Dabney et al v. City of Hayward et al

Filing 37

ORDER by Magistrate Judge Bernard Zimmerman granting 29 Motion to Dismiss; granting 30 Motion to Dismiss (bzsec, COURT STAFF) (Filed on 5/5/2010)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. CITY OF HAYWARD, et al., Defendant(s). ROBERT DABNEY, et al., Plaintiff(s), ) ) ) ) ) ) ) ) ) ) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA No. C09-4116 BZ ORDER GRANTING SECOND MOTION TO DISMISS Before the Court is the defendant's second motion to dismiss this civil rights complaint on two grounds. When counsel for plaintiffs failed to appear at oral argument, I continued the hearing for two weeks. Upon reflection, I have concluded that there is no need for argument at this time and VACATE the hearing presently scheduled for May 19, 2010. Defendant is correct that the amended complaint still fails to adequately plead a Monell claim. Under Monell v. Department of Social Services, 436 U.S. 658, 692-95 (1978), "A local government may not be sued under 1983 for an injury inflicted solely by its employees or agents. Instead, it is 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under 1983." Id. at 694. Plaintiffs were cautioned about this Yet The failing when I granted the earlier motion to dismiss. plaintiffs failed to meaningfully amend their complaint. amended complaint is simply devoid of any allegations regarding a policy, custom, or action of a policymaker. Nor did plaintiffs explain in their opposition why they did not need to meet the Monell standard. In as much as the City of Hayward is the only defendant, I see no reason to consider its other argument - that the complaint fails to state sufficient facts to constitute a plausible claim against the Doe defendants. IT IS THEREFORE ORDERED that defendant's motion to dismiss is GRANTED with leave to amend. Plaintiffs are given one final opportunity to plead an adequate civil rights claim against defendant. May 19, 2010. Dated: May 5, 2010 Bernard Zimmerman United States Magistrate Judge G:\BZALL\-BZCASES\DABNEY V. CITY OF HAYWARD\SEC ORDER GRANTING DEF'S MOT TO DISMISS.wpd Their amended complaint shall be filed by 2

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