Rabieh v. Paragon Systems inc., No. 5:2016cv04256 - Document 84 (N.D. Cal. 2018)

Court Description: ORDER GRANTING 74 DEFENDANTS' MOTION TO DISMISS. Signed by Judge Edward J. Davila on 6/11/2018. (ejdlc2S, COURT STAFF) (Filed on 6/11/2018)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 RAAD ZUHAIR RABIEH, Case No. 5:16-cv-04256-EJD Plaintiff, 9 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS v. 10 11 PARAGON SYSTEMS INC., et al., Re: Dkt. No. 74 United States District Court Northern District of California Defendants. 12 13 Plaintiff Raad Zuhair Rabieh (“Plaintiff”) brings this action against Defendant Paragon 14 15 Systems Inc. and its employees Joseph Vegas, Jose Leuterio, Mario Ayala, Kenneth Inman, and 16 DOES 1-20 (collectively, “Defendants”), alleging Constitutional violations and various state law 17 claims. Presently before the Court is a motion to dismiss all of the claims in Plaintiff’s Second 18 Amended Complaint (“SAC”). Dkt. No. 74. The Court finds this matter suitable for decision 19 without oral argument and VACATES the hearing set for June 14, 2018. Civ. L.R. 7-1(b). For 20 the reasons set forth below, Defendants’ motion is GRANTED. 21 I. BACKGROUND 22 Paragon Systems Inc. (“Paragon”) is a private corporation which contracts with the federal 23 government, the State of California, and local government to provide security for state and federal 24 offices, including at the Robert F. Peckham Federal Building at 280 South 1st Street in San Jose, 25 California. SAC, Dkt. No. 72, at ¶ 6. Defendants Joseph Vegas, Jose Leuterio, Mario Ayala, 26 Kenneth Inman, and DOES 1-20 are Paragon employees (collectively, “Employee Defendants”). 27 Id. ¶¶ 7-11. 28 Case No.: 5:16-cv-04256-EJD ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 1 1 Plaintiff alleges that, on April 12, 2012 at approximately 11:30 a.m., he concluded his 2 business at the Social Security Administration offices at the Robert F. Peckham Federal Building 3 and proceeded to exit the building. Id. ¶ 17. Believing he was following directions, Plaintiff 4 attempted to leave through the emergency exit instead of through the customary exit. Id. Plaintiff 5 was then stopped by Ayala, who asked Plaintiff to accompany him inside so that an incident report 6 could be prepared. Id. Plaintiff complied. Id. 7 Back inside the building, Plaintiff was handed off to Leuterio, who took Plaintiff’s driver’s 8 license and directed him to sit down. Id. ¶ 18. After waiting for about 30 minutes, Plaintiff got up 9 and asked Ayala “what is the delay.” Id. ¶ 19. Ayala replied that Leuterio was gathering information from Plaintiff’s driver license and instructed Plaintiff to sit back down until Leuterio 11 United States District Court Northern District of California 10 was finished. Id. Plaintiff asked to speak to Leuterio’s supervisor, and, when Ayala identified 12 himself as the supervisor, Plaintiff asked to speak to Ayala’s supervisor. Id. Ayala told Plaintiff 13 that his supervisor was in San Francisco, but provided Plaintiff with his supervisor’s telephone 14 number and welcomed Plaintiff to call him. Id. 15 Plaintiff alleges that, as he was typing the supervisor’s number into his phone, Vegas— 16 who was in the vicinity but previously uninvolved—grabbed Plaintiff’s phone out of his hand and 17 yelled “you can’t use your phone in here!!!” Id. Vegas then yelled “do you want me to arrest 18 you?!?” Id. Then, Plaintiff claims that without further warning, Vegas twisted Plaintiff’s arm 19 behind his back, Vegas and Leuterio slammed Plaintiff’s face into a wall, and Vegas, Leuterio, 20 and Inman tackled Plaintiff to the ground. Id. 21 After another 15-20 minutes, Vegas and Leuterio had Plaintiff stand up and placed him in 22 handcuffs. Id. ¶ 20. Plaintiff requested someone call the San Jose Police Department (“SJPD”). 23 Id. Ten minutes later, two officers responded. Id. 24 Plaintiff alleges that he overheard one of the police officers asking Ayala if it was a crime 25 to accidentally walk out of the emergency exit, and Ayala said no. Id. ¶ 21. One of the officers 26 then walked over to Plaintiff and asked “have you ever been arrested?” Id. Plaintiff said no. Id. 27 28 Then, with Plaintiff still in handcuffs, one of the police officers walked Plaintiff to his Case No.: 5:16-cv-04256-EJD ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 2 1 patrol vehicle. Id. ¶ 22. Once at the vehicle, the officer removed the handcuffs. Id. The officer 2 then told Plaintiff, “what I’m about to tell you is really important; we ([the two officers]) have 3 nothing to do with this.” Id. Plaintiff was then handed a citation for misdemeanor battery. Id. 4 No formal charges were ever filed against Plaintiff. Id. ¶ 23. 5 II. LEGAL STANDARD A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of claims alleged in the 6 7 complaint. Fed. R. Civ. P. 12(b)(6); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 8 1484 (9th Cir. 1995). Dismissal “is proper only where there is no cognizable legal theory or an 9 absence of sufficient facts alleged to support a cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The complaint “must contain sufficient factual matter, accepted as 11 United States District Court Northern District of California 10 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 12 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 13 III. 14 DISCUSSION Defendants move to dismiss Plaintiff’s first three causes of action (SAC ¶¶ 25-39), which 15 claim constitutional violations under Bivens v. Six Unknown Named Agents of Fed. Bureau of 16 Narcotics, 403 U.S. 388, 389 (1971), or, in the alternative, 42 U.S.C. § 1983. Motion to Dismiss 17 (“MTD”), Dkt. No. 74, at 4-6. Defendants also argue that the Court should decline to exercise 18 supplemental jurisdiction under Plaintiff’s remaining causes of action (SAC ¶¶ 40-65), which 19 allege state law claims. MTD 6-7. 20 A. 21 In Bivens, the Supreme Court “recognized for the first time an implied right of action for 22 damages against federal officers alleged to have violated a citizen’s constitutional rights.” Corr. 23 Servs. Corp. v. Malesko, 534 U.S. 61, 66, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001). “The purpose 24 of Bivens is to deter individual federal officers from committing constitutional violations.” Id. at 25 70. Since Bivens, the Supreme Court has only implied a Bivens cause of action in two other 26 instances. See Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979) (implying 27 right of action under the Due Process Clause of the Fifth Amendment); Carlson v. Green, 446 28 Case No.: 5:16-cv-04256-EJD ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 3 Counts I-III: Bivens Claims 1 U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980) (implying right of action under the Cruel and 2 Unusual Punishments Clause of the Eighth Amendment). These cases notwithstanding, the 3 Supreme Court has made “clear that expanding the Bivens remedy is now a ‘disfavored’ judicial 4 activity.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857, 198 L. Ed. 2d 290 (2017). 5 Private corporations cannot be sued under Bivens. See Malesko, 534 U.S. at 63 (declining 6 to apply Bivens to private corporations); see also Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 7 1103 (9th Cir. 2004) (“[T]o the extent that Agyeman sought to hold Corrections Corporation itself 8 liable, the case could not be brought under Bivens . . . since Corrections Corporation is a private 9 corporation.”); Root v. United States, 67 F. App’x 451 (9th Cir. 2003) (“The district court properly dismissed Root’s claims against the Wackenhut Corrections Corporation and the FTC Oklahoma 11 United States District Court Northern District of California 10 City, FCI Sheridan and FCI Taft facilities because a Bivens cause of action is not available against 12 private entities.”). Accordingly, Plaintiff’s Bivens claims against Paragon the entity will be 13 DISMISSED.1 In addition, because these claims are foreclosed as a matter of law and further 14 amendment would be futile, the Court dismisses them WITHOUT LEAVE TO AMEND. What remains, then, are Plaintiff’s Bivens claims against the Employee Defendants. The 15 16 Court cannot summarily dismiss these claims because they are directed to private individuals. As 17 the Ninth Circuit has recognized, the Supreme Court has yet to “completely foreclose applying 18 Bivens to private actors.” Vega v. United States, 881 F.3d 1146, 1153 (9th Cir. 2018) (citing 19 Minneci v. Pollard, 565 U.S. 118, 120, 132 S. Ct. 617, 181 L. Ed. 2d 606 (2012)). The Court thus 20 turns to analytical framework established by the Supreme Court for determining the 21 appropriateness of a Bivens remedy. In determining whether to imply a Bivens remedy, “the first question a court must ask . . . 22 23 is whether the claim arises in a new Bivens context, i.e., whether the case is different in a 24 25 26 27 28 1 The Court also notes that, even if a Bivens remedy was not foreclosed against private corporations, Plaintiff’s Bivens claims against Paragon would fail for the additional reason that Plaintiff has only alleged constitutional violations that were committed by individual Employee Defendants. See SAC ¶¶ 17-24. “[R]espondeat superior is inapplicable to Bivens actions.” Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991). Thus, Paragon cannot be held liable merely because it employed these individuals. Case No.: 5:16-cv-04256-EJD ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 4 1 meaningful way from previous Bivens cases decided by this Court.” Abbasi, 137 S. Ct. at 1864 2 (internal quotation marks and citation omitted). “[A] case can present a new context for Bivens 3 purposes if it implicates a different constitutional right; if judicial precedents provide a less 4 meaningful guide for official conduct; or if there are potential special factors that were not 5 considered in previous Bivens cases.” Id. 6 Here, this case is meaningfully different from cases where a Bivens remedy has been 7 implied. Although Bivens itself implied a damages remedy under the Fourth Amendment, Bivens, 8 403 at 395-96, that case involved federal officers. In addition, although the Ninth Circuit implied 9 a damages remedy available under the First Amendment in Gibson v. United States, 781 F.2d 1334, 1342 (9th Cir. 1986), that arose in the substantially different context of alleged harassment 11 United States District Court Northern District of California 10 for plaintiff’s controversial political activities. 12 Thus, where as here a case presents a new Bivens context, a court must undertake a 13 “special factors analysis” to determine whether a Bivens remedy is appropriate. Abbasi, 137 S. Ct. 14 at 1860. The Ninth Circuit recently summarized the relevant analysis as follows: 15 16 17 18 19 20 The Supreme Court in Wilkie provided a two-step analysis when courts decide whether to recognize a Bivens remedy. See 551 U.S. at 550, 127 S. Ct. 2588. “In the first place, there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Id. (quoting Bush, 462 U.S. at 378, 103 S. Ct. 2404). Second, Supreme Court precedent “make[s] clear that a Bivens remedy will not be available if there are ‘special factors counselling hesitation in the absence of affirmative action by Congress.’” Abbasi, 137 S. Ct. at 1857 (quoting Carlson, 446 U.S. at 18, 100 S. Ct. 1468). 21 Vega, 881 F.3d at 1153. The inquiry “must concentrate on whether the Judiciary is well suited, 22 absent congressional action or instruction, to consider and weigh the costs and benefits of allowing 23 a damages action to proceed.” Abbasi, 137 S. Ct. at 1857-58. 24 Applying these principles here, the Court does not find that it would be appropriate to infer 25 a Bivens remedy. First, alternative remedies exist. In his SAC, Plaintiff alleges six state law 26 claims for alleged assault, battery, negligence, negligent infliction of emotional distress and 27 various discriminatory violations. SAC ¶¶ 40-65. Even if Plaintiff has no right to relief under 28 Case No.: 5:16-cv-04256-EJD ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 5 1 Bivens, he can still pursue these claims. These claims “provide roughly similar incentives for 2 potential defendants to comply with the [First, Fourth, and Fourteenth] Amendment[s] while also 3 providing roughly similar compensation to victims of violations.” Minneci, 565 U.S. at 132. As 4 such, they provide an adequate alternative for protecting Plaintiff’s interests and weigh against 5 implying a remedy under Bivens. Compare, e.g., Minneci, 565 U.S. at 132 (declining to imply 6 Bivens remedy where state law tort claims existed); Malesko, 534 U.S. at 66 (same); Vega, 881 7 F.3d at 1154 (same). See also Abbasi, 137 S. Ct. at 1858 (“[I]f there is an alternative remedial 8 structure present in a certain case, that alone may limit the power of the Judiciary to infer a new 9 Bivens cause of action.”). 10 Second, special factors counsel against implying a Bivens action here. The Employee United States District Court Northern District of California 11 Defendants are private individuals. In both the § 1983 and the Bivens context, courts have been 12 hesitant to permit private individuals to sue each other for constitutional violations. See Holly v. 13 Scott, 434 F.3d 287, 291 (4th Cir. 2006) (discussing how “courts have recognized the need to limit 14 the liability of private persons” in the § 1983 context and that “[t]here exists ample reason to be 15 even more cautious about imputing liability to private actors under Bivens” because it is a judicial 16 creation). This has persuasive force here. As will be discussed below, Plaintiff has not adequately 17 alleged that the actions of the Employee Defendants constitute anything more than private 18 conduct. See Section III.B. As such, it would generally be inappropriate to infer a constitutional 19 violation in this context. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S. Ct. 2744, 20 2753, 73 L. Ed. 2d 482 (1982) (“[M]ost rights secured by the Constitution are protected only 21 against infringement by governments . . . .”) (internal citation and quotation marks omitted); Am. 22 Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130 (1999) 23 (“§ 1983 excludes from its reach merely private conduct, no matter how discriminatory or 24 wrongful”) (internal citation and quotation marks omitted). This too weighs against implying a 25 remedy under Bivens. 26 Accordingly, in light of the above-discussed considerations, the Court declines to imply a 27 Bivens remedy against the Employee Defendants. Plaintiff’s Bivens claims against the Employee 28 Case No.: 5:16-cv-04256-EJD ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 6 1 Defendants will be DISMISSED. In addition, because these claims are foreclosed as a matter of 2 law and further amendment would be futile, the Court dismisses them WITHOUT LEAVE TO 3 AMEND. 4 B. 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: Counts I-III: Claims Under 42 U.S.C. § 1983 6 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 7 the alleged violation was committed by a person acting under the color of state law. See West v. 8 Atkins, 487 U.S. 42, 48 (1988). Defendants challenge Plaintiff’s allegations with respect to this 9 second prong, arguing that Plaintiff has not adequately alleged that Defendants were “acting under 10 United States District Court Northern District of California 11 the color of state law.” MTD 5-6. It is generally presumed that private individuals and entities do not act “under color of state 12 law” within the meaning of § 1983. See Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 13 916, 922 (9th Cir. 2011) (citation omitted), cert. denied, 565 U.S. 1116 (2012). Nevertheless, 14 private parties may be held liable under § 1983 if a plaintiff shows that their “conduct allegedly 15 causing the deprivation of a federal right [was] fairly attributable to the State.” Lugar, 457 U.S. at 16 937. “The Supreme Court has articulated four tests for determining whether a private [party’s] 17 actions amount to state action: (1) the public function test; (2) the joint action test; (3) the state 18 compulsion test; and (4) the governmental nexus test.” Tsao v. Desert Palace, Inc., 698 F.3d 19 1128, 1140 (9th Cir. 2012) (citation and quotation marks omitted). A Section 1983 plaintiff has 20 the burden to plead and prove state action by a private defendant. See id. (citing Lugar, 457 U.S. 21 at 937). 22 Here, Plaintiff asserts that Defendants were “acting under the color of state law” under two 23 of these tests: First, Plaintiff argues that the Employee Defendants engaged in “joint action” with 24 the SJPD officers when they huddled together and spoke in hushed tones. Opposition to Motion to 25 Dismiss (“Opp.”), Dkt. No. 76, at 4-5. Second, Plaintiff argues that the Employee Defendants 26 were performing a “public function” when they detained Plaintiff and took actions characteristic 27 of police officers. Opp. 6-7. The Court addresses each of these arguments in turn. 28 Case No.: 5:16-cv-04256-EJD ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 7 1 The Court begins with joint action. “The joint action test asks whether state officials and 2 private parties have acted in concert in effecting a particular deprivation of constitutional rights.” 3 Tsao, 698 F.3d at 1140 (quoting Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002)). “This 4 requirement can be satisfied either ‘by proving the existence of a conspiracy or by showing that 5 the private party was a willful participant in joint action with the State or its agents.’” Id. (quoting 6 Franklin, 312 F.3d at 445). “Ultimately, joint action exists when the state has “so far insinuated 7 itself into a position of interdependence with [the private entity] that it must be recognized as a 8 joint participant in the challenged activity.’” Id. (quoting Gorenc v. Salt River Project Agric. 9 Improvement & Power Dist., 869 F.2d 503, 507 (9th Cir. 1989)) (alteration in original). 10 Here, Plaintiff has failed to allege any joint action between the Employee Defendants and United States District Court Northern District of California 11 the state. Plaintiff posits that the Employee Defendants acted jointly with the SJPD when they 12 huddled together and spoke in hushed tones. Opp. 4-5. In fact, Plaintiff’s own allegations admit 13 the opposite. The SJPD became involved when Plaintiff—not the Employee Defendants— 14 requested that the SJPD be called. SAC ¶ 20. By the time the SJPD arrived on the scene, the bulk 15 (if not all) of the alleged constitutional violations had already taken place. See SAC ¶¶ 12-20. 16 Plaintiff had already been allegedly silenced, detained, and assaulted, and the SJPD played no part 17 in these events. Id. The only alleged point of contact between the Employee Defendants and the 18 SJPD was when the police officers first arrived on the scene. Id. ¶¶ 20-21. However, even 19 construing Plaintiff’s allegations in the light most favorable to him, this conversation appears to be 20 limited to helping the SJPD understand the events that had transpired. See id. ¶ 21. If anything, 21 this suggests a lack of awareness of the Employee Defendants’ actions—not joint action. Finally, 22 the SJPD’s independence is confirmed by Plaintiff’s own allegations regarding the final events of 23 the day: the SJPD took Plaintiff off the premises and back to their patrol car before issuing a 24 citation. Id. ¶ 22. One officer also, according to Plaintiff, specifically clarified: “what I’m about 25 to tell you is really important; we ([the two officers]) have nothing to do with this.” Id. 26 Accordingly, even taking all of Plaintiff’s factual allegations as true and construing them in the 27 light most favorable to Plaintiff, they confirm that there was no joint action within the meaning of 28 Case No.: 5:16-cv-04256-EJD ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 8 1 § 1983 between the Employee Defendants and the SJPD. Plaintiff’s first theory of state action 2 fails. 3 The Court turns next to public function. “Under the public function test, when private 4 individuals or groups are endowed by the State with powers or functions governmental in nature, 5 they become agencies or instrumentalities of the State and subject to its constitutional limitations.” 6 Kirtley v. Rainey, 326 F.3d 1088, 1093 (9th Cir. 2003) (internal citation and quotation marks 7 omitted). “The public function test is satisfied only on a showing that the function at issue is both 8 traditionally and exclusively governmental.” Id. (internal citation and quotation marks omitted). 9 The Supreme Court has explicitly left open the question of whether and under what circumstances “police protection” constitutes a public function under § 1983. Flagg Bros. v. 11 United States District Court Northern District of California 10 Brooks, 436 U.S. 149, 163-64, 98 S. Ct. 1729, 1737, 56 L. Ed. 2d 185 (1978). District and 12 appellate courts addressing this issue have reached mixed results. The Sixth Circuit summarized 13 the general trend as follows: 14 15 16 17 18 The line divides cases in which a private actor exercises a power traditionally reserved to the state, but not exclusively reserved to it, e.g., the common law shopkeeper’s privilege, from cases in which a private actor exercises a power exclusively reserved to the state, e.g., the police power. Where private security guards are endowed by law with plenary police powers such that they are de facto police officers, they may qualify as state actors under the public function test. Romanski v. Detroit Entm’t, L.L.C., 428 F.3d 629, 637 (6th Cir. 2005). For example, a security 19 guard that could patrol and eject unruly persons from a hospital, but who could not carry a weapon 20 and had to call the police when individuals became belligerent was not a state actor. See Johnson 21 v. LaRabida Children’s Hospital, 372 F.3d 894, 896-97 (7th Cir. 2004). However, a casino 22 security guard authorized by Michigan statute to make arrests without a warrant was a state actor. 23 Romanski, 428 F.3d at 638. Also, the Ninth Circuit has held that an individual making a citizen’s 24 arrest is not a state actor under the joint action test. Collins v. Womancare, 878 F.2d 1145, 115425 56 (9th Cir. 1989). 26 Here, Plaintiff has not adequately alleged that the Employee Defendants were performing a 27 28 Case No.: 5:16-cv-04256-EJD ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 9 1 “public function” under § 1983. The SAC does not allege that Employee Defendants were 2 endowed with the type of plenary police power that is “traditionally and exclusively 3 governmental.” Kirtley, 326 F.3d at 1093. Indeed, it makes almost no allegations regarding the 4 scope of their power at all. At most, the allegations suggest that the security guards had some 5 power to detain a person on the premises, temporarily confiscate personal property (e.g., 6 Plaintiff’s driver license), and place a person in handcuffs. See SAC ¶¶ 17-18. However, this 7 small collection of abilities, by itself, is not exclusively governmental and, as such, is insufficient 8 under the public function test. Plaintiff’s second theory of state action fails. 9 Accordingly, because Plaintiff has failed to plausibly allege state action under either of the theories he asserts, his claims against the Employee Defendants under § 1983 will be 11 United States District Court Northern District of California 10 DISMISSED. However, because further amendment may cure these deficiencies, these claims are 12 dismissed WITH LEAVE TO AMEND. 13 The only question that remains, then, is whether Paragon itself can be held liable under 14 § 1983. Plaintiff does not claim that Paragon committed constitutional violations of its own, but 15 nevertheless argues that Paragon can be held liable because it supervises and manages the 16 Employee Defendants. Opp. 7-8; SAC ¶¶ 25-39. As such, Plaintiff’s theory of liability fails at the 17 outset: because, as discussed above, Plaintiff has failed to plausibly allege that the Employee 18 Defendants are liable under § 1983, he cannot plausibly allege that Paragon is liable under § 1983. 19 Further, even if Plaintiff’s allegations against the Employee Defendants had been sufficient, his 20 theory of liability against Paragon is problematic for at least two other reasons: 21 First, “[t]here is no respondeat superior liability under section 1983.” Taylor v. List, 880 22 F.2d 1040, 1045 (9th Cir. 1989). Accordingly, Paragon cannot be held liable for the constitutional 23 violations of the Employee Defendants simply because it employs them. 24 Second, in Tsao, 698 F.3d at 1138-39, the Ninth Circuit held that the Supreme Court’s 25 decision in Monell v. Dept’t of Soc. Servs., 436 U.S. 658, 691 (1978) applies to private entities that 26 act on behalf of municipalities. Under Monell, § 1983 claims may be brought against 27 municipalities only if a plaintiff demonstrates injury resulting from “execution of a government’s 28 Case No.: 5:16-cv-04256-EJD ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 10 1 policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be 2 said to represent official policy.” 436 U.S. at 694, 98 S. Ct. 2018. Thus, at least in the case of 3 municipality actions by private entities, a plaintiff must identify some policy or custom that 4 allegedly caused his injuries to impose liability under § 1983. See Tsao, 698 F.3d at 1138-39. 5 The Ninth Circuit has “assumed” but not explicitly decided that Monell also applies to private 6 entities acting on behalf of a state. See Oyenik v. Corizon Health Inc., 696 F. App’x 792, 794 n.1 7 (9th Cir. 2017). Here, Plaintiff makes no allegations that his injuries resulted from Paragon’s policies or 8 customs. Thus, even if Plaintiff had adequately alleged state action under a theory of joint action 10 with the SJPD, his claims against Paragon would fail for this reason. Similarly, even if Plaintiff 11 United States District Court Northern District of California 9 had adequately alleged state action under a police power public function theory, his claims against 12 Paragon would at least be disfavored in light of Tsao. Thus, Plaintiff’s claims against Paragon 13 falter for this reason as well. 14 Accordingly, in light of the above considerations, Plaintiff’s claims against Paragon will be 15 DISMISSED. However, because further amendment may cure these deficiencies, these claims are 16 dismissed WITH LEAVE TO AMEND. 17 C. Counts IV-IX: State Law Claims Because the Court will permit amendment at least with respect to Plaintiff’s claims under 18 19 § 1983, the Court need not reach Defendants’ arguments regarding supplemental jurisdiction. 20 IV. 21 ORDER Based on the foregoing, Defendants’ motion is GRANTED. Plaintiff’s Bivens claims are 22 DISMISSED WITHOUT LEAVE TO AMEND. Plaintiff’s claims under 42 U.S.C. § 1983 are 23 DISMISSED WITH LEAVE TO AMEND. 24 Any amended complaint must be filed on or before July 2, 2018, and must be consistent 25 with the discussion above. Plaintiff is advised the procedural due process claim will be dismissed 26 with prejudice for failure to prosecute under Federal Rule of Civil Procedure 41(b) if an amended 27 complaint is not filed by the deadline. 28 Case No.: 5:16-cv-04256-EJD ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 11 1 2 3 4 IT IS SO ORDERED. Dated: June 11, 2018 ______________________________________ EDWARD J. DAVILA United States District Judge 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No.: 5:16-cv-04256-EJD ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 12