Canas et al v. City of Sunnyvale et al, No. 5:2008cv05771 - Document 83 (N.D. Cal. 2011)
Court Description: ORDER GRANTING CITY'S MOTION 78 TO DISMISS. Signed by Judge Jeremy Fogel on January 19, 2011.
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Canas et al v. City of Sunnyvale et al Doc. 83 1 2 **E-Filed 1/19/11** 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 13 ERIKA CANAS, JOSE CANAS, a minor, by and through his guardian ad litem, and JESUS CANAS, a minor, by and through his guardian ad litem, [Re: Docket No. 78] v. 15 17 ORDER1 GRANTING CITY’S MOTION TO DISMISS Plaintiffs, 14 16 Case Number C 08-5771 JF (PSG) CITY OF SUNNYVALE, CHRIS SEARLE, DARREN PANG, and DOES ONE through TWENTY-FIVE, Defendants. 18 19 20 21 22 23 24 25 26 This action arises from the allegedly wrongful shooting death of Jose Francisco Canas (“the Decedent”) by public safety officers of the City of Sunnyvale on September 12, 2007. The City moves to dismiss three claims in the Fifth Amended Complaint (“5AC”) brought by the Decedent’s wife, Erika Canas, and his two children, Jose and Jesus Canas (collectively, “Plaintiffs”). The Court has considered the complaint, the moving and responding papers, and the arguments of counsel presented at the hearing on January 7, 2011. For the reasons set forth below, the motion will be granted, without leave to amend. 27 28 1 This disposition is not designated for publication in the official reports. Case No. C 08-5771 JF (PSG) ORDER GRANTING CITY’S MOTION TO DISMISS (JFLC1) Dockets.Justia.com 1 2 I. FACTUAL BACKGROUND Plaintiffs allege that at approximately noon on September 12, 2007, the Decedent left the 3 apartment he shared with Plaintiffs with the intent to drive to work. (5AC ¶ 21.) They allege 4 further that after he walked to his car (which was parked next to the curb outside the apartment), 5 entered the car, buckled his seatbelt, started the car, and placed it in gear, the Decedent was shot 6 in the head by Officers Searle and Pang. (Id.) Prior to the shooting, the officers, who were 7 dressed in street clothes, allegedly approached the Decedent in an unmarked car and “did not 8 adequately identify themselves or their instructions.” (Id.) Plaintiffs allege that the Decedent 9 was “shot from an angle behind his car,” that the officers were not in front of the car when the 10 Decedent was shot, and that the Decedent “was not accelerating his car in any unusual manner, 11 but instead rolling forward slightly or not at all, and his car was still located adjacent to the 12 curb.” (Id.) Allegedly, the Decedent was unarmed, did not resist the officers, communicate with 13 them verbally or physically, or otherwise act in any manner to induce the officers to use deadly 14 force. (Id.) 15 Plaintiffs assert that “[a]t the time of the shooting of [the] Decedent . . . , [the officers] 16 were attempting to make an arrest of [the] Decedent . . . , seize him, and search and seize his 17 property” pursuant to a warrant they had obtained earlier. (Id.) They also claim that in obtaining 18 the warrant, the officers “used falsified evidence, made material misrepresentations, and 19 withheld material exculpatory information from the magistrate who issued the warrant.” (5AC ¶ 20 30.) Apparently, the warrant arose from the stabbing death of Pablo Rosales, and Plaintiffs 21 allege that the officers “fail[ed] to advise the magistrate that evidence existed that Jose Canas 22 was not involved in the beating and stabbing of the victim.” (Id.) They claim that the officers 23 also failed to disclose that “the principal charging witness was not credible, and had provided 24 inconsistent statements and changed his statement at the instigation of Defendants Chris Searle 25 and Darren Pang, and that there was no credible evidence that Jose Canas was a present gang 26 member despite representations to the Court that he was a gang member.” (Id.) Finally, 27 Plaintiffs allege that the officers were acting pursuant to policies or practices of the City, and that 28 the City failed to provide adequate training to the officers to prepare them for the particular 2 Case No. C 08-5771 JF (PSG) ORDER GRANTING CITY’S MOTION TO DISMISS (JFLC1) 1 duties they were discharging at the time they allegedly shot the decedent. (5AC ¶¶ 14, 15, 29, 32, 2 38, 40, 47, 50.) 3 II. PROCEDURAL BACKGROUND 4 On December 26, 2007, Plaintiffs submitted administrative claims to the City pursuant to 5 California Government Code § 945.4. The City rejected the claims on May 28, 2008, prompting 6 Plaintiffs to file a complaint five days later in the Santa Clara Superior Court. Defendants 7 removed the action to this Court and moved for dismissal for failure to state a claim upon which 8 relief may be granted. See Fed. R. Civ. P. 12(b)(6). On November 19, 2008, Plaintiffs 9 voluntarily dismissed the complaint without prejudice, subsequently filing a second action in the 10 state court. Defendants again removed the action to this Court and again moved to dismiss 11 pursuant to Rule 12(b)(6). In response to that motion, Plaintiffs filed an amended pleading 12 containing claims for negligence, negligent infliction of emotional distress, and civil rights 13 violations. 14 Defendants moved to dismiss the amended pleading, and a motion hearing was held on 15 May 1, 2009. As a result of a misunderstanding, Plaintiffs filed their Second Amended 16 Complaint (“SAC”) on May 11, 2009, before the Court had issued an order on the motion. In 17 that order, which was issued on May 13, 2009, the Court identified several pleading deficiencies 18 and concluded that Plaintiffs had failed to state any claim upon which relief might be granted. 19 However, because it seemed likely that Plaintiffs could state a viable claim, the Court also 20 granted leave to amend. Plaintiffs elected to treat the complaint filed on May 11 as their 21 operative pleading. Defendants then filed a third motion to dismiss. In an order dated July 20, 22 2009, the Court again granted Defendants’ motion with leave to amend “[b]ecause [the 23 Plaintiffs’] well-pled allegations [were] insufficient to state any claim upon which relief may be 24 granted,” but noted that “[s]hould Plaintiffs allege th[e] underlying conduct [common to each 25 claim] in greater detail, their individual claims might well prove legally sufficient.” (Dkt. No. 26 38, at 6-7.) 27 28 On August 19, 2009, Plaintiffs filed their Third Amended Complaint (“TAC”). The Court granted Defendants’ motion to dismiss that pleading with leave to amend in part, allowing 3 Case No. C 08-5771 JF (PSG) ORDER GRANTING CITY’S MOTION TO DISMISS (JFLC1) 1 Plaintiffs to amend the complaint “to state facts sufficient to establish municipal liability . . . 2 [and] a Fourteenth Amendment claim based on the deprivation or violation of Plaintiffs’ due 3 process rights.” Dkt. 59 8:2-3, 9:18-19 (emphasis in original). The Court also indicated that 4 Plaintiffs are not entitled to compensatory damages for a survival action and directed them to 5 correct their claim for violation of the Decedent’s Fourth Amendment rights accordingly. Id. at 6 11 n. 4.2 7 On September 27, 2010, Plaintiffs filed the operative Fifth Amended Complaint (“5AC”) 8 alleging the following claims: (1) negligence, against the officers; (2) respondeat superior 9 liability against the City for the officers’ negligence; (3) civil rights violations pursuant to 42 10 U.S.C. § 1983, for unreasonable search and seizure and excessive force in violation of the Fourth 11 Amendment3; (4) civil rights violations pursuant to 42 U.S.C. § 1983 in violation of the 12 Decedent’s Fourth Amendment rights and Plaintiffs’ Fourteenth Amendment rights; and (5) civil 13 rights violations pursuant to 42 U.S.C. § 1983 for unreasonable search and seizure. Plaintiffs 14 allege also that the City is liable under Monell v. New York City Dep’t of Social Servs., 436 U.S. 15 658, 690-94 (1978) for maintaining one or more policies, practices, or customs that caused the 16 claimed constitutional violations. The City now moves to dismiss the Monell claims. 17 18 III. LEGAL STANDARD Dismissal under Fed. R. Civ. P. 12(b)(6) “is appropriate only where the complaint lacks a 19 cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. 20 Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). For purposes of a motion to 21 dismiss, the plaintiff’s allegations are taken as true, and the court must construe the complaint in 22 the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). At the 23 same time, “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need 24 25 2 26 27 28 Plaintiffs filed a fourth amended complaint on April 15, 2010, and Defendants moved for dismissal. However, the parties stipulated to dismissal of that pleading to permit Plaintiffs to attempt to state a claim for municipal liability under 42 U.S.C. § 1983. The Court approved the stipulation on August 27, 2010. Dkt. 73. 3 Claims Three, Four, and Five are brought by Plaintiffs against all Defendants. 4 Case No. C 08-5771 JF (PSG) ORDER GRANTING CITY’S MOTION TO DISMISS (JFLC1) 1 detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] 2 to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of 3 a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal 4 citations omitted). Thus, a court need not accept as true conclusory allegations, unreasonable 5 inferences, legal characterizations, or unwarranted deductions of fact contained in the complaint. 6 Clegg v. Cult Awareness Network, 18 F.3d 752, 754-755 (9th Cir. 1994). 7 As the Supreme Court recently has clarified, a court must determine whether the well- 8 pled facts in the complaint “plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 9 S.Ct. 1937, 1950 (2009) (emphasis added). “[W]here the well-pleaded facts do not permit the 10 court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has 11 not ‘show[n]’–‘that the pleader is entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). 12 Leave to amend must be granted unless it is clear that the complaint’s deficiencies cannot 13 be cured by amendment. Lucas v. Dep’t of Corrs., 66 F.3d 245, 248 (9th Cir. 1995). When 14 amendment would be futile, however, dismissal may be ordered with prejudice. Dumas v. Kipp, 15 90 F.3d 386, 393 (9th Cir. 1996). 16 17 IV. DISCUSSION A. Plaintiffs’ Third Claim: Section 1983 Liability for Violation of Procedural Due Process 18 19 Plaintiffs’ third claim alleges that Defendants are liable under § 1983 for promulgating 20 policies and/or customs that led to the deprivation of the Decedent’s Fourth Amendment right to 21 be free from unreasonable search and seizure. (5AC ¶¶ 14, 29, 32.) In its previous dismissal 22 order dated March 16, 2010, the Court recognized that California law permits Plaintiffs to bring 23 a survival action based on the alleged denial of the Decedent’s Fourth Amendment rights. (Dkt. 24 59 at 9-11.) However, Plaintiffs’ claim still is deficient as to the City. 25 1. 26 As the Court has observed previously, municipalities “may be liable under § 1983 when Failure to Establish Municipal Liability 27 the allegedly unconstitutional act stems from a municipal policy, decision or custom.” Del 28 Conte v. San Francisco Police Dep’t, No. 06-05030, 2009 WL 2871052, at *2 (N.D. Cal. Sept. 5 Case No. C 08-5771 JF (PSG) ORDER GRANTING CITY’S MOTION TO DISMISS (JFLC1) 1 1, 2009) (citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 690-91 (1978)). However, 2 “[i]nadequate training can form the basis for municipal liability ‘only where the failure to train 3 amounts to deliberate indifference to the rights of persons with whom the police come into 4 contact.’” Mateyko v. Felix, 924 F.2d 824, 826 (9th Cir. 1990) (quoting City of Canton v. Harris, 5 489 U.S. 378, 388 (1989)). 6 In support of their Monell claim, Plaintiffs allege the following: 7 the governmental entity defendants and their decision makers, with deliberate indifference, gross negligence, and reckless disregard to the safety, security, and constitutional and statutory rights of the Decedent, Plaintiffs, and all persons similarly situated, maintained, enforced, tolerated, permitted, acquiesced in, and applied policies, practices, or customs and usages of, among other things, 8 9 10 a. Subjecting people to unreasonable uses of force against their persons. b. Selecting, retaining, and assigning employees with demonstrable propensities for excessive force, violence, and other misconduct; c. Failing to adequately train, supervise, and control employees in the use of deadly force and the dangers of using deadly force; d. Failing to adequately train, supervise, and control employees in the proper serving of an arrest warrant; e. Failing to adequately discipline officers involved in misconduct; and f. Condoning and encouraging officers in the belief that they can violate the rights of persons such as the decedent in this action with impunity, and that such conduct will not adversely affect their opportunities for promotion and other employment benefits. (5AC ¶ 14.) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Plaintiffs are informed and believe, and on the basis of such information and belief allege, that the entity defendants and their decision makers ordered, authorized, acquiesced in, tolerated, permitted or maintained custom and usage permitting the other defendants herein to engage in the unlawful and unconstitutional actions, policies, practices, and customs or usages set forth in the foregoing paragraph. Defendants’ conduct as alleged herein constitutes a pattern of constitutional violations based either on a deliberate plan by defendants or on defendants’, deliberate indifference, gross negligence, or reckless disregard to the safety, security, and rights of plaintiff and decedent. (5AC ¶ 15.) Plaintiffs are informed and believe that official, de facto policies, customs or practices were the moving force behind the subject constitutional deprivations. In addition to the officially sanctioned condoned and/or created customs listed above in ¶¶ 14a-f, Plaintiffs are informed and thereon alleged as follows: 28 6 Case No. C 08-5771 JF (PSG) ORDER GRANTING CITY’S MOTION TO DISMISS (JFLC1) 1 • 2 • 3 4 After Decedent was killed by Defendants Searle and Pang, Sunnyvale purported to conduct an investigation. The “investigation” done by Sunnyvale did not result in any discipline to those responsible for the mis-identification of Decedent, the falsely obtained warrant, the botched stake-out of Decedent, and the murder of Decedent. The murder–or police shooting–has been condoned and/or ratified by policy-making members of the City of Sunnyvale. 5 • Sunnyvale does not have a dedicated Police Department. Instead, Sunnyvale has long used a “Department of Public Safety.” In June of 1950, the Sunnyvale City Council implemented the Department of Public Safety. The combining of police and fire services was expected to be more flexible and more responsive to community safety needs, and economize operational cost. • The Sunnyvale Department of Public Safety has as its head Chief Don Johnson. Johnson sets official training policies and makes ultimate personnel decisions. Johnson ultimately did not terminate, or otherwise discipline Searle or Pang in connection with the murder of Jose Francisco Canas. In fact, Johnson and his command staff ratified and condoned said murder. • The training required by Sunnyvale of each member of the Department of Public Safety is 14 months for fire, police, and emergency medical services. This dilution of training actually gives each member of the Sunnyvale Department less training in police work than POST standards. In addition, the impact on each of the three disciplines caused by this policy of diluted training has led and leads to less effectiveness in core skills. • For example, both Searle and Pang underwent this 14-month training. In addition to their less than adequate police training, each received training as an EMT. When they shot Decedent Jose Francisco Canas, neither was able to revive or to assist Decedent in any meaningful way. Thus, the training provided by Sunnyvale pursuant to official, de facto customs, policies, or practices actually results in less effective and less competent police and medical services. • The training and mixed disciplinary roles employed by Sunnyvale has, in part, caused excessive and over-zealous policing and less effective emergency medical services. While Sunnyvale touts itself as one of the safest cities of its size in America, this over-zealous policing by inadequately trained and supervised persons such as Searle and Pang has caused myriad constitutional deprivations to persons such as Decedent and Plaintiffs herein. (5AC ¶ 29.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 [Officers Searle and Pang]. . . acted consistent with the official policy, pattern and/or practice of the entity defendants and Defendants, and each of them, acting under color of state law, deprived the decedent of rights, privileges, and immunities secured by the Constitution and laws of the United States . . . 27 28 7 Case No. C 08-5771 JF (PSG) ORDER GRANTING CITY’S MOTION TO DISMISS (JFLC1) 1 (5AC ¶ 32.)4 Despite the length of these allegations, the Court concludes that the facts alleged are 2 insufficient to support a theory of municipal liability. Although “[t]he Ninth Circuit has held 3 that a bare allegation that individual officials’ conduct conformed to official policy, custom, or 4 practice suffices to plead a Monell claim in this circuit” Carrea v. California, No. 07-1148, 2010 5 WL 3984832, at *18 (C.D. Cal. Aug. 25, 2010); see Whitaker v. Garcetti, 486 F.3d 572, 581 (9th 6 Cir.2007); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir.1988), these 7 cases no longer are controlling in the post-Iqbal/Twombly era. The Supreme Court has indicated 8 that, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 9 statements, do not suffice” Iqbal, 129 S.Ct. at 1949-50; see Young v. City of Visalia, 687 10 F.Supp.2d 1141, 1149 (E.D.Cal. 2009) (“in light of Iqbal, it would seem that the prior Ninth 11 Circuit pleading standard for Monell claims (i.e. ‘bare allegations’) is no longer viable.”). 12 Although Plaintiffs have been litigating their claims for more than three years and have 13 had several opportunities to amend, their Monell allegations still are conclusory in nature. Other 14 than alleging that the officers’ EMT training was inadequate enable them to assist the Decedent 15 after he was shot, Plaintiffs do not explain in detail how the City’s alleged policies or customs 16 are deficient, nor do they explain how the alleged policies or customs caused harm to Plaintiffs 17 and the Decedent. At most, the allegations permit the Court to infer a “mere possibility of 18 misconduct” on behalf of the City. Iqbal, 129 S.Ct. at 1950. Fed. R. Civ. P. 8 “does not unlock 19 the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. 20 Instead, the allegations are similar to those at issue in Young v. City of Visalia. In that 21 case, the district court granted the defendants’ motion to dismiss in part because the plaintiff’s 22 Monell claim failed to meet the requisite pleading standards. Like Plaintiffs in the instant action, 23 the plaintiff in Young alleged liability based on inadequate training and hiring practices. 5 The 24 25 4 26 27 28 Plaintiffs repeat the allegations set forth in ¶¶ 29, 32 in support of their fourth and fifth claims as well. (5AC ¶¶ 38, 40, 47, 50.) In addition, they incorporate by reference ¶14 in Claims Four and Five. 5 The plaintiff alleged in relevant part that: Defendants City of Visalia ... City of Farmersville ... are named herein for having 8 Case No. C 08-5771 JF (PSG) ORDER GRANTING CITY’S MOTION TO DISMISS (JFLC1) 1 court rejected the claim because the plaintiff did not explain how the alleged policies were 2 deficient. In addition, the court indicated that “without identifying the training and hiring 3 practices . . . and without an identification of the obviousness of the risk involved, the Court 4 cannot determine if a plausible claim is made for deliberately indifferent conduct.” 687 5 F.Supp.2d 1141, 1150. 6 Here, Plaintiffs allege no facts supporting their conclusion that the City maintains an 7 official policy of subjecting people to the unreasonable use of force or failing to train employees 8 adequately in the use of deadly force, nor do Plaintiffs explain how the alleged policies led 9 Officers Searle and Pang to deprive the Decedent of his Fourth Amendment rights. Instead, 10 Plaintiffs claim that improper training and mixed disciplinary roles stemming from the 11 organizational structure of the Department of Public Safety led to the violation of the Decedent’s 12 right to procedural due process. (See 5AC ¶ 29.) However, the City argues persuasively that the 13 practice of maintaining a department of public safety as opposed to a dedicated police 14 department never has been held to amount to deliberate indifference and as such cannot provide 15 a basis for municipal liability. (MTD at 10.) 16 In the Ninth Circuit, a plaintiff alleging a Monell claim based on inadequate training 17 must show: (1) that the plaintiff was deprived of a constitutional right, (2) the municipality had a 18 training policy that “amounts to deliberate indifference to the [constitutional] rights of the 19 20 21 22 23 24 25 26 27 so knowingly failed to reasonably select and hire, and to reasonably well educate, instruct and train, and direct, supervise, control and discipline the conduct of its officers and supervisors, including the individual defendants named herein, in recurring situations such as are alleged herein, in which their officers’, deputes’ [sic], and supervisors’ violations of the civil and statutory rights of individuals, including plaintiffs herein, were anticipated and could have been prevented by such selection and hiring, education, training, direction, supervision, control, and discipline, that [the Cities of Visalia and Farmersville] set in motion a chain of events that made the violations alleged herein foreseeable and substantially certain to occur. The actions and inactions of the [Cities of Visalia and Farmersville] were thus the moving force causing the violations alleged herein. 687 F.Supp.2d 1141, 1146-47. 28 9 Case No. C 08-5771 JF (PSG) ORDER GRANTING CITY’S MOTION TO DISMISS (JFLC1) 1 persons’ with whom [its police officers] are likely to come into contact;” and (3) that the 2 constitutional injury would have been avoided had the municipality properly trained those 3 officers. Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir.2007) (quoting Lee v. City 4 of Los Angeles, 250 F.3d 668, 681 (9th Cir.2001)). “Only where a municipality’s failure to train 5 its employees in a relevant respect evidences a ‘deliberate indifference’ to the rights of its 6 inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom’ that is 7 actionable under § 1983.” Long v. City & County of Honolulu, 511 F.3d 901, 907 (9th Cir.2007) 8 (quoting City of Canton Ohio v. Harris, 489 U.S. at 389). Deliberate indifference is shown when 9 “the need for more or different training is so obvious, and the inadequacy so likely to result in 10 the violation of constitutional rights, that the policymakers of the city can reasonably be said to 11 have been deliberately indifferent to the need.” Clouthier v. County of Contra Costa, 591 F.3d 12 1232, 1249 (9th Cir. 2010) (quoting City of Canton, 489 U.S. at 390). Although Plaintiffs allege 13 that the City provides less training in police work than is required by POST standards, they do 14 not identify the relevant standards or otherwise explain how the City’s policies result in “diluted 15 training.” (See 5AC ¶ 29.) 16 To the extent that Plaintiffs’ seek to establish municipal liability based on the theory that 17 the City ratified the alleged unconstitutional conduct of the officers, the claim also fails to meet 18 the Iqbal standard. Plaintiffs’ ratification claim appears to be based solely on the fact that the 19 City’s investigation did not result in disciplinary action against the officers. (5AC ¶ 29.) “To 20 hold cities liable under section 1983 whenever policymakers fail to overrule the unconstitutional 21 discretionary acts of subordinates would simply smuggle respondeat superior liability into 22 section 1983 law. . .” Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992). The Ninth 23 Circuit explicitly has “decline[d] to endorse this end run around Monell.” Id. 24 2. Improper Request for Relief 25 Plaintiffs continue to seek compensatory damages on their own behalf for the alleged 26 deprivation of the Decedent’s Fourth Amendment rights. (5AC ¶ 33.) However, the Court 27 previously has determined that, because the survival action is brought on behalf of the Decedent, 28 Plaintiffs are not entitled to such damages. Id. 10 Case No. C 08-5771 JF (PSG) ORDER GRANTING CITY’S MOTION TO DISMISS (JFLC1) 1 B. Plaintiffs’ Fourth Claim: Section 1983 Liability for Violation of Substantive and Procedural Due Process 2 3 Plaintiffs’ fourth claim is based upon both the Fourth and the Fourteenth Amendments. It 4 is unclear whether Plaintiffs intend to bring a claim based on their own constitutional rights or 5 those of the Decedent. They allege that Defendants’ conduct “deprived the Decedent of rights . . 6 . secured by the Fourth and Fourteenth Amendments . . . by, among other things, depriving 7 Plaintiffs of their right to substantive due process guaranteed by the Fourteenth Amendment. . .” 8 (5AC ¶ 40.) (emphasis added). In their opposition brief, Plaintiffs explain that the Decedent’s 9 claims should be analyzed under the Fourth Amendment and the Plaintiffs’ claims should be 10 analyzed under the Fourteenth. Opp. Br. at 6. Either way, the claims are deficient with respect to 11 the City for the same reasons discussed in Section IV.A.1, above. In addition, to the extent that 12 Plaintiffs seek liability based upon a Fourth Amendment violation, the claim is duplicative of 13 Claim Three. 14 C. 15 Plaintiffs’ Fifth Claim: Section 1983 Liability for Unreasonable Search and Seizure Plaintiffs’ fifth claim fails to identify the violation of a specific constitutional right. 16 Plaintiffs appear to assert a procedural due process violation, claiming that the Decedent was 17 deprived of “any right, privileges, and/or immunities secured by the Constitution and laws. . . . 18 [and] of freedom from the use of excessive and unreasonable force during seizure.” (5AC ¶ 50.) 19 However, for the reasons discussed previously, this bare allegation is insufficient to support a 20 Monell claim. 21 22 V. CONCLUSION Plaintiffs have had several opportunities to cure the deficiencies in their Monell claims, 23 and it does not appear that further amendment is reasonably likely to result in viable claims 24 against the City. Accordingly, the City’s motion to dismiss Claims Three, Four, and Five as to 25 the City is GRANTED WITHOUT LEAVE TO AMEND. 26 IT IS SO ORDERED. 27 DATED: January 19, 2011 __________________________________ JEREMY FOGEL United States District Judge 28 11 Case No. C 08-5771 JF (PSG) ORDER GRANTING CITY’S MOTION TO DISMISS (JFLC1)
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