Dizon v. City of South San Francisco et al

Filing 20

ORDER GRANTING MOTION TO DISMISS by Judge Jon S. Tigar granting 11 Motion to Dismiss. Amended Pleadings due by 11/6/2018. (wsn, COURT STAFF) (Filed on 10/16/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DEBBY DIZON,

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Plaintiff,

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ORDER GRANTING MOTION TO
DISMISS

v.

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CITY OF SOUTH SAN FRANCISCO, et
al.,

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United States District Court
Northern District of California

Case No. 18-cv-03733-JST

Re: ECF No. 11

Defendants.

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Before the Court is Defendants’ motion to dismiss Plaintiff’s Section 1983 Monell claims.

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The Court will grant the motion in part and deny it in part.
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I.

BACKGROUND

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Plaintiff Debby Dizon brings claims under 42 U.S.C. § 1983 and state law based on
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allegations that Defendants illegally detained, searched, and arrested her during a traffic stop in
Daly City, California. For the purposes of deciding this motion, the Court accepts as true the
following factual allegations from Plaintiff’s Complaint. ECF No. 1 (“Compl.”).
Plaintiff Dizon is a resident of Daly City, California. Id. ¶ 15. The defendants are the City

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of South San Francisco (“the City”), Diana Quintero, Christopher Devan, and Does 1-10. Id. ¶¶

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16-20. Officer Quintero and Officer Devan are police officers for the City. Id. ¶¶ 17-18.

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After midnight on December 22, 2016, Officer Devan stopped Dizon’s vehicle at a

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residential intersection in Daly City because the vehicle had a suspended registration. Id. ¶¶ 27-

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28. After questioning Dizon about her insurance and hearing back from dispatch that Dizon had

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no record or warrants, Officer Devan summoned Officer Quintero to serve as backup for a search.

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Id. ¶¶ 28, 30. After Devan waited for three minutes, Quintero arrived. Id. ¶¶ 30-31. Devan then

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asked Dizon to step out of her vehicle and asked her a series of questions unrelated to the traffic

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stop. Id. Plaintiff agreed to be searched, and Devan instructed Quintero to search Dizon’s body

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over her clothes. Id. ¶¶ 31-32.
While conducting the pat down, Officer Quintero felt something hard in Dizon’s vaginal

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area, which Dizon claimed was a tampon. Id. ¶ 32. Quintero told Dizon to be honest and asked if

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she had drugs, to which Dizon “shook her head in the affirmative.” Id. Officer Devan told Dizon

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that she would be handcuffed, and Quintero asked Dizon if “it was ‘okay if I grab it?’” Id. ¶ 33.

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Dizon, handcuffed and crying, “allegedly gave consent” and Officer Quintero “made contact with
[Dizon’s] vagina and labia to retrieve the item.” Id. ¶¶ 31-34. Quintero did not take sanitary or
privacy precautions despite Devan’s presence and the fact that the search was conducted in a
public area. Id. ¶¶ 35-36. Quintero removed a baggie of crystalline shards from Dizon’s labia. Id.
¶ 36.

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United States District Court
Northern District of California

Dizon was arrested and charged with possession of drugs. Id. ¶ 37. After an evidentiary
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hearing, the criminal court ruled that the officers’ detention and search of Dizon were unlawful.
Id. ¶ 38. The criminal case against her was then dismissed by the San Mateo County District
Attorney’s Office. Id. ¶ 39. Officers Devan and Quintero have not been disciplined or terminated
for their treatment of Dizon. Id. Since the incident, both officers have received pay raises and
Officer Devan has been promoted. Id.

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Dizon filed her complaint with this Court on June 22, 2018. Compl. She brings six causes

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of action: (1) a violation of the Fourth Amendment by unlawful detention under Section 1983;

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(2) a violation of the Fourth Amendment by an unlawful body cavity search under Section 1983;

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(3) a Monell claim for failure to train under Section 1983; (4) a Monell claim for ratification under

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Section 1983; (5) a claim for battery under California Government Code Sections 815.2(a) and

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820(a); and (6) a claim for intentional infliction of emotional distress under California law. Id.

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On July 17, 2018, Defendants filed the motion to dismiss now before the Court. ECF No.

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11. Dizon filed her opposition to the motion on July 30, 2018. ECF No. 12. Defendants replied

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on August 7, 2018. ECF No. 14.

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II.

JURISDICTION

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The Court has jurisdiction over Plaintiff’s federal claims pursuant to 28 U.S.C. § 1331.

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The Court has supplemental jurisdiction over the remainder of Plaintiff’s claims pursuant to 28
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U.S.C. § 1367(a).

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III.

LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and plain

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statement of the claim showing that the pleader is entitled to relief.” While a complaint need not

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contain detailed factual allegations, facts pleaded by a plaintiff must be “enough to raise a right to

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relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To

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survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter to,

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United States District Court
Northern District of California

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when accepted as true, state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. While this standard is not a probability requirement, “[w]here a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Id. (internal quotation marks and citation omitted). In

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determining whether a plaintiff has met this plausibility standard, the Court must accept all factual
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allegations in the complaint as true and construe the pleadings in the light most favorable to the
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plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).

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Unless amendment would be futile, a district court should freely grant leave to amend the
complaint. Fed. R. Civ. P. 15(a)(2); see also Young v. City of Visalia, 687 F. Supp. 2d 1155, 1161
(E.D. Cal. 2010) (“If a Rule 12(b)(6) motion to dismiss is granted, ‘[the] district court should grant
leave to amend even if no request to amend the pleading was made, unless it determines that
pleading could not possibly be cured by the allegation of other facts.’” (quoting Lopez v. Smith,
203 F.3d 1122, 1127 (9th Cir. 2000) (en banc))).
IV.

REQUEST FOR JUDICIAL NOTICE
Per Dizon’s request, the Court takes judicial notice of the 2013 U.S. Bureau of Justice

Statistics report regarding traffic stops and searches because it is a matter of public record not
subject to reasonable dispute. ECF No. 12 at 12 n.1; Fed. R. Evid. 201(b); Lee v. City of Los
Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

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V.

DISCUSSION

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The present motion to dismiss addresses Dizon’s third and fourth causes of action, which

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allege municipal liability against the City and Does 1-10 for the City’s failure to train its officers

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and its ratification of their conduct. ECF No. 11 at 5-11. Defendants argue that Dizon’s

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complaint fails to allege sufficient facts to state a Monell liability claim under either theory. Id.

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Under Monell, a government entity may not be held liable under Section 1983 unless a

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“policy or custom” of the entity can be shown to be a moving force behind the alleged

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constitutional violation. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978).
In order to establish liability for governmental entities under Monell,
a plaintiff must prove “(1) that [the plaintiff] possessed a
constitutional right of which [s]he was deprived; (2) that the
municipality had a policy; (3) that this policy amounts to deliberate
indifference to the plaintiff’s constitutional right; and, (4) that the
policy is the moving force behind the constitutional violation.”

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United States District Court
Northern District of California

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Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (quoting Plumeau v. Sch. Dist. No.

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40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). Generally, a plaintiff may rest her Monell

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claim on one of three bases. “First, a local government may be held liable ‘when implementation

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of its official policies or established customs inflicts the constitutional injury.’” Clouthier v. Cty.

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of Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 2010) (quoting Monell, 436 U.S. at 708),

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overruled on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016).

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Second, under certain circumstances, a local government may be held liable under Section 1983

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for acts of “omission,” including failures to train its employees, “when such omissions amount to

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the local government’s own official policy.” Id. “Third, a local government may be held liable

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under § 1983 when ‘the individual who committed the constitutional tort was an official with final

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policy-making authority’ or such an official ‘ratified a subordinate’s unconstitutional decision or

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action and the basis for it.’” Id. at 1250 (quoting Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th

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Cir. 1992)).

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A.

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Failure to train government employees may constitute a sufficient policy under Monell if

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Failure to Train

the failure constitutes “deliberate indifference” or otherwise “reflects a deliberate or conscious
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choice” by the government entity. City of Canton v. Harris, 489 U.S. 378, 389-93 (1989) (internal

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quotation marks omitted). When a failure to supervise is “sufficiently inadequate,” it may amount

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to “deliberate indifference.” Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989).

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Mere negligence in training or supervision does not give rise to a Monell claim; rather, the need to

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train must be “obvious.” Dougherty, 654 F.3d at 900.
Ordinarily, “[a] pattern of similar constitutional violations by untrained employees is . . .

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necessary to demonstrate deliberate indifference for purposes of failure to train.” Connick v.

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Thompson, 563 U.S. 51, 62 (2011) (internal quotation marks and citation omitted). Judged against

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this standard, Dizon’s complaint is deficient. Her complaint does not allege any other

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constitutional violations apart from the one she claims to have suffered. See Compl. ¶ 58.
In her opposition, Dizon does argue that the existence of a city protocol for extending

United States District Court
Northern District of California

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traffic stops and performing body cavity searches can be inferred from the “systematic and open

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manner” in which the officers carried out and reported their unreasonable search. ECF No. 12 at

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14, 17. Plaintiff’s argument is based on Officer Devan’s testimony at the state court motion to

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suppress hearing that checking a passenger’s identification and background is “standard practice”

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and “protocol.” Id. These facts are not contained in the complaint, so the Court cannot consider

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them on this motion. Moreover, even if the allegations were properly before the Court, they

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would not assist Dizon. Devan’s testimony regarding “standard practice” was made in response to

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questions about a portion of the stop entirely apart from the body cavity search: Devan asking

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Dizon’s passenger to provide identification. Id. at 24-25. Dizon points to no evidence that would

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indicate that Devan’s other actions during the traffic stop conformed to some type of “protocol.”

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Id.

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There is an exception to the general rule, however: “in a narrow range of circumstances,”

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a pattern of similar violations may not be necessary where violations of constitutional rights are

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the “highly predictable consequence” of a failure to train. Connick, 563 U.S. at 63. In City of

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Canton, the Supreme Court offered as an example the hypothetical failure of a city to train officers

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on the constitutional limitations on the use of deadly force. 489 U.S. at 390 n.10. “[C]ity

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policymakers know to a moral certainty that their police officers will be required to arrest fleeing
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felons” – indeed, the city “has armed its officers with firearms, in part to allow them to accomplish

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this task.” Id. Thus, the need to train officers on limitations on the use of deadly force “can be

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said to be so obvious, that failure to do so could properly be characterized as deliberate

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indifference to constitutional rights,” even without evidence of a pattern of multiple violations. Id.

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(internal quotation marks omitted).

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Courts have extended this exception to situations similar to the one at bar. For example, in

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Shadrick v. Hopkins Cty., Ky., 805 F.3d 724 (6th Cir. 2015), plaintiff’s son was booked into

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county jail, and died three days thereafter from a staph infection. Id. at 728-29. Plaintiff alleged

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that the nurses working at the jail were not properly trained, and that the failure to train or
supervise had contributed to her son’s death. The Sixth Circuit found the need to train jail nurses

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United States District Court
Northern District of California

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to be obvious, because the consequences of that failure were so predictable:

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LPN nurses complete a level of medical training, they obtain a
Kentucky license, and they arrive on the job with a limited set of
medical skills. . . . Shadrick’s expert witness established that LPN
nurses lack any authority to diagnose medical conditions, yet the
nurses are routinely confronted with frequent and competing demands
for medical care arising from the needs of numerous inmates suffering
from maladies of varying severity. It is predictable that placing an
LPN nurse lacking the specific tools to handle the situations she will
inevitably confront in the jail setting will lead to violation of the
constitutional rights of inmates. A reasonable jury, therefore, could
determine that SHP’s failure to train and supervise its LPN nurses in
meeting their constitutional obligations demonstrates SHP’s own
deliberate indifference to the highly predictable consequence that an
LPN nurse will commit a constitutional violation.

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Id. at 740.
In Young v. City of Providence ex rel. Napolitano, 404 F.3d 4 (1st Cir. 2005), Providence
police officers shot and killed an off-duty police officer who was attempting to respond to the
same incident under a city policy (the “always armed/always on-duty” policy) that required him to
act despite being off-duty and out of uniform, because officers mistakenly perceived him as a
threat. Id. at 9. The Third Circuit reversed a grant of summary judgment on plaintiff’s failure to
train claim, finding that even though there was no evidence of prior constitutional violations, there
was “some evidence from which a jury could find that it was common knowledge within the PPD
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that misidentifications of off-duty officers responding to an incident often occurred in Providence,

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particularly misidentification of minority officers.” Id. at 28. The court held that under the

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circumstances, “it is clear that a jury could find a pattern of knowledge of prior misidentifications

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and that this was likely to pose a significant risk of harm.” Id.
Similar reasoning applies here. Law enforcement officers know that the concealment by

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suspects of narcotics and other materials will sometimes require the use of body cavity searches.

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By their nature, such searches are intrusive and potentially embarrassing. In this case, for

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example, Plaintiff alleges that officers removed an object from her vagina while she was standing

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on the side of a public road. Plaintiff asserts that the officers’ search violated California Penal

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Code § 4030, and that the City failed to train its officers in the requirements of that section.1 In

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United States District Court
Northern District of California

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enacting that statute, the California legislature found that “law enforcement policies and practices

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for conducting strip or body cavity searches of detained persons vary widely throughout

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California” and that as a result, “some people have been arbitrarily subjected to unnecessary strip

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and body cavity searches after arrests for minor misdemeanor and infraction offenses” and that

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“some present search practices violate state and federal constitutional rights to privacy and

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freedom from unreasonable searches and seizures.” Cal. Pen. Code § 4030(a). The Court

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concludes that Plaintiff has adequately alleged that the City’s failure to train its officers in the

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conduct of body cavity searches demonstrates the City’s deliberate indifference to the highly

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predictable consequence that an officer will commit a constitutional violation.

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“Defendant CITY was deliberately indifferent to the obvious consequences of its failure to train
its officers adequately. Specifically, the CITY failed to adequately train its officers with regard to
their obligations under California Penal Code section 4030 and the Fourth and Fourteenth
Amendments to the United States Constitution, the permissible scope and duration of traffic stops,
the protocol and requirements to conduct a body cavity search and the duty to refrain from
unreasonable and illegal searches.” Compl. ¶ 58; see also ECF No. 12 at 10-11.
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By its terms, section 4030 applies only to pre-trial detainees who are arrested for misdemeanors or
infractions. Cal. Pen. Code § 4030; see also Jaegel v. Cty. of Alameda, No. C 09-00242 CW,
2010 WL 334862, at *4 (N.D. Cal. Jan. 22, 2010) (Ҥ 4030(f) does not apply to detainees arrested
for felony offenses”). The complaint alleges that Dizon was “arrested for possession of drugs,”
but does not state whether she was arrested for a felony or a misdemeanor. Thus, it is possible that
Plaintiff was not subject to the terms of section 4030. The Court need not decide that issue now.
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Defendants’ motion to dismiss Dizon’s third cause of action, alleging Monell liability
under a failure to train theory, is denied.

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B.

Ratification

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A Monell claim under a theory of ratification exists when “an official with final policymaking authority ratified a subordinate’s unconstitutional decision or action and the basis for it.”

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Gillette, 979 F.2d at 1346-47. “[R]atification requires, among other things, knowledge of the

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alleged constitutional violation.” Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999). However,

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“[a] policymaker’s knowledge of an unconstitutional act does not, by itself, constitute ratification.

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. . . [I]t is well-settled that a policymaker’s mere refusal to overrule a subordinate’s completed act

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Northern District of California

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does not constitute approval.” Id. Instead, there must be “evidence of a conscious, affirmative

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choice.” Gillette, 979 F.2d at 1347. Finally, to show that ratification was a “moving force”

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behind the constitutional deprivation, a plaintiff must demonstrate both causation in fact and

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proximate causation. Dougherty, 654 F.3d at 900; Arnold v. Int’l Bus. Machs. Corp., 637 F.2d

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1350, 1355 (9th Cir. 1981).

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Dizon’s complaint fails to identify “an official with final policy-making authority”

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sufficient for a Monell claim. See Gillette, 979 F.2d at 1346. The complaint states merely that

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“Defendants City of South San Francisco and DOES 1-10 ratified the conduct” and that “a final

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policymaker, acting under color of law, who had final policymaking authority concerning the acts

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of Defendant QUINTERO and Defendant DEVAN, ratified (or will ratify) [their] acts and the

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bases for them.” Compl. ¶¶ 39, 65. First, the City is an organizational entity, not “an official”

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sufficient for a ratification claim. Schulthies v. Nat’l Passenger R.R. Corp., 650 F. Supp. 2d 994,

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1001 (N.D. Cal. 2009) (“[T]he third Monell avenue applies to an ‘official,’ not to the

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organizational entity.”). Does 1-10 also are insufficient for a ratification claim because Dizon

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does not explain how any of these individuals exercised “final policy-making authority.”

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Dizon’s opposition requests that the Court take judicial notice of the fact that the Chief of

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Police for the City of South San Francisco is Jeff Azzopardi and argues that Azzopardi was an

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official policymaker for the City at the time of the incident. ECF No. 12 at 18 (citing Larez v. City
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of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)). However, even if the Court were to take

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judicial notice of Azzopardi’s position, the complaint still fails to allege that Azzopardi ratified

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Quintero and Devan’s conduct. See Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1

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(9th Cir. 1998).

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The complaint is also deficient in that it fails to allege approval of the officers’ actions.

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“The policymaker must have knowledge of the constitutional violation and actually approve of it.”

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Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004). The complaint alleges that the City and Does 1-

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10 had “full knowledge of the nature and extent of [Quintero and Devan’s] conduct and the

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[criminal court] judge’s rulings.” Compl. ¶ 39. It further alleges that “[n]either Defendant Devan
nor Defendant Quintero has been disciplined or terminated for their unlawful conduct. Instead,

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United States District Court
Northern District of California

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both officers have received significant pay raises and Officer Devan has been promoted.” Id.

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Failure to discipline alone is insufficient to state a claim under a ratification theory. Canas v. City

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of Sunnyvale, No. C 08-5771 JF PSG, 2011 WL 1743910, at *7 (N.D. Cal. Jan. 19, 2011). Nor is

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it sufficient that officers may have been promoted after the fact. See Bennett v. Cty. of Shasta,

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2:15-cv-01764-MCE-CMK, 2017 WL 3394128, at *4 (E.D. Cal. Aug. 8, 2017) (dismissing Monell

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ratification claim because “Plaintiff points to no authority standing for the proposition that the

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promotion of an officer alone constitutes ratification of that officer’s conduct absent some facts

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from which it can be inferred that the entity’s final policymaker actually had knowledge of and

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approved the purportedly unconstitutional conduct”); Moua v. McAbee, 1:06-cv-00216 OWW

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SMS, 2007 WL 3492157, at *13 (E.D. Cal. Nov. 14, 2007) (granting summary judgment for

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defendant on Monell ratification claim because “Plaintiff has not submitted any evidence that any

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command level policymaker promoted Officer Jasso or that any supervisor had knowledge of the

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alleged conduct, let alone that such a person made a ‘conscious affirmative choice to ratify the

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conduct in question’” (citation omitted)); Gavin v. City of Los Angeles, 2:05-cv-09001-FMC-SSx,

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2007 WL 9706236, at *11 (C.D. Cal. Aug. 8, 2007) (rejecting ratification theory of Monell

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liability because “the fact that individuals involved in the allegedly unconstitutional acts received

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promotions is not sufficient evidence to demonstrate that the individuals who promoted them

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ratified the unconstitutional activity”).
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Accordingly, Dizon’s fourth cause of action, asserting Monell liability under a ratification

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theory, is dismissed without prejudice.

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CONCLUSION

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The Court DENIES Defendants’ motion to dismiss Dizon’s third cause of action and

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GRANTS the motion as to Dizon’s fourth cause of action with leave to amend. Dizon may file an

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amended complaint within 21 days of this order solely for the purpose of curing the deficiencies

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identified by this order.2 If Dizon does not file an amended complaint, the Court will proceed only

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on the remaining causes of action.
IT IS SO ORDERED.

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Dated: October 16, 2018
______________________________________
JON S. TIGAR
United States District Judge

United States District Court
Northern District of California

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Dizon requests that she be allowed to conduct discovery before amending her complaint. ECF
No. 12 at 20. The Court will not grant this request. “The determination of whether the complaint
is legally sufficient under Rule 12(b)(6) is typically made prior to the commencement of
discovery. The Court does not believe it is appropriate to allow Plaintiff discovery at this time in
order to allow an otherwise deficient claim to proceed.” Harris v. City of Clearlake, No. 12-0864YGR, 2013 WL 120965, at *6 (N.D. Cal. Jan. 8, 2013).
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