Davis et al v. City of National City et al

Filing 44

ORDER: (1) Granting in Part County Defendants' Motion to Dismiss, (Doc. No. 16 ) (2) Granting Plaintiffs' Motion for Leave to Amend Complaint (Doc. No. 28 ). The Court grants the Defendants' motion to dismiss Plaintiffs' complai nt in part. Moreover, the Court also grants Plaintiff's request for leave to amend. Plaintiffs will have 21 days from the date of this Order to file their amended complaint addressing the deficiencies noted herein. Signed by Judge Anthony J. Battaglia on 11/19/2020. (jrm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 TAMMY DAVIS, TANEKA McNEIL; MARQUIETA R. McNEIL, Plaintiffs, Case No.: 19-cv-00534-AJB-AHG ORDER: v. (1) GRANTING IN PART COUNTY DEFENDANTS’ MOTION TO DISMISS, (Doc. No. 16) CITY OF NATIONAL CITY, et al., Defendants. 16 (2) GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT, (Doc. No. 28) 17 18 19 20 Presently pending before the Court is San Diego Sheriff’s Deputy Davis Benner, 21 Deputy Jose De La Torre, Deputy Shiloh Frantz, Deputy Stephen Krieg, Deputy Gregory 22 Kurtz, Deputy Darius Palmer, Deputy Ryan Seabron, and Deputy Nicholas Sisto’s 23 (collectively, “County Defendants”) motion to dismiss the Complaint, (Doc. No. 1). (Doc. 24 No. 16.) Plaintiffs Tammy Davis, Taneka McNeil, and Marquieta R. McNeil (collectively, 25 “Plaintiffs”) filed an opposition to the motion. (Doc. No. 28.) County Defendants replied. 26 (Doc. No. 30.) For the reasons set forth below, the Court GRANTS County Defendants’ 27 motion to dismiss IN PART, and GRANTS Plaintiffs’ motion for leave to amend the 28 Complaint. 1 19-cv-00534-AJB-AHG 1 I. BACKGROUND 2 The following facts are taken from the Complaint and construed as true for the 3 limited purpose of resolving the instant motion. See Brown v. Elec. Arts, Inc., 724 F.3d 4 1235, 1247 (9th Cir. 2013). This case arises out of events leading to the death of Earl 5 McNeil (“Decedent”). On May 26, 2018, at 5:28 a.m., Decedent contacted National City 6 Police Department (“NCPD”) dispatch using an emergency telephone near the front door 7 of the police department. (Complaint (“Compl.”), Doc. No. 1 ¶ 2.) Decedent asked for 8 someone to come out front and said he wanted to turn himself in on a warrant. (Id.) He 9 additionally stated he was harboring homicidal ideations and was high on drugs. (Id.) Two 10 NCPD officers were the first to contact Decedent at the front of the station at 05:32 a.m. 11 (Id.) The first officer detained Decedent and placed him in handcuffs. (Id.) Decedent then 12 became agitated and began yelling and pulling away. When NCPD officers began a pat 13 down search of Decedent for weapons, Decedent lunged toward a railing. (Id.) He was 14 taken to the ground by NCPD officers. (Id.) 15 Decedent was searched and the officers found methamphetamine and a weapon on 16 Decedent’s person. (Id. ¶ 3.) NCPD officers affixed Decedent to a WRAP device—a 17 restraint system that constrains the detainee in a seated upright position, with the feet 18 stretched out straight in front and hands handcuffed behind the back. (Id.) The NCPD 19 officers also placed a surgical mask with medical-grade fabric over Decedent’s face and a 20 mesh protective sock over his head (“spit sock”). (Id. ¶ 4.) While constrained, Decedent 21 stated he could not breathe. (Id.) Four NCPD officers carried Decedent to a patrol SUV 22 and placed him in the back. (Id. ¶ 5.) Fifteen minutes elapsed from the officers’ first contact 23 with Decedent, until he was secured in the back of the police SUV at 05:47 a.m. (Id.) 24 Decedent was then driven to a holding facility in the National City Police Station and 25 remained in the vehicle for approximately one hour and fourteen minutes, while an officer 26 completed paperwork. (Id. ¶ 6.) 27 Two NCPD officers then drove Decedent at 7:05 a.m. to the San Diego Central Jail 28 (“SDCJ”). (Id. ¶ 6.) Upon arrival, NCPD officers and jail deputies placed Decedent on a 2 19-cv-00534-AJB-AHG 1 gurney and placed a second spit sock over the first spit sock. (Id. ¶ 8.) The deputies released 2 the chest to ankle strap of the WRAP so Decedent could lie flat on his stomach on the 3 gurney while the jail nurse began to examine him at 7:18 a.m. (Id.) The jail nurse noted 4 signs of potential excited delirium, an elevated temperature of 100°F, and a rapid pulse of 5 120 beats per minute. (Id.) The jail nurse declined to admit Decedent to jail and instead 6 referred him for a medical evaluation and a psychiatric evaluation at 7:26 a.m. (Id.) The 7 call for paramedics was made by NCPD dispatch. (Id.) Decedent continued to spit through 8 the two spit socks, which had become saturated with bodily fluids. (Id.) One of the deputies 9 pulled the collar of Decedent’s t-shirt up and held it up in front of Decedent’s face to shield 10 the deputies from further contact. (Id.) Decedent was taken inside the ambulance at 7:37 11 a.m. (Id. ¶ 9.) Upon arrival to the Emergency Department, Decedent was in pulseless 12 electrical activity and was intubated. (Id.) His condition continued to decline until his death 13 16 days later on June 11, 2018. (Id.) 14 On March 20, 2019, Plaintiffs filed a survival and wrongful death suit against 15 National City, various National City police officers, and the County Defendants. (Doc. No. 16 1.) Plaintiffs allege the following claims for relief against the County Defendants: (1) 28 17 U.S.C. § 1983 (“§ 1983”) unreasonable search and excessive force; (2) § 1983 failure to 18 provide medical care; (3) substantive due process; (4) § 1983 failure to supervise, train and 19 take corrective measures; and (6) California Bane Civil Rights Act (“Bane Act”), 20 California Civil Code § 52.1. County Defendants filed a motion to dismiss. (Doc. No. 16.) 21 Plaintiffs opposed. (Doc. No. 28.) This order follows. 22 II. LEGAL STANDARD 23 A. 24 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings 25 and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state 26 a claim upon which relief may be granted. See Navarro v. Block, 250 F.3d 729, 732 (9th 27 Cir. 2001). The Court may dismiss a complaint as a matter of law for: “(1) lack of 28 cognizable legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare 3 Motion to Dismiss 19-cv-00534-AJB-AHG 1 Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation 2 omitted). However, a complaint survives a motion to dismiss if it contains “enough facts 3 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 4 544, 570 (2007). 5 Notwithstanding this deference, the reviewing court need not accept legal 6 conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for 7 the court to assume “the [plaintiff] can prove [he or she] has not alleged . . ..” Associated 8 Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 9 (1983). On the other hand, “[w]hen there are well-pleaded factual allegations, a court 10 should assume their veracity and then determine whether they plausibly give rise to an 11 entitlement to relief.” Iqbal, 556 U.S. at 679. The Court only reviews the contents of the 12 complaint, accepting all factual allegations as true, and drawing all reasonable inferences 13 in favor of the nonmoving party. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). 14 County Defendants argue Plaintiffs’ Complaint fails to state a claim upon which relief may 15 be granted. (Doc. No. 16.) Thus, the Court considers the allegations in the Complaint and 16 draws all reasonable inferences in favor of Plaintiffs. 17 B. 18 Rule 15(a) governs leave to amend prior to trial. A party may amend its pleading 19 once as a matter of course within 21 days after serving it; or, if the pleading is one requiring 20 a response, within 21 days after service of the responsive pleading or motion. See Fed. R. 21 Civ. P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing 22 party’s written consent or with the court’s leave. The court should freely give leave when 23 justice so requires.” Fed. R. Civ. P. 15(a)(2). The grant or denial of leave to amend is in 24 the Court’s discretion. See Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). 25 “In exercising this discretion, a court must be guided by the underlying purpose of Rule 15 26 to facilitate decision on the merits, rather than on the pleadings or technicalities.” United 27 States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). Consequently, the policy in favor of 28 granting leave to amend is applied with extreme liberality. See Foman v. David, 371 U.S. 4 Motion for Leave to Amend the Complaint 19-cv-00534-AJB-AHG 1 178, 181–82 (1962). 2 III. DISCUSSION 3 After County Defendants’ motion to dismiss was filed, Plaintiffs filed an opposition, 4 wherein Plaintiffs asks the Court for leave to amend the Complaint. (Doc. No. 28.) County 5 Defendants’ reply in support of the motion to dismiss, (Doc. No. 30), does not raise 6 objections to Plaintiffs’ request for leave to amend the Complaint. After review of the 7 parties’ arguments, and with consideration for judicial economy, the Court finds it 8 appropriate to address County Defendants’ motion to dismiss. Thus, the Court will first 9 begin with the motion to dismiss and will then turn to Plaintiffs’ request for leave to amend. 10 11 A. Motion to Dismiss 1. Standing 12 To start, County Defendants argue Plaintiffs Tammy Davis (Decedent’s aunt), 13 Taneka McNeil (Decedent’s alleged putative spouse), and Marquieta R. McNeil 14 (Decedent’s surviving spouse) all lack standing to bring their § 1983 claims for excessive 15 force, for failure to provide medical care, for failure to supervise and train, and their claim 16 for violation of the Bane Act. (Doc. No. 16-1 at 10.) Specifically, County Defendants argue 17 that Plaintiffs cannot maintain an action for the alleged violation of constitutional rights 18 belonging to another person. (Id. at 11.) The Court will first address standing as to the 19 § 1983 claims, and will then turn to the claim under the Bane Act. 20 a) Plaintiffs’ Standing to Assert § 1983 Claims 21 Generally, the federally protected rights that are enforceable under § 1983 are 22 personal to the injured party. See Rose v. City of Los Angeles, 814 F. Supp. 878, 881 (C.D. 23 Cal. 1993) (internal quotations omitted). However, when a civil rights claim under § 1983 24 accrues before death, it may survive the decedent if state law authorizes a survival action. 25 See 42 U.S.C. § 1988; see also Robertson v. Wegman, 436 U.S. 584, 588–90 (1978). In 26 California, “a cause of action for or against a person is not lost by reason of the person’s 27 death.” Cal. Civ. Proc. § 377.20. A survival action may be brought by the decedent’s 28 5 19-cv-00534-AJB-AHG 1 personal representative or successor in interest. See Cal. Civ. Proc. § 377.30. “Where there 2 is no personal representative for the estate, the decedent’s ‘successor in interest’ may 3 prosecute the survival action if the person purporting to act as successor in interest satisfies 4 the requirements of California law.” Tatum v. City and County of S.F., 441 F.3d 1090, 1094 5 n.2 (9th Cir. 2006). A “successor in interest” is defined as “the beneficiary of the decedent’s 6 estate or other successor in interest who succeeds to a cause of action or to a particular item 7 of the property that is the subject of a cause of action.” Cal. Code Civ. P. § 377.11; Lickter 8 v. Lickter, 189 Cal. App. 4th 712, 722 (2010); see Wheeler v. City of Santa Clara, 894 F.3d 9 1046, 1052 (9th Cir. 2018). To establish a successor in interest relationship, a plaintiff must 10 submit an affidavit or declaration attesting to the fact that he or she is the decedent’s 11 successor in interest and attach the decedent’s death certificate. See Cal. Civ. Proc. § 377.32 12 (stating requirements of a successor in interest declaration). A plaintiff bears the burden of 13 demonstrating that they meet the state’s requirements for bringing a survival action. See 14 Byrd v. Guess, 137 F.3d 1126, 1131 (9th Cir. 1998), overruled on other grounds by 15 Nicholson v. City of Los Angeles, 935 F.3d 685, 696 (9th Cir. 2019). 16 17 18 19 In addition, California’s wrongful death statute similarly defines persons with standing to bring a claim: A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf: 20 21 22 23 24 25 26 27 (a) The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or . . . the persons . . . who would be entitled to the property of the decedent by intestate succession. (b) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents. As used in this subdivision, “putative spouse” means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid. Cal. Civ. Proc. Code § 377.60 (emphasis added). 28 6 19-cv-00534-AJB-AHG 1 Here, Plaintiffs establish that Decedent died intestate, and has no “personal 2 representative.” Therefore, only a “successor in interest” may pursue the survival claims 3 in this case. See Cal. Code Civ. P. § 377.30. A “successor in interest” is “the beneficiary 4 of the decedent’s estate . . . .” Id. at § 377.11. A “beneficiary of the decedent’s estate,” in 5 turn, is one who inherits under a will, or if there is no will, one who would inherit under 6 California Probate Code §§ 6401 and 6402. Id. at § 377.10. Those statutes provide for 7 inheritance by a married person as follows: (1) the surviving spouse; and (2) the child of 8 the decedent. See Cal. Probate Code §§ 6401(a), 6402(a). 9 (1) Taneka McNeil and Marquieta McNeil’s Standing 10 The Court will first address whether Plaintiffs Marquieta McNeil and Taneka 11 McNeil have established the necessary standing to maintain this action. County Defendants 12 argue that either Marquieta McNeil or Taneka McNeil may bring a claim, but not both 13 plaintiffs. (Doc. No. 30 at 4.) County Defendants also contend that to allow both spouses 14 to proceed with these claims would pervert the California statutory scheme which outlaws 15 bigamy, California Penal Code § 281. (Id. at 5.) 16 First, as to Marquieta McNeil, Plaintiffs offer Marquieta McNeil’s declaration, 17 wherein she declares she is the surviving legal spouse of Decedent. (Declaration of 18 Marquieta McNeil, Doc. No. 28-2 ¶ 2.) She further provides that Decedent died intestate 19 and did not leave any children. (Id. ¶ 4.) Marquieta McNeil also attaches Decedent’s death 20 certificate as well as the marriage certificate between Decedent and Marquieta McNeil. 21 (Id.) Upon a close review of Marquieta McNeil’s declaration, the Court finds that 22 Marquieta McNeil has satisfied the requirements under Cal. Civ. Proc. § 377.32 to establish 23 she is a successor in interest. Because Marquieta McNeil has demonstrated she is a 24 successor in interest as Decedent’s legal spouse, she accordingly may pursue a survival 25 claim under California law. See Cal. Code Civ. P. § 377.30. Thus, Marquieta McNeil has 26 pled standing at this juncture to maintain a civil rights claim under § 1983. See Robertson, 27 436 U.S. at 588–90 (1978) (holding a § 1983 action may survive the decedent if state law 28 authorizes a survival action). 7 19-cv-00534-AJB-AHG 1 Second, as to Taneka McNeil, Plaintiffs allege Taneka McNeil is a successor in 2 interest by virtue of her status as a putative spouse. (Declaration of Taneka McNeil, Doc. 3 No. 28-3 ¶ 2.) California law provides that where a marriage is void or voidable, but one 4 or more of the spouses believed, in good faith, that the marriage was valid, a court may 5 award the party the status of putative spouse. See Allen v. Western Conference of Teamsters 6 Pension Trust Fund, 788 F.2d 648, 650 (9th Cir. 1986) (referencing Cal. Fam. Code 7 § 2251). This status has been held to entitle the spouse to treat marital property as 8 community property, take by intestacy, and sue for wrongful death, among other 9 things. See id. 10 Generally, the good faith belief in the validity of marriage is a question of fact. See 11 Estate of Vargas, 36 Cal. App. 3d 714 (1974). In addition, courts in this Circuit have held 12 in the context of a § 1983 survival action that whether a putative spouse had a good faith 13 belief is a question of fact. See, e.g., Lawrence v. City of San Bernardino, No. CV04-00336 14 FMC SGLX, 2006 WL 5085247, at *7 (C.D. Cal. May 17, 2006) (denying the defendants’ 15 summary judgment based on a putative spouse’s lack of standing to bring a § 1983 survival 16 claim and a wrongful death claim). Circumstances considered in determining whether a 17 spouse had a good faith belief that the marriage was valid include: (1) the claimant’s 18 educational background; (2) the claimant’s degree of sophistication; (3) the claimant’s 19 familiarity and experience with marriage and divorce requirements and laws; (4) the 20 claimant’s reliance on assurances made by the bad faith party, and how those assurances 21 were affected by differences in the parties’ age, education, and sophistication; and (5) other 22 facts evidencing the claimant’s good faith belief in the marriage, such as standing in the 23 community, marriage documents, and family activities. See Spellens v. Spellens, 49 Cal. 24 2d 210 (1957). 25 Here, Plaintiffs assert that despite the fact that Marquieta McNeil was Decedent’s 26 lawful wife, Taneka McNeil had a good faith belief that she and Decedent were legally 27 married. (Declaration of Taneka McNeil, Doc. No. 28-3 ¶ 2.) Decedent and Taneka 28 McNeil’s wedding license reflects that she and Decedent’s marriage was solemnized on 8 19-cv-00534-AJB-AHG 1 June 1, 2010, at the Sacramento County Clerk/Recorder’s office. (Id.) Taneka McNeil also 2 states that she has been disabled since 2008 due to kidney disease/failure, lives on 3 $930/month SSI disability income, and was dependent on cash payments from Decedent 4 of about $20 to $200 every two to three weeks beginning in fall 2015. (Id.) Until his death 5 in June 2018, Taneka McNeil was unaware Decedent had any other wives. (Id.) 6 In the event that the Court does not dismiss both wives’ claims, County Defendants 7 argue in the alternative that the Court should hold an evidentiary hearing to determine 8 which surviving spouse has standing to bring these claims. However, County Defendants 9 do not cite any authority to support their position that only one spouse may have standing 10 to sue in a survival or a wrongful death action. The Court is also unaware of any case law 11 addressing this issue of competing survival claims between two spouses in the context of 12 a § 1983 action. The Court however notes that California law generally accords putative 13 spouses equal status with legal spouses. See, e.g., Estate of Hafner, 229 Cal. Rptr. 676 (Cal. 14 App. 1986) (putative spouse shares half of the estate with legal spouse as quasi-marital 15 property). But in any event, while the question of whether Taneka McNeil had a good faith 16 belief in the validity of her marriage is a question for a jury, the Court does not find that 17 Taneka McNeil has alleged enough at the pleading stage to determine whether she qualifies 18 as a putative spouse. Indeed, the Complaint lacks any allegation as to Taneka McNeil’s 19 putative spouse status, and her declaration fares no better. Although she attaches her 20 marriage license with Decedent, she only claims in a conclusory fashion she was unaware 21 of Decedent’s other marriage without any detail as to the circumstances which would give 22 rise to a good faith belief that she was the only spouse. Accordingly, the Court will 23 DISMISS Taneka McNeil’s claims WITH LEAVE TO AMEND to provide more 24 detailed facts. 25 (2) Tammy Davis 26 Next, County Defendants assert California law does not afford Tammy Davis 27 standing to bring claims individually for wrongful death, or as a successor in interest. 28 Plaintiffs do not address standing as to Davis in their opposition brief. (Doc. No. 28.) In 9 19-cv-00534-AJB-AHG 1 her declaration, Davis states she is authorized to act on behalf of Decedent’s successor in 2 interest under California Probate Code § 6401(c)(2). However, that code section does not 3 provide support for Davis. The property at issue would be considered Decedent’s separate 4 property, and under California Probate Code § 6401, a decedent’s surviving spouse is 5 entitled to the “entire intestate estate if the decedent did not leave any surviving issue, 6 parent, brother, sister, or issue of a deceased brother or sister.” Thus, there is no provision 7 under California law for an aunt to be a successor in interest. Id. Additionally, Davis does 8 not explain how she is somehow permitted to act on the surviving spouses’ behalf. Because 9 Davis is not a successor in interest of Decedent, and because there is no support for Davis’s 10 contention that she is authorized to act on behalf of either Marquieta McNeil or Taneka 11 McNeil, Davis does not have standing. Her claims are hereby DISMISSED WITHOUT 12 LEAVE TO AMEND. 13 b) Plaintiffs’ Standing to Assert Bane Act Claims 14 “The Bane Act is simply not a wrongful death provision.” Bay Area Rapid Transit 15 District v. Superior Court, 38 Cal. App. 4th 141, 144 (1995). The Bane Act “clearly 16 provides for a personal cause of action for the victim of a hate crime,” and “is limited to 17 plaintiffs who themselves have been the subject of violence or threats.” Id. (emphasis in 18 original). Bresaz v. Cty. of Santa Clara, 136 F. Supp. 3d 1125, 1138 (N.D. Cal. 2015) 19 (dismissing Bane Act claim with prejudice for lack of standing). In the instant case, 20 Plaintiffs have not established that they “themselves have been the subject of violence or 21 threats.” Bay Area Rapid Transit District, 38 Cal. App. 4th at 144. County Defendants did 22 not deprive Plaintiffs of their own substantive due process rights by subjecting the Plaintiffs 23 to threats, intimidation, or coercion. Plaintiffs argue that Defendants deprived them of their 24 right of protection from bodily restraint or harm, from personal insult, from defamation, 25 and from injury to personal relation. (Compl. ¶ 20.) At most, Plaintiffs were deprived of 26 their substantive due process rights because of the acts or threat of acts of violence 27 allegedly committed by Defendants against Decedent. This type of “derivative liability” 28 10 19-cv-00534-AJB-AHG 1 claim is not actionable under the Bane Act. See Bay Area Rapid Transit District, 38 Cal. 2 App. 4th at 144–45. 3 For the reasons stated above, the Court GRANTS County Defendants’ motion to 4 dismiss Plaintiffs’ claim under the Bane Act. Moreover, the Court finds this claim barred 5 as a matter of law and is therefore dismissed WITHOUT LEAVE TO AMEND. 6 See Lopez, 203 F.3d at 1130 (court may dismiss claim without leave to amend where 7 “pleading could not possibly be cured by the allegation of other facts.”) (internal quotation 8 marks omitted). 9 10 2. Sufficiency of Facts to Maintain § 1983 Claims 11 Next, County Defendants asks the Court to dismiss the § 1983 claims against them 12 for improper pleading, and for failure to state a cognizable legal theory. (Doc. No. 16-1 at 13 13.) Section 1983 imposes two essential proof requirements upon a claimant: (1) that a 14 person acting under color of state law committed the conduct at issue, and (2) that the 15 conduct deprived the claimant of some right, privilege, or immunity protected by the 16 Constitution or laws of the United States. See Parratt v. Taylor, 451 U.S. 527, 535 (1981), 17 overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 328 (1986). A plaintiff 18 cannot hold an officer liable “because of his membership in a group without a showing of 19 individual participation in the unlawful conduct.” Jones v. Williams, 297 F.3d 930, 935 20 (9th Cir. 2002) (internal citation omitted). Similarly, “a police officer who is merely a 21 bystander to his colleagues’ conduct cannot be found to have caused an injury.” Monteilh 22 v. County of Los Angeles, 820 F. Supp. 2d 1081, 1089 (C.D. Cal. 2011). “Instead, a plaintiff 23 must ‘establish the integral participation’ of the officers in the alleged constitutional 24 violation.” Id. (citing Jones, 297 F.3d at 935). A plaintiff can allege that a group of officers 25 participated in specific conduct, however, when it is “facially plausible” that multiple 26 individuals might partake in the conduct. Isakhanova v. Muniz, No. 15-CV-03759-TEH, 27 2016 WL 362397, at *4–5 (N.D. Cal. Jan. 29, 2016) (dismissing a claim because it was not 28 “facially plausible” that twelve police officers would search a plaintiff’s cell phone). 11 19-cv-00534-AJB-AHG 1 Here, the Complaint names seventeen defendants, including National City, eight 2 National City police officers, and eight San Diego County sheriff deputies. However, the 3 Complaint is replete with the improper lumping of defendants. For example, Plaintiffs 4 allege several conclusory statements broadly referencing “Defendants” generally. In these 5 instances, it is unclear whether Plaintiffs are referencing the National City defendants, or 6 the County Defendants, and additionally which specific individual defendant when 7 appropriate. As just a few examples of these improper pleading practices, Plaintiffs state 8 in their Complaint: “Defendants placed a surgical mask with medical-grade fabric and 9 mesh protective sock over [Decedent’s] head.” (Compl. ¶ 4); “Defendants’ actions” caused 10 Decedent’s medical condition based on a failure to summon medical care (Compl. ¶ 12); 11 that “Defendants” prevented Decedent’s booking into the jail “where Deputy Sheriffs could 12 summon immediate medical care” (id. ¶ 34). At other times, Plaintiffs reference 13 “Defendants” but refer to actions by National City and its officers. (See e.g., id. ¶ 15 14 (referencing the arrest and holding of decedent for two hours).) Thus, in light of Plaintiffs’ 15 improper pleading practices, the Court GRANTS County Defendants’ motion to dismiss 16 Plaintiffs’ § 1983 claims with LEAVE TO AMEND to add more specificity as to whether 17 the allegations refer to National City officers, County sheriffs, and where appropriate, 18 which specific individual officer. 19 In addition to raising the issue with the group pleading, County Defendants also 20 argue that Plaintiffs have not plausibly stated a claim for (1) excessive force, (2) deliberate 21 indifference to serious medical needs, (3) substantive due process, and (4) failure to 22 supervise, train, or take corrective measures. (Doc. No. 16-1 at 16.) However, the question 23 of whether Plaintiffs have plausibly stated these claims is one more appropriately addressed 24 after an amended complaint curing the group pleading deficiencies, should Plaintiffs 25 choose to file one. Furthermore, Plaintiffs seek to amend their “Fourth Cause of Action, 26 naming County Defendants who were supervisors at the San Diego County Central Jail for 27 Mr. Earl McNeil [sic] detention, arrest, and transportation.” (Doc. No. 28 at 14.) As to this 28 fourth claim, County Defendants argue that “the complaint is completely devoid of facts 12 19-cv-00534-AJB-AHG 1 indicating that the County Defendants are supervisors or setting forth prior instances 2 involving County Sheriff’s Deputies that should have put these specific Sheriff employees 3 on notice of a deficiency to supervise, train, or discipline.” (Doc. No. 16-1 at 20.) 4 Therefore, the Court will allow Plaintiffs leave to amend to add facts to adequately plead 5 their fourth claim. 6 3. Entitlement to Injunctive Relief 7 County Defendants additionally seek dismissal of Plaintiffs’ claim for injunctive 8 relief. (Doc. No. 1 at 22.) To obtain an injunction, Plaintiffs must establish that a “real or 9 immediate threat” exists that they will be wronged again. Los Angeles v. Lyons, 461 U.S. 10 95, 111 (1983). Where the activities sought to be enjoined have already occurred, the Court 11 cannot undo what has already been done, and there is no prospective harm to the plaintiffs, 12 the action is moot and no injunction can be granted. ICR Graduate Sch. V. Honig, 758 F. 13 Supp. 1350, 1354–55 (S.D. Cal. 1991). Here, Decedent has unfortunately already passed 14 away. As a result, Defendants’ alleged conduct cannot be repeated as to Decedent. 15 Therefore, an injunction is not an appropriate remedy. The motion to dismiss is 16 GRANTED and Plaintiffs’ claims for injunctive relief is DISMISSED WITHOUT 17 LEAVE TO AMEND. 18 B. 19 Having addressed Defendants’ motion, the Court now turns to Plaintiffs’ request for 20 leave to amend. Plaintiffs request leave to add new facts regarding Defendants’ use-of- 21 force policies to support a violation of use-of-force. (Doc. No. 28 at 2.) After review of the 22 proposed amendments, and finding no undue delay, bad faith, or dilatory motive, the Court 23 finds it appropriate to GRANT Plaintiffs’ leave to amend their Complaint. See 24 Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009) (“Where dismissal is 25 appropriate, a court should grant leave to amend unless the plaintiff could not possibly cure 26 the defects in the pleading.”). 27 // Plaintiff’s Request for Leave to Amend 28 13 19-cv-00534-AJB-AHG 1 IV. CONCLUSION 2 For the reasons stated above, the Court GRANTS the Defendants’ motion to dismiss 3 Plaintiffs’ complaint IN PART. (Doc. No. 16.) Moreover, the Court also GRANTS 4 Plaintiff’s request for leave to amend. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 5 1048, 1052 (9th Cir. 2003) (“Dismissal with prejudice and without leave to amend is not 6 appropriate unless it is clear . . . that the complaint could not be saved by amendment.”). 7 Plaintiffs will have twenty-one (21) days from the date of this Order to file their amended 8 complaint addressing the deficiencies noted herein. 9 10 IT IS SO ORDERED. 11 Dated: November 19, 2020 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 19-cv-00534-AJB-AHG

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