Dias v. City of San Leandro et al

Filing 31

ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT by Hon. William Alsup granting 24 Motion for Leave to File.(whalc2, COURT STAFF) (Filed on 8/29/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JAMES DIAS,

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For the Northern District of California

United States District Court

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No. C 11-01966 WHA
Plaintiff,

v.

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CITY OF SAN LEANDRO, the SAN
LEANDRO POLICE DEPARTMENT, and
OFFICER DENNIS MALLY, individually
and in his official capacity as police officer
for SAN LEANDRO,

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ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO FILE A
SECOND AMENDED COMPLAINT
AND VACATING HEARING

Defendants.

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INTRODUCTION
In this Section 1983 action, plaintiff moves for leave file a second amended complaint.
For the following reasons, plaintiff’s motion is GRANTED.
STATEMENT
Plaintiff James Dias filed his initial complaint against the City of San Leandro, the San

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Leandro Police Department, and San Leandro Police Officer Dennis Mally in April 2011. After a

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first amended complaint was filed, defendants the City and SLPD moved to dismiss plaintiff’s

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claims against them for failure to state a claim upon which relief can be granted. Officer Mally

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has not appeared and may not have been served (there is no proof of service of summons on the

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docket) and thus did not move to dismiss any claims. An order dated July 15 granted the City and

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SLPD’s motion. It further set a deadline by which plaintiff could file a motion for leave to file an

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amended complaint. Defendants the City and SLPD oppose the instant motion. Officer Mally

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still has not appeared.

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ANALYSIS
Leave to amend a deficient complaint should be freely given when justice so requires, but

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leave may be denied if amendment of the complaint would be futile. FRCP 15(a)(2); Gordon v.

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City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010).

As stated in the order granting defendants’ motion to dismiss, “a local government may

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not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is

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when execution of a government’s policy or custom, whether made by its lawmakers or by those

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For the Northern District of California

A.

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United States District Court

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whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the

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government as an entity is responsible under § 1983.” Monell v. Dep’t of Soc. Servs. of the City

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of New York, 436 U.S. 658, 694 (1978). “[I]n order to establish an official policy or custom

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sufficient for Monell liability, a plaintiff must show a constitutional right violation resulting from

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(1) an employee acting pursuant to an expressly adopted official policy; (2) an employee acting

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pursuant to a longstanding practice or custom; or (3) an employee acting as a ‘final

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policymaker.’” Delia v. City of Rialto, 621 F.3d 1069, 1081–82 (9th Cir. 2010) (citations

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omitted).

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SECTION 1983 CLAIM

A Section 1983 claim against a local government entity based on inaction must establish

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that (1) the plaintiff “possessed a constitutional right of which he was deprived,” (2) “the

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municipality had a policy,” (3) “this policy amounts to deliberate indifference to the plaintiff’s

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constitutional right,” and (4) “the policy is the moving force behind the constitutional violation.”

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Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (citing City of Canton v. Harris, 489 U.S.

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378, 389–91 (1989)) (internal quotation marks omitted). “A failure to train or supervise can

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amount to a ‘policy or custom’ sufficient to impose liability on the County.” Anderson v.

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Warner, 451 F.3d 1063, 1070 (9th Cir. 2006) (citing City of Canton, 489 U.S. at 389–90).

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Defendants’ motion to dismiss plaintiff’s Section 1983 claim against the City and SLPD
was granted on the ground that plaintiff failed to allege with sufficient particularity a specific
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policy, custom, or practice, and how such policy, custom, or practice caused the violation of his

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constitutional rights:

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Plaintiff’s allegations of a custom, policy, or practice are impermissibly vague
and unspecific. Plaintiff does not refer to any specific custom, policy, or practice
that caused his alleged deprivation of rights. Plaintiff avers, in a conclusory
fashion, that his rights were violated and that such violation demonstrates the
existence of a custom, policy, or practice. Likewise, plaintiff makes no mention
of how any failures in training defendants’ employees caused the asserted
constitutional violations. These allegations are insufficient under Rule 12(b)(6) to
state a Section 1983 claim against the City or the SLPD.

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(Dkt. No. 21 at 4).
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Plaintiff’s proposed second amended complaint cures these deficiencies. The proposed
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complaint alleges that the City and SLPD “do not provide police officers under their supervision
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implementation of the use of proper force, whether it be during an arrest, in self-defense, or
For the Northern District of California

United States District Court

any guidance, training, preparation or other instructions regarding . . . [t]he proper
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otherwise . . . [or] [h]ow and when to execute a lawful arrest for the offense under state law
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prohibiting being publicly intoxicated” (Dkt. No. 24-1 ¶ 21). The proposed complaint thus
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alleges a specific failure to train, which may give rise to Section 1983 liability. Anderson, 451
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F.3d at 1070.
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Furthermore, plaintiff’s proposed complaint sufficiently alleges that the policy was the
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“moving force behind the constitutional violation.” Oviatt, 954 F.2d at 1474. Plaintiff alleges
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that he was subjected to excessive force and illegal arrest in violation of his rights under the
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Fourth and Fourteenth Amendments, that the City and SLPD failed to train their officers in proper
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use of force and in making lawful arrests for public intoxication, and that such policy led to his
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being subjected to excessive force and illegal arrest (see Dkt. No. 24-1 ¶¶ 18, 23, 26). This is
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sufficient to state a claim against the City and SLPD under Section 1983.
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The City and SLPD oppose the instant motion by arguing that the proposed second
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amended complaint fails because (i) it does not specify “which clause” of the Fourth and
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Fourteenth Amendments “is at issue,” and (ii) it does not allege facts which demonstrate that a
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deficient policy was the moving force behind any of the alleged incidents of excessive force.
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These challenges fail.
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The proposed second amended complaint asserts a Fourth Amendment violation. The

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Fourth Amendment is “made applicable to the States by the Fourteenth Amendment.” Therefore,

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“that Amendment [the Fourth Amendment], not the more generalized notion of ‘substantive due

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process,’ must be the guide for analyzing” a Section 1983 claim. Albright v. Oliver, 510 U.S.

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266, 273 (1994) (citations omitted). Defendants misread the proposed complaint in asserting that

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no specific constitutional provision is relied upon by the Section 1983 claim.

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In addition, defendants’ argument that “Plaintiff cannot show that a City policy was the

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moving force that caused the alleged excessive force claim” (Opp. 6), is simply a fact argument.

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It is irrelevant in considering whether it would be futile to allow plaintiff to file his second
amended complaint. Contrary to defendants, plaintiff has now identified in his proposed

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For the Northern District of California

United States District Court

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complaint two customs, policies, or practices that allegedly caused deprivation of his rights.

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B.

CLAIMS AGAINST OFFICER MALLY

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The order granting defendants’ motion to dismiss the first amended complaint specifically

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stated that all of plaintiff’s claims brought against Officer Mally remained. Plaintiff’s proposed

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second amended complaint asserts its Section 1983 claim against all defendants, and brings four

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additional claims only against Officer Mally: (1) intentional infliction of emotional distress,

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(2) “assault and battery” (pled as assault), (3) battery, and (4) “false arrest without warrant by

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peace officer.” Plaintiff’s negligence claim is no longer included, nor is his false imprisonment

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claim. The City and SLPD argue that the state-law claims pled only against Officer Mally fail to

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state a claim upon which relief can be granted.

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The City and SLPD ignore a key difference between the first amended and proposed

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second amended complaints: the state-law claims in the first amended complaint were brought

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against all defendants, while in the proposed complaint they are brought against Officer Mally

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only. Officer Mally does not oppose plaintiff’s motion for leave file a second amended complaint

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and has not appeared. This order does not affect his right to challenge the complaint in due

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course if and when he appears.

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CONCLUSION
For the foregoing reasons, plaintiff’s motion for leave to file a second amended complaint

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is GRANTED. Plaintiff shall file the proposed second amended complaint on the docket as his

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second amended complaint within FOUR CALENDAR DAYS of this order. The hearing set for

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September 8 is VACATED.

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IT IS SO ORDERED.

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Dated: August 29, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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