Tabayoyon v. City of Vacaville

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 KIRK RICHARD TABAYOYON, No. 2:19-cv-02022-KJM-KJN 12 Plaintiff, 13 v. ORDER 14 CITY OF VACAVILLE, et al., 15 Defendants. [17] 18 Defendants City of Vacaville (“City”), City of Vacaville Police Chief John Carli 19 (“Chief Carli”), City of Vacaville Police Officer Josiah Alderton (“Officer Alderton”), City of 20 Vacaville Police Officer Danya Hardwick (“Officer Hardwick”) and City of Vacaville Police 21 Officer Kenneth Welter (“Officer Welter”) (collectively “defendants”) move to dismiss plaintiff 22 Kirk Tabayoyon’s first and fifth claims. Mot. to Dismiss (“MTD”), ECF No. 10, at 6-7. Plaintiff 23 opposes, Opp’n, ECF No. 19, and defendants have replied, Reply, ECF No. 21. The court heard 24 oral argument by videoconference on September 4, 2020, with Justin Tabayoyon appearing for 25 plaintiff and Henry Bernstein and Richard Osman appearing for defendants. For the reasons 26 below, the court GRANTS defendants’ motion to dismiss. 27 ///// 28 ///// 1 I. FACTUAL ALLEGATIONS AND CLAIMS 2 On or about October 8, 2017, plaintiff’s daughter, Kayla Hansen, called the 3 Vacaville Police Department and alleged plaintiff had pushed her, but she said she did not have 4 any injuries. First Am. Compl. (“FAC”) ¶ 13, ECF No. 9. In response to this call, Officer 5 Hardwick, Officer Alderton and other officers drove to plaintiff’s home and found plaintiff 6 shirtless in his driveway. Id. ¶¶ 13–16. Officer Hardwick asked plaintiff whether he pushed his 7 daughter. Id. ¶ 15. Plaintiff “stood calmly in one spot” and denied pushing his daughter. Id. 8 ¶ 16. He then informed the officers his mother was inside the home, and she could speak about 9 what happened. Id. 10 Plaint iff alleges that while having “a consensual and voluntary conversation” with 11 Officer Hardwick, one or more officers approached and entered the front door of his home, at 12 which point he said: “hey you can’t go in my house.” Id. ¶ 18. After saying this, plaintiff claims 13 to have taken two steps away from Officer Hardwick, while “exercising his constitutional rights 14 to object to a warrantless search of his home absent exigent circumstances.” Id. Because he had 15 stepped away from Officer Hardwick, plaintiff alleges “no reasonable officer would believe use 16 of force was reasonable or necessary.” Id. Despite plaintiff’s moving away, Officer Hardwick 17 put herself in plaintiff’s path and “reached out with her hand and made physical contact” with his 18 chest. Id. ¶ 21. Plaintiff then moved Officer Hardwick’s hand away from his chest “in a slow, 19 circular sweeping motion” using a self-defense technique, which he learned from his time in the 20 United States Army. Id. Another officer then told plaintiff to “stay where you are” and plaintiff 21 obliged; he claims Officer Alderton then attacked him from behind. Id. 22 Plaintiff alleges none of the circumstances on that day necessitated Officer 23 Alderton’s battery. Id. ¶ 23. Plaintiff was unarmed, he had not advanced on Officer Hardwick, 24 and Officer Hardwick had not arrested him or asked him to place his hands in the air. Id. Officer 25 Alderton’s actions caused plaintiff to be “propelled” onto the asphalt of his driveway. Id. Once 26 plaintiff was on the ground, Officer Hardwick, Officer Alderton and the other officers placed 27 their knees on plaintiff and applied their body weight onto his neck, which caused plaintiff to 28 bleed. Id. ¶ 26. 1 Throughout the incident, defendants exhibited a “punitive and condescending 2 mindset.” Id. ¶ 27. Plaintiff claims that as Officer Alderton approached him from behind, Officer 3 Hardwick leaned out of the way and said: “okay there we go.” Id. He also alleges Officer 4 Alderton and Officer Hardwick smiled and smirked throughout the altercation. Id. Plaintiff 5 experienced severe injuries and so the officers took him to Kaiser Emergency Department in 6 Vacaville; plaintiff claims he remained in handcuffs throughout the emergency room visit. Id. 7 ¶ 28. 8 On October 5, 2019, plaintiff filed suit against defendants. Compl., ECF No. 1. 9 On December 31, 2019, plaintiff filed his amended complaint. See generally FAC. He names as 10 defendants the City, Chief Carli, Officer Alderton, Officer Hardwick, Officer Welter.1 Id. ¶¶ 3– 11 11. Plaintiff alleges the City is a public entity established by the laws and the Constitution of the 12 State of California; Chief Carli is responsible for the employment, training, supervision and 13 control of all officers of the Vacaville Police Department; and Officer Welter was employed by 14 the City as a police officer. Id. ¶¶ 4, 7–8. 15 Plaintiff makes six claims in the operative complaint: (1) municipal and 16 supervisory liability for unconstitutional use of excessive force under 42 U.S.C. § 1983 , against 17 the City, Chief Carli and Officer Welter, id. ¶¶ 39–61; (2) individual liability for unconstitutional 18 use of excessive force under 42 U.S.C. § 1983 against Officers Alderton and Hardwick, id. ¶¶ 62– 19 67; (3) battery against Officers Alderton and Hardwick, id. ¶¶ 68–74; (4) intentional infliction of 20 emotional distress against Officer Alderton, id. ¶¶ 75–81; (5) negligence against all defendants 21 except the City and Officer Welter, id. ¶¶ 82–94; and (6) violation of plaintiff’s rights under 22 California’s Bane Civil Rights Act against Officers Alderton and Hardwick, id. ¶¶ 95–98. [24] 1 Plaintiff also names several Doe defendants. While Doe defendants are disfavored in federal court, if a defendant’s identity is unknown when the complaint is filed, plaintiffs have an [25] opportunity through discovery to identify them. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). But the court will dismiss such unnamed defendants if discovery clearly would not [26] uncover their identities or if the complaint would clearly be dismissed on other grounds. Id. at 642 . The federal rules also provide for dismissing unnamed defendants that, absent good cause, [27] are not served within 90 days of the complaint. Fed. R. Civ. P. 4(m). [28] 1 In the instant motion, defendants move to dismiss plaintiff’s first cause of action 2 and his fifth cause of action, the latter as against Chief Carli. MTD at 7. Defendants argue the 3 first cause of action fails against the City because plaintiff does not allege sufficient facts pointing 4 to a widespread custom or City practice that caused a deprivation of plaintiff’s constitutional 5 rights. Id. at 9–12. Further, they argue, plaintiff is unable to demonstrate either that an 6 “authorized policymaker knew of unconstitutional conduct” prior to its occurrence, id. at 12, or 7 that the City’s training programs were so clearly inadequate they would result in unconstitutional 8 conduct. Id. at 14–15. With regard to Chief Carli and Officer Welter, defendants argue the first 9 cause of action does not rest on factual allegations sufficient to state the supervisory liability 10 claims. Id. 15–16. L astly, defendants argue plaintiff has failed to state a claim of negligence 11 against Chief Carli in the fifth cause of action, because he has not alleged sufficient facts 12 demonstrating Chief Carli was the actual or proximate cause of plaintiff’s injuries. Id. at 16–17. 13 II. LEGAL STANDARD 14 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to 15 dismiss a complaint for “failure to state a claim upon which relief can be granted.” A court may 16 dismiss “based on the lack of cognizable legal theory or the absence of sufficient facts alleged 17 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 18 1990). 19 Although a complaint need contain only “a short and plain statement of the claim 20 showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in order to survive a motion 21 to dismiss this short and plain statement “must contain sufficient factual matter . . . to ‘state a 22 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 23 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something 24 more than “an unadorned, the-defendant-unlawfully-harmed-me accusation” or “‘labels and 25 conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Id. (quoting 26 Twombly, 550 U.S. at 555 ). Determining whether a complaint will survive a motion to dismiss 27 for failure to state a claim is a “context-specific task that requires the reviewing court to draw on 28 its judicial experience and common sense.” Id. at 679 . Ultimately, the inquiry focuses on the 1 interplay between the factual allegations of the complaint and the dispositive issues of law in the 2 action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). 3 In making this context-specific evaluation, this court must construe the complaint 4 in the light most favorable to the plaintiff and accept as true the factual allegations of the 5 complaint. Erickson v. Pardus, 551 U.S. 89 , 93–94 (2007). This rule does not apply to “‘a legal 6 conclusion couched as a factual allegation,’” Papasan v. Allain, 478 U.S. 265, 286 (1986) quoted 7 in Twombly, 550 U.S. at 555 , nor to “allegations that contradict matters properly subject to 8 judicial notice” or to material attached to or incorporated by reference into the complaint. 9 Sprewell v. Golden State Warriors, 266 F.3d 979 , 988–89 (9th Cir. 2001). A court’s 10 consideration of docu ments attached to a complaint or incorporated by reference or matter of 11 judicial notice will not convert a motion to dismiss into a motion for summary judgment. United 12 States v. Ritchie, 342 F.3d 903 , 907–08 (9th Cir. 2003); Parks Sch. of Bus. v. Symington, 51 F.3d 13 1480, 1484 (9th Cir. 1995); compare Van Buskirk v. Cable News Network, Inc., 284 F.3d 977 , 14 980 (9th Cir. 2002) (noting though a court may look beyond pleadings on a motion to dismiss, it 15 generally is limited to face of the complaint on 12(b)(6) motion). 16 III. DISCUSSION 17 A. Monell Municipal Liability (First Claim): City of Vacaville 18 In their motion to dismiss, defendants argue plaintiff has failed to plead sufficient 19 facts to allege an unconstitutional pattern or practice, ratification of an unconstitutional act or 20 inadequate training. MTD at 9–16. In opposition, plaintiff argues he has sufficiently alleged an 21 unconstitutional custom, policy or practice of using excessive force; specifically, he says that by 22 relying on information and belief, he has met applicable pleading standards. Opp’n at 8–10. 23 Under Monell, municipalities “are responsible only for their own illegal acts,” 24 Connick v. Thompson, 563 U.S. 51, 60 (2011) (emphasis in original) (citations, internal quotation 25 marks omitted). “They are not vicariously liable . . . for their employees’ actions.” Id. (citations 26 omitted). To successfully establish Monell liability, a plaintiff ultimately must show “‘(1) that 27 [he or she] possessed a constitutional right of which [he or she] was deprived; (2) that the 28 municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s 1 constitutional right; and (4) that the policy is the moving force behind the constitutional 2 violation.’” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (quoting Plumeau v. 3 Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). 4 Prior to the Supreme Court’s decisions in Twombly and Iqbal, supra, a claim for 5 county liability could “withstand a motion to dismiss ‘even if . . . based on nothing more than a 6 bare allegation that the individual officers’ conduct conformed to official policy, custom, or 7 practice.’” Karim-Panahi v. L.A. Police Dept., 839 F.2d 621 , 624 (9th Cir. 1988) (citing Shah v. 8 Cnty. of L.A. Intelligence & Coordination Unit, 797 F.2d 743, 747 (9th Cir. 1986)). In light of 9 Twombly and Iqbal, however, the Ninth Circuit has articulated a two-part test for use in 10 evaluating allegation s in a complaint or counterclaim: 11 First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the [12] elements of a cause of action, but must contain sufficient 13 allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. 14 Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not 15 unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. [16] 17 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2012). This court thus considers whether to dismiss 18 plaintiff’s claim of municipal liability under this heightened pleading standard. See Young v. City 19 of Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009) (“Iqbal has made clear that conclusory, 20 ‘threadbare’ allegations that merely recite the elements of a cause of action will not defeat a 21 motion to dismiss . . . . In light of Iqbal, it would seem that the prior Ninth Circuit pleading 22 standard for Monell claims (i.e. ‘bare allegations’) is no longer viable.”). 23 1. Policy or Custom 24 “Official . . . policy includes the decisions of a government’s lawmakers, the acts 25 of its policymaking officials, and practices so persistent and widespread as to practically have the 26 force of law.” Connick, 563 U.S. at 61 (citations omitted). “[A] custom or practice can be 27 inferred from widespread practices or evidence of repeated constitutional violations for which the [28] 1 errant municipal officers were not discharged or reprimanded.” Hunter v. Cty. of Sacramento, [2] 652 F.3d 1225, 1233 (9th Cir. 2011) (citations, internal quotation marks omitted). “[E]vidence of 3 inaction—specifically failure to investigate and discipline employees in the face of widespread 4 constitutional violations—can support an inference that an unconstitutional custom or practice has 5 been unofficially adopted by a municipality.” Id. at 1234 n.8 (emphasis omitted). 6 “To survive a motion to dismiss, ‘a bare allegation that government officials’ 7 conduct conformed to some unidentified government policy or custom’ is insufficient; instead, 8 plaintiffs’ complaint must include ‘factual allegations that . . . plausibly suggest an entitlement to 9 relief, such that it is not unfair to require the opposing party to be subjected to the expense of 10 discovery and contin ued litigation.’” Shelley v. Cty. of San Joaquin, 954 F. Supp. 2d 999 , 1009 11 (E.D. Cal. 2013) (quoting AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d at 637). 12 Here, plaintiff’s complaint does not include the factual allegations necessary to 13 support his claim that the City has an unconstitutional policy or custom of allowing its police 14 officers to use excessive force. Plaintiff alleges merely that the City “has a significant prior and 15 subsequent history of allowing its law enforcement officers to violate the rights of people […] 16 amounting to an official policy of approval and tolerance of that unlawful and unconstitutional 17 conduct.” FAC ¶ 46. He also alleges the City and other defendants “maintained policies or 18 customs exhibiting deliberate indifference to the constitutional rights of the citizens of CITY who 19 were victims of excessive force.” Id. ¶ 47. 20 In arguing his allegations are sufficient, plaintiff points to a previous case before 21 this court and against the City, Galvan v. City of Vacaville, No. 2:18-cv-279-KJM-CKD, 2018 22 WL 4214896 (E.D. Cal. Sept. 5, 2018) (granting in part and denying in part defendants’ motion to 23 dismiss plaintiff’s excessive force, failure to intercede, Monell claims and supervisory liability 24 claims). In Galvan, plaintiff alleged police officers from the City “silently crept up […] from 25 behind” and then “used physical force on Galvan [plaintiff] without warning.” Galvan, 2018 WL 26 4214896, at *1. Plaintiff argues these are similar to the allegations here, in which Officer 27 Alderton tackled him from behind. FAC ¶ 23. Plaintiff points out additional comparisons too: in [28] 1 both cases plaintiffs were charged with a violation of California Penal Code § 148(a), allegedly 2 “to cover up the excessive force and preclude civil liability.” Id. ¶ 31. 3 But with a closer inspection of the factual allegations in each case, the 4 comparisons fade. In Galvan, the plaintiff not only was grabbed from behind, but brought down 5 with a chokehold, held on the ground while an officer repeatedly punched him in the face, and 6 ultimately lost consciousness after being slammed into the concrete. Galvan, 2018 WL 4214896 , 7 at *1. Officers then turned off their body cameras, while one bragged to another officer that he 8 had “fucking socked him in the face like four times.” Id. That same officer was not disciplined 9 or retrained; he had been named Officer of the Year the year before. Id. While the facts as 10 alleged here are serio us, they are not similarly egregious. In this case, plaintiff was tackled from 11 behind, after putting his hands on one of the officers, and “shoved…with tremendous force” so he 12 fell on his face on the driveway. FAC ¶ 23. Officers then placed their knees and body weight on 13 him so that his “face, head, and neck” grinded into the asphalt. Id. ¶ 26 . When he was arrested he 14 was told “you don’t put your hands on police officers.” Id. ¶ 27 . In sum, the similarities between 15 this case and Galvan do not alone support allegations of “widespread practices or evidence of 16 repeated constitutional violations” such that the court may infer an unconstitutional policy or 17 custom. “Liability for improper custom may not be predicated on isolated or sporadic incidents; 18 it must be founded upon practices of sufficient duration, frequency and consistency that the 19 conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911 , 20 918 (9th Cir. 1996), modified on other grounds by Navarro v. Block, 250 F.3d 729 (9th Cir. 21 2001). 22 The court here follows other courts in this district, which have inferred an 23 unconstitutional policy or custom when the plaintiff provides multiple incidents of prior, similar 24 conduct, as opposed to the one previous incident plaintiff alleges here. See Estate of Alejandro 25 Sanchez v. Cty. of Stanislaus, No. 1:18-CV-0977-DAD-BAM, 2019 WL 1745868 (E.D. Cal. 26 Apr. 18, 2019) (holding plaintiffs’ complaint includes “sufficient factual allegations” to plausibly 27 allege the existence of a policy or custom of excessive force when plaintiffs pointed to at least 28 three prior cases involving similar facts and eventual settlement); see also Lemus v. Cty. of 1 Merced, No. 1:15-cv-00359-MCE-EPG, 2016 WL 2930523 , at *4 (E.D. Cal. May 19, 2016), 2 aff’d, 711 F. App’x 859 (9th Cir. 2017) (“[W]here more than a few incidents are alleged, the 3 determination appears to require a fully-developed factual record.”). Without additional 4 allegations of similar, prior incidents, plaintiff has not demonstrated he is entitled to relief under 5 an unconstitutional custom or policy theory of liability from Monell. 6 Accordingly, the court GRANTS defendants’ motion to dismiss plaintiff’s 7 municipal liability claim against the City for an unconstitutional custom or policy, but with leave 8 to amend if amendment is possible subject to the Federal Rule of Civil Procedure 11. 9 2. Ratification 10 Defen dants also assert plaintiff has failed to allege a ratification theory of liability 11 under Monell. MTD at 12–14; Reply at 11–12. Specifically, defendants state plaintiff’s 12 complaint “fails to show that any authorized policymaker knew of unconstitutional conduct […] 13 and approved [it]. Id. at 12–13 (emphasis in original). Plaintiff does not address defendants’ 14 arguments regarding the ratification theory in his opposition; he instead only points the court to 15 certain paragraphs in his complaint on this issue. Opp’n at 9 (citing FAC ¶¶ 31–32, 35–36, 41– 16 44, 55, 57, 61). 17 A plaintiff may claim Monell liability where an “official with final policy-making 18 authority ratified a subordinate’s unconstitutional decision or action and the basis for it.” Gillette 19 v. Delmore, 979 F.2d 1342 , 1346–47 (9th Cir. 1992). “A policymaker’s knowledge of an 20 unconstitutional act does not, by itself, constitute ratification.” Christie v. Iopa, 176 F.3d 1231 , 21 1239 (9th Cir. 1999). Furthermore, “a policymaker’s mere refusal to overrule a subordinate’s 22 completed act does not constitute approval.” Id. Rather, ratification requires the authorized 23 policymaker to make a “conscious, affirmative choice.” Gillette, 979 F.2d at 1347 . Ratification 24 “and thus the existence of a de facto policy or custom, can be shown by a municipality’s post 25 event conduct, including its conduct in an investigation of the incident.” Dorger v. City of Napa, 26 No. 12-cv-440 YGR, 2012 WL 3791447 , at *5 (N.D. Cal. Aug. 31, 2012) (emphasis in original) 27 (citing Henry v. Cty. of Shasta, 132 F.3d 512 , 518 (9th Cir. 1997)). In addition to establishing 28 ratification occurred, a plaintiff must also show that the ratification was (1) the cause in fact, and 1 (2) the proximate cause of the constitutional deprivation. Arnold v. Int’l Bus. Machines Corp., [2] 637 F.2d 1350, 1355 (9th Cir. 1981). 3 a) Final Policymaker 4 Whether an official is a policymaker for Monell purposes is a question governed 5 by state law. City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988). “‘Authority to make 6 municipal policy may be granted directly by a legislative enactment or may be delegated by an 7 official who possesses such authority, and of course, whether an official had final policymaking 8 authority is a question of state law.’” Id. (quoting Pembaur v. Cincinnati, 475 U.S. 469 , 483 9 (1986) (plurality opinion)). 10 Here, plaintiff has not identified a final policymaker. Instead, plaintiff pleads 11 unconstitutional actions or omissions were “ratified by final policymakers” for the City. FAC 12 ¶ 41. Although plaintiff later alleges “details of this incident have been revealed to the authorized 13 policy makers with the CITY and VVPD including CHIEF,” id. ¶ 42, plaintiff has not identified 14 who served as a final policymaker under state law. Compare FAC ¶¶ 41–44, with Larez v. City 15 of Los Angeles, 946 F.2d 630, 633, 646 (9th Cir. 1991) (observing from record that chief of police 16 was “an official policymaker for the City on police matters”). Plaintiff has not sufficiently 17 pleaded this essential aspect of a ratification theory. 18 b) Ratification of the Basis for the Actions 19 A plaintiff must also plead that a final policymaker both “ratified a subordinate’s 20 unconstitutional decision or action and the basis for it.” Gillette, 979 F.2d at 1346–47. 21 As noted above, ratification requires the authorized policymaker to make a “conscious, 22 affirmative choice.” Id. at 1347. For example, in Ellins v. City of Sierra Madre, 710 F.3d 1049 , 23 1053 (9th Cir. 2013), the plaintiff alleged the chief of police delayed a salary increase for plaintiff 24 in retaliation for plaintiff’s exercising his First Amendment rights. The Ninth Circuit concluded 25 the city manager, not the chief of police, “was the city’s final policymaker,” where the manager 26 approved the chief of police’s decision to delay. Id. at 1066 . And plaintiff has not alleged the 27 city manager “knew that the decision was in retaliation for protected speech” or that the city 28 manager “ratified the decision despite such knowledge.” Id. 1 Here, plaintiff’s allegations are essentially legal conclusions. Though plaintiff has 2 alleged that Chief Carli engaged in conduct reflecting a policy or practice of “ratif[ying] the 3 unconstitutional acts of the individual defendant officers” and “approved of the excessive use of 4 force,” id. ¶ 43, plaintiff has not sufficiently pleaded facts showing a final policymaker’s approval 5 or ratification involving a “conscious, affirmative choice” and knowledge of the excessive force 6 used by defendant officers. See Gillette, 979 F.3d at 1347. Plaintiff does allege Chief Carli 7 dismissed plaintiff’s internal complaint, while stating his “inquiry revealed no evidence of 8 misconduct on the part of the officer(s).” FAC ¶ 35. Ratification requires more than mere 9 approval, however, and here Chief Carli’s failure to discipline the officers is not sufficient by 10 itself to constitute rat ification of their actions. See Ellins, 710 F.3d at 1066 . 11 The court GRANTS defendants’ motion to dismiss plaintiff’s municipal liability 12 cause of action based on a ratification theory of liability, but with leave to amend to the extent 13 possible. 14 3. Failure to Train or Supervise 15 Defendants argue plaintiff also fails to state a municipal liability claim based on 16 inadequate training. MTD at 14–15; Reply at 13–14. They contend plaintiff’s complaint “is 17 devoid of facts showing what the CITY’s training programs were, prior similar acts or any basis 18 to show the need for more or different training was so obvious, and the alleged inadequacy so 19 likely to result in constitutional violations.” MTD at 14. Plaintiff asserts simply he pleaded 20 “surplus facts” to state a claim based on inadequate training against the City and then points the 21 court to those parts of his complaint. Opp’n at 9 (citing FAC ¶¶ 36,38,40,43, 46, 53, 54, 56, 5822 61). 23 To impose liability on a local government for failure to adequately train its 24 employees, the government’s omission must amount to “deliberate indifference” to a 25 constitutional right. This standard is met when “the need for more or different training is so 26 obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the 27 policymakers of the city can reasonably be said to have been deliberately indifferent to the [28] 1 need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989). For example, if police actions in the 2 course of arresting fleeing felons “so often violate constitutional rights that the need for further 3 training must have been plainly obvious to the city policymakers,” then the city’s failure to train 4 may constitute “deliberate indifference.” Id. at 390 n.10 (addressing policy allowing police shift 5 commanders discretion to decide whether detained person required medical care, without special 6 training to make the determination, in case involving woman clearly suffering a variety of mental 7 health issues who did not receive timely care). “Only where a failure to train reflects a 8 ‘deliberate’ or ‘conscious' choice by a municipality—a ‘policy’ as defined by our prior cases— 9 can a city be liable for such a failure under § 1983.” Id. at 389. And only under such 10 circumstances does t he failure to train constitute “a policy for which the city is responsible, and 11 for which the city may be held liable if it actually causes injury.” Id. at 390. 12 Here, plaintiff has alleged a pattern of defendants’ having ignored prior instances 13 of constitutional violations although “the need for further training was plainly obvious,” saying 14 defendants “were deliberately indifferent to the need for further training.” FAC ¶ 56. To 15 demonstrate defendants’ deliberate indifference, plaintiff alleges defendants approved and 16 reviewed reports from officers while “knowing the use of force and/or the other actions of the 17 officers was unconstitutional.” Id. ¶ 56. Plaintiff has not, however, supported these allegations 18 with details of defendants’ knowingly reviewing reports describing unconstitutional actions by 19 employees. See Coe v. Schaeffer, No. 2:13-CV-00432-KJM-CK, 2014 WL 1513305 , at *4 (E.D. 20 Cal. Apr. 11, 2014) (denying motion to dismiss second amended complaint where plaintiffs 21 alleged in part “defendants knew or should have known of complaints against [defendant officer] 22 for similar conduct as in this case ‘because other citizens had made verbal and written complaints 23 against [defendant officer]’ . . . and defendants told [defendant officer] Schaeffer that despite the 24 complaints, only ‘a perfunctory investigation would be performed,’ Schaeffer ‘would be 25 exonerated,’ and she would not be punished” in contrast to the previously dismissed complaint’s 26 “single allegation of a ‘history of misconduct’”); Malott v. Placer Cty., No. 2:14-CV-1040-KJM27 EFB, 2014 WL 6469125 , at *7 (E.D. Cal. Nov. 17, 2014) (“[P]laintiff has not identified any 28 policies regarding supervision and training, explained how they are deficient, or suggested how 1 they led to his injuries.”). These allegations, which do not even identify when purportedly similar 2 conduct occurred, do not reveal a “pattern of similar constitutional violations by untrained 3 employees.” Flores v. Cty. of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014) (quoting 4 Connick, 141 S. Ct. at 160 (additional citations omitted)). To plead such a pattern, plaintiff must 5 provide more than “isolated incidents of criminal wrongdoing.” Id. 6 Plaintiff here does not point the court to any specific incidents in which defendants 7 “approved and reviewed reports from subordinate officers,” despite those reports describing 8 unconstitutional actions. As a result, plaintiff has not stated a plausible claim for relief based on 9 inadequate training. 10 The c ourt GRANTS defendants’ motion to dismiss plaintiff’s municipal liability 11 claim against the City for failure to train or supervise, but with leave to amend if possible. 12 B. Supervisory Liability (First Claim): Chief Carli and Officer Welter 13 Defendants argue plaintiffs also fail to plead sufficient facts to proceed on their 14 claim Chief Carli and Officer Welter should face supervisory liability under 42 U.S.C. § 1983 . 15 MTD at 15–16. In opposition here as well, plaintiff simply points to paragraphs in the operative 16 complaint, which he contends provide sufficient facts to state a supervisory liability claim. 17 Opp’n at 9 (citing to FAC ¶¶ 4, 36, 50-69). 18 “A supervisory official is liable under § 1983 so long as there exists either (1) his 19 or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection 20 between the supervisor’s wrongful conduct and the constitutional violation.’” Rodriguez v. Cty. 21 of Los Angeles, 891 F.3d 776, 798 (9th Cir. 2018) (citing Keates v. Koile, 883 F.3d 1228 , 1242– 22 43 (9th Cir. 2018)). The requisite causal connection is established “by setting in motion a series 23 of acts by others or by knowingly refus[ing] to terminate a series of acts by others, which [the 24 supervisor] knew or reasonably should have known would cause others to inflict a constitutional 25 injury.” Id. (alteration in original) (quoting Starr, 652 F.3d at 1207–08). Therefore, “[a] 26 supervisor can be liable in his individual capacity for his own culpable action or inaction in the 27 training, supervision, or control of his subordinates; for his acquiescence in the constitutional [28] 1 deprivation; or for conduct that showed a reckless or callous indifference to the rights of others.” 2 Starr, 652 F.3d at 1208 (citing Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.1998)). 3 1. Chief Carli 4 The operative complaint is devoid of factual allegations that Chief Carli was 5 personally involved in, knew of or refused to interject himself in the actions of his subordinate 6 officers in a way that caused the infringement of plaintiff’s constitutional rights. Plaintiff does 7 allege Chief Carli created a “policy and practice to deny any wrongdoing and fail to discipline 8 law enforcement officers for their wrongdoings,” and failed to ensure proper training and 9 supervision of officers regarding the correct level of force to use in responding to calls for 10 service. FAC ¶¶ 36, 50. These allegations are conclusory, with plaintiff pleading only in the 11 most general terms that Chief Carli knew or should have known his subordinate officers engaged 12 in conduct giving rise to the deprivations plaintiff claims here. 13 Plaintiff does allege he received a letter on or about March 22, 2018, which Chief 14 Carli signed, and which dismissed plaintiff’s complaint because the “inquiry revealed no evidence 15 of misconduct on the part of the officer(s).” Id. ¶ 35. However, pointing to a signed letter 16 dismissing plaintiff’s complaint does not explain whether or how Chief Carli was involved in the 17 alleged incident or failed to “terminate a series of acts by others.” See OSU Student All. v. Ray, [18] 699 F.3d 1053, 1070 (9th Cir. 2012) (“Iqbal emphasizes that a constitutional tort plaintiff must 19 allege that every government defendant—supervisor or subordinate—acted with the state of mind 20 required by the underlying constitutional provision.”). 21 The allegations lack the factual support necessary for a viable supervisory liability 22 claim to survive dismissal at this stage. The prisoner civil rights action of Quezada v. McDowell 23 is instructive In Quezada, the court denied defendants’ motion to dismiss plaintiff’s supervisory 24 liability claim where plaintiff alleged he repeatedly notified the supervising defendant about 25 subordinate defendants’ “systematic retaliations against Plaintiff, yet [the supervisor] failed to 26 act.” No. 5:18-CV-00251-VBF-MAA, 2019 WL 3806406 , at *7 (C.D. Cal. July 10, 2019), report 27 and recommendation adopted, No. EDCV 18-00251-VBF-MAA, 2019 WL 3802190 (C.D. Cal. 28 Aug. 12, 2019). Plaintiff also alleged the supervisor’s failure to act led to retaliation against him 1 because it further emboldened the subordinate’s retaliatory behavior. Id. Finally, plaintiff cited a 2 specific instance of defendant’s refusal to reprimand his subordinates after plaintiff notified 3 defendant and his attorney of the offending conduct. Id.; see also Reed v. Paramo, No. 18-CV- 4 361 JLS (LL), 2019 WL 398339 , at *10 (S.D. Cal. Jan. 31, 2019) (finding plaintiff sufficiently 5 pled supervisory liability claim where plaintiff and others had lodged complaints against 6 subordinate defendant’s retaliatory behavior, and defendant’s refusal to act created policy of 7 allowing retaliatory conduct by its officers). 8 The complaint, at this stage, contains little more than bare recitals and conclusory 9 allegations of Chief Carli’s connection to the alleged wrongful conduct. The court GRANTS 10 defendants’ motion t o dismiss the supervisory liability claim against Chief Carli, with leave to 11 amend. 12 2. Officer Welter 13 Whether plaintiff has included sufficient factual allegations to pursue supervisory 14 liability against Officer Welter is less clear than plaintiff’s utter failure with respect to Chief 15 Carli. Plaintiff’s complaint lacks factual allegations regarding Officer Welter’s personal 16 involvement in a way that deprived plaintiff of his constitutional rights; the complaint does not 17 allege Officer Welter was present at plaintiff’s home on October 8, 2017, when defendants 18 allegedly used excessive force against him. However, plaintiff has pled a causal connection 19 between Officer Welter’s “action and omissions” and constitutional deprivations effected by the 20 responding officers with greater particularity. 21 Specifically, plaintiff’s supervisory liability claim against Officer Welter rests on 22 Officer Welter’s role as the direct supervisor of Officers Hardwick and Alderton. FAC ¶ 32. In 23 that capacity, Officer Welter approved Officers Hardwick and Alderton’s summary of the 24 incident on or about “October 7 [sic], 2017,” even after Welter “purposely and/or negligently 25 failed to investigate the accuracy of the reports,” “knowing the reports contained false 26 information.” Id. To support his allegation Officer Welter knew the report contained false 27 information, plaintiff claims the following: (1) plaintiff “personally reported to WELTER during 28 an interview on the date of the incident that he had been assaulted,” and; (2) several officers wore 1 body cameras containing footage from October 8, 2017, which showed plaintiff did not 2 “advance” on Officer Hardwick. Id. ¶ 31 . 3 Taking these allegations as true, they support an inference Officer Welter should 4 have reviewed Officers Hardwick and Alderton’s description of their actions skeptically. 5 Plaintiff’s allegations of his conversation with Officer Welter, along with existence of body 6 camera footage, also provide some basis for inferring Officer Welter knew or should have known 7 about the alleged constitutional deprivations. These factual allegations are more specific than 8 those attempting to connect Chief Carli to the constitutional deprivations by virtue of the Chief’s 9 signing the dismissal of plaintiff’s internal police complaint. At the same time, as defendants 10 argue, by themselves , facts showing Officer Welter’s “alleged wrongful after-the-fact approval of 11 the officers’ incident reports” do not sufficiently plead a “causal connection” to the alleged 12 constitutional violation, “which was already completed” when Officer Welter became aware of 13 the incident. Reply at 14 (citing FAC ¶¶ 31–32 and Starr, 652 F.3d at 1207, among other cases). 14 Rather, plaintiff must also plead facts demonstrating the supervisor had knowledge of similar 15 constitutional violations prior to the constitutional violations at issue in the case, and yet failed to 16 act. Plaintiff has not provided such allegations here. 17 The court GRANTS defendants’ motion to dismiss the supervisory liability claim 18 against Officer Welter, with leave to amend if possible. 19 C. Negligence (Fifth Claim): Chief Carli 20 Lastly, defendants argue plaintiff failed to state a claim of negligence against Chief 21 Carli because he did not plead any facts demonstrating Chief Carli was the actual or proximate 22 cause of plaintiff’s injuries. MTD at 16; Reply at 15. In response, plaintiff contends Chief 23 Carli’s own actions and omissions support a direct negligence claim. Opp’n at 10 (citing FAC 24 ¶¶ 4, 36, 50–69). 25 With claims of negligence, a plaintiff ultimately must establish “[t]he traditional 26 elements of duty, breach of duty, causation and damages.” Burgess v. Superior Court, 2 Cal. 4th 27 1064, 1072 (1992). “Whether a defendant owes a duty of care is a question of law.” Id. On 28 causation, negligence under California law involves “proximate cause,” which is “‘a policy-based 1 legal filter on but for causation’ that courts apply ‘to those more or less undefined considerations 2 which limit liability even where the fact of causation is clearly established.’” Vons Companies, 3 Inc. v. Seabest Foods, Inc., 14 Cal. 4th 434, 464 (1996) (citations omitted). 4 As set forth above with respect to plaintiff’s supervisory liability claims against 5 Chief Carli, plaintiff does not provide factual allegations sufficient to show Chief Carli’s personal 6 involvement in the alleged deprivations or a causal connection between his alleged acts or 7 omissions and the alleged deprivations. Similarly with his negligence claim, plaintiff has failed 8 to plead Chief Carli’s alleged actions or omissions were the proximate cause of plaintiff’s alleged 9 injuries. 10 The c ourt GRANTS defendants’ motion to dismiss plaintiff’s negligence claim 11 against Chief Carli, with leave to amend if possible. 12 IV. CONCLUSION 13 For the foregoing reasons, the court orders defendants’ motion to dismiss is 14 GRANTED, with the following claims dismissed as set forth below: 15 1. Municipal liability claim against the City based on an unconstitutional custom 16 or practice, with leave to amend (claim 1); 17 2. Municipal liability claim against the City, based on a ratification theory of 18 liability, with leave to amend (claim 1); 19 3. Municipal liability claim against the City, based on a failure to train its 20 personnel, with leave to amend (claim 1); 21 4. Supervisory liability claim against Chief Carli, with leave to amend (claim 1); 22 5. Supervisory liability claim against Officer Welter, with leave to amend (claim 23 1); and 24 6. Negligence claim against Chief Carli, with leave to amend (claim 5). 25 Plaintiff shall have 21 days from the date of this order to file any amended 26 complaint. 27 ///// 28 ///// 1 This order resolves ECF No. 10. 2 IT IS SO ORDERED. 3 DATED: January 11, 2021.