Estate of Gabriel Strickland v. Nevada County

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 ESTATE OF GABRIEL STRICKLAND, No. 2:21-cv-00175-MCE-AC N.S., et al., [12] Plaintiffs, 13 MEMORANDUM AND ORDER v. [14] NEVADA COUNTY, CALIFORNIA, 15 OPERATOR OF THE NEVADA COUNTY SHERIFF’S OFFICE, et al., [16] Defendants. [17] 18 Through this action, the Estate of Gabriel Strickland, N.S., and Shawna Alexander 19 (“Plaintiffs”) seek to recover damages from Nevada County, Sheriff Shannon Moon 20 (“Sheriff Moon” or “Moon”), Deputy Taylor King (“King”), Deputy Brandon Tripp (“Tripp”), 21 Officer Joseph McCormack (“McCormack”), the City of Grass Valley, Chief Alex 22 Gammelgard (“Gammelgard”), Officer Brian Hooper (“Hooper”), Officer Dennis Grube 23 (“Grube”), and Officer Conrad Ball (“Ball”) (“Defendants”).1 Plaintiff’s Complaint alleges 24 twenty-five (25) causes of action under federal and state law. ECF No. 1. Presently 25 before the Court are four motions to dismiss: Defendant Nevada County (ECF No. 14); 26 Defendant Grass Valley (ECF No. 16); Defendants Moon, King, Tripp, and McCormack 27 1 Plaintiffs also bring suit against Wellpath Management Inc. (“Wellpath”), Brent Weldemere, and Richard Donofrio. These parties have elected to file answers (ECF Nos. 13, 46, 47, respectively) to the 28 Complaint. 1 (ECF No. 27); Defendants Gammelgard, Hooper, Grube, and Ball (ECF No. 30).2 2 Defendant Nevada City has joined Grass Valley in the arguments and relief requested 3 for Claims Seventeen and Eighteen. ECF No. 21. For the reasons that follow, 4 Defendants’ Motions are GRANTED in part, DENIED in part. [5] 6 BACKGROUND3 [7] 8 A. Officer-Involved Shooting 9 On January 1, 2020, at approximately 12:46 p.m., Nevada County Region 10 Dispatch (“Dispatch”) received reports that a man was walking on Squirrel Creek Road 11 with "what appeared to be a shotgun," but he did not appear to be upset. The man was 12 25-year-old Gabriel Strickland (“Strickland”), and he was carrying a black airsoft rifle with 13 an orange tip.4 Responding to the call, two deputies from the Nevada County Sheriff’s 14 Office (“NCSO”) (King and Tripp) met with officers from the Grass Valley Police 15 Department (“GVPD”) (Hooper, Grube, and/or Ball) near the intersection of Squirrel 16 Creek Road and Rough & Ready Highway. Plaintiffs allege that these law enforcement 17 officers (“LEOs”) knew that Strickland was a homeless man with mental health issues, 18 and that he had been released from custody of the local county jail (Wayne Brown 19 Correctional Facility, ”WBCF”) a day or two before. Plaintiffs allege that the LEOs 20 consequently “knew that it was likely Gabriel Strickland was suffering from a mental 21 health episode and was probably unable to respond to their commands or directions in a 22 normal or expected manner.” Compl. ¶ 33. 23 /// [24] 2 Because oral argument would not have been of material assistance, the Court ordered this 25 matter submitted on the briefs. See E.D. Cal. Local Rule 230(g). 3 The facts alleged are taken from the Complaint, ECF No. 1. [26] 4 Plaintiffs aver that an orange tip signals that a gun is a replica, not a real firearm. See Compl. [27] ¶ 26. Federal and California laws regulate the manufacture of airsoft guns and require them to include “blaze orange” parts to distinguish them from real firearms. See 15 U.S.C. § 5001 (b)(1); Cal. Penal Code 28 § 16700(b)(4)(B). 1 According to the Complaint, the LEOs formulated a plan to confront Strickland 2 without the assistance of mental health professionals or non-violent de-escalation 3 techniques. Instead, Plaintiffs aver, the objective was simply to use overwhelming force. 4 This plan was communicated to Dispatch with sufficient time for Sheriff Moon to have 5 considered its implications prior to the plan’s ultimate implementation. 6 Strickland continued to walk along eastbound on Squirrel Creek Road past Oak 7 Super Market, then southbound on Walker Drive for 10 to 15 minutes with the replica 8 firearm slung over his shoulder. Plaintiffs allege that there were no reports of Strickland 9 brandishing the gun, threatening anyone, or presenting a threat to public safety. The 10 aforementioned LEOs confronted Strickland near Walker Drive and Oak Street in the 11 unincorporated area of the County of Nevada, California, surrounding him with patrol 12 vehicles and pointing firearms at him from approximately 30 feet away. 13 The LEOs commenced to yell commands at Strickland to drop the firearm. 14 Strickland responded by holding the replica firearm away from his body and telling the 15 officers it was a “B.B. gun.” Strickland purportedly slapped the gun with his hand, 16 demonstrating the sound of plastic instead of metal. One of the LEOs on scene radioed 17 Dispatch: “He’s saying it’s a B.B. gun.” Id. ¶ 42. As the LEOs continued to yell 18 commands to drop the weapon, Strickland pointed to the orange tip on the barrel of the 19 gun to demonstrate that it was a replica, not a real firearm. One of the LEOs responded 20 that Strickland may have painted that himself, and that the LEOs did not want to kill him. 21 Plaintiffs allege that Strickland kept the replica firearm pointed at the ground, and he did 22 not threaten anyone during the encounter. 23 During the encounter, the LEOs formulated a plan to approach Strickland. Three 24 officers approached Strickland, two armed with rifles and one with a Taser device. As 25 they advanced, Plaintiffs concede that Strickland “continued to hold the toy gun, 26 sometimes pointing it in the direction of [the LEOs] and at other times pointing it up 27 towards the sky.” Id. ¶ 60. Hooper discharged his Taser, but it failed to effectively 28 connect with Strickland, rendering it ineffective. Other officers then fired their weapons 1 at Strickland, striking him several times. He was later taken to a local hospital, where he 2 was pronounced dead. 3 B. Previous Medical Treatment 4 Plaintiffs further allege that the NCSO and Wellpath5 were fully aware of 5 Strickland’s existing mental health issues, as they had provided medical and mental 6 health care to him on several prior occasions when Strickland was in custody at WBCF. 7 In early 2016, doctors at Wellpath diagnosed Strickland with bipolar disorder, PTSD, and 8 anxiety disorder. Subsequently, Strickland was in the custody of WBCF on at least two 9 other prior occasions, yet NCSO and Wellpath did not provide Strickland with further 10 mental health exams, mental health care, nor refer Strickland to Nevada County’s 11 Behavioral Health Department or a third-party mental health provider. 12 On December 26, 2019 (only days before the incident giving rise to the instant 13 matter), Strickland was arrested and taken to WBCF, where he was booked and 14 incarcerated. NCSO and Wellpath performed a physical and mental illness welfare 15 check and noted that Strickland urgently needed a mental health evaluation. While in 16 custody from approximately December 26, 2019, to December 28, 2019, NCSO 17 continued to monitor Strickland. Plaintiffs allege that these Defendants observed 18 unusual conduct and verbal expressions indicating serious active mental health issues, 19 yet they took no further action, such as placing him on an involuntary hold under 20 California’s Welfare & Institution’s Code §§ 5000 et seq. (notably § 5150). Strickland 21 was released from custody on or about December 28, 2019. [22] 23 STANDARD [24] 25 On a motion to dismiss for failure to state a claim under Federal Rule of Civil 26 Procedure (“FRCP”) 12(b)(6), all allegations of material fact must be accepted as true [27] 5 Wellpath, per Plaintiffs, provided contract medical services to Defendant Nevada County at the 28 WBCF at all relevant times to this complaint. See Compl. ¶ 18. 1 and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. 2 Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and 3 plain statement of the claim showing that the pleader is entitled to relief’ in order to ‘give 4 the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” 5 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, [6] 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss 7 does not require detailed factual allegations. However, “a plaintiff’s obligation to provide 8 the grounds of his entitlement to relief requires more than labels and conclusions, and a 9 formulaic recitation of the elements of a cause of action will not do.” Id. (internal citations 10 and quotation marks omitted). A court is not required to accept as true a “legal 11 conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 12 (quoting Twombly, 550 U.S. at 555 ). “Factual allegations must be enough to raise a right 13 to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan 14 Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating 15 that the pleading must contain something more than “a statement of facts that merely 16 creates a suspicion [of] a legally cognizable right of action”)). 17 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 18 assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and 19 quotation marks omitted). Thus, “[w]ithout some factual allegation in the complaint, it is 20 hard to see how a claimant could satisfy the requirements of providing not only ‘fair 21 notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing 22 Wright & Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a 23 claim to relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not 24 nudged their claims across the line from conceivable to plausible, their complaint must 25 be dismissed.” Id. However, “[a] well-pleaded complaint may proceed even if it strikes a 26 savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very 27 remote and unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232 , 236 28 (1974)). 1 A court granting a motion to dismiss a complaint must then decide whether to 2 grant leave to amend. Leave to amend should be “freely given” where there is no 3 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 4 to the opposing party by virtue of allowance of the amendment, [or] futility of the 5 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. 6 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 7 be considered when deciding whether to grant leave to amend). Not all of these factors 8 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . 9 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183 , 10 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that 11 “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, 12 Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006 , 13 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149 , 1160 (9th Cir. 14 1989) (“Leave need not be granted where the amendment of the complaint . . . 15 constitutes an exercise in futility . . . .”)). [16] 17 ANALYSIS [18] 19 A. Claims Two, Ten, and Twenty through Twenty-Four (Moon) 20 Defendant Moon argues that to the extent Plaintiffs’ claims (as made in Claims 21 Two, Ten, and Twenty through Twenty-Four, are being pursued against her official 22 capacity as Sheriff, those claims are redundant and improper. Plaintiffs have clarified in 23 opposition, however, that these claims are brought against Sheriff Moon only in her 24 individual capacity. See Opp’n, ECF No. 34, at 2. Given that concession, Defendant 25 Moon’s Motion as to said claims is DENIED as moot. 26 /// 27 /// 28 /// 1 B. Claims Four and Twelve: Monell (Excessive Force) 2 1. Nevada County 3 Plaintiffs assert Monell claims against Defendant Nevada County based on 4 inadequate policies, practices, and procedures in interacting with mentally ill or impaired 5 persons; a failure to train and supervise the use of force against such persons; and a 6 failure to investigate deputies who use excessive force. Defendant insists that Plaintiffs 7 fail to state a claim. 8 Municipalities and local officials cannot be vicariously liable for the conduct of 9 their employees under § 1983, but rather are only “responsible for their own illegal acts.” 10 Connick v. Thompson, 563 U.S. 51, 60 (2011) (citing Monell v. New York City 11 Department of Social Services, 436 U.S. 658, 665-83 (1978)). In other words, a 12 municipality may only be liable where it individually caused a constitutional violation via 13 “execution of government’s policy or custom, whether by its lawmakers or by those 14 whose edicts or acts may fairly be said to represent official policy.” Monell, 436 U.S. at 15 694. A local government may be liable for an injury under § 1983 under three possible 16 theories: (1) when execution of official policies or established customs inflict a 17 constitutional injury; (2) when omissions or failures to train amount to a local government 18 policy of “deliberate indifference” to constitutional rights; or (3) when a local government 19 official with final policy-making authority ratifies a subordinate’s unconstitutional conduct. 20 See Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 802-03 (9th Cir. 2018). 21 The Supreme Court has made clear that Plaintiffs may not merely state that a 22 municipal employee wronged them to achieve success on a Monell claim: “Where a 23 plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless 24 has caused an employee to do so, rigorous standards of culpability and causation must 25 be applied to ensure that the municipality is not held liable solely for the actions of its 26 employee.” Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 405 (1997) 27 (emphasis added). Following Twombly and Iqbal, the Ninth Circuit Court of Appeals held 28 that Monell plaintiffs must provide allegations that are not mere recitations of the 1 elements of such a claim, and such facts must plausibly suggest entitlement to relief. AE 2 ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012); see, e.g., 3 Dougherty v. City of Covina, 654 F.3d 892, 900-01 (9th Cir. 2011). 4 As to Plaintiffs’ claims here regarding Defendant Nevada County’s policies, 5 practices, and procedures, the assertions are vacuous and entirely conclusory. See 6 Compl. ¶¶ 112-115, 189-192. Plaintiffs broadly offer that Defendant should have 7 instituted different policies, such as calling a “mental health professional or professional 8 negotiator” to scenes where deputies are dealing with mentally ill individuals. Id. ¶ 71; 9 see Opp’n, ECF No. 22, at 7. Plaintiffs are unclear as to how this amounts to a policy at 10 all, and certainly as to how such a policy caused a constitutional injury. See Connick v. 11 Thompson, 563 U.S. 51 , 68 (2011) (“[S]howing merely that additional training would 12 have been helpful in making difficult decisions does not establish municipal liability.”); 13 Kollin v. City of Tehachapi, No. 1:18-CV-00617-LJO-JLT, 2018 WL 4057491 , at *5 (E.D. 14 Cal. Aug. 24, 2018) (granting a motion to dismiss despite “a grab bag of allegations 15 concerning” the defendant city’s policies where “[n]one of the[] allegations [were] 16 supported with facts”); cf. at *5-6 (discussing viable Monell claims). 17 Because Plaintiffs are not arguing the existence of a formal governmental policy, 18 they “must show a longstanding practice or custom which constitutes the standard 19 operating procedure of the local government entity,” and the “custom must be so 20 persistent and widespread that it constitutes a permanent and well settled [municipal] 21 policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (cleaned up). They fail to 22 meet this formidable standard. 23 Plaintiffs offer two previous instances of Defendant’s deputies “using excessive 24 force against person [sic] with mental disability or substance impairment,” both involving 25 the same deputy using force in the county jail. Compl. ¶¶ 74-75. One of the incidents 26 resulted in a settlement and the other in criminal charges against the deputy. See id. 27 Plaintiffs do not allege that the particular officer was involved in this incident, but more 28 generally assert that the NCSO never corrected “the problems exemplified” by these 1 events. Id. ¶ 76. These failures, Plaintiffs aver, proximately caused the shooting death 2 of Strickland in the instant matter. Id. ¶ 78. 3 “Liability for improper custom may not be predicated on isolated or sporadic 4 incidents; it must be founded upon practices of sufficient duration, frequency and 5 consistency that the conduct has become a traditional method of carrying out policy.” 6 Trevino, 99 F.3d at 918 ; see City of Oklahoma City v. Tuttle, 471 U.S. 808 , 823-24 7 (1985). Plaintiffs’ proffered incidents fail to demonstrate such required duration, 8 frequency, or consistency. Plaintiffs go on to offer in opposition, without evidence, that 9 some of the unnamed deputies in the aforementioned jail events may be named 10 defendants in this action. See Opp’n, ECF No. 22, at 9; cf. Hunter v. Cnty. of 11 Sacramento, 652 F.3d 1225, 1233 (9th Cir.2011) (“[A] custom or practice can be inferred 12 from widespread practices or evidence of repeated constitutional violations for which the 13 errant municipal officers were not discharged or reprimanded.”); Kidwell-Bertagnolli v. 14 Cty. of Sonoma, No. 20-CV-03291-JSC, 2020 WL 4901197 , at *6 (N.D. Cal. Aug. 20, 15 2020) (finding it compelling that involved officers had “failed exams” on “how to handle 16 persons with mental health problems,” in addition to a history of custodial suicides). 17 Such unsupported allegations do not save the claim. 18 Finally, Plaintiffs are correct that the Supreme Court has found that a single 19 occurrence could demonstrate a municipality’s deliberate indifference to constitutional 20 violations. See Opp’n, ECF No. 22, at 9-10; City of Canton, Ohio v. Harris, 489 U.S. 21 378, 390 (1989); but see Connick, 563 U.S. at 67 (“The Canton hypothetical assumes 22 that the armed police officers have no knowledge at all of the constitutional limits on the 23 use of deadly force.”). However, despite Plaintiffs’ assertions that the constitutional 24 violations here were “so obvious,” repeated proclamations do not make something true. 25 Nor do unenlightened analogies, such as comparing this officer-involved shooting — 26 which involved a prolonged stand-off, multiple ignored verbal commands, and the 27 attempted use of a less-lethal device — to “taking out a terrorist in Iraq.” See Opp’n, 28 ECF No. 22, at 8. 1 For the reasons stated above as to lack of support, Plaintiffs’ claims as related to 2 a failure to train and ratification likewise fail. Plaintiffs’ Fourth and Twelfth Claims as to 3 Defendant Nevada County are DISMISSED with leave to amend. 4 2. Grass Valley 5 Plaintiffs also assert Monell claims against Defendant Grass Valley based on 6 inadequate policies, practices, and procedures in interacting with mentally ill or impaired 7 persons; a failure to train and supervise the use of force against such persons; and a 8 failure to investigate officers who use excessive force. Defendant avers that Plaintiffs fail 9 to plead an underlying constitutional violation or, in the alternative, Plaintiffs fail to state a 10 claim. “Monell claims . . . require a plaintiff to show an underlying constitutional 11 violation.” Lockett, 977 F.3d at 741. 12 Plaintiffs assert that Defendant Grass Valley and its officers violated the 13 constitutional rights of Strickland in the course of this officer-involved shooting. Law 14 enforcement use of force is analyzed under the Fourth Amendment’s objective 15 reasonableness standard. Graham v. Connor, 490 U.S. 386, 395, 397 (1989); see 16 Scott v. Harris, 550 U.S. 372, 383 (2007) (holding that this analysis does not change for 17 deadly force). The facts and circumstances of each case will consider “the severity of 18 the crime at issue, whether the suspect poses an immediate threat to the safety of the 19 officers or others, and whether he is actively resisting arrest or attempting to evade 20 arrest by flight.” Graham, 490 U.S. at 396 . While these factors are not exhaustive, the 21 most important “is whether the suspect posed an immediate threat.” Zion v. Cty. of 22 Orange, 874 F.3d 1072, 1075 (9th Cir. 2017). The Supreme Court has consistently 23 reminded lower courts that this analysis “must be judged from the perspective of a 24 reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, [25] 490 U.S. at 396 . “An officer’s use of deadly force is reasonable only if the officer has 26 probable cause to believe that the suspect poses a significant threat of death or serious 27 physical injury to the officer or others.” Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994) 28 (citing Tennessee v. Garner, 471 U.S. 1, 3 (1985)) (cleaned up). 1 The fact that a suspect is armed with a weapon does not render an officer’s use of 2 deadly force “per se reasonable under the Fourth Amendment.” George v. Morris, [3] 736 F.3d 829, 838 (9th Cir. 2013). However, when “an individual points his gun in the 4 officer’s direction, the Constitution undoubtedly entitles the officer to respond with deadly 5 force.” Id. (cleaned up); see also Long v. City & Cnty. of Honolulu, 511 F.3d 901 , 906 6 (9th Cir. 2007). Here, Plaintiffs cannot escape the fact that “Strickland continued to hold 7 the toy gun, sometimes pointing it in the direction of Defendants . . . .” Compl. ¶ 60 8 (emphasis added). 9 That the firearm turned out to be a replica is irrelevant. See, e.g., Penley v. 10 Eslinger, 605 F.3d 843, 851-54 (11th Cir. 2010).6 Plaintiffs’ repeated use of the 11 nomenclature “toy gun” does not change this fact. This analysis — “the critical inquiry” 12 — considers only the officers’ perspective at the time of the shooting. See Wilkinson v. 13 Torres, 610 F.3d 546, 551 (9th Cir. 2010). Officers contemporaneously explained to 14 Strickland that despite his assurances, they did not know that the replica he was holding 15 was a “fake gun.” Compl. ¶ 43. As with all the facts presented, the Court must consider 16 the totality of circumstances — this may include the sound of plastic emanating from the 17 firearm,7 the decedent’s own promises that the gun was fake, and the presence of 18 orange coloring. While an orange tip is a factor judges may ask officers to weigh in their 19 split-second decision to use deadly force,8 the Court here won’t demand that they bet 20 their lives on it. 21 /// [22] 6 This case is clearly distinguishable from Est. of Lopez by & through Lopez v. Gelhaus, 871 F.3d 23 998 (9th Cir. 2017). There, officers were not responding to a call, but rather self-initiated the stop; the decedent was clearly a minor; at least one officer believed the gun may be a toy; the firearm was never 24 pointed at officers; the decedent was not aware of the officers until only moments before the shooting; officers did not warn that they would use deadly force; and officers did not attempt to use less intrusive 25 force. See id. at 1010-11. Cases cited in support by that court shared the theme that the shooting victims were not actively presenting a threat. See id. at 1011. [26] 7 Though this is not a particularly compelling distinction as many real firearms have plastic parts. 27 8 See Graham, 490 U.S. at 396-97 (“[P]olice officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force 28 that is necessary in a particular situation.”). 1 Finally, Plaintiffs are correct that Strickland’s mental health is a factor that must be 2 considered under a reasonableness analysis. See Deorle v. Rutherford, 272 F.3d 1272 , 3 1282-83 (9th Cir. 2001). However, there is no “per se rule” that mentally ill persons must 4 be afforded different treatment than armed criminals. See id. at 1283 . Despite the 5 likelihood of Strickland’s ongoing mental disturbance, it was “not objectively 6 unreasonable” for officers to consider the presence of a deadly weapon a priority. See 7 Blanford v. Sacramento Cty., 406 F.3d 1110 , 1117-18 (9th Cir. 2005) (finding the use of 8 deadly force against a mentally disturbed individual armed with a sword objectively 9 reasonable). That Strickland may have been struggling with mental health issues made 10 the rifle he was carrying no less deadly in the objectively reasonable perspective of 11 Defendants. See Elifritz v. Fender, 460 F. Supp. 3d 1088 , 1114 (D. Or. 2020) (holding 12 that the decedent “posed an immediate threat of serious injury or death to the officers, 13 and it was reasonable for the officers to respond with deadly force, even if [the decedent] 14 was experiencing a mental health crisis.”).9 15 Because Plaintiffs have not demonstrated a constitutional violation based on 16 Defendants’ use of deadly force, a Monell claim is foreclosed. Accordingly, Plaintiffs’ 17 fifth cause of action against Defendant Grass Valleys DISMISSED with leave to amend. 18 Because Claim Thirteen is duplicative of Claim Five, it is likewise DISMISSED as to 19 Grass Valley with leave to amend. 20 C. Claims One, Three, Nine, and Eleven (Gammelgard, Hooper, Grube, and Ball) [21] 22 As the Court has already recognized above, Defendant Hooper’s use of deadly 23 force was constitutionally reasonable on the basis of the allegations made in Plaintiffs’ 24 Complaint. Allegations of a failure to intercede by Defendants Grube and Ball (who, like 25 Hooper, were also Grass Valley police officers) to stop Hooper’s conduct therefore also [26] 9 Consideration of other enumerated Graham factors support Defendants. See Graham, 490 U.S. at 396 . Defendants had probable cause to believe that Strickland engaged in a serious crime by pointing [27] what appeared to be a real firearm at them. See Cal. Penal Code § 245 (a)(1-2) (assault with a deadly weapon); id. § 417 (brandishing). Strickland actively resisted officers’ repeated commands to drop the 28 weapon. 1 fail given the lack of any predicate constitutional injury. Accordingly, Claim One is 2 DISMISSED as against Grube and Hall with leave to amend. By this same reasoning, 3 Claim Three against Defendant Gammelgard (who was not present at the scene of the 4 incident and has been named only as Chief of the Grass Valley Police Department 5 responsible for his subordinates) is DISMISSED with leave to amend, as well.10 Finally, 6 because Claims Nine and Eleven are premised on these same facts under the 7 Fourteenth Amendment, those claims likewise fail and are DISMISSED with leave to 8 amend. 9 D. Claims Six and Fourteen: Deliberate and Callous Disregard of Inmate Medical Needs (McCormack) [10] 11 Plaintiffs appears to allege that Deputy McCormack exhibited a callous disregard 12 of Strickland’s medical needs while incarcerated at WBCF shortly before the incident in 13 which Strickland was killed, and charge McCormack in the Sixth and Fourteenth Claims 14 with § 1983 violations on that basis. The Complaint’s underlying factuall assertions, 15 however (specifically at ¶¶ 27-31 completely devoid of any mention of McCormack. 16 Accordingly, the Complaint is strictly conclusory as to any wrongdoing by McCormack. 17 Thus, Claims Six and Fourteen, as related to Defendant McCormack, are DISMISSED 18 with leave to amend. 19 E. Claims Seven and Fifteen: Monell (Inmate Medical Needs; Nevada County) [20] 21 Plaintiffs next assert Monell claims against Defendant Nevada County for a 22 deliberate and callous disregard of inmate medical needs by individuals other than 23 McCormack. Similar to the above claims, Plaintiffs plead inadequate policies, practices, 24 and procedures; a failure to train; and a failure to investigate. Nevada County again 25 calls these allegations “conclusory” and argues that Plaintiffs have failed to specifically 26 identify deficient or absent policies. See Mot., ECF No. 14, at 11-12. [27] 10 There is no need to address Defendants’ alternate argument that they were entitled to qualified 28 immunity under the Court’s analysis, and it declines to do so. 1 While Nevada County’s argument here is nearly identical to their Monell defense 2 against Claims Four and Twelve, the Court is not equally convinced. Nevada County 3 argues that Plaintiffs do not identify policies, customs, or practices, but in fact the 4 Complaint specifically lists inadequate policies regarding inmate medical care. See 5 Compl. ¶¶ 146-149. While Plaintiffs do not flawlessly describe the contours of these 6 policies or customs,11 they are not obligated to do so at this stage. See Est. of Osuna v. 7 Cty. of Stanislaus, 392 F. Supp. 3d 1162, 1174-75 . (E.D. Cal. 2019). Instead, they 8 allege the policies in general terms and plausibly link them to potential constitutional 9 violations (see id. at 1175 ) — i.e., a failure to provide constitutionally required medical 10 care to inmates. See, e.g., Coleman v. Newsom, 455 F. Supp. 3d 926 , 929 (E.D. Cal. 11 2020). 12 Accordingly, Defendant Nevada County’s Motion to Dismiss Claims Seven and 13 Fifteen is DENIED. 14 F. Claims Seventeen and Eighteen: Rehabilitation Act and Americans with Disabilities Act (Nevada City and Grass Valley) [15] 16 Plaintiffs and Defendants concur that the Americans with Disabilities Act, [17] 42 U.S.C. §§ 12101 , et seq. (“ADA”) and the Rehabilitation Act, 29 U.S.C. §§ 701 , 18 et seq. provide identical remedies, procedures, and rights, and are analyzed under the 19 same legal framework. Mot., ECF No. 16, at 11; Opp’n, ECF No. 29, at 16; see Vos v. 20 City of Newport Beach, 892 F3d 1024, 1036 (9th Cir. 2018). “Title VII of the ADA 21 prohibits a public entity from discriminating against any qualified individual with a 22 disability. Title VII applies to arrests.” Id. (cleaned up). The same fact evaluation 23 applies to an accommodation analysis as to a Fourth Amendment reasonableness 24 determination. Id. at 1037 . 25 Here, Strickland’s gun was ultimately a replica, inherently unable to present a 26 serious public safety threat. As such, it may be tempting in retrospect to find that there [27] 11 Plaintiffs’ citation (Compl. ¶¶ 74-75) to NCSO deputies allegedly “attacking” inmates who 28 happened to have mental disabilities is inapposite to the instant allegations on the facts provided. 1 should have been ample time to secure the scene, employ accommodations, call on 2 specialized help, or — to invoke a favorite yet amorphous catch-all — “de-escalate” the 3 situation. Cf. id. However, the officers on scene here had no such luxury. From their 4 reasonable perspective, Strickland was armed with a rifle not only capable of instantly 5 killing them, but of firing projectiles with the ability to cause extensive harm at substantial 6 distances. There is no plausible manner in which officers can “surround” such a suspect 7 to adequately mitigate risk to themselves or the public. Cf. id. at 1033 (armed with 8 scissors); Longoria v. Pinal Cty., 873 F.3d 699, 705 (9th Cir. 2017) (unarmed). Every 9 moment spent not engaging such a suspect is a moment in which officers risk deadly 10 consequences to themselves and to the public at large. 11 These pressing facts must weigh into the reasonableness determination of 12 Plaintiffs’ ADA and Rehabilitation Act claims. See Sheehan v. City & Cty. of San 13 Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014) (collecting cases and affirming the 14 proposition that “exigent circumstances inform the reasonableness analysis under the 15 ADA”); Harper v. Cty. of Merced, No. 1:18-CV-00562-LJO-SKO, 2018 WL 5880786 , at *7 16 (E.D. Cal. Nov. 8, 2018) (collecting cases to find that where “exigent circumstances were 17 present, courts have rejected ADA reasonable accommodation claims as a matter of 18 law”). As indicated above, given the allegations of the Complaint as it currently stands, 19 the Court finds that officers acted reasonably in employing deadly force.12 20 Accordingly, Claims Seventeen and Eighteen as against Defendants Grass Valley 21 and Nevada County13 are DISMISSED with leave to amend. 22 /// 23 /// 24 /// 25 /// [26] 12 To reach the same conclusion, the Court also finds that because Strickland represented himself as a “direct threat,” Defendants were not required to provide accommodation. See 28 C.F.R. § 35.139 . [27] 13 As indicated above, Defendant Nevada County filed a joinder (ECF No. 21) to Grass Valley’s 28 Motion to Dismiss Plaintiffs’ claims for ADA and Rehabilitation Act violations. 1 G. Claim Twenty: Excessive Force (California Constitution) 2 1. Defendant Nevada County; Defendants Moon, King, Tripp, and McCormack [3] 4 Plaintiffs’ Twentieth Claim alleges unreasonable and excessive force under the 5 California Constitution, Article I, §§ 1, 7, and 13. Defendants Nevada County, Moon, 6 King, Tripp, and McCormack aver that Sections 1 and 7 do not provide for private 7 causes of action, and thus require dismissal. Plaintiffs “have no objection to removing 8 the references to Section 1 & 7.” Opp’n, ECF No. 22, at 18. 9 Defendant Nevada County only addresses the Section 13 claim in their Reply.14 10 See ECF No. 26, at 8-9. As Plaintiffs did not have the opportunity to respond, the Court 11 will not consider the argument at this juncture. See Zamani v. Carnes, 491 F.3d 990 , 12 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first 13 time in a reply brief.”). 14 Accordingly, Claim Twenty, as it relates to these Defendants and insofar as it is 15 premised on the California Constitution, Article I, §§ 1 and 7, is DISMISSED with leave to 16 amend. As to any claim proceeding under § 13, however, Defendants’ Motion to 17 Dismiss is DENIED. 18 2. Defendant Grass Valley; Defendants Gammelgard, Hooper, Grube, and Ball [19] As stated above, Plaintiffs’ Twentieth Claim alleges unreasonable and excessive [20] force under the California Constitution, Article I, §§ 1, 7, and 13. Defendants [21] Grass Valley, Gammelgard, Hooper, Grube and Ball aver that because the use of deadly [22] /// [23] /// [24] /// [25] /// [26] 27 14 Defendant Nevada County does not address Section 13 in their Motion. Instead, Defendant asserts that Section 3 also does not provide a private cause of action, which is irrelevant in the absence of 28 any charging allegations which implicate that section. 1 force was reasonable, there can be no basis for state constitutional claim. The Court 2 agrees.15 3 Accordingly, Claim Twenty, as it applies to these Defendants, is DISMISSED with 4 leave to amend. 5 H. Claims Twenty-One through Twenty-Four: Causes of Action Under State Law [6] 1. Defendant Nevada County [7] 8 Defendant Nevada County asserts that Plaintiffs fail to state a claim for direct 9 liability against Nevada County under California law in Claims Twenty-One (Bane Act); 10 Twenty-Two (assault/battery); Twenty-Three (negligence); and Twenty-Four (wrongful 11 death). Nevada County does not dispute that Plaintiffs have sufficiently alleged these 12 claims for vicarious liability (Mot., ECF No. 14, at 15-16), and Plaintiffs confirm that these 13 causes of action solely assert claims on that basis. Opp’n, ECF No. 22, at 19. 14 To the extent that any of the above enumerated claims are based on direct 15 liability, they are accordingly DISMISSED with leave to amend. However, this Order 16 does not impact Plaintiffs’ ability to proceed on these claims against Defendant Nevada 17 County under the theory of vicarious liability. 18 2. Defendants Moon, King, Tripp, and McCormack 19 Defendants Moon, King, Tripp, and McCormack next seek to dismiss Claim 20 Twenty-One of the Complaint, which alleges violation of the Bane Act, Cal. Civ. Code 21 § 52.1. “The elements of a cause of action under the Bane Act are: (1) defendants [22] 23 15 In the alternative, Defendants argue that these sections of the California Constitution do not allow for private causes of action. Plaintiffs “have no objection to removing the references to Sections 1 & 24 7,” but do seek to move forward with their section 13 claims. Opp’n, ECF No. 44, at 19. “There is a split among federal district courts on whether § 13 confers an action for money damages.” Dolores 25 Velasquez v. Cty. of San Bernardino, No. EDCV 17-2344 JGB (SHKx), 2018 WL 6061204 , at *2 (C.D. Cal. Mar. 1, 2018) (collecting cases and ultimately finding that monetary damages are allowed under the section). Even courts in this jurisdiction are split on the question. Compare Maric v. Alvarado, No. 1:1226 CV-00102-SKO, 2020 WL 949938 , at *6 (E.D. Cal. Feb. 27, 2020) (allowing); Risse v. Porter, No. 2:19CV-00624-TLN-AC, 2020 WL 1433144 , at *8 (E.D. Cal. Mar. 24, 2020) (denying). While the Court finds [27] compelling the conclusions of Dolores Velasquez, it does not need to settle this conflict here. See Dolores Velasquez, 2018 WL 6061204 , at *2 (discussing Katzberg v. Regents of Univ. of California, 29 Cal. 4th 28 300, 303 (2002)). 1 interfered by threat, intimidation, or coercion, or attempted to interfere . . . ; (2) with the 2 exercise or enjoyment by any individual of rights secured by federal or state law.” 3 Ordonez v. Stanley, 495 F. Supp. 3d 855 , 865-66 (C.D. Cal. 2020) (citing King v. State of 4 Cal., 242 Cal. App. 4th 265, 294 (2015)). “Plaintiff must allege defendants had a specific 5 intent to violate the rights of plaintiff.” Id. at 866 (citing Reese v. Cty. of Sacramento, [6] 888 F.3d 1030, 1043 (9th Cir. 2018)). 7 As discussed above, the subject officers employed objectively reasonable force 8 given the allegations of the Complaint as it now stands. Consequently, the twenty-first 9 cause of action cannot survive and is accordingly DISMISSED with leave to amend. 10 Employing the same reasoning, the Twenty-Second Claim for assault and battery is 11 likewise defective and is DISMISSED with leave to amend, as well. 12 3. Defendant Grass Valley 13 Defendant Grass Valley also seeks to dismiss Claim Twenty-One of the 14 Complaint, which alleges violation of the Bane Act, Cal. Civ. Code § 52.1 . Again, 15 because this Court finds that the allegations as currently pled show that the officers 16 employed objectively reasonable force, this claim cannot survive. The twenty-first cause 17 of action is thus DISMISSED as against Grass Valley with leave to amend. 18 Defendant Grass Valley further seeks dismissal of Claim Twenty-Three, which 19 alleges negligence. “To establish negligence, a party must prove the following: (a) a 20 legal duty to use due care; (b) a breach of such legal duty; (c) the breach as the 21 proximate or legal cause of the resulting injury.” Hernandez v. City of San Jose, [22] 14 Cal. App. 4th 129, 133 (1993) (cleaned up). The California Supreme Court “has long 23 recognized that peace officers have a duty to act reasonably when using deadly force. 24 The reasonableness of an officer’s conduct is determined in light of the totality of 25 circumstances.” Hayes v. Cty. of San Diego, 57 Cal. 4th 622, 629 (2013) (cleaned up). 26 An “officer’s duty to act reasonably when using deadly force extends to preshooting 27 conduct.” Hayes v. Cty. of San Diego, 736 F.3d 1223, 1236 (9th Cir. 2013) (cleaned up). 28 California negligence law is broader than federal Fourth Amendment law in analyzing 1 reasonableness. C.V. ex rel. Villegas v. City of Anaheim, 823 F.3d 1252 , 1257 n.6 2 (9th Cir. 2016); see Vos, 892 F.3d at 1037-38 . 3 Plaintiffs attack the pre-shooting behavior of Defendants in, inter alia, failing to call 4 upon mental health experts during the call. This Court is extremely hesitant to second5 guess the decisions of the officers in the instant matter. See Ryburn v. Huff, 565 U.S. 6 469, 477 (2012) (“[J]udges should be cautious about second-guessing a police officer’s 7 assessment, made on the scene, of the danger presented by a particular situation.”); 8 Graham, 490 U.S. at 396-97 . While Plaintiffs aver that there “was no urgency to the 9 situation” (Compl. ¶ 51), their own facts challenge this assertion. In the objectively 10 reasonable view of the present officers, the decedent was in public, armed with a long 11 gun, and not responding to commands. It would hardly be difficult to imagine 12 accusations of “negligence” levied against officers who did not treat such a situation as 13 urgent. Moreover, any “Monday morning quarterbacking” from Plaintiffs is based on 14 pure conjecture — e.g., speculation that a mental health specialist would have been able 15 to (1) promptly dispatch to the scene; (2) be present on scene based on safety 16 considerations; and (3) peacefully diffuse a situation that numerous officers could not 17 despite repeated pleadings. This is distinguishable from successful allegations of 18 negligence where officers acted unreasonably, leading to tragic results. See, e.g., 19 Mendez v. Cty. of Los Angeles, 897 F.3d 1067, 1082-83 (9th Cir. 2018). 20 Accordingly, Claim Twenty-Three as against Grass Valley is DISMISSED with 21 leave to amend. 22 4. Defendants Gammelgard, Hooper, Grube, and Ball 23 These Defendants also seek to dismiss Claim Twenty-One of the Complaint, 24 which alleges violation of the Bane Act, Cal. Civ. Code § 52.1 . As indicated above, 25 because this Court has separately found — given the allegations in Plaintiffs’ current 26 Complaint — that the officers employed objectively reasonable force, this claim cannot 27 survive. The twenty-first cause of action is thus DISMISSED with leave to amend. 28 /// 1 Employing the same reasoning, the Twenty-Second Claim for assault and battery cannot 2 survive, and is thus DISMISSED with leave to amend. 3 This Court above dismissed a claim of negligence against Defendant Grass 4 Valley, nevertheless recognizing that California negligence law is broader than federal 5 Fourth Amendment law in analyzing reasonableness. See C.V. ex rel. Villegas, [6] 823 F.3d at 1257 n.6. 7 Exercising this same reasoning here, Claim Twenty-Three is DISMISSED with 8 leave to amend as against Grass Valley law enforcement personnel Gammelgard, 9 Hooper, Grube and Ball. [10] 11 CONCLUSION [12] 13 1. Nevada County 14 Defendant Nevada County’s Motion to Dismiss (ECF No. 14) is GRANTED in 15 part and DENIED in part16 as follows: 16 • Nevada County’s Motion to Dismiss is DENIED as to the following claims: 17 Claims Seven and Fifteen (under Monell); Claim Twenty (insofar as it is 18 premised on the California Constitution, Article I, § 13). 19 • Defendants’ Motion to Dismiss is GRANTED as to the following claims: Claims 20 Four and Twelve (under Monell); Claims Seventeen and Eighteen (asserting 21 ADA and Rehabilitation Act violations, respectively); Claim Twenty (insofar as [22] 23 16 Plaintiffs have requested that the Court take judicial notice of three videos: (1) the NCSO/GVPD shooting of Gabriel Strickland (“Strickland video”) on January 1, 2020, giving rise to the instant action; 24 (2) a separate NCSO shooting of Sage Crawford (“Crawford video”) on February 4, 2021; (3) a separate video of NCSO and GVPD personnel using force against Christopher Howie on January 11, 2018. 25 Defendants do not challenge judicial notice of the Strickland video (1), which is GRANTED. See Fed. R. Evid. 201(b). However, Defendants challenge judicial notice of the Crawford video (2) because it was not referenced in the Complaint, and it is reasonably disputed. Reply at 4. Defendants challenge judicial [26] notice of (3) as reasonably disputed and unrelated to the instant matter. Reply at 2-3. Because videos (2) and (3) are reasonably disputed as to what they establish, they are not appropriate for judicial notice at [27] this time, and the request is DENIED. See Sanz v. City of Vallejo, No. 2:19-CV-02134-TLN-DB, 2021 WL 2682162 , at *3 (E.D. Cal. June 30, 2021); Strojnik v. Azul Hospitality Grp., No. 2:19-CV-01877-TLN-AC 28 (PS), 2019 WL 6467494 , at *2 (E.D. Cal. Dec. 2, 2019). 1 it is premised on the California Constitution, Article I, §§ 1 and 7); Claims 2 Twenty-One through Twenty-Four (to the extent of direct liability only). These 3 claims are DISMISSED WITH LEAVE TO AMEND. 4 2. Grass Valley 5 Defendant Grass Valley’s Motion to Dismiss (ECF No. 16) is GRANTED17 as 6 follows: 7 • Grass Valley’s Motion to Dismiss is GRANTED as to the following claims: Five 8 and Thirteen (under Monell); Seventeen and Eighteen (ADA and Rehabilitation 9 Act claims, respectively); Twenty (California Constitution, Article I, §§ 1 and 10 7)); Twenty-One (Bane Act); Twenty-Three (Negligence). These claims are 11 DISMISSED WITH LEAVE TO AMEND. 12 3. Moon, King, Tripp, and McCormack 13 The Motion to Dismiss (ECF No. 27) brought on behalf of Defendants Moon, 14 King, Tripp, and McCormack is GRANTED as follows: 15 • Defendants’ Motion to Dismiss is GRANTED as to the following claims: Six 16 and Fourteen (deliberate and callous disregard); Twenty (excessive force; as 17 to California Constitution, Article I, §§ 1 and 7); Twenty-One (Bane Act); 18 Twenty-Two (Assault and Battery). These claims are DISMISSED WITH 19 LEAVE TO AMEND. 20 4. Gammelgard, Hooper, Grube, and Ball 21 Defendants Gammelgard, Hooper, Grube and Ball’s Motion to Dismiss (ECF No. 22 30) is also GRANTED as follows: 23 • Defendants’ Motion to Dismiss is GRANTED as to the following claims: One, 24 Three, Nine, and Eleven (Excessive Force); Twenty (California Constitution, 25 Article I, §§ 1 and 7); Twenty-One (Bane Act); Twenty-Two (Assault and [26] 17 Plaintiffs have requested that the Court take judicial notice of The California Commission on [27] Peace Officer Standards and Training Manual on De-Escalation Strategies & Techniques (“POST Manual”). ECF No. 29-1. Defendants do not challenge judicial notice of this document, which is 28 GRANTED. See Fed. R. Evid. 201(b). 1 Battery); Twenty-Three (Negligence). These claims are DISMISSED WITH 2 LEAVE TO AMEND. 3 Should Plaintiffs wish to file an amended complaint, they are directed to do so not 4 | later than twenty (20) days after the date this Memorandum and Order is electronically 5 | filed. Failure to do so will result in the dismissal, with prejudice, of those claims for which 6 || amendment had been permitted without further notice to the parties. 7 IT IS SO ORDERED. 8 | Dated: September 28, 2021 9 □ late JES. Whip AX XC - SENIOR UNITED STATES URTRICT JUDGE