The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 FARYAL KABIR, et al., No. 2:22-cv-01661-DJC-SCR
12 Plaintiffs,
13 v. ORDER
14 CITY OF ELK GROVE, et al.,
15 Defendants.
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17 Plaintiffs Faryal Kabir and Ghesal Kabir filed this action against Defendants City
18 of Elk Grove and Bibbie Singh-Allen based on allegations that the seizure of Plaintiffs’
19 dog “Zeus” violated Plaintiffs’ constitutional rights.1 Defendants have moved to
20 dismiss Plaintiffs’ First Amended Complaint (“FAC”) on the basis that it fails to allege
21 facts sufficient to establish the City is liable under Monell and because it does not
22 contain any allegation that Singh-Allen, the acting mayor of Elk Grove at the time of
23 the incident, engaged in any wrongful conduct.
24 For the reasons stated below, the Court grants Defendants’ Motion to Dismiss.
25 Plaintiff’s shall be granted leave to file an amended complaint.
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27 1 Plaintiffs have filed a separate action against an animal control officer, Crystel Mocek, in her individual
capacity based on the July 15, 2022 seizure of Zeus. Singh v. Mocek, 2:22-cv-01855-DJC-SCR. This
28 Order does not address any pending Motions in that action.
1 BACKGROUND
2 Plaintiffs allege that following an incident in which Zeus caused a “minor
3 superficial abrasion with no puncture wounds” to a stranger, a hearing was conducted
4 on June 8, 2022, to determine whether Zeus should be designated a dangerous
5 animal. (FAC (ECF No. 11) ¶ 9.) Ms. Kabir sought to attend the hearing to contest the
6 designation but was not heard after she was dropped from the Zoom connection.2
7 (Id.) On June 15, the administrative hearing officer signed an order designating Zeus
8 as a dangerous animal. (Id. ¶ 10.) The order stated Ms. Kabir had 30 days to comply
9 with restrictions placed on Ms. Kabir and Zeus. (Id. ¶¶ 9–10.)
10 On July 15, 2022, Elk Grove Animal Control arrived at Ms. Kabir’s home and
11 seized Zeus. (Id.) Plaintiffs allege that July 15, 2022, was the 30th day for Ms. Kabir to
12 comply with the imposed restrictions and that the seizure occurred before the
13 deadline to show compliance. (Id. ¶ 10.) Plaintiffs also allege that Ms. Kabir was in
14 fact in compliance with the requirements imposed after the June 8, 2022 hearing. (Id.)
15 A second post-seizure hearing was held on August 15, 2022. (Id. ¶ 12.)
16 Plaintiffs allege that during this hearing, the hearing officer “did not recognize that the
17 violation upon Ms. Kabir was premature when Ms. Kabir’s time to comply was not
18 ripe.” (Id.) Plaintiffs also allege that the hearing officer “made findings based on
19 hearsay over objection” and did not permit a second attorney to speak for Ms. Kabir.
20 (Id. ¶ 12–13) After the hearing, Ms. Kabir’s counsel submitted evidence of Ms. Kabir’s
21 compliance with the requirements imposed at the initial June 8, 2022 hearing, but this
22 evidence was not considered. (Id.)
23 On September 2, 2022, a final order was issued directing Zeus to be
24 euthanized which also stated that Zeus’ owner had a right to appeal the order and that
25 the standard on appeal would be de novo review of the order. (Id. ¶ 15.) Plaintiffs
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2 This action was originally filed by Plaintiff Faryal Kabir alone. Plaintiff Ghesal Kabir later joined the
27 action as co-owner of Zeus. (ECF No. 23.) As the facts recited in the FAC concern only actions taken by
Faryal Kabir, the Court’s discussion of the factual allegations refer to Plaintiff as “Ms. Kabir” simply for
28 purposes of clarity.
1 allege that based on ex parte communication between the hearing officer and an Elk
2 Grove Assistant City Attorney, the order was amended on September 6, 2022, to
3 change the standard of review on appeal. (Id. ¶¶ 15–16.)
4 District Judge Troy L. Nunley stayed the majority of this action on September
5 28, 2022, under the Younger abstention doctrine. (ECF No. 20.) The sole exception
6 to this stay was the Fourth Amendment portion of Plaintiff’s first cause of action, which
7 Judge Nunley permitted to proceed forward. (Id.) Judge Nunley instructed that the
8 stay was to remain in place “until the Court orders otherwise.” (Id.) No order has
9 issued lifting the stay so it remains in place as to all claims except the Fourth
10 Amendment portion of Plaintiff’s first cause of action.
11 Defendants have now filed a Motion to Dismiss Plaintiffs’ Fourth Amendment
12 claims as to the First Cause of Action. Defendants argue that this cause of action fails
13 to allege sufficient facts to establish Monell liability against the City and that the FAC
14 fails to state a claim against Defendant Singh-Allen. Briefing is complete on the
15 Motion to Dismiss. (Mot. (ECF No. 22-1); Opp’n (ECF No. 31); Reply (ECF No. 37).)
16 The Court also addresses below Plaintiff’s “Motion for Correct Controlling Error” which
17 is currently pending before the Court. (ECF No. 31.)
18 MOTION TO DISMISS
19 I. Legal Standard
20 A party may move to dismiss for “failure to state a claim upon which relief can
21 be granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted if the complaint
22 lacks a “cognizable legal theory” or if its factual allegations do not support a
23 cognizable legal theory. Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th
24 Cir. 2019) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)).
25 The Court assumes all factual allegations are true and construes “them in the light
26 most favorable to the nonmoving party.” Steinle v. City and Cnty. of San Francisco,
27 919 F.3d 1154, 1160 (9th Cir. 2019) (quoting Parks Sch. of Bus., Inc. v. Symington, 51
28 F.3d 1480, 1484 (9th Cir. 1995)). If the complaint’s allegations do not “plausibly give
1 rise to an entitlement to relief,” the motion must be granted. Ashcroft v. Iqbal, 556
2 U.S. 662, 679 (2009).
3 A complaint need contain only a “short and plain statement of the claim
4 showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed
5 factual allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule
6 demands more than unadorned accusations; “sufficient factual matter” must make the
7 claim at least plausible. Iqbal, 556 U.S. at 678. In the same vein, conclusory or
8 formulaic recitations of elements do not alone suffice. Id. (citing Twombly, 550 U.S. at
9 555). This evaluation of plausibility is a context-specific task drawing on “judicial
10 experience and common sense.” Id. at 679.
11 II. Discussion
12 A. Sufficiency of Monell Allegations
13 Plaintiffs’ First Cause of Action seek to state a claim for damages under 42
14 U.S.C. § 1983 based in part on a violation of Plaintiff’s rights under the Fourth
15 Amendment. (FAC at 9–11.) This claim is brought against “[a]ll Defendants” which
16 includes the City of Elk Grove.
17 Under the Supreme Court's decision in Monell v. Department of Social Services,
18 436 U.S. 658 (1978), local governments may be held liable under section 1983 for
19 wrongs done by the local government itself. A municipality or other local government
20 entity is subject to Monell liability when that government, “under color of some official
21 policy, ‘causes’ an employee to violate another's constitutional rights.” Monell, 436
22 U.S. at 692. A municipality, however, cannot be held liable solely for the purported
23 constitutional violations of its employees, “or, in other words, a municipality cannot be
24 held liable under § 1983 on a respondeat superior theory.” Id. at 691. The
25 municipality itself must have acted through an official municipal policy or custom. Id.
26 at 694.
27 The Ninth Circuit has recognized four theories for establishing municipal
28 liability under Monell: “(1) an official policy; (2) a pervasive custom or practice; (3) a
1 failure to train, supervise, or discipline; or (4) a decision or act by a final policymaker.”
2 Horton by Horton v. City of Santa Maria, 915 F.3d 592, 602–03 (9th Cir. 2019). The
3 FAC addresses Monell liability for this claim in paragraph 22 stating:
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[The City] implicitly or explicitly adopted and implemented
5 a policy, custom, or practice permitting and/or instructing
its employees to do the following, inter alia:
6 a. To seize Zeus without a warrant from her lawful
owner, Ms. Kabir, without meaningful due process
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and in violation and disregard of her ownership
8 rights;
b. To remove Zeus to the County’s possession
9 and/or to any other location without Kabir’s consent
and in violation and disregard of ownership rights;
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c. To fail to provide constitutionally sufficient due
11 process to those whose animals are seized and
detained as described above.
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13 (FAC ¶ 22.)
14 Despite Plaintiff stating that the City had a custom or practice that “permit[ed]
15 and/or instruct[ed]” its employees to violate Plaintiff’s rights, provide any factual basis
16 on which the Court could find the City had such a custom or practice. Evidence of a
17 single instance of unlawful conduct is insufficient to establish the existence of a policy,
18 custom, or practice for purposes of a section 1983 claim against a municipality. See
19 Benavidez v. Cty. of San Diego, 993 F.3d 1134, 1154 (9th Cir. 2021); see also Saved
20 Magazine v. Spokane Police Dep't, 19 F.4th 1193, 1201 (9th Cir. 2021). As such, the
21 allegations in the FAC are insufficient to establish Monell liability for the City on a
22 theory of custom or policy.
23 As alleged, the First Cause of Action in the FAC also does not identify any
24 specific policies that violated Plaintiffs’ Fourth Amendment rights. Instead, the FAC
25 simply identifies that the City “adopted and implemented” unidentified policies that
26 resulted in the violation of Plaintiff’s Fourth Amendment rights. (See FAC ¶¶ 22–25.)
27 This generalized allegation is insufficient to state a claim predicated on liability under
28 a Monell theory. Plaintiffs must actually identify an actual policy that violated Plaintiffs’
1 constitutional rights. See Board of Cnty. Com’rs of Bryan Cnty., Okl. v. Brown, 520 U.S.
2 397, 403–04 (1997). As the First Cause of Action in the FAC fails to do so with regard
3 to the Fourth Amendment, these claims must be dismissed.
4 However, leave to amend for this claim appears warranted. Plaintiffs’
5 Opposition accurately notes that other causes of action of the FAC identify specific
6 code sections. (Opp’n at 4.) For instance, within the Third Cause of Action, Plaintiffs
7 identify Elk Grove Code sections 8.06.100, 8.06.090, 8.06.080, and 8.06.070(C)(6).
8 (FAC ¶ 37.) Plaintiffs’ Fourth Cause of Action also identifies two code of these same
9 code sections, 8.06.080 and 8.06.090.3 (FAC ¶ 49.) Both the Third and Fourth Cause
10 of Action are concerned with alleged violations of due process and thus the relevance
11 of these code sections to Plaintiffs’ Fourth Amendment claims is unclear. Plaintiffs’
12 Opposition concedes that at least two of the cited sections — sections 8.06.100 and
13 8.06.090 — were not utilized in the present case and are thus not relevant. (Opp’n at 4
14 (“[section 8.06.100] was not the code section used in the case of Kabir[.]” & “[section
15 8.06.090] was not the code section used in the case of Kabir to come to her house and
16 seize Zeus[.]”).) However, Plaintiffs allegations connected to section 8.06.080 suggest
17 they believe this may have direct relevance to Plaintiffs’ Fourth Amendment claim.
18 (See FAC ¶ 37.c (“[section 8.06.080] is unconstitutional in that it resulted in a 4th
19 amendment seizure of Kabir’s dog Zeus.”); see also FAC ¶¶ 49–51.) Similarly, though
20 more limited, the allegations in the FAC also seem to suggest a connection between
21 8.06.070(C)(6) and violations of Plaintiffs’ Fourth Amendment rights.
22 These allegations, as presently contained in the FAC, are extremely vague and
23 part of two Causes of Actions that are stayed. However, Plaintiffs’ Opposition
24 suggests that based on these code sections and other potential grounds, they believe
25 they are capable of stating a Fourth Amendment claim against the City. While the
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27 3 The Fourth Cause of Action also identifies two additional code sections, 8.06.110 and 8.06.070(D),
concerned with criminal repercussions for the ownership of dangerous animals which are plainly not
28 relevant for a Fourth Amendment . (FAC ¶¶ 43–45.)
1 Court takes no final position on whether a Fourth Amendment claim based on
2 sections 8.06.080 and 8.06.070(C)(6) are legally viable, an initial review of those
3 sections does confirm that they have facial relevance to the Fourth Amendment and
4 this particular case. In relevant part section 8.06.080 states:
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If all requirements for owners of dangerous animals are not
6 satisfied within thirty (30) days of the notice of designation,
or the owner is unable or unwilling to implement them, the
7 animal shall be humanely euthanized either by an Animal
Control Officer or by a licensed veterinarian.
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9 And section 8.06.070(C)(6) states:
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An Animal Control Supervisor and/or designee is
11 authorized to make whatever inspections he or she deems
necessary to ensure compliance with these provisions.
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13 Given the possible relevance of these sections to a possible Fourth
14 Amendment Monell claim, Plaintiffs will be granted leave to file an Amended
15 Complaint. Amendment shall be permitted only as to Plaintiff’s Fourth Amendment
16 claim brought under section 1983.
17 B. Claims against Defendant Bibbie Allen-Singh
18 The FAC fails to allege any actions or inactions by Defendant Allen-Singh that
19 could form the basis of an allegation that Defendant Allen-Singh violated Plaintiffs’
20 Fourth Amendment rights. In fact, the FAC only mentions Defendant Allen-Singh
21 once, stating broadly that “[Defendant Allen-Singh] is the acting mayor of Elk Grove
22 who is responsible for ensuring that the City’s laws are constitutional.” (FAC ¶ 2.)
23 Similarly, Plaintiffs’ Opposition vaguely suggests Defendant Allen-Singh is liable
24 because “the mayor is responsible for these municipal codes.” (Opp’n at 8–9.) It
25 appears that Plaintiffs seek to impose liability on Defendant Allen-Singh through
26 either a Monell theory, which is more appropriately stated against the City itself, or a
27 vague theory that Defendant Allen-Singh is liable simply by virtue of his position,
28 effectively a form of respondeat superior liability which is unavailable for claims under
1 section 1983. See Iqbal, 556 U.S. at 676. In either case, the FAC fails to state a claim
2 against Defendant Allen-Singh.
3 Accordingly, Defendants’ Motion to Dismiss as to this claim is granted and
4 Plaintiffs’ Fourth Amendment claim against Defendant Allen-Singh is dismissed. The
5 Court will grant leave to amend as to this claim as well. However, Plaintiffs are
6 cautioned that should they elect to include a Fourth Amendment claim against
7 Defendant Allen-Singh in a future complaint, they should ensure that claim is
8 cognizable and supported by a justifiable legal argument.
9 MOTION FOR CORRECT CONTROLLING ERROR
10 Also pending before the Court is a Motion from Plaintiffs entitled “Motion for
11 Correct Controlling Error” in which Plaintiffs seeks reconsideration of Judge Nunley’s
12 October 26, 2022 order. (ECF No. 31.) In that order, Judge Nunley denied Plaintiffs’
13 "Ex Parte Application for Order Directing Defense Counsel to Abide by Duty of
14 Candor re the Court's Error on Order Document 20." (ECF No. 30 (denying Plaintiffs’
15 Application at ECF No. 28).) Plaintiffs suggest that order identified “the wrong citation
16 and administrative case” when it referenced the alleged “second administrative
17 hearing.” (ECF No. 31 at 2.) Plaintiffs state that they seek to “to compel Ms. Kennedy
18 to abide by her duty of candor and explain the above matters, the facts and law
19 applicable to this legal matter, so that the Court can then revisit its Younger analysis
20 based on these new facts . . . .” (Id. at 6.) However, Judge Nunley’s order expressly
21 stated that evidence related to the second administrative hearing “was not material to
22 this Court’s ruling” and denied the Motion as he was ”unable to discern the legal basis
23 for Plaintiff's ex parte application . . . .” (ECF No. 30.)
24 Plaintiffs’ present motion seeking reconsideration still fails to identify any legal
25 basis for their initial ex parte application. It only states that the prior application
26 sought a court order “compelling Ms. Kennedy to abide by her duty of candor and
27 explain” alleged discrepancies. (ECF No. 31 at 6.) It does not identify any legal basis
28 for the original application. While Plaintiffs suggest there was a factual error in the
1 | prior order, the Court denied Plaintiffs’ motion as it lacked a legal basis. Plaintiffs
2 | present motion thus has failed to identify any grounds for reconsideration. See Fed.
3 | R. Civ. P. 60(b). Plaintiffs’ Motion (ECF No. 31) is denied.
4 CONCLUSION
5 For the reasons stated above, IT |S HEREBY ORDERED that:
6 1. Defendant's Motion to Dismiss (ECF No. 22) is GRANTED;
7 2. The First Amended Complaint (ECF No. 11) is dismissed with leave to
8 amend;
9 3. Within fourteen days of this order, the parties are ordered to show cause
10 why this action and the related action, 2:22-cv-01855-DJC-JDP, should not
11 be consolidated into a single case and why the stay of 2:22-cv-01661-DJC-
12 JDP should not be lifted;
13 4. Plaintiffs shall file an armended complaint fourteen days after the Court
14 issues an order addressing the issues of consolidation and the stay; and
15 5. Plaintiff's Motion for Correct Controlling Order (ECF No. 31) is DENIED.
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17 IT IS SO ORDERED.
18 | Dated: _June 26, 2025 Donel J CoDbne
Hon. Daniel alabretta
19 UNITED STATES DISTRICT JUDGE
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22 | Jct - kabir22ev01661.MTD
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