1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TINA POGUE, individually and as Case No.: 21-CV-309 TWR (MDD) representative and successor of interest of 12 the ESTATE OF JOSEPH JIMENEZ, ORDER (1) GRANTING IN PART 13 AND DENYING IN PART THE Plaintiff,

CITY’S MOTION TO DISMISS, AND

14 v. (2) DENYING THE COUNTY’S 15 MOTION TO DISMISS

COUNTY OF SAN DIEGO, DEPUTY

16 JASON HAYEK, SERGEANT DOE, (ECF Nos. 16, 17)

CITY OF VISTA, VISTA FIRE

17 PARAMEDIC DOE, and DOES 2–5 and 18 7–10, 19 Defendants. 20

21 Presently before the Court are the Motions to Dismiss Plaintiff Tina Pogue’s First 22 Amended Complaint filed by Defendants the City of Chula Vista (the “City”) (“City Mot.,” 23 ECF No. 16) and the County of San Diego (the “County”) and Deputy Jason Hayek (“Cty. 24 Mot.,” ECF No. 17) (together, the “Motions”), as well as Plaintiff’s Responses in 25 Opposition to (“Cty. Opp’n,” ECF No. 18; “City Opp’n,” ECF No. 19), and Defendants’ 26 / / / 27 / / / 28 / / / 1 Replies in Support of (“City Reply,” ECF No. 20; “Cty. Reply,” ECF No. 22 ) the Motions. 2 The Court determined that the Motions were appropriate for resolution on the papers 3 without oral argument pursuant to Civil Local Rule 7.1(d)(1). (See ECF No. 21.) Having 4 carefully reviewed Plaintiff’s First Amended Complaint (“FAC,” ECF No. 13), the Parties’ 5 arguments, and the relevant law, the Court GRANT IN PART AND DENIES IN PART 6 the City Motion and DENIES the County Motion as follows. 7 BACKGROUND 8 I. Factual Allegations2 9 On February 19, 2020, residents of the City reported that Decedent Joseph Jimenez 10 was in distress and acting in an unusual manner. (See FAC ¶ 20; see also id. ¶ 22.) 11 Defendant Deputy Hayek, who did not have a partner with him, responded and approached 12 Decedent to arrest him. (See id. ¶ 21.) Although “not resistive or assaultive,” Decedent 13 was unable to control his bodily movement or understand or comply with Deputy Hayek’s 14 commands. (See id. ¶ 22.) Deputy Hayek therefore applied a carotid restraint, (see id. 15 ¶ 23), rendering Decedent unconscious. (See id. ¶ 24.) 16 Rather than follow the San Diego Sheriff’s Department’s (“SDSD”) policy of rolling 17 Decedent on his side, checking his pulse, or monitoring his breathing, Deputy Hayek 18 maintained his restraint and kept his weight on Decedent, who remained face down in the 19 street. (See id. ¶ 25.) When she arrived on the scene, Sergeant Doe also failed to comply 20 with SDSD policies, instead providing a “max restraint” to be applied tightly around 21 Decedent’s ankles. (See id. ¶ 26.) 22

23 1 Although the County’s Reply was untimely under the undersigned’s Standing Order for Civil Cases, see 24 id. § II.B.2, the Court finds the delay was due to excusable neglect because there is no danger of prejudice 25 or indication of bad faith in the minor delay. See Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (listing the excusable neglect factors). Although the Court properly may consider the County’s untimely 26 Reply, the arguments it presents do not alter the Court’s reasoning or conclusions.

27 2 For purposes of Defendants’ Motions, the facts alleged in Plaintiff’s First Amended Complaint are accepted as true. See Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1249 (9th Cir. 2007) (stating that, in 28 1 Next on the scene was the Vista Fire Department, including Vista Fire Paramedic 2 Doe (“Paramedic Doe”). (See id. ¶¶ 27, 29.) Although Paramedic Doe attempted to 3 communicate with Decedent and evaluate his condition, their care was impeded by Deputy 4 Hayek and other deputies, who continued to restrain Decedent. (See id. ¶¶ 27–29.) 5 Paramedics strapped Decedent prone on a gurney and placed a spit mask on his head. (See 6 id. ¶ 31.) Decedent remained handcuffed and wrapped in the max restraint while he was 7 transported to the hospital. (See id.) 8 When Decedent arrived at the hospital, he was not breathing. (See id.) Despite 9 resuscitative measures, Decedent was taken off life support and passed away on 10 February 24, 2020. (See id. ¶ 32.) The County Coroner determined that Decedent’s cause 11 of death was anoxic ischemic encephalopathy, meaning that Decedent lost brain function 12 as a result of oxygen deprivation. (See id. ¶ 33.) 13 II. Procedural Background 14 Plaintiff, Decedent’s mother, (see FAC ¶ 5), initiated this action on February 19, 15 2021, by filing her original Complaint. (See generally ECF No. 1 (“Compl.”).) After 16 Defendants moved to dismiss, (see ECF Nos. 7, 8), Plaintiff filed the operative First 17 Amended Complaint, alleging eight causes of action for (1) excessive force in violation of 18 42 U.S.C. § 1983 against Deputy Hayek and Does 2 through 5 (the “Deputy Defendants”); 19 (2) deliberate indifference to Decedent’s medical needs in violation of 42 U.S.C. § 1983 20 against all Defendants except for the City and the County; (3) supervisory liability under 21 42 U.S.C. § 1983 against Sergeant Doe and any other supervisory Doe Defendants; 22 (4) Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978) 23 (“Monell”), violations against the City and County pursuant to 42 U.S.C. § 1983; 24 (5) wrongful death/medical negligence against the City, Paramedic Doe, and Does 7 25 through 10 (together, the “City Defendants”); (6) wrongful death/negligence against the 26 Deputy Defendants; (7) battery against the County, Deputy Hayek, and Does 2 through 5 27 (together, the “County Defendants”); and (8) violation of the Bane Civil Rights Act (the 28 “Bane Act”), Cal. Civ. Code § 52.1, against the Deputy Defendants. (See generally FAC.) 1 The City Motion followed on June 24, 2021, (see generally ECF No. 16), and the County 2 Motion on June 25, 2021. (See generally ECF No. 17.) 3 LEGAL STANDARD 4 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 5 state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” 6 Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro 7 v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). “A district court’s dismissal for failure to 8 state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a ‘lack of 9 a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 10 theory.’” Id. at 1242 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 11 Cir. 1988)). 12 “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and 13 plain statement of the claim showing that the pleader is entitled to relief.’” Ashcroft v. 14 Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). “[T]he pleading 15 standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands 16 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 17 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “[a] 18 pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a 19 cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). 20 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 21 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 22 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads 23 factual content that allows the court to draw the reasonable inference that the defendant is 24 liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[W]here the 25 well-pleaded facts do not permit the court to infer more than the mere possibility of 26 misconduct, the complaint has alleged—but it has not ‘show[n]’—'that the pleader is 27 entitled to relief.’” Id. at 679 (second alteration in original) (quoting Fed. R. Civ. P. 28 8(a)(2)). 1 “If a complaint is dismissed for failure to state a claim, leave to amend should be 2 granted ‘unless the court determines that the allegation of other facts consistent with the 3 challenged pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight 4 Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well 5 Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). “A district court does not err in 6 denying leave to amend where the amendment would be futile.” Id. (citing Reddy v. Litton 7 Indus., 912 F.2d 291, 296 (9th Cir. 1990)). 8 ANALYSIS 9 I. The City Motion 10 The City seeks dismissal pursuant to Rule 12(b)(6) of (1) Plaintiff’s Monell claim 11 against it, (see generally City Mot.; ECF No. 16-1 (“City Mem.”) at 6, 8–14); and 12 (2) Paramedic Doe and Does 7 through 10 (the “Paramedic Does”). (See generally City 13 Mot.; City Mem. At 1, 14–15.) 14 A. Monell Claim 15 “The Supreme Court in Monell held that municipalities may only be held liable 16 under section 1983 for constitutional violations resulting from official county policy or 17 custom.” Benavidez v. Cty. Of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021) (quoting 18 Monell, 436 U.S. at 694). “[P]olicies can include written policies, unwritten customs and 19 practices, [and] failure to train municipal employees on avoiding certain obvious 20 constitutional violations[.]” Id. (citing City of Canton v. Harris, 489 U.S. 378, 387 (1989)). 21 Here, Plaintiff alleges that the “City failed to adequately train paramedics and other 22 personnel[] . . . and failed to institute appropriate policies[] regarding constitutional 23 procedures for the protection of detainees[;] access to and proper medical treatment for 24 detainees[;] intervention and communication when medical care is impeded[; and] the 25 evaluation, care, treatment, and transportation of detainees[,] including those of impaired 26 mental or physical capacity or those who are under the influence of a controlled substance.” 27 (See FAC ¶ 70; see also id. ¶¶ 67–69; City Opp’n at 4.) The City argues that Plaintiff’s 28 Monell claim is susceptible to dismissal because Plaintiff fails to allege any facts 1 supporting her “threadbare” Monell claim under Rule 12(b)(6), (see City Mot. at 11–14), 2 and because Plaintiff combines her allegations against the City and County in violation of 3 Rule 8(a)(2). (See City Mot. at 14.) The Court rejects this second argument outright. 4 Paragraph 70 of Plaintiff’s First Amended Complaint clearly outlines the specific failures 5 Plaintiff attributes to the City. (See generally FAC ¶ 70.) 6 As for the adequacy of Plaintiff’s allegations, “[t]o allege a failure to train, a plaintiff 7 must include sufficient facts to support a reasonable inference (1) of a constitutional 8 violation; (2) of a municipal training policy that amounts to a deliberate indifference to 9 constitutional rights; and (3) that the constitutional injury would not have resulted if the 10 municipality properly trained their employees.” Benavidez, 993 F.3d at 1153–54 (quoting 11 Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007)). “A municipality’s 12 culpability for a deprivation of rights is at its most tenuous where a claim turns on 13 a failure to train.” Id. at 1154 (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)). 14 Generally, “[t]hat a particular officer may be unsatisfactorily trained will not alone suffice 15 to fasten liability on the city, for the officer’s shortcomings may have resulted from factors 16 other than a faulty training program.” See id. at 1154 (quoting City of Canton, 489 U.S. at 17 390–91) (citing Blankenhorn, 485 F.3d at 485). However, “in rare instances, single 18 constitutional violations are so inconsistent with constitutional rights that even such a 19 single instance indicates at least deliberate indifference of the municipality.” Id. at 1153 20 (citing Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 405–06 (1997)); see 21 also id. at 1154 (“As to the single instance category, generally, a single instance of unlawful 22 conduct is insufficient to state a claim for municipal liability under section 1983.” (citing 23 Fed’n of Afr. Am. Contractors v. City of Oakland, 96 F.3d 1204, 1216 (9th Cir. 1996))). 24 The Supreme Court, for example, has “posed the hypothetical example of a city that 25 arms its police force with firearms and deploys the armed officers into the public to capture 26 fleeing felons without training the officers in the constitutional limitation on the use of 27 deadly force.” See Connick v. Thompson, 563 U.S. 51, 63 (2011) (citing Canton, 489 28 U.S. at 390 n.10). A single shooting in this instance may suffice because, “[g]iven the 1 known frequency with which police attempt to arrest fleeing felons and the ‘predictability 2 that an officer lacking specific tools to handle that situation will violate citizens’ rights,’ 3 . . . a city’s decision not to train the officers about constitutional limits on the use of deadly 4 force could reflect the city’s deliberate indifference to the ‘highly predictable 5 consequence,’ namely, violations of constitutional rights.” See id. at 63–64 (quoting Bryan 6 Cty., 520 U.S. at 409). In this hypothetical scenario, there is an “obvious need for specific 7 legal training” because “[a]rmed police must sometimes make split-second decisions with 8 life-or-death consequences” and “[t]here is no reason to assume that police academy 9 applicants are familiar with the constitutional constraints on the use of deadly force.” See 10 id. at 64. Further, “in the absence of training, there is no way for novice officers to obtain 11 the legal knowledge they require.” See id. On the other hand, “[f]ailure to train prosecutors 12 in their Brady obligations does not fall within the narrow range of Canton’s hypothesized 13 single-incident liability” because “[a]ttorneys are trained in the law and equipped with the 14 tools to interpret and apply legal principles, understand constitutional limits, and exercise 15 legal judgment.” See id. 16 The Court concludes that Plaintiff fails sufficiently to allege a Monell claim against 17 the City for failure to train based on the single incident detailed in her First Amended 18 Complaint. Although Plaintiff invokes “constitutional procedures,” (see FAC ¶ 70), her 19 allegations boil down to the provision of medical services. (See id. (alleging failure to train 20 regarding “access to and proper medical treatment for detainees” and “intervention and 21 communication when medical care is impeded”).) In other words, the constitutional 22 violation asserted here—deliberate indifference to medical care, (see id. ¶¶ 43–50)— 23 intersects with the specialized medical training that paramedics receive. This renders 24 Plaintiff’s claims more similar to those against prosecutors who are not provided additional 25 training regarding Brady obligations than to those against armed police officers who are 26 not provided any training as to the appropriate use of deadly force. See Connick, 563 U.S. 27 at 63–64. 28 / / / 1 This is not to say that the City’s decision to hire trained paramedics insulates the 2 City from liability. See, e.g., Long v. Cty. of Los Angeles, 442 F.3d 1178, 1187–88 (9th 3 Cir. 2006) (concluding that the defendant county’s policy of hiring professional doctors 4 and nurses to work in a correctional treatment facility did not insulate the county from 5 Monell liability premised on an alleged failure adequately to train those medical 6 professionals on documenting patients’ conditions and monitoring and assessing their need 7 to be transferred to a facility with a higher level of medical care). Based on the single 8 alleged deficiency identified in Plaintiff’s First Amended Complaint, however, it is not 9 clear that the alleged constitutional deprivations resulted from a faulty training program (or 10 policies) as opposed to the faulty training of a particular paramedic. See Benavidez, 993 11 F.3d at 1154 (“That a particular officer may be unsatisfactorily trained will not alone 12 suffice to fasten liability on the city, for the officer’s shortcomings may have resulted from 13 factors other than a faulty training program.” (quoting City of Canton, 489 U.S. at 14 390–91) (citing Blankenhorn, 485 F.3d at 485)); cf. Long, 442 F.3d at 1188–89 (reversing 15 the district court’s summary adjudication of Monell claim in favor of the defendant county 16 based on failure to train medical staff where the county knew that the medical unit at which 17 the decedent was housed was not equipped to care for patients like the decedent and the 18 decedent had been seen over fifty times by medical staff in the eighteen days prior to his 19 death). The Court therefore concludes that Plaintiff has failed adequately to allege a Monell 20 claim based on a “failure to train” or “failure to institute policies” grounded solely on 21 Decedent’s single interaction with the City’s Paramedic Does. 22 Although Plaintiff urges the Court to allow her to proceed to discovery, at which 23 point she can “obtain and evaluate relevant policies and training[,]” (see City Opp’n at 4), 24 the Ninth Circuit has cautioned that the Supreme Court’s “case law does not permit 25 plaintiffs to rely on anticipated discovery to satisfy Rules 8 and 12(b)(6); rather, pleadings 26 must assert well-pleaded factual allegations to advance to discovery.” See Whitaker v. 27 Tesla Motors, Inc., 985 F.3d 1173, 1177 (9th Cir. 2021) (citing Twombly, 550 U.S. at 559). 28 / / / 1 Accordingly, the Court GRANTS the City Motion and DISMISSES WITHOUT 2 PREJUDICE Plaintiff’s Monell cause of action. 3 B. Doe Defendants 4 The City argues that the Paramedic Does must be dismissed because the conduct 5 attributed to each of them cannot be identified as a result of the improper grouping of claims 6 against the Does and failure to make specific allegations against each of them. (See City 7 Mot. at 14–15.) Plaintiff responds that the “allegations . . . include specific conduct which 8 Plaintiff contends violates the law,” (see City Opp’n at 5 (citing FAC ¶¶ 27–30)), and that 9 Deputy Hayek’s body cam video footage “depicts several Vista paramedics but their name 10 badges are indecipherable.” (See id.) 11 Here, Plaintiff alleges that “Paramedic Doe and Does 7–10 provided minimal and 12 insufficient medical care to Decedent” and “took no action to obtain access to provide the 13 sufficient care or advocate for their patient despite knowing that Decedent’s respiratory 14 and circulatory systems were greatly impaired.” (See FAC ¶ 29.) Plaintiff adds that “[t]he 15 rank or role of each Doe is also currently unknown and these Does may include supervisors 16 or persons with varying medical licenses . . . .” (See id. ¶ 15.) Particularly given that 17 Plaintiff alleges an absence of action common to each of the Paramedic Does, these 18 allegations suffice at this stage in the proceedings. Further, the Court concludes that it 19 would be premature to dismiss the Paramedic Does at this early stage. See Mohammad v. 20 Cal. Dep’t of Corr., No. 14-CV-03837-BLF, 2015 WL 720721, at *1 (N.D. Cal. Feb. 18, 21 2015) (“[A]n action should not be dismissed without giving Plaintiff an opportunity to 22 identify the defendants through limited discovery, ‘unless it is clear that discovery would 23 not uncover the identities or that the complaint would be dismissed on other grounds.’” 24 (quoting Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999)) (first citing 25 Youngblood v. 5 Unknown Cim Corr. Officers, 536 Fed. App’x 758 (9th Cir. 2013); then 26 citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); then citing Fed. R. Civ. P. 27 45; finally citing Fed. R. Civ. P. 26(d)); accord Mitchell v. City of Henderson, No. 2:13- 28 CV-01154-APG, 2015 WL 427835, at *8 & n.76 (D. Nev. Feb. 2, 2015) (quoting Gillespie, 1 629 F.2d at 642))); see also Terpin v. AT&T Mobility, LLC, No. 218CV06975ODWKSX, 2 2020 WL 5369410, at *7 (C.D. Cal. Sept. 8, 2020) (“The Court finds it premature to dismiss 3 Doe defendants 1–10, as they are permitted by Local Rule . . . and facts may develop during 4 discovery which enable [the plaintiff] to identify the Does.”); accord Caron v. W. United 5 Ins. Co., No. 2:11-CV-01348-GMN, 2011 WL 4527954, at *2 (D. Nev. Sept. 28, 2011). 6 Accordingly, the Court DENIES the City’s Motion to dismiss the Paramedic Does. 7 II. The County Motion 8 Under Rule 12(b)(6), the County and Deputy Hayek move for dismissal of 9 (1) Plaintiff’s third cause of action for supervisory liability, (see generally Cty. Mot.; ECF 10 No. 17-1 (“Cty. Mem.”) at 3–5); (2) Plaintiff’s eighth cause of action for violation of the 11 Bane Act, (see generally Cty. Mot.; Cty. Mem. at 6–8); and (3) Sergeant Doe and Does 2 12 through 5. (See generally Cty. Mot.; Cty. Mem. at 8.) 13 A. Supervisory Liability 14 The Parties agree that a supervisor may be held liable under section 1983 if the 15 supervisor personally participated in the alleged constitutional violation(s) or knew of the 16 alleged violation(s) and failed to intervene to prevent them. (Compare Cty. Mem. at 3 17 (quoting Maxwell v. Cty of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013)), with Cty. 18 Opp’n at 4 (quoting Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)).) Nonetheless, 19 the County urges dismissal of Plaintiff’s supervisory liability cause of action on the 20 following grounds: (1) Plaintiff fails to allege that “any Supervisory Defendant had any 21 direct involvement with [Decedent],” (see Cty. Mem. at 4 (citing FAC ¶¶ 55–60)); 22 (2) “Plaintiff[] lump[s] Deputy Hayek’s supervisor and Paramedic Doe’s supervisors 23 together, such that it is impossible to determine the claims against either[,]” (see id. (citing 24 FAC ¶¶ 55–56, 59)); and (3) “the minimal descriptions given of Supervisory Defendant 25 Sergeant Doe in the FAC fails to allege facts of her committing an unconstitutional act.” 26 (See id. at 5.) Plaintiff responds that “Sergeant Doe observed [the excessive force being 27 used by Deputy Hayek and other SDSD deputies], failed to intervene in stopping this 28 / / / 1 conduct[,] and even encouraged and suggested additional acts of excessive force.” (See 2 Cty. Opp’n at 4.) 3 The Court must agree with Plaintiff. First, Plaintiff alleges that Sergeant Doe 4 provided Deputy Hayek and other Doe Deputies a max restraint to be used on Decedent, 5 thereby compounding the alleged excessive force Decedent suffered. (See FAC ¶¶ 26, 54.) 6 Even if these allegations did not suffice to establish Sergeant Doe’s “direct involvement” 7 with Decedent, Plaintiff also alleges that Sergeant Doe failed to intervene to prevent the 8 application of excessive force to Decedent, which is a second basis for supervisory liability 9 that the County concedes is available. (See Cty. Mem. at 3.) Second, the individual 10 conduct Plaintiff attributes to Sergeant Doe is clear: Sergeant Doe failed to intervene to 11 prevent the use of the allegedly excessive force the Doe Deputies were using, (see FAC 12 ¶¶ 28, 55–56), and even suggested that Deputy Hayek apply a max restraint, which she 13 provided. (See FAC ¶¶ 26, 54.) Third and finally, the “constitutional standard” Sergeant 14 Doe is alleged to have violated is Decedent’s right to be free from use of excessive force. 15 (See id. ¶¶ 35–42.) 16 Having rejected the County’s arguments, the Court concludes that Plaintiff 17 adequately alleges a claim for supervisory liability against Sergeant Doe. See, e.g., Garlick 18 v. Cty. of Kern, 167 F. Supp. 3d 1117, 1161 (E.D. Cal. 2016) (denying summary judgment 19 on claims for failure to intervene where “a reasonable jury could conclude that the officers’ 20 application of body-weight to [the decedent]’s back continued for approximately ten 21 minutes, thus, during that time, officers had a realistic opportunity to intervene in the 22 allegedly violative conduct within the time [the decedent] was restrained”); Eklund v. Cty. 23 of Orange, No. SACV080099DOCRNBX, 2009 WL 10670621, at *7 (C.D. Cal. May 11, 24 2009) (denying summary judgment in favor of a sergeant on a supervisory claim for 25 excessive force where a factual dispute existed as to whether the sergeant had heard 26 complaints from the plaintiff that her handcuffs were too tight). The Court therefore 27 DENIES the County Motion to the extent it seeks dismissal of Plaintiff’s third cause of 28 action for supervisory liability. 1 B. Bane Act 2 “The Bane Act civilly protects individuals from conduct aimed at interfering with 3 rights that are secured by federal or state law, where the interference is carried out ‘by 4 threats, intimidation or coercion.’” Reese v. Cty. of Sacramento, 888 F.3d 1030, 1040 (9th 5 Cir. 2018) (quoting Venegas v. Cty. of Los Angeles, 153 Cal. App. 4th 1230, 1232 (2007)). 6 With respect to excessive force claims under the Bane Act, “the Bane Act does not require 7 the ‘threat, intimidation or coercion’ element of the claim to be transactionally independent 8 from the constitutional violation alleged[, although] . . . the Bane Act [does] require[] . . . 9 ‘a specific intent to violate the arrestee’s right to freedom from unreasonable seizure.’” See 10 id. at 1043 (quoting Cornell v. City & Cty. of San Francisco, 17 Cal. App. 5th 766, 11 799–802 (2017)). 12 Deputy Hayek maintains that Plaintiff fails to allege that he had the requisite specific 13 intent, (see Cty. Mot. at 7), while Plaintiff contends that her allegations suffice. (See Cty. 14 Opp’n at 6–7.) “The specific intent inquiry for a Bane Act claim is focused on two 15 questions: First, ‘[i]s the right at issue clearly delineated and plainly applicable under the 16 circumstances of the case,’ and second, ‘[d]id the defendant commit the act in question 17 with the particular purpose of depriving the citizen victim of his enjoyment of the interests 18 protected by that right?’” Sandoval v. Cty. of Sonoma, 912 F.3d 509, 520 (9th Cir. 2018) 19 (quoting Cornell, 17 Cal. App. 5th at 803). “So long as those two requirements are met, 20 specific intent can be shown ‘even if the defendant did not in fact recognize the 21 unlawfulness of his act’ but instead acted in ‘reckless disregard’ of the constitutional 22 right. Id. (quoting Cornell, 17 Cal. App. 5th at 803). In an excessive force case such as 23 this one, “Plaintiff must show that ‘[the Doe Deputies] intended not only the force, but its 24 unreasonableness, its character as more than necessary under the circumstances.” See 25 Sacapano v. Cty. of San Bernardino, No. CV 19-0679 CBM (KKX), 2021 WL 3523496, 26 at *7 (C.D. Cal. Feb. 16, 2021) (alteration in original) (quoting Losee v. City of Chico, 738 27 F. App’x 398, 401 (9th Cir. 2018)). 28 / / / 1 Deputy Hayek concedes the first of these requirements, but contests whether 2 Plaintiff’s allegations meet the second.3 (See Cty. Mot. at 7.) While Deputy Hayek 3 contends that “Plaintiff[] do[es] not identify any facts showing Deputy Hayek applied 4 excessive force with a criminal intent of violating [Decedent]’s Constitutional rights,” (see 5 id.), he fails to address whether Plaintiff adequately alleges that he exhibited “reckless 6 disregard” of Decedent’s rights. Cf. Sandoval, 912 F.3d at 520. In her Opposition, (see 7 Cty. Opp’n at 6–7), Plaintiff identifies certain allegations that could evidence Deputy 8 Hayek’s reckless disregard of Decedent’s rights under the Fourth and Fourteenth 9 Amendments to be free from excessive force, including that Deputy Hayek applied the 10 carotid restraint without attempting de-escalation or lesser means of force, (see FAC ¶ 23), 11 and continued to apply considerable force to Decedent even after rendering him 12 unconscious. (See id. ¶¶ 24–25.) The Court therefore DENIES the County Motion as to 13 Plaintiff’s eighth cause of action against Deputy Hayek under the Bane Act. See, e.g., 14 Sacapano, 2021 WL 3523496, at *7 (denying the defendants summary judgment where “a 15 reasonable juror could conclude that [the d]efendants acted unreasonably under the Fourth 16 Amendment when [one of the deputy defendants] ‘pushed [the plaintiff], forcefully and 17 violently, out of his way,’ and [another deputy defendant] ‘raised his hands up high’ and 18 hit [the p]laintiff with the butt of his gun in her nose”); Est. of Smith v. Holslag, No. 16- 19 CV-2989-WQH-MSB, 2020 WL 7863428, at *10–11 (S.D. Cal. Dec. 31, 2020) (denying 20 summary judgment on a Bane Act claim on the grounds that “a reasonable juror could 21

22 3 In the Reply, Deputy Hayek also argues for the first time that Plaintiff improperly asserts a claim under 23 the Bane Act that is wholly derivative of Decedent’s. (See Cty. Reply at 3–4.) Even if this argument were properly raised in the Reply, “Defendants’ position is based on an erroneous interpretation of Bay Area 24 Rapid Transit Dist[rict] v. Superior Court (“BART”), 38 Cal. App. 4th 141, 144 (1995)—an interpretation 25 that district courts in the Ninth Circuit have repeatedly rejected.” J.G. v. City of Colton, No. 5:18-CV- 02386-RGK-SP, 2019 WL 4233582, at *3 (C.D. Cal. July 1, 2019) (citing Medrano v. Kern Cty. Sheriff's 26 Officer, 921 F. Supp. 2d 1009, 1016 (E.D. Cal. 2013)). The case on which Deputy Hayek relies, Bresaz v. County of Santa Clara, 136 F. Supp. 3d 1125 (N.D. Cal. 2015), relies on BART to reach the conclusion 27 held by a minority of district courts in this state. The Court therefore declines to conclude that Plaintiff lacks standing to assert her Bane Act cause of action on Decedent’s behalf. See J.G., 2019 WL 4233582, 28 1 conclude that [the sergeant defendant] acted with reckless disregard for [the decedent]’s 2 rights” where the sergeant defendant “shot [the decedent] within a matter of seconds and 3 without warning, even though [the decedent] was unarmed, was not threatening anyone, 4 and did not pose a danger to [the sergeant defendant] or anyone else”); Vos v. City of 5 Newport Beach, No. SACV1500768JVSDFMX, 2020 WL 4333656, at *10 (C.D. Cal. 6 June 8, 2020) (denying the defendants summary judgment on successor-in-interests’ Bane 7 Act claim where there existed “a triable issue of fact as to whether the officers acted with 8 reckless disregard for [the decedent’s] constitution rights and therefore [acted] with 9 specific intent” because “a reasonable jury could conclude that [the decedent was not an 10 immediate threat to officers such that the use of deadly force was warranted” and “police 11 never attempted to communicate with [the decedent”). 12 C. Doe Defendants 13 Finally, like the City, see supra Section I.B, the County argues for dismissal of the 14 County Doe Defendants—Sergeant Doe and Does 2 through 5—because it is unclear what 15 specific actions each took to violate Decedent’s constitutional rights. (See Cty. Mem. at 16 8.) Again, Plaintiff responds that she has alleged specific conduct. (See Cty. Opp’n at 8 17 (citing FAC ¶¶ 27–30).) 18 Here, Plaintiff alleges that Sergeant Doe “failed to comply with SDSD Policies 19 related to monitoring a person who [h]as been rendered unconscious by the carotid 20 restraint” and instead “provide[d] a ‘max restraint’ to the Deputies[,] which [wa]s applied 21 tightly around Decedent’s ankles, further restraining his circulation.” (See id. ¶ 26.) 22 Further, “SDSD deputies, including Does 2–5, continued to use control holds on Decedent 23 who was also handcuffed behind his back and ha[d] a max restraint on his ankles.” (See 24 id. ¶ 28.) “No one present, including supervisors, or Does 1–10, took any action to 25 intervene, correct, or mitigate the injury cause by this conduct.” (See id.) Plaintiff has 26 clearly provided individualized factual allegations as to Sergeant Doe’s conduct, and 27 Plaintiff alleges that Doe Defendants 2 through 5 engaged in identical conduct, i.e., 28 restraining Decedent and failing to intervene to ensure that Decedent was rolled on his side, | his pulse taken, or had his breathing monitored consistent with SDSD policies. (See 2 □□□ 25, 28.) Again, as with the allegations against the City Doe Defendants, these 3 || allegations suffice at the pleading stage. See supra Section I.B. Accordingly, the Court 4 || DENIES the County Motion to dismiss Sergeant Doe and Doe Defendants 2 through 5. 5 CONCLUSION 6 In light of the foregoing, the Court GRANTS IN PART AND DENIES IN PART 7 ||the City Motion (ECF No. 16) and DENIES in its entirety the County Motion (ECF 8 ||No. 17). Specifically, the Court GRANTS the City Motion as to Plaintiff's fourth cause 9 action under Monell and DISMISSES WITHOUT PREJUDICE that cause of action 10 |/against the City. Plaintiff MAY FILE an amended complaint curing the deficiencies 11 |/identified in this Order within fourteen (14) days of the electronic docketing of this Order. 12 || Should Plaintiff decline timely to file an amended complaint, this action will proceed on 13 || Plaintiff’s surviving causes of action in her First Amended Complaint. 14 IT IS SO ORDERED. 15 ||Dated: January 19, 2022 —_—_— 16 | 9) (2 re 7 Honorable Todd W. Robinson United States District Court

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