Zhang v. County of Monterey et al

Filing 188

Order Re: Monell Liability. Signed by Judge Lucy H. Koh on 6/4/2021. (lhklc1S, COURT STAFF) (Filed on 6/4/2021)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 12 JACQUELINE ZHANG, Plaintiff, 13 14 15 16 Case No. 17-CV-00007-LHK ORDER RE: MONELL LIABILITY v. COUNTY OF MONTEREY, et al., Defendants. 17 18 The parties have now engaged in several rounds of briefing with respect to the bases upon 19 which municipal liability may be shown. See, e.g., ECF No. 149, 152, 159, 164, 167, 168. Below, 20 the Court outlines the governing precedent under United States Supreme Court and Ninth Circuit 21 doctrine. The Court then addresses various issues raised by the parties. The Court continues to 22 research and analyze municipal liability and may issue further orders. 23 Under Section 1983, liability may attach to a municipality only where the municipality 24 itself caused the constitutional violation through “execution of a government’s policy or custom, 25 whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent 26 official policy.” Monell v. Dep’t of Soc. Serv. of N.Y., 436 U.S. 658, 694 (1978). “The ‘official 27 policy’ requirement was intended to distinguish acts of the municipality from acts of employees of 1 28 Case No. 17-CV-00007-LHK ORDER RE: MONELL LIABILITY 1 the municipality, and thereby make clear that municipal liability is limited to actions for which the 2 municipality is actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479–80 3 (1986). Thus, the municipality itself must have caused Plaintiff’s injury for the municipality to be 4 liable under Section 1983 and Monell. Under controlling precedent of the United States Supreme Court and Ninth Circuit, there 5 6 are three ways that municipal liability may be established: (1) Plaintiff may show that a municipal employee committed a constitutional violation 7 8 pursuant to an expressly adopted official policy or to a “longstanding practice or 9 custom which constitutes the ‘standard operating procedure’ of the local government entity.” Ulrich v. City and County of San Francisco, 308 F.3d 968, 984 (9th Cir. 11 United States District Court Northern District of California 10 2002) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). 12 (2) Plaintiff may show “that the decision-making official was, as a matter of state law, a 13 final policymaking authority ‘whose edicts or acts may fairly be said to represent 14 official policy’ in the area of decision.” Id. (quoting Monell, 436 U.S. at 694). 15 (3) Plaintiff may show “that an official with final policy-making authority ratified a 16 subordinate’s unconstitutional decision or action and the basis for it.” Gillette v. 17 Delmore, 979 F.3d 1342, 1346-47 (9th Cir. 1992); see also Ulrich, 308 F.3d at 985 18 (holding that plaintiff may establish official policy “by showing that an official with 19 final policymaking authority either delegated that authority to, or ratified the decision 20 of, a subordinate.”). The parties appear to agree that municipal liability may be established pursuant to (1). 21 22 However, Defendants’ final jury instructions and Monell briefing are inconsistent in 23 acknowledging municipal liability bases (2) and (3). See ECF No. 149, at 153-154; ECF No. 159, 24 at 3. 25 26 The Court briefly outlines municipal liability under (2) and (3) below so that there is no confusion between the parties moving forward. 27 2 28 Case No. 17-CV-00007-LHK ORDER RE: MONELL LIABILITY 1 Final Policymaking Authority (2); Plaintiff may establish municipal liability by showing 2 that the employee committing the constitutional violation was an official with “final policymaking 3 authority” in the area of the decision made. Ulrich, 308 F.3d at 985. “Whether an official is a 4 policymaker for Monell purposes is a question governed by state law.” Ellins, 710 F.3d at 1066; 5 see also City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988) (same). “Depending on the 6 circumstances, however, [the Court] may also look to the way a local government entity operates 7 in practice” to determine if an individual possessed final policymaking authority. Lytle v. Carl, 8 382 F.3d 978, 983 (9th Cir. 2004). Thus, “[t]he final policymaker is the individual who had 9 authority in the particular area where the constitutional violation occurred.” Barone v. City of Springfield, Oregon, 902 F.3d 1091, 1108 (9th Cir. 2018). “For a person to be a final 11 United States District Court Northern District of California 10 policymaker, he or she must be in a position of authority such that a final decision by that person 12 may appropriately be attributed to the District.” Lytle, 382 F.3d at 983. Moreover, it does not 13 matter that “the final policymaker may have subjected only one person to only one 14 unconstitutional action.” Id. A single action can constitute an official policy if that action is made 15 or ratified by the final policymaker. Id. 16 However, “[t]he fact that a particular official—even a policy-making official—has 17 discretion in the exercise of particular functions does not, without more, give rise to municipal 18 liability based on an exercise of that discretion. The official must also be responsible for 19 establishing final government policy respecting such activity before the municipality can be held 20 liable.” Pembaur, 475 U.S. at 482-83 (internal citations omitted); Gillette, 979 F.2d at 1349 21 (same). Thus, the fact that an individual “possessed the discretionary authority to hire and fire 22 employees” is “not sufficient to establish a basis for municipal liability” on its own. Gillette, 979 23 F.2d at 1350. Rather, that individual must possess “final policymaking authority” in the particular 24 area where the constitutional violation occurred. Barone, 902 F.3d at 1108. 25 “Authority to make municipal policy may be granted directly by a legislative enactment” 26 or “delegated by an official who possesses such authority . . . .” Pembaur, 475 U.S. at 483. Thus, 27 an individual may have been “delegated final policymaking authority over the decisions at issue.” 3 28 Case No. 17-CV-00007-LHK ORDER RE: MONELL LIABILITY 1 2 See Ulrich, 308 F.3d at 985. Ratification by a Final Policymaker (3): Plaintiff also may establish municipal liability 3 by showing that “an official with final policymaking authority . . . ratified the decision of, a 4 subordinate.” Ulrich, 308 F.3d at 985. However, acquiescence to the decision of a subordinate is 5 not sufficient to establish liability. Rather, municipal liability “requires that a policymaker 6 approve a subordinate’s decision and the basis for it before the policymaker will be deemed to 7 have ratified the subordinate’s discretionary decision.” Gillette, 979 F.3d at 1348; Ellins, 710 F.3d 8 at 1067-68 (same). 9 10 Having outlined the bases for municipal liability under Section 1983, the Court will now address several issues raised by the parties. United States District Court Northern District of California 11 Jury Instructions 12 First, Defendants’ proposed Special Jury Instruction No. 3, ECF No. 149, at 153 is 13 incomplete because it fails to state that municipal liability under Section 1983 may be imposed 14 where Plaintiff establishes that the decision that caused her injury was (1) made by an employee 15 with “final policymaking authority” in the area of the decision made, Ulrich, 308 F.3d at 985, or 16 (2) an individual with final policymaking authority ratified a subordinate’s decision and the basis 17 for that decision. Gillette, 979 F.3d at 1348. 18 However, Plaintiff’s proposed Special Jury Instruction No. 15 is also misleading because it 19 conflates discretion with final policymaking authority and provides unclear guidance as to the 20 bases for municipal liability. See ECF No. 149, at 161. Specifically, Plaintiff states that 21 municipal liability must be found if “[t]he individual involved, such as Ellerbee or Guertin, was 22 given the authority or ability to act at his or her discretion and is the final word on the matter.” Id. 23 However, “[t]he fact that a particular official—even a policy-making official—has discretion in 24 the exercise of particular functions does not, without more, give rise to municipal liability based 25 on an exercise of that discretion. The official must also be responsible for establishing final 26 government policy respecting such activity before the municipality can be held liable.” Pembaur, 27 475 U.S. at 482-83; Gillette, 979 F.2d at 1349 (same). Thus, the fact that an individual “possessed 4 28 Case No. 17-CV-00007-LHK ORDER RE: MONELL LIABILITY 1 the discretionary authority to hire and fire employees” is “not sufficient to establish a basis for 2 municipal liability” on its own. Gillette, 979 F.2d at 1350. Therefore, Plaintiff must establish that 3 Ellerbee or Guertin were responsible for establishing final government policy with respect to the 4 decision made. It is not enough to show that Ellerbee or Guertin had the authority to act at their 5 own discretion. Second, Plaintiff states that municipal liability can be established by showing that “[t]he 7 County later upheld, ratified, or adopted the conduct of the individual or individuals.” ECF No. 8 149, at 161. Municipal liability under Section 1983 “requires that a policymaker approve a 9 subordinate’s decision and the basis for it before the policymaker will be deemed to have ratified 10 the subordinate’s discretionary decision.” Gillette, 979 F.3d at 1348 (emphasis added). Plaintiff’s 11 United States District Court Northern District of California 6 proposed jury instruction is therefore incomplete. 12 Jury Verdict Forms 13 The parties also dispute whether the special jury verdict form on violation of procedural 14 due process under Section 1983 should include a question regarding whether Plaintiff’s injury was 15 the result of an official municipal policy under Monell. See ECF No. 154 at 7, 21. The Court 16 agrees with Defendants that the special jury verdict form should include a question regarding 17 municipal liability. However, Defendants’ proposed special jury verdict form is incomplete. 18 Defendants’ instruction states that the means of establishing an official policy are that the decision 19 was an “expressly adopted official policy or a widespread or longstanding practice or custom.” Id. 20 at 21. This instruction ignores that municipal liability may also be established where the decision 21 was made by “a final policymaking authority,” Ulrich, 308 F.3d at 985, or a final policymaking 22 authority “approve[d] a subordinate’s decision and the basis for it . . . .” Gillette, 979 F.3d at 23 1348. The special jury verdict form must reflect these additional bases for municipal liability. 24 Evidence / Admissions 25 Plaintiff also requests that the Court enter an order preventing Defendants from presenting 26 any evidence or arguments to the effect that (1) “The acts of Ellerbee and others in connection 27 with the discharge of Zhang were not acts of the County”; (2) “The acts of Ellerbee and others in 5 28 Case No. 17-CV-00007-LHK ORDER RE: MONELL LIABILITY 1 connection with the discharge of Zhang were not authorized or approved by the County”; and (3) 2 “That Plaintiff is required to show that any denial of due process in Zhang’s discharge was due to 3 a custom, policy, or practice of such denial of rights.” ECF No. 162, at 2. 4 Plaintiff’s objection lacks merit. Defendants are entitled to argue that Plaintiff has not 5 established municipal liability under Section 1983. Municipal liability attaches where the 6 municipality itself caused the constitutional violation through “execution of a government’s policy 7 or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to 8 represent official policy.” Monell, 436 U.S. at 694. Defendants are entitled to argue that 9 Plaintiff’s claim under Section 1983 is barred because Plaintiff has failed to establish municipal 10 United States District Court Northern District of California 11 liability through one of the three bases for liability outlined above. Plaintiff further argues that Defendants may not raise an affirmative defense under Monell 12 because Defendants have already admitted that the actions of Ellerbee and others were “authorized 13 acts of the County.” ECF No. 162, at 4. Plaintiff argues that if an act of Ellerbee or others was 14 “authorized” by the County, then that act represented official policy and municipal liability may 15 be found under Section 1983 and Monell. Id. at 7. However, the fact that an individual was 16 authorized to act by the County does not by itself demonstrate that the individual had final 17 policymaking authority with regard to the decision made. Thus, for example, the fact that an 18 individual “possessed the discretionary authority to hire and fire employees” is “not sufficient to 19 establish a basis for municipal liability” on its own. Gillette, 979 F.2d at 1350. Rather, that 20 individual must possess “final policymaking authority” in the particular area where the 21 constitutional violation occurred. Barone, 902 F.3d at 1108. Defendants are entitled to argue at 22 trial that while Ellerbee and others were authorized to act, they lacked final policymaking 23 authority with respect to the decision that caused Plaintiff’s injury. 24 Accordingly, the Court DENIES Plaintiff’s request to prevent Defendants from presenting 25 any evidence or arguments to the effect that Plaintiff has failed to establish municipal liability 26 under Section 1983 and Monell. 27 6 28 Case No. 17-CV-00007-LHK ORDER RE: MONELL LIABILITY 1 IT IS SO ORDERED. 2 Dated: June 4, 2021 ______________________________________ LUCY H. KOH United States District Judge 3 4 5 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 7 28 Case No. 17-CV-00007-LHK ORDER RE: MONELL LIABILITY

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