1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 MICHAEL A. LIBBY, No. 2:21-cv-00017-JAM-AC 14 Plaintiff, ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANT

15 v. HARR’S MOTION TO DISMISS 16 CITY OF GRIDLEY, et al., 17 Defendants. 18 19 Before the Court is Gridley Police Chief Rodney Harr’s 20 (“Defendant” or “Harr”) motion to dismiss. Mot., ECF No. 54-1.1 21 Plaintiff opposed Defendant’s motion. Opp’n, ECF No. 55. 22 Defendant replied. Reply, ECF No. 56. For the reasons set forth 23 below, the Court grants in part and denies in part Defendant’s 24 motion. 25 /// 26

27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for February 15, 2022. 1 I. BACKGROUND 2 As this is the third round of motions to dismiss in this 3 case, the Court does not repeat the factual background. That 4 background is set forth extensively in the operative complaint, 5 the parties’ briefings, and the Court’s prior orders. See Order 6 Granting Defs.’ First Mot. to Dismiss (“First Order”), ECF No. 7 20; see also Order Granting in Part and Denying in Part Defs.’ 8 Second Mot. to Dismiss (“Second Order”), ECF No. 49. 9 The pertinent procedural background is as follows: on May 10 14, 2021, the Court granted Defendants’ first motion to dismiss. 11 See generally First Order. On June 3, 2021, Plaintiff filed a 12 first amended complaint. See First Amended Complaint (“FAC”), 13 ECF No. 21. On June 30, 2021, Defendants again moved to dismiss. 14 See Second Mot. to Dismiss, ECF No. 32. On November 16, 2021, 15 the Court granted in part and denied in part Defendants’ motion. 16 See generally Second Order. As relevant here, the Court 17 dismissed Plaintiff’s second claim for excessive force pursuant 18 to 42 U.S.C. Section 1983 and seventh claim for excessive force 19 pursuant to Cal. Const., Art. I. Section 13 against Harr, but 20 granted Plaintiff leave to amend. Id. at 12-13. The Court 21 explained: “As to Chief Harr, Defendant contends the FAC contains 22 only conclusory allegations that Harr failed to adequately train, 23 supervise and discipline officers. The Court agrees. However, 24 in opposition Plaintiff set forth a number of facts from police 25 reports that he could add to the complaint. Thus, amendment 26 would not be futile.” Id. at 13 (internal citations omitted). 27 /// 28 /// 1 On December 6, 2021, Plaintiff filed a second amended 2 complaint. See Second Amended Complaint (“SAC”), ECF No. 50. 3 Harr, who is sued in his individual capacity, now moves to 4 dismiss Plaintiff’s second and seventh excessive force claims. 5 See generally Mot.; see also SAC ¶ 8. 6 7 II. OPINION 8 A. Legal Standard 9 A Rule 12(b)(6) motion challenges the complaint as not 10 alleging sufficient facts to state a claim for relief. Fed. R. 11 Civ. P. 12(b)(6). “To survive a motion to dismiss [under 12 12(b)(6)], a complaint must contain sufficient factual matter, 13 accepted as true, to state a claim for relief that is plausible 14 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 15 (internal quotation marks and citation omitted). While 16 “detailed factual allegations” are unnecessary, the complaint 17 must allege more than “[t]hreadbare recitals of the elements of 18 a cause of action, supported by mere conclusory statements.” 19 Id. In considering a motion to dismiss for failure to state a 20 claim, the court generally accepts as true the allegations in 21 the complaint and construes the pleading in the light most 22 favorable to the plaintiff. Lazy Y Ranch Ltd. v. Behrens, 546 23 F.3d 580, 588 (9th Cir. 2008). “In sum, for a complaint to 24 survive a motion to dismiss, the non-conclusory ‘factual 25 content,’ and reasonable inferences from that content, must be 26 plausibly suggestive of a claim entitling the plaintiff to 27 relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 28 2009). 1 B. Analysis 2 Harr seeks to dismiss Plaintiff’s second and seventh 3 excessive force claims. See generally Mot. He argues that the 4 SAC still does not contain sufficient facts to support either 5 claim; and further, as to the seventh claim, Article I Section 6 13 of the California Constitution does not confer a private 7 cause of action for damages. Id. Accordingly, Harr asks the 8 Court to dismiss these claims with prejudice. Id. 9 To state a Section 1983 claim against a supervisor, a 10 plaintiff must allege: “(1) [the supervisor’s] personal 11 involvement in the constitutional deprivation, or (2) a 12 sufficient causal connection between the supervisor’s wrongful 13 conduct and the constitutional violation.” Starr v. Baca, 652 14 F.3d 1202, 1207 (9th Cir. 2011) (internal citation omitted); see 15 also Larez v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir. 16 1991). As explained below, Plaintiff has alleged sufficient 17 facts to support at least one of the two bases for liability: a 18 causal connection between Harr’s wrongful conduct and Officer 19 Pasley’s use of excessive force. 20 When the Court previously dismissed Plaintiff’s second and 21 seventh excessive force claim against Harr, it granted leave to 22 amend because “in opposition Plaintiff set forth a number of 23 facts from police reports that he could add to the complaint” and 24 therefore “amendment would not be futile.” Second Order at 13. 25 In the SAC, Plaintiff did precisely that. See SAC ¶ 99(a)-(s) 26 (listing incidents of Officer Pasley’s use of force from Gridley 27 Police Department reports). He added facts regarding twenty 28 prior incidents in which Officer Pasley used excessive force from 1 which the Court can infer Harr was aware of Pasley’s misconduct. 2 Id. In spite of these new allegations, Harr maintains that 3 Plaintiff has not plausibly alleged a causal connection. Mot. at 4 5-6. He argues the Court should consider only five of the twenty 5 prior instances because those are the only instances where 6 Officer Pasley used similar force during Chief Harr’s tenure. 7 Id. at 5. Further, he contends “Plaintiff’s allegations 8 regarding those five prior instances are conclusory, self- 9 serving, and lack context” and “even if Plaintiff’s allegations 10 to those five instances were accepted as true, they are not 11 significantly egregious as alleged and there was not sufficient 12 time for Chief Harr to remedy the alleged misconduct as he only 13 became Chief months prior to the subject incident.” Id. 14 However, the Court must accept Plaintiff’s allegations as 15 true and draw all inferences in Plaintiff’s favor. Lazy Y Ranch 16 Ltd.,546 F.3d at 588 . Here, whether the Court considers just 17 the five instances of prior misconduct or all twenty instances 18 alleged, the Court may properly infer Chief Harr was aware of 19 Pasley’s misconduct and “permitt[ed] [his] personnel’s use of 20 unreasonable and excessive force.” SAC ¶ 96; see also Opp’n at 21 8-10. Thus, in the SAC, Plaintiff sufficiently pleads a causal 22 connection between Chief Harr’s actions and the alleged 23 constitutional violation, Pasley’s use of excessive force. At 24 this early stage of the litigation, this is sufficient to 25 maintain his Section 1983 excessive force claim against Harr. 26 Accordingly, Defendant’s motion is denied as to the second 27 claim. 28 /// 1 Turning to the seventh claim for excessive force in 2 violation of the California Constitution, Defendant argues this 3 claim fails as a matter of law because Article I Section 13 does 4 not confer a private cause of action for damages. Mot. at 6-8; 5 Reply at 3-5. 6 As the parties acknowledge, federal district courts are 7 divided on this issue. Mot. at 6; Opp’n at 11. Having carefully 8 reviewed the authority brought forward by both parties, the Court 9 finds the weight of the authority here in the Eastern District 10 leans in favor of Defendant’s position. Indeed, Judge Shubb 11 recently observed the same: “[t]he majority of federal district 12 court decisions of which this court is aware appear to have 13 concluded that there is no private cause of action for damages 14 under this provision of the California Constitution.” Lesher v. 15 City of Anderson, No. 2:21-cv-00386-WBS-DMC, 2021 WL 2682161, at 16 *5 (E.D. Cal. June 30, 2021); see also Autotek Inc. v. Cnty. of 17 Sacramento, No. 2:16-cv-01093-KJM-CKD, 2017 WL 3149923, at *9 18 (E.D. Cal. July 25, 2017)(“California Constitution Article I 19 section 13. . . does not confer a private right of action for 20 damages.”). Thus, the Court joins the majority position and 21 concludes there is no private cause of action.2 22 Accordingly, Defendant’s motion is granted as to the seventh 23 claim. Further, because the claim is legally barred, the Court 24 finds dismissal with prejudice is appropriate. See Gompper v. 25 26 2 Because this claim fails as a matter of law, the Court does not 27 reach the parties’ additional arguments regarding Harr’s immunity or the sufficiency of the allegations. Mot. at 8; Opp’n at 14- 28 15. nee en enn en en nnn nn nnn oo nn nn nnn ne ne

1 VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002) (“[L]eave to amend 2 need not be granted when amendment would be futile.”). 3 4 Til. ORDER 5 For the reasons set forth above, the Court GRANTS WITH 6 | PREJUDICE Defendant’s motion to dismiss as to the seventh claim 7 and DENIES Defendant’s motion as to the second claim. 8 IT IS SO ORDERED. 9 Dated: February 16, 2022 10 kA 1 teiren staves odermacr 7008 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28