Estate of Timothy Gene Smith et al v. City of San Diego et al

Filing 44

ORDER: Defendant Scott Holslag's motion to dismiss the first amended complaint (Dkt # 16 ) is denied. Defendants City of San Diego and Shelley Zimmerman's motion to dismiss the first amended complaint (Dkt # 17 ) is granted. Defendant Natalie Ann Macey's motion to dismiss the first amended complaint (Dkt # 23 ) is denied. Signed by Judge William Q. Hayes on 7/13/2017. (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Estate of TIMOTHY GENE SMITH,
deceased, by his successor in interest
JANIE RICHELLE SANDERS;
JANIE RICHELLE SANDERS, as an
individual; SANDY LYNN
SIMMONS; and WYATT ALLEN
GUNNER SMITH,

CASE NO. 16cv2989-WQH-MDD
ORDER

Plaintiffs,
v.
CITY OF SAN DIEGO; SHELLEY
ZIMMERMAN AND SCOTT
HOLSLAG, as individuals and
employees of City of San Diego;
NATALIE ANN MACEY, as an
individual doing business as Macey
Bail Bonds; LEGAL SERVICE
BUREAU, Inc., a California domestic
corporation doing business as Global
Fugitive Recovery; DAN
ESCAMILLA, as an individual and on
behalf of Legal Service Bureau, Inc.;
LELAND CHAPMAN BAIL BOND
CO. INC., a Colorado corporation;
LBC, Inc., a Hawaii corporation;
KAMA AINA BAIL BONDS, INC., a
Hawaii corporation; LELAND B.
CHAPMAN, as an individual and on
behalf of Leland Chapman Bail Bond
Co. Inc., LBC, Inc., and Kama Aina
Bail Bonds, Inc.,

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Defendants.

26 HAYES, Judge:
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The following motions are pending before the Court: 1) Defendant Scott

28 Holslag’s motion to dismiss the first amended complaint (ECF No. 16), 2) Defendants
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1 City of San Diego and Shelley Zimmerman’s motion to dismiss the first amended
2 complaint (ECF No. 17), and 3) Defendant Natalie Ann Macey’s motion to dismiss the
3 first amended complaint (ECF No. 23).
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BACKGROUND
On December 8, 2016, the Estate of Timothy Gene Smith; Janie Sanders, the

6 surviving spouse of Timothy Smith; Sandy Simmons, the mother of Timothy Smith;
7 and Wyatt Smith, the son of Timothy Smith initiated this action by filing a complaint.
8 (ECF No. 1). On December 29, 2016, Plaintiffs filed the First Amended Complaint
9 (hereinafter “the complaint”) alleging constitutional violations pursuant to 42 U.S.C.
10 § 1983 and state law claims against Defendant Police Officer Scott Holstag for the
11 unconstitutional use of deadly force; against Defendants City of San Diego and Shelley
12 Zimmerman for failure to properly train, supervise and discipline police officers; and
13 against other named defendants for conspiracy to violate civil rights (ECF No. 7).
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On February 9, 2017, Defendant Scott Holslag filed a motion to dismiss

15 Plaintiff’s first amended Complaint. (ECF No. 16).
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On February 9, 2017, Defendants City of San Diego and Shelley Zimmerman

17 filed a motion to dismiss Plaintiff’s first amended Complaint. (ECF No. 17).
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On March 3, 2017, Defendant Natalie Macey filed a motion to dismiss Plaintiff’s

19 first amended Complaint. (ECF No. 23).
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Plaintiff filed responses in opposition to all motions to dismiss (ECF Nos. 26,

21 30).
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ALLEGATIONS OF THE COMPLAINT
On November 4, 2015, decedent Timothy Smith was with Janie Sanders, his wife,

24 in the Pacific Beach area of San Diego. At the time, Sanders was on bail for minor,
25 non-violent drug possession charges pending in the State of Missouri. Defendant
26 Natalie Ann Macey, d/b/a/ Macey Bail Bonds, had posted bail in Missouri on behalf of
27 Sanders in the amount of $7500. Sanders and Smith left Missouri to visit Smith’s sister
28 in San Diego.
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Macey hired Defendants Escamilla, Legal Services Bureau, Leland Chapman Bail

2 Bonds Co., and/or Kama Aina Bail Bonds (hereinafter referred to as “hired bondsmen”)
3 to apprehend Sanders. Smith had not committed any crime in California and was not
4 wanted for any crime in California.
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Macey and the hired bondsmen in an intentional and malicious effort to

6 apprehend Sanders fabricated false information about past violent activity of both
7 Sanders and Smith, including acts of violence, assault, weapons possession, and child
8 molestation. These defendants printed and distributed “WANTED” posters throughout
9 San Diego which contained this false information and photos of Sanders and Smith.
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On November 4, 2015, two officers of the San Diego Police Department saw

11 Smith exiting a store in the Pacific Beach area. Smith was wearing tan shorts and no
12 shirt. The officers gave chase and Smith fled. A perimeter was set up with helicopters
13 overhead. Canine units were deployed. Smith was eventually cornered in an alley.
14 Smith had no weapons. Smith did not make any verbal threats, or threatening
15 movements or gestures. Officer Scott Holstag fatally shot Smith numerous times with
16 a .45 caliber weapon. Officer Holslag failed to warn Smith that they would shoot him
17 and failed to use any alternative, non-deadly measures to apprehend Smith. Smith
18 posed no immediate threat to Officer Holslag or to any third person.
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In 2002, Officer Holslag shot Gary Martin three times, killing an unarmed man

20 while he was seated in his vehicle. The San Diego Police Department did not discipline
21 Officer Holslag. The San Diego Police Department failed to alter any policies with
22 respect to the practices or training of its police officers, including Officer Holslag. The
23 City and the Police Department have a de facto policy, custom, and practice of not
24 properly training its officers in the use of force and constitutional rights of arrestees; of
25 authorizing and ratifying the use of excessive force; and failing to discipline and
26 supervise officers who have been involved in excessive force allegations.
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APPLICABLE STANDARD
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Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state

2 a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “A pleading that
3 states a claim for relief must contain ... a short and plain statement of the claim showing
4 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal under Rule
5 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient
6 facts to support a cognizable legal theory. See Balistreri v. Pac. Police Dep’t, 901 F.2d
7 696, 699 (9th Cir. 1990).
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“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

9 requires more than labels and conclusions, and a formulaic recitation of the elements
10 of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
11 (quoting Fed. R. Civ. P. 8(a)(2)). When considering a motion to dismiss, a court must
12 accept as true all “well-pleaded factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662,
13 679 (2009). However, a court is not “required to accept as true allegations that are
14 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”
15 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “In sum, for a
16 complaint to survive a motion to dismiss, the non-conclusory factual content, and
17 reasonable inferences from that content, must be plausibly suggestive of a claim
18 entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.
19 2009) (quotations omitted).
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Where government officials are sued in their individual capacities for civil

21 damages, a court must “begin by taking note of the elements a plaintiff must plead to
22 state a claim . . . against officials entitled to assert the defense of qualified immunity.”
23 Iqbal, 556 U.S. at 675. Government officials are entitled to qualified immunity unless
24 the plaintiff can allege the violation of a “clearly established” constitutional right.
25 Pearson v. Callahan, 555 U.S. 223, 232 (2009).
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ANALYSIS
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1 1) Defendant Scott Holslag’s motion to dismiss
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Defendant Holslag moves to dismiss the first, second, sixth, seventh and eighth

3 claims for relief. Defendant contends that the facts alleged in the complaint are not
4 sufficient to support a claim that his use of deadly force was not reasonable under the
5 totality of the circumstances. Defendant Holslag asserts that the facts alleged support
6 the inference that it would be reasonable based upon information provided to the San
7 Diego Police Department that Smith was an armed, dangerous, fleeing felon with a long
8 history of committing violent crimes. Defendant Holslag asserts that reasonable
9 inferences from the facts support “concerns that Smith was armed, violent, and a danger
10 to the surrounding public given the information the police had.” (ECF No. 16-1 at 20).
11 Defendant Holslag asserts that his “split-second decision to use deadly force was not
12 a violation of Smith’s Fourth Amendment rights because there was probable cause –
13 based on objectively reasonable facts – to believe Smith posed a threat of serious
14 physical harm to others.”

Id.

Even if the Court concludes that there was a

15 constitutional violation, Defendant Holslag contends that the right at issue was not
16 clearly established.
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Plaintiffs contend that the facts alleged support the inference that Defendant

18 Holslag acted unreasonably when he shot and killed an unarmed man who posed no
19 threat to the officer or the public. Plaintiffs assert that there are no facts in the
20 complaint to support any inference that Holstag received an information about Smith
21 at the time of the shooting. Plaintiffs assert that the fact alleged support an inference
22 that Smith was unarmed, cornered in an alleyway, and posed no threat.
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An excessive force claim is analyzed under the Fourth Amendment. Graham v.

24 Connor, 490 U.S. 386, 395 (1989). Reasonableness of force is assessed from the
25 perspective of a reasonable officer at the scene. Id. The relevant inquiry is whether
26 officers’ actions are “objectively reasonable in light of the facts and circumstances
27 confronting them, without regard to their underlying intent or motivation.” Id. at 397
28 (quotation marks and citation omitted). “The calculus of reasonableness must embody
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1 allowance for the fact that police officers are often forced to make split-second
2 judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the
3 amount of force that is necessary in a particular situation.” Id. at 396–97. However, “it
4 is equally true that even where some force is justified, the amount actually used may be
5 excessive.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002).
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The Court concludes that the facts alleged in the complaint and the reasonable

7 inferences from those facts support a claim that the use of deadly force was not
8 reasonable under the circumstances. The facts alleged do not support the inference that
9 Smith posed an immediate threat to the safety of police officers or the public justifying
10 the use of deadly force as a matter of law. The Court further concludes that the right
11 at issue was clearly established. See Tennessee v. Garner, 471 U.S. 1, 11 (1985)
12 (“Where the suspect poses no immediate threat to the officer and no threat to others, the
13 harm resulting from failing to apprehend him does not justify the use of deadly force.”).
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Defendant Scott Holslag’s motion to dismiss the first, second, sixth, seventh and

16 eight claims for relief is denied.1
17 2) Defendants City of San Diego and Shelley Zimmerman’s motion to dismiss (ECF
18 No. 17)
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Defendants City of San Diego and Shelley Zimmerman move to dismiss the third,

20 fourth, fifth, and sixth claims for relief. Defendants contend that the facts alleged in the
21 complaint fail to state a claim that Officer Holslag’s use of force violated Smith’s
22 constitutional rights. Because Plaintiffs fail to plead any constitutional violation,
23 Defendants contend that Plaintiffs’ Monell claim fails as a matter of law. Defendants
24 further contend that Plaintiffs provide no factual allegations supporting their claim of
25 deliberate indifference, failure to properly train, failure to properly discipline and failure
26 to properly supervise. Defendants assert that Plaintiff’s claim is based upon a single
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Plaintiff voluntarily agrees to dismiss the eight claim for relief for wrongful
28 death against Defendant Holslag brought by Plaintiff Sandy Simmons.
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1 incident not sufficient to support a claim for a persistent or widespread custom or
2 policy.
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Plaintiffs contend that the complaint alleges sufficient facts to support deliberate

4 indifference and ratification of unlawful practices which condone the unjustified use of
5 force by officers.
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42 U.S.C. § 1983 provides that “[e]very person who, under color of any [state

7 law] subjects, or causes to be subjected, any citizen of the United States ... to the
8 deprivation of any rights, privileges, or immunities secured by the Constitution and
9 laws, shall be liable to the party injured.” 42 U.S.C. § 1983. Section 1983 does not
10 provide for vicarious liability, local governments “may not be sued under § 1983 for an
11 injury inflicted solely by its employees or agents.” Monell v. Dep’t of Soc. Servs. of
12 N.Y., 436 U.S. 658, 693 (1978).

A local government entity may be sued for

13 constitutional deprivations caused by a government “custom,” even when the custom
14 has not been formally approved through official decision-making channels. Id. at 690.
15 However, such a practice must be so permanent and well settled that it constitutes a
16 “custom or usage” with the force of law. Id. at 691. “Liability for improper custom may
17 not be predicated on isolated or sporadic incidents; it must be founded upon practices
18 of sufficient duration, frequency and consistency that the conduct has become a
19 traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.
20 1996).
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In this case, the Court has concluded that the complaint states a claim against

22 Officer Holslag for a violation of Plaintiff’s fourth amendment and fourteenth
23 amendment rights based upon an excessive force theory of liability. The complaint
24 alleges that City of San Diego and Shelley Zimmerman, the Chief of Police,
25 proximately caused the constitutional violation through unlawful policies, customs and
26 habits of improper and inadequate hiring, training, retention, discipline and supervision
27 of its police officers. The complaint alleges that the police officers are not trained
28 properly in the use of excessive force, and that the police officers are aware that no
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1 discipline or adequate investigation will result from any excessive use of force. The
2 complaint alleges that the police department has a policy requiring the use of body
3 cameras and failed to enforce this policy. The complaint alleges that Officer Holslag
4 shot and killed an individual in 2002, and that Officer Holslag was not disciplined.
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The Court concludes that the facts alleged in the complaint and the reasonable

6 inferences from those facts do not support a claim for municipal and supervisory
7 liability. The complaint alleges constitutional violations centered around a single
8 incident of alleged excessive force. The allegations that this incident was proximately
9 caused by a custom and practice of not properly training officers, authorizing and
10 ratifying the use of excessive force, and not properly investigating officer’s use of force
11 are conclusory.
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Defendants City of San Diego and Shelley Zimmerman motion to dismiss the

13 third, fourth, fifth, and sixth claims for relief is granted.
14 3) Defendant Natalie Ann Macey’s motion to dismiss
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Defendant Natalie Ann Macey moves to dismiss the ninth claims for relief for

16 conspiracy to violate civil rights pursuant to 42 U.S.C. § 1983.2 Defendant Macey
17 contends that there is no factual allegation that she or any bondsman acting on her
18 behalf attempted to apprehend Smith or used excessive force in apprehending Smith.
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Plaintiffs contend that the facts alleged in the complaint show that Defendant

20 Macey conspired with others to fabricate and falsify information with the intent that law
21 enforcement agencies would rely upon the false information, and that these actions
22 resulted in the use of excessive force by law enforcement officers.
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A civil rights plaintiff suing a private individual under § 1983 must demonstrate

24 that the private individual acted under color of state law; plaintiffs do not enjoy
25 Fourteenth Amendment protections against “private conduct abridging individual
26 rights.” Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961). In Franklin
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The tenth, eleventh, and twelfth claims for relief have been dismissed with
28 prejudice with respect to Defendant Macey. (ECF No. 35).
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1 v. Fox, 312 F.3d 423,444-45 (9th Cir. 2002), the Court of Appeals explained,
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A private individual’s action may be “under color of state law” where
there is “significant” state involvement in the action. Johnson v. Knowles,
113 F.3d 1114, 1118 (9th Cir.1997). The Supreme Court has articulated
four tests for determining whether a private individual's actions amount to
state action: (1) the public function test; (2) the joint action test; (3) the
state compulsion test; and (4) the governmental nexus test. Id. ...
Under the joint action test, “courts examine whether state officials and
private parties have acted in concert in effecting a particular deprivation
of constitutional rights.” Gallagher v. Neil Young Freedom Concert, 49
F.3d 1442, 1453 (10th Cir.1995) (citing Collins, 878 F.2d at 1154). The
test focuses on whether the state has “‘so far insinuated itself into a
position of interdependence with [the private actor] that it must be
recognized as a joint participant in the challenged activity.’ ” Gorenc v.
Salt River Project Agric. Improvement & Power Dist., 869 F.2d 503, 507
(9th Cir. 1989) (quoting Burton, 365 U.S. at 725, 81 S.Ct. 856).
The complaint in this case alleges that Macey and other hired bondsmen
fabricated and falsified information about Smith. The complaint alleges that Macey and
others published and disseminated the information to law enforcement agencies with
the knowledge and expectation that law enforcement would act on the information. The
complaint alleges that Macey and other hired bondsmen intended for police to rely upon
false information resulting in the use of excessive force on the part of the police. The
Court concludes that the facts alleged in the complaint and the reasonable inferences
from those facts support a claim that Macey acted in concert with state officials to
deprive Smith of his constitutional rights.
Defendant Natalie Ann Macey’s motion to dismiss the ninth claims for relief is
denied.

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CONCLUSION
IT IS HEREBY ORDERED that 1) Defendant Scott Holslag’s motion to dismiss

3 the first amended complaint (ECF No. 16) is denied , 2) Defendants City of San Diego
4 and Shelley Zimmerman’s motion to dismiss the first amended complaint (ECF No. 17)
5 is granted, and 3) Defendant Natalie Ann Macey’s motion to dismiss the first amended
6 complaint (ECF No. 23) is denied.
7 DATED: July 13, 2017
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WILLIAM Q. HAYES
United States District Judge

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