Moland et al v. City of Ceres et al

Filing 37

MEMORANDUM DECISION and ORDER GRANTING Defendants' Motions to Dismiss (Docs. 18 , 19 , 20 ) signed by Chief Judge Lawrence J. O'Neill on 1/18/2017. Plaintiffs shall have twenty (20) days from electronic service of this Order to file an amended complaint or give notice that she will stand on the current pleading. (Jessen, A)

1
2
UNITED STATES DISTRICT COURT
3
FOR THE EASTERN DISTRICT OF CALIFORNIA
4
5

ROSIO MOLAND, ET AL.,

6

Plaintiffs,

7
8

1:16-cv-01073-LJO-SKO
MEMORANDUM DECISION AND
ORDER GRANTING DEEFENDANTS’
MOTIONS TO DISMISS

v.
CITY OF CERES ET AL.,

9

(ECF Nos. 18, 19, 20.)

Defendants.

10
11
I. INTRODUCTION

12
13

Plaintiffs Rosio Moland, Shon Moland, and Mya Moland file this action against Defendants

14 Thomas Miller (“Miller”) and the City of Ceres (“City”). Rosio Moland sues on her own behalf, as
15 Guardian ad Litem for Shon and Mya Moland, and as administrix of the Jason Moland Estate. This
16 action arises out of the fatal shooting of Jason Moland, Plaintiff Rosio Moland’s husband, by Miller, a
17 police officer employed by the City of Ceres.
18

Plaintiffs bring a federal claim pursuant to 42 U.S.C. § 1983 (“§ 1983”), alleging violations of

19 the Fourth and Fourteenth Amendments, and various state law claims. Now before the Court is
20 Defendant City’s Motion to Dismiss the first amended complaint (“FAC”) under Federal Rule of Civil
21 Procedure 12(b)(6). This matter is suitable for disposition without oral argument. See Local Rule 230(g).
22

II. BACKGROUND

23 A.

Procedural Background

24

Plaintiffs filed the original complaint (“OC”) on May 6, 2016 in Stanislaus County Superior

25 Court. On July 25, 2016, Defendant City filed a Notice of Removal pursuant to 28 U.S.C. § 1441 and
26

1

1

the case was removed to this Court. (ECF No. 1.) Federal question jurisdiction exists pursuant to 28

2

U.S.C. § 1331 with respect to Plaintiffs’ federal law claims, and this Court may exercise supplemental

3

jurisdiction over Plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367. Venue is proper in this Court.
The FAC sets forth the same seven causes of action: (1) violation of the Fourth and Fourteenth

4
5

Amendments pursuant to 42 U.S.C. § 1983 as to Defendants Miller and Does 1-10 (first cause of action)

6

and as to City, Police, and Does 11-100 (second cause of action); (2) negligence pursuant to California

7

Government Code §§ 820 and 815.2 (third cause of action); (3) negligent infliction of emotional distress

8

(fourth cause of action); (4) intentional infliction of emotional distress (fifth cause of action); (5)

9

survival action on behalf of the Estate of Jason Moland pursuant to California Code of Civil Procedure

10 § 377.30 (sixth cause of action); and (6) wrongful death pursuant to California Code of Civil Procedure
11 § 377.60 (seventh cause of action). Plaintiffs seek damages of not less than $25,000.
On October 18, 2016, the Court dismissed the OC against Defendant City on the grounds that

12

13 Plaintiffs did not adequately plead that Defendant Miller was acting under color of law when he shot
14 Jason Moland and, alternatively, that Plaintiffs did not plead a Monell claim against Defendant City.
15 (Order, ECF No. 12.) The Court granted Plaintiffs leave to amend the complaint. On November 7, 2016,
16 Plaintiffs filed the first amended complaint (“FAC”). Defendants City and Miller moved to dismiss all
17 causes of action stated against them. (ECF Nos. 19, 20.) Plaintiffs filed late oppositions to both motions.
1
18 (ECF Nos. 27, 28). Defendants each submitted a reply. (ECF Nos. 35, 36.) The matter is now ripe for

19 review.
20 B.

Factual Allegations

21

The factual allegations contained in the FAC are largely the same as those contained in the OC

22 and recited in this Court’s October 18 Order. (Order at 1-2.) The FAC contains one paragraph that
23
24
25
26

1

Plaintiffs filed their oppositions six days late. This Court granted Plaintiffs an extension of time to file pursuant to Federal
Rule of Civil Procedure 6(b). (ECF No. 33.) As the Court previously indicated, any future ignoring of the Rules will not be so
easily forgiven.

2

1

expands upon the factual allegations in the OC:
Plaintiff is informed and believes and thereon alleges, that as Jason
Moland approached MILLER identified himself as a police officer of the
City of Ceres and in accordance with that department policies fired at
Jason Moland with the intent to kill him. Once the fatal shot or shots were
fired MILLER took control of the scene using his position as a police
officer to direct plaintiff and control the incident scene until other police
officers from another agency arrived. Once other officers arrived MILLER
continued to identify himself as a Ceres police officer with authority over
the scene while plaintiff was separated from the subsequent health care of
Jason Moland and the investigation. MILLER’s actions from the point of
identifying Jason Moland as a threat before shooting him, was in
compliance with the City of Ceres police department procedures asserting
authority of law over Jason Moland and plaintiff from that point until the
inception of the investigation by the Modesto Police. MILLER’S actions
during this time frame was in compliance with the standard Ceres Police
procedures to assert the authority of the Ceres Police department when an
individual officer is off duty in order to protect the officer and the public
from injury or harm. MILLER’s actions leading up to the shooting put him
in the position of danger, and his actions in compliance with standard
Ceres Police department policies identified above, which were
subsequently ratified by the Ceres Police department, of acting as an
officer and using deadly force while identifying himself as an officer and
acting as such violated plaintiff and Jason Moland’s constitutional rights.

2
3
4
5
6
7
8
9
10
11
12
13
14 (FAC ¶ 9.)

III. STANDARD OF DECISION
15
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is a challenge to the
16
sufficiency of the allegations set forth in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.
17
2001). A 12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal theory” or “the
18
absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police
19
Dept., 901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim upon which
20
relief may be granted, the Court accepts as true the allegations in the complaint, construes the pleading
21
in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader’s
22
favor. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
23
Under Rule 8(a), a complaint must contain “a short and plain statement of the claim showing that
24
the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and
25
26

3

1

the grounds upon which it rests.” A plaintiff is required to allege “enough facts to state a claim to relief

2

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

3

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

4

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

5

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

6

sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
While Rule 8(a) does not require detailed factual allegations, “it demands more than an

7
8

unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading is

9

insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the elements of a

10 cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the
11 elements of a cause of action, supported by mere conclusory statements, do not suffice.”). Moreover, it
12 is inappropriate to assume that the plaintiff “can prove facts that it has not alleged or that the defendants
13 have violated the . . . laws in ways that have not been alleged[.]” Associated Gen. Contractors of Cal.,
14 Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). In practice, “a complaint . . . must
15 contain either direct or inferential allegations respecting all the material elements necessary to sustain
16 recovery under some viable legal theory.” Twombly, 550 U.S. at 562. In other words, the complaint must
17 describe the alleged misconduct in enough detail to lay the foundation for an identified legal claim.
18 “Dismissal without leave to amend is proper if it is clear that the complaint could not be saved by
19 amendment.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008). To the extent that the
20 pleadings can be cured by the allegation of additional facts, the Court will afford the plaintiff leave to
21 amend. Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.
22 1990) (citations omitted).
23

IV. DISCUSSION

24 A.

Defendant Miller’s Motion to Dismiss

25

Plaintiffs argue that Miller is precluded from moving to dismiss the FAC because Miller did not

26

4

1

move to dismiss the OC. (ECF No. 27 at 3.) According to Plaintiffs, by failing to oppose the FAC and

2

by filing answers in state and federal court, Miller waived his right to contest the FAC for failure to state

3

a claim. (Id.) Defendant Miller counters that Plaintiffs’ waiver argument is not supported by case law

4

and that the argument is made in bad faith because he was not served with the complaint until after the

5

case was removed to federal court, and was not notified of the removal by Plaintiffs. (ECF No. 36 at 2-

6

3.)

7

As a general rule, when a plaintiff files an amended complaint, the amended complaint

8

supersedes the original, the latter being treated thereafter as non-existent. Pac. Bell Tel. Co. v. Linkline

9

Communications, Inc., 555 U.S. 438, 456 n.4 (2009) (citing 6 C Wright and A. Miller, Federal Practice

10 & Procedure § 1476, pp. 556-57 (2d ed. 1990)). After the filing of the amended complaint, prior
11 complaints no longer perform any function in the case. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.
12 1992). Indeed, courts regularly deny as moot motions to dismiss an original complaint after an amended
13 complaint has been filed. See, e.g., Wensel v. Subia, No. CIV S-07-0900JAMEFBP, 2009 WL 251132,
14 at *1 (E.D. Cal. Feb. 3, 2009)
15

Because the FAC supersedes the OC in its entirety, Defendant did not waive his right to move to

16 dismiss the FAC by failing to move to dismiss the OC. Lowry v. Metro. Transit Bd. MTBS, No.
17 09CV882BTM WVG, 2010 WL 1571216, at *1 (S.D. Cal. Apr. 16, 2010) (considering defendant’s
18 motion to dismiss the amended complaint on the merits although defendant did not move to dismiss the
19 original complaint); McCloud v. Pierce Cty. Sheriff Dep’t, No. 316CV05098BHSDWC, 2016 WL
20 3675904, at *6 (W.D. Wash. June 6, 2016), report and recommendation adopted, No. C16-5098 BHS21 DWC, 2016 WL 3618082 (W.D. Wash. July 6, 2016) (“While [defendant] did not move to dismiss the
22 claims alleged against him, if [plaintiff] files an amended complaint it will act as a complete substitute to
23 the original Complaint and therefore [plaintiff] must include all claims against [defendant] in the
24
25
26

5

1

amended complaint.”). Miller is entitled to have his motion considered on the merits.2

2

B.

Violation of the Fourth and Fourteenth Amendments under 42 U .S.C. § 1983

3

To state a claim under § 1983, plaintiff must allege that: (1) the conduct complained of was

4

committed by a person acting under color of state law; and (2) that the conduct deprived plaintiff of

5

rights, privileges or immunities secured by the Constitution or laws of the United States. Jensen v. City

6

of Oxnard, 145 F.3d 1078, 1082 (9th Cir. 1998).

7

1.

8

The Supreme Court has interpreted the phrase “under ‘color’ of law” to mean “under ‘pretense’

9

Color of Law Analysis

of law.” Screws v. United States, 325 U.S. 91, 111 (1945). “[A]cts committed by a police officer even

10 while on duty and in uniform are not under color of state law unless they are in some way related to the
11 performance of police duties.” Gibson v. City of Chicago, 910 F.2d 1510, 1516 n.10 (7th Cir. 1990)
12 (internal citations omitted).
13

The color of law analysis has three components. First, the act constituting the deprivation of

14 constitutional rights must have been “performed while the officer [was] acting, purporting, or pretending
15 to act in the performance of his or her official duties.” McDade v. West, 223 F.3d 1135, 1140 (9th Cir.
16 2000). Second, “the officer’s pretense of acting in the performance of his duties must have had the
17 purpose and effect of influencing the behavior of others.” Anderson v. Warner, 451 F.3d 1063, 1068-69
18 (9th Cir. 2006) (citing Van Ort v. Estate of Sandwich, 92 F.3d 831, 839-40 (9th Cir. 1996)). Third, the
19 challenged conduct must be “related in some meaningful way either to the officer’s governmental status
20 or to the performance of his duties.” Martinez v. Colon, 54 F.3d 980, 987 (1st Cir. 1995).
21

In its October 18 Order, the Court dismissed Plaintiffs’ § 1983 claim against Defendants City

22
23
24
25
26

2

Because it is clear that Miller did not waive his right to file a motion to dismiss, the Court need not address Miller’s
argument that Plaintiffs’ waiver argument was made in bad faith. However, the Court notes that the Proof of Service does
indicate that Miller was not served with the complaint until September 12, 2016, almost two months after the case was
removed to federal court and after the City of Ceres filed their motion to dismiss the OC in federal court. (ECF No. 36-1, Ex.
A.) The September Proof of Service indicates that the case was filed in the Superior Court of California, County of
Stanislaus, and does not indicate that the case was removed to federal court. (Id.)

6

1

and Miller on the grounds that Plaintiffs did not adequately plead that Miller was acting under color of

2

law at the time that he committed the alleged constitutional violation. The Court reasoned:

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

In determining whether a police officer was acting under color of law, courts
assess a variety of factors, such as whether the officer was on duty, in uniform, using
police-issued equipment, and whether the individual represented that he was a law
enforcement officer, among others. See Huffman v. City of Los Angeles, 147 F.3d 1054,
1058 (9th Cir. 1998). The thrust of the inquiry, however, is whether the officer was
cloaked in authority while performing the challenged conduct. Pete v. Olsen, No. CV-0954-EFS, 2010 WL 996408, at *3 (E.D. Wash. Mar. 15, 2010).
By contrast, an officer who is “‘pursuing his own goals and [i]s not in any way
subject to control by [his public employer],’” Van Ort, 92 F.3d at 838 (internal quotation
marks and citations omitted), does not act under color of law, unless he “purport[s] or
pretend[s]” to do so, id. Officers who engage in confrontations for personal reasons
unrelated to law enforcement, and do not “purport[ ] or pretend” to be officers during the
confrontation, do not act under color of law. Id.; see also Parrilla-Burgos v. HernandezRivera, 108 F.3d 445, 449-51 (1st Cir. 1997) (peace officer was not acting under pretense
of authority when he shot plaintiff following barroom dispute); Barna v. City of Perth
Amboy, 42 F.3d 809, 815-18 (3d Cir. 1994) (police officer who assaulted family member
was not acting under color of law despite use of service revolver and police-issued
nightstick); Pitchell v. Callan, 13 F.3d 545, 547-48 (2d Cir. 1994) (off-duty police officer
acted “as a private citizen, not as a state actor” when he used his personal weapon to
shoot a guest in his home).
...
The Complaint does not allege that Miller was on-duty or dressed in uniform on
the evening of the alleged incident. (Compl. ¶ 6-8.) Furthermore, the Complaint does not
allege that Jason Moland knew that Miller was a police officer when he approached him
carrying a BB gun, nor that Miller identified himself as such to Jason Moland. (Id. ¶ 8.)
See Pete, 2010 WL 996408, at *3 (defendant who never identified himself as a police
officer during altercation related to theft of his private vehicle was not acting under color
of law). The Complaint does not allege that Miller used his position as a police officer to
exert authority over Jason Moland during the incident. Van Ort, 92 F.3d at 839-40 (police
officer who robbed citizens after knocking on their door did not act under color of law
because victim did not open door for defendant based on his status as a police officer).
On the contrary, the circumstances alleged in the Complaint suggest that Miller was
acting in his personal capacity when the alleged incidents transpired. According to the
Complaint, Miller was engaged in conduct of a personal nature with Rosio Moland.
(Compl. ¶¶ 1, 6-8); see also Sinks v. Cty. of Fresno, No. CV-F-11-1990-LJO-SKO, 2012
WL 174969, at *5 (E.D. Cal. Jan. 20, 2012) (police officer involved in an altercation with
restaurant staff while eating lunch with his wife was acting “in the ambit of his personal
pursuits,” not under color of law (internal quotation marks and citations omitted)).

22
(Order at 5-8.)
23

In their amended pleading, Plaintiffs add allegations that prior to the shooting incident, “as Jason

24
Moland approached MILLER identified himself as a police officer of the City of Ceres and in
25
26

7

1

accordance with that department [sic] policies fired at Jason Moland with the intent to kill him.” (FAC

2

¶ 9.) Plaintiffs also allege that Miller took certain actions after the shooting to control the scene and that

3

he repeatedly identified himself as a police officer to responding law enforcement officers.

4

As the court explained in its October 18 Order, in determining whether a defendant was acting

5

under color of law, the court weighs and balances a number of factors, including “whether the officer

6

was on duty, in uniform, using police-issued equipment, and whether the individual represented that he

7

was a law enforcement officer, among others.” (Order at 5.) The context in which the events took place

8

is important to weighing the factors. Hudson v. Maxey, 856 F. Supp. 1223, 1228 (E.D. Mich. 1994) (“the

9

focus of analysis must be the nature of the defendant officer’s actions and the factual context out of

10 which those actions arose” (emphasis added)); Beck v. City of Portland, Or., No. CV-10-434-HU, 2010
11 WL 4638892, at *7 (D. Or. Nov. 5, 2010)) (“actions . . . made in the context of what appears to have
12 been a personal dispute . . . does not cloak [defendant’s] actions with official authority”). However, the
13 central inquiry remains whether the officer was, or was purporting to be, “cloaked in authority while
14 performing the challenged conduct” or whether he was instead acting “in the ambit of his personal
15 pursuits.” (Order at 5, 8); see also Huffman v. City of Los Angeles, 147 F.3d 1054, 1058 (9th Cir. 1998);
16 Pete v. Olsen, No. CV-09-54-EFS, 2010 WL 996408, at *3 (E.D. Wash. Mar. 15, 2010); Hudson v.
17 Maxey, 856 F. Supp. 1223, 1228-29 (E.D. Mich. 1994).
18

As an initial matter, Defendant Miller’s activity in securing and controlling the scene after the

19 shooting took place does not render the shooting an act committed under color of law. See Corder v.
20 Metro. Gov’t of Nashville & Davidson Cty., Tenn., 899 F.2d 14 (6th Cir. 1990) (acts taken after shooting
21 incident were not relevant to analysis of whether officer was acting under color of law where officer was
22 clearly acting in a personal capacity prior to the altercation). In Myers v. Bowman, a magistrate judge
23 called the police to report the theft of his daughter’s dog by the plaintiff, leading to the plaintiff’s arrest.
24 713 F.3d 1319, 1324-25 (11th Cir. 2013). After the arrest, the judge made threatening remarks to the
25 plaintiff. Id. The plaintiff brought suit under § 1983, alleging that the judge and others had conspired to
26

8

1

have him falsely arrested. Id. at 1331. The Court held that the judge’s threats after the arrest did not

2

create a reasonable inference that he acted under color of law when he reported the crime. Id. Rather, the

3

facts indicated that he was acting in his personal capacity when the events leading up to the alleged

4

constitutional deprivation occurred. Id. Likewise, Miller’s actions here in controlling the scene after the

5

shooting do not indicate that he was acting under color of law when the shooting occurred.

6

The relevant fact added to the FAC for the purpose of establishing that Miller acted under color

7

of law was that he identified himself as a police officer before he shot Jason Moland. This fact, coupled

8

with the allegation that Miller used his service weapon in the shooting, are the only facts offered by

9

Plaintiffs to establish that Miller acted under color of law. However, these facts do not indicate that

10 Miller was “cloaked in authority” or that he used his authority over Jason Moland in depriving him of
11 his constitutional rights. See Van Ort v. Estate of Stanewich, 92 F.3d 831, 839-40 (9th Cir. 1996)
12 (holding that a police officer who committed armed robbery did not act under color of law because he
13 “did not use his authority to gain entry to the home or to induce [victim] to open his front door” and did
14 not “exert[] . . . meaningful, physical control over [the victim] on the basis of his status as a law
15 enforcement officer.”)
16

Plaintiffs’ allegation that Miller identified himself as a police officer is also not sufficient to

17 allege that he acted under color of law. Id. (“Merely because a police officer is recognized as an
18 individual employed as a police officer does not alone transform private acts into acts under color of
19 state law.”); Cook v. Morrow, No. C06–04337, 2007 WL 3022607, *6–7 (N .D. Cal. Oct. 12,
20 2007) (officer’s single comment that he was from the Oakland Police Department was not enough to
21 show that the officer was “acting, purporting, or pretending to act in the performance of his official
22 duties”). In Sinks v. County of Fresno, the court held that a police officer who allegedly assaulted
23 restaurant staff while having lunch with his wife was not acting under color of law even though he
24 repeatedly identified himself as a police officer. 2012 WL 174969, at *5. Applying Van Ort, the court
25 held that the defendant, who was unquestionably engaged in personal pursuits at the time of the incident,
26

9

1

“exerted no meaningful, physical control over [the victim] on the basis of his status as a law

2

enforcement officer.” Id. The court noted that in spite of the fact that the defendant identified himself as

3

a police officer, the restaurant staff still asked him to leave the premises, called 911 to summon the

4

Fresno County Sherriff’s Department, and attempted to make a citizen’s arrest. These facts suggested

5

that even if the defendant was “purporting to act in the performance of his official duties, his behavior

6

did not influence the behavior of others.” Id. (citing Van Ort, 92 F.3d at 839-40).

7

The facts pled by Plaintiffs suggest that Miller was off-duty, not in uniform, and engaged in

8

conversation of a personal and romantic nature with Rosio Moland at the time of the alleged incident.

9

(FAC ¶¶ 6-8.) Unlike Sinks, where the facts pled affirmatively suggested that the police officer did not

10 exercise control or authority, the facts pled here are silent on whether Miller’s self-identification as a
11 police officer had the effect of exercising control and authority over Jason Moland. Plaintiffs have not
12 pled facts to suggest that Miller exercised meaningful control or authority over Jason Moland in the
13 events leading up to or during the incident, nor that Jason Moland interpreted Miller’s actions as being
14 taken under color of law or by a police officer. See Sinks, 2012 WL 174969, at *5. The Court therefore
15 DISMISSES the first and second cause of action for failure to allege the underlying conduct complained
16 of was committed by a person acting under color of state law. The Court GRANTS Plaintiffs one
17 additional and final opportunity to amend their complaint to allege that Defendant Miller acted under
18 color of law.
19

2.

Municipal (Monell) Liability.

20

A municipality cannot be held liable under § 1983 for the actions of its employees under the

21 theory of respondeat superior. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). To state a
22 claim against a public entity under Monell, a plaintiff must plead “(1) that the plaintiff possessed a
23 constitutional right of which she was deprived; (2) that the municipality had a policy; (3) that this policy
24 amounts to deliberate indifference to the plaintiff’s constitutional right; and, (4) that the policy is the
25 moving force behind the constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900
26

10

1

(2011) (internal quotation marks and citations omitted). The policy must be the result of a decision of a

2

person employed by the entity who has final decision or policy making authority. Monell, 436 U.S. at

3

694.

4

Defendant City moves to dismiss on the ground that the FAC still fails to allege adequately a

5

Monell claim. (ECF No. 5 at 3-5.) In the October 18 Order, the Court explained that Plaintiffs failed to

6

plead a Monnell violation:

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

The FAC alleges four customs or policies: (1) using or tolerating the use of
excessive force; (2) using or tolerating the use of unlawful deadly force; (3) covering up
violations of constitutional rights by failing to investigate complaints of excessive force,
ignoring or failing to properly investigate unconstitutional police activity, and using or
tolerating improper procedures for investigating police misconduct; and (4) failing to
implement procedural safeguards to prevent constitutional violations stemming from the
use of excessive force, with notice that omitting these procedural safeguards was likely to
result in constitutional violations. (Compl. ¶ 18.) The Complaint further alleges that the
City failed to “properly hire, train, instruct, monitor, supervise, evaluate, investigate, and
discipline Miller” with deliberate indifference to Rosio Moland and Jason Moland’s
constitutional rights. (Id. ¶ 19.) It is further alleged that the City knew or “it should have
been obvious to them” that the inadequate training program was likely to result in
constitutional violations because of “a pattern of similar violations.” (Id.) These
allegations are entirely conclusory. They are supported by no facts that would tend to
plausibly suggest the City had any unconstitutional custom or policy, failed to train or
supervise, or knew or should have known of a pattern or practice of similar violations. A
conclusory allegation regarding the existence of a policy or custom unsupported by
factual allegations is insufficient to state a Monell claim. For example, in Via v. City of
Fairfield, 833 F. Supp. 2d 1189, 1196 (E.D. Cal. 2011), plaintiff alleged that:
[T]he acts ... alleged in the Complaint ... are indicative and representative
of a repeated course of conduct by members of the CITY OF FAIRFIELD
Police Department tantamount to a custom, policy or repeated practice of
condoning and tacitly encouraging the abuse of police authority, and
disregard for the constitutional rights of citizens ... [T]he damages
sustained as alleged herein were the direct and proximate result of
municipal customs and/or policies of deliberate indifference in the
training, supervision and/or discipline of members of the ... FAIRFIELD
Police Department.
The district court granted defendants’ motion to dismiss plaintiff’s Monell claim based on
its determination that the above allegation was conclusory and lacked factual content
regarding the City’s alleged policy. Id.; see also Save CCSF Coal v. Lim, No. 14-CV05286-SI, 2015 WL 3409260, at *13 (N.D. Cal. May 27, 2015) (unspecific allegation
regarding municipal defendant’s use of force policy insufficient to identify a relevant
policy or custom under Monell); Telles v. City of Waterford, No. 1:10–cv–00982, 2010
WL 5314360, at *4 (E.D. Cal. Dec. 20, 2010) (to sufficiently state a claim under Monell,
plaintiff must allege facts establishing a policy, it is not enough simply to state that there
is a policy); Jenkins v. Humboldt County, No. C 09–5899, 2010 WL 1267113, at *3 (N.D.
11

Cal. Mar. 29, 2010) (same); Smith v. Stanislaus, No. 1:11-CV-01655-LJO, 2012 WL
253241, at *3-4 (E.D. Cal. Jan. 26, 2012) (same). The allegations in the Complaint are as
conclusory as those in Via and the other cases cited.

1
2
3

(Order at 9-10.)
Plaintiffs have not included any additional facts in the FAC regarding Defendant City’s policies,

4
5

customs, or practices that would remedy this deficiency. Instead, they cite to a portion of the FAC that

6

was not altered from the OC (FAC ¶20), and dispute the Court’s dismissal of the OC, noting that “this is

7

simply the pleading stage of the litigation.” (ECF No. 28 at 3 (citing Klebanow v. Funston, 35 F.R.D.

8

518 (S.D.N.Y. 1964).) However, as Plaintiffs acknowledge in their brief, the Supreme Court’s more

9

recent decisions in Twombly and Iqbal require plaintiffs to plead more than conclusory and threadbare

10 allegations. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported
11 by mere conclusory statements, do not suffice.”) Plaintiffs have again failed to do so here. The FAC
12 does not plausibly suggest the City had any unconstitutional custom or policy, failed to train or
13 supervise, or knew or should have known of a pattern or practice of similar violations. Defendant City’s
14 motion to dismiss the second cause of action for failure to allege a Monell claim is therefore GRANTED
15 with leave to amend.
16 C.

Causes of Action under State Law

17

Defendant City removed this action to this Court from Stanislaus County Superior Court because

18 the complaint contained claims brought under a federal statute, 42 U.S.C. § 1983, for violations of the
19 United States Constitution. (ECF No. 1.) Where all federal claims are dismissed in an action containing
20 both federal and state law claims, a federal court may decline to exercise supplemental jurisdiction over
21 the remaining state law claims. 28 U.S.C. § 1367(c)(3); Notrica v. Bd. of Supervisors of Cty. of San
22 Diego, 925 F.2d 1211, 1213-14 (9th Cir. 1991). As discussed above, this Court dismisses the first and
23 second causes of action, the only federal claims in this lawsuit. Accordingly, this Court DECLINES to
24 exercise supplemental jurisdiction over the third through seventh causes of action alleged against
25 Defendant City and will not address them at this time.
26

12

V. CONCLUSION AND ORDER

1
2
3

For the reasons stated above:
1) Defendants’ motions to dismiss the FAC causes of action brought pursuant to 42 U.S.C.
§ 1983 (ECF Nos. 18, 19, 20) are GRANTED WITH LEAVE TO AMEND.

4
5

2) The Court DECLINES to exercise supplemental jurisdiction over Plaintiffs’ state law claims.

6

Plaintiffs shall have twenty (20) days from electronic service of this Order to file an amended

7

complaint or give notice that she will stand on the current pleading.

8
9
10

IT IS SO ORDERED.
Dated:

January 18, 2017

/s/ Lawrence J. O’Neill _____
UNITED STATES CHIEF DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

13