Barbosa et al v. Shasta County et al

Filing 19

ORDER signed by District Judge John A. Mendez on 4/26/2021 GRANTING 8 Motion to Dismiss. If Plaintiffs elect to amend their complaint, they shall file a First Amended Complaint within twenty days (20) of this order. The County's responsive pleading is due twenty days thereafter. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THOMAS BARBOSA, DECEASED, by
and through his Co-Successors
in Interest, LUPITA BARBOSA,
individually and as mother and
next friend for K.B. and T.B.,
minors; ANGELICA MARTINEZVERA, individually; and
KATHLEEN HOOD, individually,

2:20-cv-02298-JAM-DMC

ORDER GRANTING WITH LEAVE TO
AMEND DEFENDANT SHASTA COUNTY’S
MOTION TO DISMISS

Plaintiffs,

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No.

v.

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SHASTA COUNTY, a public
entity, et al.,

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Defendants.

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On February 4, 2020, unidentified Shasta County Sheriff’s

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Office (“SCSO”) deputies shot and killed Thomas Barbosa, a former

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Marine and Iraq War veteran suffering from Post-Traumatic Stress

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Disorder (“PTSD”).

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followed.

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Barbosa: his wife, Lupita Barbosa, his biological children, K.B.

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and T.B., his stepdaughter, Angelica Martinez-Vera, and his

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mother, Kathleen Hood.

Compl. ¶ 21, ECF No. 1.

This lawsuit

Plaintiffs are surviving family members of Mr.

Id. ¶¶ 3-6.
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Defendants are Shasta County

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(the “County”) which operates the SCSO and Shasta County Sheriff-

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Coroner Eric Magrini ("Magrini").

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Id. ¶¶ 8-9.

Before the Court is the County’s Motion to dismiss

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Plaintiffs’ second claim for municipal liability under 42 U.S.C.

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§ 1983 for failure to state a claim and to dismiss Plaintiffs’

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fourth, fifth, sixth, and seventh state law claims for failure to

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differentiate the allegations against the County from the other

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Defendants.

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filed an opposition, Opp’n, ECF No. 15, to which the County

Mot. to Dismiss (“Mot.”), ECF No. 8.

Plaintiffs

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replied, Reply, ECF No. 17.

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Court GRANTS WITH LEAVE TO AMEND the County’s Motion to Dismiss.1

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I.

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For the reasons set forth below, the

BACKGROUND

Around 12:38 p.m. on February 4, 2020, Lupita Barbosa called

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911 to request a welfare check for her husband, Thomas Barbosa,

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whom she reported was breaking things around the house and

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appeared to be hallucinating.

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year-old veteran, suffered from PTSD.

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911 operator her husband needed help for his PTSD and

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specifically requested that an ambulance, not SCSO deputies, be

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sent.

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minor children left the house and got into a car.

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Barbosa followed them out of the house, telling Lupita he would

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drive behind them in his truck because he was concerned for her

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and the children’s safety.

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someone from the SCSO called her and instructed her to lead Mr.

Id. ¶ 22.

Compl. ¶ 22.

Mr. Barbosa, a 41-

Id. ¶ 20.

Lupita told the

After placing the 911 call, Lupita and her two

Id.

Id. ¶ 23.

Mr.

As Lupita was driving away,

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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 April 6, 2021.
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Barbosa to a nearby auction yard where SCSO deputies would

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intercept him.

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when she eventually pulled over at the auction yard, Mr. Barbosa

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noticed the SCSO deputies and drove away.

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Id.

Lupita agreed to follow this plan, however,

A pursuit ensued.

Id. ¶ 24.

Id.

SCSO deputies along with a CHP

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helicopter tracked Mr. Barbosa as he drove down a rural highway

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and eventually drove up a small embankment to a steep cliff.

Id.

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¶ 25.

Id.

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His truck rolled over a few times before stopping against a tree.

He paused for a few minutes then drove off the cliff.

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Id.

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trapped in the truck.

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a knife and that “jaws of life” would be needed to extract him

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from the truck.

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shot and killed Mr. Barbosa with a single round to the chest from

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a .223-caliber rifle.

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SCSO deputies found Mr. Barbosa alive and conscious but

Id.

Id.

The deputies believed Mr. Barbosa had

Around 2:28 p.m., an unidentified deputy

Id.

In response, Plaintiffs filed this civil rights, wrongful

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death, and survival action against Defendants.

See generally

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Compl.

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Motion concerns only certain claims against the County Defendant:

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the second count for municipal liability under 42 U.S.C. § 1983,

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and the fourth, fifth, six, and seventh state law counts.

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¶¶ 40-46, 56-81.

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Federal Rule of Civil Procedure 12(b)(6).

While the complaint contains eight counts, the present

Compl

The County moves to dismiss these claims under

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II.

Mot. at 4–15.

OPINION

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A.

Legal Standard

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A Rule 12(b)(6) motion challenges the complaint as not

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alleging sufficient facts to state a claim for relief.

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Civ. P. 12(b)(6).

Fed. R.

“To survive a motion to dismiss [under
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12(b)(6)], a complaint must contain sufficient factual matter,

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accepted as true, to state a claim for relief that is plausible

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on its face.”

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(internal quotation marks and citation omitted).

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“detailed factual allegations” are unnecessary, the complaint

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must allege more than “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements.”

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Id.

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the non-conclusory ‘factual content,’ and reasonable inferences

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
While

“In sum, for a complaint to survive a motion to dismiss,

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from that content, must be plausibly suggestive of a claim

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entitling the plaintiff to relief.”

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572 F.3d 962, 969 (9th Cir. 2009).

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B.

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Moss v. U.S. Secret Serv.,

Analysis
1.

Second Count: Monell Claim

The County first moves to dismiss Plaintiffs’ second count –

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a Monell claim against the County based on (1) unconstitutional

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customs, policies, and practices, (2) failure to train, and

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(3) ratification – contending Plaintiffs’ allegations as to this

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count are conclusory and lack sufficient factual matter to state

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a claim.

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Mot. at 4-10; Reply at 1-3.

Municipalities may be held liable under Section 1983 for

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constitutional injuries inflicted through a municipal policy or

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custom.

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U.S. 658, 694 (1978).

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municipal liability is by demonstrating that: (1) the

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constitutional tort was the result of a longstanding practice or

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custom that constitutes the standard operating procedure of the

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local government entity; (2) an official with final policy-making

Monell v. Dep’t of Soc. Servs. of City of New York, 436
Among the ways a plaintiff may establish

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authority delegated that authority to, or ratified the decision

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of, a subordinate; or (3) the municipality failed to adequately

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train the tortfeasors.

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Cir. 2008) (internal quotation marks and citation omitted).

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properly plead a Monell claim, plaintiff “may not simply recite

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the elements of a cause of action, but must contain sufficient

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allegations of underlying facts to give fair notice and to enable

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the opposing party to defend itself effectively.”

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Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012)

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Price v. Sery, 513 F.3d 962, 966 (9th
To

AE ex rel.

(internal citations omitted).

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As an initial matter, Plaintiffs’ counsel insists their

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method of pleading has been “repeatedly approved by judges in the

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Eastern and Northern Districts.”

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Plaintiffs’ counsel cites to and the legal standards applied

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therein, which counsel insists have also been met here, are not

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the applicable ones.

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Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002) (applying the

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Conley notice pleading standard).

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County points out, the notice pleading standard applied in

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Swierkiewicz was abrogated by the Supreme Court in Twombly and

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Iqbal and replaced by a stricter plausibility standard.

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1.

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plausibility standard governs Monell claims.

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Hernandez, 666 F.3d at 637.

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rely on do not provide the relevant legal standard under which

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Monell claims are assessed.

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meet the applicable plausibility standard.

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///

Opp’n at 6.

Yet, the authority

For instance, Plaintiffs cite to

Opp’n at 4.

But, as the

Reply at

The Ninth Circuit too has been clear that the Twombly-Iqbal
AE ex rel.

In short, the authority Plaintiffs

Rather, Plaintiffs’ allegations must

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a.

Custom, Policy, or Practice

Plaintiffs’ allegations regarding the County’s

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unconstitutional customs, practices and procedures are set forth

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in paragraph 41 of the complaint.

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7-8 (referring the Court to ¶ 41(a-h)).

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allegations are conclusory and lack sufficient factual content to

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state a claim.

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Compl. ¶ 41; see also Opp’n at
The County argues these

Mot. at 4-6.

When asserting a Monell claim based on an unconstitutional

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custom, policy, or practice, plaintiffs must set forth “more than

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a bare allegation that government officials’ conduct conformed to

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some unidentified government policy or custom.”

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Hernandez, 666 F.3d at 637.

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California court has explained, conclusory statements

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“unsupported by any factual allegations as to what that 'policy,

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custom and practice' consists of, who established it, when, or

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for what purpose, [do] not sufficiently allege a basis for Monell

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liability."

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2525760 at *5 (E.D. Cal. Aug. 7, 2009)(internal citations

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omitted).

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AE ex rel.

As another Eastern District of

Lutz v. Delano U.S.D., No. 1:08-cv-01787, 2009 WL

Here, the Court finds the allegations contained in paragraph

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41 of the complaint are improperly pled conclusory statements.

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See Iqbal, 556 U.S. at 679.

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allegations” regarding the County’s customs, policies, and

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practices is unsupported with facts, Plaintiffs have not stated a

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plausible Monell claim.

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cv-00617, 2018 WL 4057491 at *5 (E.D. Cal. Aug. 24, 2018)

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(dismissing plaintiffs’ Monell claim because the “grab bag of

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allegations concerning the City's policies” were not “supported

Because Plaintiffs’ “grab bag of

Kollin v. City of Tehachapi, No. 1:18-

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with facts”).

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b. Failure to Train
Plaintiffs’ allegations regarding the County’s failure to

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properly train SCSO deputies on how to engage with mentally ill

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individuals are principally set forth in paragraphs 23-26, 41(c-

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e), and 41(j) of the complaint.

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Opp’n at 10-11 (referring the Court to these paragraphs).

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County again contends these allegations are conclusory and lack

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sufficient factual content to state a claim.

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Compl. ¶¶ 23-26, 41; see also
The

Mot. at 6-7.

When asserting a Monell claim predicated on inadequate

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training, a plaintiff must allege the:(1) decedent was deprived

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of a constitutional right; (2) the policy amounts to deliberate

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indifference to constitutional rights of persons whom officers

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are likely to interact with; and (3) the constitutional injury

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would have been avoided had the officers been properly trained.

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Flores v. County of Los Angeles, 758 F.3d 1154, 1158–59 (9th Cir.

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2014).

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required plaintiffs to allege what the training practices were,

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how those practices were deficient, and how the training

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practices caused plaintiff’s harm.

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F.Supp.2d 1141, 1149-1150 (E.D. Cal. 2009) (explaining that

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“without identifying the training . . . practices, how those

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practices were deficient . . . the Court cannot determine if a

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plausible claim is made for deliberately indifferent conduct.”)

Further, an Eastern District of California court has

Young v. City of Visalia, 687

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Here, Plaintiffs do not sufficiently describe what training

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SCSO deputies did or did not receive or how these practices were

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deficient, nor do they causally connect deficiencies in the

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training to Mr. Barbosa’s death.

Nor do Plaintiffs save their
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failure to train claim by arguing that “sometimes a

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municipality’s failure to supervise is self-evident by the facts

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of a single incident.”

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brought forward authority to the contrary, that courts can and do

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dismiss such claims “where a plaintiff alleged a single incident

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of unconstitutional conduct as the basis for their Monell claim.”

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Reply at 2 (citing to Cain v. City of Sacramento, No. 2:17-cv-

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00848 2017 WL 4410116 at *3 (E.D. Cal. Oct. 3, 2017)).

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single incident alleged here, namely the events leading to Mr.

Opp’n at 9.

Indeed, the County has

The

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Barbosa’s death, is insufficient to support Plaintiffs’ failure

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to train claim.

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Accordingly, this claim is dismissed.
c.

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Ratification

Plaintiffs’ allegations regarding the County’s ratification

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of unconstitutional actions by SCSO deputies are set forth in

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paragraph 43 of the complaint.

Compl. ¶ 43; see also Opp’n at 12

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(referring the Court to ¶ 43).

The County contends these

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allegations are conclusory and lack sufficient factual content to

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state a ratification claim.

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Mot. at 8-10.

When asserting a Monell claim based on ratification, a

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plaintiff “must allege facts that show that the authorized

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policymakers approve a subordinate's decision and the basis for

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it."

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31637 at *7 (N.D. Cal. Jan. 4, 2016) (internal quotation marks

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and citations omitted).

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subordinate’s actions, without more, is insufficient.”

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Carl, 382 F.3d 978, 987 (9th Cir. 2004).

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“mere failure to discipline does not amount to ratification.”

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Adomako v. City of Fremont, No. 17-cv-06386, 2018 WL 2234179 at

Petre v. City of San Leandro, No. 15-cv-03344, 2016 WL

Alleging “a mere failure to overrule a

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Lytle v.

Likewise, alleging a

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*3 (N.D. Cal. May 16, 2018).

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Here, Plaintiffs’ allegations do not contain facts showing

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the County approved of the unidentified SCSO deputies’ actions

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and decisions.

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that “authorized policy makers within Shasta County” “approved of

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the conduct and decisions of DOE Defendant” and “have made a

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deliberate choice to endorse such conduct and decisions, and the

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basis for them.”

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insistence that these allegations are sufficient, the Court finds

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Rather, they merely state in conclusory terms

Compl. ¶ 43.

Contrary to Plaintiffs’

they are not.

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In sum, because Plaintiffs have only alleged

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unsupported conclusory statements, they have not plausibly

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stated a Monell claim under any of the three theories they

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advance: unconstitutional customs, policies, and practices,

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failure to train, and ratification.

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second count against the County is dismissed.

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2.

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Accordingly, their

Fourth, Fifth, Sixth, and Seventh Counts

The County also moves to dismiss Plaintiffs’ fourth through

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seventh state law counts as to any direct liability claim.

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at 10-15; Reply at 4-5.

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for each of these counts, Plaintiffs have impermissibly lumped

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all Defendants together, failing to identify and differentiate

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the allegations of the County’s wrongdoing from allegations

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against the other Defendants.

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Mot.

The County’s leading argument is that

Mot. at 10-12.2

According to the

The County raises two other arguments as to why any direct
liability portion of these four counts should be dismissed. Mot.
at 12-15. First, Defendant argues that with respect to the fifth
count for negligence, sixth count for assault and battery, and
seventh count for false arrest and imprisonment, Plaintiffs
failed to allege which enactment imposes a mandatory duty upon
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County, Plaintiffs “cannot simply group all defendants together

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in a count without some specification as to which defendant is

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responsible for which wrong.”

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Mot. at 11.

The Court agrees.

It is well-settled that "undifferentiated pleading against

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multiple defendants is improper."

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LLC, No. 11-cv-00542, 2011 WL 1740099 at *4 (N.D. Cal. May 5,

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2011) (internal citation and quotation marks omitted); see also

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Mot. at 11-12 (collecting cases).

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differentiate between each of the defendants and clearly state

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the factual basis for each cause of action as to each specific

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defendant."

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644008 at *6, n. 4 (N.D. Cal. Feb. 19, 2014).

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Corazon v. Aurora Loan Servs.,

Rather, the complaint “must

Fagbohungbe v. Caltrans, No. 13-cv-03801, 2014 WL

Notwithstanding the ample authority the County brings

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forward in its Motion establishing the rule that undifferentiated

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pleading is improper, Plaintiffs again respond with inapposite

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authority.

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v. Gibson, 355 U.S. 41 (1957), for the proposition that

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plaintiffs need only “give the defendant fair notice of what the

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plaintiff’s claim is and the grounds upon which it rests.”

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As discussed above, however, the Supreme Court has overruled

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Conley and set aside Conley’s less strict notice pleading

Opp’n at 13.

Specifically, Plaintiffs cite to Conley

Id.

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the County as required to state a direct liability claim against
the County. Mot. at 12-14. Second, Defendant argues that with
respect to Plaintiffs’ fourth count for violation of Cal. Civ.
Code § 52.1, any direct liability claim against the County fails
as a matter of law. Mot. at 14-15 (citing to Gonzalez v. County
of Los Angeles, 2008 U.S. Dist. LEXIS 73003 (C.D. Cal. July 28,
2008)). The Court does not reach these additional arguments
because it finds dismissal is warranted based upon Plaintiffs’
failure to differentiate allegations of wrongdoing against the
multiple Defendants.
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standard, replacing it with plausibility standard set forth in

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Twombly and Iqbal.

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Further, Plaintiffs’ attempt to distinguish the present case

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from the County’s long list of authority, see Mot. at 11-12, in

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which courts dismissed complaints for failure to identify each

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defendant’s culpable conduct when pleading multiple claims

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against multiple defendants, fails.

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their complaint is distinct from Canales and the County’s other

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cited authority because they have not lumped Defendants together

According to Plaintiffs,

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under one broad allegation; rather, they have pled specific

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allegations of vicarious liability, see Compl. ¶¶ 62, 70, 74, 80.

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Opp’n at 13.

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allegations “resolve any possible confusion.”

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Plaintiffs insist these vicarious liability
Id.

This argument, however, mistakes the particular aim of the

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County’s 12(b)(6) challenge: in the Motion itself, the County

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clearly states it “does not dispute that plaintiffs have

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sufficiently alleged a claim for the County’s vicarious liability

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claim” and that it is only challenging any direct liability

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portion of these counts.

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Thus, the Court agrees with the County that Plaintiffs’ vicarious

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liability allegations do not resolve the issue of whether

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plaintiffs' other allegations broadly lumping together

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“Defendants” are pleading direct liability claims against the

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County too.

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differentiate between each of the defendants and do not clearly

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state the factual basis for each claim as to each specific

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defendant, the Court cannot determine if a direct liability claim

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against the County has been asserted in counts four through seven

Reply at 4.

Mot. at 14, fn.14; see also Reply at 4.

Indeed, because Plaintiffs do not

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or if Plaintiffs are only bringing vicarious liability claims

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with respect to these counts.

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undifferentiated pleading against multiple Defendants is

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improper, any direct liability portion of counts four through

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seven as to the County must be dismissed.

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Because this kind of

Plaintiffs’ additional arguments do not change this

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analysis.

First, Plaintiffs contend that they are unable to

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further differentiate their allegations of wrongdoing because the

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County has not provided them with information about the

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identities of involved officers or agents.

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the County points out, Plaintiffs need only separate the County

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from the individual defendants as they did in their federal

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claims.

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amendment “would be an exercise in pure formalism without any

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practical purpose.”

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currently pled, neither this Court nor the County can determine

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whether counts four through seven include a direct liability

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claim against the County in addition to a vicarious liability

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claim.

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purposes: providing notice to the County of whether they must

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defend against direct liability claims and facilitating this

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Court’s ability to determine whether a plausible direct liability

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claim has been stated.

Reply at 5.

Opp’n at 13.

But as

Second, Plaintiffs argue that requiring

Opp’n at 15.

The Court disagrees.

As

Thus, amendment would serve at least two practical

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C.

Leave to Amend

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Courts dismissing claims under Federal Rule of Civil

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Procedure 12(b)(6) have discretion to permit amendment, and there

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is a strong presumption in favor of leave to amend.

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Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1051-52 (9th Cir.
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Eminence

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2003).

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not appropriate unless it is clear . . . that the complaint could

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not be saved by amendment.”

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omitted).

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“Dismissal with prejudice and without leave to amend is

Id. at 1052 (internal citation

Here, Plaintiffs seek leave to amend the complaint.

See

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Opp’n at 15.

Since it may be possible for Plaintiffs to cure the

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above-described deficiencies, the Court will grant them an

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opportunity to rectify the errors in their dismissed claims and

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file a First Amended Complaint.

Any amended complaint, however,

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should contain facts that sufficiently show plausible causes of

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action.

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III.

ORDER

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For the reasons set forth above, the Court GRANTS WITH

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LEAVE TO AMEND Defendant Shasta County’s Motion to Dismiss.

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Plaintiffs elect to amend their complaint, they shall file a

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First Amended Complaint within twenty days (20) of this order.

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The County’s responsive pleading is due twenty days thereafter.

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IT IS SO ORDERED.
Dated: April 26, 2021

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If