1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KYLE WILLIAMS, No. 2:22-cv-01750-JAM-CKD 11 Plaintiff, ORDER DENYING IN PART AND

GRANTING IN PART DEFENDANTS’

12 v. MOTION TO DISMISS PLAINTIFF’S

FIRST AMENDED COMPLAINT

13 YUBA CITY, et al., 14 Defendants. 15 16 Defendants Yuba City, Katheryn Danisan, D. Hauck, Enrique 17 Jurado, Nico Mitchell, and Spencer Koski’s (collectively, 18 “Defendants”) move to dismiss Plaintiff Kyle Williams’ 19 (“Plaintiff”) first amended complaint under Rule 12(b)(6) of the 20 Federal Rules of Civil Procedure. Defs.’ Mot. to Dismiss Pl.’s 21 FAC (“Mot.”), ECF No. 17. For the reasons set forth below, the 22 Court GRANTS IN PART and DENIES IN PART Defendants’ motion.1 23 I. REQUEST FOR JUDICIAL NOTICE 24 Defendants request three matters be judicially noticed 25 under Rule 201 of the Federal Rules of Evidence. Mot. at 7; 26 Defs.’ Req. for Judicial Notice (“RJN”), ECF No. 17-3. “A court 27 1This motion was determined to be suitable for decision without 28 oral argument. E.D. Cal. L.R. 230(g). 1 may take judicial notice of ‘matters of public record’ without 2 converting a motion to dismiss into a motion for summary 3 judgment.” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th 4 Cir. 2001). The first matter is a child custody and visitation 5 order issued by Sutter County Superior Court, Case No. CVFL 16- 6 0001122, concerning Plaintiff’s and Ms. Adams’ respective 7 custodial rights to their children (the “Custody Order”). Exh. 8 A to Mot., ECF No. 17-2 at 3-9. The second is a preliminary 9 hearing minute order from Sutter County Superior Court in 10 connection with Plaintiff’s prior criminal prosecutions, Case 11 Nos. CRF 20-0002073 and CRF 20-0002026, the same criminal matter 12 that serves as the basis for Plaintiff’s claims in this action. 13 Exh. B to Mot., ECF No. 17-3 at 10-12. Lastly, Defendants’ 14 request the Court take judicial notice that August 31, 2020, was 15 a Monday. RJN at 11. Plaintiff does not oppose Defendants’ 16 request. See Opp’n. 17 A court may take judicial notice of undisputed matters of 18 public record and the existence of another court’s opinion 19 because its authenticity is not subject to reasonable dispute. 20 Fed. R. Evid. 201(b); Lee, 250 F.3d at 689, 690. Accordingly, 21 and in the absence of Plaintiff’s objection, the Court takes 22 judicial notice of Exhibits A and B, ECF No. 17-3, and that 23 August 31, 2020, was a Monday, as requested. Id.; Fed. R. Evid. 24 201(b). The Court only takes judicial notice of the contents, 25 or lack of contents, within the matters noticed and not the 26 truth of those contents. See In re Calder, 907 F.2d 953, 955 27 n.2 (10th Cir. 1990); Lee, 250 F.3d at 690. Similarly, the 28 Court only takes judicial notice of Sutter County Superior 1 Court’s minute order and not any factual matters recited 2 therein. Lee, 250 F.3d at 690. 3 II. ALLEGATIONS AND BACKGROUND 4 The crux of Plaintiff’s claims arise from an incident 5 occurring on August 31, 2020. See First Am. Compl. (“FAC”) ¶ 8. 6 Although a total of four incidents are alleged in the FAC, each 7 culminating in an arrest or criminal prosecution, only the 8 incident on August 31, 2020, serves as the basis for Plaintiff’s 9 claims in this action. Id. The incident on August 3, 2020, is 10 relevant only to the extent the charges arising from that day 11 were tried collectively with the charges arising from the 12 incident on August 31, 2020. 13 A. August 3, 2020 14 On August 3, 2020, Plaintiff was in Lake Tahoe, California 15 with his and Ashley Adams’ children. FAC at 6:19-21. Plaintiff 16 and Ms. Adams shared custody of their children in accordance with 17 the Custody Order in effect at the time. From Lake Tahoe, 18 Plaintiff had planned to drive to Tennessee to take his oldest 19 son to college. Id. at 6:12-16. The Custody Order specified 20 that traveling outside the county was to be handled by both 21 parties in good faith. Id. at ¶ 9. Plaintiff had previously 22 obtained Ms. Adams’ consent for the trip pursuant to the Custody 23 Order. Id. at 6:15-16. However, while Plaintiff was in Lake 24 Tahoe, Ms. Adams called the police to report that Plaintiff was 25 in violation of the Custody Order and asserted she did not 26 consent. Id. at 6:14-17. Ms. Adams’ statements to the police 27 were dishonest, and she ultimately admitted to the dishonesty, 28 but it is unclear from the allegations who she admitted this to. 1 Id. at 6:12-19. Two days later, Yuba City Police Officer N. 2 Livingston contacted Plaintiff and noted that Ms. Adams was 3 untruthful in conveying her version of events. Id. at 7:1-3. 4 Plaintiff ultimately cancelled his plan to drive to Tennessee and 5 returned to Sutter County with his children on August 7, 2020. 6 Id. at 7:4-5. 7 After returning, Ms. Adams believed Plaintiff would 8 permanently leave the state with their children the next time he 9 had custody. She therefore obtained a “Good Cause Order” which 10 temporarily restricted Plaintiff’s custody rights. Id. at 7:5- 11 18. Defendant Danisan, a Yuba City police officer, assisted Ms. 12 Adams in obtaining the “Good Cause Order” by providing a 13 supporting statement containing comments Plaintiff allegedly made 14 to her. FAC ¶ 10. Plaintiff alleges Defendant Danisan knew or 15 should have known Ms. Adams’ statement was materially false. FAC 16 ¶ 10. Plaintiff was not interviewed or questioned before the 17 “Good Cause Order” was issued. The “Good Cause Order” was 18 removed on August 21, 2020. Id. at 9:3-5. 19 B. August 31, 2020 20 On Monday, August 31, 2023, Plaintiff was again in Lake 21 Tahoe, California with his children. FAC at 9:4-5. Ms. Adams 22 contacted Plaintiff and insisted that he exchange the children at 23 8:00 a.m. at the police station, as required by the Custody 24 Order. Id. at 9:6-8. Plaintiff alleges “[h]e had agreed to 25 bring them back after distance learning was done for the day,” 26 but it is unclear whether this means he had obtained Plaintiff’s 27 consent. Id. at 9:4-6. Soon after, Plaintiff was contacted by 28 someone at the Yuba City Police Department who ordered him to 1 drive back to the police station immediately. Id. at 9:8-10. 2 Plaintiff complied. Id. 3 When Plaintiff arrived at the police station, he did not see 4 Ms. Adams or any police officer present. Id. at 9:13-16. 5 Unknown to him, Ms. Adams was warned she should not appear at the 6 exchange because Plaintiff may attempt to commit “suicide-by- 7 cop.” Id. at 9:11-13. Because no one was present at the parking 8 lot, Plaintiff drove to a local convenience store to purchase 9 beverages for his children. Id. at 9:16. As he left for the 10 convenience store, Plaintiff was speaking with Defendant Hauck, a 11 police officer for the Yuba City Police Department, via 12 telephone. Id. at 9:17-21. Plaintiff was soon being followed by 13 other police vehicles. Id. Plaintiff and Defendant Hauck’s 14 telephone call was momentarily disconnected but they resumed 15 their call shortly after. Id. at 9:17-19. During the second 16 phone call, Plaintiff alleges Defendant Hauck instructed him to 17 drive back to the police station, and he attempted to comply. 18 FAC 9:22. Meanwhile, Defendant Hauck had instructed the other 19 police officers in pursuit to lay spike strips to stop 20 Plaintiff’s vehicle. Id. at 9:22-24. Plaintiff alleges the 21 first phone call was recorded but that the second phone call—when 22 Defendant Hauck informed him to continue driving to the police 23 station—was not recorded. Id. at 9:17-19. Plaintiff ultimately 24 stopped his vehicle and was arrested. Id. at 10:1-2. 25 C. Criminal Prosecution and Other Allegations 26 The Sutter County District Attorney Office filed charges 27 against Plaintiff for the incidents occurring on August 3, 2020, 28 and August 31, 2020, Case Nos. CRF-20-2026 and CRF-20-2073, 1 respectively. FAC at 5:22-24, 8:1-4. From both incidents, 2 Plaintiff was criminally charged with violating Penal Code 3 sections 278.5 (depriving lawful custodian of the right to child 4 custody), 273a(a) (child endangerment), 166(a)(4)(disobeying a 5 court order) and Vehicle Code section 2800.1 (fleeing a pursuing 6 peace officer). Id. at 5:22-24, 8:1-4. 7 Both cases were consolidated and proceeded to trial on 8 February 3, 2021. Id. at 5:22-24, 8:1-4. Plaintiff was 9 acquitted of all charges arising from the incident on August 31, 10 2020, and found guilty of one charge in connection with the 11 incident on August 3, 2020: a violation California Penal Code 12 section 166(a)(4) for “[w]illful disobedience of the terms, as 13 written, of a process or court order or out-of-state court order, 14 lawfully issued by a court, including orders pending trial.” Id. 15 Plaintiff alleges the arrests and criminal prosecutions 16 against him were without probable cause because the officers knew 17 Ms. Adams previously made materially false statements about 18 whether she gave Plaintiff consent to take their children out of 19 the county. Id. at ¶ 12. Plaintiff also alleges he was the 20 target of a conspiracy to be deprived of his constitutional 21 rights because he is an African-American male. Id. at ¶¶ 13-14. 22 Plaintiff contacted Yuba City Police Department over 20 times 23 regarding Ms. Adams’ failure to provide him access to his 24 children but that they failed to enforce Plaintiff’s rights while 25 only enforcing Ms. Adams’ rights. Id. at ¶ 21. 26 Plaintiff’s FAC asserts seven causes of action under federal 27 law: (1) excessive force; (2) malicious prosecution; 28 1 (3) destruction of exculpatory evidence;2 (4) false arrest; 2 (5) selective arrest and prosecution in violation of the Equal 3 Protection Clause; (6) unlawful seizure of property under Monell; 4 and (7) unconstitutional deprivation of familial relations. See 5 generally FAC. 6 Defendants Danisan, Hauck, Jurado, Koski, Mitchell, and Yuba 7 City now move to dismiss each claim. See Mot. Plaintiff 8 opposed, Opp’n, ECF No. 19, and Defendants replied, Reply, ECF 9 No. 20. 10 III. OPINION 11 A. Legal Standard 12 Dismissal is appropriate under Rule 12(b)(6) of the Federal 13 Rules of Civil Procedure when a plaintiff’s allegations fail “to 14 state a claim upon which relief can be granted.” Fed. R. Civ. 15 P. 12(b)(6). “To survive a motion to dismiss [under 12(b)(6)], 16 a complaint must contain sufficient factual matter, accepted as 17 true, to state a claim for relief that is plausible on its 18 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 19 quotation marks and citation omitted). While “detailed factual 20 allegations” are unnecessary, the complaint must allege more 21 than “[t]hreadbare recitals of the elements of a cause of 22 2Plaintiff’s third cause of action is entitled “42 U.S.C. § 1983— 23 Sixth Amendment Right to Fair Trial; Sixth Amendment Right to Subpoena and Produce Evidence; Fourteenth Amendment Right to Due 24 Process; Fourth Amendment Unreasonable Seizure for Trial without Due Process.” FAC at 17:1-3. The allegations in this cause of 25 action concern the allegedly intentional destruction of Plaintiff’s cellphone which contained recorded communications 26 between Defendant Hauck and Plaintiff. See id. at ¶¶ 40-53. As 27 such, the Court refers to this cause of action as one arising under section 1983 for destruction of evidence even though 28 Plaintiff appears to assert multiple claims within. 1 action, supported by mere conclusory statements.” Id. In 2 considering a motion to dismiss for failure to state a claim, 3 the court generally accepts as true the allegations in the 4 complaint, construes the pleading in the light most favorable to 5 the party opposing the motion, and resolves all doubts in the 6 pleader’s favor. Lazy Y Ranch LTD. v. Behrens, 546 F.3d 580, 7 588 (9th Cir. 2008). “In sum, for a complaint to survive a 8 motion to dismiss, the non-conclusory ‘factual content,’ and 9 reasonable inferences from that content, must be plausibly 10 suggestive of a claim entitling the plaintiff to relief.” Moss 11 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 12 B. Analysis 13 Defendants move to dismiss each cause of action in the FAC 14 for the reasons set forth below. 15 1. Plaintiff Fails to State a Claim for Excessive 16 Force Under 42 U.S.C. Section 1983 17 Plaintiff’s first cause of action is for excessive force 18 under 42 U.S.C. section 1983. FAC ¶¶ 25-29. Defendants contend 19 this claim must be dismissed as to Defendants Hauck and Danisan 20 because Plaintiff does not allege either Defendant used any 21 force against him. Mot. at 11. Plaintiff concedes but offers 22 additional allegations that he intends to include if given leave 23 to amend. Opp’n at 2, 18-21. These proposed allegations assert 24 Defendant Koski deployed spike strips at the direction of 25 Defendant Hauck, and that Officer Danisan subjectively believed 26 the use of spike strips constituted deadly force. Id. at 18-21. 27 Plaintiff also asserts in these proposed allegations that he did 28 not make contact with the spike stripes that were deployed. Id. 1 The additional allegations do not establish these 2 Defendants made physical contact with Plaintiff, or that they 3 caused Plaintiff to make physical contact with spike strips or 4 some other device. Plaintiff’s argument that the mere 5 deployment of spike strips—without contact—constitutes excessive 6 force is unpersuasive and unsupported by legal authority. 7 Defendants contend this claim should also be dismissed as 8 to Defendant Yuba City because Plaintiff has not pleaded an 9 underlying constitutional violation of excessive force. Mot. at 10 12. The Court agrees. As pleaded, Plaintiff has not alleged an 11 excessive force claim upon which Yuba City can be liable. 12 Therefore, this claim also fails against Defendant Yuba City as 13 a matter of law. See City of Los Angeles v. Heller, 475 U.S. 14 796, 799 (1986) (“If a person has suffered no constitutional 15 injury at the hands of the individual police officer, the fact 16 that the departmental regulations might have authorized the use 17 of constitutionally excessive force is quite beside the 18 point.”). The Court need not consider Defendant’s remaining 19 argument regarding the failure to plead a policy or practice of 20 constitutional violations. 21 Further, the Court DISMISSES this claim against Defendants 22 Hauck, Danisan, and Yuba City WITH PREJUDICE because allowing 23 Plaintiff to amend the complaint as proposed would be futile. 24 Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 25 (9th Cir. 1989). 26 2. Plaintiff is Collaterally Estopped from Pleading 27 the Lack of Probable Cause 28 Defendants label the second, third, fourth, fifth, and 1 seventh causes of action as claims for false arrest or malicious 2 prosecution, thus requiring Plaintiff to plead the absence of 3 probable cause as an element of each claim. Mot. at 13. 4 Defendants argue these causes of action must be dismissed 5 because Plaintiff is collaterally estopped from relitigating the 6 issue of probable cause in this suit. Id. at 14-16. 7 Before reaching the merits of Defendants’ argument, 8 Plaintiff contends Defendants have mischaracterized his third, 9 fifth, and seventh causes of action, obviating the need to plead 10 the lack of probable cause. Opp’n at 3, 7-8. Although 11 Plaintiff’s third cause of action is not limited to malicious 12 prosecution but also seeks to hold Defendant Jurado liable for 13 violations of the right to a fair trial, the right to produce 14 evidence, due process, and unreasonable seizure, FAC ¶¶ 40-53, 15 this claim still contains a malicious prosecution component as 16 pleaded. See id.; Opp’n at 7. Therefore, Plaintiff must allege 17 the absence of probable cause. 18 As to the fifth and seventh causes of action, Defendants 19 misconstrue the nature of these claims. The fifth cause of 20 action is not for false arrest but for selective arrest and 21 prosecution in violation of the Fourteenth Amendment’s Equal 22 Protection Clause. FAC ¶¶ 63-77. Similarly, the seventh cause 23 of action does not assert a claim for false arrest but for a 24 violation of Plaintiff’s substantive due process right to 25 familial relations under the Fourteenth Amendment. Id. at 26 ¶¶ 83-91. Both the fifth and seventh causes of action claim are 27 distinct from Plaintiff’s false arrest and malicious prosecution 28 claims despite sharing a similar factual basis. Defendants have 1 not demonstrated Plaintiff must allege the lack of probable 2 cause to proceed with the types of claims Plaintiff asserts in 3 his fifth and seventh causes of action. The Court therefore 4 DENIES Defendants’ motion to dismiss the fifth and seventh cause 5 of action on probable cause grounds. In sum, only Plaintiff’s 6 second, third, and fourth causes of action are claims for false 7 arrest or malicious prosecution. 8 Reaching the merits of Defendants’ argument, Plaintiff must 9 plead the lack of probable cause to assert a claim for false or 10 arrest or malicious prosecution claim under 42 U.S.C. section 11 1983. Dubner v. City & Cnty. of S.F., 266 F.3d 959, 964 (9th 12 Cir. 2001) (false arrest); Freeman v. City of Santa Ana, 68 F.3d 13 1180, 1189 (9th Cir. 1995) (malicious prosecution). Defendants 14 argue the probable cause findings during Plaintiff’s prior 15 criminal prosecution preclude him from relitigating that issue 16 here. Mot. at 14-16; Exh. B to Mot., ECF No. 17-3. The Court 17 agrees. 18 “In California, as in virtually every other jurisdiction, 19 it is a long-standing principle of common law that a decision by 20 a judge or magistrate to hold a defendant to answer after a 21 preliminary hearing constitutes prima facie—but not conclusive— 22 evidence of probable cause.” Awabdy v. City of Adelanto, 368 23 F.3d 1062, 1067 (9th Cir. 2004). A finding of probable cause to 24 stand trial is also a finding of probable cause to arrest the 25 defendant. McCutchen v. City of Montclair, 73 Cal. App. 4th 26 1138, 1145 (1999) (citing Haupt v. Dillard, 17 F.3d 285, 289 27 (1994)). “As a general rule, each of [the] requirements [for 28 collateral estoppel] will be met when courts are asked to give 1 preclusive effect to preliminary hearing probable cause findings 2 in subsequent civil actions for false arrest and malicious 3 prosecution.” Wige v. City of Los Angeles, 713 F.3d 1183, 1185 4 (9th Cir. 2013). 5 Here, the Sutter County Superior Court found probable cause 6 for Plaintiff to stand trial for California Penal Code sections 7 278.5 (depriving a custodian of child custody), 166(a)(4) 8 (violating of a court order) and California Vehicle Code section 9 2800.1 (fleeing a pursuing peace officer). Exh. B to Mot. The 10 Superior Court did not find probable cause that Plaintiff 11 committed a felony violation of penal code section 273(a) (child 12 endangerment) but did find probable cause that he committed a 13 misdemeanor violation of that section. Id. 14 The Court finds there was probable cause for Plaintiff’s 15 arrest on August 31, 2020, and ensuing prosecution given the 16 Superior Court’s findings from the preliminary hearing on 17 September 11, 2020, in Case No. CRF20-0002073. Rather than 18 contesting the Superior Court’s findings, Plaintiff argues he is 19 not estopped from arguing the lack of probable cause in this 20 suit. Opp’n at 10-13. 21 A plaintiff may rebut the prima facie finding of probable 22 cause and relitigate the issue in a subsequent civil suit when 23 (1) facts were presented to the judicial officer presiding over 24 the preliminary hearing which were additional to (or different 25 from) those available to the officers at the time they made an 26 arrest, Haupt v. Dillard, 17 F.3d 285, 289; (2) a prior criminal 27 defendant did not vigorously pursue the issue of probable cause 28 during the preliminary hearing for tactical reasons, id. at 289; 1 or (3) the probable cause determination was based on perjury or 2 fabricated evidence presented at the preliminary 3 hearing, McCutchen v. City of Montclair, 73 Cal. App. 4th 1138, 4 1147 (1999); see also Awabdy, 368 F.3d at 1068. In the absence 5 of one of these exceptions, plaintiffs are collaterally estopped 6 from relitigating the issue of probable cause in a subsequent 7 civil suit. 8 Plaintiff argues he is not collaterally estopped for four 9 reasons. First, Plaintiff argues he may relitigate the issue of 10 probable cause because the prosecution did not call every 11 potential witness and offer all available evidence. Opp’n at 12 10-11. Plaintiff does not support his argument with legal 13 authority. He also does not contend that he was precluded from 14 calling witnesses and offering evidence himself. See id. 15 Nevertheless, this reason is not a recognized exception. 16 Second, Plaintiff argues he is not collaterally estopped 17 because Defendants Hauck and Jurado misrepresented or fabricated 18 evidence. Opp’n at 11; see also FAC ¶¶ 37-38, 44. However, 19 there is nothing to suggest this evidence was presented at the 20 preliminary hearing or ultimately relevant in determining 21 probable cause; Plaintiff admits that neither Hauck nor Jurado 22 testified at the preliminary hearing. Opp’n at 10. 23 Third, Plaintiff argues the issue of probable cause was not 24 fully litigated because of tactical reasons. Opp’n at 11-12. 25 While this is a recognized exception, Haupt, 17 F.3d at 289, the 26 FAC contains no allegations that Plaintiff refrained from fully 27 litigating the issue of probable cause at the preliminary 28 hearing for tactical reasons. Therefore, as pleaded, 1 Plaintiff's allegations fail to state a plausible claim and put 2 Defendants on notice. 3 Lastly, Plaintiff argues a finding of probable cause for 4 violating a provision of the California Vehicle Code does not 5 have collateral estoppel effect, citing Lockett v. Ericson, 656 6 F.3d 892 (9th Cir. 2011). Plaintiff is correct. However, 7 Plaintiff’s false arrest and malicious prosecution claims are 8 not premised solely on the vehicle code violation but on all the 9 charges collectively, including those for which the Superior 10 Court found probable cause. See FAC ¶¶ 30-62. Therefore, as 11 alleged, these causes of action are deficient. The Court 12 DISMISSES the second, third, and fourth causes of action WITHOUT 13 PREJUDICE. 14 3. Defendants Are Not Insulated by the Presumption of 15 Prosecutorial Independence 16 Defendants also argue the second and third causes of action 17 for malicious prosecution should be dismissed because the 18 presumption of prosecutorial independence “insulates the 19 arresting officers from liability for harm suffered after the 20 prosecutor initiated formal prosecution.” Smiddy v. Varney, 803 21 F.2d 1469, 1471 (9th Cir. 1986), opinion modified on denial of 22 reh'g, 811 F.2d 504 (9th Cir. 1987). 23 The presumption of prosecutorial independence bars liability 24 for malicious prosecution claims unless the plaintiff produces 25 “contrary evidence, e.g., that the district attorney was 26 subjected to unreasonable pressure by the police officers, or 27 that the officers knowingly withheld relevant information with 28 the intent to harm [plaintiff], or that the officers knowingly 1 supplied false information . . . .” Id.; Awabdy, 368 F.3d at 2 1067 (the presumption does not apply when “state or local 3 officials [] improperly exerted pressure on the prosecutor, 4 knowingly provided misinformation to him, concealed exculpatory 5 evidence, or otherwise engaged in wrongful or bad faith conduct 6 that was actively instrumental in causing the initiation of legal 7 proceedings.”). 8 Based on the following allegations in the FAC, taken as 9 true, there is sufficient “contrary evidence” to rebut the 10 presumption: (1) Defendant Jurado knowingly destroyed Plaintiff’s 11 cellphone, which contained potentially exculpatory evidence, and 12 omitted doing so from his police report; (2) Yuba City police 13 officers knew Ms. Adams was dishonest and withheld that 14 information from prosecutors; (3) Defendant Hauck omitted from 15 his police report that he instructed Plaintiff to continue 16 driving while simultaneously instructing other police officers to 17 deploy spike strips, leading to his arrest and prosecution for 18 evading a peace officer; and (4) Defendant Danisan’s statement 19 that Plaintiff was intending to commit suicide-by-cop was 20 knowingly false. See FAC ¶¶ 8, 10, 34, 36-38, 44, 48. 21 Therefore, Plaintiff has alleged sufficient facts to overcome the 22 presumption at this stage. Defendants’ motion to dismiss on this 23 ground is DENIED. 24 4. Plaintiff’s Fourth Cause of Action for False 25 Arrest Fails to State a Claim Upon Which Relief 26 Can Be Granted 27 Plaintiff’s fourth cause of action is for false arrest 28 against several individual defendants, including Defendant Koski. 1 FAC ¶¶ 54-62. Defendant Koski requests dismissal as to this 2 cause of action because no allegations suggest he was involved in 3 Plaintiff’s arrest. Mot. at 19. Plaintiff concedes, Opp’n at 4 15, 19, but offers additional allegations he would include if 5 given leave to amend. The proposed allegations assert Defendant 6 Koski laid the spike strips on August 31, 2020, to immobilize 7 Plaintiff’s vehicle, ultimately leading to his arrest. Id. 8 Defendants do not argue that the false arrest claim still fails 9 in light of these additional allegations. Therefore, the Court 10 DISMISSES this cause of action WITHOUT PREJUDICE. 11 5. Plaintiff’s Fifth Cause of Action Under the 12 Fourteenth Amendment’s Equal Protection Clause 13 Fails to State a Claim Upon Which Relief Can Be 14 Granted 15 Plaintiff’s fifth cause of action is brought under 42 U.S.C. 16 section 1983 for race-gender discrimination under the Fourteenth 17 Amendment’s Equal Protection Clause. FAC ¶¶ 63-77. “The Equal 18 Protection Clause of the Fourteenth Amendment commands . . . that 19 all persons similarly situated should be treated alike.” City of 20 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “To 21 state a claim under 42 U.S.C. § 1983 for a violation of the Equal 22 Protection Clause of the Fourteenth Amendment a plaintiff must 23 show that the defendants acted with an intent or purpose to 24 discriminate against the plaintiff based upon membership in a 25 protected class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th 26 Cir.1998), cert. denied, 525 U.S. 1154 (1999). A 27 disproportionate impact on an identifiable group is insufficient 28 on its own. Village of Arlington Heights v. Metro. Hous. Dev. 1 Corp., 429 U.S. 252, 264–66, 97 S.Ct. 555, 50 L.Ed.2d 450 2 (1977) (citing Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 3 2040, 48 L.Ed.2d 597 (1976)) (“Disproportionate impact is not 4 irrelevant, but it is not the sole touchstone of an invidious 5 racial discrimination.”). 6 This claim fails for multiple reasons. First, Plaintiff 7 fails to sufficiently plead non-conclusory facts plausibly 8 suggesting each defendant “acted with an intent or purpose to 9 discriminate against the plaintiff based upon membership in a 10 protected class.” Rather, most of the allegations are asserted 11 in conclusory fashion against “Yuba City Police Department.” See 12 id. at ¶¶ 63-77. Plaintiff does not assert any factual 13 allegations against Defendants Danisan, Jurado, or Koski in 14 support of this cause of action. See id. Although Plaintiff 15 alleges Defendant Hauck informed him that he should move away 16 from Yuba City, id. at ¶ 64, Plaintiff does not allege this 17 comment was made because of Plaintiff’s race or gender. See id. 18 Even if it was, the Court finds that this comment alone does not 19 amount to differential treatment under the law. 20 Second, this claim is premised on the allegedly differential 21 treatment between Plaintiff and Ms. Adams. FAC ¶¶ 71-74. Ms. 22 Adams, however, belongs to the same racial class as Plaintiff. 23 Id. at ¶ 73. Thus, racial discrimination cannot logically be the 24 reason for any differential treatment and cannot serve as the 25 basis for this claim. To the extent Plaintiff is seeking an 26 equal protection claim based upon gender, the allegations are 27 insufficient to support a claim based on that theory. Despite 28 Plaintiff’s attempt to narrow his protected class beyond simply 1 race or gender, Plaintiff fails to persuade the Court that 2 controlling jurisprudence recognizes a cross-section of race and 3 gender as an independently protected class distinct from race or 4 gender alone. 5 Lastly, aside from conclusory allegations, Plaintiff has not 6 sufficiently alleged how Ms. Adams was similarly situated to him 7 to support that Plaintiff’s prosecution was motivated by a 8 discriminatory purpose. See Freeman, 68 F.3d at 1187. 9 Because Plaintiff has failed to allege an underlying 10 constitutional violation, Defendant Yuba City cannot be held 11 liable for this claim as a matter of law. Heller, 475 U.S. at 12 799. 13 The Court therefore DISMISSES the fifth cause of action as 14 to Defendants Hauck, Danisan, Jurado, Koski, and Yuba City 15 WITHOUT PREJUDICE. 16 6. Plaintiff’s Sixth Cause of Action Against 17 Defendant Yuba City Under Monell Fails to State a 18 Claim Upon Which Relief Can Be Granted 19 Defendants’ request the Court dismiss Plaintiff’s sixth 20 cause of action against Defendant Yuba City because Plaintiff has 21 not alleged a policy or practice of constitutional violations as 22 required under Monell v. Dep’t of Soc. Servs. of City of New 23 York, 436 U.S. 658 (1978). Mot. at 20-21. 24 Municipalities and local governments may be held liable 25 under section 1983 for constitutional injuries inflicted through 26 a policy or custom. Id. at 694. To assert a Monell claim, a 27 plaintiff must show: (1) they were deprived of a constitutional 28 right; (2) the defendant had a policy or custom; (3) the policy 1 or custom amounted to deliberate indifference to the plaintiff’s 2 constitutional right; and (4) the policy or custom was the 3 moving force behind the constitutional violation. Dougherty v. 4 City of Covina, 654 F.3d 892, 900 (9th Cir. 2011); Mabe v. San 5 Bernardino Cty., 237 F.3d 1101, 1110-11 (9th Cir. 2001). 6 While Monell claims are not subject to the heightened 7 pleading standard under Rule 9(b) of the Federal Rules of Civil 8 Procedure, Leatherman v. Tarrant Cnty. Narcotics Intel. & 9 Coordination Unit, 507 U.S. 163, 168 (1993), they “may not 10 simply recite the elements of a cause of action, but must 11 contain sufficient allegations of underlying facts to give fair 12 notice and to enable the opposing party to defend itself 13 effectively.” AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 14 631, 637 (9th Cir. 2012) (internal quotation marks and citation 15 omitted). “[T]he factual allegations [. . .] taken as true must 16 plausibly suggest an entitlement to relief, such that it is not 17 unfair to require the opposing part to be subject to the expense 18 of discovery and continued litigation.” Id. 19 Plaintiff’s sixth claim concerns the sale of Plaintiff’s 20 vehicle following his arrest on August 31, 2020. FAC ¶¶ 78-82. 21 Plaintiff does not assert a custom or policy was the moving 22 force behind the alleged constitutional violation. See FAC 23 ¶¶ 78-82. Aside from the single, alleged incident involving 24 Plaintiff’s vehicle, he does not identify another similar 25 instance to suggest Defendant Yuba City had a policy or custom 26 of violating an individual’s constitutional right such that it 27 was “standard operating procedure.” Gillette v. Delmore, 979 28 F.2d 1342, 1347 (9th Cir. 1992); see also Trevino v. Gates, 99 1 F.3d 911, 918 (9th Cir. 1996) (“Liability for improper custom 2 may not be predicated on isolated or sporadic incidents; it must 3 be founded upon practices of sufficient duration, frequency and 4 consistency that the conduct has become a traditional method of 5 carrying out policy.”). 6 In opposition, Plaintiff asks the Court to allow the claim 7 “to proceed to discovery so that [he] can have an opportunity to 8 inquire further.” Opp’n at 17. However, as alleged, Plaintiff 9 fails to state a claim upon which relief can be granted and is 10 not entitled to proceed. Dougherty v. City of Covina, 654 F.3d 11 892, 900 (9th Cir. 2011); Mabe v. San Bernardino Cty., 237 F.3d 12 1101, 1110-11 (9th Cir. 2001). Plaintiff does not appear to 13 currently have any factual basis for additional allegations of a 14 policy or custom that caused a constitutional violation, given 15 Plaintiff’s stated intention to inquire further through 16 discovery. See Opp’n at 17. Given the lack of factual basis, 17 the Court finds leave to amend would be futile as well as 18 unfairly subject Defendants to unnecessary discovery on this 19 issue. Ascon Properties, Inc., 866 F.2d at 1160; AE ex rel. 20 Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012). 21 The Court DISMISSES this claim WITH PREJUDICE. 22 7. Plaintiff’s Seventh Cause of Action for a 23 Violation of the Fourteenth Amendment’s Right to 24 Familial Relations Need Not Be Analyzed Under the 25 Fourth Amendment 26 Plaintiff’s seventh cause of action asserts a violation of 27 the Fourteenth Amendment’s substantive due process right to 28 familial relations. FAC ¶¶ 83-91. Defendants argue this claim 1 should be dismissed because it must be analyzed under the Fourth 2 Amendment and is thus duplicative of Plaintiff’s other claims. 3 Mot. at 21. Plaintiff contends Defendants have misunderstood 4 this claim. Opp’n at 17-18. 5 The alleged harm for this cause of action is not the false 6 arrest but Defendant Yuba City’s interference with Plaintiff’s 7 constitutional right to familial relations with his children. 8 Although the allegedly false arrest may be related to this 9 claim, it is not the subject of this cause of action. See id. 10 at 17-18. Moreover, Defendants’ citation to footnote seven of 11 United States v. Lanier, 520 U.S. 259 (1997) is incomplete; the 12 omitted portion undermines Defendants’ position: “Graham v. 13 Connor, 490 U.S. 386, 394 [] (1989), does not hold that all 14 constitutional claims relating to physically abusive government 15 conduct must arise under either the Fourth or Eighth Amendments 16 . . . .” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997). 17 The Court holds this claim need not be brought under the 18 Fourth Amendment and is therefore not duplicative of Plaintiff’s 19 other claims. Defendants’ motion to dismiss the seventh cause 20 of action on this ground is DENIED. 21 IV. ORDER 22 For the reasons set forth above, the Court DENIES IN PART 23 and GRANTS IN PART Defendant’s motion to dismiss Plaintiff’s FAC 24 as follows: 25 1. The Court DISMISSES the first cause of action against 26 Defendants Hauck, Danisan, and Yuba City WITH PREJUDICE; 27 2. The Court DISMISSES the second, third, and fourth 28 causes of action against Defendants Danisan, Hauck, Koski, and nnn nnn enn ene nnn on nn nnn nn nn ne on nn ne en I NN

1 Jurado WITHOUT PREJUDICE; 2 3. The Court DISMISSES the fifth cause of action against 3 Defendants Hauck, Danisan, Jurado, Koski, and Yuba City WITHOUT 4 PREJUDICE; and 5 4. The Court DISMISSES the sixth cause of action against 6 Defendant Yuba City WITH PREJUDICE. 7 If Plaintiff elects to amend his complaint, he shall file a 8 Second Amended Complaint within twenty (20) days of this Order. 9 Defendants’ responsive pleading is due twenty (20) days 10 thereafter. 11 IT IS SO ORDERED. 12 Dated: December 18, 2023 13 opens

JOHN A. MENDEZ

15 SENIOR UNITED*STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 22