Dillman, et al. v. Tuolumne County, et al.

Filing 24

MEMORANDUM DECISION AND ORDER RE DEFENDANT'S MOTION TO DISMISS (Doc. 16) signed by District Judge Lawrence J. O'Neill on July 22, 2013. (Munoz, I)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL DILLMAN, an individual, and,
STEPHEN DILLMAN, an individual,

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1:13-CV-00404 LJO SKO
MEMORANDUM DECISION AND
ORDER RE DEFENDANT’S MOTION
TO DISMISS (DOC. 16)

Plaintiffs,
v.
TUOLUMNE COUNTY, a political subdivision
of the State of California; DEPUTY DAVID
VASQUEZ, an individual, and DOES 1-25,
inclusive,

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Defendants.
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I. INTRODUCTION

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This case concerns the September 18, 2011 arrest of Plaintiffs Michael and Stephen Dillman for

13 alleged “joyriding” and related offenses in connection with their use of a thirteen-foot aluminum fishing
14 boat on Lake Donnell, in Tuolumne County. The Complaint’s first cause of action, brought under 42
15 U.S.C. § 1983, alleges that Defendants Tuolumne County (the “County”) and Tuolumne County
16 Sheriff’s Deputy David Vasquez violated Plaintiffs’ federal constitutional rights by, among other things:
17 (1) subjecting both Plaintiffs to unreasonable force in connection with their arrest; (2) subjecting
18 Michael Dillman to a strip search and other “outrageous humiliation” during the booking process;
19 (3) and singling Michael Dillman out for such a “degrading and humiliating” strip search in part because
20 he “was an ordained pastor accused of a crime.” Doc. 15, Second Amended Compl. (“SAC”), at ¶¶ 3921 46. The Complaint also contains the following related state law claims:
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Violation of California’s Bane Civil Rights Act, Cal. Civ. Code § 52.1, against all
Defendants (Second Cause of Action);

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Battery against Defendant Vasquez (Third Cause of Action);

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Intentional Infliction of Emotional Distress against Defendant Vasquez and “certain yet

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to be named individual defendants” (Fourth Cause of Action);
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defendants” (Fifth Cause of Action); and

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Violation of California Penal Code § 4030 against the County and “certain yet to be
named individual defendants” (Sixth Cause of Action).

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Negligence against Defendant Vasquez and “certain yet to be named individual

SAC at ¶¶ 47-68.
The Complaint was originally filed in the Superior Court for the County of Tuolumne on

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February 13, 2013, but was removed by Defendants on March 18, 2013 pursuant to 28 U.S.C.

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§§ 1441(a) and 1446(a). Doc. 1. Defendants filed a motion to dismiss, Doc. 9, on March 19, 2013, and

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several claims were dismissed with leave to amend, Doc. 14. Plaintiff’s filed their Second Amended

10 Complaint on May 24, 2013. Doc. 15. The County now moves to dismiss. Doc. 16. Plaintiff opposes
11 dismissal. Doc. 20. The County replied to the opposition. Doc. 22.
This motion was originally set for hearing on July 18, 2013, but the hearing was vacated and the

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13 matter submitted for decision on the papers pursuant to Local Rule 230(g). Doc. 23.
II. BACKGROUND1

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On September 18, 2011, after conducting Sunday morning service at his church in Manteca,

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16 Pastor Michael Dillman and his son, Stephen Dillman, drove to Lake Donnell in Tuolumne County,
17 California, to go fishing. SAC ¶ 10. As was their custom and practice over the years, Plaintiffs placed
18 their own motor on a thirteen-foot Valco aluminum boat at Lake Donnell. SAC ¶ 11. There was no
19 registration, insignia, or identification on the boat. Id. According to Plaintiffs, for the last thirty years
20 they and other fisherman have left aluminum boats moored at Lake Donnell. Id. It has been common
21 practice to pack in one’s own motor, place it on one of the moored boats, take the boat fishing, and then
22 return the boat to the dock. Id. In fact, in or around 2010 Michael Dillman purchased an aluminum boat
23 identical to the boat Plaintiffs used on September 18, 2011, and left that boat at Lake Donnell for his
24 own use and for use by other fishermen. Id. Two aluminum boats purchased by Plaintiffs are moored
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These background facts are drawn exclusively from the SAC, the truth of which must be assumed for purposes of a Rule

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currently at Lake Donnell. Id.
While Plaintiffs were out on Lake Donnell on September 18, 2011, an employee of Tri-Dam

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Project, the entity that operates the facility at Lake Donnell, called the Tuolumne County Sheriff’s

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Department to report seeing two unidentified men place a motor on an aluminum boat that allegedly

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belonged to Tri-Dam Project. SAC ¶ 12. The men then took the boat out fishing. Id. The Tri-Dam

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Project employee viewed these events on surveillance cameras at Lake Donnell. Id.

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After returning from fishing, Plaintiffs were met by Defendant Tuolumne County Sheriff’s

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Deputy David Vasquez, who ordered them up a ladder at the dam facility and informed them they were

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under arrest for joyriding in a boat, trespass, and vandalism. SAC ¶ 13. Defendant Vasquez then

10 handcuffed Plaintiffs with their hands behind their backs, in a “high, tight and painful manner.” Id.
11 Michael Dillman explained to Deputy Vasquez that he was a pastor, a community leader, and that he
12 was unarmed and posed no threat to him. Id. Michael Dillman also explained to Deputy Vasquez that he
13 was a Vietnam War veteran and suffered from Post-Traumatic Stress Disorder (“PTSD”) and extreme
14 claustrophobia. Id. At the time of the incident, Michael Dillman was 63 and suffered from arthritic
15 shoulder pain, which was exacerbated by the high and tight handcuff placement behind his back. Id.
16 Upon being cuffed, he began to feel pain immediately, which escalated to “an excruciating level.” Id.
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Michael Dillman pled with Deputy Vasquez to cite and release him and his son and to refrain

18 from placing them into the back of the police vehicle with their arms cuffed behind their backs. SAC
19 ¶ 14. Michael Dillman told Deputy Vasquez that he feared if he was placed in such a position in the
20 back of a vehicle with the windows rolled up, he would suffer a PTSD episode. Id. He pled with Deputy
21 Vasquez to loosen the cuffs to reduce the pain or to cuff him in front and to crack the window in the
22 back of the vehicle so he could get air. Id. Deputy Vasquez finally agreed to “double cuff” Michael
23 Dillman. Id. However, Michael Dillman’s hands remained behind his back and the cuffs were extremely
24 tight on his wrists. Id.
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Plaintiffs were “shoved” into the back of Deputy Vasquez’s vehicle and immediately transported

26 to the Tuolumne County Jail in Sonora, California, over an hour drive from Lake Donnell. SAC ¶ 15. A
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portion of the drive was on a bumpy road, and both men were cuffed behind their backs in an extremely

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painful manner. Id. Plaintiff Michael Dillman continued to plead with Deputy Vasquez to crack the

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window and loosen his handcuffs. Id. Instead of doing so, Deputy Vasquez cursed Michael Dillman and

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threatened to “hog tie his ass!” Id. Michael Dillman then suffered a “PTSD episode” during the transport

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to the Tuolumne County Jail. Id.

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When Plaintiffs arrived at the Tuolumne County Jail they were cursed and humiliated by

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Tuolumne County Sheriff’s Department personnel. SAC ¶ 17. Michael Dillman was then called a

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“psycho preacher” and was forced to completely undress in the presence of two female deputies, who

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openly commented on his nakedness. Id. Stephen Dillman was not strip-searched. Id. Michael Dillman

10 was then separated from his son and placed naked in a small padded cell on cold concrete and given no
11 way to cover his nakedness or protect himself from the cold. Id. After approximately two hours in that
12 padded cell, Michael Dillman was returned to a holding cell with his son. Id.
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Plaintiffs were released from custody at approximately 1:00 a.m. on September 19, 2011. SAC

14 ¶ 18. According to Plaintiffs, Jail personnel refused to return money that had been confiscated from
15 them during the booking process. Id. Instead, Plaintiffs were given a voucher card, which required them
16 to wait until the banks opened in the morning before they could access any money. Id.
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Tuolumne County chose to prosecute Plaintiffs, and a criminal jury trial commenced on February

18 6, 2012. SAC ¶ 19. Plaintiffs were acquitted of all charges. Id.
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III. STANDARD OF DECISION
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is a challenge to the sufficiency of the

21 allegations set forth in the complaint. A 12(b)(6) dismissal is proper where there is either a “lack of a
22 cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.”
23 Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In considering a motion to dismiss
24 for failure to state a claim, the court generally accepts as true the allegations in the complaint, construes
25 the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the
26 pleader’s favor. Lazy Y. Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
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To survive a 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim

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to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim

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has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for

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more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at

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556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops

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short of the line between possibility and plausibility for entitlement to relief.’” Id. (quoting Twombly,

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550 U.S. at 557).

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“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual

11 allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more
12 than labels and conclusions.” Twombly, 550 U.S. at 555 (internal citations omitted). Simply stated, “a
13 formulaic recitation of the elements of a cause of action will not do.” Id. Thus, “bare assertions ...
14 amount[ing] to nothing more than a ‘formulaic recitation of the elements’... are not entitled to be
15 assumed true.” Iqbal, 556 U.S. at 681. In practice, “a complaint ... must contain either direct or
16 inferential allegations respecting all the material elements necessary to sustain recovery under some
17 viable legal theory.” Twombly, 550 U.S. at 562. To the extent that the pleadings can be cured by the
18 allegation of additional facts, the plaintiff should be afforded leave to amend. Cook, Perkiss and Liehe,
19 Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted).
IV. DISCUSSION

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Section 1983 Claim.

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The First Cause of Action alleges that the County violated Title 42, United States Code, Section

23 1983 (“Section 1983”). SAC ¶¶ 39-46. Section 1983 creates a cause of action “against any person acting
24 under color of law who deprives another of any rights, privileges, or immunities secured by the
25 Constitution and laws of the United States.” Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885,
26 887 (9th Cir. 2003). The SAC alleges the County violated Plaintiffs’ First, Fourth, and Fourteenth
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Amendments rights. SAC ¶¶ 42-43.

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The County moves to dismiss any claims against it, arguing that Plaintiff has failed to satisfy the

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requirements of Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978), which provides

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that a municipality cannot be liable under § 1983 on a respondeat superior theory (i.e., simply because it

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employs someone who deprives another of constitutional rights). Rather, liability only attaches where

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the municipality itself causes the constitutional violation through a “policy or custom, whether made by

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its lawmakers or those whose edicts or acts may fairly be said to represent official policy.” Id. at 694.

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Therefore, municipal liability in a § 1983 case may be premised upon: (1) an official policy; (2) a

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“longstanding practice or custom which constitutes the standard operating procedure of the local

10 government entity;” (3) the act of an “official whose acts fairly represent official policy such that the
11 challenged action constituted official policy;” or (4) where “an official with final policy-making
12 authority delegated that authority to, or ratified the decision of, a subordinate.” Price v. Sery, 513 F.3d
13 962, 966 (9th Cir. 2008).
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Plaintiffs do not use any of the four premises described in Price, but instead allege that

15 “[m]ultiple civil rights offenses by multiple County employees creates [sic] a plausible inference of… a
16 failure to properly train.” Doc. 20, p. 5.
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It is true that complete inadequacy of training may constitute a “policy” giving rise to Monell

18 liability; however, “adequately trained officers occasionally make mistakes; the fact that they do says
19 little about the training program or the legal basis for holding the [municipality] liable.” City of Canton
20 v. Harris, 489 U.S. 378, 379 (1989). Therefore, a claim of inadequate training is only cognizable under
21 Section 1983 “where that city’s failure to train reflects deliberate indifference to the constitutional rights
22 of its inhabitants.” Id. at 392.
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A section 1983 plaintiff alleging a policy of failure to train peace officers must show: (1) he/she

24 was deprived of a constitutional right; (2) the local government entity had a training policy that amounts
25 to deliberate indifference to constitutional rights of persons with whom its peace officers are likely to
26 come into contact; and (3) his/her constitutional injury would have been avoided had the local
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government unit properly trained those officers. Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th

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Cir. 2007). “[A]bsent evidence of a program-wide inadequacy in training, any shortfall in a single

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officer’s training can only be classified as negligence on the part of the municipal defendant” which falls

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far short of the required deliberate indifference. Id. at 484-85 (internal citations and quotations omitted).

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In short, “the identified deficiency in a city’s training program must be closely related to the ultimate

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injury.” Canton, 489 U.S. at 391. The required “deliberate indifference” is established where “the need

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for more or different training is so obvious, and the inadequacy so likely to result in the violation of

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constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately

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indifferent to the need.” Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 2010)

10 (quoting Canton, 489 U.S. at 390).
Failure to Train – Pattern of Violations

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In order to prove that a failure to train amounts to deliberate indifference, it is “ordinarily

13 necessary” to demonstrate “a pattern of similar constitutional violations by untrained employees.”
14 Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011).
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In this case, Plaintiffs attempt to characterize events which occurred on a single day as two

16 separate incidents and further suggest that because multiple officers took part in the events of that day,
17 there was a pattern of similar violations by the employees. Doc. 20, p. 6.
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Plaintiffs cite Tandel v. County of Sacramento, U.S. Dist. LEXIS 21628 (E.D. Cal. Feb. 17,

19 2012), for the proposition that multiple acts of constitutional mistreatment from multiple personnel can
20 constitute a pattern of similar violations. Doc. 20, p. 6. In Tandel, an inmate was allegedly subjected to a
21 series of constitutional violations over a period of several weeks. Tandel at *4-8. The inmate was
22 repeatedly denied medical attention for a condition that later severely disabled him, and was generally
23 mistreated and ignored by multiple jail personnel over the several weeks in question. Id. Tandel is easily
24 distinguishable from the instant case in that the incidents in Tandel were distinct from one another,
25 occurred several days apart, and involved different personnel. Id.
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In the instant case, the relevant events took place within the span of a single day, in one
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unbroken series of events. Plaintiffs fail to cite, and this Court cannot identify any authority in which

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violations that occurred only a few hours apart, as part of the same arrest and detention, were considered

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separate incidents from which one could infer a pattern of violations. Adopting Plaintiffs’ legal theory

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would blur the distinction between the single-incident and multiple-incident theories of liability for

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failure to train.

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Plaintiffs also fail to cite any authority stating that multiple officers taking part in the same

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incident can satisfy the pattern necessary for a failure to train claim without first satisfying the much

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more stringent test for single-incident liability. The available authorities suggest otherwise. For example,

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in Tsao v. Desert Palace, Inc., 698 F.3d 1128 (9th Cir. 2012), several security guards arrested a single

10 casino patron who alleged constitutional violations occurred during the arrest. The Tsao court found that
11 “the absence here of any evidence of a pattern makes it far less likely that Tsao can prove Desert Palace
12 was ‘on actual or constructive notice,’ [citations omitted], that its policy would lead to constitutional
13 violations.” Tsao, 698 F.3d at 1145. This shows that, contrary to Plaintiffs’ suggestion, the mere fact
14 that multiple personnel were involved in an incident does not demonstrate a pattern of similar violations.
15 Compare Id. with De-Occupy Honolulu v. City & County of Honolulu, 2013 U.S. Dist. LEXIS 71969
16 (D. Haw. May 21, 2013) (Multiple constitutional violations occurring in eight separate instances were
17 sufficient to show a pattern of violations).
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As Plaintiffs have failed to allege facts that could show a pattern of violations, this case must be

19 analyzed under the single-incident theory of liability.
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Failure to Train – Single Incident

Connick affirmed the validity of the so-called “single-incident” theory, finding a particular

22 showing of “obviousness … can substitute for the pattern of violations ordinarily necessary to establish
23 municipal liability.” Connick, 131 S. Ct. at 1361. A May 7, 2013 order in this case summarized the
24 relevant standard:
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To qualify under this theory, a single violation of a protected right
must be a “highly predictable consequence” of a failure to train. Id. Connick
reaffirmed the viability of “single incident” failure to train liability earlier
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articulated in City of Canton, 489 U.S. 378. In Canton, the Supreme Court
discussed a hypothetical in which a city deploys an armed police force into
the public to capture fleeing felons without first training the officers in the
constitutional limitations on the use of deadly force. Canton, 489 U.S. at
390 n.10. This hypothetical was an example of a circumstance in which a
single incidence would trigger failure to train liability. Id. “The likelihood
that [a] situation will recur” as well as “the predictability that an officer
lacking specific tools to handle that situation will violate citizens’ rights” are
factors which could justify a finding that “policymakers’ decision not to
train the officer reflected ‘deliberate indifference’ to the obvious
consequence of the policymakers’ choice” Bd. of Cnty. Comm’rs of Bryan
Cnty., Okl. v. Brown, 520 U.S. 397, 409 (1997). “The high degree of
predictability may also support an inference of causation-that the
municipality’s indifference led directly to the very consequence that was so
predictable.” Id. at 409-10.
Connick dealt with the question of whether failure to train liability
may be imposed upon a district attorney’s office based upon a single Brady
violation. Connick, 130 S. Ct. at 1880 (mem.) (granting certiorari “limited to
Question 1 presented by the petition”); Connick v. Thompson, 2009 WL
3776259, *i (Nov. 6, 2009) (Petition for Writ of Certiorari setting forth
questions presented). In distinguishing Connick’s facts from the example
noted in Canton, the Supreme Court found “the nuance of the allegedly
necessary training” to be significant. Connick, 131 S. Ct. at 1363. The
Supreme Court observed that “[t]he Canton hypothetical assumes that the
armed police officers have no knowledge at all of the constitutional limits
on the use of deadly force.” Id. In such a case, absence of training leaves an
officer with an “utter lack of an ability to cope with constitutional
situations.” Id. A single-incident theory can arise in circumstances with “the
complete absence of legal training that the Court imagined in Canton.” Id.
“[F]ailure-to-train liability is concerned with the substance of the training,
not the particular instructional format.” Id. Deliberate indifference was
lacking in Connick because the plaintiff’s theory was necessarily “that
prosecutors were not trained about particular Brady evidence or the specific
scenario related to the violation in [his] case. That sort of nuance [in
training] simply cannot support an inference of deliberate indifference.” Id.
“Connick thus recognizes that Canton’s single incident theory does not
allow inquiry into subtleties of training. Canton should not be read to infer
deliberate indifference for failure to train after any violation, for in virtually
every instance of a constitutional violation by a city employee a § 1983
plaintiff will be able to point to something the city could have done to
prevent the unfortunate incident.” Wereb v. Maui Cnty., 830 F. Supp. 2d
1026, 1033 (D. Haw. 2011) (quoting Connick, 131 S. Ct. at 1363) (internal
quotations omitted).
[S]howing merely that additional training would have been helpful in
making difficult decisions does not establish municipal liability. Proving
that an injury or accident could have been avoided if an employee had had
better or more training, sufficient to equip him to avoid the particular injurycausing conduct will not suffice. Id. at 1363–64 (quoting Connick, 131 S.
Ct. at 1363-64.).
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Doing so would “provide plaintiffs or courts carte blanche to
micromanage local governments[.]” Id.

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In Wereb, for example, a pretrial detainee died from complications
related to alcoholism while in the custody of defendant Maui County. See
Wereb v. Maui County, 727 F. Supp. 2d 898, 903 (D. Haw. 2010)
(discussing factual background). Plaintiffs, the decedent’s parents, alleged
that the Maui County employees who were responsible for monitoring
pretrial detainees received neither basic medical training nor training on the
risks of alcohol withdrawal. Wereb, 830 F. Supp. 2d at 1029. Maui’s Police
Chief, as well as many Maui Police Department employees, was aware that
a large population of homeless alcoholics lived in the area and frequented
the police station where decedent had been detained. Id. at 1029. The Court
concluded that, “the failure to provide detainees with the right to medical
care was an obvious consequence” of assigning the monitoring task to
individuals who had a complete lack of medical training and therefore could
pass the “single-incident” theory of liability. Id. at 1034 (emphasis added).
However, plaintiffs’ more specific theory that Maui County should have
trained the employees on the specific symptoms of alcohol withdrawal was
“too specialized and narrow” because “it could not have been patently
obvious that unconstitutional consequences would be a highly predictable
result of a failure to train specifically on alcohol withdrawal.” Id. at 1035.
Further, the department would then “face potential liability for any gap in
training” which “is precisely the kind of micromanagement …that the
Supreme Court has instructed courts to avoid.” Id. at 1035-36.

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Doc. 14, p. 19-21.

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Here, the SAC acknowledges that Tuolumne County has specific policies regarding the
application of handcuffs and the use of strip searches. SAC ¶ 20. As was the case in Plaintiff’s initial
complaint, Doc 1, Ex. A, the SAC does set forth facts suggesting that these polices were breached, but
nowhere suggests that employees received no training on this subject. The most that the SAC says with
regard to training is that the department was “underfunded, fractured, and had a hard time retraining2
patrol officers,” and that the department provided no “ethics training.” SAC ¶ 25-26. The SAC fails to
allege a complete lack of training with reference to handcuffs, strip searches, or constitutional rights.
Connick requires a showing that defendant “was on notice that, absent additional specified training, it
was ‘highly predictable’ ” that relevant employees would violate constitutional rights. See Connick, 131

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The SAC quotes from a local newspaper article, incorporated in the SAC as exhibit 2. However, the article actually states

26 that the department had trouble “retaining” officers not “retraining” them.
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S. Ct. 1366. To provide Defendants with adequate notice, Plaintiffs must do more than make a

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conclusory allegation that the County did not “properly train” its employees. SAC ¶ 27.
Plaintiffs were previously afforded an opportunity to amend to cure this defect. Doc. 14, p. 23.

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They failed to do so. Defendant’s motion to dismiss the Section 1983 claims against the County is

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therefore GRANTED WITHOUT LEAVE TO AMEND.

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2.

Fourteenth Amendment/ First Amendment.

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The SAC specifically alleges that the strip search violated Michael Dillman’s Fourteenth

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Amendment rights to “due process of law and equal protection, in that he and his son were both pre-trial

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detainees arrested on suspicion of the same non-violent misdemeanors… and yet only Plaintiff [Michael

10 Dillman] was singled out to be subjected to the humiliating strip search and naked confinement….”
11 SAC ¶ 43. In addition, the SAC alleges Michael Dillman “was singled out for the degrading and
12 humiliating strip search in part because he was an ordained pastor accused of a crime,” in violation of
13 his First Amendment right “to the free expression and observance of his religious convictions.” Id. As
14 to the County, these claims fail for the reasons stated above. Plaintiffs have failed to satisfy Monell.
15 B.

Section 52.1 Claim

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Defendant argues that the § 52.1 claim based upon the arrest and transport should be dismissed

17 because “Plaintiffs have failed to allege facts demonstrating that the County committed any
18 constitutional violation.” Doc. 16-1, p. 7.
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California Civil Code Section 52.1, known as the California Bane Act, addresses civil actions for

20 protection of rights and remedies for violations of protected rights:
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(a) If a person or persons, whether or not acting under color of law, interferes by threats,
intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion,
with the exercise or enjoyment by any individual or individuals of rights secured by the
Constitution or laws of the United States, or of the rights secured by the Constitution or
laws of this state, the Attorney General, or any district attorney or city attorney may bring
a civil action for injunctive and other appropriate equitable relief in the name of the
people of the State of California, in order to protect the peaceable exercise or enjoyment
of the right or rights secured....

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(b) Any individual whose exercise or enjoyment of rights secured by the Constitution or
laws of the United States, or of rights secured by the Constitution or laws of this state,
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has been interfered with, or attempted to be interfered with, as described in subdivision
(a), may institute and prosecute in his or her own name and on his or her own behalf a
civil action for damages ...

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A Section 52.1 plaintiff must demonstrate that a constitutional violation “occurred and that the

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violation was accompanied by threats, intimidation or coercion within the meaning of the statute.”

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Barsamian v. City of Kingsburg, 597 F. Supp. 2d 1054, 1057 (E.D. Cal. 2009). “The essence of a Bane

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Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or

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coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under

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the law or to force the plaintiff to do something that he or she was not required to do under the law.”

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Austin B. v. Escondido Union School Dist., 149 Cal. App. 4th 860, 883 (2007).

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In a May 7, 2013 order in this case, this Court stated that “there is no need for a plaintiff to allege

11 a showing of coercion independent from the coercion inherent in the seizure or use of force.” Doc. 14, p.
12 27. The facts allege unreasonable seizure and excessive use of force against the officers, both of which
13 imply coercion within the constitutional violation. Since no independent showing of coercion is
14 necessary, Plaintiffs may bring § 52.1 claims against the officers and the county may be held vicariously
15 liable for those rights violations.
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Defendant seems to argue that since none of Plaintiffs’ § 1983 claims against the county survives

17 dismissal, those claims cannot form the foundation of a § 52.1 claim, and therefore the § 52.1 claims
18 should also be dismissed. Unlike § 1983 claims however, § 52.1 claims may attach to a government
19 entity through respondeat superior liability. Gant v. County. of Los Angeles, 765 F. Supp. 2d 1238, 1249
20 (C.D. Cal. 2011). “California … has rejected the Monell rule and imposes liability on counties under the
21 doctrine of respondeat superior for acts of county employees; it grants immunity to counties only where
22 the public employee would also be immune.” Robinson v. Solano County, 278 F.3d 1007, 1016 (9th Cir.
23 2002). See also Cameron v. Craig, 713 F.3d 1012, 1023 (9th Cir. 2013); Edgerly v. City and County of
24 San Francisco, 599 F.3d 946, 961 (9th Cir. 2010); Megargee v. Wittman, 550 F. Supp. 2d 1190, 1208
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1

(E.D. Cal. 2008). 3 This means that Plaintiffs’ § 52.1 claims need not meet the Monell standard, and can

2

exist independently of any § 1983 claims against the county.

3

“A public entity is liable for injury proximately caused by an act or omission of an employee of

4

the public entity within the scope of his employment if the act or omission would … have given rise to a

5

cause of action against that employee.” Cal. Gov. Code § 815.2 (emphasis added). The facts alleged in

6

the SAC give rise to the inference that the officers were acting within the scope of their employment

7

during the arrest of Plaintiffs. As such, the County can be held liable for the constitutional violations of

8

their employees under § 815.2. The SAC alleges sufficient facts to support a § 52.1 claim against the

9

officers, and that those officers were allegedly acting within the scope of their duties. Defendant offers

10 no reason why a § 52.1 claim should not continue against the County.
Defendant’s motion to dismiss the § 52.1 claim on the ground that it fails to satisfy Monell is

11

12 therefore DENIED.
V. CONCLUSION AND ORDER

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For the reasons set forth above,

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(1) Defendant’s motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND as to the

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Section 1983 claims; and

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(2) Defendant’s motion to dismiss is DENIED as to the Section 52.1 claims.

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19 IT IS SO ORDERED.
Dated:

20

/s/ Lawrence J. O’Neill

July 22, 2013

UNITED STATES DISTRICT JUDGE
DEAC_Sig nature-END:

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3

It is troubling that neither Plaintiffs nor Defendants cite to any of these authorities. The Court reminds Counsel that failure

26 to cite obviously controlling authority is sanctionable conduct.

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