1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 JOHN MOFFITT, Case No.: 24-cv-1445-MMA (DDL)

13 Plaintiff,

14 vs. ORDER GRANTING DEFENDANTS’

MOTIONS TO DISMISS

15

COUNTY OF SAN DIEGO; SAN

16 [Doc. Nos. 3, 4]

DIEGO COUNTY SHERIFF’S

17 DEPARTMENT; SAN DIEGO COUNTY

JAIL; CITY OF SAN DIEGO; SAN

18

DIEGO POLICE DEPARTMENT; DOES

19 1–100, 20 Defendants. 21 22 John Moffitt (“Moffitt” or “Plaintiff”) filed a civil action in San Diego Superior 23 Court on July 12, 2024, alleging Defendants violated his civil rights under 42 U.S.C. 24 § 1983, were professionally negligent, and used excessive force on him during his arrest. 25 The matter was removed to this Court on August 14, 2024. See Doc. No. 1.1 The First 26 27 28 1 Amended Complaint (“FAC”), which is the operative pleading in this case, was filed as 2 an exhibit to the Notice of Removal. See Doc. No. 1-2. 3 Defendants County of San Diego, San Diego County Sheriff’s Department 4 (“County Defendants”), San Diego County Jail, City of San Diego, and San Diego Police 5 Department (“City Defendants” and, collectively with “County Defendants,” 6 “Defendants”) have now filed Motions to Dismiss pursuant to Federal Rule of Civil 7 Procedure 12(b).2 See Doc. Nos. 3, 4. Plaintiff has filed an Opposition to each motion, 8 and Defendants have filed Replies. Doc. Nos. 5–8. The Court found the matters suitable 9 for determination on the papers and without oral argument pursuant to Federal Rule of 10 Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. See Doc. No. 9. For the reasons 11 discussed below, the Court GRANTS Defendants’ Motions to Dismiss without 12 prejudice and with leave to amend. 13 I. BACKGROUND3 14 Plaintiff was asleep in his apartment when he was awakened by San Diego Police 15 officers breaking down his door. FAC ¶ 18. Officers sent a police dog into Plaintiff’s 16 apartment; the dog bit Plaintiff and did not release him. Id. ¶19. Moffitt sustained 17 serious bite wounds. Id. Plaintiff was arrested and taken to San Diego County Jail. Id. 18 ¶¶ 20–21. Jail staff ignored Plaintiff’s wounds, and “repeatedly ignored medical orders 19 and advice.” Id. ¶ 22. Plaintiff’s wounds became infected, leading to him becoming 20 septic. Id. ¶ 23. He was eventually transferred to an outside hospital, where he stayed for 21 weeks. Id. Plaintiff’s arm was nearly amputated, and Plaintiff will require future 22 medical attention. Id. ¶ 24. Plaintiff alleges he suffered “severe physical and emotional 23 damage,” and that “the full extent of [his] injuries has yet to be determined.” Id. ¶ 25. 24 25

26 2 Unless otherwise noted, all “Rule” references are to the Federal Rules of Civil Procedure. 27 3 Because this matter is before the Court on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true the allegations set forth in the Complaint. See Barker 28 1 II. LEGAL STANDARD 2 A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro 3 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “While a complaint attacked by a Rule 4 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s 5 obligation to provide the grounds of his entitlement to relief requires more than labels and 6 conclusions, and a formulaic recitation of the elements of a cause of action will not do. 7 Factual allegations must be enough to raise a right to relief above the speculative level.” 8 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations, brackets, and 9 citations omitted). Rule 12(b)(6) requires a complaint to “contain sufficient factual 10 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 11 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 12 544, 570 (2007)). 13 In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the 14 truth of all factual allegations and must construe them in the light most favorable to the 15 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). 16 Legal conclusions need not be taken as true merely because they are cast in the form of 17 factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); W. 18 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Similarly, “conclusory 19 allegations of law and unwarranted inferences are not sufficient to defeat a motion to 20 dismiss.” Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998). In 21 determining the propriety of a Rule 12(b)(6) dismissal, generally, a court may not look 22 beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 903, 908 23 (9th Cir. 2003); Parrino v. FHP, Inc., 146 F.3d 699, 705–06 (9th Cir. 1998). 24 III. INCORPORATION BY REFERENCE 25 Normally, the scope of review for a motion to dismiss under Rule 12(b)(6) limits 26 the Court to consideration of the contents of the complaint. Faulkner v. ADT Sec. Servs., 27 706 F.3d 1017, 1019 (9th Cir. 2013). City Defendants, however, ask the Court to 28 incorporate by reference the San Diego Police Department’s Canine Unit Operations 1 Manual (“the Canine Manual”). Doc. No. 43 at 6. Under the “incorporation by 2 reference” doctrine, “[a] court may consider evidence on which the complaint 3 ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the document is 4 central to the plaintiff’s claim; and (3) no party questions the authenticity of the copy 5 attached to the 12(b)(6) motion.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) 6 (citing Branch v. Tunnell, 14 F.3d 449, 453–54 (9th Cir.1994), Warren v. Fox Family 7 Worldwide, Inc., 328 F.3d 1136, 1141 n. 5 (9th Cir. 2003), and Chambers v. Time 8 Warner, Inc., 282 F.3d 147, 153 n. 3 (2d Cir. 2002)). The incorporation by reference rule 9 is designed to “prevent plaintiffs from surviving a Rule 12(b)(6) motion by deliberately 10 omitting documents upon which their claims are based.” Swartz v. KPMG LLP, 476 F.3d 11 at 763 (alterations and internal quotation marks omitted). 12 City Defendants contend Plaintiff refers to the Canine Manual in paragraph 65 of 13 the FAC and relies on it for his claims. Doc. No. 4 at 6. Plaintiff does state in Paragraph 14 65 of the FAC that the City of San Diego and the San Diego Police Department 15 (“SDPD”) violated the Canine Manual’s provisions when they allowed the police dog to 16 enter Plaintiff’s apartment without first searching it. FAC ¶ 65. However, “the Ninth 17 Circuit prohibits courts from considering facts in incorporated documents or taking 18 judicial notice of facts in documents that are being used as a basis to resolve genuine 19 factual disputes in a complaint, warning that the ‘overuse and improper application of 20 judicial notice and the incorporation-by-reference doctrine . . . can lead to unintended and 21 harmful results.’” Ishita Das v. Unity Software, Inc., et al., No. 5:22-cv-03962-EJD, 22 20204 WL 1141733, at *6 (N.D. Cal. March 15, 2024) (quoting Khoja v. Orexigen 23 Therapeutics, Inc., 899 F.3d 988, 989–99 (9th Cir. 2018)). “The incorporation by 24 reference doctrine does not override the fundamental rule that courts must interpret the 25 allegations and factual disputes in favor of the plaintiff at the pleading stage.” Khoja, 26 899 F.3d at 1014 (citing Sgro v. Danone Waters of North America, 532 F.3d 940, 942, 27 n.1 (9th Cir. 2008)). Here, construing the factual allegations in the light most favorable 28 to Plaintiff, as the Court is required to do, there is a “genuine factual dispute” as to 1 whether City Defendants’ actions violate the Canine Manual. See Cahill, 80 F.3d at 337– 2 38. Thus, the Court finds it is inappropriate to incorporate by reference the Canine 3 Manual, and DENIES the request without prejudice. 4 IV. DISCUSSION 5 The FAC presents three claims for relief against City Defendants and County 6 Defendants, as well as Does 1–100. FAC ¶¶31 –66. Plaintiff alleges Defendants (1) 7 violated his civil rights under 42 U.S.C. § 1983, (2) committed professional negligence 8 under California Civil Code § 1714(a), and (3) used excessive force during his arrest. Id. 9 at ¶¶ 31–66. City Defendants and County Defendants argue in their motions to dismiss 10 that Plaintiff’s first and third claims are insufficiently pled, and that his second claim is 11 not cognizable under state law. Doc. Nos. 3 at 8–15; 4 at 4–10. 12 A. Violation of Civil Rights, 42 U.S.C. § 1983 (Claim One) 13 As to Claim One, Plaintiff alleges City Defendants violated his civil rights when 14 they improperly allowed the police dog to enter his apartment and bite his arm. FAC 15 ¶¶ 33, 35, 41, 43. He also alleges Defendants violated his civil rights when they failed to 16 properly diagnose and treat his dog bite wound while he was in custody at the San Diego 17 County Jail. Id. ¶¶ 34, 36–38, 45–46. 18 City Defendants argue that Plaintiff has not stated a § 1983 claim in Claim One 19 because he has not identified a specific constitutional right that was violated. Doc. No. 4 20 at 4. “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right 21 secured by the Constitution and laws of the United States, and (2) that the deprivation 22 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 23 698 F.3d 1128, 1138 (9th Cir. 2012). Section 1983 “is not itself a source of substantive 24 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 25 Graham v. Connor, 40 U.S. 386 U.S. 386, 393–94 (1989) (internal quotation marks 26 omitted). Rather, title 42 U.S.C. § 1983 “creates a private right of action against 27 individuals who, acting under color of state law, violate federal constitutional or statutory 28 rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). 1 Plaintiff’s allegations in Claim One could form the basis for either an inadequate 2 medical care claim or an excessive force claim. More confusingly, Plaintiff’s Opposition 3 to City Defendants’ Motion to Dismiss argues that the FAC states a § 1983 claim because 4 SDPD “deprived Plaintiff of his constitutional right to unlawful searches and seizures,” 5 which would be a Fourth Amendment claim. Doc. No. 5 at 4. Plaintiff must provide 6 more clarity regarding the constitutional basis for Claim One in order to plausibly allege 7 a § 1983 claim. 8 County Defendants interpret Claim One as an inadequate medical care claim, 9 which finds some support in the FAC. In paragraph 1 of the FAC, Plaintiff states that 10 “[t]his is an action brough[t] under 42 U.S.C. § 1983 to recover damages against 11 Defendants for violation of Plaintiff’s right to be free from cruel and unusual punishment 12 as guaranteed by the Eight[h] and Fourteenth Amendments to the Constitution.” FAC 13 ¶ 1. In paragraph 45 of the FAC, Plaintiff alleges that Defendants “violated Plaintiff’s 14 Eight[h] and Fourteenth Amendment rights to be free from cruel and unusual punishment 15 in the form of deliberate indifference to Plaintiff’s personal health and safety . . . .” Id. 16 ¶¶ 45, 14–16. Because Plaintiff was a pre-trial detainee at the time of the events, 17 however, the Eighth Amendment does not apply. See Bell v. Wolfish, 441 U.S. 520, 535 18 n.16 (1979) (noting that the Due Process Clause of the Fourteenth Amendment is 19 applicable to claims of pre-trial detainees rather than the Eighth Amendment because 20 “Eighth Amendment scrutiny is appropriate only after the State has complied with the 21 constitutional guarantees traditionally associated with criminal prosecutions”). 22 Accordingly, City Defendants’ and County Defendants’ motions to dismiss are 23 GRANTED with prejudice to the extent Plaintiff alleges an Eighth Amendment claim in 24 Claim One. 25 To state a Fourteenth Amendment claim against a municipality, a Plaintiff must 26 allege that: (1) he was deprived of a constitutional right; (2) the County has a policy, 27 custom or practice which amounted to deliberate indifference to that constitutional right; 28 and (3) the policy, custom or practice was the moving force behind the constitutional 1 violation. Dougherty v. City of Covina, 654 F.3d 892, 900–01 (9th Cir. 2011) (citing 2 Monell v. Department of Social Services, 436 U.S. 658, 694 (1978) (“We conclude, 3 therefore, that a local government may not be sued under § 1983 for an injury inflicted 4 solely by its employees or agents. Instead, it is when execution of a government’s policy 5 or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be 6 said to represent official policy, inflicts the injury that the government as an entity is 7 responsible under § 1983.”)). “Allegations of Monell liability will be sufficient for 8 purposes of Rule 12(b)(6) where they: (1) identify the challenged policy/custom; 9 (2) explain how the policy/custom is deficient; (3) explain how the policy/custom caused 10 the plaintiff harm; and (4) reflect how the policy/custom amounted to deliberate 11 indifference, i.e. show how the deficiency involved was obvious and the constitutional 12 injury was likely to occur.” McDaniel v. Diaz, No. 1:20-cv-00856-NONE-SAB, 2020 13 WL 7425348, at *22 (E.D. Cal. Dec. 19, 2020) (quoting Lucas v. City of Visalia, No. 14 1:09-CV-1015AWIDLB, 2010 WL 1444667, at *4 (E.D. Cal. Apr. 12, 2010) (citation 15 omitted). A plaintiff must “specify the content of the policies, customs, or practices the 16 execution of which gave rise to [his or her] Constitutional injuries.” Estate of Kong v. 17 City of San Diego, No. 22-cv-1858-BAS (DDL), 2023 WL 4939370, at *5 (S.D. Cal. 18 Aug. 2, 2023) (quoting La v. San Mateo Cnty. Transit Dist., No. 14-CV-01768-WHO, 19 2014 WL 4632224 (N.D. Cal. Sept. 16, 2014) (internal quotation marks omitted)). “A 20 custom or practice can be inferred from widespread practices or evidence of repeated 21 constitutional violations for which the errant municipal officers were not discharged or 22 reprimanded.” Hunter v. County of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011). 23 County Defendants contend Plaintiff has not pleaded sufficient facts to plausibly 24 allege the County had a policy, custom, or practice that was “the moving force behind” a 25 violation of Plaintiff’s Fourteenth Amendment rights. Doc. No. 3-1 at 8–11. The Court 26 agrees. Plaintiff pleads that “Defendants failed to competently treat Plaintiff,” 27 intentionally disregarded the risk of the dog bite wounds to Plaintiff, and failed to 28 properly diagnose and treat his bite wounds with deliberate indifference to Plaintiff’s 1 health and safety. FAC ¶¶ 36–38. Plaintiff further alleges Defendants “have customs or 2 policies which amount to deliberate indifference to their [sic] constitutional rights,” that 3 there is a “policy to disregard proper care for prisoners,” and that “Defendants 4 implemented a policy that repudiated Plaintiff’s constitutional rights.” Id. ¶¶ 39, 46. 5 These statements are devoid of any specifics; they are simply conclusions. Plaintiff has 6 not set forth sufficient facts for the Court to reasonably infer either City Defendants or 7 County Defendants have a formal policy or a custom or practice of “sufficient duration, 8 frequency and consistency that the conduct has become a traditional method of carrying 9 out policy.” See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996); Monell, 436 U.S. at 10 694; Iqbal, 556 U.S. at 678. Accordingly, the Court GRANTS City Defendants’ and 11 County Defendants’ motions to dismiss as to Claim One without prejudice. 12 B. Excessive Force (Claim Three) 13 Although Plaintiff does not specifically mention § 1983 in Claim Three, an 14 excessive force claim is brought pursuant to § 1983. Plaintiff alleges City Defendants 15 used excessive force during his arrest when they allowed the police dog into his 16 apartment without searching it beforehand, which led to the police dog biting Plaintiff’s 17 arm and inflicting a serious injury. FAC ¶¶ 64–66. Plaintiff does not make any specific 18 allegations against County Defendants in Claim Three. 19 City Defendants argue Plaintiff has not met his pleading burden to plausibly allege 20 liability under Monell. The Court agrees. As discussed above, to state a claim against a 21 municipality, Plaintiff must: “(1) identify the challenged policy/custom; (2) explain how 22 the policy/custom is deficient; (3) explain how the policy/custom caused the plaintiff 23 harm; and (4) reflect how the policy/custom amounted to deliberate indifference, i.e. 24 show how the deficiency involved was obvious and the constitutional injury was likely to 25 occur.” McDaniel, 2020 WL 7425348, at *22. Plaintiff alleges City Defendants’ actions 26 were not in compliance with the Canine Manual’s provisions on how to use a police dog 27 to arrest suspects. FAC ¶ 65. City Defendants argue this allegation is factually incorrect, 28 but, as noted above under Rule 12(b)(6), the Court must assume the truth of all factual 1 allegations and must construe them in the light most favorable to the nonmoving party. 2 Cahill, 80 F.3d at 337–38. 3 Despite the Court’s duty to assume the facts alleged by Plaintiff’s are true at this 4 stage, however, Plaintiff’s allegations are not sufficient to plausibly allege an excessive 5 force claim against City Defendants under Monell. While Plaintiff has alleged City 6 Defendants did not comply with the Canine Manual’s provisions on the use of a police 7 dog to apprehend a suspect in this instance, see FAC ¶ 65, he has not pleaded sufficient 8 facts to plausibly allege City Defendants have a policy, custom, or practice of not 9 complying with the Canine Manual. Monell, 436 U.S. at 694; Iqbal, 556 U.S. at 678. 10 Plaintiff does not plead a specific, official policy with respect to the use of police dogs 11 which, when executed, resulted in a violation of Plaintiff’s constitutional rights. Nor 12 does he plead sufficient facts to plausibly allege City Defendants had a custom or practice 13 of using excessive force on suspects by releasing police dogs into an apartment without a 14 prior search. “[L]iability for improper custom may not be predicated on isolated or 15 sporadic incidents; it must be founded upon practices of sufficient duration, frequency 16 and consistency that the conduct has become a traditional method of carrying out policy.” 17 Trevino, 99 F.3d at 918. Plaintiff simply makes conclusory statements such as 18 Defendants “act[ed] in the performance of customs or policies,” and “Defendants have 19 customs or policies which amount to deliberate indifference to . . . constitutional rights.” 20 See FAC ¶¶ 32, 39. These statements are not sufficient to plausibly allege City 21 Defendants have a policy, custom, or practice of using excessive force on suspects by 22 deploying police dogs into a residence without first searching it for which they are liable 23 under Monell. Monell, 436 U.S. at 694; Iqbal, 556 U.S. at 678. 24 For the foregoing reasons, the Court GRANTS City Defendants’ Motion to 25 Dismiss as to Claim Three without prejudice. 26 C. Doe Defendants and Individual Liability 27 County Defendants contend that Plaintiff makes improper use of “Doe” pleading, 28 and the Court agrees. Doc. No. 3-1 at 13–15. To state a § 1983 claim, Plaintiff must 1 allege how “each Government-official defendant, through the official’s own individual 2 actions” violated his constitutional rights. See Iqbal, 556 U.S. at 676–77. Allegations 3 “must be individualized and focus on the duties and responsibilities of each individual 4 defendant whose acts or omissions are alleged to have caused a constitutional 5 deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 6 423 U.S. 362, 370-71 (1976)). The pleadings must show each defendant “[performed] an 7 affirmative act, participate[d] in another’s affirmative acts, or omit[ted] to perform an act 8 which he is legally required to do that causes the deprivation of which [the plaintiff 9 complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). While a plaintiff may 10 refer to unnamed defendants as “Does” at the pleading stage, this does not relieve a 11 plaintiff of the requirement to allege a Doe personally participated in the alleged 12 deprivation of constitutional rights. See Brink v. Cnty. of San Diego, No. 23-cv-1756- 13 DMS (SBC), 2024 WL 3315992, at *3 (S.D. Cal. July 3, 2024). 14 “A district court should dismiss claims against Doe defendants in a Section 1983 15 suit when the complaint does not ‘even minimally explain how any of the unidentified 16 parties . . . personally caused a violation of [the claimant’s] constitutional rights.’” Id. 17 (quoting Estate of Serna v. Cnty. of San Diego, No. 20-cv-2096-LAB (MSB), 2022 WL 18 827123, at *3 (S.D. Cal. Mar. 18, 2022)). In order to provide sufficient notice of the 19 claims at issue, Plaintiff must, at a minimum, specify what each Doe personally did 20 which violated his constitutional rights. See Bousman v. City of San Diego, No. 23-cv- 21 1648-W (JLB), 2024 WL 1496220, at *5 (S.D. Cal. April 5, 2024) (“[W]hile a plaintiff 22 ‘may refer to unknown defendants as Defendant John Doe 1, John Doe 2, John Doe 3 and 23 so on . . . he must allege specific facts showing how each particular doe defendant 24 violated his rights.’”) (quoting Keavney v. Cnty. of San Diego, No. 19-cv-1947-AJB 25 (BGS), 2020 WL 4192286, at *4 (S.D. Cal. July 21, 2020)). Here, Plaintiff pleads no 26 facts which allege any Doe personally violated Plaintiff’s rights. Further, “the Supreme 27 Court has been clear that discovery cannot cure a facially insufficient pleading.” 28 Whitaker v. Tesla Motors, Inc., 985 F.3d 1172, 1177 (9th Cir. 2021) (citing Iqbal, 556 1 U.S. at 678–79). “Our case law does not permit plaintiffs to rely on anticipated discovery 2 to satisfy Rules 8 and 12(b)(6); rather, pleadings must assert well-pleaded factual 3 allegations to advance to discovery.” Id. (citing Twombly, 550 U.S. at 559). Accordingly, 4 the Court GRANTS County Defendants’ Motion to Dismiss the Doe Defendants without 5 prejudice. 6 D. Professional Negligence (Claim 2) 7 Citing California Civil Code § 1714(a), Plaintiff alleges Defendants were negligent 8 when they allowed the police dog to enter his apartment and then failed to properly 9 diagnose and treat his dog bite wounds. Doc. No. 1-2 at 9–10. Given that no federal 10 claim remains against any Defendant, the Court therefore addresses whether it should 11 continue to exercise supplemental jurisdiction over the remaining state law claim. 12 Because the “jurisdictional questions ordinarily must precede merits determinations in 13 dispositional order,” Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 14 431 (2007), the Court considers first the issue of supplemental jurisdiction over the state 15 law claim before reaching the merits. 16 The Court’s authority to entertain state law claims is governed by 28 U.S.C. 17 § 1367. Pursuant to § 1367, a district court may decline to exercise supplemental 18 jurisdiction over a state claim, if: 19 (1) the claim raises a novel or complex issue of State law,

20 (2) the claim substantially predominates over the claim or claims over which 21 the district court has original jurisdiction,

22 (3) the district court has dismissed all claims over which it has original 23 jurisdiction, or

24 (4) in exceptional circumstances, there are other compelling reasons for 25 declining jurisdiction. 26 28 U.S.C. § 1367(c). 27 A “district court can decline jurisdiction under any one of [the] four provisions” of 28 § 1367(c). San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 478 (9th Cir. 1 1998). When a district court declines supplemental jurisdiction over a state law claim 2 pursuant to one of the first three provisions of the statute, the court need not state its 3 reasons for dismissal. Id. 4 Section 1367(c) “confirms the discretionary nature of supplemental jurisdiction by 5 enumerating the circumstances in which district courts can refuse its exercise[.]” City of 6 Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997). “[I]n the usual case in 7 which all federal-law claims are eliminated before trial, the balance of factors to be 8 considered under the pendent jurisdiction doctrine—judicial economy, convenience, 9 fairness, and comity—will point toward declining to exercise jurisdiction over the 10 remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 11 (1988), superseded on other grounds by statute as recognized in Sanford v. 12 MemberWorks, Inc., 625 F.3d 550, 561 (citing Fent v. Okla. Water Res. Bd, 235 F.3d 13 553, 557 (10th Cir. 2000)). “The general rule is ‘when federal claims are dismissed 14 before trial, . . . pendent state law claims also should be dismissed.’” Kohler v. Midway 15 Land, LLC, No. 12cv0148 JM (WMc), 2013 WL 10733705, at *5 (S.D. Cal. Apr. 5, 16 2013) (quoting Religious Tech. Ctr. v. Wollersheim, 971 F.2d 364, 367–68 (9th Cir. 17 1992)); see also Sanford, 625 F.3d at 561 (9th Cir. 2010) (citing 28 U.S.C. § 1367(c)(3)). 18 Here, considering the nature of Plaintiff’s state law claim and that no federal 19 claims remain in this case against any Defendant, the Court DECLINES to exercise 20 supplemental jurisdiction over Plaintiff's state law claim against Defendants at this time 21 and DISMISSES Claim Two without prejudice. See 28 U.S.C. § 1367(c)(1), (3); see 22 also Locantore v. Hunt, 775 F. Supp. 2d 680, 689 (S.D.N.Y. Mar. 31, 2011) (“Plaintiff’s 23 federal claims are all dismissed prior to trial, and there is no reason to believe that 24 judicial economy, convenience, or fairness would be served by this [c]ourt exercising 25 supplemental jurisdiction over [p]laintiff’s state law claims, and to do so would be 26 inconsistent with the principle of comity.”); Cohill, 484 U.S. at 351–57 (concluding that 27 elimination of all federal claims gives the court “a powerful reason to choose not to 28 continue to exercise jurisdiction”).

V. CONCLUSION

2 For the foregoing reasons, the Court GRANTS City and County Defendants’ 3 || Motions to Dismiss as to Plaintiff's Eighth Amendment claim against all Defendants 4 || with prejudice because any amendment would be futile. See Gray v. JPMorgan Chase 5 || Bank, N.A., 661 F. Supp. 3d 991, 999 (C.D. Cal. March 13, 2023) (“Futility of 6 ||amendment can, by itself, justify the denial of a motion for leave to amend.’’) (quoting 7 || Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)). 8 As to Claims One and Three, the Court GRANTS City and County Defendants’ 9 || Motions to Dismiss without prejudice. 10 With respect to Plaintiffs’ state law claim in Claim Two, the Court DECLINES to 11 exercise supplemental jurisdiction. Accordingly, the Court DISMISSES Claim Two 12 || without prejudice. 28 U.S.C. § 1367(c); Carnegie-Mellon Univ., 484 U.S. at 350 n.7. 13 The dismissal is with leave to amend. Should Plaintiff wish to amend, any 14 ||amended complaint will be the operative pleading and shall be filed no later than 15 || December 4, 2024. Defendants must respond within the time prescribed by Federal Rule 16 || of Civil Procedure 15.4 Any claim not re-alleged and any Defendant not named in the 17 ||amended complaint will be considered waived. See CivLR 15.1; Hal Roach Studios, Inc. 18 || v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 19 || pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 20 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 21 ||amended pleading may be “considered waived if not repled’’). 22 IT IS SO ORDERED. 23 Dated: November 13, 2024

25 United States District Judge 26 || 27 ||4 In addition, the Court notes that any amended pleading must be accompanied by a version of that 3g || pleading that shows—through redlining or similar method—how that pleading differs from the previously dismissed pleading. See CivLR 15.1.c. 13

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