Zoellner v. City of Arcata et al

Filing 220

ORDER by Judge Edward M. Chen Denying 201 Plaintiff's Motion for Leave to File Motion for Reconsideration and to Amend Complaint. (emcsec, COURT STAFF) (Filed on 1/26/2022)

Case 3:18-cv-04471-EMC Document 220 Filed 01/26/22 Page 1 of 8

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KYLE CHRISTOPHER ZOELLNER,

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Plaintiff,

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CITY OF ARCATA, et al.,

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United States District Court
Northern District of California

ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO FILE
MOTION FOR RECONSIDERATION
AND TO AMEND COMPLAINT

v.

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Case No. 18-cv-04471-EMC

Defendants.

Docket No. 201

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Currently pending before the Court is Plaintiff Kyle Christopher Zoellner’s motion for

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leave to file a motion for reconsideration and to amend the operative fifth amended complaint

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(“5AC”). Having considered the parties’ briefs, the Court hereby DENIES the motion for leave to

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file a motion for reconsideration and DENIES the motion for leave to amend.

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I.

DISCUSSION

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Previously, the Court dismissed with prejudice Mr. Zoellner’s § 1983 claims against the

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City of Arcata (“City”) as well as his § 1983 claims against individual defendants predicated on

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supervisory liability. See Docket Nos. 93, 131 (orders). In the pending motion, Mr. Zoellner asks

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for leave to file a motion for reconsideration so that he can file new Monell and supervisory

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claims, as well as a new § 1983 claim for fabrication of evidence and a new claim for fraud against

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Det. Sgt. Dokweiler and Det. Losey. Mr. Zoellner argues that these claims should be permitted

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because “Defendants have recently admitted in discovery that [1] evidence sufficient to convince

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the prosecutor to charge [Mr. Zoellner] was fabricated by two City of Arcata detectives and that

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[2] this was due, in part, to a failure to train.” Mot. at 2.

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A.

Monell Claim

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The Court begins with the Monell claim against the City. Mr. Zoellner’s motion for relief

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turns on whether “a material difference in fact or law exists from that which was presented to the

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Court before entry of the interlocutory order[s] from which reconsideration is sought.” Civ. L.R.

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7-9(b)(1). He must also “show that in the exercise of reasonable diligence [he] did not know such

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fact or law at the time of the interlocutory order[s].” Civ. L.R. 7-9(b)(1).

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According to Mr. Zoellner, he recently learned, through the deposition of Chief Chapman,

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that Det. Losey fabricated evidence in his police report (i.e., that a witness, Mr. Martinez, saw Mr.

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Zoellner stab the victim) as a result of a failure to train. Below are the relevant excerpts from the

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United States District Court
Northern District of California

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deposition:
Q.
So when you learned about this, did you take any steps at all
to – to somehow discipline Officer Losey about what he did?
....
A.

. . . . I don’t think that “discipline” is the right word, but yes.

Q.

What did you do?

A.
I talked to Lieutenant Dokweiler about the issue and, if I
remember correctly, either directed him to address it or he had
already addressed it.
Q.

And what do you mean by that?

A.
Speak with Officer Losey and try to make a determination –
I’m sorry, that’s not a good way to say that.
A better way to say this is, Dokweiler and I had a conversation
where I had instructed Dokweiler to deal with the issue.
Q.

And what does that mean, “deal with the issue”?

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A.
Try to determine – and these are my words, I don’t
remember the exact words in the conversation. . . .

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....

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A.
. . . . Try to make a determination is this a training issue or
is this intentional misconduct – and these are my words, I don’t
think I specifically said that to him – did the officer make a mistake,
an honest mistake, or did the officer do something intentional, and
that was Dokweiler’s responsibility or job – I don’t know what the
right word was or is – to figure that out.

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Q.

And do you know if he did that?

A.
I don’t specifically recall, other to say, yes, I’m sure he did it
because he was instructed to do it, and that it was a training issue
more than anything else. It was not the intentional misconduct on
the part of the officer.
Q.
Is that something that you learned from Dokweiler or is that
something that you concluded on your own?
A.

It would have been something I learned from Dokweiler.

Zareh Decl., Ex. 3 (Chapman Depo. at 81-82) (emphasis added).
The problem for Mr. Zoellner is that, even if this were newly discovered evidence, it is not
material evidence. Although Chief Chapman referred to a “training issue” – which the Court
liberally interprets as a failure to train – that testimony by itself is not enough to support a failure-

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United States District Court
Northern District of California

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to-train theory for Monell purposes. As the Court noted in one of its prior orders:

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A failure to train in and of itself does not establish Monell liability.
Rather, “the need for more or different training [must be] so
obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to the need.”
Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249 (9th Cir.
2010). As the Supreme Court explained in Connick v. Thompson,
131 S. Ct. 1350 (2011), “[a] pattern of similar constitutional
violations by untrained employees is ‘ordinarily necessary’ to
demonstrate deliberate indifference for purposes of failure to train”;
“in a narrow range of circumstances,” the unconstitutional
consequences of failing to train could be “so patently obvious” that a
municipality could be liable under § 1983 without proof of a preexisting pattern of violations – these “circumstances” generally
involve incidents arising from a total lack of training, not simply an
assertion that a municipal employee was not trained about “the
specific scenario related to the violation.” Id. at 1360, 1363.
Docket No. 131 (Order at 6).
To the extent Mr. Zoellner has tried to bolster his position through new allegations in the

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proposed sixth amended complaint (“6AC”), he fares no better. For example, Mr. Zoellner alleges

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that, prior to Det. Losey’s fabrication of evidence, “City of Arcata police officials had previously

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fabricated evidence – either through mistake or intention.” Prop. 6AC ¶ 211. However, this

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allegation is entirely conclusory in nature. No specific facts describing previously fabrications are

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alleged. Likewise, the allegation that “[n]o training was provided by the City of Arcata to prevent

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fabrication of evidence before . . . Detective Losey fabricated evidence about Zoellner” is
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conclusory. Prop. 6AC ¶ 216.
Finally, the Court notes that Mr. Zoellner has also suggested that there is Monell liability

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because, after Det. Losey allegedly fabricated evidence, he was never disciplined or even trained.

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See, e.g., Zareh Decl., Ex. 1 (Dokweiler Depo. at 184) (testifying that Det. Losey was not put on

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administrative leave). This, however, is not a failure-to-train theory but rather, if anything, a

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ratification theory. And here the problem for Mr. Zoellner is that the final policymaker for the

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City – presumably, Chief Chapman1 – must have approved the fabrication of evidence in order for

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there to be ratification. See Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999) (““To show

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ratification, a plaintiff must prove that the ‘authorized policymakers approve a subordinate’s
decision and the basis for it.’”). But as indicated by the deposition testimony from Chief

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United States District Court
Northern District of California

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Chapman above, Chief Chapman believed that there was not intentional misconduct on the part of

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Det. Losey. There is no evidence that Chief Chapman knowingly approved and thus ratified the

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fabrication.
Accordingly, the Court denies the motion for leave to reconsider to the extent Mr. Zoellner

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seeks to add a Monell claim against the City.

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B.

Supervisory Claim
Likewise, the Court denies the motion for leave to reconsider to the extent Mr. Zoellner

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asks to add a supervisory claim (under § 1983) against City Manager Diemer and/or Chief

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Chapman. As to City Manager Diemer, there is no plausible basis for Mr. Zoellner’s suggestion

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that she was a supervisor with respect to, e.g., the discipline or training of police officers. As to

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Chief Chapman, he could be held liable only if he were personally involved in the constitutional

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deprivation or if there were a sufficient causal connection between his allegedly wrongful conduct

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and the constitutional violation (e.g., setting in motion a series of acts by others or knowingly

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refusing to terminate a series of acts by others which he knew or should have known would cause

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others to inflict a constitutional injury). See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).

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To the extent Mr. Zoellner suggests City Manager Diemer was the final policymaker for the City
with respect to discipline, training, and/or supervision of police officers, he has failed to articulate
a plausible basis for that suggestion. See Mot. at 11.
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But Chief Chapman was not personally involved in the alleged fabrication of evidence.

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Furthermore, there is not a causal connection between his alleged misconduct and the alleged

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fabrication of evidence. Mr. Zoellner contends that Chief Chapman did not investigate the

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fabrication of evidence by Det. Losey; however, even assuming Chief Chapman did not

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investigate, or at least that he did not sufficiently follow up with Det. Dokweiler to ensure that

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there was an investigation,2 this conduct was all after the fact. Thus, Chief Chapman could not

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have caused Mr. Zoellner’s constitutional injury. See, e.g., Kaur v. City of Lodi, 263 F. Supp. 3d

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947, 985-86 (E.D. Cal. 2017) (stating that “[a] single ‘inadequate investigation following the

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subject incident will not sustain a claim of municipal liability, because the after-the-fact
inadequate investigation could not have been the legal cause of the plaintiff's injury,’” and “[t]he

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United States District Court
Northern District of California

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same is true where the plaintiff seeks to impose liability on a policymaker in his individual

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capacity on a ratification theory”).
Accordingly, there is no material newly discovered evidence to support Mr. Zoellner’s

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motion for relief, whether as to City Manager Diemer or Chief Chapman.

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C.

Fabrication-of-Evidence and Fraud Claims

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Finally, the Court turns to Mr. Zoellner’s proposed new claims for fabrication of evidence

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(§ 1983) and fraud – both of which are asserted against Det. Sgt. Dokweiler and Det. Losey. For

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these claims, the Court does not see the procedural posture as a motion to reconsider; rather, Mr.

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Zoellner is simply making a motion for leave to amend. Thus, Rule 15 governs rather than Civil

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Local Rule 7-9(b)(1). See generally Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)

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(noting that five factors are generally considered in assessing a motion to amend under Rule 15 –

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i.e., bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether

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the plaintiff has previously amended the complaint).
Even applying the liberal standard of Rule 15, the Court denies leave to amend. With

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respect to the § 1983 claim, Mr. Zoellner has unduly delayed in raising the claim against Det. Sgt.

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As indicated above, Chief Chapman’s testimony was that he did direct Det. Sgt. Dokweiler to
look into the issue with Det. Losey, and Chief Chapman was informed that there was no
intentional misconduct on the part of Det. Losey.
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Dokweiler and Det. Losey. As Defendants note in their opposition brief, Mr. Zoellner alleged that

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Det. Losey fabricated evidence (regarding Mr. Martinez and his identification of Mr. Zoellner as

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the assailant) in his original complaint filed back in May 2018. See Docket No. 1 (in ¶ 27 of the

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complaint, alleging that “Detective Eric Losey filed a false police report, . . . stating in that report

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that Jason Martinez had identified the [sic] Zoellner as the perpetrator[;] Losey, who interviewed

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Martinez, admitted to Deputy District Attorney Rees, that he was mistaken when he wrote in his

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report that Martinez had identified Zoellner”). In subsequent complaints, Mr. Zoellner wrapped in

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Det. Sgt. Losey into the alleged fabrication of evidence. See, e.g., Docket No. 29 (in ¶ 39 of the

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first amended complaint, making the same allegation regarding Det. Losey and, in ¶ 66, alleging

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that Det. Sgt. Dokweiler approved the false police report); Docket No. 55 (in ¶¶ 83 and 110-11 of

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United States District Court
Northern District of California

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the second amended complaint, alleging that Det. Losey filed a false police report, claiming that

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Mr. Martinez identified Mr. Zoellner as the perpetrator, and that Sgt. Dokweiler recorded in a

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document (i.e., the probable cause statement3) that “‘[n]umerous witnesses had detained Zoellner

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and indicated he had stabbed the victim’”). Yet at no point did Mr. Zoellner move to amend when

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any of those complaints were filed. (The operative 5AC which contains the same allegations was

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filed back on January 27, 2021. See Docket No. 106 (5AC).) Even if something happened in the

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depositions that Mr. Zoellner took of the individual defendants in November 2021 that made him

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look at the case in a new light (he has not specified any new material fact), he still did not file the

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pending motion seeking relief until January 5, 2022, which was after the fact discovery cutoff of

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December 3, 2021. See Docket No. 146 (order).
Not only did Mr. Zoellner unduly delay in raising the § 1983 claim, but allowing him to

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bring the claim into the litigation now would also unfairly prejudice Defendants. As indicated

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above, fact discovery has already been completed, and the same is true for expert discovery.

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Furthermore, the time for filing dispositive motions has now passed as well. See Docket No. 146

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(order) (reflecting expert discovery cutoff of January 14, 2022, and deadline of January 20, 2022,

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for the filing of dispositive motions). See Artemus v. Louie, No. 16-cv-00626-JSC, 2017 U.S.

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See Zareh Decl., Ex. 7 (probable cause statement, dated 4/16/2017).
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Dist. LEXIS 27307, at *9 (N.D. Cal. Feb. 27, 2017) (noting that “case law indicates that a

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defendant may establish prejudice by demonstrating that a motion to amend was made . . . when

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discovery had closed or was about to close”). See, e.g., Zivkovic v. S. Cal. Edison Co., 302 F.3d

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1080, 1087 (9th Cir. 2002) (noting that proposed amendment would add new causes of action

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which “would have required further discovery, which was to close five days after the motion to

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amend was filed[;] [t]he requirement of additional discovery would have prejudiced [defendant]

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and delayed the proceedings” and thus the lower court did not abuse its discretion when denying

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[plaintiff’s] motion to amend”). Although Defendants likely conducted some discovery related to

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the alleged fabrication of evidence based on the allegations in the prior complaints, that does not
change the fact that, with a new claim, Defendants would have been entitled to additional

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United States District Court
Northern District of California

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discovery. In any event, Defendants would be prejudiced because they could no longer challenge

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the new claim through a summary judgment motion.

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To the extent Mr. Zoellner seeks leave to add a new claim for fraud, the same basic

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analysis above applies (i.e., undue delay and prejudice). In addition, the fraud claim is futile. The

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alleged false statements by the police officers were statements that Mr. Martinez had identified

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Mr. Zoellner as the perpetrator. The problem for Mr. Zoellner is that there is no plausible basis for

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him to allege that he relied on the false statements. See Lazar v. Superior Court, 12 Cal. 4th 631,

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638 (1996) (stating that the elements of fraud are “(a) misrepresentation (false representation,

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concealment, or nondisclosure); (b) knowledge of falsity (or scienter); (c) intent to defraud, i.e., to

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induce reliance; (d) justifiable reliance; and (e) resulting damage”) (internal quotation marks

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omitted). In his motion, Mr. Zoellner suggests that he relied on the false statements because,

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during the incident at issue, he had “two significant head injuries” and a concussion and thus “has

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no memory as to the events of that evening. Likewise, [he] relied on those false statements and

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had to prepare a defense, incurring fees and costs and suffering emotional distress damage.” Mot.

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at 13; see also Prop. 6AC ¶¶ 319-20 (alleging that the officers “intended that Plaintiff would rely

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on those statements since Plaintiff was unconscious during the time Lawson was stabbed” and that

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“Plaintiff relied on those statements, and as a direct and proximate result[] of them, was forced to

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incur attorney’s fees and other costs, as well as suffer emotional distress to defend himself against
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false allegations”). But this is not plausible because Mr. Zoellner was defending on the basis that

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he was not the assailant.

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The Court therefore denies the motion for leave to amend, both as to the § 1983 claim for
fabrication of evidence and as to the claim for fraud.
II.

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CONCLUSION

For the reasons stated above, the Court hereby denies both Mr. Zoellner’s motion for leave
to file a motion for reconsideration and his motion for leave to amend.
This order disposes of Docket No. 201.

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IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: January 26, 2022

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______________________________________
EDWARD M. CHEN
United States District Judge

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