Abdi v. County of San Diego et al

Filing 11

ORDER Granting Defendants'' Motion to Dismiss. Signed by Judge Roger T. Benitez on 11/29/2018. (anh)

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FILED

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SO

BY

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EJ

CLEl1K US DIS I HICI GOU HT
RN DISTRICT OF CALlcORNIA

DEPUTY

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 3:18-cv-00713BEN-KSC

ABDIRIZAK ABDI,
Plaintiff,

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v.

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ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS

COUNTY OF SAN DIEGO, SAN
DIEGO COUNTY SHERIFF'S
DEPARTMENT, SHERIFF BILL GORE,
DEPUTY SHERIFF N. BIER, and DOES
1-10, INCLUSIVE,

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Defendants.

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I. INTRODUCTION

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Plaintiff Abdirizak Abdi ("Abdi") brings this action under 42 U.S.C. § 1983 for

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damages arising from a car stop at a DUI checkpoint. Before the Court is Defendants

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County of San Diego ("County"), San Diego County Sheriffs Department ("Sheriffs

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Department"), Sheriff Bill Gore, and Deputy SheriffN. Bier ("Deputy Bier") (collectively

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"Defendants") Motion to Dismiss Plaintiffs claims pursuant to Federal Rules of Civil

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Procedure 12(b)(6). Because Plaintiff fails to set forth sufficient facts on which to base his

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municipal liability and retaliation claims, Defendants' Motion to Dismiss is GRANTED

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as to claims two, three, and four. Claim six for battery is also dismissed per joint stipulation

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of the parties.

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II. BACKGROUND

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On March 18, 2017, shortly after midnight, Abdi, who was working as an Uber

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driver, had four passengers in his car whom he was driving to their home. Defendants from

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the Sheriffs Department stopped Abdi at a DUI checkpoint on Highway 101 in Encinitas,

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California. (FAC iiii 13, 14.) After Abdi pulled over, Deputy Bier approached the vehicle

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and asked for his driver's license. 1 (Id. at ii 14.) Abdi was then ordered out of the car and

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asked a series of questions that included his country of origin, citizenship, religion, and

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whether he had consumed any drugs or alcohol. (Id. at iiii 16-19.) Abdi initially refused to

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answer Deputy Bier's questions based on his belief that it was a violation ofhis civil rights,

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which Abdi contends angered Deputy Bier. (First Amended Complaint "F AC" iiii 16-19.)

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Abdi eventually replied to Deputy Bier stating he was from Somalia and is an American

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citizen to quell Deputy Bier's anger and prevent further discriminative conduct directed at

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him. (Id. at

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practicing Muslim, he is forbidden from drinking alcohol or using illicit drugs. (Id. at ii

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19.) Thereafter, Abdi contends Deputy Bier subjected him to several sobriety tests which

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he allegedly passed only to be still arrested for "suspicion of drug use." (Id. at iiii 20-26.)

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As a result of his arrest, Abdi' s car was impounded, his passengers had to find alternative

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transportation home, Abdi was booked into the Vista jail and eventually released after

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posting bond. (Id. at iiii 20-26.)

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17.) When asked if he had been drinking, Abdi responded "no", as a

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Plaintiff brought this suit alleging seven causes of action under federal and state law

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for (1) unlawful seizure, detention, and arrest in violation of Plaintiffs' Fourth Amendment

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rights under 42 U.S.C. § 1983 2; (2) retaliation in violation of Plaintiffs' First Amendment

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rights under 42 U.S.C. § 1983; (3) a Canton claim for unlawful pervasive practice in

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Abdi's drivers license reflected his full Middle-Eastern birth name of"Abdi Abdirizak."
Defs.' Mot. to Dismiss does not address whether the First Cause of Action should be
dismissed.
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1 violation of Plaintiffs' Fourth Amendment rights under 42 U.S.C. § 1983 3 ; (4) a Canton
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claim for failure to train in violation of Plaintiffs' Fourth Amendment rights under 42

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U.S.C. § 1983 4 ; (5) Violation of the Bane Act under California Civil Code§ 52.l(b)5 ; (6)

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battery 6; and (7) false imprisonment7. (Doc. No. 1.) On June 14, 2018, Abdi filed a First

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Amended Complaint alleging the same seven causes of action under federal and state law,

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but with revised defendants associated with each cause of action. (Doc. No. 5.)

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Defendants filed a motion to dismiss the FAC to which Plaintiff responded and

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Defendant replied. (Doc. Nos. 6, 7.) The Motion is fully briefed and deemed suitable for

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determination without oral argument. See Local Rule 7.1

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III. LEGAL STANDARD

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To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to state a claim for reliefthat is plausible on its face. Bell At!. Corp. v.

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Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The

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plausibility standard is not akin to a probability requirement, but it asks for more than a

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sheer possibility that a defendant has acted unlawfully .... Where a complaint pleads facts

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that are merely consistent with a defendant's liability, it stops short of the line between

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possibility and plausibility of entitlement to relief." Iqbal, 556 U.S. at 678 (quoting

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Twombly, 550 U.S. at 556-57) (internal quotation marks omitted). A court is not required

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to accept as true conclusory allegations, unreasonable inferences, or unwarranted

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deductions of fact. See Manzarekv. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031

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(9th Cir. 2008). Additionally, a pleading that offers "labels and conclusions" or "a

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City of Canton, Ohio v. Harris, 489 U.S. 378 (1989).
Id.
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Defs.' Mot. to Dismiss does not address whether the Fifth Cause of Action should be
dismissed.
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Plaintiff agreed to withdraw the Sixth Cause of Action for Battery. (Pl. 's Mem. of
Points and Authorities in Opp'n to Mot. to Dismiss, at p. 3).
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Defs.' Mot. to Dismiss does not address whether the Seventh Cause of Action should be
dismissed.
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formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S.

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When considering a Rule 12(b)(6) motion, the court must "accept as true facts

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alleged and draw inferences from them in the light most favorable to the plaintiff." Stacy

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v. Rederiet Otto Danielsen, 609 F.3d 1033, 1035 (9th Cir. 2010). Where a court dismisses

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for failure to state a claim under Rule 12(b)(6), it should normally grant leave to amend

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unless it determines that the pleading could not possibly be cured by the allegation of other

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facts. Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F .2d 242, 24 7 (9th Cir. 1990).

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IV. DISCUSSION

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A. Defendants' Request for Judicial Notice.

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As an initial matter, Defendants request that the Court take judicial notice of the

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following court records:

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1.

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(Doc. No. 6-2, Exh. A.)

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2.

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County of San Diego's October 12, 2017 Notice of Rejection of Claim. (Id.,
Exh. B.)

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Plaintiff Abdirizak Abdi's August 21, 2017, Government Tort Claim Form.

The Court finds both documents relevant to the instant action and GRANTS
Defendant' request for judicial notice as to the aforementioned documents.

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B. Defendants' Motion to Dismiss.

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Defendants argue that the Court should dismiss claims two, three, four and six of the

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F AC. The Court addresses each argument in tum.

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1.

Second Cause of Action-Retaliation.

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Abdi alleges that Deputy Bier arrested him in retaliation for Abdi exercising his legal

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right under the First Amendment to refuse to respond to "questioning about his country of

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origin, citizenship, and religion." (FAC

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Abdi fails to sufficiently allege facts that support federal civil rights liability. (Doc. No. 6

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at 1.)

ifif 40-44.) In their motion, Defendants contend

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To succeed on a First Amendment retaliation claim, Abdi must prove that (1) he was

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engaged in a constitutionally protected activity; (2) Deputy Bier's actions were intended to

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'chill a person of ordinary firmness' from continuing to engage in the protected activity;

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and (3) the protected activity of not responding to questioning was a substantial motivating

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factor for Deputy Bier's arresting him-i.e., there was a nexus between the defendant's

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actions and an intent to chill speech." Ariz. Students' Ass 'n v. Ariz. Bd. of Regents, 824

7 F.3d 858, 867 (2016) (citing O'Brien v. Welty, 818 F.3d 920 (2016)).
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The First Amendment protects both the "voluntary public expression of ideas" and

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the "concomitant freedom not to speak." Harper & Row Publishers, Inc. v. Nat. Enterps.,

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471 U.S. 539, 559 (1985) (quoting Estate ofHemingway v. Random House, Inc., 23 N.Y.

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2d 341, 348 (1968); see Blanco v. Cnty. a/Kings, 142 F. Supp. 3d 986, 992-93 (E.D. Cal.

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2015) (stating the same in the context of First Amendment retaliation claim related to

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action taken against plaintiff after she refused to answer officers' questions); see also Riley

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v. Nat'/ Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 796-97 (1988) ("[T]he First

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Amendment guarantees 'freedom of speech,' a term necessarily comprising the decision of

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both what to say and what not to say.")

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In this case, the Court finds that Abdi has not sufficiently alleged a claim for

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retaliation.

Assuming Abdi has sufficiently demonstrated that he was engaged in a

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constitutionally protected activity, he alleges insufficient facts to support the second and

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third elements of the First Amendment Claim - namely that Defendants' actions would

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chill a person of ordinary firmness, and that engaging in this constitutionally protected right

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was a substantial motivating factor in Deputy Bier's conduct. Here, Abdi avers that he

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only later responded because Deputy Biers' anger at Abdi's exercise of his protected

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activity was causing. (Doc. No. 5

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Deputy Bier was in the process of effectuating a DUI checkpoint, not attempting to restrict

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Abdi's freedom of speech. Moreover, Abdi provides no evidence that Deputy Bier was

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"angry" with him. But, even if Deputy Bier was "angry" with Abdi, that alone does not

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equate to a claim for retaliation. Without more, Abdi's simple restatement of allegations

iJ 41.) However, Abdi fails to take into account that

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1 from the FAC falls short of demonstrating a nexus between Deputy Bier's actions from
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those that were allegedly targeted to chill Abdi's speech.

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Accordingly, the Court GRANTS Defendants' Motion and DISMISSES Plaintiffs'

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second claim for retaliation to the extent it is based upon a First Amendment violation with

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leave to amend.

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2.

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Third Cause of Action-Canton Liability for Unlawful Pervasive
Practice.

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Abdi's third cause of action alleges the County is liable under City of Canton v.

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Harris because it maintained a "pervasive practice" of"questioning persons with dark skin

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and Middle-Eastern names about their religion and country of origin." See City a/Canton

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v. Harris, 489 U.S. 378 (1989). (FAC

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sufficient facts to support his unlawful pervasive practice claim. (Defs.' Mot. to Dismiss,

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4:3-25.)

if 46.) Defendants argue Abdi failed to allege

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A plaintiff may bring a suit for deprivation of federal rights against any person acting

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under color of state law. 42 U.S.C. § 1983. Municipalities and other local government

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units are among those persons to whom Section 1983 applies. Monell v. Dep't of Soc.

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Servs., 436 U.S. 658, 690 (1978).

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employees in a relevant respect evidences a "deliberate indifference" to the rights of its

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inhabitants can such a shortcoming be properly thought of as a city "policy or custom" that

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is actionable under Section 1983. City of Canton, 489 U.S. at 389. A "policy" within the

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meaning of Section 1983 is not limited to official legislative action. Thompson v. City of

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L.A., 885 F.2d 1439, 1443-44 (9th Cir. 2005). Custom may provide another alternative for

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the plaintiff to assert a Section 1983 action for constitutional deprivations. Monell, 436

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U.S. at 690-91. A plaintiff may establish municipal liability only if he shows that "his

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injury resulted from a 'permanent and well settled' practice." Thompson, 885 F.2d at 1444

Only where a municipality's failure to train its

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1 (quoting Adickes v. S.H Kress & Co., 398 U.S. 144, 168 (1970)). 8 In such actions, proof
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of random acts or isolated events is insufficient to establish custom. (Id.) Rather, a plaintiff

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may prove "the existence of a custom or informal policy with evidence of repeated

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constitutional violations for which the errant municipal officials were not discharged or

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reprimanded." Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992). Once such

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showing is made, a municipality may be held liable for its custom "irrespective of whether

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official policy-makers had actual knowledge of the practice at issue." Navarro v. Block, 72

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F.3d 712, 715 (quoting Thompson, 885 F.2d at 1444).

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In the present case, Abdi alleges that County, through the actions of the Sheriffs

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Department, engaged in an unlawful pervasive practice of questioning dark-skinned

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individuals, or those with Middle Eastern names about their religion and country of origin.

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(FAC iii! 46-47.) However, Abdi fails to allege sufficient facts to demonstrate how his

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injury arose from a pervasive practice engaged in by the Sheriffs Deputies that is so

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"permanent and well-settled" so as to constitute a custom or well-settled practice. Abdi

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also fails to allege sufficient facts of repeated constitutional violations for which deputies

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and/or employees were not discharged or reprimanded for similar conduct. The only facts

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provided by Plaintiff are those pertaining to a single incident between him and Deputy Bier

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at a DUI checkpoint. (F AC

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is not sufficient to impose liability ... unless proof of the incident includes proof that it was

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caused by an existing, unconstitutional, municipal policy, which policy can be attributed

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to a municipal policymaker." City of Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985).

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if 13.) "Proof of a single incident of unconstitutional activity

Accordingly, the Court GRANTS Defendants' Motion and DISMISSES Plaintiffs'
third claim with leave to amend.

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"[A] plaintiff may be able to prove the existence of a widespread practice that, although
not authorized by written law or express municipal policy, if so 'permanent and wellsettled as to constitute a custom or usage with the force of law."' Adickes v. S.H Kress &
Co., 398 U.S. 144, 168 (1970).
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Therefore, Defendants' Motion to Dismiss claim three 1s GRANTED without
prejudice.
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Fourth Cause of Action-Canton Liability for Failure to Train.

Count four alleges that Defendant County failed to provide adequate training for its
deputies. (Doc. No. 6 at 5.)

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"A municipality's culpability for a deprivation of rights is at its most tenuous where

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a claim turns on a failure to train." Connickv. Thompson, 131 S. Ct. 1350, 1359-60 (2011)

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(citation omitted).

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employees regarding federal constitutional rights is a subsection of the Monell analysis.

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See Monellv. Dep'tofSoc. Serv's ofCityofNY., 436 U.S. 658 (1978). Local governments

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may not be sued under § 1983 for an injury inflicted solely by an employee or agent.

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Monell, 436 U.S. at 693. In limited circumstances, however, local governments may be

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held liable under § 1983 for inadequate training of an employee "when the failure to train

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amounts to deliberate indifference to the rights of persons with whom the police come in

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contact." City of Canton v. Harris, 489 U.S. 378, 388 (1989). Training is inadequate for

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purposes of§ 1983 when "in light of the duties assigned to specific officers or employees,

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the need for more or different training is so obvious, and the inadequacy so likely to result

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in the violation of constitutional rights, that the policymakers of the city can reasonably be

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said to have been deliberately indifferent to the need." (Id. at 390.) "Thus, when city

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policymakers are on actual or constructive notice that a particular omission in their training

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program causes city employees to violate citizens' constitutional rights, the city may be

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deemed deliberately indifferent if the policymakers choose to retain that program."

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Connick, 131 S. Ct. at 1359 (citation omitted). The standard is deliberately high in these

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types of cases because applying a less demanding standard would circumvent the rule

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against respondeat superior liability of municipalities. Bd. ofCnty. Comm 'n ofBryan Cnty.

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Okla. v. Brown, 520 U.S. 397, 392 (1997).

Analyzing claims against municipal entities for failure to train

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In the face of these very specific and demanding requirements, the FAC alleges

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nothing more than unsupported legal conclusions that Defendant County failed to train its
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Sheriffs Deputies. Abdi argues the Sheriffs Department did not adequately train its

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deputies to properly assess whether there was any "reasonable suspicion" or "probable

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cause" to arrest and detain Abdi at the DUI checkpoint. (FAC ii 52.) Abdi further alleges

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that the Sheriffs Department failed to adequately train its deputies because they were

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deliberately indifferent to the "obvious consequences" of questioning dark-skinned

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individuals, or those with Middle Eastern names, about their religion and country of origin.

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(FAC iiii 52-53.) As such, the Sheriffs Department failure to train its deputies resulted in

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a deprivation of Abdi 's individual rights. (F AC ii 54.)

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However, Abdi failed to allege sufficient facts to demonstrate the Sheriffs

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Department failed to properly train its deputies or point out any deficiency in the existing

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training regime. A conclusory pleading, unsupported by factual allegations is insufficient

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to state a claim. Iqbal, 556 U.S. at 678 (2009); Twombly, 550 U.S. at 555. Specifically,

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Abdi does not point to any facts showing how the failure to train amounts to the Sheriffs

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Department deliberate indifference to his individual rights. Instead, Abdi basis his

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argument on a single incident occurring at a DUI checkpoint as the basis for a failure to

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train claim.

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Accordingly, the Court GRANTS Defendants' Motion and DISMISSES Plaintiffs'
fourth claim with leave to amend.

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4.

Sixth Cause of Action-Battery.

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In his Opposition to Defendants' Motion, Abdi agrees to withdraw his sixth cause

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of action for battery. (Doc. No. 7 at 3.) Defendants have no objection to the dismissal of

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the sixth cause of action for battery. (Doc. No. 9 at 1). 9

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In the Opposition, Abdi also agreed to file a Joint Motion to Dismiss the Sheriffs
Department as a defendant in this matter. (Doc. No. 7 at 3.) However, as of the date of
this Order, the Court has not received said joint motion from the parties. Until said joint
motion is received, the Court declines to dismiss the Sheriffs Department or Sheriff Gore
as defendants in this matter.
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Accordingly, the Court GRANTS Defendants' Motion and DISMISSES Plaintiffs'
sixth claim without prejudice.

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V. CONCLUSION
Defendant County's motion to dismiss is GRANTED. As stated above, the Court
grants Defendant's motion to dismiss without prejudice.
IT IS SO ORDERED.
Dated: November~ 2018

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