1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TERRANCE RUSSELL an individual, Case No.: 24cv0527-GPC(SBC)

12 Plaintiff,

ORDER GRANTING DEFENDANTS’

13 v. MOTION TO DISMISS WITH

LEAVE TO AMEND

14 CITY OF SAN DIEGO, a municipality;

SAN DIEGO POLICE DEPARTMENT

15 [Dkt. No. 9.]

OFFICER L. FANLO (BADGE #7841),

16 an individual; DAVID NISLEIT, an individual; and DOES 1-50, inclusive, 17 Defendants. 18

19 Before the Court is Defendants’ motion to dismiss the Monell1 claims in the first 20 amended complaint pursuant to Federal Rule of Civil Procedures 12(b)(6). (Dkt. No. 9.) 21 Plaintiff filed an opposition and Defendants replied. (Dkt. Nos. 13, 15.) Based on the 22 reasoning below, the Court GRANTS Defendants’ motion to dismiss with leave to 23 amend. 24 / / / 25 / / / 26 27 28 1 Background 2 On December 21, 2023, Plaintiff Terrance Russell (“Plaintiff”) filed a 42 U.S.C. § 3 1983 civil rights complaint against Defendants City of San Diego, San Diego Police 4 Department Officer L. Fanlo, and David Nisleit, Chief of San Diego Police Department. 5 (Dkt. No. 1-2, Compl.) After the Court granted in part and denied in part Defendants’ 6 motion to dismiss, Plaintiff filed a first amended complaint (“FAC”) on July 8, 2024. 7 (Dkt. No. 8.) The FAC alleges claims against Defendants City of San Diego (“the City”, 8 San Diego Police Department (“SDPD”) Officer L. Fanlo (“Officer Fanlo”) and Does 1- 9 50 (collectively “Defendants”). (Id.) 10 Plaintiff is a disabled Black man and alleges that on August 15, 2022, around 8:22 11 p.m., he was watching the sunset at Pacific Beach. (Id. ¶¶ 9,10.) Plaintiff was behaving 12 lawfully when Officer Fanlo and Doe Officer (“Defendant Officers”) approached him 13 and began to question him. (Id. ¶ 11.) One officer asked Plaintiff, “You starting fires 14 around here, Black man?” (Id.) Plaintiff told them he was trying to enjoy the sunset. 15 (Id.) Plaintiff then attempted to walk away but Defendant Officers grabbed Plaintiff 16 aggressively, ignored his demands to “let him go,” forced him to the ground while 17 twisting his arm and wrist, and struck him. (Id. ¶ 12.) He was detained for “some time” 18 on the ground. (Id.) Eventually, a Doe San Diego Policy Department (“SDPD”) 19 Sergeant arrived and informed Plaintiff that the situation was a misunderstanding. (Id. ¶ 20 13.) Defendant Officers let Plaintiff go but wrote a ticket for several alleged offenses, 21 including resisting arrest which he denies. (Id.) In December 2022, Plaintiff discovered 22 no charges were ever filed. (Id. ¶ 15.) Plaintiff claims he suffered physical injuries of a 23 broken finger, busted blood vessels, a bruised rib cage, and a torn rotator cuff as well 24 emotional injuries of anxiety, stress, anger, trouble sleeping, mistrust of police, and 25 humiliation as a result of the alleged encounter with Defendant Officers. (Id. ¶ 17.) On 26 information and belief, neither the Doe SDPD Sergeant or any other supervisory 27 employee of SDPD reported the misconduct by Defendant Officers regarding the 28 treatment of Plaintiff. (Id. ¶ 14.) 1 Plaintiff alleges nine causes of action: (1) false arrest under 42 U.S.C. §1983 2 against Officer Fanlo; (2) excessive force under 42 U.S.C. § 1983 against Officer Fanlo; 3 (3) false imprisonment under 42 U.S.C. § 1983 against Officer Fanlo; (4) failure to 4 properly screen and hire under 42 U.S.C. § 1983 against the City of San Diego; (5) 5 failure to properly train under 42 U.S.C. § 1983 against the City of San Diego; (6) failure 6 to properly supervise and discipline under 42 U.S.C. § 1983 against the City of San 7 Diego; (7) Monell violation based on an unconstitutional custom, policy or practice under 8 42 U.S.C. § 1983 against the City of San Diego; (8) intentional infliction of emotional 9 distress against all Defendants; and (9) violation of California Civil Code section 52.1 10 against all Defendants. (Dkt. No. 8, FAC ¶¶ 28-88.) 11 On July 22, 2024, Defendants filed the instant motion to dismiss the fourth to 12 seventh causes of action raised under Monell for failure to state a claim which is fully 13 briefed. (Dkt. Nos. 9, 13, 15.) 14 Discussion 15 A. Legal Standard as to Federal Rule of Civil Procedure 12(b)(6) 16 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) permits dismissal for “failure to 17 state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) 18 requires the Court to dismiss claims that fail to establish a cognizable legal theory or do 19 not allege sufficient facts to support a cognizable legal theory. Mendiondo v. Centinela 20 Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008) (citation omitted). Under Rule 21 8(a)(2) a complaint must contain “a short and plain statement of the claim which entitles 22 the pleader to relief.” Fed. R. Civ. P. 8(a)(2). 23 “To survive a motion to dismiss, a complaint must contain sufficient factual 24 matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft 25 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 26 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content 27 that allows the court to draw the reasonable inference that the defendant is liable for the 28 misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action, 1 supported by mere conclusory statements, do not suffice.” Id. “In sum, for a complaint 2 to survive a motion to dismiss, the non-conclusory factual content, and reasonable 3 inferences from that content, must be plausibly suggestive of a claim entitling the 4 plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) 5 (quotations omitted). 6 To survive a Rule 12(b)(6) motion to dismiss, a complaint does not need detailed 7 factual allegations but it must provide allegations that raise a right to relief above the 8 speculative level. Twombly, 550 U.S. at 555. While the plausibility standard is not a 9 probability test, it does require more than a mere possibility the defendant acted 10 unlawfully. Id. at 556. “When evaluating a Rule 12(b)(6) motion, the Court must accept 11 all material allegations in the complaint as true, and construe them in the light most 12 favorable to the non-moving party.” Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 13 710 F.3d 946, 956 (9th Cir. 2013) (citation omitted). When dismissal is appropriate, 14 leave to amend should generally be given freely. Id. However, if the plaintiff’s proposed 15 amendment would fail to cure the pleading’s deficiencies and amendment would be 16 futile, the court may dismiss without leave. Id. 17 B. Monell Claims Against the City of San Diego 18 1. Seventh Cause of Action –Unconstitutional Policy, Custom or Practice 19 Defendants argue that the seventh cause of action should be dismissed because 20 Plaintiff has failed to allege a widespread policy, practice or custom that deprived him of 21 his constitutional rights. (Dkt. No. 9-1 at 11-12.2) Plaintiff responds that he has alleged 22 that the City has a widespread practice of deliberately ignoring existing policies or laws 23 and violates the constitutional rights against unlawful seizures and excessive force 24 against Black people. (Dkt. No. 13 at 10.) 25 26 27 28 1 Cities, counties and other local government entities are subject to claims under 42 2 U.S.C. § 1983. Monell v. Dep't of Social Servs. of the City of New York, 436 U.S. 658 3 (1978). While municipalities, their agencies and their supervisory personnel cannot be 4 held liable under § 1983 on any theory of respondeat superior or vicarious liability, they 5 can, however, be held liable for deprivations of constitutional rights resulting from their 6 formal policies or customs. Id. at 691-93. Liability only attaches where the municipality 7 itself causes the constitutional violation through “execution of a government's policy or 8 custom, whether made by its lawmakers or by those whose edicts or acts may fairly be 9 said to represent official policy.” Id. at 694. 10 To prevail, a plaintiff must allege “(1) [the plaintiff] had a constitutional right of 11 which he was deprived; (2) the municipality had a policy; (3) the policy amounts to 12 deliberate indifference to his constitutional right; and (4) ‘the policy is the moving force 13 behind the constitutional violation.’” Gordon v. Cnty. of Orange, 6 F.4th 961, 973 (9th 14 Cir. 2021) (citing Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)). As to 15 a municipality’s policy, a “plaintiff must allege either that (1) a particular municipal 16 action itself violates federal law, or directs an employee to do so; or (2) the municipality, 17 through inaction, failed to implement adequate policies or procedures to safeguard its 18 community members’ federally protected rights.” Hyun Ju Park v. City and Cnty. of 19 Honolulu, 952 F.3d 1136, 1141 (9th Cir. 2020) (internal quotation marks and citations 20 omitted). 21 In this case, Plaintiff asserts liability based on a failure to act; therefore, he must 22 allege the City acted with deliberate indifference which is “a stringent standard of fault, 23 requiring proof that a [municipality] disregarded a known or obvious consequence of [its] 24 action.” Bd. of the Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410 25 (1997) (“Claims not involving an allegation that the municipal action itself violated 26 federal law, or directed or authorized the deprivation of federal rights, present much more 27 difficult problems of proof.”) (citations omitted); see also Hyun Ju Park, 952 F.3d at 28 1141 (“When, as here, a plaintiff pursues liability based on a failure to act, she must 1 allege that the municipality exhibited deliberate indifference to the violation of her 2 federally protected rights.”) (citing Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th 3 Cir. 2012)). 4 A plaintiff alleging deliberate indifference can survive a Rule 12(b)(6) challenge if 5 he or she alleges the municipality has engaged in a pattern of prior, similar violations of 6 federally protected rights of which it had actual or constructive notice. See Connick v. 7 Thompson, 563 U.S. 51, 62 (2011) (“A pattern of similar constitutional violations by 8 untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference . . . 9 .”); Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011) (reversing dismissal where 10 plaintiff “specifically allege[s] numerous incidents” of prior, similar incidents of 11 excessive force and the defendant was provided notice of all these incidents); Bagos v. 12 Vallejo, No. 2:20-cv-00185-KJM-AC, 2020 WL 6043949, at *5-6 (E.D. Cal. Oct. 13, 13 2020) (“[p]rior incidents involving lawsuits alone, even those which do not result in a 14 finding or admission of wrongdoing, can be sufficient for Monell liability purposes in the 15 face of a motion to dismiss.”); Villa v. Cnty. of San Diego, Case No.: 20-CV-537-CAB- 16 NLS, 2020 WL 5535384, at *3-4 (S.D. Cal. Sept. 15, 2020) (denying motion to dismiss 17 Monell claim of policy and custom and failure to train claim as the plaintiff referenced 18 federal investigations, citizen complaints and lawsuits against the County that include 19 similar allegations of misconduct). 20 Here, the FAC alleges that the City violated Plaintiff’s right to be free from an 21 unreasonable seizure, excessive force and unlawful racial profiling. (Dkt. No. 8, FAC ¶¶ 22 30, 32, 37, 38, 73.) Next, it alleges the City had a custom or practice of making unlawful 23 seizures without any reasonable suspicion or probable cause, using excessive force and 24 “contacting, detaining, searching and arresting citizen based on unlawful racial profiling” 25 despite having policies in place on these issues. (Id. ¶¶ 73-74.) Finally, Plaintiff alleges 26 that the City’s conduct “legally, proximately and foreseeably” caused him to suffer 27 damages. (Id. ¶ 75.) 28 1 Plaintiff has not plausibly alleged the City was deliberately indifferent to his 2 constitutional rights to be free from an unreasonable seizure, excessive force and racial 3 profiling by alleging prior, similar incidents by SDPD officers. Plaintiff relies on four 4 studies and reports he claims show that the City condones this “unspoken policy” of 5 discriminatory and unlawful conduct and excessive force against Black people. (See Dkt. 6 No. 8, FAC ¶¶ 18-25.) 7 First, the FAC references a 2016 study by San Diego State University of SDPD’s 8 policies, customs and practices which revealed that Black people are more likely to be 9 searched and questioned in the field after being stopped. (Dkt. No. 8, FAC ¶¶ 18, 19.) 10 While Plaintiff does not claim he was subjected to an illegal search, he does allege that he 11 was questioned in the field without any reasonable suspicion based on unlawful racial 12 profiling. (Id. ¶¶ 73-74.) Thus, the 2016 study is similar to the present case only as to 13 the questioning in the field claim. Second, the FAC cites to a 2019 published story by 14 NBC San Diego that Black people are five times more likely to be prosecuted for minor 15 offenses. (Id. ¶ 20.) The Court finds that this study is not factually relevant and does not 16 involve prior, similar violations by the City because it does not concern excessive force 17 or an unreasonable seizure; rather, it addresses excessive prosecutions. See Piccini v City 18 of San Diego, Case No.: 21-CV-01343-W-KSC, 2022 WL 2788753, at *4 (S.D. Cal. July 19 15, 2022) (relying on the same two studies and concluding “[w]hile both studies suggest 20 the SDPD discriminates based on race and color with regard to traffic stops and 21 prosecutions, the studies do not involve the issue of excessive force or insufficient 22 training for Policy 1.04.”). 23 Next, the FAC relies on a third report, the National Justice Database City Report 24 on the SDPD which disclosed that Black citizens made up 14.8% of all people who 25 experienced traffic stops from 2017-2020 and once stopped they were 2.5 times as often 26 as White people to be searched and five times as often as White people, on average, to be 27 subject to force. (Dkt. No. 8, FAC ¶ 21.) Finally, a fourth report, Police Scorecard, a 28 nationwide public evaluation of policing in the United States, revealed that the SDPD 1 engaged in a pattern of discriminatory policing where black people were stopped at a rate 2 more the 2x higher than White people, were more likely to be searched, arrested and 3 subjected to force during a stop, and were subject to more severe forms of force than 4 other groups. (Id. ¶¶ 22-24.) Further, the Police Scorecard revealed that Black people 5 were stopped, in traffic and pedestrian stops, at a rate 219% higher than White people, 6 that SDPD made 35,038 stops of Black people during a 12-month period in a city with a 7 total of 88,774 Black residents and fewer than 15% of these stops were initiated from 8 civilian calls for service. (Id. ¶ 24.) Lastly, it revealed that the SDPD were 133% more 9 likely to search Black people than White people during a routine traffic stop, but less 10 likely to find contraband suggesting the department over-searches people. (Id. ¶ 25.) 11 The 2016 San Diego State University study addresses the discriminatory 12 questioning of Black people in the field. Meanwhile, the National Justice Database City 13 Report and the Police Scorecard address traffic or pedestrian stops where Black people 14 have been subject to excessive force and unreasonable seizures significantly more than 15 other racial groups. These allegations could support prior, similar instances of similar 16 constitutional violations experienced by Plaintiff. However, the FAC does not allege the 17 relevant years for the Police Scorecard. More importantly, Plaintiff has not alleged the 18 City of San Diego had actual or constructive knowledge of any of these reports. See 19 Hyun Ju Park, 952 F.2d at 1142 (“Park has not plausibly alleged that the Chief of Police 20 was aware of prior, similar incidents in which off-duty officers mishandled their firearms 21 while drinking.”). While the 2016 study was prepared by a local university, both the 22 National Justice Database Police Report and the Police Scorecard are national reports 23 about policing in different jurisdictions, including San Diego. However, Plaintiff has not 24 alleged whether these reports were distributed to the City, whether the City had 25 participated in these reports or studies, or whether the City had any actual or constructive 26 knowledge about the reports. Therefore, Plaintiff has failed to plausibly allege that the 27 City was deliberately indifferent to violations of his constitutional rights. 28 1 Relying on Connick and Hyun Ju Park, the Court GRANTS Defendants’ motion to 2 dismiss the seventh cause of action for a Monell violation based on an unconstitutional 3 policy, custom or practice.3 See e.g., McDonald v. Cnty. of Sonoma, 506 F. Supp. 3d 4 969, 983, 986 (N.D. Cal. 2020) (denying motion to dismiss Monell claims as IOLERO's 5 audits, an audit disputed by the County of Sonoma, the County of Sonoma’s human rights 6 report, and citation to specific instances of excessive force, exhibited deliberate 7 indifference by Sonoma County and Town of Windsor of unconstitutional patterns). 8 2. Fourth Cause of Action - Failure to Properly Screen and Hire 9 Defendants move to dismiss the fourth cause of action because, despite 10 amendment, Plaintiff fails to connect Defendant Officers’ background to a constitutional 11 violation. (Dkt. No. 9-1 at 8.) Plaintiff argues that Defendant Officers’ incompetence of 12 using force without provocation or probable cause, and the use of racially insensitive 13 language can only be the product of poor screening and hiring practices. (Dkt. No. 4 at 14 6.) As such, he contends that an inference can be made that the City’s negligent hiring 15 and screening practices were the moving force behind the unlawful interaction and 16 detention. (Id.) 17 A municipality can be held liable under § 1983 for a hiring decision where the 18 plaintiff “demonstrate[s] that a municipal decision reflects deliberate indifference to the 19 risk that a violation of a particular constitutional or statutory right will follow the 20 decision.” Brown, 520 U.S. at 411. A decisionmaker, with final authority, who fails to 21 22 23 3 The Court recognizes that Plaintiff’s counsel has filed § 1983 complaints in this district and also relied on these same four studies/reports with different results. Compare McKinnie v. City of San Diego, Case 24 No. 3:24cv827-H(SBC), 2024 WL 4126062, at *4-6 (S.D. Cal. Sept. 9, 2024) (denying motion to 25 dismiss Monell claims relying on four studies alleging discriminatory policing by SDPD) with Whyte v. City of San Diego, Case No. 21cv1159-LAB-MDD, 2022 WL 17491178, at *4-5 (S.D. Cal. Dec. 7, 26 2022) (granting motion to dismiss Monell claims concluding that citing to four studies, alone, was insufficient to demonstrate “the City's deliberate indifference to the constitutional rights of the persons 27 with whom its police officers are likely to come into contact.”). Both cases observed a plaintiff “does not need to prove notice at this stage” but reached different conclusions whether the reports adequately 28 1 adequately scrutinize an applicant’s background acts with deliberate indifference “[o]nly 2 where adequate scrutiny of an applicant's background would lead a reasonable 3 policymaker to conclude that the plainly obvious consequence of the decision to hire the 4 applicant would be the deprivation of a third party's federally protected right[.]” Id. 5 “The fact that inadequate scrutiny of an applicant's background would make a violation 6 of rights more likely cannot alone give rise to an inference that a policymaker's failure to 7 scrutinize the record of a particular applicant produced a specific constitutional 8 violation.” Id. at 410-11. Thus, “[t]o prevent municipal liability for a hiring decision 9 from collapsing into respondeat superior liability, a court must carefully test the link 10 between the policymaker's inadequate decision and the particular injury alleged.” Id. at 11 410. 12 As it concerns a single hiring decision, a more rigorous standard of culpability and 13 causation must apply. Id. at 405. “That a plaintiff has suffered a deprivation of federal 14 rights at the hands of a municipal employee will not alone permit an inference of 15 municipal culpability and causation; the plaintiff will simply have shown that the 16 employee acted culpably.” Id. at 406-07. A finding of culpability “must depend on a 17 finding that this officer was highly likely to inflict the particular injury suffered by the 18 plaintiff. The connection between the background of the particular applicant and the 19 specific constitutional violation alleged must be strong.” Id. at 412. 20 In this case, the FAC has not cured the deficiency noted in the Court’s prior order 21 explaining that Plaintiff had to provide supporting facts alleging the background of 22 Defendant Officers and the specific constitutional violation. (Dkt. No. 7 at 6-7.) Instead, 23 as before, the FAC alleges a formulaic recitation of a claim for failing to properly screen 24 and hire without any additional supporting facts. (Dkt. No. 8, FAC ¶¶ 52-56.) Moreover, 25 contrary to Plaintiff’s argument, an inference of a failure to properly train and hire cannot 26 be made due to a single instance of alleged misconduct by Defendant Officers. See 27 Brown, 520 U.S. at 406-07 (“That a plaintiff has suffered a deprivation of federal rights at 28 the hands of a municipal employee will not alone permit an inference of municipal 1 culpability and causation; the plaintiff will simply have shown that the employee acted 2 culpably.”). 3 As such, the Court GRANTS Defendant’s motion to dismiss the fourth cause of 4 action without leave to amend. See Whyte v. City of San Diego, Case No., 21cv1159- 5 LAB-MDD, 2022 WL 17491178, at *3 (S.D. Cal. Dec. 7, 2022) (dismissing failure to 6 properly screen and hire as conclusory) (citing Amaral v. City of San Diego, Case No.: 7 17-cv-02409-L-JMA, 2018 WL 3308987, at *3 (S.D. Cal. July 5, 2018) (granting motion 8 to dismiss failure to properly screen and hire for failing “to provide any facts about the 9 City’s hiring practices or allege any facts about Williams' background to support the 10 allegation that the City was “deliberately indifferent” in its hiring process”)). 11 3. Fifth Cause of Action - Failure to Properly Train 12 Defendants maintain that the failure to properly train claim should be dismissed 13 because Plaintiff again has failed to provide any facts to support his conclusory and 14 unsupported legal conclusions. (Dkt. No. 9-1 at 9-10.) Plaintiff disagrees arguing he has 15 plead all the necessary elements. (Dkt. No. 13 at 7-8.) 16 “In limited circumstances, a local government's decision not to train certain 17 employees about their legal duty to avoid violating citizens' rights may rise to the level of 18 an official government policy for purposes of § 1983.” Connick, 563 U.S. at 61. Failure 19 to train may serve as a basis for § 1983 municipal liability only “where failure to train 20 amounts to deliberate indifference to rights of persons with whom the police come into 21 contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). Deliberate indifference 22 requires proof that the municipal entity “disregarded a known or obvious consequence” 23 that a particular omission in its training program would cause city employees to violate 24 citizens' constitutional rights. See Brown, 520 U.S. at 410. “Thus, when [the municipal 25 entity is] on actual or constructive notice that a particular omission in their training 26 program causes city employees to violate citizens' constitutional rights, the city may be 27 deemed deliberately indifferent if the policymakers choose[s] to retain that program.” 28 Connick, 563 U.S. at 61 (citing Brown, 520 U.S. at 407). 1 “To allege a failure to train, a plaintiff must include sufficient facts to support a 2 reasonable inference (1) of a constitutional violation; (2) of a municipal training policy 3 that amounts to a deliberate indifference to constitutional rights; and (3) that the 4 constitutional injury would not have resulted if the municipality properly trained their 5 employees.” Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153-54 (9th Cir. 2021) 6 (citing Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007)). the City has a 7 custom and policy of engaging in racially discriminatory stops and seizures based on 8 racial profiling. 9 Here, the FAC alleges that the City of San Diego violated his Fourth Amendment 10 right to be free from an unlawful seizure, excessive force and racial profiling. (Dkt. No. 11 8, FAC ¶¶ 30, 37, 47, 61, 73.) Next, Plaintiff alleges that the City failed to train its 12 officers on the proper use of force under the Fourth Amendment despite having policies 13 in place that addresses use of force and that traffic policies be applied “equally and 14 fairly.” (Id. ¶¶ 26, 30, 58.) Plaintiff alleges that the City, by failing to train its officers, 15 was deliberately indifferent to his constitutional rights to be free from an unlawful 16 seizure, excessive force and racial profiling. (Id. ¶¶ 60, 73.) 17 As discussed above, Plaintiff has not sufficiently alleged the City was deliberately 18 indifferent to Plaintiff’s constitutional rights to be free from an unreasonable seizure, 19 excessive force and racial profiling by relying on the four studies and reports. Therefore, 20 the Court GRANTS Defendants’ motion to dismiss the fifth cause of action for failure to 21 train. Compare Young v. City of Menifee, 2019 WL 4238880, at *6 (C.D. Cal. Aug. 2, 22 2019) (dismissing Monell claim when plaintiff failed to “identify any specific instances,” 23 other than his own experience, “where [Defendant] engaged in such [unconstitutional] 24 conduct”) with J.M. by and Through Rodriguez v. Cnty. of Stanislaus, 2018 WL 5879725, 25 at *6 (E.D. Cal. Nov. 7, 2018) (denying motion to dismiss Monell claim when plaintiff's 26 complaint described “multiple, specific events” of constitutional violation). 27 / / / 28 / / / 1 4. Sixth Cause of Action - Failure to Properly Supervise and Discipline 2 A claim of failure to supervise and discipline is subject to the same standard as a 3 failure to train claim. Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989) 4 (“Canton dealt specifically with inadequate training. We see no principled reason to 5 apply a different standard to inadequate supervision.”). “A plaintiff may establish 6 municipal liability if it can prove that a municipality's omissions, such as a failure to 7 supervise and discipline, render it responsible for a constitutional violation even though 8 the municipality's policies are facially constitutional.” Gonzalez v. Alva, No. 11–CV– 9 2846 W(WVG), 2013 WL 3795691, at *6 (S.D. Cal. July 19, 2013) (citing Gibson v. 10 Cnty. of Washoe, Nev., 290 F.3d 1175,1186 (9th Cir. 2002)). A plaintiff must show that 11 “that the municipality's deliberate indifference led to its omission and that the omission 12 caused the employee to commit the constitutional violation.” Gibson, 290 F.3d at 1186 13 (citing Canton, 489 U.S. at 387). To prove a municipality's deliberate indifference, a 14 plaintiff must show that the municipality was on actual or constructive notice that its 15 failure to supervise or discipline would likely result in a constitutional violation. See id. 16 Again, Plaintiff’s reliance on the four studies and reports to support his failure to 17 supervise claim are not sufficient to demonstrate the City’s deliberate indifference to his 18 constitutional rights. Therefore, the Court GRANTS Defendants’ motion to dismiss the 19 failure to supervise cause of action. 20 F. Leave to Amend 21 To the extent the Court dismisses any causes of action, Plaintiff seeks leave to 22 amend as he can further substantiate his claims. (See Dkt. No. 13 at 10-11.) While it is 23 not clear why Plaintiff did not fully substantiate his claims in the FAC, leave to amend 24 should be freely granted and would not be futile. See Chubb, 710 F.3d at 956. 25 Thus, the Court GRANTS Plaintiff’s request for leave to amend with one final 26 opportunity but only as to the fifth to seventh causes of action. 27 / / / 28 1 Conclusion 2 Based on the above, the Court GRANTS Defendants’ motion to dismiss the Monell 3 claims in the FAC with leave to amend as to the fifth to seventh causes of action. 4 || Plaintiff shall file a second amended complaint within 21 days of the Court’s order. The 5 || hearing set for October 4, 2024 shall be vacated. 6 IT IS SO ORDERED. 7 ||Dated: September 26, 2024 2 □ 8 Hon. athe Ck 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28