1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 ESTATE OF MANUEL VERDUGO, et Case No.: 20-CV-2458 W (KSC) al., 14

ORDER DENYING DEFENDANT’S

Plaintiffs, 15 MOTION TO DISMISS THE THIRD v. CAUSE OF ACTION [DOC. 25] 16 CITY OF EL CENTRO, et al., 17 Defendants. 18 19 20 Pending before the Court is a motion to dismiss for failure to state a claim brought 21 by Defendant City of El Centro (the “City”). Plaintiffs oppose the motion. 22 The Court decides the matter on the papers submitted and without oral argument. 23 See Civ. R. 7.1(d)(1). For the following reasons, the Court DENIES the motion 24 [Doc. 25]. 25 // 26 // 27 1 I. FACTUAL BACKGROUND 2 The following allegations are taken from the First Amended Complaint (“FAC”). 3 (FAC [Doc. 23].) 4 Plaintiffs Stacy and Sacramento Verdugo are the children of decedent Manuel 5 Verdugo (“Verdugo”) who was fifty years old at the time the events of this action 6 occurred. (Id. ¶ 4.) Verdugo suffered from bipolar disorder and in late December 2019 7 reported feeling suicidal. (Id. ¶ 12.) On December 24, 2019, Verdugo was staying in a 8 motel in El Centro and called 911 to request help for suicidal feelings. (Id. ¶ 13.) One of 9 the officers who responded to the December 24 call was Defendant Manuel Meza 10 (“Meza”), who spoke at length with Verdugo about his mental health before transporting 11 him to the hospital for treatment. (Id. ¶ 14.) 12 On December 29, 2019, shortly before 7:00 a.m., Verdugo entered Rite Aid in El 13 Centro at Imperial and Main Streets and asked the Store Manager whether the store 14 carried any knives. (Id. ¶ 15.) The manager showed Verdugo a package of steak knives 15 with four-inch, serrated blades. (Id. ¶ 16.) Without paying, Verdugo opened the package 16 of knives and walked out of the store with two of the knives in hand. (Id.) Outside the 17 store, Verdugo spoke with a Rite Aid employee named Victoria. (Id. ¶ 17.) Verdugo 18 refused to return the knives and told Victoria to “call the police,” specifically an “Officer 19 Rodriguez.” (Id.) Verdugo also told Victoria that “they killed my family.” (Id.) The 20 store manager then called 911 and reported the theft of the knives to the dispatcher, 21 Defendant Jane DOE 2, stating erroneously that Verdugo had said he was going to “kill 22 Officer Rodriguez.” (Id. ¶ 18.) The manager also told the dispatcher that he was not sure 23 if Verdugo was “all right in the head.” (Id. ¶ 19.) 24 After exiting the store, Verdugo proceeded walking down the middle of the street 25 near the store while shouting to himself and taking off his clothes. (Id. ¶ 20.) Additional 26 911 calls were made reporting Verdugo’s behavior during this time. (Id. ¶ 21.) The 911 27 1 dispatcher did not relay the manager’s comment that the manager was unsure whether 2 Verdugo ws “all right in the head,” nor that Verdugo was “yelling to himself,” but rather 3 that Verdugo was simply “yelling.” (Id. ¶ 22.) The dispatcher falsely relayed to the 4 officers that Verdugo has expressed an intention to “kill an officer.” (Id.) Defendants 5 Stephen Singh (“Singh”), Fernando Garcia (“Garcia”), and Meza all arrived at the scene in 6 separate vehicles around 7:11 a.m. at the intersection of Imperial and Main Streets. (Id. ¶ 7 23–24.) As the officers were arriving, Verdugo was shirtless and carrying a steak knife in 8 each hand, essentially walking perpendicular to the approach of the officers. (Id. ¶ 24.) 9 As the officers approached him, Verdugo turned away and walked in the opposite 10 direction of the officers. (Id.) At the time, there was little traffic and no pedestrians in the 11 area. (Id. ¶ 25.) 12 Defendants Singh and Garcia both drew and pointed their guns at Verdugo as he 13 walked away from them, and all three Defendants shouted various commands to Verdugo. 14 (Id. ¶ 26.) Verdugo ignored the commands and continued walking away, heading west in 15 an empty eastbound land of Main Street and, at times, holding his hands up in the air. (Id. 16 ¶ 27.) Garcia and Singh instructed Meza to “go around.” And Meza proceeded to quickly 17 drive his patrol vehicle westbound on Main Street. (Id. ¶ 28–29.) Meza passed Verdugo, 18 made a U-turn, and began driving back eastbound directly at Verdugo. (Id. ¶ 29.) At the 19 same time, Singh drove his vehicle close behind Verdugo from the east and got out of his 20 car, blocking Verdugo in from the rear. (Id. ¶ 30.) Simultaneous to Meza and Singh’s 21 actions, Garcia obtained a “less lethal” shotgun from Defendant Sergeant Damian Valdez 22 (“Valdez”) who had just arrived at the intersection in his own vehicle. (Id. ¶ 31.) Garcia 23 ran west along the north flank of Verdugo on the opposite side of Singh’s patrol vehicle 24 from Verdugo. (Id.) Valdez, seeing what was happening, drove forward. (Id ¶ 32.) 25 Seeing Meza driving directly at him, Verdugo reversed directions and jogged back 26 eastward on Main Street in the direction of the other officers so that he was facing into the 27 1 sunlight. (Id. ¶ 33.) Garcia shouted, “get down, get down, less lethal, less lethal,” and 2 fired the less lethal bean bag shotgun at Verdugo, essentially driving Verdugo into a 3 narrow space between the retaining wall at the edge of the sidewalk and Singh’s parked 4 vehicle. (Id. ¶ 34–35.) Garcia fired a second less lethal projectile at Verdugo. (Id. ¶ 36.) 5 Valdez began to exist his vehicle shouting, “Get him! Get him! Get him!” (Id. ¶ 37.) 6 Singh drew his handgun and fired three shots at Verdugo from approximately twenty feet 7 away. (Id. ¶ 38.) Verdugo staggered turned away from Singh, covered his face with his 8 hands, and began to fall. (Id.) Valdez, now outside of his vehicle a few feet south of 9 Singh’s vehicle, then drew his own handgun and shot Verdugo approximately nine times 10 while Verdugo was falling with his back turned to Valdez. (Id. ¶ 39.) Garcia fired a 11 single shot from his handgun as Verdugo was lying face down on the ground. (Id. ¶ 40.) 12 Verdugo was pronounced dead at the scene. (Id. ¶ 42.) 13 From the time Singh, Meza, and Garcia arrived at the intersection to the time 14 Verdugo was shot, only forty-five seconds had elapsed. (Id. ¶ 41.) Verdugo’s autopsy 15 results indicated that two of the shots that hit Verdugo were fatal; one in the back and one 16 in the back of the neck. (Id. ¶ 43.) 17 Defendant City of El Centro now seeks the dismissal of the third cause of action. 18 (See MTD.) 19 20 II. LEGAL STANDARD 21 The court must dismiss a cause of action for failure to state a claim upon which 22 relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) 23 tests the legal sufficiency of the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 24 F.3d 1480, 1484 (9th Cir. 1995). A complaint may be dismissed as a matter of law either 25 for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. 26 Balisteri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). In ruling on the 27 1 motion, a court must “accept all material allegations of fact as true and construe the 2 complaint in a light most favorable to the non-moving party.” Vasquez v. L.A. Cnty., 487 3 F.3d 1246, 1249 (9th Cir. 2007). But a court is not required to accept legal conclusions 4 couched as facts, unwarranted deductions, or unreasonable inferences. Papasan v. Allain, 5 478 U.S. 265, 286 (1986); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 6 2001). 7 Complaints must contain “a short plain statement of the claim showing that the 8 pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The Supreme Court has interpreted 9 this rule to mean that “[f]actual allegations must be enough to rise above the speculative 10 level.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007). The allegations in the 11 complaint must “contain sufficient factual matter, accepted as true, to state a claim to 12 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 13 Twombly, 550 U.S. at 570). A court should grant leave to amend unless the plaintiff could 14 not possibly cure defects in the pleading. Knappenberger v. City of Phoenix, 556 F.3d 15 936, 942 (9th Cir. 2009) (quoting Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)). 16 III. DISCUSSION 17 Plaintiffs’ third cause of action alleges violations of Verdugo’s civil rights under 42 18 U.S.C. §§ 1983 and 1988 based on several different theories, including: (1) failure to train 19 dispatchers; (2) failure to train police officers; (3) a city policy of using excessive force 20 when interacting with mentally ill individuals; (4) ratification of the officers’ allegedly 21 unconstitutional actions. If any one of these theories sufficiently states a claim under § 22 1983, then the cause of action cannot be dismissed under Rule 12(b)(6). See FED. R. CIV. 23 P. 8(d)(2) (“A party may set out 2 or more statements of a claim or defense alternatively 24 or hypothetically, either in a single count or defense or in separate ones. If a party makes 25 alternative statements, the pleading is sufficient if any one of them is sufficient.”); see 26 also Haddock v. Bd. of Dental Exam'rs of Cal., 777 F.2d 462, 464 (9th Cir. 1985) (stating 27 1 that “a complaint should not be dismissed if it states a claim under any legal theory, even 2 if the plaintiff erroneously relies on a different legal theory”). In seeking dismissal of this 3 cause of action, Defendant argues that each one of Plaintiffs’ theories fails to sufficiently 4 state a claim under 42 U.S.C. § 1983. The Court disagrees. 5 A. Failure to Train 6 Plaintiffs assert that El Centro should be liable for a violation of § 1983 for failure 7 to train because the City’s policies, practices, and customs were a proximate cause of 8 Verdugo’s death. Specifically, Plaintiffs allege that Defendants Valdez, Singh, Garcia, 9 and Meza lacked sufficient training to respond to situations with mentally ill individuals 10 and, as a result, acted in a manner that violated Verdugo’s civil rights. (See FAC ¶¶ 63– 11 81.) 12 To establish a § 1983 claim against a local government entity for failing to act to 13 preserve a constitutional right, a plaintiff must establish: (1) his or her constitutional right 14 was violated; (2) the municipality had a policy; (3) the policy “amounts to deliberate 15 indifference” to plaintiff’s constitutional right; and (4) the policy is the “moving force 16 behind the constitutional violation.” Lockett v. Cty. of Los Angeles, 977 F.3d 737, 741 17 (9th Cir. 2020) (citing Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)). 18 To state a Monell claim for pattern or practice, the FAC therefore must sufficiently allege 19 that the “unconstitutional action ‘implements or executes a policy statement, ordinance, 20 regulation, or decision officially adopted and promulgated by that body's officers.’” 21 Rivera v. Cnty. of Los Angeles, 745 F.3d 384, 389 (9th Cir. 2014) (quoting Monell, 436 22 U.S. at 690, 98 S.Ct. 2018). “Locating a ‘policy’ ensures that a municipality is held liable 23 only for those deprivations resulting from the decisions of its duly constituted legislative 24 body or of those officials whose acts may fairly be said to be those of the municipality.” 25 Bd. of Cnty. Com’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403–404 (1997). 26 27 1 This Court already held that the allegations in this case against Defendant Valdez 2 and Defendant Garcia sufficiently allege that these officers violated Verdugo’s 3 constitutional rights. (Order on First MTD [Doc. 21] at 21, 23.) We turn then to the 4 second prong of the Lockett analysis, whether the municipality had a policy. See Lockett, 5 977 F.3d at 741. 6 A plaintiff may establish municipal liability upon a showing that there is a 7 permanent and well-settled practice by the municipality which gave rise to the alleged 8 constitutional violation. See City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). A 9 “policy of inaction” can satisfy this prong. Oviatt By and Through Waugh v. Pearce, 954 10 F.2d 1470, 1474 (9th Cir. 1992) (citing City of Canton v. Harris, 489 U.S. 378, 388 11 (1989)). A plaintiff therefore may establish Monell liability by demonstrating that the 12 alleged constitutional violation was caused by a failure adequately to train municipal 13 employees. See City of Canton, Ohio, 489 U.S. at 388–91; Garmon v. Cty. of Los 14 Angeles, 828 F.3d 837, 846 (9th Cir. 2016). 15 Plaintiffs allege that the City: 16 • “fail[ed] to adequately train, supervise, and control deputies in the safe 17 interaction with, detention of, and the appropriate uses of force, in regard to 18 handling situations with people such as Plaintiff’s Decedent VERDUGO, 19 who are disabled as the result of mental illness and whose behavior is 20 impacted by such illness” (FAC ¶ 72.a.); 21 • “fail[ed] to set up a system for rapid response to situations potentially 22 involving an encounter with a mentally disturbed person, where intervention 23 by a highly trained and skilled person might alleviate the need for the use of 24 force, particularly lethal force, by resorting to alternative methods including 25 de-escalation, communication, or specialized help” (FAC ¶ 72.c.); 26 27 1 • “fail[ed] to set up systems to prevent abuse by officers including the failure 2 to properly investigate timely and, when appropriate, discipline uses of force” 3 (FAC ¶ 72.d.); 4 • “condon[ed] and encourage[ed] officers in the belief that they can violate the 5 rights of persons such as VERDUGO with impunity, knowing that their 6 conduct will not adversely affect their opportunities for retention, promotion, 7 and other employment benefits” (FAC ¶ 72.e.); 8 • “fail[ed] to terminate or otherwise discipline officers who abuse their 9 authority” (FAC ¶ 72.f.); 10 Plaintiffs further allege that the “CITY OF EL CENTRO has seen several serious 11 incidents of police responding unreasonably in recent years in response to individuals 12 acting erratically.” (FAC ¶ 63.) They allege that the City “paid a $4.1 million settlement . 13 . . to the family of Charlie Sampson, who died after EL CENTRO police officers spent 14 hours ignoring Sampson’s obvious symptoms of methamphetamine overdose.” They 15 allege that, in 2016, City police offices used excessive force against a man who was not 16 resisting. (FAC ¶ 65.) And they allege that a City police officer “fired more than 50 shots 17 at a man” in 2014, which the complaint alleges was a “massive over-response” against a 18 man who had “raised his hands to surrender.” (FAC ¶ 66.) 19 Plaintiffs allege that “these acts were part of a widespread municipal policy, 20 practice and custom of the Defendant CITY OF EL CENTRO, and DOES 9 through 10, 21 inclusive, that failed to consider that despite the knowledge that encounters with mentally 22 disturbed individuals are common, and often occur, and the foreseeable likelihood of a 23 tragic or traumatic result might occur based on the level or adequacy of training officers 24 receive, and that if the officers were properly trained the likelihood of a serious injury or 25 death could be seriously reduced.” (FAC ¶ 73.) They allege that “these polices, practices 26 and customs, separately and together, proximately caused injury and death to VERDUGO 27 1 because Defendants SGT. VALDEZ, and OFFICER GARCIA, along with Officers Singh 2 and Meza, lacked sufficient training in how to respond to encounters with mentally 3 disturbed persons.” (FAC ¶ 74.) And they allege that these “policies, practices and 4 customs . . . were maintained and implemented with deliberate indifference, and thereby 5 encouraged Defendants SGT. VALDEZ, and OFFICER GARCIA to commit the wrongful 6 acts against VERDUGO.” (FAC ¶ 80.) 7 Plaintiffs buttress the allegations of past patterns and practices with allegations 8 regarding El Centro Police Department’s participation in “the development of a 2020 9 Imperial County Roadmap Report on training deficiencies and inadequate responses to 10 5150 incidents.” (FAC ¶ 68.) The Court agrees with Defendant that the Report [Doc. 25- 11 2] is properly judicially noticed and it is hereby incorporated by reference as part of the 12 FAC for purposes of Defendant’s motion to dismiss. See Khoja v. Orexigan Therapeutics, 13 Inc., 899 F.3d 988, 1002 (9th Cir. 2018). The Report noted that “many LEOs in 14 [Imperial] County stated they felt ill equipped to provide support during [mental health] 15 crisis event[s] and to make 5150 determinations” (Report at 18), that “LEOs do not feel 16 they have adequate training on the 5150 criteria, hindering their ability to recognize 17 gravely disabled individuals” (Report at 19), and that “current training for this group does 18 not appear to adequately prepare first responders to deal with a mental health crisis” 19 (Report at 28). 20 Defendant argues that the FAC takes the Report “out of context” and cites several 21 other portions from the report in arguing that the Report’s content defeats Verdugo’s 22 claim. Defendant also argues that Plaintiffs’ allegations fail to state a claim under Monell 23 because the previous incidents alleged by Plaintiffs are not “closely related to the alleged 24 pattern and practice.” (MTD at 6.) Valid as these arguments may be, they say nothing of 25 the sufficiency of the allegations in the FAC. Defendant’s arguments as to these 26 allegations may be plausible, but a “complaint may be dismissed only when defendant’s 27 1 || plausible alternative explanation is so convincing that plaintiff's explanation is im 2 ||plausible.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (emphasis in original). 3 || Plaintiffs’ explanations as alleged in the FAC are not implausible. 4 Plaintiff have satisfied the requirements of Rule 12(b)(6) by asserting plausible 5 || factual allegations regarding the City’s failure to train that, if proven, would establish eact 6 || of the elements of his Monell claim. Plaintiffs sufficiently allege that the City failed to 7 || adequately train its employees, that the City failed to set up systems to prevent officer 8 abuse and respond to situations potentially involving an encounter with a mentally 9 || disturbed person, and that the violation of Verdugo’s constitutional rights was part of a 10 || pattern and practice of the City. Accepting these factual allegations as true and drawing 11 || all reasonable inferences in favor of Plaintiffs, as the Court must do at this stage of the 12 || lawsuit, the Court concludes that Plaintiffs have adequately alleged that the City has the 13 requisite custom or practice, that the City acted with deliberate indifference, and that the 14 || City’s custom or practice and actions and omissions caused the death of Verdugo. 15 Since the Court finds that Plaintiffs’ factual allegations as to the City’s failure to 16 || train sufficiently state a claim for a violation of § 1983, the Court does not reach 17 || Defendant’s arguments as to Plaintiffs’ other theories. As noted above, a cause of action 18 should not be dismissed if it states a claim under any legal theory, even if there are other 19 || theories alleged. See FED. R. Civ. P. 8(d)(2); Haddock, 777 F.2d at 464. 20 Defendant’s motion to dismiss the third cause of action is DENIED. 21 CONCLUSION & ORDER 22 For the reasons stated above, the Court DENIES City’s motion [Doc. 25]. 23 IT IS SO ORDERED. 24 ||Dated: November 1, 2022 \ 25 pe lnLor 26 Hn. 7 omas J. Whelan 7 Unted States District Judge 28 20-CV-2458 W (KSC

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