1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10

MICHAEL PEREIRA,

11 Case No. 24-cv-1772 NC Plaintiff, 12

ORDER GRANTING

v. 13 DEFENDANTS’ MOTION TO CITY OF SAN JOSE, and specified DISMISS COMPLAINT WITH 14 Police Officers, LEAVE GRANTED TO FILE

SECOND AMENDED COMPLAINT

15 Defendants.

16 Re: Dkt. 21

17 18 This case arises out of alleged excessive force used by San Jose Police Officers 19 when they arrested plaintiff Michael Pereira on March 23, 2022. The operative Complaint 20 discussed in this Order is the First Amended Complaint filed by Pereira on June 12, 2024. 21 Dkt. 21. The allegations repeated in this Order are set forth in the Complaint and are 22 assumed true for purposes of the present motion only. If the case advances, the 23 Defendants later will have an opportunity to factually challenge the allegations and all 24 parties will be permitted to introduce evidence to support or rebut the allegations. 25 Factual Allegations in Pereira’s Complaint 26 In the Complaint, Pereira asserts that he is of slight build (120 pounds and 5’9” tall) 27 and walks with a cane. Dkt. 21 ¶ 28. On March 23, 2022, he was in his vehicle outside a 1 asserts multiple unmarked police vehicles collided with his parked car and officers threw 2 multiple flash-bang grenades through his windows into his vehicle. Dkt. 21 ¶ 12. Pereira 3 alleges that he was then shot multiple times with rubber bullets. Next, Pereira complied 4 with officer commands to put his hands behind his back. Dkt. 21 ¶ 16. As he was 5 standing with his hands behind his back, an officer approached Pereira and grabbed one of 6 his wrists. Instead of grabbing the other one and attempting to put Pereira into handcuffs, 7 the officer twisted his arm causing a sprain. Dkt. 21 ¶ 16. Pereira alleges that the officers 8 accused Mr. Pereira of having murdered and buried his daughter. Dkt. 21 ¶ 17. They 9 demanded to know where she was buried. “After Mr. Pereira answered these questions 10 with his insistence that he did not know what the officers were talking about, the officer 11 who had ahold of his wrist raised and twisted Mr. Pereira’s arm to the point that it broke, 12 and his elbow was dislocated.” Dkt. 21 ¶ 18. The questioning continued. Then, Pereira 13 felt the impact from another officer’s fist. Pereira fell to the ground where officers 14 continued to strike him. Dkt. 21 ¶ 19. “Once he was on the ground a K-9 police dog 15 began to bite him. When the officers noticed that someone was recording the incident 16 from in or around the McDonalds, the officers pulled him to one side so that a pillar 17 blocked the view of the person who was recording the incident. Mr. Pereira believes that 18 the dog was pulled off and then allowed to bite him again during his ordeal. He was not 19 resisting, was face down on the ground, and had several police officers on top of him. The 20 dog was also pulled while its teeth were in Mr. Pereira’s flesh causing the wounds to be 21 torn open.” Dkt. 21 ¶ 20. 22 As to injuries, Pereira asserts that he suffered multiple serious injuries including, 23 but not limited to, a broken and dislocated elbow, deep bruising from being shot by less 24 lethal rounds from a firearm, and a fractured rib. He also suffered over a hundred puncture 25 wounds from the K-9 dog being used by the SJPD officers during his arrest. He also 26 suffered two “slicing type wounds” on his abdomen, that he asserts may have been caused 27 by some type of edged weapon (like a knife) that may have been used against him during 1 depression.” Dkt. 21 ¶¶ 21-22. 2 Pereira’s Complaint identifies the City of San Jose and San Jose Police Officers 3 Nicholas Bronte, Eric Chen, Anthony Baza, Theodore Davis, Benjamin Jenkins, Hans 4 Jorgenson, and Peter Szemeredi as defendants. Dkt. 21 ¶ 6. The Complaint states that the 5 Defendant Officers “were directly involved in the arrest of Plaintiff. Their exact actions 6 during this arrest have yet to be determined.” Dkt. 21 ¶ 6. Pereira asserts that in 7 committing the alleged acts and omissions, the Defendant Officers acted under color of 8 law and within the course and scope of their employment with the City. Dkt. 21 ¶ 6. 9 There are four “Claims for Relief” set forth in the Complaint. 10 In Count 1, Pereira claims that the City of San Jose and unspecified officers 11 violated 42 U.S.C. § 1983 and his Constitutional rights under the Fourth and Fourteenth 12 Amendment through the use of excessive force. 13 In Count 2, Pereira claims that unspecified officers violated 42 U.S.C. § 1983 by 14 failing to intervene. 15 In Count 3, Pereira claims that the City of San Jose is liable under 42 U.S.C. § 1983 16 for ratifying the acts of its officers. 17 In Count 4, Pereira claims that the City is liable under 42 U.S.C. § 1983 for its “use 18 of force review” customs and practice. 19 Pereira demands $5 million in compensatory damages, exemplary damages, and 20 attorney’s fees. Dkt. 21 “Prayer for Relief”. 21 Defendants’ Motion to Dismiss 22 Now presented to the Court is the Defendants’ motion to dismiss all claims in the 23 Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 34. Pereira 24 opposed. Dkt. 37. Defendants replied. Dkt. 41. 25 The Court initially set the motion for hearing on October 30, 2024, but continued 26 the hearing after Pereira’s only counsel withdrew from the case. Dkt. 40. Then the Court 27 held status hearings on December 4, 2024, December 19, 2024, January 22, 2025, and 1 represented litigant help program. No new attorney has appeared for Pereira. Pereira did 2 not appear at the March 12, 2025, case management conference and hearing, but did leave 3 multiple voicemails for the courtroom deputy before and after the hearing indicating that 4 he needed help. 5 All parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. 6 § 636(c). Dkts. 9, 25, 26. 7 Legal Standard on a Motion to Dismiss Under Rule 12(b)(6) 8 The general rules of pleading in federal court are established by Federal Rule of Civil 9 Procedure 8(a). A complaint must contain: 10 • “a short and plain statement of the grounds for the court’s jurisdiction …” 11 • “a short and plain statement of the claim showing the pleader is entitled to relief;” 12 • and “a demand for the relief sought …” 13 Furthermore, Federal Rule of Civil Procedure 8(d)(1) requires that each allegation of 14 the pleading must be “simple, concise, and direct.” 15 A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 16 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 17 (9th Cir. 2001). “To survive a motion to dismiss, a complaint must contain sufficient 18 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 19 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 20 544, 570 (2007)). When reviewing a 12(b)(6) motion, a court “must accept as true all 21 factual allegations in the complaint and draw all reasonable inferences in favor of the non- 22 moving party.” Retail Prop. Trust v. United Bd. of Carpenters & Joiners of Am., 768 F.3d 23 938, 945 (9th Cir. 2014). A court, however, need not accept as true “allegations that are 24 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 25 Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). A claim is facially plausible 26 when it “allows the court to draw the reasonable inference that the defendant is liable for 27 the misconduct alleged.” Id. 1 pleading could not possibly be cured by the allegation of other facts. Lopez v. Smith, 203 2 F.3d 1122, 1127 (9th Cir. 2000). This is because under Federal Rule of Civil Procedure 3 15(a)(2), the Court should “freely give leave when justice so requires.” 4 Application of Rules 8 and 12(b)(6) to Pereira’s Complaint 5 Finally, the Court applies the standards of Federal Rules of Civil Procedure 8 and 6 12(b)(6) to Pereira’s Complaint. First, under Rule 8, Pereira has successfully stated a 7 ground for the Court’s jurisdiction (an alleged violation of his federal constitutional rights) 8 and a demand for the relief sought (compensatory and exemplary damages and attorney’s 9 fees). Where the Complaint falls short is in stating “a short and plain statement of the 10 claim showing the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 11 To be sure, Pereira alleges serious injuries and alleges those injuries were caused by 12 San Jose Police Officers acting under color of law and in the scope of their employment. 13 But in order to state a plausible claim for legal relief against the City and its officers, the 14 Complaint needs more facts. 15 As to the claims against Defendant Officers in Counts 1 and 2, the Complaint does 16 not allege what any specific officer did or did not do. “An officer can be held liable for a 17 constitutional violation only when there is a showing of ‘integral participation’ or 18 ‘personal involvement’ in the unlawful conduct, as opposed to mere presence at the 19 scene.” Bonivert v. City of Clarkston, 883 F.3d 865, 879 (9th Cir. 2018). It is not enough 20 lump all the defendants together. Each defendant’s liability must be based on his or her 21 own conduct. 22 Additionally, the Complaint provides insufficient details about the circumstances that 23 brought the Defendant Officers to pursue and arrest Pereira, including the crime for which 24 Pereira was being arrested. As the Supreme Court has held, “the severity of the crime at 25 issue” is a key factor in the excessive force analysis. Graham v. Connor, 490 U.S. 386, 397 26 (1989). Indeed, there are some uses of force that might be justified where officers are 27 confronting a suspect accused of a serious, violent crime, but not where the suspect is 1 (If “there is probable cause to believe that [the suspect] has committed a crime involving 2 the infliction or threatened infliction of serious physical harm, deadly force may be used 3 if necessary to prevent escape, and if, where feasible, some warning has been given.”). 4 As to the claims against the City in Counts 3 and 4, Pereira has two theories but 5 insufficient facts to state a plausible claim for relief under either theory. As a general 6 proposition, a municipality is not automatically liable for the unconstitutional actions of its 7 employees. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). 8 But there are several ways that a municipality can be found liable. One way is under 9 a theory of ratification. “Ratification” means that a municipality can be found liable for a 10 constitutional violation “if a final policymaker ratifies a subordinate’s actions.” Lytle v. 11 Carl, 382 F.3d 978, 987 (9th Cir. 2004). The policymaker must have knowledge of the 12 constitutional violation and actually approve of it. A mere failure to overrule a 13 subordinate’s actions, without more, is insufficient to support a § 1983 claim. Id.; see also 14 Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992) (Ratification requires an 15 authorized policymaker to make a “conscious, affirmative choice” to endorse a 16 subordinate’s actions). To show that ratification was a “moving force” behind the 17 constitutional deprivation, a plaintiff must demonstrate both causation in fact and 18 proximate causation. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 19 1981); Dougherty v. City of Covina, 654 F.3d 892, 900-901 (9th Cir. 2011). Here, 20 Pereira’s Complaint alleges that a Lieutenant from the Police Department sent him a letter 21 on May 9, 2024, finding that the actions taken against him were “justified, lawful, and 22 proper.” Dkt. 21 ¶ 39. But the Complaint does not plausibly allege that the Lieutenant 23 was a final policymaker. Pereira does not sufficiently allege that the City has ratified the 24 actions of any individual defendant officer. 25 A second theory of vicarious liability is under a Monell theory where the plaintiff 26 establishes that the municipality is liable for a constitutional violation through “a policy, 27 custom, or practice” of the City that was the “moving force” behind the constitutional 1 predicated on isolated or sporadic incidents and … the custom must be so persistent and 2 widespread that it constitutes a permanent and well settled city policy.” Hunter v. Cty. of 3 Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011) (quotation omitted). Here, Pereira’s 4 Complaint falls well short of specifying a City policy, custom, or practice that was the 5 moving force behind the alleged constitutional violation against him. Labels and 6 conclusions are insufficient to state a plausible legal claim. Pereira’s claims against the 7 City of San Jose are therefore dismissed. 8 The Court Grants Leave to Amend the Complaint 9 As explained above, the Complaint does not presently state a plausible claim for legal 10 relief against San Jose or its police officers, so the Court grants the motion to dismiss. 11 This does not end the case. Leave to amend a complaint should be freely given in the 12 interest of justice. Fed. R. Civ. P. 15(a)(2). Here, Pereira requested leave to amend (Dkt. 13 37), and Defendants do not oppose leave to amend. Dkt. 41. Additionally, Pereira is 14 unrepresented and has been trying unsuccessfully to find an attorney to assist him. Under 15 these circumstances, the Court finds amendment would not be futile and would be in the 16 interest of justice. Pereira must file a Second Amended Complaint by April 16, 2025. The 17 Second Amended Complaint may not add any additional parties or claims without 18 stipulation of the defendants or further leave of Court. Pereira is reminded of the free legal 19 assistance offered by the Federal Pro Se Program, telephone number 408.297.1480. 20 Pereira is cautioned that if he does not file a timely Second Amended Complaint, the Court 21 may close this case and enter Judgment against him without further notice. 22 Conclusion 23 The Defendants’ motion to dismiss is granted in its entirety with leave to amend. 24 Plaintiff Pereira is granted leave to file a Second Amended Complaint by April 16, 2025.

25 26 27 1 2 IT IS SO ORDERED. 3 4 Dated: March 13, 2025 —<———~_ _

NATHANAEL M. COUSINS

5 United States Magistrate Judge 6 7 8 9 10 11 12

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