“Police officers have a duty to intercede when their fellow officers violate 1 the constitutional rights of a suspect or other citizen.”
How later courts described this case
- “Police officers have a duty to intercede when their fellow officers violate 1 the constitutional rights of a suspect or other citizen.”
- “Dismissal without leave to amend is proper if it is clear that the complaint could not be saved by amendment.”
- an excessive 10 force inquiry is a “highly fact-intensive task for which there are no per se rules”
- “The inquiry 8 into causation must be individualized to focus on the duties and responsibilities of each 9 individual defendant whose acts or omissions are alleged to have caused a constitutional 10 deprivation.”
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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FLOYD MANLOVE Case No.: 3:24-cv-0801-CAB-MMP
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Plaintiff,
13 ORDER GRANTING IN PART AND
14 v. DENYING IN PART MOTION TO
DISMISS
15 COUNTY OF SAN DIEGO, et al.,
16 Defendants.
[Doc. No. 22]
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On May 6, 2024, Plaintiff Floyd Manlove brought a lawsuit pursuant to 42 U.S.C. §
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1983 and other causes against Defendants County of San Diego, San Diego County
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Sheriff’s Deputies Dylan Olguin, Michael Alcarion, Airan Kunz, and Osmark Gonzalez,
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and Does 1–10 (“Defendants”). The Court granted Defendants’ motion to dismiss. [Doc.
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No. 17.] Plaintiff filed a first amended complaint (“FAC”). [Doc. No. 18.] Defendants
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subsequently filed a motion to dismiss the FAC. [Doc. No. 22.] The Court GRANTS the
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motion in part and DENIES the motion in part.
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I. FACTUAL ALLEGATIONS
28 The Court takes the alleged material facts as true and construes them in the light
most favorable to Plaintiff. Stoner v. Santa Clara Cnty. Off. of Educ., 502 F.3d 1116, 1120
1 (9th Cir. 2007). Except as noted below, the FAC alleges substantially similar facts to those
2 in Plaintiff’s initial complaint.
3 In the FAC, Plaintiff alleges that Defendant Gonzalez could clearly observe
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Plaintiff’s movements as Defendant Olguin conducted the traffic stop. [FAC ¶ 17.]
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Plaintiff asserts that “objectively unreasonable and unlawful excessive force was applied”
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by Defendants Olguin, Alcarion, Kunz, and Gonzalez (“Deputy Defendants”) as he
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attempted to exit the vehicle by his own volition. [Id. ¶ 21.] Plaintiff claims that a civilian
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witness captured a video of the incident, and the video allegedly shows Defendant Olguin
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“punch a non-resistant [Plaintiff] to the face at least 3 times causing bruising and bleeding
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to [Plaintiff’s] face and nose.” [Id. ¶ 22.] According to Plaintiff, he was then “pinned and
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brought down to the hard concrete by [Deputy Defendants].” [Id. ¶ 23.]
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13 II. LEGAL STANDARD
14 At the pleading stage, the Court looks to whether Plaintiff has plausibly stated a
15 claim: an exercise that draws on judicial experience and common sense. Eclectic Props.
16 E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 995 (9th Cir. 2014). Fed. R. Civ. P.
17 12(b)(6) permits a party to file a motion to dismiss for “failure to state a claim upon which
18 relief can be granted.” “To survive a motion to dismiss, a complaint must contain sufficient
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factual matter . . . to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal,
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556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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“Vague and conclusory allegations” concerning government involvement in civil rights
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violations are insufficient to withstand a motion to dismiss. Ivey v. Bd. of Regents of Univ.
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of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
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III. ANALYSIS
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Plaintiff’s FAC presents the same causes of action as the initial complaint: (1)
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27 Section 1983 violation, (2) Monell violation, (3) failure to intervene, (4) assault, (5),
28 battery, (6) false arrest, and (7) Bane Act violation. The Court takes each of Plaintiff’s
claims in turn and analyzes Defendants’ qualified immunity defense.
//
1 A. Plaintiff’s Fourth and Fourteenth Amendment Section 1983 Claims
2 Plaintiff alleges two Section 1983 claims based on the Fourth and Fourteenth
3 Amendments. [FAC ¶ 27(a).] To state a Section 1983 claim, Plaintiff must allege that: (1)
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a right secured by the Constitution or laws of the United States was violated, and (2) a
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person acting under the color of state law committed the alleged violation. West v. Atkins,
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487 U.S. 42, 48 (1988). Moreover, Plaintiff must specifically identify who caused the
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alleged violation. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (“The inquiry
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into causation must be individualized to focus on the duties and responsibilities of each
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individual defendant whose acts or omissions are alleged to have caused a constitutional
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deprivation.”).
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12 i. Fourth Amendment Unlawful Search/Seizure
13 Plaintiff’s first constitutional claim is an alleged violation of his Fourth Amendment
14 rights: that the individually named Deputies “seized, searched, arrested, and handcuffed”
15 Plaintiff without probable cause. [FAC at ¶ 27(a).]
16 As discussed in the Court’s prior order ruling on Defendants’ first motion to dismiss,
17 Defendants Olguin and Gonzalez had probable cause to make the initial stop, and Plaintiff
18 failed to plead an unlawful arrest claim. [Doc. No. 17 at 5-6.] In other words, no
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constitutional infirmity plagued the arrest as pleaded. As it relates to the search, Plaintiff
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does not identify who searched his person or vehicle. [See FAC ¶ 25.] That itself renders
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Plaintiff’s claim defective: Plaintiff must specifically allege who (even if it is a Doe
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defendant) faces causal responsibility for the constitutional violation alleged. See Leer,
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844 F.2d at 633.
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In the FAC, however, Plaintiff pleaded new facts regarding his allegation that
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Deputy Defendants used excessive force against him during the stop. The use of excessive
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27 force by a law enforcement officer may violate the Fourth Amendment’s prohibition
28 against unreasonable seizures. Lowry v. City of San Diego, 858 F.3d 1248, 1254 (9th Cir.
2017). The Court analyzes such claim under the Fourth Amendment’s “reasonableness”
standard. Graham v. Connor, 490 U.S. 386, 395 (1989).
1 In assessing the objective reasonableness of a particular use of force, the Court
2 considers: (1) “the severity of the intrusion on the individual’s Fourth Amendment rights
3 by evaluating the type and amount of force inflicted,” (2) “the government’s interest in the
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use of force,” and (3) the balance between “the gravity of the intrusion on the individual”
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and “the government’s need for that intrusion.” Glenn v. Washington Cnty., 673 F.3d 864,
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871 (9th Cir. 2011) (internal quotation marks and citations omitted).
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a. The Type and Amount of Force
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Analyzing the appropriate type and amount of force requires a case-by-case
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approach. See Torres v. City of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011) (an excessive
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force inquiry is a “highly fact-intensive task for which there are no per se rules”). The
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Ninth Circuit has held that a jury could find that an officer’s repeated punching of a
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13 physically non-resistant plaintiff in the face—actions leading to serious and painful
14 claimed injuries—violates the Fourth Amendment. Lolli v. Cnty. of Orange, 351 F.3d 410,
15 417 (9th Cir. 2003). Here, Plaintiff states that he voluntarily stepped out of the vehicle,
16 and Deputy Olguin punched him in the face several times. [FAC ¶¶ 20, 22.] Plaintiff
17 claims that Deputy Olguin’s punches caused facial bleeding and led to injuries to his face,
18 neck, and back. [FAC ¶¶ 22, 25.] Plaintiff has sufficiently pleaded that Defendant Olguin
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used an inappropriate type and amount of force during the stop.
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Plaintiff also claims that Deputy Defendants brought Plaintiff down to the hard
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concrete, resulting in injuries that required medical care. [FAC ¶ 23.] The Ninth Circuit
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has held that “a physical tackle that results in severe injury may constitute a significant use
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of force.” Andrews v. City of Henderson, 35 F.4th 710, 716 (9th Cir. 2022). Plaintiff has
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sufficiently pleaded a Fourth Amendment violation that is plausible on its face regarding
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the alleged excessive force that the Deputy Defendants used to seize the Plaintiff.
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27 b. The Government’s Interest in the Use of Force
28 The Court assess the government’s interest in the use of force by considering the
three Graham factors: “(1) the severity of the crime at issue, (2) whether the suspect posed
an immediate threat to the safety of the officers or others, and (3) whether the suspect was
1 actively resisting arrest or attempting to evade arrest by flight.” Glenn, 673 F.3d at 872.
2 (quoting Graham, 490 U.S. at 396).
3 At this pleading stage, the first factor weighs in Plaintiff’s favor. As alleged,
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Defendant Olguin initially stopped Plaintiff for a misdemeanor. [FAC ¶ 16.] Plaintiff
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alleges that Deputy Defendants did not find the glass pipe, methamphetamine, and
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collapsible baton until after using excessive force. [FAC ¶¶ 23-24.] Therefore, the Deputy
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Defendants’ used force at a point in the seizure where the only information available was
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that Plaintiff lacked a front license plate—not that Plaintiff had a weapon in the vehicle or
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had illegal drugs on his person. The Court must consider the “danger a suspect poses at
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the time force is applied.” S.R. Nehad v. Browder, 929 F.3d 1125, 1136 (9th Cir. 2019)
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(emphasis added).
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13 The second factor, “whether the suspect pose[d] an immediate threat to the safety of
14 the officers or others,” is “the most important single element of the three specified factors.”
15 Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994). Because this is an inquiry about
16 objective reasonableness, objective factors must justify an officer’s use of force out of fear
17 for his safety. Est. of Strickland v. Nevada Cnty., 69 F.4th 614, 620 (9th Cir. 2023). Here,
18 Plaintiff claims that he voluntarily began to exit the vehicle before he was allegedly
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punched and tackled to the ground. [FAC ¶¶ 20, 23.] Although Plaintiff admits that he
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had a weapon in his vehicle, Plaintiff asserts that Deputy Defendants found the weapon
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after applying force. [FAC ¶¶ 22, 24.] Plaintiff’s claimed lack of physical resistance also
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suggests that Plaintiff did not pose an immediate threat to the safety of the officers.
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Therefore, the second Graham factor weighs in Plaintiff’s favor.
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The third factor, whether Plaintiff resisted or attempted to evade arrest, weighs
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slightly in favor of Plaintiff. Where the suspect passively resists arrest, a lesser degree of
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27 force is justified compared to situations in which the suspect actively resists arrest. See,
28 e.g., Glenn, 673 F.3d at 875. Here, Plaintiff concedes that he questioned the reason for the
request to exit the vehicle and a dispute arose. [FAC ¶ 19.] However, Plaintiff asserts that
after Defendant Olguin reached into the vehicle to open Plaintiff’s door, Plaintiff attempted
1 to comply. [FAC ¶ 20.] Therefore, while Plaintiff initially offered some amount of verbal
2 resistance, Plaintiff has not pleaded any facts that suggest he physically resisted arrest at
3 the time of Deputy Defendants’ application of force. Taking the three Graham factors
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together, Plaintiff has plausibly alleged that the government did not have sufficient interest
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in its use of force against Plaintiff.
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c. The Balance of Interests
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The final step of the excessive force inquiry requires the Court to balance the gravity
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of the intrusion on Plaintiff’s Fourth Amendment rights against the government’s need for
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that intrusion. Lowry v. City of San Diego, 858 F.3d 1248, 1260 (9th Cir. 2017) (quoting
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Glenn, 673 F.3d at 871.) Here, the government’s interest in the use of force to stop a traffic
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infraction did not justify the alleged level of force used by the Deputy Defendants. For the
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13 foregoing reasons, Defendants’ motion to dismiss Plaintiff’s Fourth Amendment Section
14 1983 claim against Deputy Defendants is DENIED.
15 ii. Fourteenth Amendment Excessive Force Claim
16 The FAC does not plead sufficiently different facts regarding Plaintiff’s Fourteenth
17 Amendment excessive force claim than those in the initial complaint. Therefore, the
18 Court’s prior analysis of the Fourteenth Amendment applies here. [Doc. No. 17 at 7–8.]
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As such, Plaintiff’s Fourteenth Amendment excessive force claim against all Defendants
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is DISMISSED with prejudice.
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B. Plaintiff’s Failure to Intervene Under Both the Fourth and Fourteenth
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Amendments Claims
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Plaintiff also alleges what appears to be constitutional violations based on a failure
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to intervene theory. In his FAC, Plaintiff states that Defendants Alcarion, Kunz, and
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Gonzalez failed to intervene as Defendant Olguin applied excessive force by punching
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27 Plaintiff multiple times. [FAC ¶ 22]. If a police officer has an opportunity to intervene in
28 another officer’s unconstitutional actions, that officer can be held liable for failing to do
so. United States v. Koon, 34 F.3d 1416, 1447 (9th Cir. 1994), rev’d on other grounds, 518
U.S. 81 (1996) (“Police officers have a duty to intercede when their fellow officers violate
1 the constitutional rights of a suspect or other citizen.”) Resultingly, the Court DENIES
2 Defendants’ motion to dismiss with regards to Plaintiff’s failure to intervene claims under
3 the Fourth Amendment.
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C. Defendants’ Qualified Immunity Defense
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Qualified immunity protects government officials from civil damages “insofar as
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their conduct does not violate clearly established statutory or constitutional rights of which
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a reasonable person would have known.” Chappell v. Mandeville, 706 F.3d 1052, 1056
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(9th Cir. 2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The qualified
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immunity inquiry has two prongs: “(1) whether, taken in the light most favorable to the
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party asserting the injury, the facts alleged show the official’s conduct violated a
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constitutional right; and (2) if so, whether the right was clearly established in light of the
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13 specific case.” Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009) (citing Saucier v. Katz,
14 533 U.S. 194, 201 (2001)).
15 Regarding the first prong of the qualified immunity analysis, the Court finds that
16 Plaintiff’s FAC pleads facts sufficient to mount a cognizable Fourth Amendment violation
17 with regards to the named Deputies’ conduct—specifically that the alleged use of force
18 against a passive, non-resistant arrestee was unreasonable. See Rice v. Morehouse, 989
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F.3d 1112, 1125-26 (9th Cir. 2021). Therefore, Plaintiff has met the first requirement to
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survive Defendants’ qualified immunity challenge regarding Deputy Defendants’ conduct.
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Under the second prong of the qualified immunity analysis, courts “consider whether
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a reasonable officer would have had fair notice that the action was unlawful.” Chappell,
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706 F.3d at 1056–57. At the motion to dismiss stage, “dismissal is not appropriate unless
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we can determine, based on the complaint itself, that qualified immunity applies.” Polanco
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v. Diaz, 76 F.4th 918, 925 (9th Cir. 2023) (quoting Groten v. California, 251 F.3d 844, 851
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27 (9th Cir. 2001).
28 a. Defendant Olguin’s Punch
A reasonable officer would have known that punching an allegedly non-resistant
arrestee in the face multiple times was excessive. See Davis v. City of Las Vegas, 478 F.3d
1 1048 (9th Cir. 2007). Davis v. City of Las Vegas informs law enforcement officers of their
2 obligation under the Constitution to refrain from using excessive force against such an
3 individual. See id. In Davis, the Ninth Circuit found that a police officer was not entitled
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to qualified immunity after punching an unarmed arrestee in the face during an arrest where
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the arrestee never attempted to harm anyone else. See id. Like Plaintiff here, the plaintiff
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in Davis was “somewhat uncooperative.” Id. at 1056. Although the plaintiff in Davis was
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handcuffed at the time of the application of force, the core overlap here is that there was,
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as alleged, no threat of violence and, other than minimal verbal resistance, eventual
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voluntary compliance with Olguin’s commands. Id. at 1051. As alleged, Deputy Olguin
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punched Plaintiff in the face multiple times, even though Plaintiff offered no physical
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resistance. [FAC ¶ 22.] At this juncture, Plaintiff has pleaded that a reasonable officer in
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13 Defendant Olguin’s position would have known that the conduct in which he engaged
14 constituted excessive force. The Court DENIES Defendants’ motion to dismiss based on
15 qualified immunity with respect to Defendant Olguin for allegedly punching Plaintiff,
16 without prejudice to it being reasserted on summary judgment or at trial.
17 b. Deputy Defendants’ Tackle
18 In Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007), police officers
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tackled an unrestrained and physically non-resistant Plaintiff during an arrest. The Ninth
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Circuit found the law was clearly established in that gang-tackling a physically non-
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resistant Plaintiff could have been unconstitutional and denied giving the officers qualified
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immunity. Id. at 482. Like in Blankenhorn, all four named Defendants here tackled an
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allegedly unrestrained and physically non-resistant Plaintiff. [FAC ¶ 23.] At this juncture,
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Plaintiff has pleaded that a reasonable officer in Deputy Defendants’ position would have
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known that tackling a non-resistant Plaintiff was not objectively reasonable in light of
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27 clearly established law. The Court DENIES Defendants’ motion to dismiss based on
28 qualified immunity with respect to Deputy Defendants for allegedly tackling Plaintiff,
without prejudice to it being reasserted on summary judgment or at trial.
//
1 D. Plaintiff’s Monell Claim Against the County and Its Employees
2 The FAC does not allege sufficiently different facts for Plaintiff’s Monell claim than
3 those in the dismissed initial complaint. The FAC still has no facts indicating what
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involvement Does 1–10 had in any alleged constitutional violation. The Court’s analysis
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for the Monell claim remains the same as in the Court’s initial motion to dismiss. [Doc.
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No. 17 at 9-12.] The Court GRANTS Defendants’ motion to dismiss with respect to
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Plaintiff’s Monell claim against all parties.
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E. Plaintiff’s Common and State Law Claims
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Federal courts have the discretion to exercise supplemental jurisdiction over all
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claims that are “so related to claims in the action within such original jurisdiction that they
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form part of the same case or controversy under Article III of the United States
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13 Constitution.” 28 U.S.C. § 1367(a). Plaintiff’s state law claims arise from the same traffic
14 stop and alleged use of force. The Court exercises supplemental jurisdiction to adjudicate
15 the common law and Bane Act claims for the first time here since the Court did not reach
16 those claims in Defendants’ initial motion to dismiss.
17 a. Assault and Battery
18 Plaintiff makes state law claims for assault and battery based on the Deputy
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Defendants’ alleged use of force in his arrest. Under California law, claims for assault and
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battery against police officers are resolved under the same liability standard as 42 U.S.C.
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§ 1983 excessive force causes of action. See Saman v. Robbins, 173 F.3d 1150, 1156 n.6
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(9th Cir. 1999). As discussed above in Section A, Plaintiff has plausibly alleged a claim
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that Deputy Defendants used unreasonable force under Section 1983. Therefore, Plaintiff
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may bring his assault and battery claims against Deputy Defendants.
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i. Assault
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27 Under California law, a claim for assault must allege: “(1) that [D]efendant[s]
28 intended to cause harmful or offensive contact, or the imminent apprehension of such
contact, and (2) that [P]laintiff was put in imminent apprehension of such contact.” Brooks
v. United States, 29 F. Supp. 2d 613, 617 (N.D.Cal. 1998) (citing Restatement (Second) of
1 Torts § 21 (1965)). Here, Plaintiff has pleaded that Deputy Defendants intended to cause
2 harmful contact and Plaintiff was put in imminent apprehension of such contact. [FAC ¶
3 21-23, 49.] Defendants’ motion to dismiss the state law claim for assault against the
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Deputy Defendants is DENIED.
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ii. Battery
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Plaintiff also makes a state law claim for battery based on Deputy Defendants
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allegedly slamming Plaintiff on the ground. Under California law, the elements of a battery
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claim are as follows: (1) the defendant intentionally did an act that resulted in harmful or
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offensive contact with the plaintiff’s person, (2) the plaintiff did not consent to the contact,
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and (3) the contact caused injury, damage, loss or harm to the plaintiff. Tekle ex rel. Tekle
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v. U.S., 511 F.3d 839, 855 (9th Cir. 2007). Here, Plaintiff has pleaded that Deputy
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13 Defendants tackled Plaintiff resulting in harmful contact, Plaintiff did not consent to the
14 contact, and Plaintiff suffered injuries that required medical attention from the alleged
15 tackle. [FAC ¶ 19-23.] Defendants’ motion to dismiss the state law claim for battery
16 against the Deputy Defendants is DENIED.
17 b. False Arrest
18 Plaintiff alleges a state law claim that Deputy Defendants falsely arrested and
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imprisoned Plaintiff. The tort consists of the “nonconsensual, intentional confinement of
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a person, without lawful privilege, for any appreciable length of time, however short.”
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Alterauge v. Los Angeles Turf Club, 97 Cal. App. 2d 735, 736 (1950). As analyzed in the
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Court’s initial motion to dismiss, Deputy Defendants had probable cause for the arrest.
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[Doc. No. 17 at 5–6.] Plaintiff concedes facts indicating probable cause for the arrest,
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[FAC ¶ 24], and has not pleaded new facts to change the Court’s probable cause analysis
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for the arrest. Since no additional facts could change this analysis, the Court DISMISSES
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27 Plaintiff’s false arrest claim against all parties with prejudice. Kendall v. Visa U.S.A., Inc.,
28 518 F.3d 1042, 1051 (9th Cir. 2008) (“Dismissal without leave to amend is proper if it is
clear that the complaint could not be saved by amendment.”)
//
1 c. Bane Act
2 California’s Bane Act creates a right of action against persons who “interfere[] by
3 threat, intimidation, or coercion . . . with the exercise or enjoyment by any individual . . .
4
of rights secured by the Constitution or laws of the United States.” Civ. Code § 52.1(b).
5
The Bane Act requires not only the existence of a constitutional violation but also the
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defendant’s specific intent to violate a person’s rights. See Murchison v. Cnty. of Tehama,
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69 Cal. App. 5th 867, 896 (2021); see also Reese v. Cnty. of Sacramento, 888 F.3d 1030,
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1043 (9th Cir. 2018).
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Plaintiff alleges that Deputy Defendants violated his constitutional right to freedom
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from racial discrimination under the Fourteenth Amendment. “Because section
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1983 incorporates the equal protections standards that have developed in fourteenth
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13 amendment jurisprudence,” in order to prevail on a Section 1983 claim alleging racial
14 discrimination, Plaintiff must first prove that Defendants purposefully discriminated
15 against him because of his race. Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir.
16 1985) (citing Pers. Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 272
17 (1979) and Washington v. Davis, 426 U.S. 229, 239–42, (1976)). Plaintiff does not meet
18 the baseline requirement of specifying his race in the FAC, nor does he plead how any
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Defendant had the specific intent to violate Plaintiff’s Fourteenth Amendment rights.
20
Because the Court did not reach the racial discrimination claim in the initial complaint, the
21
Court DISMISSES Plaintiff’s Bane Act claim against all parties without prejudice.
22
IV. CONCLUSION
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For the reasons discussed above, the Court:
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(1) DENIES the motion to dismiss Plaintiff’s Section 1983 claims for Fourth
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Amendment excessive force violations against the Deputy Defendants;
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27 (2) DENIES the motion to dismiss Plaintiff’s Section 1983 claims for failure to
28 intervene against Defendants Alcarion, Kunz, and Gonzalez;
1 (3) GRANTS the motion to dismiss (a) the Fourteenth Amendment claims against
2 all parties, (b) Monell claims against all parties, and (c) false arrest claims
3 against all parties with prejudice;
(4) DENIES the motion to dismiss the assault and battery claims against the Deputy
° Defendants;
° (5) GRANTS the motion to dismiss the assault and battery claims against the Doe
Defendants; and
9 (6) GRANTS the motion to dismiss the Bane Act claims without prejudice.
10 Should Plaintiff choose to file a second amended complaint to assert the Bane Act
11 || Claim, Plaintiff may do so by June 5, 2025. If Plaintiff does not file a second amended
12 || complaint, Defendants will file an answer to the operative first amended complaint by June
13 || 19, 2025.
14 Itis SO ORDERED.
15 || Dated: May 8, 2025 €
16
Hon. Cathy Ann Bencivengo
United States District Judge
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