Magney-v-County of Humboldt

Filing 78

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING IN PART AND DENYING IN PART DEFENDANTS' ( 66 , 67 ) MOTIONS TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT. Case Management Statement due by 1/8/2019 and Further Case Management Conference set for 1/15/2019 02:00 PM in Oakland, Courtroom 2, 4th Floor. (ndrS, COURT STAFF) (Filed on 12/10/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

JUDITH C. MAGNEY,

8

Plaintiff,
v.

9
10

COUNTY OF HUMBOLDT, et al.,
Defendants.

United States District Court
Northern District of California

11

Case No. 17-cv-02389-HSG
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS'
MOTIONS TO DISMISS PLAINTIFF'S
FIRST AMENDED COMPLAINT
Re: Dkt. Nos. 66, 67

12
Pending before the Court are two motions to dismiss Plaintiff Judith Magney’s first

13
14

amended complaint: one filed by the County of Humboldt (“the County”), Humboldt County

15

Board of Supervisors (“the Board”), Carolyn Ruth, Jeff Blanck, Blair Angus, Natalie Duke, Rosy

16

Provino, Amanda Winstead, and Kelli Schwartz (collectively, “County Defendants”), see Dkt. No.

17

67 (“County Mot.”); and the other filed by Shirley Hillman and Heather Ringwald (collectively,

18

“APS Defendants”), Dkt. No. 66 (“APS Mot.”). See also Dkt. No. 65 (“FAC”). Defendants1 filed

19

the motions on April 10, 2018. On April 24, 2018, Plaintiff filed responses to the motions. Dkt.

20

Nos. 68 (“County Opp.”), 69 (“APS Opp.”). Defendants submitted replies on May 1, 2018. Dkt.

21

Nos. 72 (“County Reply”), 73 (“APS Reply”). The Court held a hearing on the motions on

22

November 15, 2018. See Dkt. No. 77. After carefully considering the parties’ arguments, the

23

Court GRANTS IN PART and DENIES IN PART Defendants’ motions to dismiss.

24

I.

BACKGROUND

25

Plaintiff asserts twelve claims in the FAC. Plaintiff sets forth three of these claims on

26

behalf of her deceased husband Dick Magney under 42 U.S.C. §§ 1983 and 1988, based on

27
28

1

“Defendants” refers collectively to County and APS Defendants.

allegations that Defendants, in their official and individual capacities, acted unconstitutionally in

2

refusing to, and conspiring to refuse to, implement Mr. Magney’s Advanced Health Care Directive

3

(“AHCD”). FAC ¶¶ 159–75, 218–29 (claims 1–2, 10). Plaintiff also asserts a representative claim

4

based on Defendants’ related policy, custom, or practice of unconstitutionally “countermanding

5

AHCDs that the County disagrees with.” FAC ¶¶ 240–60 (claim 12, the “Monell claim”); see

6

Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978). Plaintiff sets forth seven

7

more representative claims for violations of Mr. Magney’s due process rights, based on

8

Defendants’ alleged bad faith filing of applications, petitions, and declarations to obtain temporary

9

and probate conservatorship over Mr. Magney’s person and/or estate. FAC ¶¶ 176–212 (claims 3–

10

9). Finally, Plaintiff asserts one claim on her own behalf under Sections 1983 and 1988, alleging a

11

United States District Court
Northern District of California

1

violation of her constitutional right “as her husband’s legal medical surrogate under his AHCD” to

12

execute his end-of-life decisions. FAC ¶¶ 230–39 (claim 11).

13

Plaintiff filed the FAC after the Court’s prior order granting Defendants’ motions to

14

dismiss the complaint. See Dkt. No. 64 (“Dismissal Order”).2 In its Dismissal Order, the Court

15

concluded that Plaintiff failed to plead with adequate specificity unlawful conduct falling within

16

the applicable statute of limitations period, or a cognizable harm based on a continuing violation

17

theory. See Dismissal Order at 5–6; Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001). The

18

Court, however, granted Plaintiff leave to amend her claims. Id. at 7.

19

II.

DISCUSSION
Moving to dismiss Plaintiffs’ amended complaint, County Defendants argue that (1)

20
21

Plaintiff’s individual and representative claims are time-barred by the applicable statute of

22

limitations; (2) Plaintiff is judicially estopped from bringing her representative claims; (3) Plaintiff

23

fails to assert sufficient facts to support her Monell claim against Defendant Blanck and several

24
25
26
27
28

2

The Court detailed the factual background in its Dismissal Order, and incorporates those
unchanged facts and the legal analysis from the Dismissal Order here. In this order, the Court
only discusses the facts and legal standards as necessary to address the new issues raised in the
first amended complaint and the renewed motions to dismiss. The Court accordingly DENIES AS
MOOT the parties’ respective requests for judicial notice, Dkt. Nos. 70, 67-1; 66-1, as the Court
has already taken judicial notice of the existence of relevant publicly available documents. See
Dismissal Order at 4 n.4. To the extent that the parties seek notice of new documents, the Court
does not rely on those documents for its disposition.
2

1

other County Defendants; and (4) qualified immunity precludes Plaintiff’s claims against the

2

individually named County Defendants. APS Defendants move to dismiss the FAC on similar

3

grounds, arguing that Plaintiff’s claims are time-barred, that qualified immunity precludes

4

Defendant Ringwald’s liability, and that Defendant Hillman, as a matter of law, cannot be liable in

5

her official capacity under Monell.

6

A.

Statute of Limitations
Relying on Knox, Defendants argue that Plaintiff’s claims are “entirely premised on

8

injuries sustained by Mr. Magney on or before April 22, 2015” when the Humboldt County Public

9

Guardian, Defendant Kelli Schwartz, filed its most recent appointment petition. See County Mot.

10

at 7–9, 12–13; APS Mot. at 14–16; FAC ¶ 23; 260 F.3d at 1013. In addition, County Defendants

11

United States District Court
Northern District of California

7

contend that any conduct taken by individual Defendants after April 26, 2015 is not actionable

12

because absolute immunity applies when similarly situated county officials act pursuant to court

13

orders, or otherwise engage in judicial or quasi-judicial functions. See County Mot. at 11–12.

14

Though the Court agreed with Defendants’ first premise in dismissing Plaintiff’s prior

15

complaint, the FAC sufficiently specifies, at this stage, harms from conduct occurring within the

16

applicable statute of limitations period (that is, after April 26, 2015). See Dismissal Order at 4–5.

17

For instance, Plaintiff now claims that at a hearing on April 30, 2015, Plaintiff demanded that

18

Defendants stop medicating Mr. Magney against his will, in violation of his AHCD, and against

19

the authority of his legal surrogates. FAC ¶¶ 116–17. Plaintiff also allegedly informed the state

20

court that Defendants fraudulently obtained conservatorship over Mr. Magney, and medicated him

21

against his will. See id. In addition, Plaintiff now asserts in detail how several representations

22

made by Defendants on May 18, 19, 20, 21 and 22, 2015, during a trial regarding the First

23

Amended Conservatorship petition, led first to further judicial investigation into Mr. Magney’s

24

mental state, and then to a finding that Mr. Magney had legal capacity on May 22, 2015. See FAC

25

¶¶ 119–31. These allegations, when read in the light most favorable to Plaintiff, describe in

26

sufficient detail discrete wrongs that themselves plausibly suggest independent constitutional

27

violations. See Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008);

28

Pouncil v. Tilton, 704 F.3d 568, 581 (9th Cir. 2012). As in Pouncil, Plaintiff’s specific demands
3

1

on April 30, 2015 and Defendants’ failure to take responsive, corrective actions comprise, when

2

construed in Plaintiff’s favor, discrete, individualized acts that “began the running of the statute of

3

limitations anew.” 704 F.3d at 580–82; see Cherosky v. Henderson, 330 F.3d 1243, 1247 (9th Cir.

4

2003).

5

Plaintiff’s allegations regarding APS Defendants survive for similar reasons. For instance,

6

the FAC asserts that Defendant Ringwald contributed to the Capacity Declaration-Conservatorship

7

(form GC335) (“Capacity Declaration”), upon which Defendants allegedly relied in bad faith to

8

obtain a conservatorship over Mr. Magney’s person or estate. See FAC ¶¶ 209, 211–12, 214.

9

Plaintiff also alleges that the APS Defendants and individually named County Defendants jointly
acted affirmatively in furthering these constitutional violations and “failed to cease and/or forestall

11

United States District Court
Northern District of California

10

violations of Plaintiffs’ constitutional rights, after their fraudulent evidentiary showing and

12

misleading the court in Ex Parte proceedings. . . .” FAC ¶¶ 220–24
County Defendants argue that absolute immunity applies and precludes their liability for

13
14

in-court conduct. But Defendants acknowledge that “courts have not extended absolute immunity

15

where evidence is fabricated or false statements are made under penalty of perjury . . . .” County

16

Mot. at 11–12. Though County Defendants subsequently state (without citation or further

17

explanation) that their conduct does not rise to “that level,” the gravamen of the FAC is

18

Defendants’ allegedly fraudulent judicial representations. See, e.g., FAC ¶ 116 (“Plaintiff

19

informed the court that it issued an unlawful order and that Attorney Defendants and Defendant

20

Schwartz failed to apprise the court that it had no power to interfere with Mr. Magney’s AHCD

21

. . . .”); County Opp. at 11–12. Based on the nature of Plaintiff’s allegations, which are

22

sufficiently detailed at this stage, Defendants are not absolutely immune from liability.3

23

B.

Qualified Immunity
County and APS Defendants assert that qualified immunity prohibits liability as to the

24
25
26
27
28

3

The Court does not need to decide whether Plaintiff is judicially estopped from arguing that Mr.
Magney was legally incapacitated from March 13, 2005 to May 22, 2015 given that Plaintiff
adequately states cognizable conduct falling within the applicable limitations period. See County
Mot. at 13–15; APS Mot. at 12–14. Furthermore, Plaintiff does not contend in her opposition that
equitable estoppel applies. See County Opp. at 5 n.2.
4

1

individual Defendants because Plaintiff cannot show (1) a violation of a constitutional right, and

2

(2) that the right was clearly established at the time of Defendants’ alleged misconduct. See

3

County Mot. at 22; APS Mot. at 16–21; White v. Pauly, 137 S. Ct. 548, 551 (2017). The Supreme

4

Court has instructed that while its “case law does not require a case directly on point for a right to

5

be clearly established, existing precedent must have placed the statutory or constitutional question

6

beyond debate” and that the right must be “particularized to the facts of the case.” White, 137

7

S. Ct. at 551 (internal quotations, alterations, and citations omitted). Put differently, “[t]he

8

contours of the right must be sufficiently clear that a reasonable official would understand that

9

what [the officer] is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

10

Qualified immunity claims at the motion to dismiss stage present unique challenges for

United States District Court
Northern District of California

11

courts. To survive a motion to dismiss, a complaint need only “state a claim to relief that is

12

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). And yet,

13

“defendants are entitled to qualified immunity so long as ‘their conduct does not violate clearly

14

established statutory or constitutional rights of which a reasonable person would have known.’”

15

Keates v. Koile, 883 F.3d 1228, 1234–35 (9th Cir. 2018) (quoting Harlow v. Fitzgerald, 457 U.S.

16

800, 818 (1982)). The Supreme Court has stressed that qualified immunity is broadly construed to

17

“give[] government officials breathing room to make reasonable but mistaken judgments about

18

open legal questions,” such that “all but the plainly incompetent or those who knowingly violate

19

the law” are protected. Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).

20

Addressing this tension, the Ninth Circuit has explained that a complaint survives a

21

qualified immunity defense at the motion to dismiss stage if it “contains even one allegation of a

22

harmful act that would constitute a violation of a clearly established constitutional right.” Keates,

23

883 F.3d at 1235 (quoting Pelletier v. Fed. Home Loan Bank of S.F., 968 F.2d 865, 872 (9th Cir.

24

1992)). But even if a qualified immunity claim survives dismissal, that result “sheds little light on

25

whether the government actors might ultimately be entitled to qualified immunity ‘were the case

26

permitted to proceed, at least to the summary judgment stage’ and the court is presented with facts

27

providing context for the challenged actions.” Id. (quoting Kwai Fun Wong v. United States, 373

28

F.3d 952, 957 (9th Cir. 2004)).
5

1

Plaintiff overcomes Defendants’ qualified immunity defense at this stage. As to the

2

existence of a constitutional right, the Fourteenth Amendment protects persons against the

3

deprivation of life, liberty, or property without due process of law. And in Cruzan ex rel. Cruzan

4

v. Dir., Mo. Dep’t of Health, 497 U.S. 261 (1990), the Supreme Court explained that one such

5

liberty interest protected by the Due Process Clause is an interest in medical autonomy. As the

6

Court stated: “The principle that a competent person has a constitutionally protected liberty

7

interest in refusing unwanted medical treatment may be inferred from our prior decisions.” Id. at

8

278. Based on the facts before it, the Court “assume[d] that the United States Constitution would

9

grant a competent person a constitutionally protected right to refuse lifesaving hydration and
nutrition.” Id. at 279. The Ninth Circuit has reaffirmed the Court’s recognition of “fundamental

11

United States District Court
Northern District of California

10

rights to determine one’s own medical treatment,” “to refuse unwanted medical treatment,” and “a

12

fundamental liberty interest in medical autonomy.” Coons v. Lew, 762 F.3d 891, 899 (9th Cir.

13

2014), as amended (Sept. 2, 2014) (citing Cruzan ex rel. Cruzan, 497 U.S. at 278, Washington v.

14

Glucksberg, 521 U.S. 702, 724 (1997), and Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,

15

851 (1992)). Given that competent persons have a constitutionally protected liberty interest in

16

medical autonomy, the Fourteenth Amendment protects individuals from its deprivation without

17

due process of law. See Cruzan ex rel. Cruzan, 497 U.S. at 279.

18

The parties do not dispute that Cruzan’s fundamental liberty interest in medical

19

autonomy—and in turn the constitutional right against its deprivation without due process of

20

law—was clearly established at the time of any alleged misconduct at issue in this case. Rather,

21

Defendants argue that Cruzan’s holding does not fit “the particular context of the case.” County

22

Reply at 13. County Defendants argue that Cruzan’s holding “does not have any application to

23

the specific facts of this case, which involve the COUNTY Defendants’ decision to investigate the

24

suspected elder abuse of Mr. Magney at the hands of the Plaintiff.” Id. But those are not the facts

25

alleged in the FAC. As alleged, a competent adult exercised his fundamental liberty interest in

26

medical autonomy by making an end-of-life medical treatment plan in an AHCD. And as alleged,

27

the process by which Defendants challenged, and ultimately countermanded, Mr. Magney’s

28

AHCD—and thus deprived him of his fundamental liberty interest—involved intentionally
6

1
2

misleading a court. See, e.g., FAC ¶¶ 5–10.
At this stage, the Court must accept all allegations in the FAC as true and construe the
pleadings in the light most favorable to the Plaintiff. From that perspective, the Court finds that

4

Plaintiff has adequately pleaded “factual content that allows the court to draw the reasonable

5

inference” of the requisite fit between the allegations in this case and existing precedent that

6

clearly established the unconstitutionality of certain methods of depriving individuals of their

7

liberty interests. See Ashcroft, 556 U.S. at 678. To be clear, the constitutional right at issue here

8

is the right against the deprivation of one’s fundamental liberty interest in medical autonomy

9

without due process of law. Put differently, the issue concerns the process of deprivation and not

10

simply the deprivation itself. Plaintiff alleges here that County Defendants intentionally deceived

11

United States District Court
Northern District of California

3

a tribunal in depriving the Magneys of their rights. The Court thus cannot conclude at this stage as

12

a matter of law that intentionally misleading a court in furtherance of countermanding an

13

AHCD—as Plaintiff alleges—could never violate the Due Process Clause. See Briscow v. LaHue,

14

460 U.S. 325, 326 n.1 (explaining that “[t]he Court has held that the prosecutor's knowing use of

15

perjured testimony violates due process”).

16

Nor can the Court say as a matter of law at this stage that it was not “clear” whether “a

17

reasonable official would understand” that intentionally deceiving a tribunal to countermand a

18

person’s AHCD violates that person’s right not to be deprived of his liberty interest in medical

19

autonomy without due process of law. See Anderson, 483 U.S. at 640; see also Compl. at 5 (“No

20

reasonable person nor government agency would have taken the course chosen by . . . misleading

21

the lower courts as to the facts and law, and omitting material facts and law from the court . . . .”).

22

The Ninth Circuit has repeatedly held that where an official deprives a person of his liberty

23

through judicial deception, “the shield of qualified immunity is lost.” See Chism v. Washington

24

State, 661 F.33 380, 393 (9th Cir. 2011) (quoting Branch v. Tunnell, 937 F.2d 1382, 1387 (9th Cir.

25

1991)); see also Keates, 883 F.3d at 1240 (involving allegations of deliberately false statements

26

during juvenile court proceedings); Vierra v. Nuti, 659 F. App’x 420, 421–22 (9th Cir. 2016)

27

(involving an officer who allegedly fabricated evidence supporting detention).

28

This Court is mindful of the challenges that arise at the intersection of the pleading
7

1

standard and the “low bar” threshold for establishing qualified immunity. See Keates, 883 F.3d at

2

1235. But at this stage, the Court finds that the operative complaint adequately pleads at least

3

“one allegation of a harmful act that would constitute a violation of a clearly established

4

constitutional right.” See Keates, 883 F.3d at 1235.

5
6

C.

Sufficiency of Plaintiff’s Monell Claim Under Rule 12(b)(6)
Finally, County Defendants contend that Plaintiff’s allegations are inadequate to state a

7

Monell claim against Defendant Blanck, the County, and other individually named County

8

Defendants in their official capacities. County Mot. at 18–21. According to County Defendants,

9

Defendant Blanck should be dismissed from this action without leave to amend because he was
not employed during the time period alleged in the FAC. Id. at 17. In addition, APS Defendants

11

United States District Court
Northern District of California

10

argue that Hillman cannot be liable because she does not possess final policymaking authority.

12

APS Mot. at 21–23 (citing Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737 (1989)).

13

To plausibly state a Monell claim, Plaintiff must allege unconstitutional conduct

14

attributable to (1) an official municipal policy, Monell, 436 U.S. at 694; (2) “a widespread practice

15

that, although not authorized by written law or express municipal policy, is ‘so permanent and

16

well settled as to constitute a ‘custom or usage’ with the force of law,’” City of St. Louis v.

17

Praprotnik, 485 U.S. 112, 127 (1988) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–68

18

(1970)); (3) the decision of an official with “final policymaking authority,” id. at 123; or (4) a

19

“failure to train [that] amounts to deliberate indifference to the rights of persons,” City of Canton

20

v. Harris, 489 U.S. 378, 388 (1989). There is no respondeat superior liability under § 1983. See

21

Monell, 436 U.S. at 691. In turn, a government entity is not liable under Monell simply because it

22

employs a person who violated a plaintiff’s rights; rather, the plaintiff must adequately allege facts

23

that show “personal participation by the defendant.” See Taylor v. List, 880 F.2d 1040, 1045 (9th

24

Cir. 1989). Moreover, claims based on allegedly unconstitutional conduct attributable to official

25

policy or custom must show that the official policy or custom “was the ‘actionable cause’ of the

26

constitutional violation, which requires showing both but for and proximate causation.” Tsao v.

27

Desert Palace, Inc., 698 F.3d 1128, 1146 (9th Cir. 2012). At the pleading stage, a plaintiff’s

28

Monell claim “may not simply recite the elements of a cause of action, but [must] contain
8

1

sufficient allegations of underlying facts” so as to provide the opposing party with fair notice so it

2

can defend itself. See AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012)

3

(quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)).

4

As an initial matter, Monell liability necessarily requires an underlying constitutional

5

violation. And how a plaintiff articulates the alleged underlying constitutional violation will

6

frame the Monell inquiry, because a municipality’s alleged wrongdoing—be it an official policy,

7

an unwritten custom or policy, the decision of a final policymaker, or a failure to train—must have

8

caused the particular constitutional violation. See Tsao, 698 F.3d at 1146. Here, Plaintiff alleges

9

Monell liability based on a custom or policy of countermanding AHCDs and/or a failure to train.
See FAC ¶ 17. Significantly, Plaintiff alleges that individual officers misled a court in furtherance

11

United States District Court
Northern District of California

10

of the general custom or policy of countermanding AHCDs.

12

Turning first to the custom or policy inquiry, a plaintiff must allege facts demonstrating

13

unconstitutional conduct attributable to a pervasive, long-standing practice with the force of law to

14

survive at the motion to dismiss stage. See City of St. Louis, 485 U.S. at 127. Plaintiff alleges a

15

policy or custom of countermanding AHCDs. See FAC 245–46. Simply challenging AHCDs,

16

however, is not unconstitutional. See Cruzan, at 279; see also Cal. Prob. Code § 4766 (setting

17

forth the procedure for filing a petition with the state superior court to determine whether the

18

authority of an agent listed in an AHCD should be terminated). To render the challenging of

19

AHCDs unconstitutional, a municipality’s method of challenging AHCDs must violate patients’

20

due process rights. Id. And here, the unconstitutional method of challenging AHCDs pled by

21

Plaintiff is County employees misleading a tribunal. But Plaintiff does not plead a long-standing

22

practice of misleading tribunals. Put plainly, Plaintiff alleges that the County has a custom or

23

policy of challenging AHCDs, and that in this instance employees misled a tribunal in furtherance

24

of the custom or policy. That is not enough to survive a motion to dismiss.

25

Plaintiff also has not adequately pleaded a “failure to train [that] amounts to deliberate

26

indifference to the rights of persons.” See City of Canton, 489 U.S. at 388. A plaintiff may

27

adequately plead objective deliberate indifference in two ways. First, there may be an obvious

28

need for training because a constitutional violation is exceedingly likely to occur from employees
9

carrying out their duties. Id. at 390. Alternatively, a plaintiff may allege facts that demonstrate

2

policymakers had constructive notice that constitutional violations were substantially certain to

3

result, but failed to act. See Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016)

4

(citing City of Canton, Ohio v. Harris, 489 U.S. 378, 396 (1989)). Focusing on the adequately

5

alleged unconstitutional conduct—misleading a tribunal to countermand AHCDs—the Court finds

6

that there is no obvious need to train employees not to mislead tribunals. See Walker v. City of

7

New York, 974 F.2d 293, 299–300 (2d Cir. 1992) (“As laid out above, City of Canton also requires

8

a likelihood that the failure to train or supervise will result in the officer making the wrong

9

decision. Where the proper response—to follow one's oath, not to commit the crime of perjury,

10

and to avoid prosecuting the innocent—is obvious to all without training or supervision, then the

11

United States District Court
Northern District of California

1

failure to train or supervise is generally not ‘so likely’ to produce a wrong decision as to support

12

an inference of deliberate indifference by city policymakers to the need to train or supervise.”).

13

And Plaintiff has not pleaded facts demonstrating that policymakers had constructive notice that

14

misleading a tribunal was substantially certain to result from a broader policy of challenging

15

AHCDs. See City of Canton, 489 U.S. at 396. Plaintiff relies in large part on a statement by one

16

employee that “Mr. Magney’s AHCD was not the first the County challenged.” FAC ¶ 246. But

17

again, simply challenging AHCDs is not unconstitutional. And claiming that the County

18

previously challenged AHCDs is not the same as alleging constructive notice to policymakers that

19

employees may mislead tribunals.

20

Under the circumstances, the Court also holds that leave to amend Plaintiff’s Monell claim

21

would be futile. When the Court asked Plaintiff’s counsel at the hearing on this motion what facts

22

she might add to bolster the Monell claim if afforded the opportunity to amend the FAC, counsel

23

provided none. For this reason, Plaintiff’s Monell claims are DISMISSED WITH PREJUDICE.

24

III.

25
26
27
28

CONCLUSION
For these reasons, the Court GRANTS the motions to dismiss Plaintiff’s Monell claims

with prejudice, and otherwise DENIES the motions.
The Court further SETS a Case Management Conference (“CMC”) for Tuesday, January
15, 2019 at 2:00 p.m. The parties must submit an initial joint CMC statement with a proposed
10

1
2
3
4
5

case schedule by January 8, 2019. See Civ. L.R. 16-1.
IT IS SO ORDERED.
Dated: 12/10/2018
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11