Basilio v. City of Fairfield et al

Filing 38

ORDER signed by District Judge John A. Mendez on 2/23/17. The Court grants Defendants' MOTION to DISMISS Plaintiff's first two claims and DENIES the MOTION on Plaintiff's third and fourth claims. The Court DENIES Plaintiff leave to amend his first and second claims. Since Tibbet was named as a defendant only in the first claim for relief, he is DISMISSED from this action and the case will proceed only against the City on the following claims for relief: Third claim for denia l of medical care under Cal. Gov. Code § 845.6; Fourth claim for violation of the Bane Act; Fifth claim for attery; and Sixth claim for false imprisonment. The City shall file its Answer to the SAC within twenty days of the date of this order. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESUS BETANZO BASILIO,

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Plaintiff,

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v.
CITY OF FAIRFIELD, CITY OF
FAIRFIELD POLICE DEPARTMENT,
WALT TIBBET, DOES 1-100,

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No.

2:16-cv-00392-JAM-EFB

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS

Defendants.

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Plaintiff Jesus Betanzo Basilio (“Plaintiff”) sued the City

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of Fairfield (“the City”), the Fairfield Police Department

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(“FPD”), and the FPD Police Chief Walt Tibbet (“Tibbet”)

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(collectively “Defendants”) for civil rights and state law

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violations arising out of the arrest and detention of Plaintiff

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by FPD officers.

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Defendants move to dismiss the first four claims in Plaintiff’s

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SAC.

ECF No. 30.

Second Amended Complaint (“SAC”), ECF No. 28.

Plaintiff opposes the motion.

ECF No. 32. 1

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for February 7, 2017.
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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

The Court takes the facts alleged by Plaintiff as true for
purposes of this motion.

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FPD officers arrested Plaintiff, a Mexican-American male

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and a minor at the time, at his home in February 2014.

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¶ 15.

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“get on the floor.”

Id. ¶ 16.

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officers’ requests.

Id.

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Plaintiff’s neck, shoulder, and face.

The officers approached Plaintiff and yelled at him to
Plaintiff complied with the

The officers slammed their knees into

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kicked Plaintiff in the temple.

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arrest as the officers kicked him.

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SAC

Id.

Id.

Some of the officers

Plaintiff did not resist
Id.

One officer searched Plaintiff and forcefully pulled on

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Plaintiff’s testicles.

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in the back of his patrol car.

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Plaintiff told officers he did not feel well and his head hurt.

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Id. ¶ 23.

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Id. ¶ 19.

The officer placed Plaintiff

Id.

While in the patrol car,

The officers took Plaintiff to the police station and into

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an interrogation room.

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officers his head and shoulder hurt, he needed aspirin, and

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needed to go the hospital.

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Plaintiff to the hospital and left him in the room for two

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hours.

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Id.

Id. ¶ 25.

Plaintiff told police

Id. ¶ 26.

The officers did not take

Plaintiff fainted in the interrogation room.

Id.

After a “long wait,” two officers entered the room to ask

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Plaintiff about a suspect in a shooting.

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told the officers he “had no gang relations.”

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spent four hours in the interrogation room, after which officers

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took him to a hospital.

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///

Id. ¶¶ 29, 30.

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Id. ¶ 27.
Id.

Plaintiff
Plaintiff

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Plaintiff’s SAC contains six claims for relief:

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(1) excessive force under 42 U.S.C. § 1983, (2) denial of

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medical care under § 1983, (3) denial of medical care under

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California Government Code § 845.6, (4) violation of the Bane

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Act, (5) battery, and (6) false imprisonment.

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Defendants move to dismiss Plaintiff’s first through fourth

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claims.

Mot. at 4-12.

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Id. at 1.

II.
A.

OPINION

Dismissal of Fairfield Police Department

Courts in this district have consistently held that

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subdivisions of a defendant city, such as a police department,

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are unnecessary and redundant defendants.

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Manteca, 2008 WL 2825099, at *3 (E.D. Cal. Jul. 21, 2008);

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Herrera v. City of Sacramento, 2013 WL 3992497, at *2 (E.D. Cal.

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Aug. 2, 2013).

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prejudice given that the City has been named as a defendant in

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this case.

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served any individual officers; Tibbet and the City are the only

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defendants.

Brouwer v. City of

The Court therefore dismisses the FPD with

The Court notes that Plaintiff has not named or

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B.

Request for Judicial Notice

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Defendants’ Request for Judicial Notice, ECF No. 30-1, is

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denied with the exception that the Court recognizes the existence

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of a jury verdict and the two referenced orders filed in the Hall

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v. City of Fairfield case.

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C.

First Claim for Relief: Excessive Force

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Plaintiff brings his first cause of action for excessive

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force under the Fourth Amendment.

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the Court should dismiss the excessive force claim as brought
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SAC at 8.

Defendants argue

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against Tibbet and the City.
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§ 1983 Excessive Force Claim Against Tibbet

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“[A] supervisory official can be found liable in his

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individual capacity if there is a sufficient nexus between his

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own conduct and the constitutional violations committed by

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subordinates.”

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1219 (E.D. Cal. 2015).

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is liable for the acts of his subordinates if the supervisor

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participated in or directed the violations, or knew of the

Johnson v. City of Vallejo, 99 F. Supp. 3d 1212,
“In a section 1983 claim, a supervisor

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violations of subordinates and failed to act to prevent them.”

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Id. (internal quotation marks and citations omitted).

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Defendants argue “Plaintiff’s SAC adds no facts to cure the

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defects in his prior complaint, and his factually unsupported,

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vague conclusions are insufficient to withstand dismissal of his

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supervisory liability claim against Chief Tibbet.”

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Mot. at 5.

Plaintiff responds that “Defendants fail to

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acknowledge . . .

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which add[] numerous facts to support Plaintiff’s claims for

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failure to train.”

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that Tibbet failed to (1) discipline officers following previous

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violations of constitutional rights of suspects, and

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(2) “adopt[] policies regarding obtaining medical care for

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detainees who complain of serious injuries.”

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paragraphs 41 through 48 of the SAC . . .

Opp’n at 5.

Paragraph 43 of the SAC states

SAC ¶ 43.

Plaintiff again fails to support his allegations against

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Tibbet with any facts.

The dearth of underlying facts to

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support Plaintiff’s conclusory allegations that Tibbet failed to

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discipline officers or implement certain policies suggests that

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these allegations are mere speculation.
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Given the absence of

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such facts, the Court grants Defendants’ motion to dismiss

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Plaintiff’s first claim as brought against Tibbet.

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finds that Plaintiff has been given enough opportunities to

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properly plead this claim and that any further attempt would be

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futile.

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dismissed with prejudice.

The Court

The excessive force claim against Tibbet is therefore

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2.

§ 1983 Excessive Force Claim Against the City

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Defendants argue the Court should dismiss Plaintiff’s first
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claim as brought against the City because Plaintiff does not
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allege a policy, ratification, or inadequate training sufficient
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to impose Monell liability on the City.

Mot. at 6-11.

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a. Policy, Practice or Custom
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Plaintiff alleges the City “has had several incidents that
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show a pattern, policy and custom in violation of federal and
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state law.”

SAC ¶ 12.

Plaintiff cites to Hall et al v. City of

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Fairfield et al, 2:10-cv-00508-DB, arguing Hall represents a
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“sample” of cases “showing that [FPD] has a pattern of excessive
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force that has spanned over several years.”

Id. ¶¶ 12, 14.

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The City contends that Plaintiff’s reliance on Hall is
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misplaced and that the SAC fails to show how this one single
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case demonstrates that the City had a pattern, policy, or custom
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that led to the deprivation of Plaintiff’s constitutional
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rights.

Mot. at 7. The Court agrees.

There are also no facts

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in the SAC that explain how Hall even relates to the instant
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case and Plaintiff’s citation to Hall shows only that a prior
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lawsuit was filed and a jury verdict resulted on some issue.
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Plaintiff’s SAC does not satisfy Monell’s factual barrier
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nor does it contain sufficient facts which prove that the

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Defendants caused the deprivation of Plaintiff’s federal rights.

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Rather, Plaintiff’s factually devoid conclusions against the

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City cannot withstand this motion to dismiss.

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Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations in a

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complaint . . . may not simply recite the elements of a cause of

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action, but must contain sufficient allegations of underlying

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facts to give fair notice and to enable the opposing party to

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defend itself effectively.”).

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See Starr v.

Plaintiff has not provided the underlying facts necessary

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to support his contention that the City had an unconstitutional

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policy or custom.

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against the City cannot proceed on an unconstitutional policy

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theory.

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b.

Plaintiff’s § 1983 excessive force claim

Ratification

Defendants also argue Plaintiff has not properly alleged a

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ratification claim against the City in the first claim for

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relief.

Mot. at 9.

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“To prove Monell liability based on ratification, the

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plaintiff must show that the final policymaker in question had

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knowledge of the constitutional violation and actually approved

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of it.

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without more, is insufficient to support a section 1983 claim.”

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Kyles v. Baker, 72 F. Supp. 3d 1021, 1044 (N.D. Cal. 2014)

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(internal quotation marks and citations omitted).

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policymaker's response to the subordinate's unconstitutional

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conduct must amount to more than acquiescence; he or she must

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have affirmatively approved both the subordinate's decision and

A mere failure to overrule a subordinate's actions,

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“The final

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the basis for it.”

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Id.

Defendants argue “Plaintiff’s SAC states no facts showing

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the City knew of unconstitutional conduct by any of the

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officers, before the alleged acts were completed, and approved

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it.”

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ratification claim against the City “based on its failure to

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discipline Fairfield Police Officers for their conduct during

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the incident or retrain them or their supervisors.”

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Mot. at 10.

Plaintiff responds that he has stated a

Opp’n at 9.

“[F]or there to be ratification, there must be ‘something

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more’ than a single failure to discipline or the fact that a

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policymaker concluded that the defendant officer's actions were

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in keeping with the applicable policies and procedures.”

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v. City of Imperial, 2010 WL 3911457, at *2 (S.D. Cal. Oct. 4,

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2010); see also Alegrett v. City & Cty of S.F., 2014 WL 1911405,

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at *9 (N.D. Cal. May 13, 2014) (“[F]ailure of a police

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department to discipline in a specific instance is not an

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adequate basis for municipal liability.”).

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Garcia

Plaintiff’s ratification claim rests solely on Plaintiff’s

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contention that Tibbet failed to discipline the involved

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officers for use of excessive force against Plaintiff.

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multiple district courts have stated, however, a single failure

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to discipline does not give rise to municipal liability.

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Plaintiff’s § 1983 excessive force claim cannot proceed on a

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ratification theory.

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c.

As

Inadequate Training

Defendants next argue that Plaintiff’s first claim for

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relief against the City fails to the extent it is based on an

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inadequate training theory.

Mot. at 7.
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To state a Monell claim based on inadequate training, a

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plaintiff must allege facts “establishing what the training

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practices were, how these practices were deficient, [and] how

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the practices caused [the plaintiff’s] harm.”

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Clinics, 2013 WL 12129611, at *5 (C.D. Cal. May 17, 2013); see

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

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

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practices, how those practices were deficient, and without an

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identification of the obviousness of the risk involved, the

Eng v. Pac.

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Court cannot determine if a plausible claim is made for

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deliberately indifferent conduct.”).

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incident is insufficient to establish a program-wide inadequacy

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in training.”

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Additionally, a “single

Eng, 2013 WL 12129611, at *5.

Plaintiff does not identify any specific training policies

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or how such policies caused his harm.

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against the city cannot proceed on a failure to train theory.

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Having found that the first claim for relief against the

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City cannot proceed on any of Plaintiff’s theories, the Court

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grants Defendants’ motion to dismiss Plaintiff’s § 1983

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excessive force claim against the City. The Court finds that

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further amendment would be futile and dismissal is granted with

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prejudice.

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D.

Plaintiff’s § 1983 claim

Second Claim for Relief: Failure to Provide Medical
Services

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Plaintiff brings his second claim against the City only.

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SAC at 11.

Because Plaintiff brings his second claim against

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the City under § 1983, he must properly allege the existence of

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a City policy or practice that resulted in the violation of his
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constitutional rights.

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7180616, at *1 (N.D. Cal. Nov. 16, 2015).

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Austin v. Cty of Alameda, 2015 WL

Plaintiff alleges “[FPD] Officers, including the Doe

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Defendants, failed to provide Plaintiff medical care in the wake

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of the beating despite Plaintiff’s extensive injuries.”

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¶ 52.

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to provide medical care because:

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Id.

Plaintiff states he can hold the City liable for failure

Plaintiff’s claims against Defendant CITY, are based
[on] the fact that the officers had a deliberate
indifference to his serious medical needs. The
Officers were aware that the Plaintiff fainted, had
numbness and pain and disregarded the excessive risk
their actions had on the Plaintiff’s health and
safety. The Plaintiff has shown that there is a
pattern of this indifference in Hall, Supra. The
Defendants were aware of the inadequate medical care
provided to inmates and detainees in the custody. On
information and belief, instead of taking proper steps
to provide for proper medical care for Plaintiff,
Defendants ignored the problem and condoned,
encouraged, fostered and/or ratified the denial of
proper medical care. Plaintiff is further informed
and believes and thereon alleges that and Defendants
have ratified the Defendants’ unconstitutional conduct
towards Plaintiff.

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SAC ¶ 58.
While Plaintiff alleges facts that could potentially

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support a deliberate indifference claim against one of the

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individual officers, Plaintiff fails to allege a policy or

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practice of deliberate indifference.

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provides to support the allegation of a policy or practice is

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his own experience with the FPD.

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previous order, this single instance cannot support the

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allegation that the City had a policy or practice of acting

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deliberately indifferent to the medical needs of those in

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custody.

The only facts Plaintiff

As stated by the Court in its

7/14/16 Order at 9, ECF No. 18 (citing Gaines v. Cty.
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of L.A., 2014 WL 2042243, at *5 (C.D. Cal May 16, 2014)).

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Court therefore, once again, dismisses Plaintiff’s second claim.

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Dismissal is granted without leave to amend given that further

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amendment would be futile.

The

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E.

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Plaintiff alleges the City violated California Government

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Third Claim for Relief: § 845.6

Code § 845.6.

SAC ¶ 67.

Section 845.6 states:

Neither a public entity nor a public employee is
liable for injury proximately caused by the failure of
the employee to furnish or obtain medical care for a
prisoner in his custody; but . . . a public employee,
and the public entity where the employee is acting
within the scope of his employment, is liable if the
employee knows or has reason to know that the prisoner
is in need of immediate medical care and he fails to
take reasonable action to summon such medical care.
Cal. Gov't Code § 845.6.
“[T]o state a claim under § 845.6, a prisoner must

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establish three elements: (1) the public employee knew or had

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reason to know of the need (2) for immediate medical care, and

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(3) failed to reasonably summon such care.”

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F.3d 1091, 1099 (9th Cir. 2006).

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SAC states no facts showing these elements have been met.

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Jett v. Penner, 439

Defendants contend that the

In response, Plaintiff argues he has established the first

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two elements in his SAC because he “not only informed the

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officers that he had a headache, asked for medical treatment and

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medication; he was also shaking visibly, fainted, and reported

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feeling numbness [and] dizziness.”

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alleges that despite such indications of medical need, the

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officers waited several hours before taking him to the hospital.

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SAC ¶ 30.

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the first two elements.

Opp’n at 13.

Plaintiff

These allegations are clearly sufficient to satisfy

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As to the third element, Plaintiff has shown that because

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he was visibly shaking and had suffered blows to the head, at

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least one of the police officers had reason to know of his need

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for medical care.

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reasonable summon care because they did not take Plaintiff to

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the hospital until at least five hours after detaining him.

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It is also clear that the officers failed to

Plaintiff’s SAC contains sufficient allegations to maintain

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this claim for relief and the Court denies the City’s motion to

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dismiss.

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F.

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Plaintiff brings his fourth claim for violation of the Bane

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Fourth Claim for Relief: Bane Act

Act against the City only.

SAC at 15.

The Bane Act creates a right of action where “a

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person . . . whether or not acting under the color of law,

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interferes by threat, intimidation, or coercion, or attempts to

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interfere by threat, intimidation, or coercion” with a right

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secured by federal or state law.

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Because a public entity may be held liable under California law

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for injuries caused by its employees, the City can be held

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liable under the Bane Act if the acts of the police officers

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themselves give rise to a Bane Act claim. See Morse v. Cty. of

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Merced, 2016 WL 3254034, at *6 (E.D. Cal. Jun. 13, 2016).

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Cal. Civ. Code § 52.1(a).

In a previous order in this case, this Court held that in

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wrongful detention cases, a plaintiff must show threats,

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coercion, or intimidation independent from the coercion inherent

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in the wrongful detention itself to successfully plead a Bane

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Act claim.

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however, that “a plaintiff bringing a Bane Act excessive force

7/14/16 Order at 10.

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This Court later held,

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claim need not allege a showing or coercion independent from the

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coercion inherent in the use of force.”

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5930592, at *4 (E.D. Cal. Oct. 12, 2016) (emphasis added).

A.C. v. Griego, 2016 WL

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While Defendants appear to believe that Plaintiff’s Bane

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Act claim is based only on Plaintiff’s wrongful detention and

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false imprisonment allegations, Plaintiff makes clear in his SAC

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that he brings his Bane Act claim based on his excessive force

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allegations rather than on his false imprisonment allegations.

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Thus, Plaintiff need not allege any independent threats of

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coercion.

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Plaintiff to state a Bane Act claim against the City.

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Court denies the City’s motion to dismiss.

The allegations of excessive force are sufficient for
Thus, the

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III.

ORDER

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The Court grants Defendants’ motion to dismiss Plaintiff’s

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first two claims and denies the motion on Plaintiff’s third and

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fourth claims.

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first and second claims.

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only in the first claim for relief, he is dismissed from this

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action and the case will proceed only against the City on the

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following claims for relief:

The Court denies Plaintiff leave to amend his
Since Tibbet was named as a defendant

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1.

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Code § 845.6;

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2.

Fourth claim for violation of the Bane Act;

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3.

Fifth claim for battery; and

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4.

Sixth claim for false imprisonment.

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///

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Third claim for denial of medical care under Cal. Gov.

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The City shall file its Answer to the SAC within twenty
days of the date of this order.
IT IS SO ORDERED.
Dated: March 23, 2017

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