Stein v. City of San Diego

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] NICK STEIN, Case No. 19-cv-793-BAS-MDD [11] Plaintiff, ORDER: 12 (1) GRANTING IN PART POLICE OFFICERS’ 13 v. MOTION TO DISMISS; (2) GRANTING CITY OF SAN 14 CITY OF SAN DIEGO, et al., DIEGO’S MOTION TO DISMISS 15 Defendants. [ECF Nos. 17, 24] [16] 17 Plaintiff Nick Stein, proceeding pro se, filed a complaint against the City of 18 San Diego, the San Diego Police Department, and six individual police officers. 19 (First Amended Complaint, “FAC,” ECF No. 6.) Plaintiff alleges four violations 20 under 42 U.S.C. § 1983 : illegal search and seizure, excessive force, retaliation, and 21 a Monell violation. Currently pending before the Court are two Motions to Dismiss: 22 one by the City of San Diego and the San Diego Police Department, (ECF No. 17), 23 and the other by the six officers, (ECF No. 24). Plaintiff opposes both Motions, (ECF 24 Nos. 19, 24), and Defendants filed replies in support of their Motions, (ECF Nos. 22, 25 28). After the Motions were filed, Plaintiff voluntarily dismissed his claims against 26 the San Diego Police Department. (ECF No. 29.) 27 The Court finds the Motions suitable for determination on the papers and 1 Court GRANTS IN PART the Officers’ Motion and GRANTS the City’s Motion. 2 I. FACTUAL ALLEGATIONS1 3 On March 15, 2019, Plaintiff was arrested “while he was admiring the view of 4 the Pacific Ocean from atop [a] hill.” (FAC ¶ 19.) Plaintiff was arrested by 5 Defendant Gonzales, who handcuffed him and “violently” bent and pressed him over 6 the hood of the patrol car. (Id. ¶ 22.) Defendants Gonzales and Montalbano found 7 no evidence of a crime at the scene, but arrested Plaintiff for resisting arrest. (Id. 8 ¶ 23.) The police report states that Plaintiff resisting arrest by “reaching for a 9 weapon[,]” “kicking the patrol car window[,]” and “slipp[ing] the [hand]cuffs.” (Id. 10 ¶ 20.) Plaintiff alleges these statements are not true but they formed the basis of a 11 false charge of resisting arrest. (Id.) 12 Plaintiff states the officers put him in a patrol car while they “look[ed] for a 13 crime involving the Plaintiff and found none.” (Id. ¶ 24.) The officers then told 14 Plaintiff to get out of the car, and Gonzales “and the other defendant officers threw 15 Plaintiff face down in the street.” (Id. ¶ 29.) Plaintiff alleges there was no reason for 16 the officers’ conduct, namely: “throwing him down, punching, kicking, strapping, 17 and, but not limited to, rolling him around on the pavement of the street.” (Id. ¶ 31.) 18 Plaintiff was then placed in a “wrap” which is a device used to keep a person 19 stationary. (Id. ¶ 35.) Defendants Adams and Gonzales forcefully “fold[ed] Plaintiff 20 in half” to apply the wrap on his body, putting him in “extreme pain.” (Id. ¶ 38.) He 21 was wrapped so tightly by Defendants Montalbano, Ellsworth, and Layton that it 22 caused his skin to bleed and bruise and he could not breathe. (Id. ¶¶ 36, 40.) Plaintiff 23 was placed in the back of the patrol car and taken to jail. (Id. ¶ 48.) 24 II. LEGAL STANDARD 25 A complaint must plead sufficient factual allegations to “state a claim to relief 26 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal [27] 1 quotation marks and citations omitted). “A claim has facial plausibility when the 2 plaintiff pleads factual content that allows the court to draw the reasonable inference 3 that the defendant is liable for the misconduct alleged.” Id. 4 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 5 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. 6 Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court 7 must accept all factual allegations pleaded in the complaint as true and must construe 8 them and draw all reasonable inferences from them in favor of the nonmoving party. 9 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336 , 337–38 (9th Cir. 1996). To avoid a Rule 10 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, 11 it must plead “enough facts to state a claim to relief that is plausible on its face.” Bell 12 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A Rule 12(b)(6) dismissal may 13 be based on either a ‘lack of a cognizable legal theory’ or ‘the absence of sufficient 14 facts alleged under a cognizable legal theory.’” Johnson v. Riverside Healthcare 15 Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police 16 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). 17 III. ANALYSIS 18 A. Officers’ Motion to Dismiss 19 1. Judicial Notice 20 The officers ask the Court to take judicial notice of a jury verdict finding 21 Plaintiff guilty of resisting and/or delaying an officer in violation of Penal Code 22 section 148(a)(1), as well as the complaint charging him with said misdemeanor. 23 (ECF No. 24-2.) Plaintiff agrees he was charged and convicted at trial of resisting 24 arrest. (“Opp’n to Officers,” ECF No. 27, at 10.) The Court may take judicial notice 25 of matters of public record, including prior federal and state court proceedings. Lee 26 v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); see also Dawson v. 27 Mahoney, 451 F.3d 550, 551 (9th Cir. 2006) (allowing for judicial notice in federal 1 and the complaint as public records of prior proceedings can be determined by readily 2 available resources whose accuracy cannot reasonably be questioned. Further, 3 Plaintiff does not dispute the accuracy of the documents. Therefore, the Court 4 GRANTS the City’s request and takes judicial notice of the jury verdict and the 5 complaint. 6 Plaintiff asks the Court to take judicial notice of four arrest reports prepared 7 by the officers after Plaintiff’s arrest. (Exhibits 1 through 4 of ECF No. 27-3.) 8 Interestingly, Plaintiff himself provided the Court with the arrest reports, but his 9 complaint and opposition dispute the accuracy of the reports. For example, he claims 10 that the statements in the reports that he “was reaching for a weapon[,]” “kicking the 11 patrol car window[,]” and had “slipped the cuffs” are “false statements. . . used to 12 obtain the cooperation of the Prosecutor in falsifying charges against Plaintiff.” 13 (FAC ¶ 20.) “When parties dispute the facts contained in a police report, courts 14 within the Ninth Circuit will generally decline to take judicial notice.” Zuccaro v. 15 Martinez Unified Sch. Dist., No. 16-CV-02709-EDL, 2016 WL 10807692 , at *5 16 (N.D. Cal. Sept. 27, 2016) (citing cases). Here, although Plaintiff is asking the Court 17 to judicially notice the reports, given his pro se status and the firmness with which 18 he opposes the truth of the reports, the Court declines to take judicial notice of them.2 19 2. Analysis 20 a. Illegal Search and Seizure 21 The Fourth Amendment prohibits “unreasonable searches and seizures.” 22 Reasonableness is generally assessed by carefully weighing “the nature and quality 23 of the intrusion on the individual’s Fourth Amendment interests against the [25] 2 Plaintiff also asks the Court to take judicial notice of a letter from the Community Review Board 26 on Police Practices. (Exhibit 5 to ECF No. 27-3.) The Court may take judicial notice of matters of public record outside the pleadings that are not subject to reasonable dispute. Fed. R. Evid. [27] 201(b). But there is no evidence that the letter is “a matter of public record” thus, the Court 1 importance of the governmental interests alleged to justify the intrusion.” Tennessee 2 v. Garner, 471 U.S. 1, 8 (1985). 3 Plaintiff claims there was no probable cause to believe he had committed a 4 crime, but he was arrested, and he and his property were searched. (FAC ¶ 60.) He 5 states he was arrested, handcuffed, and placed in a patrol car for “resisting arrest,” 6 and then the officers searched him and his van. (Id. ¶ 63.) 7 The Court first addresses Plaintiff’s arrest. To recover damages for an 8 allegedly unconstitutional conviction or term of imprisonment, or for other harm 9 caused by actions whose unlawfulness would render a conviction or sentence invalid, 10 a 42 U.S.C. § 1983 plaintiff must prove that the conviction or sentence has been 11 reversed on direct appeal, expunged by executive order, declared invalid by a state 12 tribunal authorized to make such determination, or called into question by a federal 13 court’s issuance of a writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477 , 14 486–487 (1994). A claim for damages based upon a conviction or sentence that has 15 not been so invalidated is not cognizable under § 1983. See id. at 487. Plaintiff was 16 arrested and convicted for resisting arrest. Because he is claiming that he was 17 arrested without probable cause, his claim is barred by Heck. See Smithart v. Towery, [18] 79 F.3d 951, 952 (9th Cir. 1996) (holding Heck bars plaintiff’s claims that defendants 19 lacked probable cause to arrest him and brought unfounded charges against him); see 20 also Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (holding 21 Heck generally bars claims challenging the validity of an arrest, prosecution or 22 conviction). As to the search of Plaintiff’s person after the arrest, the search incident 23 to a lawful arrest exception allows a police officer to search an arrestee’s person and 24 the area within the arrestee’s immediate control. Arizona v. Gant, 556 U.S. 332 , 339 25 (2009). Thus, Plaintiff may not bring claims alleging he was arrested without 26 probable cause or that the officers could not search him incident to arrest. 27 The Court next turns to the allegation that Defendants unlawfully searched 1 that his van was searched, so he cannot raise the claim now. (“Officers Reply,” ECF 2 No. 28, at 3.) This is a disingenuous argument that can be resolved by a simple 3 reading of the First Amended Complaint, wherein Plaintiff alleges that Defendants 4 searched his van after they handcuffed him and placed him in the patrol car. (FAC 5 ¶¶ 61, 63.) Defendants next argue that the van was not in fact searched, but was 6 “merely cleared by officers.” (Officers Reply at 3.) As Defendants must know, the 7 Court must accept all factual allegations in the complaint as true, and Plaintiff pleads 8 that the officers searched his van. (FAC ¶¶ 61–63.) Finally, Defendants argue that 9 the officers had probable cause to search the van for “additional allegedly-stolen 10 bicycles or tools that could be used to steal bicycles because they were directed to 11 plaintiff’s location to investigate the crime.” (Officers Reply at 3.) But Plaintiff was 12 not arrested for theft. 13 In Arizona v. Gant, 556 U.S. 332 (2009) the Supreme Court analyzed the 14 search incident to arrest exception. There, the defendant was handcuffed and secured 15 in a patrol car and the officer searched his car. Id. at 344 . The Court found the 16 defendant “was not within reaching distance of this car at the time of the search” and 17 there was no “evidentiary basis for the search” because he had been “arrested for 18 driving with a suspended license—an offense for which police could not expect to 19 find evidence in the passenger compartment of [his] car.” Id. The Court further 20 concluded that circumstances unique to the vehicle context justify a search incident 21 to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of 22 arrest might be found in the vehicle.” Id. (quoting Thorton v. United States, 541 U.S. 23 615, 632 (2004)). 24 Accepting Plaintiff’s allegations as true, Arizona v. Gant applies here; Plaintiff 25 was arrested for resisting arrest and then secured in a patrol car. (FAC ¶¶ 61, 62.) 26 Plaintiff was not arrested for stealing bicycles. No evidence relevant to the crime of 27 resisting arrest could be found in his van, thus, there is no justification to search the 1 (E.D. Cal. 2014) (holding because the defendant was arrested for resisting arrest, 2 Gant does not permit the officers to search his car). Therefore, Plaintiff has 3 sufficiently pled an illegal search. The Court DENIES the Motion to Dismiss this 4 claim as it relates to the search of the van. But as noted above, Plaintiff’s claim that 5 he was arrested without probable cause and then searched is barred. 6 b. Excessive Force 7 “A person is seized by the police and thus entitled to challenge the 8 government’s action under the Fourth Amendment when the officer, ‘by means of 9 physical force or show of authority,’ terminates or restrains his freedom of 10 movement, ‘through means intentionally applied.’” Brendlin v. California, 551 U.S. 11 249, 254 (2007) (citations and emphasis omitted). Plaintiff alleges the officers 12 intentionally seized him when they arrested him, placed him in a wrap, and put him 13 in the back of a police car. Thus, the issue is whether the force used during the 14 seizure was objectively reasonable. Arpin v. Santa Clara Valley Transp. Agency, [15] 261 F.3d 912 , 921 (9th Cir. 2001) (citing Graham v. Connor, 490 U.S. 386 , 388 16 (1989).) 17 The officers devote only one short paragraph in arguing for the dismissal of 18 this claim, wherein they claim that Heck v. Humphrey, 512 U.S. 477 (1994) controls. 19 (Officers Mot. at 11.) Defendants argue if the Court does not dismiss the excessive 20 force claim, this calls into question the validity of Plaintiff’s criminal conviction. 21 But, the Ninth Circuit has clearly held that Heck v. Humphrey may not be used to bar 22 evidence in a § 1983 claim for excessive force. Simpson v. Thomas, 528 F.3d 685 , 23 691 (9th Cir. 2008). “[S]uccess on the merits of [Plaintiff’s] excessive force claim 24 does not necessarily imply the invalidity of his rule-violation conviction.” 25 Hackworth v. Rangel, 482 F. App’x 299 (9th Cir. 2012). Plaintiff alleges he was 26 thrown to the ground, kicked, and placed in a wrap so tightly that he could not breathe 27 and was bruised. Accepting Plaintiff’s allegations as true, along with the allegations 1 force was unreasonable. The Court DENIES the Motion to Dismiss this claim. 2 c. Retaliation 3 In his retaliation cause of action, Plaintiff alleges he was exercising his 4 Constitutional rights in asking Defendants why they arrested him without probable 5 cause, and “[a]s a result” he was detained and arrested. (FAC ¶¶ 80, 82.) There are 6 three elements to a First Amendment retaliation claim: 7 [A] plaintiff must show that (1) he was engaged in a constitutionally protected activity, (2) the defendant’s actions would chill a person of [8] ordinary firmness from continuing to engage in the protected activity[,] 9 and (3) the protected activity was a substantial or motivating factor in the defendant’s conduct. [10] 11 O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016). “Once a plaintiff has made 12 such a showing, the burden shifts to the government to show that it ‘would have taken 13 the same action even in the absence of the protected conduct.’” Id. 14 In moving to dismiss the claim, the officers argue the jury verdict proves that 15 there was probable cause to arrest Plaintiff. “A number of courts have held . . . that 16 where there is probable cause to arrest, the arrestee can not maintain a separate claim 17 for retaliation under the First Amendment based on speech that was made prior to 18 the arrest.” Sorgen v. City & Cty. of San Francisco, No. C 05-03172 TEH, 2006 WL 19 2583683, at *8 (N.D. Cal. Sept. 7, 2006) (citing cases); Cairns v. County of El 20 Dorado, No. 2:15-cv-814-MCE-CKD, 2015 WL 9319248 , at *4 (E.D. Cal. Dec. 23, 21 2015), aff’d, 694 F. App’x 534 (9th Cir. 2017) (“To state a claim for retaliation— 22 whether based on a retaliatory arrest or a retaliatory prosecution—a plaintiff must 23 allege and prove the absence of probable cause.”). 24 Here, Plaintiff was convicted of resisting arrest. Thus, this shows there was 25 probable cause for the arrest. See Keidel v. Terry, 105 F. App’x 149, 150 (9th Cir. 26 2004) (holding the jury’s “verdict of guilty beyond a reasonable doubt demonstrates 27 that there was probable cause to charge the defendant with the offenses for which he 1 GRANTS the Motion to Dismiss this claim. Because granting Plaintiff leave to 2 amend would constitute an exercise in futility, the dismissal is with prejudice. 3 d. Defendant Nisleit 4 Defendants move to dismiss the claim brought against Defendant Nisleit, the 5 Chief of Police. Plaintiff states he brings a claim against Nisleit under Monell v. 6 Dep’t of Social Services of City of New York, 436 U.S. 658 (1978). He alleges that 7 Nisleit maintained a custom, policy, or practice “of using excessive force, falsely 8 arresting, imprisoning, and retaliating against citizens who object to the racial 9 profiling, harassment and discriminatory actions by San Diego police officers.” 10 (FAC ¶ 85.) 11 To the extent Plaintiff is suing Nisleit under a theory of supervisory liability, 12 he must show Nisleit’s (1) “personal involvement in the constitutional deprivation,” 13 or (2) “a sufficient causal connection between the supervisor’s wrongful conduct and 14 the constitutional violation.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). 15 Supervisory liability can arise without personal involvement “if supervisory officials 16 implement a policy so deficient that the policy itself is a repudiation of constitutional 17 rights and is the moving force of the constitutional violation.” Id. “A supervisor can 18 be liable in his individual capacity ‘for his own culpable action or inaction in the 19 training, supervision, or control of his subordinates; for his acquiescence in the 20 constitutional deprivation; or for conduct that showed a reckless or callous 21 indifference to the rights of others.’” Watkins v. City of Oakland, 145 F.3d 1087 , 22 1093 (9th Cir. 1998) (internal alteration omitted). 23 There is no allegation that Nisleit was personally involved in Plaintiff’s arrest. 24 Plaintiff therefore must make a claim under the “sufficient casual connection” prong. 25 The only support Plaintiff presents for his claim of Nisleit’s unconstitutional policy 26 is that Defendants were not prosecuted for using the wrap to secure and transport 27 Plaintiff to jail. (FAC ¶ 86.) The complaint is devoid of any factual allegations 1 violations, or knew of the violations and failed to act to prevent them.” Taylor v. 2 List, 880 F.2d 1040, 1045 (9th Cir. 1989). Therefore, Plaintiff has not stated a claim 3 against Nisleit and the Court DISMISSES Nisleit from this lawsuit.3 4 In sum, the Court DENIES the Motion to Dismiss Plaintiff’s search and 5 seizure claim (as it relates to the search of the van) and the excessive force cause of 6 action. The Court GRANTS the Motion to Dismiss the retaliation cause of action 7 without leave to amend. The Court GRANTS the Motion to Dismiss the supervisory 8 liability cause of action against Nisleit but grants Plaintiff leave to amend this claim. 9 B. The City’s Motion to Dismiss 10 Plaintiff alleges the City, like Nisleit, maintained a custom, policy, or practice 11 “of using excessive force, falsely arresting, imprisoning, and retaliating against 12 citizens who object to the racial profiling, harassment and discriminatory actions by 13 San Diego police officers.” (FAC ¶ 85.) A municipal entity is liable under section 14 1983 only if the plaintiff alleges his constitutional injury was caused by employees 15 acting pursuant to the municipality’s policy or custom. Monell, 436 U.S. at 691 ; 16 Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008). The City 17 of San Diego may not be held vicariously liable under section 1983 simply based on 18 allegedly unconstitutional acts of its employees. Jackson v. Barnes, 749 F.3d 755 , 19 762 (9th Cir. 2014). Instead, the municipality may be held liable “when execution 20 of a government’s policy or custom . . . inflicts the injury.” Monell, 436 U.S. at 694 . 21 As noted above, Plaintiff provides no support for his allegation that the City 22 has a policy in place that caused his constitutional injury. Without any factual 23 allegations, Plaintiff has not stated a Monell claim against the City. The Court [25] 3 To the extent that Plaintiff also sues Nisleit in his official capacity, his claim is treated as a claim [26] against the City under Monell. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in [27] all respects other than name, to be treated as a suit against the entity.”). | ||GRANTS the City’s Motion to Dismiss but grants Plaintiff leave to amend this 2 || claim. 3 ||IV. CONCLUSION 4 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN 5 ||PART the police officers’ Motion to Dismiss (ECF No. 24) and GRANTS the City 6 ||of San Diego’s Motion to Dismiss (ECF No. 17). 7 Plaintiff is granted leave to file a second amended complaint that cures the 8 || deficiencies noted herein on or before May 13, 2020. The Court cautions Plaintiff 9 ||that the amended complaint must be complete by itself without reference to his 10 original pleading. Defendants not named and any claim not re-alleged in his 11 |}amended complaint will be considered waived. See Civ L.R. 15.1; Hal Roach 12 || Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 13 || (‘[A]n amended pleading supersedes the original.”); Lacey v. Maricopa County, 693 14 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend 15 || which are not re-alleged in an amended pleading may be “considered waived if not 16 ||repled.”). 17 If Plaintiff fails to file an amended complaint within the time provided or file 18 ||a motion requesting more time, the police officers are to file an answer on or before 19 || May 27, 2020, and this case will proceed on the remaining causes of action against 20 || the officers only. 21 IT IS SO ORDERED. 22 ||DATED: March 20, 2020 , 23 (pict 4 (Lyshan 24 United States District Judge