Tracy v. City of Marysville ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 DUANE DRAKE TRACY, No. 2:20-cv-01337-WBS-CKD 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: CITY OF MARYSVILLE’S MOTION TO 15 CITY OF MARYSVILLE, a municipal DISMISS entity; OFFICERS JASON 16 GARRINGER, JEREMY LEMIRE, and HERBERT CULVER, and DOES 1-25, 17 Defendants. 18 19 20 ----oo0oo---- 21 Plaintiff Duane Drake Tracy (“plaintiff”) brought this 22 action against the City of Marysville (“the City”), Marysville 23 Police Sergeant Jason Garringer, Marysville Police Officers 24 Jeremy Lemire and Herbert Culver, and Does 1-25 seeking 25 compensatory and punitive damages against defendants for 26 violating civil rights under 42 U.S.C. § 1983. Before the court 27 is the City’s Motion to Dismiss plaintiff’s fourth cause of 28 1 action. (“Mot. to Dismiss”) (Docket No. 4.) 2 I. Factual and Procedural Background 3 According to plaintiff’s complaint, on July 28, 2019, 4 plaintiff was suspected of disturbing the peace at a Starbucks in 5 Marysville, California in violation of California Penal Code § 6 415. (Compl. at ¶ 4.) (Docket No. 1.) Plaintiff is a homeless 7 member of the Navajo-Hopi Native American tribe. (Id. at p.2, ¶ 8 14.) Sergeant Garringer and Officer LeMire of the Marysville 9 Police Department were dispatched to the call from Starbucks. 10 (Id. at ¶ 5.) Plaintiff had a cell phone in his right hand and 11 headphones in his ears. (Id.) Plaintiff was listening to loud 12 music and could not hear his surroundings. (Id.) 13 Sergeant Garringer pulled up in his marked patrol 14 vehicle approximately 6-7 feet away from plaintiff. (Id. at ¶ 15 5.) He immediately exited his patrol vehicle in the middle of 16 “F” Street and slammed his outstretched arm to plaintiff’s neck. 17 (Id.) Plaintiff immediately fell backwards onto the pavement and 18 struck his head on the pavement. (Id.) Officer LeMire then 19 released his K-9 unit on the Plaintiff. (Id. at ¶ 13.) The K-9 20 unit bit plaintiff’s mid-section and shoulder several times. 21 (Id.) Plaintiff was transported to Rideout Memorial Hospital by 22 ambulance and treated for lacerations, dog bites, and head 23 injuries, including a possible concussion. (Id.) 24 Sergeant Garringer and Officers Culver and LeMire 25 contended that plaintiff willfully and unlawfully used violence 26 or a threat of violence to try to prevent or deter them from 27 performing their lawful duty. (Id. at ¶ 16.) On July 30, 2019, 28 the Yuba County District Attorney’s Office filed a criminal 1 complaint against plaintiff. (Id. at ¶ 20.) The criminal 2 complaint alleged that “plaintiff did unlawfully attempt by means 3 of threat or violence to deter or prevent Sergeant Garringer, who 4 was then and there an executive officer, from performing a duty 5 imposed upon such officer by law, or did knowingly resist by the 6 use of force or violence said executive officer in the 7 performance of his/her duty.” (Id.) On January 15, 2020, Yuba 8 County District Attorney’s Office dismissed this charge against 9 plaintiff. (Id. at ¶ 22.) 10 Plaintiff’s complaint alleges that Sergeant Garringer 11 and Officers LeMire and Culver used excessive force in 12 effectuating plaintiff’s arrest. (See id. at ¶¶ 2–9, 11–18, 23, 13 25.) Plaintiff also claims that they conspired or acted in 14 concert to have plaintiff falsely charged and prosecuted for 15 criminal attempt to disarm a police officer. (See id. at ¶ 26.) 16 Plaintiff contends that his race was a motivating factor in the 17 officers decision to use excessive force and maliciously 18 prosecute plaintiff with false charges. (See id. at ¶ 69.) 19 Based on these events, plaintiff alleges that the City of 20 Marysville is liable under Monell v. Department of Social 21 Services of the City of New York, 436 U.S. 658, 694 (1978), for: 22 (1) having an unconstitutional custom or policy, (2) ratifying 23 the decisions of the officers who caused the constitutional 24 violation, and (3) failing to adequately train the Marysville 25 police officers. (See id. at ¶¶ 28–34.) 26 II. Discussion 27 Federal Rule of Civil Procedure 12(b)(6) allows for 28 dismissal when the plaintiff’s complaint fails to state a claim 1 upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). 2 The inquiry before the court is whether, accepting the 3 allegations in the complaint as true and drawing all reasonable 4 inferences in the plaintiff’s favor, the complaint has stated “a 5 claim to relief that is plausible on its face.” Bell Atl. Corp. 6 v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard 7 is not akin to a ‘probability requirement,’ but it asks for more 8 than a sheer possibility that a defendant has acted unlawfully.” 9 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare 10 recitals of the elements of a cause of action, supported by mere 11 conclusory statements, do not suffice.” Id. Although legal 12 conclusions “can provide the framework of a complaint, they must 13 be supported by factual allegations.” Id. at 679. 14 A. Monell Claim Against the City 15 In his fourth cause of action, plaintiff attempts to 16 plead a Monell claim against the City of Marysville. (Compl. at 17 ¶¶ 92–107.) Because 42 U.S.C. § 1983 does not provide for 18 vicarious liability, local governments “may not be sued under § 19 1983 for an injury inflicted solely by its employees or agents.” 20 Monell, 436 U.S. at 694. “Instead, it is when execution of a 21 government’s policy or custom, whether made by its lawmakers or 22 by those whose edicts or acts may be fairly said to represent 23 official policy, inflicts the injury that the government as an 24 entity is responsible under § 1983.” Id. 25 Monell claims must contain sufficient factual 26 allegations to give fair notice to the opposing party and “must 27 plausibly suggest an entitlement to relief such that it is not 28 unfair to require the opposing party to be subjected to the 1 expense of discovery and continued litigation.” Starr v. Baca, 2 652 F.3d 1202, 1216 (9th Cir. 2011) To survive a motion to 3 dismiss, a plaintiff must do more than simply allege that a 4 Monell defendant “maintained or permitted an official policy, 5 custom, or practice of knowingly permitting the occurrence of the 6 type of wrongs” alleged in the complaint. See AE ex. rel. 7 Hernandez v. Cty. Of Tulare, 666 F.3d 631, 637 (9th Cir. 2012). 8 Facts regarding the specific nature of the alleged policy, 9 custom, or practice are required; merely stating the subject to 10 which the policy relates (i.e., excessive force) is insufficient. 11 See id. Following this rule, district courts have dismissed 12 complaints where a plaintiff alleged a single incident of 13 unconstitutional conduct as the basis for his Monell claim. See, 14 e.g., Wallace v. City of Santa Rosa, No. C 12-6451 MMC, 2013 WL 15 4675354, *2 (N.D. Cal. Aug. 30, 2013) (dismissing a Monell claim 16 rooted in allegations of an officer’s use of excessive force 17 during a plaintiff’s arrest and finding that a single incident is 18 insufficient to support a Monell claim based on inadequate 19 training or failure to discipline). 20 1. Unconstitutional Custom or Policy 21 For an unwritten policy or custom to form the basis of 22 a Monell claim, it must be so “persistent and widespread” that it 23 constitutes a “permanent and well settled” practice. See Monell, 24 436 U.S. at 691. In pleading such a claim, the complaint must 25 “put forth additional facts regarding the specific nature of 26 [the] alleged policy, custom, or practice.” See AE ex. rel. 27 Hernandez, 666 F.3d at 637. Here, the thrust of the allegations 28 against the City is that it allowed or promoted the type of 1 excessive force and race-based animus alleged elsewhere in the 2 Complaint. (See Compl. at ¶¶ 29–35.) However, plaintiff has 3 alleged no facts regarding an unconstitutional policy, custom or 4 practice, allegations of prior incidents, or facts which 5 demonstrate that the a alleged practice was of “sufficient 6 duration, frequency, and consistency such that the alleged custom 7 or practice has become a traditional method of carrying out 8 policy.” See Harper v. Cty. Of Merced, 1:18-cv-005620-LJO-SKO, 9 2018 WL 5880786, *6 (E.D. Cal. Nov. 8, 2018). Instead, plaintiff 10 relies solely on boilerplate conclusions of customs, practices 11 and policies related to excessive force, racial discrimination, 12 and police misconduct. (See Compl. at ¶¶ 29–35.) These 13 allegations are insufficient to state a plausible, not merely 14 possible, claim for relief and are therefore insufficient. See 15 AE ex rel. Hernandez. 666 F.3d at 637. 16 2. Ratification 17 The Ninth Circuit has “found municipal liability on the 18 basis of ratification when the officials when the officials 19 involved adopted and expressly approved of the acts of others who 20 caused the constitutional violation.” Trevino v. Gates, 99 F.3d 21 911, 920 (9th Cir. 1996). Ratification “generally requires more 22 than acquiescence.” Sheehan v. City and Cty. of San Francisco, 23 743 F.3d 1211, 1231 (9th Cir. 2014). However, plaintiff’s 24 complaint lists conclusory allegations that the City “encouraged, 25 tolerated, ratified and acquiesced to a dangerous environment of 26 police brutality” and “tolerat[ed] the use of unconstitutional 27 force.” (See Compl. at ¶ 28.) The complaint does not include 28 any factual allegations regarding any approval or ratification by 1 the City or the basis for such approval. In Hicks v. Cty. of 2 Stanislaus, 1:17-cv-01187-LJO-SAB, 2018 WL 347790, *6 (E.D. Cal. 3 Jan. 10, 2018), the court dismissed a ratification claim where 4 the complaint contained “no factual allegations to support the 5 claim that the County approved, ratified, condoned, encouraged, 6 sought to cover up, and/or tacitly authorized the conduct. . . .” 7 Id. at *6. The plaintiff here has likewise failed to state a 8 cognizable claim of ratification under Monell. 9 3. Failure to Train 10 In order to state a claim for failure to train under 11 Monell, a plaintiff must show that: (1) the existing training 12 program is inadequate in relation to the tasks the particular 13 officers must perform; (2) the officials have been deliberately 14 indifferent to the rights of the persons with whom the police 15 come into contact; and (3) the inadequacy of the training 16 “actually caused the deprivation of the alleged constitutional 17 right.” Merritt v. Cty. of Los Angeles, 875 F.2d 765, 770 (9th 18 Cir. 1989). “[W]hen city policymakers are on actual or 19 constructive notice that a particular omission in their training 20 program causes city employees to violate citizens’ constitutional 21 rights, the city may be deemed deliberately indifferent if the 22 policymakers choose to retain that program.” Connick v. 23 Thompson, 563 U.S. 51, 61 (2011.) 24 Here, plaintiff has not provided any factual 25 allegations as to (1) how the City’s officer training is 26 inadequate, (2) that the officials have been deliberately 27 indifferent to the rights of Marysville citizens, or (3) that the 28 inadequacy of the training was what actually caused the alleged ene nn ON RE IDEN OE OS EISEN EE 1 deprivation of plaintiff’s constitutional rights. Accordingly, 2 the plaintiff has failed to state a cognizable claim of failure 3 to train under Monell. Because the complaint fails to state a 4 Monell claim under any theory, the court will dismiss the 5 complaint’s fourth claim. 6 IT IS THEREFORE ORDERED that the City’s motion to 7 dismiss plaintiff’s fourth claim against the City under Monell, 8 (Docket No. 4) be, and the same hereby is, GRANTED. 9 Plaintiff has twenty days from the date this Order is 10 signed to file an amended complaint if he can do so consistent 11 with this Order. 12 | Dated: November 30, 2020 □□ tteom. Ad. bt—~ 13 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28