1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 LA'MARCUS MCDONALD, Case No. 20-cv-04183-CRB

9 Plaintiff,

ORDER GRANTING IN PART AND

10 v. DENYING IN PART DEFENDANTS’

MOTION TO DISMISS FOR FAILURE

11 COUNTY OF SONOMA, et al., TO STATE A CLAIM 12 Defendants.

13 Plaintiff La’Marcus McDonald brings this private right of action against County of 14 Sonoma, Town of Windsor, Sheriff Mark Essick, Deputy Sheriff (“DS”) Travis Perkins, 15 Administrative Sergeant (“Adm. Sgt.”) Brent Kidder, and Deputy Gregory Clegg (collectively 16 “Defendants”) for various violations of California and Federal civil rights laws. See generally 17 First Amended Complaint (“FAC”) (dkt. 15). McDonald alleges that DS Perkins and Deputy 18 Clegg unlawfully arrested, used excessive force, and searched McDonald in violation of the 19 Fourth and Fourteenth Amendments, as well as article I, sections 7 and 13 of the California 20 Constitution. See id. ¶¶ 88–98. McDonald also alleges that Sonoma County, Town of Windsor, 21 Sheriff Essick, and Adm. Sgt. Kidder effectively acquiesced to and condoned ongoing 22 constitutional violations. See Opp. (dkt. 29) 8–15. Defendants now move to dismiss for failure to 23 state a claim. See generally MTD (dkt 21). After carefully considering the parties’ briefs and oral 24 argument, the Court hereby DENIES Defendants’ motion to dismiss, with the sole exception of 25 McDonald’s request for injunctive relief. 26 27 1 I. BACKGROUND 2 A. Factual Background 3 Around 8:34 PM on July 9, 2019, Sonoma County Sheriff Deputies, acting as contracted 4 officers for the Windsor Police Department, responded to a welfare check of La’Marcus 5 McDonald, a Black Sonoma County resident, sleeping alone in a parked car.1 See FAC ¶¶ 33–34. 6 Andrew Chambers drove past McDonald and called 9-1-1 to request that an officer check on 7 McDonald’s welfare—Chambers suspected that McDonald might have overdosed. See id. ¶ 33. 8 DS Perkins arrived on scene first and found McDonald asleep in the car with the door open. See 9 id. ¶ 32. The vehicle was legally parked, with the ignition off. See id. ¶ 34. DS Perkins prodded 10 McDonald awake and reached into the car to take a comb out of McDonald’s hair. See id. ¶¶ 35– 11 36. When McDonald woke up, DS Perkins asked him if he had consumed any alcohol or drugs. 12 See id. ¶¶ 34–38. McDonald stated that he had drank alcohol earlier that night. See id. ¶ 39. DS 13 Perkins then asked McDonald to step out of the car and turn around—McDonald complied. See 14 id. ¶ 40. 15 The parties dispute what occurred next. The Incident Report2 states that McDonald tensed 16 up after DS Perkins grabbed his right arm, at which point the officer employed a takedown 17 maneuver to bring McDonald to the ground. Id. ¶ 44 (citing FAC, Ex A (dkt. 15-2)). McDonald 18 alleges that DS Perkins, without warning, grabbed McDonald’s right arm in an effort to handcuff 19 McDonald. See id. ¶¶ 40–42. After DS Perkins grabbed McDonald’s arm, McDonald only 20 remembers “waking up bloodied, face first on the ground with pain in his head and mouth.” Id. ¶ 21 43. McDonald watched the body camera footage once in the presence of a police officer and 22 observed DS Perkins say “Don’t f*****g do that again,” just before he slammed McDonald 23 headfirst into the pavement rendering him unconscious and breaking several teeth. Id. ¶ 44 (citing 24 FAC, Ex A). 25

26 1 McDonald resided with his mother, but his mother was in the process of being evicted from her residence. See FAC ¶ 32. McDonald’s friend allowed McDonald to sleep in the friend’s car, after 27 McDonald’s mother’s landlord said that McDonald was too old to live in the development. See id. 1 Deputy Clegg and the paramedics arrived as DS Perkins attempted to handcuff McDonald 2 and witnessed DS Perkins slam McDonald to the pavement. See id. ¶ 46. Both officers then 3 searched McDonald and the car for contraband but found nothing.3 See id. The ambulance then 4 transported McDonald, handcuffed while wearing a spit hood, to the hospital. See id. ¶ 47. Over 5 the course of several hours, Deputy Clegg refused to provide McDonald with water. See id. After 6 being discharged from the hospital, the officers transported McDonald to the county jail without 7 telling McDonald that he was under arrest or charged with anything. See id. ¶ 48. On or around 8 July 12, 2019, the District Attorney refused to press charges against McDonald, yet McDonald 9 remained in jail until his relatives bailed him out. See id. ¶ 49.4 The officers also impounded the 10 car that McDonald slept in, and it remained impounded as of September 8, 2020. 11 McDonald requested the police body cam footage, but Sonoma County refused to provide 12 him with a copy. See id. ¶ 13. The County did permit McDonald to watch the footage in the 13 Sonoma County Sheriff’s office with presence of a police officer. See id. However, Sonoma 14 County recently released the footage to McDonald. See Opp. at 4. 15 B. Defendants’ Motion to Dismiss 16 McDonald requests general damages, special damages, punitive and exemplary damages, 17 attorneys’ fees and costs, statutory damages, costs incurred, prejudgment interest, and declaratory 18 and injunctive relief. See FAC ¶ 196. McDonald premises his requested relief on fifteen causes 19 of action: 20 Count I. Section 1983 Claim Against DS Perkins and Deputy Clegg for violations of 21 McDonald’s Fourth and Fourteenth Amendment Rights. See id. ¶ 88. 22 Count II. Section 1983 Claim Against All Public Entity Defendants (Sonoma and 23 Windsor counties) as a Monell Action, i.e., supervising the violations of 24 McDonald’s Fourth and Fourteenth Amendment Rights. See id. ¶ 99. 25 26

27 3 According to the incident report, the officers found several bottles of alcohol, including one 1 Count III. Section 1983 Against Supervisory Defendants Sheriff Essick and Adm. Sgt. 2 Kidder for violations of McDonald’s Fourth and Fourteenth Amendment 3 Rights. See id. ¶ 115. 4 Count IV. Claims Against all Defendants under Article I, Sections 7 and 13 of the 5 California Constitution. See id. ¶ 124. 6 Count V. Negligent Hiring and Supervision Claim Against Sheriff Essick. See id. ¶ 130. 7 Count VI. Negligence Claim Against DS Perkins and Deputy Clegg. See id. ¶ 137. 8 Count VII. Intentional Infliction of Emotional Distress Claim Against DS Perkins. See id. 9 ¶ 141. 10 Count VIII. Battery Claim Against DS Perkins. See id. ¶ 147. 11 Count IX. False Arrest and Imprisonment Claim Against all Individual Officers. See id. ¶ 12 153. 13 Count X. Unreasonable Seizure of McDonald’s Car Against DS Perkins and Does 1–50. 14 See id. ¶ 160. 15 Count XI. Bane Civil Rights Act Claim, Cal. Civ. Code § 52.1, Against DS Perkins. See 16 id. ¶ 165. 17 Count XII. Bane Civil Rights Act Claim Against Sheriff Essick and Public Entities. See id. 18 ¶ 173. 19 Count XIII. Ralph Civil Rights Act Claim, Cal. Civ. Code § 51.7, 52(b), Against DS 20 Perkins. See id. ¶ 178. 21 Count XIV. Ralph Civil Rights Act Claim Against the Public Entity Defendants and Sheriff 22 Essick. See id. ¶ 187. 23 Count XV. Respondeat Superior State Law Claim, Cal. Gov. Code § 815.2(a), Against 24 Public Entity Defendants. See id. ¶ 192. 25 On September 19, 2020, County of Sonoma, Town of Windsor, Sheriff Essick, DS Perkins, 26 Adm. Sgt. Kidder, and Deputy Clegg filed a motion to dismiss several of McDonald’s claims. 27 See, e.g., MTD. 1 II. LEGAL STANDARD 2 Dismissal is proper where the complaint fails to “state a claim upon which relief can be 3 granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a complaint must plead 4 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 5 550 U.S. 544, 570 (2007); see also Fed. R. Civ. P. 8(a)(2). A claim is plausible “when the plaintiff 6 pleads factual content that allows the court to draw the reasonable inference that the defendant is 7 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fed. R. 8 Civ. P. 12(b)(6). A court “must presume all factual allegations of the complaint to be true and 9 draw all reasonable inferences in favor of the nonmoving party.” Usher v. City of L.A., 828 F.2d 10 556, 561 (9th Cir. 1987). A court need not, however, “accept as true allegations that are merely 11 conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden 12 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see also Twombly, 550 U.S. at 555 (“[A] 13 formulaic recitation of the elements of a cause of action will not do . . . .”). 14

III. DISCUSSION

15 Defendants move to dismiss several causes of action. The Court addresses each in turn 16 below. 17

A. DS Perkins and Deputy Clegg: Fourth and Fourteenth Amendment Violations

18 (Count I). 19 McDonald alleges that DS Perkins and Deputy Clegg violated his Fourth Amendment and 20 Fourteenth Amendment substantive due process rights, which gives rise to liability under 21 42 U.S.C. § 1983. See FAC ¶¶ 88–98. Section 1983 “provides a cause of action for the 22 ‘deprivation of any rights, privileges, or immunities secured by the Constitution and laws’ of the 23 United States.” Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 24 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for 25 vindicating federal rights elsewhere conferred. See Graham v. Connor, 490 U.S. 386, 393–94 26 (1989). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a 27 person violated a right secured by the Constitution or laws of the United States and (2) that said 1 person acted under the color of state law when they committed the alleged violation. See West v. 2 Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). 3 McDonald’s claim hinges on whether he agrees with the incident report’s assertion that he 4 “tensed up his body and attempted to pull his right arm” away when DS Perkins attempted to 5 handcuff him—conduct that may constitute “resisting arrest.” FAC, Ex. A at 7. McDonald denies 6 the veracity of incident report, including the allegation that he resisted arrest. See, e.g., id. ¶ 40 7 n.2; see also Opp. at 22 (“[P]laintiff was not resisting and was cooperating with Perkins’s unlawful 8 detention.”).5 The Court must therefore presume that McDonald did not resist arrest. 9 1. Fourth Amendment Right: Unlawful Arrest. 10 DS Perkins plausibly violated the Fourth Amendment when he arrested6 McDonald. See 11 id. ¶¶ 93, 94. “[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment 12 where there is probable cause to believe that a crime has been or is being committed.” Devenpack 13 v. Alford, 543 U.S. 146, 152 (2004). “It is well established that ‘an arrest without probable cause 14 violates the Fourth Amendment and gives rise to a claim for damages under § 1983.’” Rosenbaum 15 v. Washoe Cnty., 663 F.3d 1071, 1076 (9th Cir. 2011) (quoting Borunda v. Richmond, 885 F.2d 16 1384, 1391 (9th Cir.1988)). “Whether probable cause exists depends upon the reasonable 17 18 5 “Plaintiff does not admit that facts asserted in the incident report are truthful other than to use the 19 Incident Report as admissions of Defendants where relevant to Plaintiff’s case. For instance, having been denied access to the video tapes, and other evidence, Plaintiff believes he was entirely 20 in his car, did not attempt to move around in the car and did not attempt to pull his right arm out of Deputy Sheriff Perkins’s grasp.” FAC ¶ 40 n.2. 21 6 McDonald alleges that DS Perkins “unlawfully and sought to and did detain Plaintiff without a reasonable suspicion that a crime had actually taken place or would occur.” FAC ¶ 4. However, 22 McDonald told DS Perkins that he had consumed alcohol earlier, and the incident report notes that DS Perkins ordered McDonald out of the car after he smelled alcohol and observed an empty 23 container under McDonald’s back. See id. ¶ 39, Ex. A at 7. Even if the Court excludes the incident report as untrue, see FAC ¶ 40 n.2, courts have concluded that reasonable suspicion exists 24 when suspects admit that they have consumed alcohol. See Vondrak v. City of Las Cruces, 535 F.3d 1198, 1207 (10th Cir. 2008) (“Vondrak's statement that he ‘had one beer three hours ago’ 25 provided McCants with reasonable suspicion to conduct the field sobriety tests, or at the very least provided her with ‘arguable reasonable suspicion’ entitling her to qualified immunity.” (internal 26 citations omitted)); United States v. Slater, 411 F.3d 1003, 1004, 1006 (8th Cir.2005) (“Jones's admission that he had been drinking earlier that evening gave Officer Perry reasonable suspicion 27 to extend the stop while Jones completed the sobriety tests.”). Thus, DS Perkins could reasonably 1 conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” Id. 2 “An officer who observes criminal conduct may arrest the offender without a warrant, even if the 3 pertinent offense carries only a minor penalty.” Tatum v. City and Cnty. of San Francisco, 441 4 F.3d 1090, 1094 (2006). 5 The Court must resolve all factual disputes in favor of the McDonald. See Brayton 6 Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010). Because McDonald 7 contests the accuracy of DS Perkins’s incident report, the Court must adopt McDonald’s narrative, 8 including the allegation that McDonald never resisted DS Perkins’s attempt to arrest him. Thus, 9 DS Perkins lacked probable cause to arrest McDonald for resisting arrest. See, e.g., Vilchis v. 10 City of Bakersfield, 1:10–cv–00893 LJO JLT, 2012 113747, at *9 (C.D. Cal. Jan. 13, 2012) 11 (“Because Plaintiff has presented evidence that he . . . never resisted arrest, the Court must adopt 12 Plaintiff's version of events for purposes of this motion. Under that factual scenario, Officer 13 Lewis had no probable cause to arrest Plaintiff. Therefore, Officer Lewis' motion . . . must be 14 DENIED.”). 15 Defendants argue that DS Perkins also had probable cause to arrest McDonald for 16 disorderly conduct. See MTD at 18, 18 n.5 (citing Cal. Penal Code § 647(f) (West 2020)).

17 [E]very person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: . . . (f) Who is found in any 18 public place under the influence of intoxicating liquor . . . in a condition that they are unable to exercise care for their own safety or 19 the safety of others, or by reason of being under the influence of intoxicating liquor . . . interferes with or obstructs or prevents the 20 free use of any street, sidewalk, or other public way. 21 Cal. Penal Code § 647(f). Section 647(f) consists of four elements: “the arrestee is (1) intoxicated 22 (2) in a public place and either (3) is unable to exercise care for [her] own safety or the safety of 23 others or (4) interferes with or obstructs or prevents the free use of any street, sidewalk, or public 24 way.” People v. Lively, 10 Cal. App. 4th 1364, 1368–69 (1992). 25 Defendants argue that the following facts support probable cause to arrest McDonald for 26 disorderly conduct: (1) a witness drove past McDonald, called the police, and stated that he 27 believed McDonald had overdosed; (2) DS Perkins found McDonald asleep; (3) McDonald 1 (5) the car door was open. See MTD at 18. But DS Perkins did not arrest McDonald for violating 2 section 647(f), let alone conduct any field sobriety tests to determine if McDonald was intoxicated. 3 See FAC ¶ 41. Further, McDonald allegedly complied—albeit slowly—with DS Perkins’s 4 commands. See id. ¶¶ 41, Ex. A at 7. Unfortunately, it has become all too common in the Bay 5 Area for homeless people to use cars as shelter to sleep, a fact that does not support Defendants’ 6 probable cause theory. While these facts may provide an officer with reasonable suspicion to 7 detain a suspect for public intoxication, see supra note 6, they do not rise to the requisite level of 8 probable cause. See U.S. v. Brown, 401 F.3d 588, 597 (4th Cir. 2005) (concluding that an arrest 9 for public intoxication “based solely on glassy, bloodshot eyes and the strong smell of alcohol” 10 was not supported by probable cause). As a result, DS Perkins did not have probable cause to 11 arrest McDonald. 12 2. Fourth and Fourteenth Amendment: Excessive Force. 13 Defendants argue that McDonald has not alleged a Fourth Amendment claim because the 14 FAC lacks any allegation that DS Perkins used “deadly force” against McDonald. See MTD at 15 18–19. An excessive force claim can only be analyzed under the Fourth Amendment, so the Court 16 must analyze McDonald’s excessive force claim under the Fourth, not Fourteenth, Amendment.7 17 See Graham, 490 U.S. at 394–95; Fontana v. Haskin, 262 F.3d 871, 881–82 (9th Cir. 2001). “[A] 18 constitutional complaint of excessive force arises under the Fourth Amendment and constitutes a 19 claim concerning the overall reasonableness of a seizure.” Velazquez v. City of Long Beach, 793 20 F.3d 1010, 1025 (9th Cir. 2015). “[T]here are no per se rules in the Fourth Amendment excessive 21 force context; rather, courts ‘must still slosh [their] way through the factbound morass of 22 ‘reasonableness.’” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir.2011) (en banc) (alteration in 23 original) (quoting Scott v. Harris, 550 U.S. 372, 383 (2007)). To assess the “reasonableness” of a 24 law enforcement officer’s conduct, courts first consider the “nature and quality of the alleged 25

26 7 This includes McDonald’s claim that Deputy Clegg violated McDonald’s substantive due process rights when Deputy Clegg deprived McDonald of water. See FAC ¶¶ 47–48; see also 27 Pierce v. Multnomah Cnty., Or., 76 F.3d 1032, 1042–43 (9th Cir. 1996) (concluding that the 1 intrusion,” then turn to the governmental interests at stake: “(1) how severe the crime at issue is, 2 (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) 3 whether the suspect was actively resisting arrest or attempting to evade arrest by flight.” Id. 4 Assuming the allegations in the FAC to be true, DS Perkins allegedly slammed a compliant 5 McDonald to the pavement, knocking him and several of his teeth out in the process. See FAC ¶¶ 6 44–45. Not only does DS Perkins’s conduct severely intrude on McDonald’s Fourth Amendment 7 rights, but none of the countervailing factors support the government’s interests. See, e.g., Santos 8 v. Gates, 287 F.3d 846, 853–54 (9th Cir. 2002) (concluding that the police officers who gently 9 shoved a suspect to the ground severely invaded the suspect’s Fourth Amendment rights because 10 he suffered a broken back and temporary immobility). First, disorderly conduct via public 11 intoxication does not constitute a “severe crime.” Id. at 854. Second, neither the FAC nor 12 incident report suggest that McDonald posed a threat to DS Perkins. Third, McDonald denies 13 resisting arrest. See FAC ¶¶ 40 n.2, 43. Thus, the nature of the intrusion disproportionately 14 outweighs the government’s interest, which demonstrates that DS Perkins’s alleged conduct 15 constituted excessive force in violation of McDonald’s Fourth Amendment rights. See, e.g., 16 Santos, 287 F.3d at 854–55. 17 3. Fourth Amendment: Unlawful Search. 18 Officers must have probable cause to conduct a search incident to arrest. See Chimel v. 19 California, 395 U.S. 752, 762–63 (1969); Maryland v. Dyson, 527 U.S. 465, 467 (1999). As 20 determined above, DS Perkins lacked probable cause to arrest McDonald, therefore DS Perkins 21 and Deputy Clegg lacked probable cause to search McDonald. See supra III.A.1. McDonald may 22 therefore proceed with his § 1983 unlawful search claim against DS Perkins and Deputy Clegg. 23 B. Section 1983 Claims Against Sheriff Essick, Sergeant Kidder, and Deputy 24 Clegg (Counts I & III). 25 McDonald argues that Sheriff Essick, Sergeant Kidder, and Deputy Clegg “were each 26 knowingly and actively involved in the decisions that led to McDonald’s illegal search, false arrest 27 and cover-up,” and should therefore be liable for damages and injunctive relief under § 1983. 1 Opp. at 11; see also FAC ¶¶ 5–17. McDonald plausibly alleges that, as supervisors, Sheriff Essick 2 and Adm. Sgt. Kidder acted with deliberate indifference to ongoing constitutional violations 3 within the department. McDonald also plausibly alleges that Deputy Clegg participated in and 4 failed to stop DS Perkins’ allegedly unlawful conduct, which gives rise to liability under § 1983. 5 1. Sheriff Essick (Count III). 6 McDonald argues that the Court can impose liability on Sheriff Essick under three theories 7 of § 1983: (1) integral participant doctrine; (2) duty to intercede; and (3) supervisory liability. See 8 Opp. at 8, 12, 15. While McDonald’s first two theories fail, McDonald alleges a cognizable 9 supervisory liability claim. 10 a. Integral Participant. 11 A plaintiff may assert a § 1983 claim against officers who did not directly cause the 12 constitutional violation but served as integral participants in the unlawful conduct. See Boyd v. 13 Benton Cnty., 374 F.3d 774, 780 (9th Cir. 2004). To assert a § 1983 claim under the integral 14 participant doctrine, the defendant’s role must exceed the role of a bystander but need not rise to 15 the level of a constitutional violation. See Reynaga Hernandez v. Skinner, 969 F.3d 930, 941 (9th 16 Cir. 2020) (citing Bravo v. City of Santa Maria, 665 F.3d 1076, 1090 (9th Cir. 2011)). 17 McDonald’s allegations fail to show that Sheriff Essick planned, participated in, or assisted DS 18 Perkins’s unlawful conduct, and as a result, McDonald’s integral participant claim fails. 19 McDonald alleges that Sheriff Essick failed to properly train and supervise his subordinate 20 officers, condoned unlawful uses of excessive force in other cases, and implemented policies to 21 immunize officers from liability for unlawful arrests and batteries. See FAC ¶¶ 51, 54, 57–77. 22 These failures, McDonald argues, caused deputies like DS Perkins to violate suspects’ 23 constitutional rights. See Opp. at 13. But McDonald cites no case that recognizes an integral 24 participant theory based on policies alone. See, e.g., Opp. at 13. Defendants correctly note that 25 the Ninth Circuit has only found integral-participant liability against officers who planned or 26 physically participated in the specific violation. See MTD at 9 (citing Boyd, 374 F.3d at 780). 27 Thus, McDonald cannot proceed with his integral participant claim absent allegations that Sheriff 1 Essick somehow participated in the unlawful conduct. See Blankenhorn v. City of Orange, 485 2 F.3d 463, 487 n.12 (9th Cir. 2007) (concluding that an officer who arrived after the use of 3 excessive force did not participate in the unlawful conduct). 4 b. Duty to Intercede. 5 “[P]olice officers have a duty to intercede when their fellow officers violate the 6 constitutional rights of a suspect or other citizen.” United States v. Koon, 34 F.3d 1416, 1447 n.25 7 (9th Cir. 1994), rev'd in part on other grounds by 518 U.S. 81 (1996). “Importantly, however, 8 officers can be held liable for failing to intercede only if they had an opportunity to intercede." 9 Cunningham v. Gates, 229 F.3d 1271, 1289–90 (9th Cir. 2000). None of McDonald’s allegations 10 suggest that Sheriff Essick had an opportunity to intercede at the scene of the violation. As a 11 result, McDonald fails to allege a plausible duty to intercede claim against Sheriff Essick. 12 c. Supervisory Liability. 13 “A supervisor may be held liable under § 1983 ‘if he or she was personally involved in the 14 constitutional deprivation or a sufficient causal connection exists between the supervisor's 15 unlawful conduct and the constitutional violation.’” Lolli v. Cnty. of Orange, 351 F.3d 410, 418 16 (9th Cir. 2003) (quoting Jackson v. City of Bremerton, 268 F.3d 646, 653 (9th Cir. 2001)). Under 17 the latter theory of liability, “[a] supervisor can be liable in his individual capacity for his own 18 culpable action or inaction in the training, supervision, or control of his subordinates; for his 19 acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous 20 indifference to the rights of others.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting 21 Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.1998)) (internal alteration and quotation 22 marks omitted). The following analysis demonstrates that McDonald alleges a plausible 23 supervisory liability claim against Sheriff Essick. 24 McDonald repeatedly alleges that Sheriff Essick has 25 acted deliberately indifferent to the ongoing pattern and practice of 26 police misconduct and [has] deliberately failed to reform existing, inadequate policies, trainings, supervision, practices, and customs 27 that have consequently allowed the Sheriff Department and its with. 1 FAC ¶ 57; see id. ¶¶ 17, 68, 71, 104, 120, 121. To support these conclusions, McDonald cites two 2 policies, two incidents, and several studies that allegedly demonstrate Sheriff Essick’s deliberate 3 indifference. See, e.g., id. at 59–61, 71. First, the training policy directs officers “to adopt a 4 ‘Survivor’s mindset’ which encourages officers to think only of their own safety and justify their 5 actions, right or wrong, according to base survival instincts: ‘Stay alive! Then prove your conduct 6 was proper.’” Id. ¶ 59 (quoting Ex. C (dkt. 15-3) at 9). Second, the Sonoma County Sheriff’s 7 Office’s defensive tactic training policy instructs officers to conduct a “body fold takedown” 8 maneuver against resisting arrestees without protecting the suspect’s head. Id. ¶ 62–63. Third, the 9 family of now-deceased David Ward sued Sheriff Essick, Sonoma County, and several local 10 police officers for the death of Ward at the hands of law enforcement officers who mistakenly 11 believed that Ward had committed a crime. See id. ¶ 71. Fourth, prior to becoming a Sheriff, 12 then-Sheriff Captain Essick testified against a fellow deputy’s use of excessive force against a 13 suspect. Id. at 77. Finally, McDonald cites studies, audits, and reports that summarize Sonoma 14 County’s history of law enforcement misconduct. See id. ¶¶ 23, 72–76. Collectively, these 15 policies, incidents, and reports suggest that Sheriff Essick acted with “callous indifference to the 16 rights of others.” Watkins, 145 F.3d at 1093. 17 In Starr, the Ninth Circuit concluded that Sheriff Baca’s failure to maintain safety within 18 the county jail exhibited deliberate indifference to ongoing constitutional violations. 652 F.3d at 19 1208. Several inmates and one deputy attacked Starr after a deputy opened the gate to Starr’s cell. 20 See id. at 1204. Starr sued Sheriff Baca alleging that he knew about these ongoing violations yet 21 did nothing, which effectively condoned and ratified his subordinates use of excessive force. See 22 id. at 1212. To support his allegations, Starr cited specific examples of unconstitutional inmate 23 abuse within the county jail and several reports detailing Sheriff Baca and Los Angeles County’s 24 failure to address continuous constitutional violations. See id. at 1209–12. The court held that 25 Starr’s allegations plausibly demonstrated that Sheriff Baca acquiesced to the unlawful conduct, 26 and that such acquiescence caused Starr’s injuries. See id. at 1208. 27 Like Starr, here McDonald establishes a plausible nexus between DS Perkins’s 1 wrongdoing and Sheriff Essick’s policies and acquiescence to police misconduct. See id. at 1208. 2 Just as Sheriff Baca had a duty to protect inmates, see id. at 1208–09, Sheriff Essick has a duty to 3 protect the public. See Cal. Gov’t Code § 26600 (West 2020); Calatayud v. State of California, 18 4 Cal. 4th 1057, 1068–69 (1998). Yet despite this duty, McDonald plausibly alleges that Sheriff 5 Essick effectively condoned these ongoing constitutional violations. See, e.g., 71–78. 6 For example, McDonald cites the Sonoma County Independent Office of Law 7 Enforcement Review & Outreach’s (“IOLERO”) audit reports, which disagreed with the sheriff’s 8 office’s conclusions regarding several instances of excessive force. See FAC ¶ 75 (citing FY 9 2017–18 Annual Report, Independent Office of Law Enforcement Review & Outreach, 10 https://sonomacounty.ca.gov/IOLERO/Annual-Reports/). IOLERO asserted that the sheriff’s 11 office lacked transparency with regard to incidents of excessive force and proposed further 12 oversight over the office. See FAC ¶¶ 74–75. Sonoma County supervisors and the sheriff’s office 13 objected to IOLERO’s proposal. See id. The Sonoma County Human Rights Report also 14 documents constitutional violations and describes the tension between community members and 15 the Sonoma County Sheriff’s Office8 in the wake of police shootings and incidents of excessive 16 force. See FAC, Ex. H. Notably, this report cites law enforcement’s unwillingness to adopt 17 community-driven requests for more oversight of and responsiveness to the use of force. See id. ¶ 18 76. Instead of implementing policies to address his subordinates’ use of excessive force, Sheriff 19 Essick allegedly maintained policies that plausibly increased police misconduct, including the 20 survivor’s mindset and body-fold policies. See id. ¶ 62–63. 21 McDonald’s allegations plausibly demonstrate that Sheriff Essick knew about his officers’ 22 culpable conduct and failed to take any action to mitigate the ongoing violations, effectively 23 acquiescing to police misconduct. Sheriff Essick’s alleged acquiescence suffices to show that he 24 “personally played a role in the alleged constitutional violations.” Starr, 652 F.3d at 1208 25 (quoting Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir.2005)) (internal quotation marks 26 omitted). McDonald may therefore proceed with his supervisory liability claim against Sheriff 27 1 Essick. 2 2. Adm. Sgt. Kidder (Count III). 3 McDonald argues that Adm. Sgt. Kidder can also be held liable under the same three 4 theories of § 1983 liability: integral participant doctrine, duty to intercede, and supervisory 5 liability. See Opp. at 10–12. McDonald alleges that Adm. Sgt. Kidder “administratively rubber- 6 stamped and signed-off on the false arrest charge of ‘resisting arrest.’” FAC ¶ 7. McDonald’s 7 integral participant and duty to intercede claims fail for the same reasons as the claims against 8 Sheriff Essick: (1) Adm. Sgt. Kidder did not plan, facilitate, or participate in DS Perkins and 9 Deputy Clegg’s violations; and (2) Adm. Sgt. Kidder never had an opportunity to physically 10 intervene and stop the officers’ violations. See supra Subpart III.B.1.a–b. 11 However, McDonald alleges a plausible supervisory liability claim against Adm. Sgt. 12 Kidder. McDonald alleges that Adm. Sgt. Kidder supervised and trained DS Perkins and Deputy 13 Clegg. See FAC ¶¶ 9, 26, 58. McDonald also alleges that Adm. Sgt. Kidder violated the Sonoma 14 County Sheriff’s Office’s use of force policy when he stamped the officers’ arrest charge without 15 investigating DS Perkins’s use of force or the circumstances of McDonald’s arrest. See id.; see 16 also FAC, Ex. E (dkt. 15-5). Adm. Sgt. Kidder’s alleged failure to properly train, supervise, and 17 review DS Perkins’s conduct effectively ratifies the unlawful conduct, which plausibly gives rise 18 to supervisory liability under § 1983. See, e.g., Watkins, 145 F.3d at 1093–94 (concluding that the 19 chief of police could be held liable under § 1983 for dismissing a complaint despite evidence of 20 unlawful conduct). Thus, the Court DENIES Defendants’ motion to dismiss McDonald’s § 1983 21 claim against Adm. Sgt. Kidder for supervisory liability. 22 3. Deputy Clegg (Count I). 23 The Ninth Circuit requires that the constitutional violation be plainly obvious to an alleged 24 integral participant. See, e.g., Sjurset v. Button, 810 F.3d 609, 619 (9th Cir. 2015) (“Boyd thus 25 supports the notion that even officers who are integral participants in an unconstitutional search 26 are immune from liability if the unlawfulness of the conduct is not clearly established.” (internal 27 citations omitted)). The integral participant doctrine applies to an officer who provides armed 1 backup during an unconstitutional search, but not a nearby officer who interviews a witness and 2 does not participate whatsoever in the search. Compare Boyd, 374 F.3d at 780 (concluding that 3 officers who provided armed backup to an unconstitutional search were integral participants) with 4 Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009) (concluding that the integral participant 5 doctrine did not apply to an officer who interviewed a witness while his fellow officers executed 6 an unlawful search). Deputy Clegg falls within the former category. 7 McDonald alleges that Deputy Clegg “personally witnessed but did not intervene in DS 8 Perkins’s use of excessive force on Plaintiff during Plaintiff’s welfare check.” See FAC ¶¶ 10, 46. 9 After witnessing DS Perkins’s use of excessive force, Deputy Clegg allegedly helped DS Perkins 10 search McDonald, instead of intervening to stop the unlawful search and continued seizure. See 11 id. McDonald’s allegations suggest that, at the very least, Deputy Clegg participated in and failed 12 to intervene and stop the underlying unlawful conduct, which plausibly gives rise to liability under 13 the integral participant doctrine. See Cunningham, 229 F.3d 1289–90. As a result, the Court 14 DENIES Defendants’ motion to dismiss McDonald’s § 1983 claim against Deputy Clegg. 15 C. Monell Claims Against Sonoma County and Town of Windsor (Count II). 16 “A local government is liable for a constitutional violation if its policies, official decisions, 17 or informal customs cause the violation.” S.R. Nehad v. Browder, 929 F.3d 1125, 1141 (9th Cir. 18 2019). Two out of the three circumstances that give rise to municipal liability under Monell apply 19 to this case: (1) “when implementation of its official policies or established customs inflicts the 20 constitutional injury,” Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 708 (1978) 21 (Powell, J. concurring); and (2) when a municipality fails to train its employees “in a manner that 22 amounts to ‘deliberate indifference’” to certain constitutional rights, “such that ‘the need for more 23 or different training is so obvious, and the inadequacy so likely to result in the violation of 24 constitutional rights, that the policymakers of the city can reasonably be said to have been 25 deliberately indifferent to the need.” Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 802 (9th 26 Cir. 2018) (internal citations omitted). In order to establish Monell liability, a plaintiff must show 27 that a municipality’s policy “amounts to deliberate indifference to the plaintiff’s constitutional 1 right,” and “that the policy is the moving force behind the constitutional violation.” Plumeau v. 2 Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir.1997)). “Deliberate indifference” 3 exists when a municipality “fail[s] to investigate and discipline employees in the face of 4 widespread constitutional violations.” Hunter v. City of Sacramento, 652 F.3d 1225, 1234 n.8 5 (9th Cir. 2011). Here, McDonald plausibly alleges that Sonoma County and Town of Windsor’s 6 response, or lack thereof, to their history of excessive force plausibly exhibits a deliberate 7 indifference to widespread constitutional violations. 8 In Rodriguez, the Ninth Circuit concluded that substantial evidence supported the 9 plaintiffs’—five prisoners in the L.A. County Men’s Central Jail—claim against Los Angeles 10 alleging that the L.A. County Sheriff’s Department (“LASD”) “had adopted a custom or practice 11 of condoning excessive force.” 891 F.3d at 803. The plaintiffs suffered injuries after LASD used 12 excessive force to extract the plaintiffs out of their jail cells. See id. at 784–87. To support their 13 Monell claim, the plaintiffs presented the following evidence to show that LASD had a custom of 14 ignoring and condoning excessive force: (1) a report concluding that senior management at the 15 Men’s Central Jail failed to investigate excessive use of force claims; (2) testimony from a former 16 jail commander that the incidents of excessive force increased under a specific captain; (3) 17 evidence that LASD had not monitored the use of force against prisoners; and (4) evidence that 18 supervisors observed unlawful practices but did nothing. See id. at 803. The court held that the 19 plaintiffs’ evidence supported the jury’s conclusion that LASD acted deliberately indifferent to the 20 ongoing violations. See id. 21 McDonald alleges that Sonoma County and Town of Windsor’s failure to address the 22 persistent use of excessive force effectively condoned officers’ disregard for constitutional rights. 23 See FAC ¶¶ 68–77, 101. This allegation alone, would be too conclusory to satisfy the plausibility 24 standard; see Iqbal, 556 U.S. at 678; however, McDonald bolsters his theory with factual 25 allegations that parallel the evidence in Rodriguez, 891 F.3d at 803. See FAC ¶¶ 68–77. 26 McDonald relies on the IOLERO audit reports and the Sonoma County Human Rights Report, 27 both of which describe Sonoma County’s alleged unwillingness to address ongoing constitutional 1 incidents of excessive force: the unlawful killing of David Ward, who police mistakenly believed 2 stole a car; an officer-involved shooting of thirteen-year-old Andy Lopez; and Sheriff Essick’s 3 own testimony against a deputy’s alleged use of excessive force. See FAC ¶¶ 71, 73, 77. This 4 evidence supports McDonald’s claim that Sonoma County and Town of Windsor condoned, and 5 therefore exhibited deliberate indifference to, law enforcement’s use of excessive force. Contra 6 MTD at 16. 7 Defendants cite distinguishable cases to argue that McDonald only asserts conclusory 8 allegations. See MTD at 14 (citing John v. Lake County, C 18-06935 WHA, 2019 WL 859227, at 9 *4 (N.D. Cal. Feb. 22, 2019); Connick v. Thompson, 563 U.S. 51, 62 (2011)). 10 In John, the complaint contained contradictory allegations, and the plaintiff failed to 11 identify how a lack of training relates to the excessive force claim at issue. 2019 WL 859227, at 12 *4. Here, the FAC does not contain contradictory allegations. Contra id. Further, McDonald 13 draws a connection from Sonoma County and Town of Windsor’s failure to implement policies 14 that address concerns about the police’s use of force to an increased likelihood that officers like 15 DS Perkins would engage in unlawful behavior. See, e.g., Rodriguez, 891 F.3d at 802 (“[S]uch 16 that ‘the need for more or different training is so obvious, and the inadequacy so likely to result in 17 the violation of constitutional rights, that the policymakers of the city can reasonably be said to 18 have been deliberately indifferent to the need.”). 19 Defendants also rely on Connick to argue that McDonald has not demonstrated that 20 Sonoma County and Town of Windsor had notice—in the form of patterns of unconstitutional 21 conduct—of any deficient training. See MTD at 14–15 (citing 563 U.S. at 62). But McDonald 22 does not limit its allegations to training alone, McDonald cites numerous instances where Sonoma 23 County and Town of Windsor ignored the public’s requests for reform. See FAC ¶¶ 68–77.9 24 Further, IOLERO’s audits, coupled with the human rights report, provide sufficient notice to 25 Sonoma County and Town of Windsor of the unconstitutional patterns. See id. These factual 26

27 9 Defendants also overlook Connick’s caveat that “the unconstitutional consequences of failing to 1 allegations plausibly demonstrate Defendants’ deliberate indifference to the need for law 2 enforcement reform. 3 The Court therefore DENIES Defendants’ motion to dismiss McDonald’s Monell claim 4 against Sonoma County and Town of Windsor. 5 D. Negligent Hiring Claim (Count V). 6 In order to impose vicarious liability on a supervising entity for negligent hiring, retention, 7 or supervision, a plaintiff must demonstrate that a supervisor’s employee breached a duty. See 8 C.A. v. William S. Hart Union High School Dist., 53 Cal. 4th 861, 865 (2012). McDonald 9 premises his negligent hiring theory on Sheriff Essick’s alleged deliberate indifference under 10 § 1983, which also satisfies the standard of fault for negligent hiring. See Blankenhorn, 485 F.3d 11 at 484–85. McDonald alleges that Sheriff Essick retained and supervised DS Perkins and Deputy 12 Clegg who violated their duties when they unlawfully searched and seized McDonald. See FAC 13 ¶¶ 130–36. As a result, McDonald alleges a plausible claim that Sheriff Essick acted negligently 14 when he allegedly retained and failed to supervise DS Perkins and Deputy Clegg. See supra 15 Subpart III.B.1.c. Defendants’ motion to dismiss McDonald’s negligent hiring claim is therefore 16

DENIED.

17 E. Intentional Infliction of Emotional Distress Against DS Perkins (Count VII). 18 McDonald must satisfy three elements to proceed with his intentional infliction of emotion 19 distress (“IIED”) claim against DS Perkins: (1) a defendant must engage in “extreme and 20 outrageous conduct . . . with the intention of causing, or reckless disregard of the probability of 21 causing, emotional distress;” (2) a plaintiff must “suffer severe or extreme emotional distress;” and 22 (3) a defendant’s conduct must be the “actual and proximate causation of [the plaintiff’s] 23 emotional distress.” Christensen v. Sup. Ct., 54 Cal. 3d 868, 903 (1991). McDonald plausibly 24 alleges that DS Perkins’s unlawful arrest, search, and use of excessive force satisfies the required 25 elements for IIED. 26 Defendants argue that DS Perkins’s actions cannot constitute extreme or outrageous 27 conduct as a matter of law. See MTD at 21–22. As a matter of law, “extreme and outrageous 1 conduct” includes the unlawful arrest and use of excessive force against a suspect. See, e.g., 2 Blankenhorn, 485 F.3d at 487 n.17; Warren v. Marcus, 78 F. Supp. 1228, 1250 (N.D. Cal. 2015); 3 Jamarillo v. City of San Mateo, 76 F. Supp. 3d 905, 926 (N.D. Cal. 2014). DS Perkins allegedly 4 knocked McDonald unconscious and broke several of his teeth, causing McDonald to suffer 5 emotional distress. See FAC ¶¶ 32–46, 145. Further, because DS Perkins lacked probable cause 6 to arrest and search McDonald, DS Perkins’s perpetuated his conduct with “reckless disregard for 7 the probability of causing emotional distress.” Christensen, 54 Cal. 3d at 903; see Jamarillo, 76 F. 8 Supp. 3d at 926 (concluding that a reasonable jury could conclude that officers who intentionally 9 kneeled on a suspect acted with reckless disregard for the probability of causing emotional 10 distress). Defendants motion to dismiss McDonald’s IIED claim is therefore DENIED.10 11 F. Bane Act Claims (Count XI & XII). 12 Like 42 U.S.C. § 1983, California’s Bane Act, Cal. Civ. Code §§ 52.1(a) and (b), provides 13 a private right of action to plaintiffs for damages “against any person, whether acting under color 14 of law or not, who interferes or attempts to interfere ‘by threats, intimidation, or coercion with the 15 exercise or enjoyment” of their civil rights under the laws of the United States or California. 16 Martinez v. Cnty. of Sonoma, 15–cv–01953–JST, 2015 WL 5354071, at *9 (N.D. Cal. Sept. 14, 17 2015) (quoting M.H. v. Cnty. of Alameda, No. 11–CV–02868 JST, 2013 WL 1701591, *5 (N.D. 18 Cal. Apr. 18, 2013)). A plaintiff may assert a Bane Act claim when a defendant uses threats, 19 intimidation, or coercion to deprive the plaintiff of their constitutional or statutory rights. See 20 King v. State of California, 242 Cal. App. 4th 265, 294–95 (2013). “Where . . . an arrest is 21 unlawful and excessive force is applied in making the arrest, there has been coercion ‘independent 22 from the coercion inherent in the wrongful detention itself.’” Bender v. Cnty. of Los Angeles, 217 23 Cal. App. 4th 968, 978 (2013). Coercion therefore exists, for the purpose of a Bane Act violation, 24 when a defendant unlawfully arrests and uses excessive force against a suspect. See id.; see also 25 Rodriguez, 891 F.3d at 801–02 (applying Bender). 26

27 10 Town of Windsor and Sonoma County can also be held vicariously liable under section 815.2(a) 1 Contrary to Defendants’ argument that McDonald “fails to plead any 2 cognizable . . . predicate constitutional violation,” MTD at 23, McDonald has plausibly alleged 3 that DS Perkins unlawfully arrested and used excessive force against McDonald in violation of his 4 Fourth Amendment rights. See Supra Subpart III.A.1–2. Thus, the Court DENIES Defendants’ 5 motion to dismiss McDonald’s Bane Act claim. 6 G. Request for Injunctive Relief. 7 McDonald has standing to obtain injunctive relief if he can demonstrate that he has 8 suffered or is threatened with a “concrete and particularized legal harm . . . coupled with a 9 sufficient likelihood that he will again be wronged in a similar way.” Canatella v. State of 10 California, 304 F.3d 843, 852 (9th Cir. 2002) (emphasis added). McDonald’s request for 11 injunctive relief fails because he has not shown a sufficient likelihood that police officers will 12 further violate his rights. Contra Opp. at 24. 13 In Hodgers-Durgin v. de la Vina, the Ninth Circuit concluded that the plaintiffs, two U.S. 14 citizens, failed to demonstrate “a sufficient likelihood of injury to warrant equitable relief.” 199 15 F.3d 1037, 1044 (9th Cir. 1999). The U.S. Border Patrol allegedly stopped both plaintiffs 16 separately without reasonable suspicion or probable cause. Id. at 1039. Plaintiffs sought 17 injunctive relief barring the Border Patrol from conducting unconstitutional stops and requiring 18 the Border Patrol to implement measures to prevent other unlawful conduct. Id. The court denied 19 the plaintiffs’ request for injunctive relief because the plaintiffs had only been stopped once over 20 the course of ten years despite substantial exposure to Border Patrol agents. See id. at 1044. The 21 court held that one stop in ten years did not establish a future likelihood of injury. See id. 22 Just as in Hodgers-Durgin, McDonald has not identified a likelihood of future injury. See 23 199 F.3d 1044. McDonald acknowledges that the specific incident occurred on a single day yet 24 argues that he faces imminent future risk of dangerous encounters. See Opp. at 23. McDonald 25 neither identifies prior brushes with law enforcement nor provides plausible allegations suggesting 26 why law enforcement officials might target him again. McDonald argues that the “ongoing, 27 continuous, and real history of violence” against Black residents of Sonoma County creates a risk 1 of future harm. See id. But the Supreme Court has cautioned courts against entertaining claims 2 for equitable relief based on broad allegations of unconstitutional conduct, absent evidence that the 3 specific individual plaintiff will be harmed again. See City of Los Angeles v. Lyons, 461 U.S. 95, 4 111–12 (1983); see also Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013) (“[The] 5 “threatened injury must be certainly impending to constitute injury in fact, and allegations of 6 possible future injury are not sufficient.” (internal citations omitted)). The FAC lacks allegations 7 that McDonald, specifically, will be subject to future harm, and as a result, McDonald lacks 8 standing to assert a claim for injunctive relief. Defendants’ motion to dismiss McDonald’s claim 9 for prospective injunctive relief is therefore GRANTED WITHOUT PREJUDICE. McDonald 10 shall have an opportunity to seek injunctive relief provided that a factual basis exists for doing so. 11

IV. CONCLUSION

12 For the foregoing reasons, the Court GRANTS in part and DENIES in part, Defendants’ 13 motion to dismiss with respect to the following causes of action. 14 a. COUNT I: Section 1983 Claim Against Deputy Clegg and DS Perkins: DENIED. 15 b. COUNT II: Section 1983 Monell Claim Against Sonoma County and Town of 16 Windsor: DENIED. 17 c. COUNT III: Section 1983 Claim Against Sheriff Essick and Adm. Sgt. Kidder: 18

DENIED.

19 d. COUNT V: Negligent Hiring Claim Against Sheriff Essick: DENIED. 20 e. COUNT VII: Intentional Infliction of Emotional Distress Claim Against DS Perkins: 21

DENIED.

22 f. COUNT XI: Bane Act Claim Against DS Perkins: DENIED. 23 g. COUNT XII: Bane Act Claim Against Public Entity Defendants and Sheriff Essick: 24

DENIED.

25 h. COUNT XV: Respondeat Superior Claim Against Sonoma County and Town of 26 Windsor: DENIED. 27 i. Injunctive Relief: GRANTED WITHOUT PREJUDICE. 1 McDonald shall have thirty days to amend and add allegations to the FAC supporting his 2 || claim for injunctive relief. 3 4 IT ISSO ORDERED. 5 Dated: December 11, 2020 xo

CHARLES R. BREYER

6 United States District Judge 7 8 9 10 11 a 12

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