The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge
ORDER GRANTING DEFENDANTS' UNOPPOSED MOTION TO DISMISS
PLAINTIFFS' CLAIMS AGAINST THE CITY OF EL CAJON AND THE EL CAJON
POLICE DEPARTMENT [DOC. # 9]
Now before the Court is the motion to dismiss filed by
defendants City of El Cajon, El Cajon Police Department, Robert
Ransweiler and Christopher Baldwin (collectively "the City of El
Cajon defendants"). Plaintiffs do not oppose the motion.*fn1
The City of El Cajon defendants' motion was subsequently taken
under submission without oral argument. See CivLR 7.1(d.1).
After a careful consideration of the pleadings presented, and for
the reasons set forth below, this Court GRANTS the City of El
Cajon defendants' motion to dismiss.
On August 5, 2005, plaintiff Paula J. Brown was struck by a
stray bullet during the attempted arrest by El Cajon police
officers of a murder suspect. Plaintiff Jonathan D. Brown, Paula
J. Brown's son, observed the incident. On July 27, 2005,
plaintiffs filed a complaint alleging the City of El Cajon defendants, among others, violated
their constitutional rights pursuant to 42 U.S.C. §§ 1983 and
1988. On August 23 and 24, 2005, the City of El Cajon defendants
and defendant State of California (by and through the California
Department of Corrections and Rehabilitation) filed their
respective motions to dismiss plaintiffs' complaint pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See
Docs. # 3, 5. Because plaintiffs, on September 28, 2005, filed a
first amended complaint, this Court denied both motions as moot.
The City of El Cajon defendants filed the instant motion to
dismiss plaintiffs' first amended complaint on October 5, 2005.
Plaintiffs filed their notice of non-opposition to the motion on
November 15, 2005. This Court took the motion under submission
without oral argument on November 23, 2005.
The City of El Cajon defendants move, pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, for an order dismissing
defendants City of El Cajon and the El Cajon Police Department on
the grounds that the first amended complaint fails to state a
claim for municipal liability under Monell v. New York City
Department of Social Services, 436 U.S. 658, 683 (1978). Under
42 U.S.C. § 1983, "[e]very person" who acts under color of state
law may be sued. The term "person" has been interpreted broadly,
even to include cities, counties, and other local government
entities. See Monell, 436 U.S. 658.
Municipalities, their agencies and their supervisory personnel
cannot be held liable under section 1983 on any theory of
respondeat superior or vicarious liability. They can, however, be
held liable for deprivations of constitutional rights resulting
from their formal policies or customs. See Monell,
436 U.S. at 691-693; Watts v. County of Sacramento, 256 F.3d 886, 891
(9th Cir. 2001); Shaw v. California Dep't of Alcoholic Beverage
Control, 788 F.2d 600, 610 (9th Cir. 1986). "In this circuit, a
claim of municipal liability under section 1983 is sufficient to
withstand a motion to dismiss `even if the claim is based on
nothing more than a bare allegation that the individual officers'
conduct conformed to official policy, custom, or practice.'"
Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624
(9th Cir. 1988) (quoting Shah v. County of Los Angeles, 797 F.2d 743, 747 (9th
Cir. 1986)); Watts, 256 F.3d at 891; Orin v. Barclay,
272 F.3d 1207, 1217 (9th Cir. 2001).
The City of El Cajon defendants seek dismissal of plaintiffs'
Monell claim against defendant City of El Cajon and defendant
El Cajon Police Department because plaintiffs' first amended
complaint contains contradictory allegations that undermine any
Monell claim for municipal liability. See Mot. at 5-7.
Plaintiffs' first amended complaint alleges:
Said discharge of weapons by Defendants was in
violation of the municipal policy and custom the
CITY, ECPD, the STATE and USA. Said discharge of live
rounds was also contrary to the municipal policy and
custom of the CITY, ECPD, the STATE and USA . . .
FAC ¶ 18. Because plaintiffs do not allege defendants' conformed
to the policies and customs of the defendant entities but,
instead, allege the actions were in violation of, or contrary to,
those policies, no Monell liability against the municipal
defendants can lie based on the allegations presented. See
Karim-Panahi, 839 F.2d at 624. Therefore, plaintiffs' claims
against the City of El Cajon and the El Cajon Police Department
must be dismissed.
Based on the foregoing, IT IS HEREBY ORDERED that the City of
El Cajon defendants' unopposed motion to dismiss plaintiffs'
claims against the City of El Cajon and the El Cajon Police
Department pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure is GRANTED and plaintiffs' claims against the
City of El Cajon and the El Cajon Police Department are
DISMISSED WITHOUT PREJUDICE.
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