Smith v. City of Stockton, et al

Filing 51

MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr. on 2/29/2012 GRANTING 44 Motion to Dismiss the 43 Fourth Amended Complaint; DISMISSING CASE WITH LEAVE TO AMEND. Amended Complaint due within 20 days. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DIONNE SMITH-DOWNS and
JAMES E. RIVERA, both individually
and as successors in interest to
Decedent James E. Rivera, Jr.

No. 2:10-cv-02495-MCE-GGH

MEMORANDUM AND ORDER
Plaintiffs,

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v.
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CITY OF STOCKTON, et al.,
Defendants.

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----oo0oo----

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Plaintiffs Dionne Smith-Downs and James E. Rivera

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(collectively, “Plaintiffs”) seek redress from Defendants City of

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Stockton (“City”), police officers Eric Azarvand and Gregory

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Dunn, Deputy Sheriff John Nesbitt, Chief of Police Blair Ulring,

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and Sheriff Steve Moore (collectively, “Defendants”) regarding a

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fatal incident between the Stockton police and Plaintiffs’ son,

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sixteen-year-old James Rivera, Jr. (“Decedent”).

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Presently before the Court is a Motion to Dismiss

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Plaintiffs’ Fourth Amended Complaint for failure to state a claim

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upon which relief may be granted, filed by Defendants Moore and

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Nesbitt, pursuant to Federal Rule of Civil Procedure 12(b)(6).1

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Defendant City of Stockton, and individual Defendants Azarvand,

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Dunn and Ulring joined the Motion to Dismiss.

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BACKGROUND

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Plaintiffs allege in their FAC that on July 22, 2010,

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Decedent was pursued by police officers and sheriff’s deputies

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(collectively, “officers”) after being observed driving a

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suspected stolen van through a residential neighborhood.

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the pursuit, several police cars deliberately struck the van

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while Decedent was inside, which caused Decedent to lose control

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of the van and crash into a wall.

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officers repeatedly discharged their firearms toward Decedent,

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who died as a result of the gunshot wounds he sustained.

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officers were observed laughing and “high-fiving” each other

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after the shooting.

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During

At some subsequent point,

The

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1
Because oral argument will not be of material assistance,
the Court ordered this mater submitted on the briefing. E.D.
Cal. R. 230(g).

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STANDARD

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On a motion to dismiss for failure to state a claim under

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Federal Rule of Civil Procedure 12(b)(6),2 all allegations of

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material fact must be accepted as true and construed in the light

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most favorable to the nonmoving party.

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Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

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“requires only ‘a short and plain statement of the claim showing

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that the pleader is entitled to relief,’ in order to ‘give the

Cahill v. Liberty Mut.
Rule 8(a)(2)

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defendant a fair notice of what the . . . claim is and the

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grounds upon which it rests.’”

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550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,

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47 (1957)).

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dismiss does not require detailed factual allegations.

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However, “a plaintiff’s obligation to provide the grounds of his

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entitlement to relief requires more than labels and conclusions,

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and a formulaic recitation of the elements of a cause of action

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will not do.”

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A court is not required to accept as true a “legal conclusion

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couched as a factual allegation.”

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1937, 1949-50 (2009) (quoting Twombly, 550 U.S. at 555).

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Court also is not required “to accept as true allegations that

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are merely conclusory, unwarranted deductions of fact, or

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unreasonable inferences.”

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536 F.3d 1049, 1055 (9th Cir. 2008).

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///

Bell. Atl. Corp. v. Twombly,

A complaint attacked by a Rule 12(b)(6) motion to
Id.

Id. (internal citations and quotations omitted).

Ashcroft v. Iqbal, 129 S. Ct.
The

In re Gilead Sciences Sec. Litig.,

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2

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All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.
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“Factual allegations must be enough to raise a right to relief

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above the speculative level.”

Twombly, 550 U.S. at 555.

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Furthermore, “Rule 8(a)(2) . . . requires a ‘showing,’

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rather than a blanket assertion, of entitlement to relief.”

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Twombly, 550 U.S. at 556 n.3 (internal citations and quotations

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omitted).

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is hard to see how a claimant could satisfy the requirements of

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providing not only ‘fair notice’ of the nature of the claim, but

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also ‘grounds’ on which the claim rests.”

“Without some factual allegation in the complaint, it

Id. (citation

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omitted).

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claim to relief that is plausible on its face.”

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the “plaintiffs . . . have not nudged their claims across the

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line from conceivable to plausible, their complaint must be

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dismissed.”

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even if it strikes a savvy judge that actual proof of those facts

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is improbable, and ‘that a recovery is very remote and

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unlikely.’”

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236 (1974)).

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A pleading must contain “only enough facts to state a

Id.

Id. at 570.

If

However, “a well-pleaded complaint may proceed

Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232,

A court granting a motion to dismiss a complaint must then

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decide whether to grant a leave to amend.

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be “freely given” where there is no “undue delay, bad faith or

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dilatory motive on the part of the movant, . . . undue prejudice

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to the opposing party by virtue of allowance of the amendment,

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[or] futility of the amendment . . . .”

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178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d

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1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to

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be considered when deciding whether to grant leave to amend).

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Leave to amend should

Foman v. Davis, 371 U.S.

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Dismissal without leave to amend is proper only if it is clear

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that “the complaint could not be saved by any amendment.”

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Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F. 3d 1048,

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1056 (9th Cir. 2007) (internal citations and quotations omitted).

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ANALYSIS

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A.

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Plaintiffs’ Standing to Bring Successor In Interest
Claims

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As a threshold matter, Defendants argue that Plaintiffs lack

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standing to bring their lawsuit because Plaintiffs have failed to

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comply with the requirements of California law pertaining to

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bringing a survival action.3

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Fourth Am. Compl. [“MTD”], filed July 8, 2011 [ECF No. 44].)

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It is clear in this circuit that standing “is a threshold issue

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that precedes consideration of any claim on the merits.”

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v. City of Eureka, No. C 08-04386, 2010 WL 5154945, at *3 (N.D.

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Cal. Dec. 14, 2010) (citing Moreland v. City of Las Vegas,

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159 F.3d 365, 369 (9th Cir. 1998)).

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(Defs.’ Mot. To Dismiss Pls.’

Cotton

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Out of the three claims in the FAC, only two are survival
actions: the Fourth Amendment Claim for violation of Decedent’s
civil rights under 42 U.S.C. § 1983 and the Monell claim under 42
U.S.C. § 1983. The remaining claim in the FAC (the Fourteenth
Amendment claim for violation of Plaintiffs’ right to enjoy
continued family relations) is not a survival claim because
Plaintiffs assert their own personal right and do not bring this
claim as Decedent’s successors in interest. Accordingly, the
requirements of California law regarding Plaintiffs’ “standing”
to bring their claims as Decedent’s successors in interest apply
only to Plaintiffs’ first and third causes of action.

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Any party who seeks to “bring a survival action bears the burden

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of demonstrating that a particular state’s law authorizes a

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survival action and that the plaintiff meets that state’s

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requirements for bringing [it].”

Moreland, 159 F.3d at 369.

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In California, “a cause of action for or against a person is

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not lost by reason of the person’s death, but survives subject to

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the applicable statute of limitations period.”

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Code § 377.20(a).

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commence an action or proceeding . . . as the decedent’s

Cal. Civ. Proc.

Under California law, a person who “seeks to

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successor in interest . . . , shall execute and file an affidavit

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or a declaration under penalty of perjury” that confirms

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decedent’s personal information, the facts of their death, and

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other information confirming that the plaintiff is the proper

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successor to decedent’s interests.

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copy of the decedent’s death certificate is required to be

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attached to the affidavit or declaration.

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Id. § 377.32(a).

A certified

Id. § 377.32(c).

For purposes of § 377.32, a successor in interest is “the

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beneficiary of the decedent’s estate.”

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decedent does not leave a will, a beneficiary of the decedent’s

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estate is defined under the statute as “the sole person or all of

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the persons who succeed to a cause of action.”

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Thus, Plaintiffs’ declarations to the Court must definitely prove

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they are “all of the persons” to succeed Decedent’s interests.

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Id.

§ 377.11.

When a

Id. § 377.10.

In three previous orders, the Court requested Plaintiffs to

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provide appropriate documentation demonstrating that Plaintiffs

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complied with the requirements under California Code of Civil

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Procedure.

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The Court is presently in receipt of the joint Declaration of

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Dionne Smith-Downs and James E. Rivera, Sr. (“the Declaration”)

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stating that they are the successors in interest to the Decedent,

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and that no other person has a superior right to commence this

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action.

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Declaration meets the substantive requirements of California Code

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of Civil Procedure § 377.32.

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The Court is satisfied that the content of the

However, Defendants claim that Plaintiffs’ Declaration
remains inadequate to establish their capacity to bring this

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action because the Declaration is not actually signed by either

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Plaintiff.

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Plaintiffs, the electronically submitted Declaration bears a

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“/s/” and Plaintiffs’ types names on the two signature lines.

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Local Rule 131(f) allows an attorney to submit documents

Instead of hand-written signatures of both

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containing non-attorney signatures electronically.

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be adequate, such electronically submitted documents, in addition

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to bearing a “/s/” and the person’s name on the signature line,

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should also state that counsel has a signed original of the

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electronically-submitted document.

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the requisite annotation.

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However, to

Plaintiffs’ Declaration lacks

The Court has already granted Plaintiffs three opportunities

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to cure the defects of the Complaint pertaining to demonstrating

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Plaintiffs’ successor in interest status.

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the Court specifically warned Plaintiffs that they would not be

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provided any additional opportunities to correct the Complaint’s

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defects.

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[ECF No. 42, at 4.]

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In its previous order,

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Plaintiffs’ counsel attributes the inadequacy of the

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submitted Declaration to inadvertence and/or clerical error, and

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assures the Court that he, indeed, possesses the original

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Declaration bearing the handwritten signature of each Plaintiff.

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(Pls.’ Opp. to Defs.’ MTD, filed Jule 28, 2011 [ECF No. 47], at

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6:7-9, 7:11-15.)

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attempt to comply with the requirements of California Code of

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Civil Procedure § 377.32, the Court is inclined to find more than

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mere inadvertence on the part of Plaintiffs’ counsel.4

Considering that this is Plaintiffs’ fourth

However,

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the Court recognizes that dismissing Plaintiffs’ claims with

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prejudice would “severely penalize plaintiff[s] for the

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derelictions of [their] counsel.”

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89 F.R.D. 449, 452 (E.D. Ark. 1981); see also Betty K Agencies,

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Ltd. v. M/V Monada, 432 F.3d 1333, 1338 (11th Cir. 2005) (“[T]he

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harsh sanction of dismissal with prejudice is thought to be more

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appropriate in a case where a party, as distinct from counsel, is

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culpable.”).

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See Hardin v. Wal-Mart, Inc.,

Accordingly, the Court declines to dismiss Plaintiff’s first

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and third causes of action on the basis of the inadequacy of

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Plaintiffs’ Declaration under Local Rule 131(f).

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4
The Court also notes a discrepancy in the submitted
Declaration and the attached Decedent’s death certificate
regarding the last name of Decedent’s mother. Decedent’s death
certificate lists Decedent’s mother as Dionne Pruitt, while the
Declaration is signed by Dionne Smith-Downs. The Court suspects
that “Pruitt” is Dionne Smith-Downs’ maiden name (as the death
certificate asks for the mother’s “birth name”), but cannot be
sure that Dionne Smith-Downs and Dionne Pruitt are the same
person without Decedent’s mother explicitly confirming it in the
Declaration.

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Plaintiffs’ counsel is hereby directed to submit a corrected

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declaration which confirms to Local Rule 131(f) and also corrects

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the discrepancy regarding Decedent’s mother’s name (noted in

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footnote 4) within 20 days of the date of this order.

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filings, strict compliance with Local Rules is required, and

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failure to submit the corrected declaration may result in

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sanctions, including but not limited to, dismissal.

In future

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B.

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First Cause of Action: Violation of Decedent’s Fourth
Amendment Right not to be Subjected to Unreasonable
Seizure

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In their first cause of action, Plaintiffs appear to

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intertwine two distinct causes of action: a Fourth Amendment

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claim on behalf of Decedent and a wrongful death claim on

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Plaintiffs’ own behalf.

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of action reads: “Violation of Civil Rights - Wrongful Death -

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42 U.S.C. § 1983.”

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“survival actions” under 42 U.S.C. § 1983 are distinguishable

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from actions for the wrongful death.

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No. CIV. S-11-1820, 2011 WL 5118912, at *6 (E.D. Cal. Oct. 27,

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2011) (citing Grimshaw v. Ford Motor. Co., 119 Cal. App. 3d 757

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(1981)).

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The heading for Plaintiffs’ first cause

(FAC at 4:20-22.)

Under California law,

Duenez v. City of Manteca,

A survival action is an action that “survives” the

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decedent’s death and can be brought by the decedent’s estate for

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the purpose of recovering damages that would have been awarded

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personally to the decedent had he lived.

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§ 377.20.

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Cal. Civ. Proc. Code

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A wrongful death action, on the other hand, is an independent

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claim by decedent’s heirs for damages they personally suffered as

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a result of the decedent’s death.

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A person bringing a wrongful death action does not act in a

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representative capacity, but sues for his or her own deprivation.

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“Only survival actions, not wrongful death claims, are

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compensable under § 1983.”

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No. 104-CV-05919, 2005 WL 2562715, at *3 (E.D. Cal. Oct. 8,

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2005); see also Basler v. City of Susanville, No. CIV. S-06-1813,

Cal. Civ. Proc. Code § 377.60.

Martinez v. County of Madera,

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2007 WL 2710845, at *6 (E.D. Cal. Sept. 14, 2007) (“Unlike

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plaintiff’s survival action, which relies upon § 1983, the

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wrongful death action does not.”).

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Because Plaintiffs base their first cause of action

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exclusively on the violation of Decedent’s Fourth Amendment

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right, and do not appear to assert that they personally suffered

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damages as a result of Decedent’s wrongful death, the Court will

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treat Plaintiffs’ first cause of action as a survival action to

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recover for Decedent’s alleged constitutional deprivation under

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the Fourth Amendment.

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Plaintiffs allege that the use of force by Defendants in

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apprehending Decedent was unreasonable under the circumstances

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and thus violated Decedent’s right not to be subjected to

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unreasonable seizure guaranteed by the Fourth Amendment.

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¶ 16.)

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supporting Plaintiffs’ Fourth Amendment claim are inadequate to

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state a claim for relief.

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with Defendants.

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(FAC

Defendants contend that the factual allegations

(MTD at 6:9-10.)

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The Court agrees

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An officer’s use of excessive force to effect an arrest is a

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violation of a person’s Fourth Amendment right to be free from

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unreasonable searches and seizures.

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386, 395 (1989).

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force claims under an “objective reasonableness” standard.

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at 388.

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balance “the nature and quality of the intrusion of the

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individual’s Fourth Amendment interests against the

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countervailing governmental interests at stake.”

Graham v. Connor, 490 U.S.

Courts analyze the Fourth Amendment excessive
Id.

Determination of reasonableness requires the Court to

Id. at 396

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(internal quotations omitted).

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force is “judged from the perspective of a reasonable officer on

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the scene,” and not from the perspective of the person seized or

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of a court reviewing the situation “with the 20/20 vision of

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hindsight.”

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The reasonableness of the use of

Id.

Apprehension by the use of deadly force is a seizure subject

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to the Fourth Amendment’s reasonableness requirement.

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Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010); Curnow v.

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Ridgecrest Police, 952 F.2d 321, 324 (9th Cir. 1991).

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an officer using deadly force is entitled to qualified immunity,

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unless the law was clearly established that the use of force

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violated the Fourth Amendment.”

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analyzing whether qualified immunity applies, courts consider:

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(1) “whether the facts that a plaintiff has alleged . . . or

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shown . . . make out a violation of a constitutional right” and

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(2) “whether the right at issue was ‘clearly established’ at the

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time of defendant’s alleged misconduct.”

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555 U.S. 223, 232 (2009).

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“However,

Wilkinson, 610 F.3d at 550.

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Pearson v. Callahan,

In

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Case law has clearly established that an officer may not use

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deadly force to apprehend a suspect where the suspect poses no

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immediate threat to the officer or others.”

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at 550 (citing Tennessee v. Garner, 471 U.S. 1, 11 (1985)).

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However, the use of deadly force is constitutionally permissible

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“[w]here the officer has probable cause to believe that the

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suspect poses a threat of serious physical harm, either to the

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officer or to others.”

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“Whether the use of deadly force is reasonable is highly fact-

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specific.”

Wilkinson, 610 F.3d

Id. (quoting Garner, 471 U.S. at 11).

Id. at 551 (emphasis added).

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The FAC’s factual content with regard to circumstances

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surrounding Decedent’s death is insufficient to show Plaintiffs’

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plausible entitlement to relief for the violation of Decedent’s

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Fourth Amendment rights.

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limited to demonstrating that: (1) Defendant officers were

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pursuing a stolen van driven by Decedent in a residential

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neighborhood; (2) Officers “deliberately” struck the van which

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caused Decedent to crash into the wall of the garage triplex; and

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(3) Officers subsequently shot Decedent, while Decedent was still

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seated behind the wheel of the van and still within the interior

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of the garage.

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that they have stated a viable claim, the FAC’s factual

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allegations are not sufficient “to raise [Plaintiffs’] right to

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relief above the speculative level.”

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555.

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confronting the officers before the fatal shooting, the Court is

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unable to plausibly infer that their use of force was excessive.

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Plaintiffs’ factual allegations are

(FAC ¶ 14.)

Contrary to Plaintiffs’ contention

See Twombly, 550 U.S. at

Without more facts illuminating the circumstances

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Although the FAC alleges that, at the time of the shooting,

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Decedent did not pose any imminent threat to the lives and safety

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of any person (FAC ¶ 14), this allegation is a legal conclusion,

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which is not supported by sufficient factual content, and thus is

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not entitled to be taken as true.

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Accordingly, the Court dismisses Plaintiffs’ first cause of

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action for failure to state a claim under Rule 12(b)(6).

See Iqbal, 129 S. Ct. at 1950.

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C.

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Second Cause of Action: Violation of Plaintiffs’
Fourteenth Amendment Right to Enjoy Continued Family
Relations

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12

Plaintiffs allege that as a proximate result of Defendants’

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use of force to apprehend Decedent, Plaintiffs have been deprived

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of their Fourteenth Amendment right to enjoy continuing family

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relations with Decedent.

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the factual allegations in the FAC are insufficient to

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demonstrate the official conduct that “shocks the conscience”

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required for establishing liability under the Fourteenth

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Amendment’s due process clause.

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finds Defendants’ contentions persuasive.

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(FAC ¶ 17.)

Defendants contend that

(MTD at 7:17-8:2.)

The Court

Parents of a person killed by law enforcement officers may

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assert a substantive due process claim under the Fourteenth

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Amendment based on deprivation of the liberty interest arising

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out of familial relations.

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Wilkinson, 610 F.3d at 554 (“This Circuit has recognized that

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parents have a Fourteenth Amendment liberty interest in the

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companionship and society of their children.”).

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Moreland, 159 F.3d at 371; see also

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1

However, the Fourteenth Amendment inquiry is different from the

2

“objective reasonableness” standard used in the Fourth Amendment

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excessive force claims.

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the official conduct that ‘shocks the conscience’ is cognizable

5

as a due process violation.”

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1137 (9th Cir. 2008).

7

“whether the behavior of the government officer is so egregious,

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so outrageous, that it may fairly be said to shock the

9

contemporary conscience.”

10
11

Under the Fourteenth Amendment, “only

Porter v. Osborn, 546 F.3d 1131,

The threshold question in such cases is

County of Sacramento v. Lewis,

523 U.S. 833, 847 n.8 (1998).
In determining whether police conduct “shocks the

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conscience,” courts use two standards of culpability: “deliberate

13

indifference” and “purpose to harm.”

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The deliberate indifference standard applies “[w]here actual

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deliberation is practical.”

16

more demanding standard of “purpose to harm” applies “where a law

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enforcement officer makes a snap judgment because of an

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escalating situation,” for example “where the suspect’s evasive

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actions force the officers to act quickly.”

20

situations, the proper inquiry is whether the police officer

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“acts with a purpose to harm unrelated to legitimate law

22

enforcement objectives.”

23

Porter, 546 F.3d at 1137.

Wilkinson, 610 F.3d at 554.

Id.

The

In such

Id.

The parties disagree as to what standard applies to the

24

alleged Fourteenth Amendment violation of Plaintiffs’ rights.

25

Defendants argue that a more demanding showing of the “purpose to

26

harm” is required because the alleged factual situation — “a

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fleeing criminal suspect at large . . . in a residential

28

neighborhood” — required the officers to “make a snap judgment.”
14

1

(MTD at 7:22-8:2.)

2

showing of “deliberate indifference” is sufficient because the

3

officers had “an opportunity to reflect on their actions and

4

assess that the shooting was not necessary.”

5

10:14-17.)

6

Plaintiffs contend that the less demanding

(Pls.’ Opp. at

The FAC’s limited factual content does not allow the Court

7

to determine which standard of culpability should apply to the

8

alleged Fourteenth Amendment violation.

9

determination is not necessary at this stage in the litigation.

10

As long as the FAC sufficiently shows Plaintiffs’ entitlement to

11

relief based on either standard, the motion to dismiss should be

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denied.

13

requisite showing.

14

However, such a

The Court finds that Plaintiffs have failed to make the

The only support for Plaintiffs’ Fourteenth Amendment claim

15

in the FAC is the allegation that the officers discharged their

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firearms at Decedent although Decedent did not pose any imminent

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threat to the lives or safety of persons, and that Defendants’

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conduct in this respect was “unreasonable.”

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FAC is void of any explicit or implicit language suggesting that

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the alleged police conduct “shocks the conscience.”

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allegations of “unreasonable” behavior by the officers are not

22

sufficient to state a claim for a violation of the Fourteenth

23

Amendment due process clause against the officers.

24

(FAC ¶¶ 14,16.)

The

Plaintiffs’

Moreover, the Plaintiffs’ factual allegations are inadequate

25

under Iqbal and Twombly to “nudge[] their claims across the line

26

from conceivable to plausible.”

27

The FAC provides little or no information detailing the

28

circumstances leading to the fatal shooting.

See Twombly, 550 U.S. at 570.

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1

The FAC’s allegations amount, at best, to “an unadorned,

2

the-defendant-unlawfully-harmed-me accusation,” which is

3

insufficient to state a claim for relief.

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at 1949.

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cause of action for failure to state a claim under Rule 12(b)(6).

See Iqbal, 129 S. Ct.

Accordingly, the Court dismisses Plaintiffs’ second

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D.

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Third Cause of Action: Monell Claim Against the City,
Moore, Ulring5

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9

Plaintiffs allege that the City and Defendant Ulring had a

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duty to adequately train, supervise and discipline their police

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officers in order to protect members of the public, including

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Decedent, from being harmed by the police unnecessarily.

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¶ 20.)

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same duty regarding training, supervising and disciplining the

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County’s deputy sheriffs.

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these Defendants “were deliberately indifferent to such duties

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and thereby proximately caused injury to Plaintiffs.”

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¶ 22.)

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sufficient to state a Monell claim.

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Court agrees with Defendants.

21

(FAC

Plaintiffs further allege that Defendant Moore had the

(FAC ¶ 21.)

According to Plaintiffs,

(FAC

Defendants contend that Plaintiffs’ allegations are not
(MTD at 6:22-7:15).

The

Municipalities and local officials cannot be vicariously

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liable for the conduct of their employees under § 1983, but

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rather are only “responsible for their own illegal acts.”

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5
In their third cause of action, Plaintiffs also identify
“the County” as a Defendant. (FAC ¶ 21.) However, the FAC’s
caption does not list any “County” as a Defendant in this action.
Accordingly, the Court disregards Plaintiffs’ references to “the
County” in their third cause of action.

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1

Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (quoting

2

Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)) (emphasis in the

3

original).

4

where it individually caused a constitutional violation via

5

“execution of a government’s policy or custom, whether by its

6

lawmakers or by those whose edicts or acts may fairly be said to

7

represent official policy.”

8

436 U.S. 658, 694 (1978); Ulrich v. City & County of S.F.,

9

308 F.3d 968, 984 (9th Cir. 2002).

In other words, a municipality may only be liable

Monell v. Dep’t of Social Servs.,

A recent decision from this

10

district summarized the Ninth Circuit standard of municipal

11

liability under § 1983 in the following way:

12

Municipal liability may be premised on: (1) conduct
pursuant to an expressly adopted official policy; (2) a
longstanding practice or custom which constitutes the
“standard operating procedure” of the local government
entity; (3) a decision of a decision-making official
who was, as a matter of state law, a final policymaking
authority whose edicts or acts may fairly be said to
represent official policy in the area of decision; or
(4) an official with final policymaking authority
either delegating that authority to, or ratifying the
decision of, a subordinate.

13
14
15
16
17
18

Young v. City of Visalia, 687 F. Supp. 2d 1141, 1147 (E.D. Cal.

19

2009) (citing Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008);

20

Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004); Ulrich,

21

308 F.3d at 984-85, Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.

22

1996)).

23

Besides demonstrating that one of the methods of

24

establishing municipal liability applies, Plaintiffs must also

25

show that the challenged municipal conduct was both the cause in

26

fact and the proximate cause of the constitutional deprivation.

27

Trevino, 99 F.3d at 918.

28

///
17

1

In other words, Plaintiffs bear the burden of demonstrating that

2

the City’s policy or custom was a “moving force” of the

3

constitutional deprivation and that the alleged injury would have

4

been avoided had the City had a constitutionally proper policy.

5

Gibson v. County of Washoe, 290 F.3d at 1175, 1196 (9th Cir.

6

2002).

7

A negligent municipal policy does not violate the

8

Constitution; rather, Plaintiffs must demonstrate that the need

9

for more or different action is “obvious, and the inadequacy [of

10

the current procedure] so likely to result in the violation of

11

constitutional rights, that the policymakers . . . can reasonably

12

be said to have been deliberately indifferent to the need.”

13

of Canton v. Harris, 489 U.S. 378, 390 (1989); Mortimer v. Baca,

14

594 F.3d 714, 722 (9th Cir. 2010).

15

custom may not be predicated on isolated or sporadic incidents;

16

it must be founded upon practices of sufficient duration,

17

frequency and consistency that the conduct has become a

18

traditional method of carrying out policy.”

19

918.

20

City

“Liability for improper

Trevino, 99 F.3d at

A municipality’s failure to train its employees may create a

21

§ 1983 liability where the “failure to train amounts to

22

deliberate indifference to the rights of persons with whom the

23

[employees] come into contact.”

24

Lee v. City of L.A., 250 F.3d 668, 681 (2001).

25

whether the training program is adequate and, if it is not,

26

whether such inadequate training can justifiably be said to

27

represent the municipal policy.”

28

442 F.3d 1178, 1186 (2006).

City of Canton, 489 U.S. at 388;

18

“The issue is

Long v. County of L.A.,

1

A plaintiff alleging a failure to train must show that “(1) he

2

was deprived of a constitutional right; (2) the [municipality]

3

had a training policy that ‘amounts to deliberate indifference to

4

the [constitutional] rights of the persons’ with whom [its

5

employees] are likely to come into contact’; and (3) his

6

constitutional injury would have been avoided had the

7

[municipality] properly trained those officers.”

8

City of Orange, 485 F.3d 463, 484 (9th Cir. 2007).

Blankenhorn v.

9

Generally, “[e]vidence of the failure to train a single

10

officer is insufficient to establish a municipality’s deliberate

11

policy.”

12

trained will not alone suffice to fasten liability of the

13

[municipality], for the officer’s shortcomings may have resulted

14

from factors other than a faulty training program.”

15

Canton, 489 U.S. at 390-91.

16

officers may occasionally make mistakes; the fact that they do

17

says little about the training program or the legal basis for

18

holding the [municipality] liable.”

19

“absent evidence of a ‘program-wide inadequacy in training,’ any

20

shortfall in a single officer’s training ‘can only be classified

21

as negligence on the part of the municipal defendant – a much

22

lower standard of fault than deliberate indifference.’”

23

Blankenhorn, 485 F.3d at 484-85 (quoting Alexander v. City &

24

County of S.F., 29 F.3d 1355, 1367 (9th Cir. 1994)).

25

///

26

///

27

///

28

///

Id.

“That a particular officer may be unsatisfactorily

City of

Moreover, “adequately trained

19

Id. at 391.

Accordingly,

1

In arguing that the FAC sufficiently states a Monell claim

2

against the City, Ulring, and Moore, Plaintiffs rely on the Ninth

3

Circuit’s pre-Iqbal decision in Karim-Panahi, 839 F.2d 621, 624

4

(9th Cir. 1988), which held that “a claim of municipal liability

5

under section 1983 is sufficient to withstand a motion to dismiss

6

even if the claim is based on nothing more than a bare allegation

7

that the individual officers’ conduct conformed to official

8

policy, custom, or practice.”

9

Plaintiffs’ reliance on pre-Iqbal law to demonstrate sufficiency

(Pls.’ Opp. at 11:14-12:13.)

10

of their complaint is misplaced.

11

it clear that conclusory, “threadbare” allegations merely

12

reciting the elements of a cause of action cannot defeat the Rule

13

12(b)(6) motion to dismiss.

14

light of Iqbal, it would seem that the prior Ninth Circuit

15

pleading standard for Monell claims (i.e., ‘bare allegations’) is

16

no longer viable.”

17

viable Monell claim against the City, Ulring and Moore requires

18

more than “labels and conclusions” or “a formulaic recitation of

19

the elements of a cause of action.’”

20

1949 (quoting Twombly, 550 U.S. at 555).

21

The Supreme Court in Iqbal made

Iqbal, 129 S. Ct. at 1949-50.

Young, 687 F. Supp. 2d at 1149.

“In

Thus, a

See Iqbal, 129 S. Ct. at

The FAC does not contain any factual allegations plausibly

22

demonstrating that the City, Ulring or Moore had official or

23

de facto policies of failure to train police officers and deputy

24

sheriffs.

25

practices the City, Ulring or Moore had and how these practices

26

were deficient.

27

///

28

///

Plaintiffs have failed to identify what training

20

1

See Young v. City of Visalia, 687 F. Supp. 2d 1141, 1150 (E.D.

2

Cal. 2009) (“[W]ithout identifying the training and hiring

3

practices, how those practices were deficient, and without an

4

identification of the obviousness of the risk involved, the Court

5

cannot determine if a plausible claim is made for deliberate

6

indifference conduct.”).

7

not sufficient to plausibly suggest that the alleged municipal

8

policies were “the moving force” behind the constitutional

9

deprivation at issue.

10

Moreover, the FAC’s factual content is

Accordingly, construing the facts in the light most

11

favorable to the non-moving party, the Court finds that

12

Plaintiffs have failed to state a Monell claim upon which relief

13

can be granted.

14
CONCLUSION

15
16
17

For the reasons stated above, Defendants’ Motion to Dismiss

18

the Forth Amended Complaint is GRANTED.

There is sufficient

19

basis to dismiss this action with prejudice because Plaintiffs

20

have been afforded several opportunities to cure the defects of

21

their complaint but failed to do so adequately.

22

Plaintiffs’ opposition explicitly states that Plaintiffs “do not

23

seek leave of the Court to amend the Complaint.”

24

13:10-11.)

25

with prejudice would be a harsh punishment for Plaintiffs arising

26

from failures of their counsel.

27

///

28

///

Moreover,

(Pls.’ Opp. at

However, the Court believes that dismissing the FAC

21

1

Additionally, although the Court warned Plaintiffs that they

2

would be granted no additional leave to amend, the Court believes

3

that dismissal with prejudice would be unfair to Plaintiffs

4

because the Court’s prior orders did not address the merits of

5

the complaint and did not consider the complaint’s sufficiency

6

under Rule 12(b)(6).

7

The Ninth Circuit has instructed district courts to grant

8

leave to amend when dismissing a case for failure to state a

9

claim, even if a plaintiff has made no request to amend the

10

pleading, “unless [the court] determines that the pleading could

11

not possibly be cured by the allegations of other facts.”

12

Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

13

Accordingly, the Court grants Plaintiffs one final opportunity to

14

cure the deficiencies of their complaint.

15

therefore given leave to amend to file their Fifth Amended

16

Complaint; however, no further leave to amend will be given.

17

Plaintiffs decide to amend their complaint, the Court expects

18

Plaintiffs to cure both the technical deficiencies of their

19

Declaration and the substantive deficiencies of their complaint.

20

Any amended pleading consistent with the terms of this

Plaintiffs are

21

Memorandum and Order must be filed not later than twenty (20)

22

days following the date the Memorandum and Order is signed.

23
24

IT IS SO ORDERED.
Dated: February 29, 2012

25
26
27

_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

28
22

If