Weaver v. City of Stockton ( 2020 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 JAMES WEAVER, JR., on behalf No. 2:20-cv-00990-JAM-EFB of himself individually and 13 as guardian for his two children, JW III, a minor 14 child and LW, a minor child ORDER GRANTING IN PART AND and JAMES WEAVER SENIOR, on DENYING IN PART MOTION TO 15 behalf of his granddaughter, DISMISS AND DENYING MOTION TO JW a minor child, STRIKE 16 Plaintiffs, 17 v. 18 CITY OF STOCKTON, STOCKTON 19 POLICE DEPARTMENT, KEVIN HACHLER, ERIC JONES, and DOES 20 1 to 50, 21 Defendants. 22 23 On May 25, 2019, an off-duty Stockton Police Department 24 Officer, Kevin Hachler (“Officer Hachler”), arrested James Weaver 25 (“Weaver”), a Black man, at gunpoint while in the car with his 26 two children and niece (collectively “the children”). Weaver 27 then filed suit, on behalf of himself, as guardian for his two 28 children, and with his father, James Weaver, Senior, as guardian 1 for his niece (collectively “Plaintiffs”). Plaintiffs are suing 2 Officer Hachler, the Stockton Police Department, its Police 3 Chief, and the City of Stockton (collectively “Defendants”). 4 Compl., ECF No. 1. 5 Defendants now move to strike portions of Plaintiffs’ 6 Complaint, Mot. to Strike, ECF No. 5-1, and to dismiss 7 Plaintiffs’ claims, Mot. to Dismiss (“MTD”), ECF No. 4-1. 8 Plaintiffs oppose both motions. See Opp’n to Mot. to Strike, ECF 9 No. 8; see also Opp’n to MTD, ECF No. 7. For the reasons 10 asserted below, the Court GRANTS in part and DENIES in part 11 Defendants’ motion to dismiss and DENIES Defendants’ motion to 12 strike.1 13 14 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 15 On May 25, 2019, Weaver drove from his home in Reno, Nevada 16 to the City of Stockton, with his two children and young niece. 17 Compl. ¶ 14. Weaver towed a trailer, with the intent to buy a 18 car in Stockton and tow it back home to Reno. Id. 19 While on the highway, a car started to follow them. Id. 20 This car drove at an unsafe distance, unsafe speed, and unsafe 21 manner. Id. Weaver exited the highway into the City of Stockton 22 and the car followed. Id. The driver then ran out of the car 23 and pulled out his gun. Id. The driver turned out to be Officer 24 Hachler, who was off-duty and not in uniform. Id. Officer 25 Hachler pointed his gun at Weaver, assaulted him physically and 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 August 25, 2020. 1 threw him to the ground, all in the presence of the three 2 children. Id. Because Officer Hachler did not announce that he 3 was a police officer, Weaver thought he was being confronted by a 4 violent person that was going to rob him and shoot him. Id. at 5 ¶ 15. 6 Officer Hachler then summoned other members of the Stockton 7 Police Department to aid in arresting Weaver. Id. Officer 8 Hachler falsely accused Weaver of having assaulted him with a 9 deadly weapon in violation of California Penal Code § 245 and of 10 driving recklessly. Id. Weaver was then taken into custody at 11 the San Joaquin County Sheriff’s Department. Id. 12 Weaver’s two children and niece were also detained and taken 13 into custody at the San Joaquin County Sheriff’s Department. Id. 14 ¶ 16. The children were held until Weaver’s wife drove the 200 15 miles from Reno to Stockton, to retrieve them. Id. 16 Because of the arrest, Weaver’s car and trailer were impounded 17 and towed. Id. ¶ 17. He was also jailed, required to post a 18 large money bail to be released, and forced to travel to the City 19 of Stockton to attend Court. Id. However, the San Joaquin 20 County District Attorney declined to file any charges against 21 him. Id. 22 Close to a year later, Weaver filed this suit against 23 Defendants alleging violations of his and the children’s civil 24 and constitutional rights. See Compl. Specifically, Plaintiffs’ 25 allege the following six causes of action against Defendants: 26 (1) violation of the Fourth Amendment to the United States 27 Constitution, (2) violation of the Fourteenth Amendment to the 28 United States Constitution, (3) interference with Right of Equal 1 Protection and Due Process under Article I, § 7 of the California 2 Constitution, (4) False Arrest and False Imprisonment, 3 (5) violation of the Bane Act, and (6) Negligence. See Compl. 4 Defendants now seek to dismiss Plaintiffs’ claims.2 MTD at 1. 5 Defendants also seek to strike paragraph 25 and paragraph 27 in 6 Plaintiffs’ Complaint. 7 8 II. OPINION 9 A. Motion to Strike 10 1. Legal Standard 11 Federal Rule of Civil Procedure 12(f) permits a court to 12 “strike from a pleading . . . any redundant, immaterial, 13 impertinent, or scandalous matter.” Motions to strike are 14 “disfavored”; they “should not be granted unless the matter to 15 be stricken clearly could have no possible bearing on the 16 subject of the litigation.” Platte Anchor Bolt, Inc. v. IHI, 17 Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004) (citation 18 omitted). In ruling on a 12(f) motion, the Court must view the 19 pleadings in the light most favorable to the nonmoving party. 20 Id. 21 2. Analysis 22 Defendants allege that paragraphs 25 and 27 in Plaintiffs’ 23 Complaint “should be stricken for disclosing information learned 24 about Officer Hachler in violation of a protective order issued 25 [in a different matter].” Mot. to Strike at 5. Paragraph 25 26 2 The Court does not address the fourth, fifth, and sixth claims, 27 because Defendants’ arguments to dismiss those claims went beyond the Court’s page limitations. Order RE Filing Requirements, ECF 28 No. 3-2, at 1. 1 includes the following information: (1) Officer Hachler’s year 2 of employment, (2) that he has been the subject of citizens’ 3 complaints, and (3) the use of force Officer Hachler engaged in 4 against a “young Hispanic male” that is currently pending suit 5 in Duarte et al., v. City of Stockton, 2:19-cv-00007-MCE-CKD 6 (henceforth “Duarte Case”), in front of a different Judge within 7 this district. Compl. ¶ 25. Paragraph 27 alleges that the City 8 of Stockton, the Stockton Police Department, and its Police 9 Chief, ratified and approved Officer Hachler’s actions by: (1) 10 not considering pointing a gun to be use of force, (2) failing 11 to find that Officer Hachler’s use of force against Weaver were 12 against their policies, (3) failing to terminate or reprimand 13 Officer Hachler, and (4) failing to enact new policies that 14 would prevent use of force in the future. Id. ¶ 27. 15 Plaintiffs’ are currently represented by the same attorney 16 representing the plaintiff in the Duarte Case; Defendants are 17 also represented by the same counsel in both cases. Id. 18 Defendants believe that Plaintiffs obtained the information 19 alleged in those two paragraphs through their counsel, in 20 violation of a stipulated protective order in the Duarte Case. 21 Id. 22 The protective order encompasses “information where public 23 disclosure is likely to result in particularized harm, or where 24 public disclosure would violate privacy interests recognized by 25 law.” Mot. to Strike, Exh. A, Protective Order, ECF No. 5-2. 26 The order lists the following as examples of confidential 27 information: (a) personnel file records of any peace officer; 28 (b) medical records; (c) social security numbers and similar 1 sensitive identifying information. Id. Although not an 2 exhaustive list, the information at issue here is unlike those 3 examples. 4 As Plaintiffs contend, the information in paragraphs 25 and 5 27 is “general and not specific, and [does] not contain any 6 personal or specific information.” Opp’n to Mot. to Strike at 7 2. Moreover, Plaintiffs allege they obtained the information 8 through independent sources. Id. at 2-3. Indeed, a quick 9 internet search on this matter reveals Officer Hachler’s use of 10 force against Mr. Duarte. See Ken Mashinchi, Complaint Alleges 11 Racial Profiling, Assault in Stockton Cinco de Mayo Sideshow 12 Arrests, FOX 40 (Aug. 20, 2018), https://fox40.com/news/local- 13 news/complaint-alleges-racial-profiling-assault-in-stockton- 14 cinco-de-mayo-sideshow-arrests/. Lastly, paragraph 27 does not 15 involve any information regarding the Duarte Case—it describes 16 only the alleged ratification of Officer Hachler’s use of force 17 against Weaver. See Compl. ¶ 27. Therefore, the Court finds 18 neither paragraph is in violation of the Duarte protective 19 order.3 20 Defendants also argue the allegations in paragraph 25 and 21 27 should be stricken as “scandalous.” Mot. to Strike at 5. 22 “Allegations may be stricken as scandalous if the matter bears 23 24 3 Plaintiffs argue this motion is not ripe for adjudication because the issue of what the protective order encompasses as 25 confidential is currently under submission before Magistrate Judge Delaney. Opp’n to Mot. to Strike at 1. However, the Court 26 finds that holding, even if not yet issued, is not binding on 27 this Court. See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010)(“[W]hether to grant a motion to strike 28 lies within the sound discretion of the district court.”). 1 no possible relation to the controversy or may cause the 2 objecting party prejudice.” Wilkerson v. Butler, 229 F.R.D. 3 166, 170(E.D. Cal. 2005). Both paragraphs clearly relate to the 4 controversy at issue. And neither paragraph prejudices Officer 5 Hachler. Although Defendants cite cases to support the 6 contrary, those cases are distinguishable. See Reply to Mot. to 7 Strike, ECF No. 11, at 2-3. In Blodgett v. Allstate Ins. Co., 8 for instance, the court struck the allegations as scandalous 9 because it violated federal and state evidentiary rules. No. 10 2:11-CV-02408-MCE, 2012 WL 2377031, at *6 (E.D. Cal. June 22, 11 2012). In the other two cases Defendants rely on, the courts 12 found the allegations to be scandalous because they used 13 inflammatory language. See Schultz v. Braga, 290 F. Supp. 2d 14 637, 654–55 (D. Md. 2003), aff'd, 455 F.3d 470 (4th Cir. 2006) 15 (“[P]laintiffs have chosen to use inflammatory language . . . 16 [defendant’s] motion to strike will be granted.”); see also, 17 Rosembert v. Borough of E. Lansdowne, 14 F. Supp. 3d 631, 649 18 (E.D. Pa. 2014) (District Court striking as scandalous matter 19 allegations referring to the officers as “lying,” “corrupt,” and 20 “motivated by their greed and racist desires.”). In contrast, 21 the allegations at issue here are neither barred by evidentiary 22 law nor do they use inflammatory language. The Court therefore 23 does not find these allegations to be scandalous and DENIES 24 Defendants’ motion to strike. 25 B. Motion to Dismiss 26 1. Legal Standard 27 Federal Rule of Civil Procedure 8(a)(2) requires “a short 28 and plain statement of the claim showing that the pleader is 1 entitled to relief.” A suit must be dismissed if the plaintiff 2 fails to “state a claim upon which relief can be granted.” Fed. 3 R. Civ. Proc. 12(b)(6). To defeat a Rule 12(b)(6) motion to 4 dismiss, a plaintiff must “plead enough facts to state a claim 5 to relief that is plausible on its face.” Bell Atlantic Corp. 6 v. Twmobly, 550 U.S. 544, 570 (2007). This plausibility 7 standard requires “factual content that allows the court to draw 8 a reasonable inference that the defendant is liable for the 9 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 10 (2009). 11 “At this stage, the Court ‘must accept as true all of the 12 allegations contained in a complaint.’” Id. But it need not 13 “accept as true a legal conclusion couched as a factual 14 allegation.” Id. In dismissals for failure to state a claim, 15 leave to amend the pleading should be granted, unless “it is 16 clear that the complaint could not be saved by any amendment.” 17 Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003). 18 2. Analysis 19 a. Fourth Amendment Claim Against Officer Hachler 20 The Fourth Amendment protects against “unreasonable 21 searches and seizures.” Whren v. U.S., 517 U.S. 806 (1996). 22 Plaintiffs’ first claim alleges that Officer Hachler violated 23 the Fourth Amendment by utilizing “unreasonable force in 24 seizing, assaulting, and wrongfully arresting [Weaver], and in 25 seizing and wrongfully detaining [the children].” Compl. ¶ 30. 26 Defendants, however, ask the Court to dismiss this claim as 27 asserted against Officer Hachler, arguing that he is entitled to 28 qualified immunity. MTD at 4. 1 Qualified immunity provides “immunity from suit” rather 2 than just a defense to a liability. Saucier v. Katz, 533 U.S. 3 194, 200-01 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 4 526 (1985)). To determine whether Officer Hachler is entitled 5 to qualified immunity, the Court must evaluate: (1) whether the 6 facts, taken in the light most favorable to Plaintiffs, show 7 that Officer Hachler’s conduct violated a constitutional right, 8 and (2) whether that right was “clearly established” at the time 9 of the incident. Id. at 201. 10 (i) Violation of Constitutional Right 11 The Plaintiffs argue that determining whether Officer 12 Hachler violated their constitutional rights requires discovery. 13 Opp’n to MTD at 6 (citing Mitchell, 472 U.S. at 526). 14 Plaintiffs contend a decision of qualified immunity is therefore 15 “inappropriate at this juncture.” Opp’n to MTD at 6. The Court 16 disagrees. 17 Mitchell states, “a defendant pleading qualified immunity 18 is entitled to dismissal before the commencement of discovery,” 19 unless plaintiffs’ properly allege “a claim of violation of 20 clearly established law.” 472 U.S. at 526. The Court can 21 therefore grant qualified immunity at the motion to dismiss 22 stage, if it determines, based on the Complaint, that qualified 23 immunity is proper. O’Brien v. Welty, 818 F.3d 920, 936 (9th 24 Cir. 2016). Taking Plaintiffs’ allegations as true, the Court 25 finds that Officer Hachler violated their constitutional rights 26 and is not entitled to qualified immunity under this prong. 27 Cal. Penal Code § 830.1 grants police officers the 28 authority to make off-duty arrests as set forth in Cal. Penal 1 Code § 836. Johnson v. Lewis, 120 Cal. App. 4th 443, 454-55 2 (2004) (citing Inouye v. County of Los Angeles, 30 Cal. App. 4th 3 278, 284 (1994)). Under Section 836, a police officer may make 4 a warrantless arrest if he has “probable cause to believe that a 5 person to be arrested has committed a public offense in the 6 officer’s presence.” Cal. Penal Code § 836(a)(1). The Fourth 7 Amendment grants officers this same authority to make 8 warrantless arrests. Atwater v. City of Lago Vista, 532 U.S. 9 318, 354 (2001). 10 Plaintiffs do not dispute Officer Hachler’s off-duty 11 authority. And while they do argue “there are no facts within 12 the complaint under which probable cause for an arrest exists,” 13 Opp’n to MTD at 4, the crux of Plaintiffs’ Fourth Amendment 14 claim rests on Officer Hachler’s use of force, id. at 5. 15 Claims against law enforcement officials for use of 16 excessive force in the course of arrest are analyzed under the 17 Fourth Amendment’s “objective reasonableness” standard. Graham 18 v. Connor, 490 U.S. 386, 388 (1989). “Determining whether the 19 force used to effect a particular seizure is reasonable under 20 the Fourth Amendment requires a careful balancing of the nature 21 and quality of the intrusion on the individual’s Fourth 22 Amendment interests against the countervailing governmental 23 interests at stake.” Id. at 396. The first factor in 24 determining whether the force used was excessive, is the 25 severity of the force applied. Tekle v. U.S., 511 F.3d 839, 844 26 (2007). The second, and “most important factor,” is the need 27 for the force used. Id. This balancing test considers the 28 totality of the facts and circumstances, including: (1) the 1 severity of the crime at issue, (2) whether the suspect poses an 2 immediate threat to the safety of the officers or others, and 3 (3) whether he is actively resisting arrest or attempting to 4 evade arrest by flight. Id. 5 Defendants concede that “the pointing of a gun at someone 6 may constitute excessive force, even if it does not cause 7 physical injury.” MTD at 8 (quoting Espinoza v. City & Cty. of 8 San Francisco, 598 F.3d 528, 544 (9th Cir. 2010)). Therefore, 9 the severity of the force used was “a high level of force.” 10 Espinoza, 598 F.3d at 538 (“pointing a loaded gun at a suspect, 11 employing the threat of deadly force, is use of a high level of 12 force.”). As for the “need for the force used,” Plaintiffs’ 13 allege that although Weaver had committed no crime, Officer 14 Hachler arrested him and used unreasonable force by pointing his 15 gun and “assault[ing] him physically.” Compl. ¶ 14. Under 16 these facts, there was no need for force since (1) there was no 17 crime, (2) Weaver posed no immediate threat to anyone’s safety, 18 (3) and he was not actively attempting to resist arrest or flee. 19 The Court therefore finds the Complaint properly alleges that 20 Officer Hachler violated Plaintiffs’ constitutional rights by 21 using excessive force. 22 (ii) Clearly Established Right 23 In determining whether a right is clearly established, the 24 dispositive inquiry is whether based on the law at the time of 25 the conduct, the officer had fair notice that his conduct was 26 unlawful. Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018). While 27 a case need not be “directly on point for a right to be clearly 28 established, existing precedent must have placed the statutory 1 or constitutional question beyond debate.” Id. Put simply, 2 qualified immunity “protects all but the plainly incompetent or 3 those who knowingly violate the law.” Id. 4 Defendants argue that the law as it pertains to Officer 5 Hachler’s conduct was not clearly established, because there was 6 no case stating that “an officer who is off-duty, in plain 7 clothes, in his own private vehicle,” violates the Fourth 8 Amendment when displaying his firearm. MTD at 8. They argue 9 the only factual analogous case is a California Court of Appeals 10 case that held an off-duty arson investigator had the authority 11 to effectuate an arrest of a person who committed a traffic 12 violation in his presence. Id. (citing Johnson v. Lewis, 120 13 Cal. App. 4th 443, 453 (2004)). But the issue is not whether 14 Officer Hachler had the authority to arrest Weaver while off- 15 duty. Rather, the qualified immunity inquiry rests on whether 16 it was clearly established that it was unlawful for Officer 17 Hachler to point his gun at Weaver under these circumstances. 18 The Court finds Plaintiffs’ reliance on Tekle to be 19 instructive. Opp’n to MTD at 5. In Tekle, the Ninth Circuit 20 found that although there was no “prior case specifically 21 prohibiting the use of handcuffs and weapons by more than twenty 22 officers to subdue an unarmed eleven-year-old who is not 23 suspected of any wrongdoing and is cooperating,” the law was 24 nevertheless clearly established in that such conduct 25 constituted the use of excessive force. 511 F.3d at 847. The 26 court found it significant that the Ninth Circuit has “held 27 since 1984 that pointing a gun at a suspect’s head can 28 constitute excessive force in this circuit.” Id. The court 1 then cited cases holding as much and concluded that a 2 “reasonable officer would have known the force used against [the 3 plaintiff] violated his constitutional rights. . . even absent a 4 Ninth Circuit case presenting the same facts.” Id. 5 The instant case is also one of those obvious situations 6 where the “right’s contours were sufficiently definite that any 7 reasonable official in the defendant’s shoes would have 8 understood he was violating it.” Kisela, 138 S.Ct. at 1153 9 (citations omitted). The facts as currently plead allege that 10 Weaver posed no threat, did not fail to comply with any orders, 11 and was not attempting to flee. Officer Hachler simply drove up 12 behind Weaver and immediately got out of his car, pointing his 13 gun, without announcing that he was a police officer. Contra 14 MTD at 9 (citing United States v. Thompson, 558 F.2d 522, 524 15 (9th Cir. 1977) (“A police officer attempting to make an 16 investigatory detention may properly display some force when it 17 becomes apparent that an individual will not otherwise 18 comply.)). Under these facts, a reasonable officer would know 19 that it would be excessive force to point his gun while 20 effectuating the arrest. Espinoza, 598 at 544. 21 While it is true that clearly established law cannot be 22 defined “at a high level of generality,” Kisela, 138 S.Ct. at 23 1152, a case need not be “precisely on all fours on the facts 24 and law involved here,” Tekle, 511 F.3d at 847. And only “the 25 plainly incompetent” would assume that what is considered 26 unlawful force for an on-duty officer would not be considered 27 unlawful force for an off-duty officer. The Court therefore 28 denies dismissal of this claim on the grounds of qualified 1 immunity. 2 b. Fourteenth Amendment Claim 3 Under the Fourteenth Amendment's Due Process Clause, no 4 State may “deprive any person of life, liberty, or property, 5 without due process of law.” U.S. Const. Amend. XIV, § 2. The 6 substantive due process guarantee “protects against government 7 power arbitrarily and oppressively exercised.” County of 8 Sacramento v. Lewis, 523 U.S. 833, 846 (1998)(citing Daniels v. 9 Williams, 474 U.S. 327, 331(1986)). But “only the most 10 egregious official conduct can be said to be arbitrary in the 11 constitutional sense.” Id. (citation omitted). The threshold 12 question is therefore “whether the behavior of the governmental 13 officer is so egregious, so outrageous, that it may fairly be 14 said to shock the contemporary conscience.” Id. at 847 n.8. 15 Plaintiffs argue Officer Hachler’s actions on May 25, 2019 16 meet this threshold. Opp’n to MTD at 6. Defendants argue, on 17 the other hand, that this was “a daily routine occurrence . . . 18 a traffic stop and a resultant arrest of a suspected offender.” 19 MTD at 11. Plaintiffs contend that this argument is offensive. 20 Opp’n to MTD at 6. They state that “[a]ll citizens, including 21 Black Americans, have a fundamental right, not to be falsely 22 accused of violent felonies, [and] not to be arrested at the end 23 of a gun barrel in front of their children[.]” Id. 24 The Court does not take lightly that “[o]ur country is now 25 in the midst of a serious examination of the violations of due 26 process and equal protection rights of Black Americans.” Id. 27 The Court recognizes that “the burden of aggressive and 28 intrusive police action falls disproportionately on African- 1 American . . . males.” Washington v. Lambert, 98 F.3d 1181, 2 1187 (1996). 3 But under a substantive due process inquiry, the Court must 4 focus only on Plaintiffs’ substantive due process rights. And 5 while it may shock the Country’s conscience “to have Black 6 Americans singularly threatened with grave bodily injury and 7 even death, during routine traffic stops, by white police who 8 are charged to protect and serve all Americans,” Opp’n to MTD at 9 6, Officer Hachler’s behavior does not shock the conscience by 10 substantive due process standards. 11 Only something as egregious as forcibly pumping a suspect’s 12 stomach “offends due process as conduct ‘that shocks the 13 conscience’ and violates the ‘decencies of civilized conduct.’” 14 Rochin v. California, 324 U.S. 165, 172-73 (1952). The Supreme 15 Court has adhered to that benchmark since 1952. Lewis, 523 U.S. 16 at 846-847. This standard, therefore, does not impose liability 17 “whenever someone cloaked with state authority causes harm.” 18 Id. at 848. For that reason, even the wrongful arrest of a 19 father, subjected to verbal abuse, in front of his four and 20 eight-year-old children has been considered not to “shock the 21 conscience.” Rosenbaum v. Washoe County, 663 F.3d 1071, 1081 22 (2011). Likewise, Officer Hachler’s actions do not rise to the 23 level of a substantive due process violation. 24 Based on this binding precedent, the Court DISMISSES 25 Plaintiffs’ Fourteenth Amendment claim WITH PREJUDICE. 26 /// 27 /// 28 /// 1 c. Monell Claim 2 Municipalities can be sued directly under 42 U.S.C. § 1983 3 for an unconstitutional custom, policy, or practice. Monell v. 4 Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 5 (2018). A Monell claim can be based on three possible theories 6 by alleging that: (1) official policies or established customs 7 inflicted the alleged constitutional injury; (2) omissions or 8 failures to act reflected a local government policy of 9 deliberate indifference to the constitutional rights at issue; 10 or (3) that a city employee with final policy-making authority 11 ratified a subordinates unconstitutional act. Clouthier v. Cty. 12 of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir. 2010), 13 overruled on other grounds by Castro v. Cty. of Los Angeles, 833 14 F.3d 1060 (9th Cir. 2016). 15 Plaintiffs argue they “have pled municipal liability under 16 all three theories.” Opp’n to MTD at 7. Defendants seek to 17 dismiss Plaintiffs’ claim in its entirety. MTD at 13. However, 18 Defendants’ arguments run beyond the Court’s page limitations 19 for both their memorandum in support of the motion to dismiss 20 and their reply brief. As described in the issuance of 21 sanctions below, the Court will only address the arguments 22 Defendants made within the page limits. 23 (i) Stockton Police Department 24 As an initial matter, Defendants argue that the Stockton 25 Police Department should be dismissed because a “municipal 26 department is not generally considered a ‘person’ within the 27 meaning of Section 1983.” MTD at 2. Moreover, the City of 28 Stockton is already named, which makes this duplicative. Id. 1 Defendants rely on Vance v. County of Santa Clara, which found 2 that suing the Santa Clara Department of Corrections was 3 improper because “the term ‘persons’ does not encompass 4 municipal departments.” 98 F. Supp. 993 (N.D. Cal. 1996). 5 Plaintiffs, however, rely on a more recent case in the 6 Ninth Circuit finding that the Los Angeles County Sheriff’s 7 Department was subject to liability under Section 1983. Streit 8 v. County of Los Angeles, 236 F.3d 552, 565-67 (9th Cir. 2001); 9 see also Karim-Panahi v. Los Angeles, 839 F.2d 621, 624 n. 2 10 (9th Cir. 1988)(“Municipal police departments . . . can be sued 11 in federal court for alleged civil rights violations.”). The 12 Court is bound by this precedent. Defendants’ request to 13 dismiss the Stockton Police Department is therefore DENIED. 14 (ii) Custom or Policy 15 Absent a formal governmental policy, a plaintiff must show 16 a “longstanding practice or custom which constitutes the 17 standard operating procedure of the local government entity.” 18 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (citations 19 omitted). Liability for an improper custom “cannot be 20 predicated on isolated or sporadic events.” Id. Rather, “it 21 must be founded upon practices of sufficient duration, frequency 22 and consistency that the conduct has become a traditional method 23 of carrying out policy.” Id. 24 Plaintiffs allege that the Stockton Police Department has a 25 custom of not terminating officers “for unreasonable or 26 excessive force.” Opp’n to MTD at 7. They also allege that the 27 Stockton Police Department has a custom of not considering “the 28 drawing of a gun and pointing it at a civilian to be a use of 1 force, so that no use of force report is required.” Id. at 7-8. 2 But Defendants argue that although Plaintiffs “recite to 3 numerous news articles, unsworn allegations and settlements,” 4 and cases in their Complaint, “none of those alleged incidents 5 bear any resemblance whatsoever to the incident [presently] 6 before the Court.” MTD at 14. They therefore contend that 7 “none of these incidents demonstrate the precise link required 8 between the conduct that put the municipality on notice and the 9 alleged policy deficiency.” Id. In other words, Defendants 10 argue Plaintiffs “have not pled sufficient facts.” Id. at 13. 11 Previously, the Ninth Circuit interpreted claims of 12 municipal liability under Section 1983 “based on nothing more 13 than a bare allegation that the individual officers’ conduct 14 conformed to official policy, custom, or practice,” as 15 “sufficient to withstand a motion to dismiss.” AE ex rel. 16 Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012). 17 It has since changed course and adopted the same two principals 18 common to 12(b)(6) motions. Id. First, “to be entitled to the 19 presumption of truth, allegations in a complaint . . . may not 20 simply recite the elements of a cause of action but must contain 21 sufficient allegations of underlying facts to give fair notice 22 and to enable the opposing party to defend itself effectively.” 23 Id. (quoting Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 24 2011)). Second, those allegations taken as true, “must 25 plausibly suggest an entitlement to relief, such that it is not 26 unfair to require the opposing party to be subjected to the 27 expense of discovery and continued litigation.” Id. The Court 28 finds Plaintiffs’ have met this pleading standard. 1 First, Plaintiffs “make detailed factual allegations that 2 go well beyond reciting the elements of a [Monell Claim].” 3 Starr, 652 F.3d at 1217. Plaintiffs specifically allege fifteen 4 incidents in which officers of the Stockton Police Department 5 used excessive force, Compl. ¶ 24(i), including one incident 6 that involves Hachler himself using excessive force against 7 another individual. Id. ¶ 25(b). These lawsuits were filed “to 8 show Defendants’ practice of allowing excessive force to occur 9 and continue.” Opp’n to MTD at 8. This Court has previously 10 found that similar allegations are “‘sufficiently detailed,’ to 11 give Defendants ‘fair notice’ granting them the opportunity ‘to 12 defend [themselves] effectively.” McCoy v. City of Vallejo, No. 13 2:19-cv-001191-JAM-CKD, 2020 WL 374356, at * 3(E.D. Cal. January 14 23, 2020)(quoting Starr, 652 F.3d at 1217 and finding twenty-one 15 allegations of the Vallejo Police Department’s use of excessive 16 force to be sufficiently detailed for purpose of demonstrating 17 the city’s “awareness of this pattern”). Plaintiffs’ 18 allegations are therefore “entitled to the presumption of 19 truth.” Id. 20 Second, these allegations plausibly suggest that Defendants 21 were aware that “the department as a whole had [excessive force] 22 issues.” Opp’n to MTD at 8. And “[d]efendants have not 23 provided an ‘alternative explanation’ that would require the 24 Court to conclude Plaintiffs’ explanation ‘is not a plausible 25 conclusion’.” McCoy, 2020 WL 374356, at *3 (quoting Starr, 652 26 F.3d at 1216). Instead, Defendants simply argue “the incidents 27 they claim show a custom or practice . . . are all factually 28 dissimilar and temporally disconnected.” MTD at 15. But the 1 incidents do not need to be identical to establish plausibility 2 of a custom. A custom can be “inferred from . . . evidence of 3 repeated constitutional violations for which the errant 4 municipal officers were not discharged or reprimanded.” Opp’n 5 to MTD at 7; see also McCoy, 2020 WL 374356, at *2. And such an 6 inference can be made from the evidence Plaintiffs’ plead in 7 their Complaint. Accordingly, the Court finds the allegations 8 in Plaintiffs’ Complaint satisfy the requisite pleading standard 9 as to this theory. 10 (iii) Failure to Train 11 Failure to train can only serve as the basis for Section 12 1983 liability when it “amounts to deliberate indifference to 13 the rights of persons with whom the police come into contact.” 14 City of Canton, 489 U.S. 378, 388 (1989). 15 Defendants argue that Plaintiffs have failed “to identify 16 or state how or in what way the City’s Police Department failed 17 to properly train Officer Hachler.” MTD at 15. The rest of 18 their arguments, however, are beyond the Court’s page limits in 19 both of their briefs. Accordingly, based on this argument alone 20 the Court disagrees with Defendants. 21 Plaintiffs did identify how the Stockton Police Department 22 failed to properly train Officer Hachler. For instance, 23 Plaintiffs alleged that Officer Hachler’s actions “were 24 inconsistent, uncompliant, or not conforming [with] mandatory 25 training provided by the Commission on Peace Officer Standards 26 and Training.” Compl. ¶ 27(c). Plaintiffs’ also listed 27 “multiple cases of the use of excessive force by the Stockton 28 Police . . . where guns were pulled but not fired.” Opp’n to 1 MTD at 8 (citing Compl. ¶ 24(i)). Moreover, Plaintiffs’ allege 2 that even though pointing a gun constitutes excessive force, the 3 City of Stockton did not train nor require officers to consider 4 this a use of force or file use of force reports. Id. at 9. By 5 turning a “blind eye” on this issue, Plaintiffs allege that the 6 City of Stockton was deliberately indifferent. Id. 7 At this stage, “Plaintiff’s explanation [need not] be true 8 or even probable,” rather “[t]he factual allegations of the 9 complaint need only ‘plausibly suggest an entitlement to 10 relief.’” McCoy, 2020 WL 374356, at *3 (quoting Starr, 652 F.3d 11 at 1217). The Court finds Plaintiffs allegations make such a 12 suggestion. The Court therefore DENIES dismissal of the Monell 13 claim under this theory and under the other theories alleged 14 since they went unchallenged within the page limits. 15 d. Article 1 § 7 of the California Constitution 16 Plaintiffs’ third claim alleges Defendants’ violated their 17 right of equal protection and due process under Article I 18 Section 7 of the California Constitution. Compl. ¶ 41-48. That 19 section provides, “[a] person may not be deprived of life, 20 liberty, or property without due process of law.” Article 1 21 § 7(a). However, this provision does not by itself “afford a 22 right to seek damages to remedy the asserted violation of due 23 process liberty interest.” Katzberg v. Regents of University of 24 California, 29 Cal. 4th 300, 329 (2002). For this reason, 25 Defendants’ argue that Plaintiffs’ claim is not legally 26 cognizable and therefore fails. MTD at 13. 27 /// 28 /// 1 Plaintiffs, on the other hand, argue they are requesting 2 declaratory and injunctive relief—not damages. Opp’n to MTD at 3 10-11. This contradicts Plaintiffs’ Complaint, which also seeks 4 “compensatory damages” and “punitive damages” for Defendants’ 5 alleged violation of Article 1 Section 7. Compl. ¶ 48. 6 Therefore, this claim is DISMISSED WITH PREJUDICE, but only to 7 the extent it seeks damages. 8 3. Sanctions 9 The Court need not consider the rest of the arguments 10 raised in Defendants’ motion to dismiss and reply briefs because 11 they violate the Court’s page limits. The Court’s Order RE 12 Filing Requirements (“Order”) clearly states that for all 13 motions, other than those under Federal Rule of Civil Procedure 14 56 and 65, memoranda of law in support are limited to fifteen 15 (15) pages and reply memoranda are limited to (5) pages. Order 16 at 1. The Order also states that the Court does not consider 17 “any arguments made past the page limit.” Id. 18 Moreover, “violation of this Order [results] in monetary 19 sanctions [] against counsel in the amount of $50.00 per page 20 [past the page limit].” Id. Defendants’ memoranda of law in 21 support of their motion to dismiss is 19 pages (4 pages past the 22 limit) and their reply is 10 pages (5 pages past the limit). 23 Defendants’ counsel must therefore send a check payable to the 24 Clerk for the Eastern District of California for $450.00, no 25 later than seven days from the date of this order. 26 /// 27 /// 28 /// 2 LUNE □□ EAINIT SET RAVI tO POI EOE PAYS eV VI 1 IIl. ORDER 2 For the reasons set forth above, the Court DENIES 3 Defendants’ Motion to Strike. The Court GRANTS Defendants Motion 4 to Dismiss Plaintiffs’ Substantive Due Process Claim WITH 5 PREJUDICE and DENIES Defendants’ Motion to Dismiss as to all 6 | other claims. 7 IT IS SO ORDERED. 8 Dated: September 25, 2020 kA 10 teiren staves odermacr 7008 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23