Horton v. County of San Diego

[8] UNITED STATES DISTRICT COURT [9] SOUTHERN DISTRICT OF CALIFORNIA [11] MICHELLE HORTON, Case No.: 21-cv-00400-H-BGS [12] Plaintiff, ORDER DENYING THE COUNTY [13] v. DEFENDANTS’ MOTION TO 14 DISMISS COUNTY OF SAN DIEGO; EVAN 15 SOBZCAK; JACOB MACLEOD; [Doc. No. 7.] UNKNOWN SAN DIEGO SHERIFF’S [16] DEPARTMENT PERSONNEL; CITY OF 17 LA MESA; and UNKNOWN LA MESA POLICE DEPARTMENT PERSONNEL, [18] Defendants. [19] 20 On April 16, 2021, Defendants County of San Diego, Evan Sobzcak, and Jacob 21 MacLeod (collectively, the “County Defendants”) filed a motion to dismiss Plaintiff 22 Michelle Horton’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 23 No. 7.) On May 10, 2021, Plaintiff filed a response in opposition to the County Defendants’ 24 motion to dismiss. (Doc. No. 11.) On May 17, 2021, the County Defendants filed their 25 reply. (Doc. No. 13.) On May 17, 2021, the Court took the matter under submission. 26 (Doc. No. 12.) For the reasons below, the Court denies the County Defendants’ motion to 27 dismiss. 28 /// 1 Background 2 The following factual background is taken from the allegations in Plaintiff’s 3 complaint. On May 30, 2020, Plaintiff’s children were peacefully participating in mass 4 protests in La Mesa, California. (Doc. No. 1, Compl. ¶¶ 1-2, 17-18.) Plaintiff was waiting 5 to meet up with her children, so they could go home. (Id.) At the relevant time, Plaintiff 6 was standing on a sidewalk, near a well-lit gas station, at the corner of Spring Street and 7 University Avenue in La Mesa. (Id. ¶ 17.) 8 Plaintiff alleges that while standing there, law enforcement officers, believed to 9 include Defendants Sobzcak and MacLeod, shot her in the breast with a less-lethal 10 projectile while driving past her. (Id.) Plaintiff alleges that, when shot, she was unarmed; 11 not engaged in any criminal, raucous, or destructive activity; did not pose any threat of 12 harm to anyone; and was not resisting or fleeing arrest. (Id. ¶ 19.) Plaintiff alleges that 13 she was not immersed in a crowd of unruly protestors, nor was she near anyone engaged 14 in criminal, raucous, or destructive activity. (Id.) 15 On March 5, 2021, Plaintiff filed a complaint against Defendants County of San 16 Diego, Sobzcak, MacLeod, and City of La Mesa, alleging claims for: (1) 42 U.S.C. § 1983 17 – excessive force; (2) 42 U.S.C. § 1983 – Monell;1 (3) Bane Act, California Civil Code § 18 52.1(b); (4) battery; and (5) negligence. (Doc. No. 1, Compl.) By the present motion, the 19 County Defendants move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss 20 all of the claims in Plaintiff’s complaint for failure to state a claim. (Doc. No. 7.) 21 Discussion 22 I. Legal Standards for a Rule 12(b)(6) Motion to Dismiss 23 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal 24 sufficiency of the pleadings and allows a court to dismiss a complaint if the plaintiff has 25 failed to state a claim upon which relief can be granted. See Conservation Force v. Salazar, [26] 646 F.3d 1240, 1241 (9th Cir. 2011). Federal Rule of Civil Procedure 8(a)(2) requires that [28] 1 a pleading stating a claim for relief contain “a short and plain statement of the claim 2 showing that the pleader is entitled to relief.” The function of this pleading requirement is 3 to “give the defendant fair notice of what the . . . claim is and the grounds upon which it 4 rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 5 A complaint will survive a Rule 12(b)(6) motion to dismiss if it contains “enough 6 facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, [7] 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual 8 content that allows the court to draw the reasonable inference that the defendant is liable 9 for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading 10 that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of 11 action will not do.’” Id. (quoting Twombly, 550 U.S. at 555 ). “Nor does a complaint 12 suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. 13 (quoting Twombly, 550 U.S. at 557 ). Accordingly, dismissal for failure to state a claim is 14 proper where the claim “lacks a cognizable legal theory or sufficient facts to support a 15 cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097 , 1104 16 (9th Cir. 2008). 17 In reviewing a Rule 12(b)(6) motion to dismiss, a district court must accept as true 18 all facts alleged in the complaint, and draw all reasonable inferences in favor of the 19 claimant. See Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 20 938, 945 (9th Cir. 2014). But a court need not accept “legal conclusions” as true. Iqbal, [21] 556 U.S. at 678 . Further, it is improper for a court to assume the claimant “can prove facts 22 which it has not alleged or that the defendants have violated the . . . laws in ways that have 23 not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of 24 Carpenters, 459 U.S. 519, 526 (1983). 25 In addition, a court may consider documents incorporated into the complaint by 26 reference and items that are proper subjects of judicial notice. See Coto Settlement v. 27 Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). If the court dismisses a complaint for 28 failure to state a claim, it must then determine whether to grant leave to amend. See Doe 1 v. United States, 58 F.3d 494, 497 (9th Cir. 1995); see Telesaurus, 623 F.3d at 1003 (9th 2 Cir. 2010). 3 II. Analysis 4 A. Plaintiff’s § 1983 Claim for Excessive Force 5 In the complaint, Plaintiff alleges a claim pursuant to 42 U.S.C. § 1983 for excessive 6 force in violation of her Fourth Amendment rights against Defendants Sobzcak and 7 MacLeod. (Doc. No. 1, Compl. ¶¶ 28-32.) The Deputy Defendants argue that Plaintiff’s 8 excessive force claim against them fails because Plaintiff has failed to adequately allege 9 facts showing that each of them was personally involved in the unlawful conduct at issue. 10 (Doc. No. 7-1 at 8-9.) 11 “An objectively unreasonable use of force is constitutionally excessive and violates 12 the Fourth Amendment’s prohibition against unreasonable seizures.” Torres v. City of 13 Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). The reasonableness of a use of force is 14 determined based on whether the defendant’s actions were “objectively reasonable” in light 15 of all facts and circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989). “The 16 operative question in excessive force cases is ‘whether the totality of the circumstances 17 justifie[s] a particular sort of search or seizure.’” Cty. of Los Angeles, Calif. v. Mendez, [18] 137 S. Ct. 1539, 1546 (2017). 19 “Section 1983 provides for liability against any person acting under color of law 20 who deprives another ‘of any rights, privileges, or immunities secured by the Constitution 21 and laws’ of the United States.” S. California Gas Co. v. City of Santa Ana, 336 F.3d 885 , 22 887 (9th Cir. 2003) (quoting 42 U.S.C. § 1983 ). “As a predicate to section 1983 liability, 23 each public official must integrally participate in the unlawful [conduct].” Hernandez v. 24 Skinner, 969 F.3d 930 , 941 (9th Cir. 2020); see also Iqbal, 556 U.S. at 676 (“Because 25 vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that 26 each Government-official defendant, through the official’s own individual actions, has 27 violated the Constitution.”). 28 The Ninth Circuit has explained that under the integral-participant doctrine, “[t]he 1 official’s individual actions need not ‘themselves rise to the level of a constitutional 2 violation,’ but the official must be more than a ‘mere bystander[.]’ . . . [F]or example, [the 3 Ninth Circuit has] held that an officer whose actions were ‘instrumental’ in effectuating a 4 constitutional violation was an integral participant.” Hernandez, 969 F.3d at 941. The 5 Ninth Circuit has not “define[d] the minimum level of involvement for liability under the 6 integral-participant doctrine.” Id. 7 The Deputy Defendants argue that Plaintiff’s excessive force claim fails because 8 Plaintiff has merely alleged that the Deputy Defendants were included within a group of 9 law enforcement officers that shot her. (Doc. No. 7-1 at 9.) The Deputy Defendants 10 contend that Plaintiff has failed to allege facts showing their personal involvement. (Id.) 11 In response, Plaintiff explains that she is not attempting to allege a theory of “group 12 liability” against the Deputy Defendants. (Doc. No. 11 at 7.) Plaintiff argues that she has 13 plausibly alleged that both Deputies Sobzcak and MacLeod were integral participants in 14 the alleged violation of her Fourth Amendment rights. (Id.) Plaintiff argues that one 15 deputy would have been driving the car while the other deputy shot, but without discovery, 16 it is unclear at this stage in the litigation which deputy was driving and which deputy fired 17 the shot. (Id.) 18 In the complaint, Plaintiff alleges that law enforcement officers, believed to include 19 Defendants Sobzcak and MacLeod, shot her in the breast with a less-lethal projectile while 20 driving past her even though she was unarmed; not engaged in any criminal, raucous, or 21 destructive activity; did not pose any threat of harm to anyone; and was not resisting or 22 fleeing arrest. (Doc. No. 1, Compl. ¶¶ 17, 19.) Plaintiff also alleges that she was not 23 immersed in a crowd of unruly protestors, nor was she near anyone engaged in criminal, 24 raucous, or destructive activity. (Id. ¶ 19.) These allegations are sufficient to allege a claim 25 for excessive force against Defendants Sobzcak and MacLeod. Cf. Nelson v. City of Davis, [26] 685 F.3d 867 , 884–85 (9th Cir. 2012) (“[O]ur prior cases provided notice to all reasonable 27 officers that targeting [plaintiff] and his group with a projectile weapon with concussive 28 force that could cause serious physical injury . . . was unreasonable under the Fourth 1 Amendment.”). As such, the Court declines to dismiss Plaintiff’s claim for excessive force. 2 B. Plaintiff’s Monell Claim 3 In the complaint, Plaintiff alleges a Monell claim against the County of San Diego. 4 (Doc. No. 1, Compl. ¶¶ 33-40.) The County argues that Plaintiff’s Monell claim against it 5 should be dismissed because the claim is not viable. (Doc. No. 7-1 at 3-7.) 6 “[A] municipality cannot be held liable under § 1983 on a respondeat superior 7 theory.” Monell, 436 U.S. at 691; see also Castro v. Cty. of Los Angeles, 833 F.3d 1060 , 8 1073 (9th Cir. 2016) (“[A] municipality may not be held liable for a § 1983 violation under 9 a theory of respondeat superior for the actions of its subordinates.”). Rather, 10 “municipalities may only be held liable under section 1983 for constitutional violations 11 resulting from official county policy or custom.” Benavidez v. Cty. of San Diego, 993 F.3d 12 1134, 1153 (9th Cir. 2021). 13 “To establish municipal liability under § 1983, a plaintiff ‘must show that (1) she 14 was deprived of a constitutional right; (2) the County had a policy; (3) the policy amounted 15 to a deliberate indifference to her constitutional right; and (4) the policy was the moving 16 force behind the constitutional violation.’” Burke v. Cty. of Alameda, 586 F.3d 725 , 734 17 (9th Cir. 2009) (quoting Mabe v. San Bernardino Cty., Dep’t of Pub. Soc. Servs., 237 F.3d 18 1101 , 1110–11 (9th Cir. 2001)). “[P]olicies can include written policies, unwritten customs 19 and practices, failure to train municipal employees on avoiding certain obvious 20 constitutional violations, and, in rare instances, single constitutional violations are so 21 inconsistent with constitutional rights that even such a single instance indicates at least 22 deliberate indifference of the municipality.” Benavidez, 993 F.3d at 1153 (citation 23 omitted). 24 “As to the single instance category, generally, a single instance of unlawful conduct 25 is insufficient to state a claim for municipal liability under section 1983.” Benavidez, 993 26 F.3d at 1153. “Single acts may trigger municipal liability where ‘fault and causation’ were 27 clearly traceable to a municipality’s legislative body or some other authorized 28 decisionmaker.” Id. “Where, for example, a ‘city has armed its officers with firearms[,] . 1 . . the need to train officers in the constitutional limitations on the use of deadly force can 2 be said to be “so obvious,” that failure to do so could properly be characterized as deliberate 3 indifference to constitutional rights.’” Id. (quoting City of Canton, Ohio v. Harris, 489 4 U.S. 378 , 390 n.10 (1989)). 5 The County argues that Plaintiff’s allegations regarding a single incident that 6 involved two non-policymaking deputies are insufficient to establish a claim under Monell. 7 (Doc. No. 7-1 at 3-7.) In response, Plaintiff, citing City of Canton, 489 U.S. at 390 n.10, 8 argues that the Court should reject the County’s argument because a single incident can 9 establish liability under Monell in a case like this. (Doc. No. 11 at 8-9.) 10 In the complaint, Plaintiff alleges that the Deputy Defendants shot her in the breast 11 with a less-lethal projectile while driving past her even though she was unarmed; not 12 engaged in any criminal, raucous, or destructive activity; did not pose any threat of harm 13 to anyone; and was not resisting or fleeing arrest. (Doc. No. 1, Compl. ¶¶ 17, 19.) Plaintiff 14 also alleges that she was not immersed in a crowd of unruly protestors, nor was she near 15 anyone engaged in criminal, raucous, or destructive activity. (Id. ¶ 19.) Plaintiff alleges 16 that the County is liable under Monell because the deprivation of her Fourth Amendment 17 rights was “substantially caused by a practice/custom of City and County law-enforcement 18 officers using less-lethal force (including projectile, chemical, and impact devices) for 19 mere crowd control purposes, regardless of whether protestors’ individual actions justify 20 such use of force.” (Id. ¶ 37.) These allegations are sufficient to allege a Monell claim 21 against the County.2 Cf. Benavidez, 993 F.3d at 1153 (explaining that when a municipality 22 has armed its officers, a failure to properly train the officers in the limitations on the use of 23 force can constitute deliberate indifference to constitutional rights (citing City of Canton, 24 489 U.S. at 390 n.10)). As a result, the Court declines to dismiss Plaintiff’s Monell claim. [26] 2 The Court rejects the County’s contention that no training is required “to know that shooting a [27] projectile at someone who was ‘waiting quietly’ is wrong.” (Doc. No. 7-1 at 6; see also Doc. No. 13 at 28 5.) At this stage in the proceedings, the Court must draw all reasonable inferences in favor of the plaintiff. 1 C. Plaintiff’s Bane Act Claim 2 In the complaint, Plaintiff alleges a claim for violation of the Bane Act, California 3 Civil Code § 52.1, against the County Defendants. (Doc. No. 1, Compl. ¶¶ 41-45.) The 4 Bane Act, California Civil Code § 52.1, provides a private cause of action against anyone 5 who “interferes by threats, intimidation, or coercion, or attempts to interfere by threats, 6 intimidation, or coercion, with the exercise or enjoyment by an individual or individuals of 7 rights secured by the Constitution or laws of the United States, or laws and rights secured 8 by the Constitution or laws of California.” Cal. Civil Code § 52.1 (b). Section 52.1 requires 9 “an attempted or completed act of interference with a legal right, accompanied by a form 10 of coercion.” Jones v. Kmart Corp., 17 Cal. 4th 329, 334 (1998); accord Austin B., 149 11 Cal. App. 4th at 882. “The essence of a Bane Act claim is that the defendant, by the 12 specified improper means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent 13 the plaintiff from doing something he or she had the right to do under the law or to force 14 the plaintiff to do something that he or she was not required to do under the law.” Austin 15 B., 149 Cal. App. 4th at 883 (quoting Jones, Cal. 4th at 334). The Ninth Circuit has 16 explained that “in excessive force cases . . . , § 52.1 does not require proof of coercion 17 beyond that inherent in the underlying violation.” Rodriguez v. Cty. of Los Angeles, 891 18 F.3d 776, 802 (9th Cir. 2018). 19 The County Defendants argue that Plaintiff’s Bane Act claim fails for the same 20 reasons as Plaintiff’s § 1983 excessive force claim. (Doc. No. 7-1 at 9; Doc. No. 13 at 7.) 21 The Court denied the County Defendants’ motion to dismiss Plaintiff’s § 1983 excessive 22 force claim. As a result, the Court rejects the County Defendants’ arguments for dismissal 23 of Plaintiff’s Bane Act claim, and the Court declines to dismiss the claim. See Rodriguez, 24 891 F.3d at 802. 25 E. Plaintiff’s Claim for Battery 26 In the complaint, Plaintiff alleges a claim for battery against the County Defendants. 27 (Doc. No. 1, Compl. ¶¶ 46-51.) The County Defendants argue that Plaintiff’s claim for 28 battery fails because she has not pled sufficient facts to show the Deputy Defendants’ 1 intent. (Doc. No. 7-1 at 9-10; Doc. No. 13 at 7-8.) 2 Under California law, “[t]he elements of civil battery are: (1) defendant intentionally 3 performed an act that resulted in a harmful or offensive contact with the plaintiff’s person; 4 (2) plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused 5 injury, damage, loss or harm to plaintiff.” Brown v. Ransweiler, 171 Cal. App. 4th 516 , 6 526–27 (2009). “In an action for civil battery the element of intent is satisfied if the 7 evidence shows defendant acted with a ‘willful disregard’ of the plaintiff’s rights.” 8 Ashcraft v. King, 228 Cal. App. 3d 604, 613 (1991). Under Federal Rule of Civil Procedure 9 9(b), intent “may be alleged generally.” 10 In the complaint, Plaintiff alleges that law enforcement officers, believed to include 11 Defendants Sobzcak and MacLeod, shot Plaintiff in her breast with a less-lethal projectile 12 while driving past her. (Doc. No. 1, Compl. ¶ 17.) Plaintiff further alleges that when this 13 happened, she was standing on a sidewalk, near a well-lit area. (Id.) In addition, Plaintiff 14 alleges that the individual defendants intentionally touched her and engaged in actions 15 which caused her to be touched. (Id. ¶ 47.) These factual allegations are sufficient to 16 adequately allege the intent element of Plaintiff’s claim for battery. Cf. Singer v. Marx, [17] 144 Cal. App. 2d 637, 642 (1956) (“If defendant unlawfully aims at one person and hits 18 another he is guilty of assault and battery on the party he hit, the injury being the direct, 19 natural and probable consequence of the wrongful act.”). As a result, the Court declines to 20 dismiss Plaintiff’s claim for battery. 21 F. Plaintiff’s Claim for Negligence 22 In the complaint, Plaintiff alleges a claim for negligence against the County 23 Defendants. (Doc. No. 1, Compl. ¶¶ 52-56.) Under California law, the elements of a claim 24 for negligence are: (1) a legal duty to use due care, (2) a breach of such legal duty, and (3) 25 the breach as the proximate or legal cause of the resulting injury. Vasilenko v. Grace Fam. 26 Church, 3 Cal. 5th 1077, 1083 (2017); Beacon Residential Cmty. Assn. v. Skidmore, 27 Owings & Merrill LLP, 59 Cal. 4th 568, 573 (2014). “The existence of a duty is a question 28 of law.” Vasilenko, 3 Cal. 5th at 1083 . 1 The County Defendants argue that Plaintiff's negligence claim fails because Plaintiff 2 ||has failed to allege facts to show that either Defendant Sobzcak or Defendant MacLeod 3 || personally breached a duty of care to Plaintiff. (Doc. No. 7-1 at 11; Doc. No. 13 at 8.) The 4 ||County Defendants contend that Plaintiff has only alleged facts showing that Defendants 5 ||Sobzcak and MacLeod were included within a group of law enforcement officers that 6 || allegedly shot her. (Id.) The Court rejected this argument with respect to Plaintiff's § 1983 7 || excessive force claim, and, thus, the Court likewise rejects this argument with respect to 8 || Plaintiff's negligence claim. 9 ““Under California law, police officers have a duty not to use excessive force.’” 10 || Lawrence v. City & Cty. of San Francisco, 258 F. Supp. 3d 977, 999 (N.D. Cal. 2017) 11 ||(quoting Warren v. Marcus, 78 F. Supp. 3d 1228, 1251 (N.D. Cal. 2015)); see Mann v. 12 || City of Chula Vista, No. 18-CV-2525-WQH-MDD, 2020 WL 5759749 , at *9 (S.D. Cal. 13 || Sept. 28, 2020) (Under California law, “[p]olice officers owe ‘a duty to use reasonable 14 in deciding whether to use and in fact using force.”). Thus, Plaintiff's excessive force 15 || allegations are sufficient to satisfy the duty element of her negligence claim at the pleading 16 ||stage. See Hofer v. Emley, No. 19-CV-02205-JSC, 2019 WL 4575389 , at *18 (N.D. Cal. 17 || Sept. 20, 2019) (“Because Plaintiffs have plausibly alleged a Section 1983 excessive force 18 ||claim, their negligence claim premised on the same conduct survives.”). As a result, the 19 || Court declines to dismiss Plaintiff's claim for negligence. 20 Conclusion 21 For the reasons above, the Court denies Defendants County of San Diego, Evan 22 Sobzcak, and Jacob MacLeod’s motion to dismiss. Defendants County of San Diego, Evan 23 ||Sobzcak, and Jacob MacLeod must file their respective answers to Plaintiff's complaint 24 || within 30 days from the date this order is filed. 25 IT IS SO ORDERED. 26 || DATED: May 27, 2021 | | |. | | 27 MARILYN HUFF, Distri ge 28 UNITED STATES DISTRICT COURT