Mendoza v. County of San Diego et al

Filing 9

ORDER Denying 6 Defendants' Motion to Dismiss. Signed by Judge Thomas J. Whelan on 3/7/2018. (jao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PHILLIP JESSE MENDOZA,

Case No.: 17cv1349 W (NLS)
Plaintiff,

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v.

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ORDER DENYING DEFENDANTS’
MOTION TO DISMISS [DOC. 6]

COUNTY OF SAN DIEGO, et al.
Defendants.

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Defendants County of San Diego and San Diego Sheriff’s Deputy James Givens

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move to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). Plaintiff

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opposes.

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The Court decides the matter on the papers submitted and without oral argument.

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See Civ. L.R. 7.1(d.1). For the reasons that follow, the Court DENIES Defendants’

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motion [Doc. 6].

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I.

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BACKGROUND
The following allegations are taken from the First Amended Complaint (“FAC”

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[Doc. 5]). On June 12, 2016, Plaintiff was a patron of the Bancroft Bar in Spring Valley,

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California. (FAC ¶ 20.) Plaintiff and another patron got into an argument that caused the

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bar’s management to remove them, and call the San Diego Sheriff’s Department. (Id.)

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Several other patrons followed Plaintiff as he left the bar. (Id. ¶ 21.) One of the patrons

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carried a pool cue, and others carried billiard balls. (Id.) Plaintiff alleges that the group

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of patrons started striking him with “these weapons, so the Plaintiff pulled out a knife to

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defend himself.” (Id.)

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While Plaintiffs was defending himself against the group of patrons, Defendant

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Deputy Givens arrived at the scene and drove his patrol car into Plaintiff, throwing him

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twenty feet in the air. (FAC ¶ 22.1) Plaintiff was then taken to Grossmont Hospital, and

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being released was arrested for assault with a deadly weapon. (Id. ¶¶ 22–23.)

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On July 3, 2017, Plaintiff filed this lawsuit. On November 13, 2017, he filed the

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FAC alleging the following causes of action: excessive force under 42 U.S.C. § 1983

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against Deputy Givens; Monell liability under 42 U.S.C. § 1983 against San Diego

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County and Sheriff Gore; and state-law battery and negligence against all Defendants.

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(Id. ¶¶ 30–69.) Defendants now seek to dismiss, arguing Deputy Givens is entitled to

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qualified immunity, and the FAC fails to allege sufficient facts to support any of the

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causes of action. (P&A [Doc. 6-1] 1:13–20.) Plaintiff opposes the motion. (See Opp’n

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[Doc. 7].)

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Defendants concur that Deputy Givens drove his patrol car into Plaintiff, but contend he was only
knocked to the ground by the impact. (P&A [Doc. 6-1] 1:7–8.) But in evaluating a motion to dismiss,
courts must accept plaintiff’s facts as true. Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007).

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II.

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LEGAL STANDARD
The Court must dismiss a cause of action for failure to state a claim upon which

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relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6)

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tests the legal sufficiency of the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51

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F.3d 1480, 1484 (9th Cir. 1995). A complaint may be dismissed as a matter of law either

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for lack of a cognizable legal theory or for insufficient facts under a cognizable theory.

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Balisteri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). In ruling on the

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motion, a court must “accept all material allegations of fact as true and construe the

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complaint in a light most favorable to the non-moving party.” Vasquez v. L.A. Cnty.,

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487 F.3d 1246, 1249 (9th Cir. 2007).
A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme Court has

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interpreted this rule to mean that “[f]actual allegations 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. 554, 555

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(2007). The allegations in the complaint must “contain sufficient factual matter, accepted

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as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

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Well-pled allegations in the complaint are assumed true, but a court is not required

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to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable

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inferences. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State

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Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

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III.

DISCUSSION

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A.

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Plaintiff’s first cause of action alleges a 42 U.S.C. § 1983 claim based on the

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contention that Deputy Givens used excessive force when he ran his patrol car into

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Plaintiff. (FAC ¶ 33.) Defendants argue the claim should be dismissed because Deputy

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Givens is entitled to qualified immunity. (P&A 1:12–15.)

Qualified Immunity

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Qualified immunity shields government officials from liability for monetary

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damages unless the plaintiff establishes that (1) the conduct violated a constitutional

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right, and (2) the right was “clearly established” when the misconduct occurred. Pearson

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v. Callahan, 555 U.S. 223, 232, 236–42 (2009) (modifying the two-step inquiry in

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Saucier v. Katz, 533 U.S. 194 (2001), to allow courts discretion in deciding which prong

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to address first depending on the facts of the particular case).

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Defendants argue Deputy Givens’s actions were reasonable, and therefore did not

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violate Plaintiff’s constitutional rights. (P&A 4:3–5.) Defendants further argue that even

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if Deputy Givens’s actions were unreasonable, Plaintiff’s right to be free from the

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particular use of force was not clearly established at the time. (Id. 4:10–13.)

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The FAC’s factual allegations allege a Fourth Amendment violation.

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1.

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A Fourth Amendment excessive-force claim is analyzed under an objective

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reasonableness standard. Graham v. Connor, 490 U.S. 386, 388 (1989). In determining

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the reasonableness of an officer’s actions, the nature and quality of the intrusion on the

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suspect’s Fourth Amendment interests are balanced against the countervailing

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government interests. Id. at 396. All the facts and circumstances of a case are considered

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in establishing the government’s interest, including the severity of the crime at issue,

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whether the suspect poses an immediate threat to the safety of the officers or others, and

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whether the suspect is resisting arrest or attempting to flee from arrest. Id. (citing

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Tennessee v. Garner, 471 U.S. 1, 8 (1985)). In addition to the Graham factors,

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circumstances such as the availability of less intrusive force and the use of proper

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warnings are considered. Hughes v. Kisela, 862 F.3d 775, 780 (9th Cir. 2017) (citing

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Bryan v. MacPherson, 630 F.3d 805, 831 (9th Cir. 2010).

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a.

Nature and quality of the intrusion.

A means of force capable of inflicting significant pain and causing serious injury is
considered “intermediate force” that presents a significant intrusion upon an individual’s
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constitutional interests. In Young v. City of Los Angeles, 655 F.3d 1156, 1161 (9th Cir.

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2011), the Ninth Circuit found a police officer’s use of pepper spray and a baton

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constitutes intermediate force. See also Smith v. City of Hemet, 394 F.3d 689, 701–02

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(9th Cir. 2005) (use of pepper spray and police dogs also considered intermediate force).

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Using a patrol car to strike and subdue a suspect presents a similar, if not higher, risk of

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causing significant pain and injury as using pepper spray in combination with a baton or

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police dog. Although Defendants attempt to focus the analysis on the severity of

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Plaintiff’s injury, the proper analysis is whether the means of force was capable of

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causing serious injury. Striking a suspect with a car is objectively capable of causing

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serious injuries. Therefore, the government’s interest must be equally significant to

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justify the force used.

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b.

The government’s interest.

When law enforcement encounters a suspect armed with a knife, the severity of the

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crime can weigh against finding excessive force. See Nehad v. Zimmerman, 2017 WL

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6453475 at *4 (S.D. Cal. Dec. 18, 2017) (suspect wielding knife and advancing on

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officers supported a finding of a more severe crime); Pham v. City of San Jose, 2013 WL

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5443027 at *6 (N.D. Cal. Sept. 30, 2013) (suspect that already injured another with a

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knife weighed in favor of a severe crime). But, the fact that a suspect is armed with a

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knife is not dispositive. Chien Van Bui v. City and Cnty. of San Francisco, 699 Fed.

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Appx. 614, 615 (9th Cir. 2017). Instead, the most important factor is whether the suspect

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poses an immediate threat to officers or others. Zion v. City of Orange, 874 F.3d 1072,

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1075 (9th Cir. 2017) (citing Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011).

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Here, although Plaintiff held a knife when Deputy Givens arrived, he contends he

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had the knife to defend himself against the group of bar patrons who were attacking him

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with billiard balls and a pool cue. (FAC ¶ 21.) Plaintiff also alleges he never tried to stab

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anyone. (Id. ¶ 26.) These facts support an inference that Plaintiff did not pose an

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immediate threat to the patrons. Additionally, a jury could also find Plaintiff did not pose
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a threat to Deputy Givens, since the Deputy was in the patrol car when he arrived at the

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scene. (Id. ¶ 22.) Nor are there any allegations Plaintiff was trying to resist arrest or flee.

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(See id. ¶ 26.) These facts all support Plaintiffs’ excessive-force claim.

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Finally, when evaluating an excessive-force claim, the availability of less intrusive

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force and the use of proper warnings may be relevant. Kisela, 862 F.3d at 780. When

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feasible, a warning should be given before the use of non-lethal force that may cause

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serious injury. Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001). In Deorle, the

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officers failed to give a warning before using a bean-bag gun as a suspect was advancing

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on them with a can or bottle in hand. Id. at 1277–78. Failing to give a warning in such

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circumstances weighed in favor of finding excessive force. Id. at 1285. Similarly, the

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court found officers who failed to give a warning before shooting a knife-wielding

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suspect, who stood six to eight feet from the officers, supported a finding of excessive

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force. Hayes v. County of San Diego, 736 F.3d 1223, 1234–35 (9th Cir. 2013).

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Here, no warning was given before Deputy Givens struck Plaintiff with his patrol

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car. The failure to warn Plaintiff before using a method of force that could cause serious

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injury also supports Plaintiff’s excessive-force claim.

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c.

Balancing the parties’ interests.

Viewing the facts in the light most favorable to Plaintiff, Deputy Givens arrived on

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the scene to find Plaintiff brandishing a knife while being threatened or attacked by a

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crowd of bar patrons armed with a pool cue and billiard balls. Instead of warning

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Plaintiff, Deputy Givens ran his car into Plaintiff, causing him to fly 20 feet in the air.

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Under these facts, Plaintiff has pled a violation of his Fourth Amendment rights.

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2.

The right was clearly established.

“Clearly established” means “[t]he contours of the right must be sufficiently clear

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that a reasonable official would understand what he is doing violates that right” with

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careful consideration to the facts of the particular case. Anderson v. Creighton, 483 U.S.
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635, 640 (1987). In determining whether a right is clearly established, courts “may look

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at unpublished decisions and the law of other circuits, in addition to Ninth Circuit

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precedent.” Prison Legal News v. Lehman, 397 F.3d 692, 702 (9th Cir. 2005); Sorrels v.

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McKee, 290 F.3d 965, 970 (9th Cir. 2002) (looking to “decisions of our sister Circuits,

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district courts, and state courts” in evaluating if law was clearly established).

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Officers can still be on notice that their conduct violated established law in novel

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factual circumstances, because the salient issue is whether the state of the law gives

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notice that the conduct at issue was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741

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(2002). However, the general excessive force principles set forth in Graham, while not

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inherently incapable of giving fair and clear warning to an officer, do not by themselves

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create clearly established law outside an obvious case. S.B. v. County of San Diego, 864

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F.3d 1010, 1015 (9th Cir. 2017) (citing White v. Pauly, 552 S.Ct. 548, 552 (2017)).

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Although the parties have not cited an excessive-force case involving similar facts,

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cases evaluating uses of force capable of causing serious injury against armed suspects

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appear to clearly require an officer to warn the suspect, if possible. See Deorle v.

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Rutherford, 272 F.3d at 1285; Hayes v. County of San Diego, 736 F.3d at 1234-35.

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Based on these cases and under Plaintiff’s version of events, the Court finds the law was

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clearly established that Deputy Givens could not drive his patrol car into Plaintiff,

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without any warning, at a speed sufficient to throw him twenty feet in the air.

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B.

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Plaintiff’s second cause of action alleges municipal liability pursuant to 42 U.S.C.

Municipal Liability

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§1983 under two theories: (1) Plaintiff’s injuries were caused by the County’s alleged

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policy, custom, or practice of using excessive force in effectuating arrests as well as

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failing to monitor, train, and supervise deputies; and (2) Sheriff Gore or other supervisory

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officials ratified Deputy Givens’ alleged use of excessive force. (FAC ¶¶ 13, 38–44, 47–

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49.) In their motion, Defendants attack only the first theory. Specifically, they argue the

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claim must be dismissed because Plaintiff fails to allege facts establishing a policy or
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longstanding practice or custom that caused Deputy Givens to pursue the allegedly

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unconstitutional conduct. (P&A 5:26–27, 6:8–9.) Defendants do not challenge Plaintiff’s

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second theory of ratification.

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In moving to dismiss, Defendants bear the burden to show no set of Plaintiff’s

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allegations support a claim for relief. Terracom v. Valley Nat’l Bank, 49 F. 3d 555, 558

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(9th Cir. 1995); See Vasquez, 487 F.3d at 1249. Because Defendants have not

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challenged Plaintiff’s ratification theory, even if they prevail in challenging the policy,

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custom or practice theory, they will not have demonstrated that no set of allegations

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support Plaintiff’s second claim. Therefore, Defendants’ motion to dismiss this claim

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must be denied.

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C.

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Plaintiff’s third and fourth claims allege state-law battery and negligence against

State Law Battery and Negligence

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Deputy Givens for striking Plaintiff with his car, and vicarious liability against the

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County under California Government Code § 815.2. (FAC ¶¶ 53, 55, 59, 61.)

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Defendants argue Deputy Givens is immune from liability under California Government

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Code § 820.2 and, therefore, the County cannot be vicariously liable when its employee

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is immune. (P&A 8:27–28, 9:22–23, 10:11–14.)

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Under section 820.2, a public employee is not liable for an injury caused by an act

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or omission that was the result of the exercise of the discretion vested in the employee,

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whether or not such discretion is abused. Discretionary acts are basic policy decisions

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that have been expressly committed to coordinate branches of government, such that

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judicial interference would be unseemly. Conway v. Cnty. of Tuolumne, 231 Cal. App.

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4th 1005, 1014 (2014). However, as a matter of public policy, discretionary immunity

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does not apply to cases of excessive force in effectuating arrests. Id. at 1015; Scruggs v.

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Haynes, 252 Cal. App. 2d 256, 267–68 (1967). Therefore, Deputy Givens and the

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County are respectively not immune under California Government Code §§ 820.2 and

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815.2(b).
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Defendants also argue that regardless of statutory immunity, the state-law claims

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should be dismissed because Deputy Givens acted reasonably under the circumstances.

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(P&A 9:12-27; Reply [Doc. 8] 9:6–8.) In short, Defendants argue the state-law claims

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should be dismissed because there was no excessive force. Because the Court has found

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Plaintiff has stated an excessive-force claim, Defendants’ alternative argument also fails.

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IV.

CONCLUSION & ORDER
For the foregoing reasons, the Court DENIES Defendants’ motion to dismiss

[Doc. 6].
Dated: March 7, 2018

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