Dillihant et al v. Center for Human Development et al
Filing
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ORDER by Magistrate Judge Jacqueline Scott Corley granting 27 DEFENDANT COSTRA COSTA COUNTY'S MOTION TO DISMISS MONELL CLAIMS IN SECOND AMENDED COMPLAINT(ahm, COURT STAFF) (Filed on 9/16/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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HENRY DILLIHANT,
Plaintiff,
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United States District Court
Northern District of California
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Case No. 16-cv-00220-JSC
v.
CENTER FOR HUMAN DEVELOPMENT,
et al.,
Defendants.
ORDER RE: DEFENDANT COSTRA
COSTA COUNTY’S MOTION TO
DISMISS MONELL CLAIMS IN
SECOND AMENDED COMPLAINT
Re: Dkt. No. 27
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Plaintiff Henry Dillihant III sues the Center for Human Development, as well as Contra
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Costa County, the Contra Costa County Sheriff David Livingston, and Sheriff’s Deputy Jeff
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Moule (collectively “the County” or “the County defendants”) arising out of the termination of his
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employment. Now pending before the Court is the County’s Motion to Dismiss the Monell
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Claims in Plaintiff’s Second Amended Complaint (“SAC”). (Dkt. No. 27.) Having considered the
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parties’ written submissions, the Court GRANTS the motion to dismiss with leave to amend.
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BACKGROUND
Plaintiff contends that during his six-month tenure as a health conductor for the County’s
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Health Services Department he was subject to inappropriate and discriminatory conduct, the
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County failed to accommodate his requests for time off in connection with his wife’s disability, he
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was wrongfully terminated for requesting time off to care for his wife and their newborn child, and
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the termination, which was accomplished with the assistance of Contra Costa County sheriff’s
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deputies, violated his constitutional rights and caused severe emotional distress.
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Plaintiff sued the Center for Human Development and Contra Costa County regarding
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these claims in January 2016. (Dkt. No. 1.) Plaintiff thereafter amended his complaint before any
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defendant had appeared. Defendant the Center for Human Development answered the First
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Amended Complaint (Dkt. No. 15), while the County moved to dismiss (Dkt. No. 14). In
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response to the motion, Plaintiff, among other things, agreed to amend his Section 1983 Monell
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claims. (Dkt. No. 19.)
Plaintiff thereafter filed the now-operative Second Amended Complaint (“SAC”). (Dkt.
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No. 26.) The SAC’s factual allegations are identical to those of the prior complaint except that
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Plaintiff has included two new defendants: Contra Costa County Sheriff David Livingston and
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Sheriff’s Deputy Jeff Moule. With respect to Defendant Moule there is one additional paragraph
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regarding his involvement with Plaintiff’s termination. In particular, Plaintiff alleges that Moule
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waived his gun at Plaintiff, threatened him, took his keys without permission and “gave [him]
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false information about restrictions on his activities after the spectacle ended”; Moule is also
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United States District Court
Northern District of California
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alleged to have participated in the search of Plaintiff’s vehicle. (Dkt. No. 26 at ¶ 22.) Under his
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race discrimination claim, Plaintiff also includes the allegation that “other African-American
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males employed by Contra Costa County in the same department as plaintiff have been treated in a
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similar manner as described herein, as to the public parading around, suggestions of criminal
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activity, and abrupt terminations without explanation.” (Id. ¶ 33.) Finally, in his SAC Plaintiff
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split his Section 1983 claim into three claims for relief. (Id. at ¶¶ 54-68.)
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The County moved to dismiss the SAC’s Monell claims and Center for Human
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Development answered. (Dkt. Nos. 27 & 29.) Because the docket did not reflect that either
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Sheriff Livingston or Deputy Moule had been served with the SAC, the Court issued an order
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regarding their status on September 12, 2016. (Dkt. No. 35.) Both Livingston and Moule filed
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waivers of service later that day pursuant to which their answers are due on November 14, 2016.1
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(Dkt. Nos. 37 & 38.) At the September 16, 2016 hearing, the County requested that the Court rule
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on the Monell motion notwithstanding that these individual defendants’ time to respond has yet to
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run. The Court thus construes the motion to dismiss broadly as addressing claims against the
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County as Plaintiff’s employer, and as a municipality for claims again Sheriff Livingston in his
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official capacity. Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (“A suit against
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Both have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28
U.S.C. § 636(c). (Dkt. No. 40.)
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a governmental officer in his official capacity is equivalent to a suit against the governmental
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entity itself.”).
DISCUSSION
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To the extent Plaintiff sues the County as vicariously liable for injuries caused by County
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employees the section 1983 claims fail. “A municipality may not be sued under [Section] 1983
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solely because an injury was inflicted by its employees or agents.” Long v. Cty. of Los Angeles,
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442 F.3d 1178, 1185 (9th Cir. 2006).
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Under Monell v. Department of Social Services, 436 U.S. 658, 690–91 (1978), a
municipality may be liable when a municipal policy causes an employee to violate another’s
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constitutional right. Monell, 436 U.S. at 691–92. Thus, to state a claim for municipal liability
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United States District Court
Northern District of California
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under Section 1983, a plaintiff must allege facts showing (1) he possessed a constitutional right of
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which he was deprived; (2) the municipality had a policy; (3) this policy amounts to deliberate
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indifference to the plaintiff’s constitutional rights; and (4) the policy is the moving force behind
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the constitutional violation. Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th
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Cir. 1997); see also AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012)
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(“[P]laintiffs must establish that the local government had a deliberate policy, custom, or practice
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that was the moving force behind the constitutional violation they suffered.”) (citation omitted).
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A Monell claim can take one of three forms: “(1) when official policies or established customs
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inflict a constitutional injury; (2) when omissions or failures to act amount to a local government
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policy of ‘deliberate indifference’ to constitutional rights; or (3) when a local government official
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with final policy-making authority ratifies a subordinate’s unconstitutional conduct.” Brown v.
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Contra Costa Cnty., No. C 12-1923 PJH, 2014 WL 1347680, at *8 (N.D. Cal. Apr. 3, 2014)
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(citing Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir. 2010)). Whichever
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form is alleged, the plaintiff must plead facts sufficient to plausibly establish that “the policy is the
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moving force behind the constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900
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(9th Cir. 2011).
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Plaintiff has divided his Section 1983 claim into three separate claims: (1) violation of 42
U.S.C. § 1983 – Fourth Amendment; (2) violation of 42 U.S.C. § 1983 – Failure to discipline,
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policies/customs, deliberate indifference; and (3) violation of 42 U.S.C. § 1983 – ratification. The
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second and third—the seventh and eighth claims for relief, respectively—are the claims at issue in
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the instant motion. The failure to discipline, policies/customs, and deliberate indifference claim is
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pled against the County and Sheriff Livingston, and the ratification claim is pled against the
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County only. The allegations underlying these two claims relate to the conduct of the sheriff’s
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deputies on the day Plaintiff was terminated, and in particular, the search of his person,
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workspace, and vehicle. Plaintiff alleges that the searches violated his constitutional rights to be
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free from unlawful search and seizure and that the unlawful conduct was the proximate result of
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(1) the County and Sheriff Livingston’s failure to discipline deputies, (2) official policies,
practices, or customs by Sheriff Livingston, and the County with respect to searches, and (3)
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United States District Court
Northern District of California
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deliberate indifference by the Sheriff and County. (SAC ¶ 61.) Plaintiff alleges that “Defendant,
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by and through its supervisory employees, has been given notice on repeated occasions of a
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pattern of ongoing constitutional violations and practices by defendants’ deputies of the nature
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described herein.” (Id. at ¶ 64.) Further, the “lack of adequate supervisorial response and training
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demonstrates ratification [by Sheriff Livingston] of defendant’s deputies unlawful acts, as well as
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the existence of an informal custom or policy which tolerates and promotes the continued use of
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civil rights violations by defendant’s deputies.” (Id. at ¶¶ 64, 68.)
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A. Plaintiff’s Seventh Claim for Relief: Official Policy or Deliberate Indifference
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Although Plaintiff has adequately pled a denial of his constitutional right to be free of
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unlawful search and seizure, he has failed to adequately plead any of the remaining elements of a
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municipal liability claim.
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First, Plaintiff has inadequately pled that the violations of his constitutional rights were
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pursuant to an official policy, custom, or practice. Plaintiff must do more than simply recite the
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elements of a Monell claim. See AE ex rel. Hernandez, 666 F.3d at 640 (“naked assertions” of
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official policies, customs, and practices” are inadequate to state a claim for Monell liability).
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Although Plaintiff alleges that there is an official policy, practice, or custom regarding “treatment
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and vehicles searches,” he has not identified what it is. (SAC at ¶ 61.)
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Second, to the extent that the SAC asserts a claim of municipal liability based on the
Sheriff’s failure to train its employees, Plaintiff “must allege facts showing a pattern and practice
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of ‘deliberate indifference’ to violations of constitutional rights.” Connick v. Thompson, 563 U.S.
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51, 61 (2011). Where, as here, the pleadings only recount alleged constitutional violations against
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the plaintiff, there is no cognizable Monell claim. See, e.g., Cannon v. City of Petaluma, No. C
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11–0651 PJH, 2012 WL 1183732, at *19 (N.D. Cal. Apr. 6, 2012) (“[Plaintiff’s] allegations in the
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SAC relate solely to his own, isolated experiences, which cannot support a Monell claim for
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failure to train or supervise.”). In response to the motion to dismiss, Plaintiff contends that he has
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alleged more, but the only allegation in which he identifies conduct beyond that of the incident in
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question is the allegation in his race discrimination claim that “[u]pon information and belied [sic],
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United States District Court
Northern District of California
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other African-American males employed by Contra Costa County in the same department as
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plaintiff have been treated in a similar manner as described herein, as to the public parading
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around, suggestions of criminal activity, and abrupt terminations with explanation.” (SAC ¶ 33.)
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These allegations relate to Plaintiff’s employment with the Health Services Department and Center
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for Human Development, and not the conduct of the sheriff’s deputies which otherwise appear to
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give rise to Plaintiff’s Monell claim for deliberate indifference to the need to train sheriff’s
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deputies. In other words, Plaintiff has not alleged a custom, policy, or practice whereby sheriff’s
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deputies have been involved with “public parading,” “suggestions of criminal activity,” or “abrupt
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terminations” of other African-American employees of the County’s Health Services Department.
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“[D]eliberate indifference is a stringent standard of fault, requiring proof that a municipal actor
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disregarded a known or obvious consequence of his action.” Connick, 563 U.S. at 61 (internal
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citation and quotation marks omitted). “This requirement ensures that the municipality is only
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liable for situations where it was on notice that more training or supervision was needed to avoid
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constitutional violations, and only where the municipality was truly at fault because of its
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defective procedures, not because of isolated acts by errant employees.” Cook v. Cty. of Contra
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Costa, No. 15-CV-05099-TEH, 2015 WL 9204292, at *4 (N.D. Cal. Dec. 17, 2015).
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Finally, Plaintiff has not adequately alleged a causal link between a policy or custom and
the alleged constitutional violation. Dougherty v. City of Covina, 654 F.3d 892, 901 (9th Cir.
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2011) (affirming dismissal where plaintiff failed to allege facts demonstrating that “the custom or
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practice was ‘the moving force’ behind his constitutional deprivation).
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Accordingly, Plaintiff’s seventh claim for relief predicated on an official policy, custom or
practice, or a failure to train or supervise fails to state a claim and must be dismissed.
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B. Plaintiff’s Eighth Claim for Relief: Ratification
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Plaintiff’s eighth claim for relief for ratification is likewise inadequately pled. While a
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policymaker’s ratification of a subordinate’s actions can give rise to municipal liability, the
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plaintiff must allege both that the policymaker had knowledge of the violation and “expressly
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approved of the acts of others who caused the constitutional violation.” Trevino v. Gates, 99 F.3d
911, 920 (9th Cir. 1996). Here, Plaintiff’s only allegation as to ratification is that “[t]he acts or
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United States District Court
Northern District of California
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omissions alleged herein regarding plaintiff’s treatment and the unlawful seizure, upon
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information and belief, were ratified by defendant Sheriff Livingston” who had “final policy
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making authority” who “knew of and specifically approved of the acts of Moule.” (SAC at ¶ 68.)
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However, a policymaker’s mere refusal to overrule a subordinate’s completed act does not
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constitute approval.” Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999). “There must [] be
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evidence of a conscious, affirmative choice” on the part of the authorized policymaker. Gillette v.
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Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992). Plaintiff’s allegation that “on information and
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belief” the Sheriff knew of the deputies’ actions is too thin—Plaintiff must allege “affirmative or
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deliberate conduct” on the part of Sheriff Livingston to give rise to municipal liability based on
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ratification. Gillette, 979 F.2d at 1348.
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Plaintiff’s Monell claims in his seventh and eighth claims for relief are dismissed.
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Although Plaintiff has previously been granted leave to amend these claims and failed to
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adequately do so, the Court declines to dismiss without leave to amend as the County requests
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because it is not yet clear that amendment would be futile. Plaintiff is directed to plead his claims
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with as much specificity as possible and to address the deficiencies identified in this Order.
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CONCLUSION
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For the reasons stated above, the County’s Motion to Dismiss Plaintiff’s Monell claims is
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granted with leave to amend consistent with this Order. (Dkt. No. 27.) If Plaintiff intends to
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pursue these Monell claims, Plaintiff must file his amended complaint with the amended Monell
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claims by October 7, 2016. Failure to do so will result in dismissal with prejudice of the seventh
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and eighth claims for relief.
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IT IS SO ORDERED.
Dated: September 16, 2016
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JACQUELINE SCOTT CORLEY
United States Magistrate Judge
United States District Court
Northern District of California
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