McCoy v. City of Vallejo ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KORI MCCOY, individually and as Co- No. 2:19-cv-001191-JAM- Successor-in-Interest to Decedent CKD 11 WILLIE MCCOY; et al., 12 Plaintiffs, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANTS’ MOTION TO 14 CITY OF VALLEJO, et al., DISMISS 15 Defendants. 16 On February 9, 2019, City of Vallejo Police Officers fatally 17 shot 20-year-old Willie McCoy fifty-five times while he sat 18 unconscious in his vehicle. Compl., ECF No. 1, ¶ 1. McCoy’s 19 siblings (collectively, “Plaintiffs”) filed a suit against the 20 City of Vallejo and individual police officers (collectively, 21 “Defendants”). Id. ¶¶ 12-21. Plaintiffs’ complaint alleges six 22 causes of action, including various allegations under 42 U.S.C. 23 Section 1983 and under the laws of California. Id. ¶¶ 48-69. 24 Defendants move to dismiss individual defendants Greg Nyhoff 25 and Andrew Bidou in their official capacities, as well as 26 Plaintiffs’ Section 1983 municipal liability claim under Monell 27 v. Dept. of Social Services, 436 U.S. 658 (1978). Mot. to 28 1 Dismiss (“Mot.”), ECF No. 6. Plaintiffs filed an opposition, ECF 2 No. 8, in which they: opposed the dismissal of the Monell claim, 3 stipulated to the dismissal of defendant Nyhoff, and requested 4 leave to amend their claim as to defendant Bidou. Defendants 5 replied. Reply, ECF No. 9. For the reasons set forth below, the 6 Court GRANTS in part and DENIES in part Defendants’ Motion to 7 Dismiss.1 8 I. FACTUAL ALLEGATIONS 9 On February 9, 2019, Vallejo Police Officers responded to a 10 welfare check for an unconscious man, slumped over the steering 11 wheel of his car, at a Taco Bell drive-thru. Compl. ¶¶ 1,27. 12 When officers Mark Thompson, Collin Eaton, Jordan Patzer, Bryan 13 Glick, Anthony Romero-Cano, Ryan McMahon, and other yet-to-be 14 identified officers (collectively, “officers”), arrived on the 15 scene, they found 20-year old Willie McCoy still unconscious in 16 his car. Id. ¶¶ 2,27. The Officers approached McCoy’s car. Id. 17 McCoy had a handgun on his lap, however the magazine was visibly 18 removed. Id. One of the officers commanded his fellow officers 19 to shoot McCoy, if he moved. Id. Once McCoy began to rouse from 20 his unconscious state, the Officers used deadly force, shooting 21 him fifty-five times. Id. McCoy died on the scene. Id. 22 23 II. OPINION 24 A. Legal Standard 25 Federal Rule of Civil Procedure 8(a)(2) requires “a short 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for January 14, 2020. 1 and plain statement of the claim showing that the pleader is 2 entitled to relief.” A suit must be dismissed if the plaintiff 3 fails to “state a claim upon which relief can be granted.” Fed. 4 R. Civ. Proc. 12(b)(6). To defeat a Rule 12(b)(6) motion to 5 dismiss, a plaintiff must “plead enough facts to state a claim 6 to relief that is plausible on its face.” Bell Atlantic Corp. 7 v. Twmobly, 550 U.S. 544, 570 (2007). This plausibility 8 standard requires “factual content that allows the court to draw 9 a reasonable inference that the defendant is liable for the 10 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 11 (2009). 12 “At this stage, the Court ‘must accept as true all of the 13 allegations contained in a complaint.’” Id. But it need not 14 “accept as true a legal conclusion couched as a factual 15 allegation.” Id. In dismissals for failure to state a claim, 16 leave to amend the pleading should be granted, unless a 17 “pleading could not possibly be cured by the allegation of other 18 facts.” Cooks, Perkiss, & Leiche, Inc. v. N. Cal. Collection 19 Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). 20 B. Analysis 21 1. Monell Claim 22 Municipalities can be sued directly under 42 U.S.C. § 1983 23 for an unconstitutional custom, policy, or practice. Monell, 24 436 U.S. at 690. To establish municipal liability, a plaintiff 25 must show (1) he possessed a constitutional right and was 26 deprived of that right, (2) the municipality had a policy, 27 (3) the policy amounts to deliberate indifference to the 28 plaintiff’s constitutional right, and (4) the policy was the 1 moving force behind the constitutional violation. Sweiha v. 2 Cnty. of Alameda, No. 19-CV-03098-LB, 2019 WL 48482227 (N.D. 3 Cal. Oct. 1, 2019) (citing Plumeau v. Sch. Dist. No. 40 Cnty. of 4 Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). A plaintiff can 5 establish the existence of a policy or custom with: (1) proof 6 that a municipal employee committed the alleged constitutional 7 violation pursuant to a formal government policy, or a 8 “longstanding practice or custom,” which constitutes the 9 standard operating procedure of the local government entity; 10 (2) proof that the individual who committed the constitutional 11 tort was an official with final policy-making authority and that 12 the challenged conduct was thus an act of official government 13 policy; or (3) proof that an official with “final policymaking 14 authority” ratified a subordinate’s unconstitutional decision or 15 action and the basis for it. Gillete v. Delmore, 979 F.2d 1342, 16 1346-47 (9th Cir. 1992). Plaintiffs only assert a Monell claim 17 under the first and third theories. Compl. ¶¶ 52-63; Opp’n at 18 9. 19 Failure to train may give rise to a Monell claim under a 20 theory of “longstanding practice or custom.” City of Canton, 21 Ohio v. Harris, 489 U.S. 378, 388 (1989). However, “a 22 municipality’s culpability for a deprivation of rights is at its 23 most tenuous where a claim turns on a failure to train.” 24 Connick v. Thompson, 536 U.S. 51, 61 (2011). Therefore, 25 inadequacy of police training may only give rise to Section 1983 26 liability when it “amounts to deliberate indifference to the 27 rights of persons with whom the police come into contact.” City 28 of Canton, 489 U.S. at 388. A plaintiff may also prove the 1 existence of a “longstanding practice or custom” with “evidence 2 of repeated constitutional violations for which the errant 3 municipal officials were not discharged or reprimanded.” 4 Gillette v. Delmore, 979 F.2d 1342, 1349 (9th Cir. 1992). 5 An isolated constitutional violation can give rise to 6 municipal liability under a theory of ratification by a person 7 with “final policymaking authority.” Christie v. Iopa, 176 F.3d 8 1231, 1238 (9th Cir. 1999). In determining what constitutes 9 final policymaking authority, “delegating discretion is not 10 equivalent to delegating final policymaking authority.” Id. at 11 1239. Moreover, to show ratification, a plaintiff must prove 12 “that the authorized policymakers approve a subordinate’s 13 decision and the basis for it.” Id. (quoting City of St. Louis 14 v. Praprotnik, 485 U.S. 112, 127 (1988)). Therefore, 15 ratification requires knowledge of the alleged constitutional 16 deprivation. Id. 17 The crux of Plaintiffs claim is that the Vallejo Police 18 Department (“VPD”) has a pattern and practice of using excessive 19 force, giving rise to Monell liability under the theories of 20 inadequate training and ratification. Id. As support, 21 Plaintiffs adduce twenty-one incidents in which VPD officers 22 allegedly used excessive force. Id. ¶ 41. Six of those 23 incidents involve officer-related shootings; one of those 24 involve an officer that shot McCoy, Officer McMahon. Id. 25 Defendants contend that Plaintiffs “have failed to allege facts 26 that, if proven, would support a Monell claim under either 27 theory.” Mot. 4-5. Specifically, Defendants argue Plaintiffs’ 28 claim should be dismissed because their allegations are not 1 sufficiently plead and not sufficiently similar. Id. at 6-7. 2 a. Sufficient Allegations 3 The Parties differ on the level of scrutiny that should be 4 applied to allegations when facing a Rule 12(b)(6) motion. 5 Plaintiffs believe a relaxed standard may be applied, allowing 6 claims that are “based on nothing more than a bare allegation. 7 . . .” Opp’n at 9-10 (quoting Galbraith v. Cnty. of Santa 8 Clara, 307 F.3d 1119, 1127 (9th Cir. 2002)). Defendants argue 9 this standard no longer applies. Reply at 2-3. 10 The Ninth Circuit had previously interpreted claims of 11 municipal liability under Section 1983 “based on nothing more 12 than a bare allegation that the individual officers’ conduct 13 conformed to official policy, custom, or practice,” as 14 “sufficient to withstand a motion to dismiss.” Galbraith, 307 15 F.3d at 1127. However, the Ninth Circuit has since established 16 two more stringent principles. 17 First, “to be entitled to the presumption of truth, 18 allegations in a complaint . . . may not simply recite the 19 elements of a cause of action but must contain sufficient 20 allegations of underlying facts to give fair notice and to 21 enable the opposing party to defend itself effectively.” Starr 22 v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011). Second, those 23 allegations taken as true, “must plausibly suggest an 24 entitlement to relief, such that it is not unfair to require the 25 opposing party to be subjected to the expense of discovery and 26 continued litigation.” Id. These principles “appl[y] to Monell 27 claims.” AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 28 637 (9th Cir. 2012). This District has also recognized that 1 “the allegation of a casual relationship on ‘information and 2 belief’ may be sufficient at the motion to dismiss stage, where 3 the facts that might demonstrate the causal connection . . . are 4 not available to the pleading party prior to discovery.” 5 Philips v. County of Fresno, No. 1:13-cv-0538, 2013 WL 6243278, 6 at *10 (E.D. Cal. Dec. 3, 2013). 7 Defendants argue Plaintiffs’ allegations do not withstand 8 requisite pleading standards, since they are lawsuits and claims 9 against the VPD that have “not result[ed] in a finding or 10 admission of any wrongdoing.” Mot. at 7. They cite a string of 11 cases within the Ninth Circuit and other circuits, finding that 12 lawsuits alone without more fail to demonstrate Monell 13 liability. Mot. at 5; see, e.g., Davis v. Clearlake Police 14 Dep’t, No. C-07-033365 EDL, 2008 WL 4104344, at *8 (N.D. Cal. 15 Sept. 3, 2008); Gillam v. City of Vallejo, No. 2:14-CV-2217-KJM- 16 KJN PS, 2016 WL 4059184 (E.D. Cal. May 27, 2016); Whitfield v. 17 City of Newburgh, No. 08-CV-8516 RKE, 2015 WL 9275695 (S.D.N.Y. 18 Dec 17, 2015). The cases Defendants rely on, however, have made 19 this finding on motions for summary judgment—not on motions to 20 dismiss. See, e.g., Davis, 2008 WL 4104344 at *3. 21 The standards for review under summary judgment greatly 22 differ from those of a motion to dismiss. A motion for summary 23 judgment under Fed. R. Civ. P. 56(a) is concerned with the 24 evidence or absence of evidence supporting the nonmoving party’s 25 case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A 26 motion to dismiss, on the other hand, is only concerned with 27 whether there are “‘enough fact[s] to raise a reasonable 28 expectation that discovery will reveal evidence’ to support the 1 allegations.” Starr, 652 F.3d at 1217 (quoting Twombly, 550 2 U.S. at 556). Therefore, in light of this standard the court 3 finds Plaintiffs’ allegations “satisfy the [pleading] standard 4 of Rule 8(a).” Id. at 1216. 5 First, Plaintiffs “make detailed factual allegations that 6 go well beyond reciting the elements of a [Monell Claim].” 7 Starr, 652 F.3d at 1217. Plaintiffs specifically allege 8 numerous incidents—twenty-one to be precise—in which the VPD 9 used excessive force. Compl. ¶¶ 41(a)-(u). These instances 10 “are listed for the purpose of demonstrating [the City of 11 Vallejo’s] awareness of this pattern . . . and its ongoing 12 failure to supervise, discipline and/or retrain the officers who 13 engage in such conduct, as evidence of . . . a custom, policy or 14 practice that is encouraged and ratified by the City.” Opp’n at 15 4. The allegations are “sufficiently detailed,” to give 16 Defendants “fair notice” granting them the opportunity “to 17 defend [themselves] effectively.” Starr, 652 F.3d at 1217. 18 Accordingly, Plaintiffs’ allegations are entitled to the 19 presumption of truth. Id. 20 Second, these allegations plausibly suggest that Defendants 21 were aware of this pattern of “failure to discipline or retrain 22 Defendant Officers,” and that the failure itself “serves as 23 ratification of Defendants’ policy violations and unlawful 24 conduct.” Opp’n at 11. Defendants have not provided an 25 “alternative explanation” that would require the Court to 26 conclude Plaintiffs’ explanation “is not a plausible 27 conclusion.” Starr, 652 F.3d at 1216 (quoting Iqbal, 129 S.Ct. 28 at 1951-52). Rather, Defendants merely argue these allegations 1 are unsubstantiated because of their nature as lawsuits that 2 have not resulted in findings of wrongdoing. Mot. at 7. At 3 this stage, “Plaintiff’s explanation [need not] be true or even 4 probable,” rather “[t]he factual allegations of the complaint 5 need only ‘plausibly suggest an entitlement to relief.’” Starr, 6 652 F.3d at 1217 (quoting Iqbal, 129 S.Ct. at 1951). 7 Accordingly, the Court finds the allegations in Plaintiffs’ 8 complaint satisfy the requisite pleading standard. 9 b. Sufficient Similarity 10 Defendants further argue Plaintiffs’ allegations are not 11 sufficiently similar to the facts in this case to establish a 12 Monell claim. Mot. at 7-8. The Court disagrees. 13 A Monell claim premised under a failure to train requires 14 “a pattern of similar constitutional violations by untrained 15 employees” to demonstrate “deliberate indifference.” Connick, 16 563 U.S. at 62. Otherwise, “without notice that a course of 17 training is deficient in a particular respect, decisionmakers 18 can hardly be said to have deliberately chosen a training 19 program that will cause violations of constitutional rights.” 20 Id. Both Parties embrace Magistrate Judge Kim’s analysis, from 21 the Northern District of California, in Breen v. City of 22 Concord, et al., USNDC Case No. 3:19-cv-05622-SK, ECF No. 19 23 (N.D. Cal. Dec. 10, 2019). Opp’n at 13; Reply at 5. They ask 24 the Court to do the same. Id. Although that decision is not 25 binding, the Court adopts this analysis since it comports with 26 Ninth Circuit precedent. See e.g., Meehan v. Cnty. of Los 27 Angeles, 856 F.2d 102, 107 (9th Cir. 1988) (Cited in Breen, 28 3:19-cv-05622-SK at *5). 1 In Breen, the plaintiff sued the City of Concord for 2 municipal liability under Monell after two police officers 3 punched him, kicked him, and slammed his face, while he was 4 handcuffed in the police station. Id. at *1. Plaintiff adduced 5 five other cases where City of Concord police officers were 6 accused of violent beatings; two of those involved one of the 7 police officers in question. Id. at 5. Judge Kim found these 8 cases to be “factually pertinent” and “more than sufficient to 9 survive Defendants’ motion to dismiss.” Id. at 5-6. 10 Plaintiffs’ believe the incidents they included in their 11 complaint are just as “factually pertinent” as those of the 12 Plaintiff in Breen, Opp’n at 13, while Defendants contend the 13 opposite, Reply at 5. Defendants argue the instances 14 Plaintiffs’ refer to have “markedly different facts,” since only 15 six of the twenty-one incidents “concern officer-involved 16 shootings.” Reply at 5. They further argue that even those 17 involving shootings are not sufficiently similar, since “[n]one 18 involved the circumstances here: multiple officers coming upon a 19 subject with a gun in his lap.” Id. at 5-6. But the Plaintiff 20 in Breen also did not cite cases that involved exactly two 21 police officers, punching, kicking, and slamming a plaintiff 22 against the head in a police department while handcuffed. 23 Instead, the cases the Breen plaintiff offered involved use of 24 force incidents under different circumstances such as: tasing, 25 breaking someone’s neck, elbowing, rear-ending someone, etc. 26 Breen, USNDC Case No. 3:19-cv-05622-SK, ECF No. 1 (“Breen 27 Compl.”) ¶¶ 31(a)-(f). Yet, Judge Kim still found these 28 “factually pertinent” enough to survive a motion to dismiss, 1 because they all involved “brutal beatings administered by 2 officers similar to the one Plaintiff alleges he suffered.” 3 Breen, 3:19-cv-05622-SK at *5-6. 4 Here too, the Court finds the six incidents involving 5 officer shootings, are just as factually pertinent to the facts 6 at hand to survive a motion to dismiss. All six of those 7 incidents involve deadly officer shootings. Compl. ¶¶ 41(a)- 8 (d), (j), (o). McCoy was also shot to death by police officers. 9 Id. ¶ 1. Moreover, as was the case in Breen, one of these 10 incidents also involves one of the police officers in question: 11 Officer McMahon. Compl. ¶ 41(o). That fact is absent in 12 Defendants’ Motion and Reply. See generally Mot. and Reply. 13 Defendants’ attempt to differentiate these instances through 14 surrounding circumstance, such as how Officer McMahon’s other 15 shooting was during a bicycle stop, is unavailing. Reply at 5. 16 Breen did not require that level of similarity; these incidents 17 are sufficiently similar to survive a motion to dismiss. 18 c. Conclusion 19 The Court finds Plaintiffs allegations are sufficiently 20 plead and sufficiently similar to survive a 12(b)(6) motion to 21 dismiss. Accordingly, the Court DENIES Defendants’ motion to 22 dismiss Plaintiffs’ Section 1983 municipal liability claim under 23 Monell. 24 2. Dismissal of Defendants Bidou and Nyhoff 25 It is well-established that official-capacity suits 26 “generally represent only another way of pleading an action 27 against an entity of which an officer is an agent.” Hafer v. 28 Melo, 502 U.S. 21, 25 (9th Cir. 1991). Accordingly, a defendant 1 that has been sued in an official capacity alongside the entity, 2 may be dismissed “as a redundant defendant.” Center For Bio- 3 Ethical Reform, Inc. v. L.A. County Sheriff Dept., 533 F.3d 780, 4 786 (9th Cir. 2008). 5 Defendants request that individual Defendants Bidou and 6 Nyhoff be dismissed as redundant because Plaintiffs have sued 7 them in their official capacity, alongside the City of Vallejo. 8 Mot. at 11; Compl. ¶¶ 12-14. Plaintiffs stipulate to Defendant 9 Nyhoff’s dismissal, primarily because he was misrepresented as 10 “the final decision-maker for the Vallejo Police Department.” 11 Opp’n at 13. Although they do not stipulate to Defendant 12 Bidou’s dismissal, Plaintiffs do not dispute that they 13 “improperly listed” his capacity. Opp’n at 13. Accordingly, 14 the Court DISMISSES both individual Defendants. Because 15 Plaintiffs stipulate to Nyhoff’s dismissal, he is dismissed WITH 16 PREJUDICE. For the reasons discussed below, Bidou is dismissed 17 WITHOUT PREJUDICE. 18 3. Leave to Amend 19 Plaintiffs request leave to amend their Complaint “to sue 20 Chief Bidou in his individual capacity as the final decision- 21 maker related to the subject incident.” Opp’n at 13. 22 Defendants object, arguing “this would be an invalid and futile 23 amendment.” Reply at 6. The Court disagrees. 24 Under Fed. R. Civ. Proc. 15(a), leave to amend “shall be 25 freely given when justice so requires.” The Ninth Circuit has 26 “repeatedly stressed” that the Court must adhere to “the 27 underlying purpose of Rule 15 . . . to facilitate decision on 28 the merits, rather than on the pleadings or technicalities.” 1 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 2 Accordingly, leave to amend should be granted, “unless [the 3 Court] determines that a pleading could not possibly be cured by 4 the allegation of other facts.” Id. (citing Doe v. U.S., 58 5 F.3d 494, 497 (9th Cir. 1995)). 6 Defendants believe Plaintiffs’ claim against Chief Bidou 7 could not be cured by including him as a defendant in his 8 individual capacity, since “Monell is a cause of action against 9 public entities; not individuals.” Reply at 6. They further 10 argue, the only way Plaintiffs could sue him in his individual 11 capacity would be for supervisory liability under Starr, 652 12 F.3d at 1207-208. Id. at 6-7. Nevertheless, they maintain 13 amending to a supervisor liability claim should not be allowed 14 because Plaintiffs have not “proffered any such facts.” Id. at 15 6. But by pinpointing a theory that could cure an individual 16 capacity claim, Defendants have demonstrated amendment would not 17 be futile. Leave to amend would allow Plaintiffs the 18 opportunity to proffer the facts necessary for a supervisor 19 liability claim, should they choose to do so. Accordingly, the 20 Court GRANTS Plaintiffs’ request for leave to amend to add Chief 21 Bidou. 22 III. ORDER 23 For the reasons set forth above, the Court GRANTS in part 24 and DENIES in part Defendants’ motion to dismiss. The Court: 25 1. DENIES Defendants’ motion to dismiss the Monell Claim; 26 2. GRANTS Defendants’ motion to dismiss Defendant Nyhoff 27 WITH Prejudice ; and 28 3. GRANTS Defendants’ motion to dismiss Defendant Bidou 1 WITHOUT Prejudice. 2 If Plaintiffs elect to amend the complaint, they shall file 3 an Amended Complaint within twenty days of this Order. 4 Defendants’ responsive pleading is due twenty days thereafter. 5 IT IS SO ORDERED. 6 Dated: January 22, 2020 kA Geren aaa pebrsacr 00k 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14