1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MUSLAH ABDUL-HAFEEZ, Case No.: 24-cv-1184-RSH-DDL

12 Plaintiff,

ORDER ON DEFENDANTS’

13 v. MOTION TO DISMISS

PLAINTIFF’S FIRST AMENDED

14 CITY OF SAN DIEGO, et al.,

COMPLAINT, AND PLAINTIFF’S

15 Defendants. REQUEST TO FILE SURREPLY,

AND ORDER TO SHOW CAUSE

16

17 [ECF Nos. 12, 15] 18 19 20 Before the Court is a motion to dismiss, filed by defendants City of San Diego 21 (“City”) and San Diego Police Department (“SDPD”) officer Dominic Lazaga (collectively 22 “Defendants”). ECF No. 12. Pursuant to Local Civil Rule 7.1(d)(1), the Court finds the 23 motion presented appropriate for resolution without oral argument. For the reasons below, 24 the Court grants Defendants’ motion. 25 I. BACKGROUND 26 A. Plaintiff’s Allegations 27 The instant civil rights action arises from Plaintiff’s arrest and detention. The First 28 Amended Complaint (“FAC”) alleges as follows. 1 Plaintiff Abdul-Hafeez is an African American male who engages in “cop watch” 2 duties. ECF No. 11 ¶ 14. Plaintiff is well known to SDPD officers, particularly to the 3 SDPD’s bike team. Id. 4 On or around July 9, 2023, Plaintiff was arrested and detained by defendant Lazaga 5 and various Doe SDPD police officers (collectively “Officer Defendants”) at or near the 6 parking lot of a Chase Bank branch in downtown San Diego. Id. ¶ 13. Plaintiff alleges he 7 heard gunshots and went to retrieve his phone from his car to film responding officers. Id. 8 ¶ 15. At the time, Plaintiff was wearing a neon green vest that read: “SESD 4th District 9 First Response Team Copwatch Accountability Unit.” Id. ¶ 16. 10 Upon retrieving his phone, Plaintiff was confronted by an unidentified officer from 11 the SDPD’s bike team. Id. ¶ 15. The officer drew his gun, pointed it at Plaintiff, and ordered 12 him to get on the ground with his hands out to his side. Id. Plaintiff immediately complied. 13 Id. ¶ 16. Despite this, several officers jumped on top of Plaintiff and forcefully hit him and 14 dug their nails into his skin. Id. ¶¶ 17–18. Plaintiff believes one of the officers kneeled on 15 him while he lay prone on the ground. Id. ¶ 19. 16 After Plaintiff was handcuffed and compliant in the prone position, officers pulled 17 at his shoulders in a manner that felt like they were trying to “pull his shoulders apart.” Id. 18 ¶ 20. The officers also painfully contorted and applied pressure to Plaintiff’s arms, 19 shoulders, neck and back, tightly handcuffed his wrists leaving marks, and dragged him by 20 his arms to another location. Plaintiff suffered a fractured shoulder and back and wrist 21 injuries. Id. ¶ 21. During his arrest and detention, officers also searched Plaintiff’s person 22 and clothing. Id. ¶ 23. Plaintiff was detained for hours and ultimately cited under California 23 Penal Code Section 148(a)(1).1 Id. ¶ 24. After his arrest, the Officer Defendants 24

25 1 California Penal Code § 148(a)(1) imposes a criminal penalty for “[e]very person 26 who willfully resists, delays, or obstructs any public officer [or] peace officer, . . . in the 27 discharge or attempt to discharge any duty of his or her office or employment.” Vanegas v. City of Pasadena, 46 F.4th 1159, 1165–66 (9th Cir. 2022) (quoting Cal. Penal Code § 28 1 collaborated to write a false report describing Plaintiff’s actions and the basis for his arrest. 2 Id. ¶ 24. No formal charges were ever filed against him. Id. 3 B. Procedural Background 4 On July 9, 2024, Plaintiff filed the instant action. ECF No. 1. On September 30, 5 2025, Plaintiff filed his FAC, the operative pleading in this case. ECF No. 12. The FAC 6 asserts sixteen causes of action, including various federal civil rights claims under 42 7 U.S.C. § 1983 against the Officer Defendants and the City. FAC ¶¶ 40–139. The FAC also 8 asserts state law claims for intentional infliction of emotional distress, assault, battery, and 9 violation of California Code § 52.1. Id. ¶¶ 140–161. On November 19, 2024, the 10 Defendants filed the instant motion to dismiss. ECF No. 12.2 Plaintiff filed an opposition, 11 and Defendants filed a reply. ECF Nos. 13, 14. 12 II. LEGAL STANDARD 13 A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.” 14 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive a motion to dismiss, a 15 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 16 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 17 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[T]he non-conclusory ‘factual content,’ 18 and reasonable inferences from that content, must be plausibly suggestive of a claim 19 entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 20 21 22 2 Defendants characterize their motion as a motion to dismiss the entirety of 23 Plaintiff’s FAC. ECF No. 12-1 at 18. Nevertheless, Defendants did not move to dismiss Plaintiff’s Fourth Amendment claims for unlawful seizure and arrest (Claim 3), unlawful 24 search (Claim 5), and excessive force (Claim 6) or any of Plaintiff’s state law claims 25 (Claims 13–16). See ECF Nos. 12-1; 14. The Court will, therefore, not address the adequacy of the above claims in this Order. See Greenwood v. FAA, 28 F.3d 971, 977 (9th 26 Cir. 1994) (courts “will not manufacture arguments for [either party], and a bare assertion 27 does not preserve a claim, particularly when, as here, a host of other issues are presented for review.”); Ortiz v. Pacific, 973 F. Supp. 2d 1162, 1185 (E.D. Cal. 2013) (“It is not the 28 1 The plausibility review is a “context-specific task that requires the reviewing court to draw 2 on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. 3 Pleading facts “‘merely consistent with’ a defendant’s liability” falls short of a 4 plausible entitlement to relief. Id. at 678 (quoting Twombly, 550 U.S. at 557). “[W]here the 5 well-pleaded facts do not permit the court to infer more than the mere possibility of 6 misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled 7 to relief.” Id. at 679 (internal quotation marks omitted). A court “accept[s] factual 8 allegations in the complaint as true and construe[s] the pleadings in the light most favorable 9 to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 10 1031 (9th Cir. 2008). On the other hand, a court is “not bound to accept as true a legal 11 conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal quotation 12 marks omitted). 13 III. ANALYSIS 14 A. Individual Section 1983 Claims (Claims 1-7) 15 The FAC asserts seven federal civil rights claims under 42 U.S.C. § 1983 against the 16 Officer Defendants. FAC ¶¶ 40–77. Defendants move to dismiss: (1) all of Plaintiff’s 17 § 1983 claims asserted against defendant Lazaga for failure to allege personal participation; 18 and (2) claims 1, 2, 4 and 7 on various grounds, including failure to state a claim and for 19 being improperly duplicative. ECF No. 12-1 at 10–12. The Court addresses these 20 arguments below. 21 1. General 22 “The Civil Rights Act codified in 42 U.S.C. § 1983 provides a cause of action against 23 state officials who deprive a plaintiff of [his] federal constitutional rights.” Sinclair v. City 24 of Seattle, 61 F.4th 674, 678 (9th Cir. 2023). “Section 1983 does not create any substantive 25 rights; rather it is the vehicle whereby plaintiffs can challenge actions by governmental 26 officials.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “To prove a case under 27 section 1983, the plaintiff must demonstrate that (1) the action occurred ‘under color of 28 state law’ and (2) the action resulted in the deprivation of a constitutional right or federal 1 statutory right.” Id. “[T]he statute requires that there be an actual connection or link 2 between the actions of the defendants and the deprivation alleged to have been suffered by 3 plaintiff.” Kiger v. Johnson, No. 223CV1263KJMDBP, 2024 WL 345978, at *2 (E.D. Cal. 4 Jan. 30, 2024). 5 2. Allegations Against Lazaga 6 Defendants first argue Plaintiff has failed to state a § 1983 claim against defendant 7 Lazaga, because Plaintiff has not adequately alleged how Lazaga personally participated 8 in the deprivation of Plaintiff’s constitutional rights. ECF No. 12-1 at 9–10. Plaintiff 9 responds the FAC adequately alleges defendant Lazaga was present at the scene, but failed 10 to intervene to prevent other officers from violating Plaintiff’s rights. ECF No. 13 at 21– 11 24. 12 “[P]olice officers have a duty to intercede when their fellow officers violate the 13 constitutional rights of a suspect or other citizens.” Cunningham v. Gates, 229 F.3d 1271, 14 1289 (9th Cir. 2000) (internal quotation marks omitted). “Importantly, however, officers 15 can be held liable for failing to intercede only if they had an opportunity to intercede.” Id. 16 The inquiry as to whether any officer had the opportunity to intercede “is specific to [each] 17 individual defendant.” Adams v. Kraft, No. 5:10-CV-00602-LHK, 2011 WL 3240598, at 18 *21 (N.D. Cal. July 29, 2011). 19 Here, the FAC alleges defendant Lazaga and multiple unidentified Doe defendants 20 detained Plaintiff without reasonable suspicion, probable cause, or any other basis in law. 21 FAC ¶ 13. The FAC then alleges the Officer Defendants did not “intervene to stop the 22 beating” of Plaintiff even though he was compliant with their instructions. Id. ¶ 22. The 23 FAC does not allege what Lazaga’s exact role in Plaintiff’s arrest was or establish that 24 Lazaga had a realistic opportunity to intercede. Such conclusory allegations are insufficient 25 to state a plausible claim against Lazaga. See Shirazi v. Oweis, No. 5:21-CV-00136-EJD, 26 2022 WL 445763, at *6 (N.D. Cal. Feb. 14, 2022) (granting motion to dismiss failure to 27 intercede claim where pleading failed to allege specific facts to each individual defendant 28 or establish they had a realistic opportunity to intercede); Adams, 2011 WL 3240598, at 1 *21–22 (granting motion to dismiss where plaintiff merely alleged officers were present at 2 his arrest without any facts as to their exact role in plaintiff’s arrest or whether they had 3 the opportunity to intervene). For these reasons, the Court GRANTS Defendants’ motion 4 to dismiss Plaintiff’s individual § 1983 claims against defendant Lazaga. 5 3. First Amendment Free Speech (Claim 1) 6 In Claim 1 of the FAC, Plaintiff asserts a First Amendment retaliation claim against 7 the Officer Defendants. FAC ¶¶ 40–44. Defendants move to dismiss this clam, contending 8 Plaintiff’s claim is conclusory and unsupported by a sufficient factual basis. ECF No. 12- 9 1 at 10. Plaintiff does not address this argument in his Response. See ECF No. 13. 10 “[T]he First Amendment prohibits government officials from subjecting an 11 individual to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 587 12 U.S. 391, 398 (2019) (internal quotation marks omitted). “To recover under § 1983 for 13 such retaliation, a plaintiff must prove: (1) he engaged in constitutionally protected activity; 14 (2) as a result, he was subjected to adverse action by the defendant that would chill a person 15 of ordinary firmness from continuing to engage in the protected activity; and (3) there was 16 a substantial causal relationship between the constitutionally protected activity and the 17 adverse action.” Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010). 18 Here, Plaintiff alleges the Officer Defendants acted in retaliation for his “cop watch 19 activities.” FAC ¶¶ 42–43. As a general principle, however, the “mere speculation that 20 defendants acted out of retaliation is not sufficient” to assert a First Amendment retaliation 21 claim. Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014); see Hill v. Rivera, No. ED CV 22 22-0060-JLS(E), 2022 WL 21663917, at *2 (C.D. Cal. Mar. 14, 2022) (holding that 23 plaintiff’s “conclusory and speculative allegations” of retaliation were “legally insufficient 24 to state a claim.”); Cox v. Palmer, No. 3:08-CV-00663-ECR, 2011 WL 4344047, at *2 (D. 25 Nev. July 27, 2011) (holding a plaintiff’s “mere speculation or implication” of a causal 26 relationship was insufficient to set forth a First Amendment retaliation claim). Plaintiff has 27 not provided any meaningful argument as to why such conclusory allegations are sufficient. 28 For these reasons, the Court GRANTS Defendants’ motion to dismiss Claim 1. 1 4. Substantive Due Process and Equal Protection (Claim 2) 2 In Claim 2 of the FAC, Plaintiff asserts a Fourteenth Amendment substantive due 3 process and equal protection claim against the Officer Defendants. FAC ¶¶ 45–53. 4 Defendants move to dismiss this claim, contending: (1) Plaintiff’s due process claim is 5 duplicative of Plaintiff’s Fourth Amendment claims; and (2) Plaintiff’s equal protection 6 claim is conclusory and unsupported by a sufficient factual basis. ECF No. 12-1 at 10–12. 7 The Court addresses each of these arguments below. 8 a. Due Process 9 The Court turns first to Plaintiff’s due process claim. Here, Plaintiff’s Fourteenth 10 Amendment and Fourth Amendment claims both appear based on Plaintiff’s search and 11 arrest. FAC ¶¶ 49–50, 54–73. “Where a particular Amendment provides an explicit textual 12 source of constitutional protection against a particular sort of government behavior, that 13 Amendment, not the more generalized notion of substantive due process, must be the guide 14 for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (internal 15 quotation marks omitted). In this case, “[b]ecause the Fourth Amendment provides an 16 explicit textual source of constitutional protection against . . . physically intrusive 17 governmental conduct, that Amendment, not the more generalized notion of ‘substantive 18 due process,’ must be the guide for analyzing these claims.” Graham v. Connor, 490 U.S. 19 386, 395 (1989). 20 Notably, Plaintiff has not provided any meaningful response as to why his 21 Fourteenth Amendment substantive due process and Fourth Amendment claims are not 22 duplicative. The Court therefore finds the dismissal of Plaintiff’s substantive due process 23 claim appropriate. See Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 24 2002) (affirming dismissal of due process claims where Fourth Amendment and not the 25 more generalized notion of substantive due process was appropriate guide for analyzing 26 claims); see Burns v. City of Concord, No. C 14-00535 LB, 2014 WL 5794629, at *7 (N.D. 27 Cal. Nov. 6, 2014) (dismissing Fourteenth Amendment substantive due process claim as 28 1 duplicative of Fourth Amendment claim); Fidge v. Lake Cnty. Sheriff's Dep’t, No. 13-CV- 2 5182 YGR, 2014 WL 969297, at *4 (N.D. Cal. Mar. 6, 2014) (same). 3 b. Equal Protection 4 The Court turns next to Plaintiff’s equal protection claim. Defendants move to 5 dismiss this claim, contending Plaintiff has failed to plead any facts establishing Plaintiff 6 was treated differently due to his race or that the Officer Defendants acted with 7 discriminatory intent. ECF No. 12-1 at 11–12. 8 The Equal Protection Clause of the Fourteenth Amendment provides, in relevant 9 part, that: “[n]o state shall . . . deny to any person within its jurisdiction the equal protection 10 of the laws.” U.S. Const., amend. XIV. “To state a claim under 42 U.S.C. § 1983 for a 11 violation of the Equal Protection Clause of the Fourteenth Amendment[,] a plaintiff must 12 show that the defendants acted with an intent or purpose to discriminate against the plaintiff 13 based upon membership in a protected class.” Shooter v. Arizona, 4 F.4th 955, 960 (9th 14 Cir. 2021) (internal quotation marks omitted). 15 Here, the FAC alleges that the Officer Defendants’ actions “amounted to racial 16 profiling” of Plaintiff’s status as an African American male. FAC ¶¶ 14, 51. As a general 17 principle, however, conclusory allegations of racial profiling “unsupported by any facts as 18 to how race entered into any decisions” are insufficient to give rise to a plausible § 1983 19 claim. Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984); Barnes 20 v. Yand, No. 120CV00389DADSAB, 2020 WL 1892458, at *3 (E.D. Cal. Apr. 16, 2020) 21 (“Plaintiff’s conclusory allegations of racial profiling are insufficient to state a cognizable 22 claim.”), report and recommendation adopted, No. 120CV00389DADSAB, 2020 WL 23 3060385 (E.D. Cal. June 9, 2020); James v. Hayward Police Dep’t, No. C 10-4009 SI PR, 24 2010 WL 5211503, at *1 (N.D. Cal. Dec. 16, 2010) (“The allegation of racial profiling is 25 dismissed with leave to amend because it is nothing more than a conclusory allegation and 26 that is insufficient to state a claim.”). Again, Plaintiff has not provided any meaningful 27 argument as to why such conclusory allegations are sufficient. For these reasons, the Court 28 GRANTS Defendants’ motion to dismiss Claim 2. 1 5. False Imprisonment (Claim 4) 2 In Claim 4 of the FAC, Plaintiff asserts a Fourth Amendment false imprisonment 3 claim against the Officer Defendants. FAC ¶¶ 63–68. Defendants request that the Court 4 dismiss or strike this claim as being duplicative of Plaintiff’s claim for violation of the 5 Fourth Amendment right against unlawful seizure and arrest. ECF No. 12-1 at 12. 6 “[A] district court has broad discretion to control its own docket, and that includes 7 the power to dismiss duplicative claims.” M.M. v. Lafayette Sch. Dist., 681 F.3d 1082, 1091 8 (9th Cir. 2012). Here, Plaintiff contends his false arrest and false imprisonment claims are 9 legally distinct, as his false arrest claim derives from the Officer Defendants confining him 10 without proper legal grounds, while his false imprisonment claim derives from his 11 detention in a patrol vehicle for hours—also without legal grounds. ECF No. 13 at 24. 12 Here, Plaintiff’s false arrest and false imprisonment claims are both predicated on 13 Plaintiff’s allegations that the Officer Defendants lacked a lawful basis to arrest him and 14 then did so. The Court concludes that they are duplicative. See Gil v. Las Vegas Metro. 15 Police Dep’t, No. 223CV02103GMNBNW, 2024 WL 1344853, at *1 (D. Nev. Mar. 29, 16 2024) (dismissing false imprisonment claim as duplicative of unlawful arrest claim); Young 17 v. City of Menifee, No. EDCV171630JGBSPX, 2023 WL 11053618, at *22 (C.D. Cal. 18 Sept. 14, 2023) (“[S]ince any ‘false imprisonment’ claim Plaintiff may assert is predicated 19 on a lack of probable cause to arrest him, the ‘false arrest’ and ‘false imprisonment’ 20 inquiries are the same.”); Raudelunas v. City of Vallejo, No. 221CV00394KJMJDP, 2022 21 WL 329200, at *5 (E.D. Cal. Feb. 3, 2022) (noting that in § 1983 actions, courts have 22 treated “false arrest” and “false imprisonment” claims “interchangeably and analyzed them 23 concurrently.”) (collecting cases); Mora v. City of Chula Vista, No. 20CV779-GPC(AGS), 24 2021 WL 1165054, at *6 (S.D. Cal. Mar. 26, 2021) (granting plaintiff leave to amend to 25 clarify how false imprisonment and false arrest claims were not duplicative). 26 For these reasons, the Court GRANTS Defendants’ motion to dismiss Claim 4. 27 /// 28 /// 1 6. Conspiracy (Claim 7) 2 In Claim 7 of the FAC, Plaintiff alleges a conspiracy by the Officer Defendants to 3 deprive him of his constitutional rights. FAC ¶¶ 74–77. Defendants move to dismiss this 4 claim as conclusory. ECF No. 12-1 at 12–13. Plaintiff does not address this argument in 5 his Response. See ECF No. 13. 6 “To establish liability for a conspiracy in a § 1983 case, a plaintiff must demonstrate 7 the existence of an agreement or meeting of the minds to violate constitutional rights.” 8 Crowe v. Cty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (internal quotation marks 9 omitted). “Such an agreement need not be overt, and may be inferred on the basis of 10 circumstantial evidence such as the actions of the defendants.” Id. As a general principle, 11 “[t]o state a claim for a conspiracy to violate one’s constitutional rights under section 1983, 12 the plaintiff must state specific facts to support the existence of the claimed conspiracy.” 13 Burns v. Cty. of King, 883 F.2d 819, 821 (9th Cir. 1989). Conclusory allegations of a 14 conspiracy are not sufficient. See Woodrum v. Woodward Cty., 866 F.2d 1121, 1126 (9th 15 Cir. 1989); Rouse v. Campagna, No. 10CV1304 WQH BGS, 2010 WL 4817994, at *1 16 (S.D. Cal. Nov. 19, 2010) (“[P]leading a conspiracy [under § 1983] requires more than a 17 conclusory allegation that Defendants conspired to deprive Plaintiff's civil rights.”). 18 Here, the FAC alleges only that the Officer Defendants “conspired” to unlawfully 19 search and detain the Plaintiff, use excessive force against him, and create false police 20 reports following his unlawful arrest. FAC ¶¶ 24, 77. Plaintiff has not provided any 21 meaningful argument as to why these allegations are sufficient. For these reasons, the Court 22 GRANTS Defendants’ motion to dismiss Claim 7. 23 B. Monell Section 1983 Claims (Claims 8-12) 24 The FAC asserts four federal civil rights claims under Monell against the City, 25 defendant Lazaga, and “applicable Does.” FAC ¶¶ 78–139. Defendants move to dismiss 26 these claims: (1) because Monell claims cannot be brought against individual defendants; 27 and (2) for failure to state a claim. ECF No. 12-1 at 9–10, 13–18. The Court addresses these 28 arguments below. 1 1. General 2 Municipal entities “cannot be held liable under § 1983 on a respondeat superior 3 theory.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Instead, a municipal 4 entity can be held liable only if a “policy or custom” of the municipality “inflicts the injury 5 that the government as an entity is responsible under § 1983.” Id. at 694. “In order to 6 establish liability for governmental entities under Monell, a plaintiff must prove ‘(1) that 7 the plaintiff possessed a constitutional right of which she was deprived; (2) that the 8 municipality had a policy; (3) that this policy amounts to deliberate indifference to the 9 plaintiff’s constitutional right; and (4) that the policy is the moving force behind the 10 constitutional violation.’” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) 11 (quoting Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). 12 “A plaintiff can satisfy Monell’s policy requirement in one of three ways.” Gordon 13 v. Cty. of Orange, 6 F.4th 961, 973 (9th Cir. 2021). “First, a local government may be held 14 liable when it acts pursuant to an expressly adopted official policy.” Id. (internal quotation 15 marks omitted). “Second, a public entity may be held liable for a longstanding practice or 16 custom.” Id. (internal quotation marks omitted). “Third, a local government may be held 17 liable under [Section] 1983 when the individual who committed the constitutional tort was 18 an official with final policy-making authority or such an official ratified a subordinate’s 19 unconstitutional decision or action and the basis for it.” Id. at 974 (internal quotation marks 20 omitted). 21 2. Allegations Against Lazaga 22 Defendants argue Plaintiff has failed to state a Monell claim against defendant 23 Lazaga, because Monell claims are brought against public entities and not individuals. ECF 24 No. 12-1 at 9–10. The Court agrees. “A section 1983 claim premised on Monell can be 25 asserted only against a municipality or local government unit.” Langham v. City of Union 26 City, No. 4:22-CV-06284-YGR, 2024 WL 3431342, at *3 (N.D. Cal. Jan. 25, 2024); 27 Hernandez v. San Bernardino Cnty., No. EDCV221101JGBSPX, 2023 WL 3432206, at *5 28 (C.D. Cal. Jan. 26, 2023) (“A Monell claim is, by definition, one brought against a public 1 entity alone.”); Patino v. Cnty. of Monterey, No. 22-CV-01564-BLF, 2023 WL 375349, at 2 *4 (N.D. Cal. Jan. 24, 2023) (“Monell claims cannot be asserted against Moving Parties in 3 their individual capacities.”). The Court therefore GRANTS Defendants’ motion to 4 dismiss Claims 8-12 against Lazaga. 5 3. Allegations against the City 6 a. Underlying Constitutional Violation 7 “The threshold question as to whether Plaintiff can establish Monell liability is 8 whether a constitutional violation has occurred.” Segura v. City of La Mesa, 647 F. Supp. 9 3d 926, 934 (S.D. Cal. 2022); see Lockett v. Cty. of L.A., 977 F.3d 737, 741 (9th Cir. 10 2020) (Monell claims are “contingent on a violation of constitutional rights.”) (internal 11 quotation marks omitted). 12 Here, Plaintiff bases his Monell claims on four general categories of actions taken 13 by SDPD officers: (1) the harassment, intimidation, citation, and arrest of African- 14 American persons who “exercise their First Amendment rights of freedom of expression”; 15 (2) the contact, detention, search and arrest of Black individuals on the basis of race; (3) 16 the contact, detention, search and arrest of individuals without reasonable suspicion, 17 probable cause, or any other lawful basis; and (4) the use of excessive force by SDPD 18 officers. See FAC ¶¶ 80, 81–83, 96, 105, 111, 118. 19 As the Court holds above, however, Plaintiff has not adequately pleaded individual 20 § 1983 First Amendment free speech or Fourteenth Amendment equal protection claims. 21 To the extent Plaintiff’s Monell claims are based on these underlying alleged constitutional 22 violations, they also fail. See Phommathep v. Cnty. of Tehama, No. 22-15132, 2023 WL 23 2400802, at *2 (9th Cir. Mar. 8, 2023) (“Plaintiffs’ underlying constitutional claims fail, 24 so their Monell claim fails, too.”); Loritz v. San Diego Cnty., No. 05-56613, 2007 WL 25 1225361, at *2 (9th Cir. Apr. 25, 2007) (“[I]f there has been no violation of an individual’s 26 constitutional rights, then the claims against the municipal defendants must be 27 dismissed.”); Est. of Posard v. Los Angeles Cnty. Sheriff’s Dep’t, No. CV 23-10460 PA 28 (EX), 2024 WL 3467775, at *4 (C.D. Cal. May 31, 2024) (“[A] violation of an individual’s 1 constitutional rights is essential to the imposition of Monell liability.”); Parker v. Cnty. of 2 Riverside, No. EDCV 21-1280 JGB (KKX), 2023 WL 11952790, at *8 (C.D. Cal. Nov. 21, 3 2023) (dismissing Monell claim based on malicious prosecution where Court already 4 dismissed individual § 1983 malicious prosecution claim). 5 Defendants did not move to dismiss Plaintiff’s individual § 1983 Fourth Amendment 6 claims for unlawful seizure and arrest, unlawful search, and excessive force. See ECF No. 7 12-1. The Court therefore assumes, without deciding, that the actions of the Officer 8 Defendants alleged in these claims could have violated Plaintiff’s constitutional rights. The 9 Court focuses its analysis of Plaintiff’s Monell claims below accordingly. 10 b. Practice and Custom (Claim 8) 11 In Claim 8 of the FAC, Plaintiff alleges that the City, through the SDPD, maintains 12 an “unconstitutional custom, policy, or practice of authorizing or condoning officers to 13 initiate contacts, detentions, and arrests of individuals without reasonable suspicion or 14 probable cause.” FAC ¶ 83. As Plaintiff has not identified an official policy, the Court 15 construes Claim 8 as being based on an unofficial practice, custom or policy. Defendants 16 move to dismiss Claim 8, contending Plaintiff has failed to plead a persistent or widespread 17 policy of unconstitutional conduct. ECF No. 12-1 at 14–15. The Court agrees. 18 “An unconstitutional policy need not be formal or written to create municipal 19 liability under Section 1983; however, it must be ‘so permanent and well settled as to 20 constitute a ‘custom or usage’ with the force of law.’” Gordon, 6 F.4th at 974 (quoting 21 Adickes v. S. H. Kress & Co., 398 U.S. 144, 169 (1970)). “Liability for improper custom 22 may not be predicated on isolated or sporadic incidents; it must be founded upon practices 23 of sufficient duration, frequency and consistency that the conduct has become a traditional 24 method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 25 Here, the FAC cites four studies to support Plaintiff’s allegations on the SDPD’s 26 customs, policies and practices: (1) a 2016 study conducted by San Diego State University, 27 commissioned by the City of San Diego; (2) a 2019 NBC San Diego report; (3) a report 28 from the Police Scorecard, a nationwide public evaluation of policing in the United States; 1 and (4) a 2021 report conducted by the Center for Policing Equity, commissioned by the 2 SDPD. FAC ¶¶ 26–34. However, the FAC does not allege, nor does Plaintiff explain, how 3 any of these reports or studies are directed to the contact, search, and arrest of individuals 4 by SDPD officers without reasonable suspicion, probable cause, or other lawful basis. 5 Consequently, Plaintiff has not pleaded how any other person was subject to contact, 6 detention, or arrest by SDPD police officers without reasonable suspicion or probable 7 cause. This is not sufficient to set forth a plausible Monell claim. See, e.g., Mitchell v. Cnty. 8 of Contra Costa, No. 21-CV-05014-DMR, 2022 WL 526161, at *5 (N.D. Cal. Feb. 22, 9 2022) (dismissing Monell claim where “[t]he complaint does not allege that any other 10 person was subjected to similar unconstitutional conduct”); Hensley v. City of Upland, CA, 11 No. CV 20-2462-CBM-(ASX), 2021 WL 1585212, at *4 (C.D. Cal. Mar. 1, 2021) 12 (dismissing Monell claim because the complaint did not identify “any specific incidents 13 . . . other than the incident involving Plaintiff”); Nixon v. Buck, No. CV1904610CJCSHSX, 14 2019 WL 12377857, at *4 (C.D. Cal. Nov. 13, 2019) (dismissing Monell claim where 15 allegations of an unconstitutional policy was “premised entirely on Plaintiff’s own 16 experience”); Young v. City of Menifee, No. EDCV171630JGBSPX, 2019 WL 4238880, 17 at *6 (C.D. Cal. Aug. 2, 2019) (dismissing Monell claim when plaintiff failed to “identify 18 any specific instances,” other than his own experience, “where [defendant] engaged in such 19 [unconstitutional] conduct”). For these reasons, the Court GRANTS Defendants’ motion 20 to dismiss Claim 8. 21 c. Failure to Train (Claim 9) 22 In Claims 9 of the FAC, Plaintiff alleges that the City, through the SDPD, failed to 23 properly train its officers “on the dangers of kneeling on a prone individual’s back and 24 piling onto compliant individuals.” FAC ¶ 96. Defendants move to dismiss, contending 25 Plaintiff has not alleged facts establishing SDPD Officers repeatedly kneeled on prone 26 individuals. ECF No. 12-1 at 16. The Court agrees. 27 A “[f]ailure to train may constitute a basis for Monell liability where the failure 28 amounts to deliberate indifference to the rights of those who deal with municipal 1 employees.” Benavidez v. Cty. of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021). “Mere 2 negligence will not suffice to show Monell liability.” Id. “To allege a failure to train, a 3 plaintiff must include sufficient facts to support a reasonable inference (1) of a 4 constitutional violation; (2) of a municipal training policy that amounts to a deliberate 5 indifference to constitutional rights; and (3) that the constitutional injury would not have 6 resulted if the municipality properly trained their employees.” Id. “A municipality’s 7 culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure 8 to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). “A pattern of similar constitutional 9 violations by untrained employees is ordinarily necessary to demonstrate deliberate 10 indifference for purposes of failure to train, though there exists a narrow range of 11 circumstances [in which] a pattern of similar violations might not be necessary to show 12 deliberate indifference.” Flores v. Cty. of L.A., 758 F.3d 1154, 1159 (9th Cir. 2014) 13 (internal quotation marks omitted). 14 Here, Plaintiff fails to adequately allege a pattern of similar constitutional violations 15 to plausibly support a claim for failure to train. The studies Plaintiff cite do not discuss 16 SDPD officers kneeling on a prone individual’s back. Plaintiff also does not explain how 17 a pattern of similar constitutional violations has been pleaded or how his case is one of the 18 rare instances in which a pattern is unnecessary. Connick, 563 U.S. at 63 (holding district 19 attorney could not have been put on notice that “specific training was necessary” to avoid 20 a constitutional violation based on incidents that were not similar to the violation at issue); 21 Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005) (“Prior 22 indications cannot simply be for any and all ‘bad’ or unwise acts, but rather must point to 23 the specific violation in question. That is, notice of a pattern of similar violations is 24 required.”). For these reasons, the Court GRANTS Defendants’ motion to dismiss 25 Claim 9. 26 d. Failure to Supervise (Claims 10 and 11) 27 In Claims 10 and 11 of the FAC, Plaintiff alleges that the City, through the SDPD, 28 failed to supervise or discipline officers on unlawful detentions and the use of excessive 1 force. FAC ¶¶ 104–116. These claims fail for the same reasons as Plaintiff’s failure to train 2 claim above. See Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989) (“[City 3 of Canton, Ohio v. Harris, 489 U.S. 378 (1989)] dealt specifically with inadequate training. 4 We see no principled reason to apply a different standard to inadequate supervision.”); 5 Russell v. City of San Diego, No. 24CV0527-GPC(SBC), 2025 WL 297034, at *7 (S.D. 6 Cal. Jan. 24, 2025) (“A claim of failure to supervise and discipline is subject to the same 7 standard as a failure to train claim.”). Again, Plaintiff has not plausibly pleaded a pattern 8 of similar constitutional violations or explained how this is one of the rare cases in which 9 a pattern is unnecessary. For these reasons, the Court GRANTS Defendants’ motion to 10 dismiss Claims 10 and 11. 11 e. Failure to Properly Screen and Hire (Claim 12) 12 In Claim 12 of the FAC, Plaintiff alleges that the City, through the SDPD, failed to 13 properly screen and hire its police officers “in a manner consistent with constitutional 14 requirements and public safety” resulting in officers who have exhibited a pattern of 15 unlawful stops and excessive force. FAC ¶¶ 117–139. Defendants move to dismiss this 16 claim as conclusory. ECF No. 12-1 at 17–18. Plaintiff argues the Court may infer the City’s 17 negligent hiring and screening practices based on the Officer Defendants’ actions in this 18 case. ECF No. 13 at 20–21. 19 “Deliberate indifference in [the failure to properly screen and hire] context is only 20 present ‘where adequate scrutiny of an applicant’s background would lead a reasonable 21 policymaker to conclude that the plainly obvious consequence of the decision to hire the 22 applicant would be the deprivation of a third party’s federally protected right.” Whyte v. 23 City of San Diego, No. 21CV1159-LAB-MDD, 2022 WL 17491178, at *3 (S.D. Cal. Dec. 24 7, 2022) (quoting Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 411 25 (1997)). 26 Here, the FAC fails to allege any facts regarding the SDPD’s hiring policies or allege 27 any facts regarding the Officer Defendants’ backgrounds to support the allegation the City 28 was “deliberately indifferent” in their hiring processes. See Whyte, 2022 WL 17491178, at 1 *3 (dismissing failure to properly screen and hire claim where plaintiff failed to provide 2 facts regarding the City’s hiring practices or officer defendant’s background to support 3 deliberate indifference in screening and hiring process); Amaral v. City of San Diego, No. 4 17-CV-02409-L-JMA, 2018 WL 3302987, at *3 (S.D. Cal. July 5, 2018) (same). Plaintiff 5 does not cite any authority to support his argument that the Court may “infer” the City’s 6 negligent hiring and screening practices based on such conclusory allegations. For these 7 reasons, the Court GRANTS Defendants’ motion to dismiss Claim 12. 8 IV. LEAVE TO AMEND 9 The Parties dispute whether Plaintiff should be given leave to amend in this case. 10 Compare ECF No. 13 at 6 with ECF No. 14 at 2. Although Plaintiff has already amended 11 his complaint once, he may be able to cure the defects identified herein by further 12 amendment. See Knappenberger v. City of Phoenix., 566 F.3d 936, 942 (9th Cir. 2009) 13 (“Leave to amend should be granted unless the district court determines that the pleading 14 could not possibly be cured by the allegation of other facts.”) (internal quotation marks 15 omitted). Nevertheless, the Court also concludes one of the defects identified above cannot 16 be cured—as explained above. The Court therefore GRANTS IN PART and DENIES IN 17 PART Plaintiff’s leave to amend the claims that are dismissed herein.3 18 V. DOE DEFENDANTS 19 Under Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not served within 20 90 days after the complaint is filed, the court—on motion or on its own after notice to the 21 plaintiff—must dismiss the action without prejudice against that defendant or order that 22 service be made within a specified time. But if the plaintiff shows good cause for the 23 failure, the court must extend the time for service for an appropriate period.” Fed. R. Civ. 24 25 26 3 Plaintiff also requested leave to file a surreply to clarify that: (1) he is requesting 27 leave to amend; and (2) to address the sufficiency of Plaintiff’s Monell claims. ECF No. 15 at 5. In light of the Court’s ruling allowing Plaintiff a further opportunity to amend, the 28 1 ||P. 4Gm). The 90-day deadline under Rule 4(m) applies to Doe defendants. See Williams v. 2 || Cnty. of Los Angeles, No. 23-55155, 2024 WL 2862587, at *1 (9th Cir. June 6, 2024); 3 || Jackson v. McMahon, No. EDCV190548SBPVC, 2021 WL 3208029, at *2 (C.D. Cal. July 4 ||29, 2021) (“The 90-day service deadline under Rule 4(m) applies to Doe Defendants.”). 5 Plaintiff's deadline to serve the Doe defendants in this case has passed and there is 6 ||no indication on the docket that Plaintiff has identified the Doe defendants or properly 7 served them. Plaintiff is therefore ORDERED TO SHOW CAUSE as to why the Doe 8 ||defendants should not be dismissed for failure to effect service under Rule 4(m). Plaintiff 9 || must respond to the Court’s Order to Show Cause in writing within fourteen (14) days of 10 || the date of this Order. 11 || VI. CONCLUSION 12 For the above reasons, the Court GRANTS Defendants’ motion to dismiss as 13 || follows: 14 1. The Court GRANTS Defendants’ motion to dismiss all individual § 1983 15 || claims (claims 1-7) against defendant Lazaga WITHOUT PREJUDICE; 16 2. The Court GRANTS Defendants’ motion to dismiss all Monell claims (claims 17 || 8-12) against defendant Lazaga WITH PREJUDICE; 18 3. The Court GRANTS Defendants’ motion to dismiss Claims 1-2, 4, 7, and 19 WITHOUT PREJUDICE. 20 If Plaintiff chooses to file a Second Amended Complaint, Plaintiff must do so within 21 || fourteen (14) days of the date of this Order. Defendants’ time to respond to the operative 22 ||pleading will begin to run on the earlier of the date Plaintiff files a Second Amended 23 ||Complaint or fourteen (14) days from the date of this Order. 24 IT IS SO ORDERED. 25 || Dated: March 4, 2025 ‘ 26 ebut ¢ Howe 7 Hon. Robert S. Huie United States District Judge 28