what he is doing violates that right." Id.
21 at 202 (citation omitted). This does not require a prior case on all fours. See Deorle
22 v. Rutherford, 272 F.3d 1272, 1274-75 (9th Cir. 2001) (law may be clearly
23 established "notwithstanding the absence of direct precedent … otherwise, officers
24 would escape responsibility for the most egregious forms of conduct simply
25 because there was no case on all fours prohibiting that particular manifestation of
26 unconstitutional conduct"); but see Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)
27 ("[p]recedent involving similar facts can help move a case beyond the otherwise
28 'hazy border between excessive and acceptable force' and thereby provide an
1 officer notice that a specific use of force is unlawful.") However, "the clearly
2 established right must be defined with specificity." City of Escondido v. Emmons,
3 139 S. Ct. 500, 503 (2019). "Qualified immunity attaches when an official's conduct
4 does not violate clearly established statutory or constitutional rights of which a
5 reasonable person would have known." Kisela,138 S. Ct. at 1152.
6 A claim against law enforcement officers for use of excessive force is
7 analyzed under the Fourth Amendment's "objective reasonableness" standard.
8 Graham v. Connor, 490 U.S. 386, 388 (1989). "Determining whether the force used
9 to effect a particular seizure is reasonable under the Fourth Amendment requires
10 a careful balancing of the nature and quality of the intrusion on the individual's
11 Fourth Amendment interests against the countervailing governmental interests at
12 stake." Id. at 396 (citation omitted). An excessive force analysis requires evaluating
13 "the severity of the crime at issue, whether the suspect poses an immediate threat
14 to the safety of the officers or others, and whether he is actively resisting arrest or
15 attempting to evade arrest by flight." Id. The Ninth Circuit has held that “active
16 resistance is not to be found simply because of a failure to comply with the full
17 extent of an officer’s orders,” and various applications of force in such situations
18 have been deemed unreasonable. Nelson v. City of Davis, 685 F.3d 867, 882 (9th
19 Cir. 2012). See, e.g., Rutherford, 272 F.3d at 1286 (nonlethal lead shot wrapped
20 in cloth case against mentally unstable person was unreasonable); Save CCSF
21 Coal v. Lim, 2015 U.S. Dist. LEXIS 69195, *14 (N.D. Cal. 2015) (allegation that
22 officers smashed plaintiff’s head into the ground causing a concussion with no
23 threat posed was a plausible claim of excessive force).
24 At the very least, the continuous tasing until asphyxiation after Wilson was
25 brought to the ground and apprehended is clearly unsanctioned by law. See
26 LaLonde v. Cty. of Riverside, 204 F.3d 947, 961 (9th Cir. 2000) (repeated use of
27 pepper spray after arrestee surrenders and is helpless was excessive use of
28 force). Given the circumstances alleged and viewed in the light most favorable to
1 the Plaintiffs, the officers are not entitled to qualified immunity for their use of force
2 at this stage of the proceedings.3
3 A. Officer Davis and Corporal Stevens
4 Defendants claim that Plaintiffs have not pled constitutional violations by
5 Officer Davis or Corporal Stevens. Plaintiffs assert that Davis and Stevens are
6 liable through integral participation and failure to intervene theories.
7 “An officer’s liability under section 1983 is predicated on his ‘integral
8 participation’ in the alleged violation.” Blankenhorn v. City of Orange, 485 F.3d
9 463, 481 n.12 (9th Cir. 2007) (citing Chuman v. Wright, 76 F.3d 292, 295 (9th Cir.
10 1996)). “A mere bystander” who had “no role in the unlawful conduct” is not subject
11 to liability. Chuman, 76 F.3d at 294-95. However, “integral participation” does not
12 require that each officer’s own actions rise to the level of a constitutional violation.
13 Boyd v. Benton Cty., 374 F.3d 773, 780 (9th Cir. 2004). For example, an officer
14 who does not enter an apartment but stands armed at the door while other officers
15 conduct an unlawful search can be a “full, active participant” in the search. Id (citing
16 Melear v. Spears, 862 F.2d 1177, 1186 (5th Cir. 1989)). Additionally, an officer
17 may be held liable when he fails to intercede when a fellow officer violates the
18 constitutional rights of a citizen and has a “realistic opportunity” to do so. Anderson
19 v. Hartley, 2011 U.S. Dist. LEXIS 134793, * 4 (E.D. Cal. 2011).
20 As alleged, Officer Davis, who arrived with his gun drawn with Officer Taylor,
21 helped pin down Wilson while Officer Taylor shocked him with a Taser. (Compl.,
22 4-5 (¶¶ 15; 20).) Corporal Stevens, a higher-ranking officer, is alleged to have
23 refused to intervene and command the two other officers to stop tasing Wilson,
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26 3 Determining claims of qualified immunity “at the motion-to-dismiss stage raises special problems for legal
decision-making.” Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018). It puts the Court in the difficult position of
27 deciding "far-reaching constitutional questions on a non-existent factual record." Kwai Fun Wong v. United States,
373 F.3d 952, 957 (9th Cir. 2004). But dismissal based on qualified immunity is not appropriate unless it can be
28 determined based on the complaint alone that qualified immunity applies. O'Brien v. Welty, 818 F.3d 920, 936 (9th
1 despite Wilson having been clearly apprehended. (Id. ¶ 20.) Instead, it is alleged
2 that Corporal Sevens joined in pinning Wilson down. Defendants assert that
3 neither Officer Davis nor Corporal Stevens could have anticipated that Officer
4 Taylor would smash Wilson’s head into the concrete or shock him with the Taser.
5 But both aided in pinning Wilson down, and Officer Davis was present during the
6 entire encounter with Officer Taylor. Accordingly, the complaint asserts plausible
7 allegations of liability as to all three officers and each may be held liable.
8 3. Substantive Due Process—Government Interference with Parent-
9 Child Relationship
10 Plaintiffs’ Fourteenth Amendment substantive due process claim is grounded
11 in the alleged governmental interference with the familial relationship between
12 Plaintiffs and their deceased father, Wilson. Defendants argue Plaintiffs’ claim is
13 duplicative of their excessive force claim and must instead be brought under the
14 Fourth Amendment. Regardless of the applicable standard, Defendants claim that
15 Plaintiffs’ allegations are unsupported by facts beyond conclusory statements.
16 The Ninth Circuit has recognized that a “child’s interest in her relationship
17 with a parent is sufficiently weighty by itself to constitute a cognizable liberty
18 interest” under the Fourteenth Amendment, distinct from an excessive force claim
19 under the Fourth Amendment. Curnow v. Ridgecrest Police, 952 F.2d 321, 325
20 (9th Cir. 1991). To state a cause of action for governmental interference with the
21 familial relationship, the plaintiff must show that the police conduct “shocks the
22 conscience.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir, 2008). This is a high
23 bar, “which ‘only the most egregious official conduct’ meets.” K.T. v. Pittsburg
24 Unified Sch. Dist., 219 F. Supp. 3d 970, 980 (N.D. Cal. 2016). In determining
25 whether excessive force shocks the conscience, the Court first considers “whether
26 the circumstances are such that actual deliberation [by the officer] is practical.”
27 Porter, 546 F.3d at 1137. “Where actual deliberation is practical, then an officer’s
28 ‘deliberate indifference’ may suffice to shock the conscience. On the other hand,
1 where a law enforcement officer makes a snap judgment because of an escalating
2 situation, his conduct may only be found to shock the conscience if he acts with a
3 purpose to harm unrelated to legitimate law enforcement objectives.” Wilkinson v.
4 Torres, 610 F.3d 546, 554 (9th Cir. 2010).
5 The complaint alleges that the officers acted both in “reckless and deliberate
6 indifference” and “with the purpose of harm.” (Compl., 8 (¶¶ 36).) Gibson v. Las
7 Vegas Metro. Police Dep’t, 2013 U.S. Dist. LEXIS 31610, *9 (D. Nev. 2013) (“[t]o
8 successfully plead a violation of her fundamental right to familial association under
9 the Fourteenth Amendment, Plaintiff may plead either or both standards.”).
10 Plaintiffs allege that the officers committed an unnecessary lethal assault on
11 Wilson, a surrendering, unarmed, elderly, and below-average-size man.
12 Specifically, they allege that “[w]ithin seconds, without allowing Tony any
13 opportunity to process the commands and without warning, Officer Taylor reached
14 out, grabbed Tony by the back of the head or neck, and violently smashed his face
15 into the concrete.” (Compl., 4 (¶ 18).) Plaintiffs further allege that Officer Taylor
16 repeatedly shocked Wilson with a Taser after he was brought to the ground “with
17 no legitimate purpose.” (Id. at 4-5 (¶ 19).) Ultimately, the officers’ conduct resulted
18 in cardiac arrest and death. (Id. at 5 (¶ 20; 23).)
19 These facts, taken as true, plausibly establish either deliberate indifference
20 or a purpose to harm. A jury could reasonably conclude that the officers could have
21 allowed Wilson an opportunity to process the commands before smashing his face
22 into the concrete and, when Wilson was clearly subdued, continuously tased him
23 with reckless and deliberate indifference to his safety. Even taking into account the
24 perceived exigency of the circumstances, a “purpose to harm” can be inferred from
25 the use of force combined with the lack of legitimate law enforcement objectives,
26 such as the repeated tasings after Wilson was subdued. McGowan v. Cty. Of Kern,
27 2018 U.S. Dist. LEXIS 96236, *19-20 (E.D. Cal. 2018). In that light, the Court is
28 not persuaded by the Defendants’ arguments which fail to consider the specific
1 facts alleged.
2 4. Municipal and Supervisory Liability
3 A. NCPD As a Separate Suable Entity
4 The Court will first address whether Plaintiffs may bring a claim for
5 municipal liability against NCPD as a separate entity from National City.
6 Defendants argue NCPD is not a proper defendant because, as an agency of
7 National City, the claims against NCPD are duplicative of Plaintiffs’ claims
8 against National City. Plaintiffs argue they are separate entities, each subject to
9 liability.
10 Municipal police departments are “public entities” under California law and
11 thus are subject to suit in federal court for alleged civil rights violations. Shaw v.
12 Cal. Dep’t of Alcoholic Beverage Control, 788 F.2d 600, 605 (9th Cir. 1986),
13 Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 624 n.2 (9th Cir.
14 1988). See Fed. R. Civ. P. 17(b); Cal. Gov't Code §§ 811.2. “However, courts
15 routinely dismiss police departments as duplicative defendants where the claims
16 against a city and its police department arise from the same facts.” Mann v. City
17 of Chula Vista, 2020 U.S. Dist. LEXIS 178185, *8 (S.D. Cal. 2020) (citing
18 examples of courts holding as duplicative claims against both police departments
19 and cities). Here, Plaintiffs allege the same claims against both NCPD and
20 National City, premise these claims on the same facts, and describe both entities
21 conjunctively in the complaint. Therefore, the Court finds that the claims against
22 NCPD are duplicative of the claims against National City with no meaningful
23 distinction. National City Police Department is dismissed as a Defendant.
24 B. Municipal and Supervisor Liability Against National City and Chief
25 Tellez
26 Plaintiffs allege the policies, practices, and customs maintained by National
27 City and Tellez were not appropriate for situations where police encounter
28 persons experiencing mental health emergencies and directly contributed to a
1 pattern of constitutional and statutory violations. Defendants argue Plaintiffs base
2 their claim on conclusory statements such as “upon information and belief” and
3 are insufficient to state a claim against National City or Tellez.
4 "[A] municipality cannot be held liable solely because it employs a
5 tortfeasor – or, in other words, a municipality cannot be held liable under § 1983
6 on a respondeat superior theory." Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
7 691 (1978). A municipality may be liable under § 1983 for monetary, declaratory,
8 or injunctive relief where the constitutional deprivation was caused by the
9 implementation or execution of "a policy statement, ordinance, regulation, or
10 decision officially adopted and promulgated by that body's officers." Id. at 690.
11 “Proof of random acts or isolated events are insufficient to establish custom.”
12 Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995).
13 To establish municipal liability, Plaintiffs must show the decedent: (1) was
14 deprived of a constitutional right; (2) the city had a policy; (3) the policy amounted
15 to deliberate indifference to [the decedent’s] constitutional right; and (4) the policy
16 was the "moving force behind the constitutional violation." Van Ort v. Estate of
17 Stanewich, 92 F.3d 831, 835 (9th Cir. 1996). Additionally, a plaintiff alleging
18 Monell liability based on a failure to train must identify specific deficiencies in the
19 training program that must be closely related to the ultimate injury. Lee v. City of
20 Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001). To be sure, “a local
21 government's liability under § 1983 is at "its most tenuous," when the claim is
22 based on a failure to train. Connick v. Thompson, 563 U.S. 51, 61 (2011).
23 Plaintiffs’ Monell claim is based on alleged deficient policies, practices, and
24 customs and a “failure to adequately train, supervise and control employees in
25 the proper tactics to safely contain and secure persons who are in an agitated,
26 irrational or delusional state using de-escalation tactics.”4 These allegations are
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1 contextualized by the assertion that Wilson, unarmed, elderly, and below-
2 average in size, was having a mental health crisis when Officer Taylor smashed
3 his face into the concrete and subjected Wilson to unnecessary tasings while
4 Wilson tried to comply with the officers’ demands, providing a basis for the
5 excessive force claim. But Plaintiffs allegations are more about policy alternatives
6 and not what the specific policy here provided for and how the policy led to a
7 pattern of unconstitutional conduct. See A.E. ex rel. Hernandez v. County of
8 Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (finding "a bare allegation that the
9 [individual officers'] conduct conformed to some unidentified government policy or
10 custom" is insufficient to state a Monell claim). While Plaintiffs cite to Deorle v.
11 Rutherford for the proposition that contemporary law enforcement standards
12 mandate that mental illness be taken into account, Rutherford explicitly declines
13 to prescribe law enforcement best practices when encountering a suspect. 272
14 F.3d at 1283 (“[w]e do not adopt a per se rule establishing two different
15 classifications of suspects: mentally disabled persons and serious criminals.
16 Instead, we emphasize that where it is or should be apparent to the officers that
17 the individual involved is emotionally disturbed, that is a factor that must be
18 considered in determining, under Graham, the reasonableness of the force
19 employed). The Court agrees with Defendants that Plaintiffs allegations as to the
20 policy are conclusory and insufficient to support a claim.
21 Moreover, Plaintiffs provide no examples of prior incidents to establish a
22 pattern of violations or that there was an established policy or custom of the like
23 alleged by Plaintiffs. See Hyer v. City & Cty. of Honolulu, 2020 U.S. Dist. LEXIS
24 223621, *20 (D. Haw. 2020) (“[c]ourts require a plaintiff to plead multiple
25 incidents of alleged violations in order to allow a Monell claim based on policy,
26 practice, or custom to proceed”), Estate of Mendez v. City of Ceres, 390 F. Supp.
27 3d 1189, 1211 (E.D. Cal. 2019) (“[p]laintiffs have included no information on
28 investigations, or lack thereof; no information on disciplining or reprimanding of
1 officers, or lack thereof; and so forth. Starr and its progeny have set a higher
2 pleading standard than formerly applied in § 1983 actions, including Monell
3 claims. A plaintiff must articulate theory and facts giving rise to a plausible
4 inference of deliberate indifference, and here, there are no facts concerning
5 subsequent action or inaction in the wake of the incidents alleged by Plaintiffs”),
6 see also Bauer v. City of Pleasanton, 2021 U.S. Dist. LEXIS 103627, *20 (N.D.
7 Cal. 2021) (plaintiffs alleged prior incidents of lethal force to support Monell
8 claim). While the standard set forth in City of Canton v. Harris permits plaintiffs to
9 move forward with Monell claims without alleging multiple instances of violations
10 if the need for further training is “obvious, and the inadequacy so likely to result in
11 the violation of constitutional rights, that the policymakers of the city can
12 reasonably be said to have been deliberately indifferent to the need,” 489 U.S.
13 378 at 390 (1989), the Court does not find that Plaintiffs have established
14 “obvious” need here. The complaint fails to establish facts that plausibly allege
15 that the encounter with Wilson was beyond a tragic one-off incident.
16 Plaintiffs further allege that Tellez ratified the actions of the officers, but “a
17 mere failure to overrule a subordinate's actions, without more, is insufficient to
18 support a § 1983 claim." Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004). "A
19 defendant may be held liable as a supervisor under § 1983 if there exists either
20 (1) his or her personal involvement in the constitutional deprivation, or (2) a
21 sufficient causal connection between the supervisor's wrongful conduct and the
22 constitutional violation." Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)
23 (cleaned up); see Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000)
24 (supervisors can be liable for "1) their own culpable action or inaction in the
25 training, supervision, or control of subordinates; 2) their acquiescence in the
26 constitutional deprivation of which a complaint is made; or 3) for conduct that
27 showed a reckless or callous indifference to the rights of others."). Plaintiffs
28 allege Tellez knew of the alleged policy, ratified it, and disregarded the known or
1 ||}obvious consequence that the policy would violate the decedent’s or Plaintiffs’
2 || rights. (Compl., 11 (J 56-57).). Still, Plaintiffs fail to define the policy and how it
3 || rose to a constitutional deficiency. Oklahoma City v. Tuttle, 471 U.S. 808, 823-
4 (1985) ("[p]roof of a single incident of unconstitutional activity is not sufficient
5 || to impose liability under Monell, unless proof of the incident includes proof that it
6 || was caused by an existing, unconstitutional municipal policy. . . ."). Plaintiffs
T |l argue Tellez is “no doubt familiar with law-enforcement policies across the nation
8 that recognize the risks of positional asphyxia, and that direct officers to place
9 suspects in recovery positions when safe to do so to minimize such risks. That
10 || was the subject of Derek Chauvin’s televise[d] trial for the murder of George
11 Floyd earlier this year.” (ECF No. 8, at 14.) However, this speculative assertion is
12 || made outside the pleadings and does not establish the policy that National City
13 || maintains or the deficiencies that rose to a constitutional violation.
14 Accordingly, Plaintiffs have failed to allege a proper Monell claim.
1S |! Defendants’ motion to dismiss Plaintiff's Fourth claim is GRANTED.
1
CONCLUSION
18 For the reasons discussed above, the Court DENIES the motion to dismiss
49 to Plaintiffs’ First, Second, and Third Claims for Relief. The Court GRANTS
29 ||the motion to dismiss Plaintiffs’ Fourth Claim for Relief. National City Police
94 Department is dismissed as a defendant. Plaintiffs are granted leave to amend
22 ||their Fourth Claim for Relief to cure the deficiencies described above. Plaintiffs
23 || Must file an Amended Complaint within 45 days of the entry of this order.
94 ||IT IS SO ORDERED.
25 Dated: May 2, 2022 _
26 Honorable Barry Ted Moskov
27 United States District Judge
28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10085696. Public record. Not legal advice.