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Desiree Murillo v. City of Woodland; Ryan Piercy; Casey Sullivan; and Does 1 To 40

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 23, 2011

DESIREE MURILLO, PLAINTIFF,
v.
CITY OF WOODLAND; RYAN PIERCY; CASEY SULLIVAN; AND DOES 1 TO 40, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

In this action, plaintiff alleges claims pursuant to 42 U.S.C. § 1983 and California state law against defendant City of Woodland ("the City") and a former officer of the Woodland Police Department, defendant Ryan Piercy, in connection with Piercy's allegedly unconstitutional pat-down search of plaintiff during a traffic stop. Only plaintiff's Section 1983 claims are at issue in the motions for partial summary judgment presently before the court.*fn1 Briefly stated, plaintiff alleges that Piercy searched her in violation of her constitutional rights, and did so in a sexually aggressive and unconstitutional manner. Additionally, plaintiff alleges that the City is liable for the alleged violations of plaintiff's constitutional rights.

Presently before the court is the City's Motion for Summary Adjudication filed pursuant to Federal Rule of Civil Procedure 56, which seeks the dismissal of plaintiff's Section 1983 claim or claims alleged against the City.*fn2 (Mot. for Summ. Adjudication, Dkt. No. 52.) Piercy filed a notice of joinder in the City's motion, which does not specify the claim or claims to which it is directed.*fn3 (See Joinder in Mot. for Summ. Adjudication, Dkt. No. 62.) Nevertheless, the court construes Piercy's joinder as seeking partial summary judgment as to plaintiff's first claim for relief, which is the only Section 1983 claim alleged against Piercy.

The court heard this matter on its law and motion calendar on May 11, 2011. (Minutes, Dkt. No. 81.) Attorney Carolee G. Kilduff appeared on behalf of the City, and attorney John A. Lavra appeared on behalf of Piercy. Attorney Jeffrey D. Janoff appeared on behalf of plaintiff.

The undersigned has fully considered the parties' submissions, oral arguments, and appropriate portions of the record in this case and, for the reasons that follow, grants the City's and Piercy's motions in part, and denies those motions in part. Specifically, the court grants partial summary judgment to the City and Piercy to the extent that plaintiff claims that Piercy: (1) stopped plaintiff's vehicle in violation of plaintiff's constitutional rights, (2) ordered plaintiff out of her vehicle in violation of plaintiff's constitutional rights, (3) used excessive force on plaintiff in violation of plaintiff's Fourth Amendment rights, and (4) violated plaintiff's substantive due process rights guaranteed by the Fourteenth Amendment. However, the court denies Piercy's motion for partial summary judgment to the extent that it challenges plaintiff's claims that: (a) Piercy unconstitutionally conducted a pat-down search of plaintiff under Terry v. Ohio, 392 U.S. 1, 21 (1968), without a proper legal basis to conduct the search at all, and (b) searched plaintiff in an unconstitutional manner. The court denies the City's motion to the extent that it challenges plaintiff's claim that the City is liable for Piercy's pat-down search of plaintiff under Terry, but grants partial summary judgment to the City to the extent that plaintiff alleges that the City is liable for the manner of the pat-down search itself.

I. BACKGROUND

A. Factual Background

1. Piercy's Training at the Butte College Police Academy and the Woodland Police Department*fn4

It is undisputed that the Woodland Police Department hired Piercy in June 2008. (City's Statement of Undisputed Facts ("City's SUF") ¶ 1; Pl.'s Statement of Disputed Facts ("Pl.'s SDF") ¶ 1.) It is also undisputed that prior to being hired by the Woodland Police Department, Piercy completed a training program at the Butte College Police Academy and obtained a certificate in basic Peace Officer Standards and Training. (City's SUF ¶ 2.) Piercy attended this training program for approximately six months, and Piercy finished tenth in his class.*fn5 (Id.) Plaintiff only disputes these facts on the grounds that training officers and other officers criticized Piercy's performance (Pl.'s SDF ¶ 2); plaintiff's response does not directly address the facts asserted by the City or create a genuine dispute of material fact.

While at the Butte College Police Academy, Piercy was taught to use the palm of his hand for the majority of pat-down searches.*fn6 (City's SUF ¶ 3.) Piercy was taught to use the palm of his hand in order to determine whether a person had a weapon. (City's SUF ¶ 4.) Plaintiff does not genuinely dispute these facts; she only asserts that "[n]o written manual was ever produced on this issue." (Pl.'s SDF ¶¶ 3-4.) There is no genuine factual dispute that Piercy was taught that he should not put the palm of his hand across a woman's chest; however, it is unclear whether that training was provided by the Butte College Police Academy in addition to the Woodland Police Academy. (See City's SUF ¶ 5; Pl.'s SDF ¶ 5.)

Piercy completed orientation training and approximately 16 weeks of field training with the Woodland Police Department prior to his assignment to patrol. (City's SUF ¶ 6; Pl.'s SDF ¶ 6.) During this orientation and training, Piercy received training on how to perform pat-down searches. (City's SUF ¶ 7.) Officers with the Woodland Police Department are trained to use the back and blade of the hand when searching females' breast and buttock areas. (Id. ¶ 8.) "[W]hen an officer searches the area under the breasts, the blade section of the hand (fingers up, thumb against the body) sweeps along the bra line and the back of the hand is used on the buttocks." (Id.) Again, plaintiff only disputes these facts on the non-responsive ground that "[n]o written manual was ever produced on this issue." (Pl.'s SDF ¶¶ 7, 8.)

The record is relatively silent regarding the Woodland Police Department's policies or training addressing when a pat-down search should be conducted. In this vein, the City's statement of undisputed facts states: "For the safety of the Officer, the decision to do a pat down search during a traffic stop is at their discretion." (City's SUF ¶ 12.)

The City offers as an undisputed fact that "[d]uring training Piercy demonstrated competency in the area of officer tactics, including pat down searches," and relies on the declaration of Lieutenant Anthony Cucchi*fn7 in support of this fact. (City's SUF ¶ 10 (citing Cucchi Decl. ¶ 7).) Plaintiff disputes this fact on two grounds. First, plaintiff argues that "Cucchi was not [Piercy's Field Training Officer] and was not involved in [Piercy's] training so he has no personal knowledge of this fact." (Pl.'s SDF ¶ 10.) Second, plaintiff disputes this fact on the basis of the expert declaration of David A. Dusenbery, who was retained by plaintiff as a "police practices consultant and expert witness" and concluded upon review of the records provided to him that Piercy "should not have been hired by the Woodland Police Department and he should have been terminated during the field training program." (See Dusenbery Decl. at 1, 3, Exhibit D to Pl.'s Opp'n, Dkt. No. 64, Doc. No. 64-4.) The City replies that the fact regarding Piercy's competency remains undisputed because: (1) Lieutenant Cucchi was aware that Piercy demonstrated competence or else Piercy would not have been passed through the Field Training Program; (2) Lieutenant Cucchi was aware of Piercy's competence from reviewing unidentified "training and personnel documents produced in this case"; and (3) Dusenbery's conclusion is "irrelevant argument rather than evidentiary fact and is based at least partially if not completely on inadmissible hearsay and on speculation with the benefit of hindsight. Fed. R. Civ. P. 56(e); Fed. R. Evid. 602, 805." (City's Reply Statement of Undisputed Facts ¶ 10, Dkt. No. 79.)

In regards to Dusenbery's expert declaration, the court finds that Dusenbery's declaration is of such a conclusory nature, offering no explanation or bases for the opinions offered, that it is given no material weight in the context of the City's and Piercy's motions for partial summary judgment. See Clouthier v. County of Contra Costa, 591 F.3d 1232, 1252 (9th Cir. 2010) (finding, in the context of a Section 1983 action, that no material evidence on issue of County's knowledge or the obviousness of a problem despite expert declaration on issue because the expert's opinions were conclusory) (citing Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) ("Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.")).

In regards to Lieutenant Cucchi's statement, plaintiff has created a legitimate factual dispute. Lieutenant Cucchi has no personal knowledge of Piercy's competence in performing pat-down searches during field training, and the City has not cited any evidence that would support substantiate Lieutenant Cucchi's personal knowledge in this regard. Accordingly, the court concludes that a genuine dispute of fact exists as to Piercy's competency in performing pat-down searches during field training. Whether this factual dispute is material is a separate question addressed below, in the portion of this order addressing the City's potential Monell liability.

Piercy completed the Woodland Police Department's field training program on October 24, 2008. (City's SUF ¶ 9; Pl.'s SDF ¶ 9.) Thereafter, Piercy was assigned to a patrol in a solo unit. (City's SUF ¶ 9; Pl.'s SDF ¶ 9.)

2. The Traffic Stop and Piercy's Pat-Down Search of Plaintiff It is undisputed that Piercy was a police officer employed by the City's police department, the Woodland Police Department, at the time of the traffic stop at issue in this case. (See City's SUF ¶¶ 1, 9, 13; Pl.'s SDF ¶¶ 1, 9, 13.) During the events in question, Piercy was assigned to a patrol in a solo unit on the "graveyard shift." (See City's SUF ¶ 9; Pl.'s SDF ¶ 9.)

On February 1, 2009, Piercy conducted a traffic stop involving plaintiff. (City's SUF ¶ 13; Pl.'s SDF ¶ 13.) Piercy's patrol vehicle is equipped with a camera mounted to the windshield, and that camera visually recorded the traffic stop. The City lodged the recording with the court. (See Cucchi Decl. ¶ 11 & Ex. A, Dkt. No. 55; Notice of Lodging CD, Dkt. No. 57.) Notably, however, the recording does not contain any of the relevant audio from the traffic stop, such as what was said between plaintiff and Piercy during the stop, because Piercy's civilian radio was playing loud music during the entire traffic stop.

Plaintiff testified at her deposition that on the night in question, she had been at a bar with her aunt and had consumed one sip of beer before she learned that her daughter was at home with plaintiff's grandmother and was crying, which prompted plaintiff to leave the bar. (See Murillo Depo. at 67:12-68:15.) Plaintiff testified that she had arrived at the bar at around 11:45 p.m. or 11:50 p.m., and left after approximately ten to fifteen minutes. (Id.) She further testified that she noticed a patrol vehicle, which turned out to be Peircy's patrol vehicle, driving down a main street when she walked out of the bar. (Id. at 69:19-70:7.)

The video recording begins as Piercy makes a left turn at an intersection with a traffic signal, and shows Piercy following plaintiff's vehicle. (See Video at 00:04:12.) Piercy turned on his overhead lights after plaintiff made a right turn at an intersection with a stop sign. (Id. at 00:04:30.) According to the time stamp on the video recording, Piercy stopped plaintiff's vehicle at approximately 12:04 a.m. (Video at 00:04:40; Cucchi Decl. ¶ 10.) Notably, although the City's statement of undisputed facts states that Piercy stopped plaintiff "after observing [plaintiff] make a traffic violation" and relies on the declaration of Lieutenant Cucchi to support that fact, Lieutenant Cucchi's declaration only states that "Piercy conducted a traffic stop on Desiree Murillo," with no mention of the basis for the stop. (Compare City's SUF ¶ 13, with Cucchi Decl. ¶ 10.) However, Piercy testified that he stopped plaintiff for passing over the limit line when plaintiff stopped at the stop sign and made a right turn, and plaintiff testified that this was the basis of the traffic stop that Piercy provided to her.*fn8 (Piercy Depo. at 7:23-8:1; Murillo Depo. at 105:9-14, 244:15-22.) Neither party disputed in their papers or at the hearing that this was the basis for the traffic stop.*fn9

After stopping plaintiff's vehicle, Piercy stood at plaintiff's driver's side window for approximately 30 seconds, speaking to plaintiff and shining his flashlight into the vehicle. (Video at 00:05:09-00:05:45.) Plaintiff testified that Piercy asked her where she was coming from, and that she responded that she was coming from a bar and was going to her grandmother's home because her daughter was crying. (Murillo Depo. at 77:1-9.) Plaintiff also testified that Piercy asked her whether she had been drinking, and that she responded that she had consumed one sip of beer. (Id. at 77:9-10.) Piercy testified that plaintiff "admitted to drinking" alcohol, but could not recall the specific response provided by plaintiff. (Piercy Depo. at 7:18, 11:24-12:10.)

Piercy then ordered plaintiff to exit the vehicle (City's SUF ¶ 16; Pl.'s SDF ¶ 16), and move to the sidewalk (Video at 00:05:52). Piercy testified that he asked plaintiff to exit the vehicle because she had admitted drinking alcohol. (Piercy Depo. at 79:14-18.)

The parties agree, and the video recording substantiates, that plaintiff was wearing jeans and a sweater; plaintiff reasonably characterizes her jeans as having been "tight," in reliance on the video recording and Lieutenant Cucchi's deposition. (Pl.'s SDF ¶ 17; Cucchi Depo. at 77:5-7.)

After plaintiff handed Piercy what appears to be a driver's license, Piercy ordered plaintiff to turn around so that she was facing away from him. (Video at 00:05:58.) Plaintiff testified that Piercy told her he was going to search her. (Murillo Depo. at 85:4-10.) Neither party contends that plaintiff consented to a search of her person. Piercy then ordered plaintiff to spread her feet apart, clasp her hands, and place them over her head, and Piercy placed his hand on plaintiff's clasped hands. (Video at 00:06:00; see also Murillo Depo. at 85:8-20; Piercy Depo. at 113:8-13.)

Piercy then conducted the pat-down search of plaintiff that is at the center of this dispute. (City's SUF ¶ 18; Pl.'s SDF ¶ 18; Video at 00:06:02-00:06:15.) Piercy appears to use the palm of his hand while conducting the entire pat-down search of plaintiff. (Video at 00:06:02-00:06:15.) The video recording shows that Piercy first ran the palm of his hand along plaintiff's right hip and down the outside of plaintiff's right leg to about plaintiff's knee. The recording then appears to show that Piercy then ran the palm of his hand upward along plaintiff's right, inner thigh from the back of plaintiff's knee and into her crotch and vaginal area, pushed plaintiff's right buttock upward with the palm of his hand, and ran the palm of his hand over part of the right, rear pocket of plaintiff's jeans. Piercy repeated this sequence on plaintiff's left hip, leg, inner thigh, crotch, and buttock.

Plaintiff described Piercy's use of his hands as "rubbing," not patting, that Piercy used force, and that Piercy "pushed [her] butt cheek up and felt [her] butt," but that Piercy's hand never stopped moving to grab plaintiff's buttocks. (See Murillo Depo. at 90:12-91:8, 92:6-21.) She further testified that the pressure of Piercy's hand increased when Piercy was touching her buttocks. (Id. at 95:7-13.) Plaintiff also testified that Piercy's thumb touched her vaginal area and that her internal reaction was: "What the hell is this guy doing to me?" (Id. at 92:24-93:10.)

While reviewing the video recording of the traffic stop and pat-down search during his deposition, however, Piercy disagreed with plaintiff's counsel's characterizations that Piercy placed the palm of his hand between plaintiff's legs and that Piercy used force to lift plaintiff's buttocks. (See Piercy Depo. at 114:2-116:17.)

Piercy then reached around plaintiff's waist and began searching plaintiff's stomach and chest areas; plaintiff reacted by turning around, facing Piercy, and saying something. (Video at 00:06:07-00:06:09.) The video recording does not clearly show the manner in which Piercy searched plaintiff's stomach and chest areas. Insofar as the search of her stomach and breasts was concerned, plaintiff testified at her deposition as follows:

Q. After he did the left leg, what portion of his body -- or your body did he next touch?

A. Then he touched my breast, and then he felt my stomach. And after he rubbed my stomach inappropriately, that's when I turned around and told him that I didn't feel that he was searching me the correct way and that I was really uncomfortable and that I didn't think that he should be touching me that way.

(Murillo Depo. at 95:14-21.) She further testified:

Q. Where on your breast did his left hand touch?

A. The front of my breast, both breasts. He ran his hand over both of my breasts.

Q. Did he ever stop the movement of his hand?

A. No.

Q. Was his hand open or could you describe the position of his hand?

A. His hand was open and it was the palm of his hand.

Q. Did he ever press on your breasts?

A. Yes.

Q. Did he ever grope your breasts?

A. No. . . .

A. He felt them.

Q. Did he ever grope your breasts?

A. What do you mean by "grope"? Like did he squeeze them?

Q. Did he ever grab them?

A. No.

Q. . . . And your testimony is he pressed on your breasts?

A. Yes.

Q. And what portion of your body did he next touch?

A. My stomach area.

Q. Will you describe how he did that?

A. He ran his hand kind of in a wavelike position across my stomach, like he waved his hand across like my stomach, and that's when I turned around and told him that I didn't think that was an appropriate way for him to be touching me.

Q. You turned around to tell him that?

A. Yes.

Q. Did he have any response?

A. He said, "Ma'am, you're not supposed to be moving. I'll put you on the floor and search you that way."

Q. What happened next?

A. I told him that I had never been searched before, and I felt really uncomfortable, and I didn't think that was the right way that he should be touching me. And I said, "You know, I'm pretty sure that this isn't the correct procedure." I said, "I just feel really uncomfortable." And then he said that it was against the law to move when an officer is searching you. And then I said, "Okay, but, you know, I feel really uncomfortable and, you know, I didn't mean to move or whatever, but I just don't feel comfortable."

(Id. at 97:2-99:3.)*fn10

Piercy testified at his deposition that he recalled that plaintiff had asked a question or made a comment about his search technique, but could not recall the substance of plaintiff's question or comment. (Piercy Depo. at 117:18-24.) He also could not recall telling plaintiff that he "could put her down on the ground and search if she'd like." (Id. at 117:25-118:2.)

After Piercy ordered plaintiff to again face away from him, Piercy continued his search of plaintiff. (See Video at 00:06:09-00:06:10.) Piercy next ran the palm of his hand along the right and left sides of plaintiff's stomach, rib-cage area, and upper hips. (Id. at 00:06:11-00:06:15.) After Piercy completed his pat-down search, plaintiff then turned and faced Piercy.

Next, Piercy used his flashlight to conduct a nystagmus test to determine whether plaintiff was driving under the influence.*fn11 (Piercy Depo. at 119:17-25; see also Video at 00:06:25-00:07:18.) Piercy determined that plaintiff was not driving under the influence of alcohol after performing this preliminary test on plaintiff. (City's SUF ¶ 22; Pl.'s SDF ¶ 21.) The video recording shows that approximately 20 seconds after Piercy concluded the Nystagmus test, Piercy handed what appears to be plaintiff's driver's license to plaintiff and then continued speaking with plaintiff. (Video at 00:07:18-00:09:09.) Piercy ultimately allowed plaintiff to return to her vehicle, without issuing a ticket, and plaintiff drove away from the scene at approximately 12:09 a.m.*fn12 (Video at 00:09:09.)

3. Piercy's Release From the Woodland Police Department It is undisputed that as a result of "an inquiry from a citizen," and while Piercy was still on probation, the Woodland Police Department conducted an investigation into Piercy's traffic stops. (City's SUF ¶ 23; Pl.'s SDF ¶ 22.) Lieutenant Cucchi was tasked with conducting the investigation. (City's SUF ¶ 23; Pl.'s SDF ¶ 22.) Lieutenant Charles Wilts supervised Lieutenant Cucchi, who was a sergeant at the time, and also participated in the investigation. (See Wilts Depo. at 9:9-10:6, 16:16-17:24.)

Documents filed under seal in this case reveal that Piercy conducted traffic stops and pat-down searches of two women other than plaintiff, both of whom reported to the Woodland Police Department that Piercy had made them feel uncomfortable.

As part of the investigation, Lieutenant Cucchi contacted plaintiff. (City's SUF ¶ 24; Pl.'s SDF ¶ 23.) Plaintiff filed a complaint with the Woodland Police Department regarding the pat-down search after she was contacted by Lieutenant Cucchi in May 2009 regarding the search. (See City's SUF ¶ 26; Pl.'s SDF ¶ 25; see also Cucchi Depo. at 90:15-91:17.)

Piercy was "released" from the Woodland Police Department in June 2009 "because it was determined by Chief Sullivan that he did not meet the standards of the Department." (City's SUF ¶ 24; Pl.'s SDF ¶ 23.)

B. Procedural History

Plaintiff's First Amended Complaint is the operative complaint. In it, plaintiff alleges that at all relevant times the City was "a general law city and political subdivision of the State of California" that "own[ed], control[led], maintain[ed] and operate[d] a municipal police department." (First Am. Compl. ¶ 4.) She further alleges that Piercy was at all relevant times a police officer with the City's police department. (Id. ¶ 5.)

In plaintiff's first claim for relief, plaintiff alleges that on or around February 1, 2009, Piercy, acting under color of state law, performed a traffic stop of plaintiff. (First Am. Compl. ¶ 9.) Plaintiff alleges that Piercy "unlawfully and wrongfully assaulted plaintiff in a sexual manner and applied physical force to her person" in violation of plaintiff's rights under the Fourth and Fourteenth Amendments to the United States Constitution, and without plaintiff's consent. (See id. ¶¶ 10, 11, 15.) Plaintiff's first claim is alleged only against Piercy.

Plaintiff's second claim for relief alleges that the City violated plaintiff's right to be free from unreasonable searches and to have due process as provided under the Fourth and Fourteenth Amendments to the United States Constitution. (See First Am. Compl. ¶ 22.) This Section 1983 claim, alleged only against the City, is premised on plaintiff's allegations that in violating plaintiff's constitutional rights, Piercy acted pursuant to a policy, practice, or custom that was created, adopted, instituted or maintained by the City. (See id. ¶¶ 19-20.) Specifically, plaintiff alleges that the City had a policy of: (1) "failing to educate and train its police officers, including PIERCY, in the proper use of force against detainees and to avoid offensive contact during a pat down search by an officer of the opposite gender"; and (2) "failing to budget enough funds to provide [the City's] police officers with training and education in the proper use of force against detainees and to avoid offensive contact during a pat down search by an officer of the opposite gender." (Id. ¶¶ 19, 21.)

On April 7, 2011, the City filed its Motion for Summary Adjudication. As noted above, Piercy filed a notice of joinder in the City's Motion for Summary Adjudication, which the court construes as seeking a judgment as to plaintiff's first claim for relief. Plaintiff did not file an objection to Piercy's notice of joinder.

II. LEGAL STANDARDS

A. Standards Governing Motions for Summary Judgment/Partial Summary Judgment Federal Rule of Civil Procedure 56(a) provides that "[a] party may move for

summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought." It further provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).*fn13 A shifting burden of proof governs motions for summary judgment under Rule 56. Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 56(c). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory committee's notes to 2010 amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact").

If the moving party meets its initial responsibility, the opposing party must establish that a genuine dispute as to any material fact actually does exist. SeeMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). To overcome summary judgment, the opposing party must demonstrate the existence of a factual dispute that is both material, i.e., it affects the outcome of the claim under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1031 (9th Cir. 2010), and genuine, i.e., "'the evidence is such that a reasonable jury could return a verdict for the nonmoving party,'" FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010) (quoting Anderson, 477 U.S. at 248). A party opposing summary judgment must support the assertion that a genuine dispute of material fact exists by: "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."*fn14 Fed. R. Civ. P. 56(c)(1)(A)-(B). However, the opposing party "must show more than the mere existence of a scintilla of evidence." In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Anderson, 477 U.S. at 252).

In resolving a motion for summary judgment, the evidence of the opposing party is to be believed. SeeAnderson, 477 U.S. at 255. Moreover, all reasonable inferences that may be drawn from the facts placed before the court must be viewed in a light most favorable to the opposing party. SeeMatsushita, 475 U.S. at 587; In re Oracle Corp. Sec. Litig., 627 F.3d at 387. However, to demonstrate a genuine factual dispute, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).

B. Standards Governing Claims Brought Pursuant to 42 U.S.C. § 1983 Plaintiff alleges violations of her constitutional rights. Such claims may be properly brought pursuant to 42 U.S.C. § 1983, which provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

Generally, with respect to individualdefendants, "Section 1983 imposes civil liability upon an individual who under color of state law subjects or causes, any citizen of the United States to the deprivation of any rights, privileges or immunities secured by the Constitution and laws." Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002) (citing 42 U.S.C. § 1983). "To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law." Long v. County of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).

A municipality may also be held liable for civil rights violations under Section 1983, but the standards governing the liability of a municipality materially differ from those that govern the liability of individuals who acted under color of state law. Relevant here, in Monell v. Department of Social Services, 436 U.S. 658, the Supreme Court limited municipal liability and held that "a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Id. at 691. Instead, "[l]ocal governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. at 690 (footnote omitted). The Court further stated that "it is when execution of a [local] government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 693; see also Bd. of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403 (1997) ("[W]e have required a plaintiff seeking to impose liability on a municipality under § 1983 to identify a municipal 'policy' or 'custom' that caused the plaintiff's injury.").

The Ninth Circuit Court of Appeals has held that in order to establish municipal liability, "the plaintiff must establish: (1) that he [or she] possessed a constitutional right of which he [or she] was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and (4) that the policy was the moving force behind the constitutional violation." Miranda v. City of Cornelius, 429 F.3d 858, 868 (9th Cir. 2005) (citation and quotation marks omitted, modification in original); see also Levine v. City of Alameda, 525 F.3d 903, 907 (9th Cir. 2008) ("To establish [municipal] liability, a plaintiff must establish that he was deprived of a constitutional right and that the city had a policy, practice, or custom which amounted to 'deliberate indifference' to the constitutional right and was the 'moving force' behind the constitutional violation.") (citing Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996), cert. denied, 519 U.S. 1111 (1997)). With respect to the last element, "[t]here must be a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 957 (9th Cir. 2008) (en banc) (citation and quotation marks omitted). Additionally, the Court of Appeals has recognized that in addition to showing that a constitutional violation resulted from an express municipal policy or custom, "[a] plaintiff may also establish municipal liability by demonstrating that (1) the constitutional tort was the result of a longstanding practice or custom which constitutes the standard operating procedure of the local government entity; (2) the tortfeasor was an official whose acts fairly represent official policy such that the challenged action constituted official policy; or (3) an official with final policy-making authority delegated that authority to, or ratified the decision of, a subordinate." Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (citation and quotation marks omitted).

III. DISCUSSION

Plaintiff has alleged Section 1983 claims against an individual defendant and a municipal defendant. The City moves for partial summary judgment as to plaintiff's Section 1983 claims on the grounds that: (1) plaintiff cannot show that her constitutional rights were violated; and (2) even if plaintiff could demonstrate a constitutional violation, plaintiff cannot show that a policy, practice, or custom was the moving force behind the violation. (See City's Memo. of P. & A. In Supp. of Mot. for Summ. Adjudication ("City's Memo.") at 4, 8.) Piercy joins in the City's first argument. Because of the analytical overlap, the court addresses the claims asserted against the City and Piercy together insofar as the allegations of constitutional violations are concerned. The City's potential municipal liability under Monell is addressed separately.

A. A Genuine Dispute of Material Fact Exists as to Whether Piercy's Pat-Down Search of Plaintiff Was Reasonable Under the Fourth Amendment

The City first contends that Piercy's pat-down search of plaintiff was objectively reasonable as a matter of law and that, therefore, plaintiff suffered no violation of her Fourth Amendment rights to be free from unreasonable searches or seizures. (See City's Memo. at 4-5.) Plaintiff opposes the City's argument regarding the reasonableness of the pat-down search itself, but additionally suggests that Piercy had only a pretextual basis for stopping plaintiff's vehicle and had no legitimate basis to order plaintiff out of her vehicle. (See Pl.'s Opp'n at 8.) Before addressing the manner of the search itself, the court first addresses plaintiff's arguments regarding Piercy's stop of plaintiff's vehicle and Piercy's removal of plaintiff from the vehicle. It also addresses whether Piercy violated plaintiff's constitutional rights by conducting a pat-down search of plaintiff at all, irrespective of the manner of the search.

1. Piercy Lawfully Stopped Plaintiff's Vehicle Plaintiff first thinly suggests that Piercy violated plaintiff's constitutional rights by stopping her vehicle. Her written opposition states: "Murillo may or may not have stopped over the limit line. However, PIERCY stopped her as a pretense to conduct his illegal search of her person." (Pl.'s Opp'n at 8.) At the hearing, plaintiff's counsel argued that a genuine dispute of material fact exists as to whether the stopping of plaintiff's vehicle was constitutional, but conceded that Piercy believed that a traffic violation had occurred. Plaintiff's argument, which even concedes that plaintiff might have committed a traffic infraction, lacks merit.

"The Fourth Amendment prohibits 'unreasonable searches and seizures' by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest."*fn15 United States v. Willis, 431 F.3d 709, 714 (9th Cir. 2005) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)) (internal quotation marks omitted). Such an investigatory stop is justified where a law enforcement officer has a "reasonable suspicion" that criminal activity may be afoot. Arvizu, 534 U.S. at 273. "The 'touchstone of the Fourth Amendment is reasonableness.'" Willis, 431 F.3d at 714 (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)). "To constitute reasonable suspicion, the officer's belief that criminal activity is afoot must be supported by 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant th[e] intrusion.'" United States v. Drake, 543 F.3d 1080, 1088 (9th Cir. 2008) (modification in original) (quoting Terry, 392 U.S. at 21). In determining whether a reasonable suspicion exists, the court "must look at the 'totality of the circumstances' . . . to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing." Arvizu, 534 U.S. at 273; accord United States v. PalosMarquez, 591 F.3d 1272, 1274-75 (9th Cir. 2010) ("To determine whether a stop was supported by reasonable suspicion, we consider whether, in light of the totality of the circumstances, the officer had a particularized and objective basis for suspecting the particular person stopped of criminal activity" (citation and quotation marks omitted)), cert. denied, 131 S. Ct. 339 (2010). Although an officer's mere "hunch" is insufficient to justify a stop, the assessment of reasonable suspicion permits an officer to "draw on [his or her] own experience and specialized training to make inferences from and deductions about the cumulative information available to [him or her] that 'might well elude an untrained person.'" Arvizu, 534 U.S. at 273-74 (citation omitted). "A traffic violation alone is sufficient to establish reasonable suspicion." Choudry, 461 F.3d at 1100 (citing Whren v. United States, 517 U.S. 806, 810 (1996)).

Here, Officer Piercy articulated a reasonable suspicion that justified stopping plaintiff's vehicle as a matter of law. Piercy testified that he stopped plaintiff for passing over the limit line when she stopped at the stop sign and turned right, and plaintiff testified that this was the reason for the traffic stop provided to her by Piercy. (Piercy Depo. at 7:23-8:1; Murillo Depo. at 105:9-14, 244:15-22.) The video recording is consistent with Piercy's testimony. Accordingly, Piercy had probable cause to believe that plaintiff had committed a traffic violation, and Piercy reasonably stopped plaintiff's vehicle. See Whren, 517 U.S. at 810 ("As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred."); Choudry, 461 F.3d at 1100-01 (holding that a parking violation justified an investigatory stop); see also Willis, 431 F.3d at 715 ("Whren stands for the proposition that if the officers have probable cause to believe that a traffic violation occurred, the officers may conduct a traffic stop even if the stop serves some other purpose."). The City and Piercy are entitled to judgment as a matter of law to the extent plaintiff claims that the stopping of her vehicle, itself, was unconstitutional.

2. Piercy Lawfully Ordered Plaintiff Out of Her Vehicle Next, plaintiff contends that Piercy impermissibly ordered plaintiff out of her vehicle. (Pl.'s Opp'n at 8 ("There was no basis for having MURILLO exit her vehicle.").) At the hearing, the court asked plaintiff's counsel what legal authority supported plaintiff's contention that Piercy violated her constitutional rights by ordering her out of the vehicle. Plaintiff offered no authority; plaintiff's written opposition also offered no such authority.

Plaintiff's argument fails as a matter of law. The United States Supreme Court has plainly held that a law enforcement officer may "as a matter of course" order the driver and passengers of a lawfully stopped car to exit the vehicle. Maryland v. Wilson, 519 U.S. 408, 410 (1997) (holding that a police officer may "as a matter of course" the passengers of a lawfully stopped car to exit the vehicle); Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977) ("We hold . . . that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures."); see also Arizona v. Johnson, 129 S. Ct. 781, 786 (2009) (discussing the holdings of Mimms and Wilson). Because Piercy lawfully stopped plaintiff's vehicle for a traffic violation, no Fourth Amendment violation occurred when Piercy ordered plaintiff out of her vehicle. The City and Piercy are entitled to partial summary judgment to the extent that plaintiff argues that Piercy violated plaintiff's constitutional rights when Piercy ordered plaintiff out of the vehicle.

3. A Genuine Dispute of Material Fact Exists Regarding Whether Piercy's Pat-Down Search of Plaintiff Was Supported By A Reasonable Suspicion that Plaintiff Was Or Might Be Armed and Dangerous

Although Piercy permissibly stopped plaintiff's vehicle and ordered plaintiff out of the vehicle as a matter of law, a far closer question is presented by plaintiff's contention that "[t]here was no basis to believe that MURILLO was an armed and or [sic] dangerous person as required by law to do a patdown search." (Pl.'s Opp'n at 8; see also id. at 9.) The court concludes that, at a minimum, a genuine dispute of material fact exists as to whether Piercy violated plaintiff's Fourth Amendment rights by conducting a pat-down search of plaintiff at all.

"To justify a patdown of the driver or a passenger during a traffic stop . . . , just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous."*fn16 Johnson, 129 S. Ct. at 784; see also United States v. Johnson, 581 F.3d 994, 999 (9th Cir. 2009) ("If an officer reasonably suspects the individual may be armed and dangerous, the officer may 'frisk' the person he has stopped to determine if the individual is carrying any weapons."); accord Ramirez v. City of Buena Park, 560 F.3d 1012, 1021 (9th Cir. 2009) ("Under the Fourth Amendment, a search for weapons is permissible 'for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual.'") (quoting Terry, 392 U.S. at 27). "This frisk is limited to a patdown of the exterior clothing." Johnson, 581 F.3d at 999.

To determine whether reasonable suspicion existed to support a pat-down search in the context of a lawful investigatory stop, the court considers the totality of the circumstances surrounding the stop. Id.; accord United States v. Burkett, 612 F.3d 1103, 1107 (9th Cir. 2010). The Ninth Circuit Court of Appeals has stated that "[a] wide variety of factors support a reasonable belief that an individual is armed and dangerous," including "an officer's observation of a visible bulge in an individual's clothing; sudden movements or repeated attempts to reach for an object not immediately visible; and the nature of the suspected crime. However, facts merely establishing that if an individual were armed he would be dangerous are insufficient if there was no reason to believe that the individual actually was armed." Ramirez, 560 F.3d at 1022 (citations omitted).

Here, Piercy lacked a reasonable suspicion that plaintiff was, or even might be, armed and dangerous. In its motion, the City supports Piercy's pat-down search with generalized concerns about "officer safety." (See City's Memo. at 4-5.) In part, the City relies on: (1) the general risks an officer faces during a traffic stop, especially a nighttime traffic stop; (2) disputed statistics regarding the number of assaults committed against sworn peace officers in Woodland in 2007 and 2008; and (3) two anecdotal murders of peace officers in Yolo and Sacramento Counties in 2006 and 2008, respectively, that are not substantiated by admissible evidence. (Id.) The City further argues:

When Piercy conducted the traffic stop of the Plaintiff he was working as a solo officer. The stop occurred after midnight in a dimly lit, commercial area. Given the legitimate concerns for officer safety, it was not unreasonable for Piercy to conduct a cursory pat down of Plaintiff for weapons after she exited the car, prior to commencing his Driving Under the Influence investigation.

(Id.)

Nothing in the City's argument suggests, let alone substantiates, that Piercy had a reasonable suspicion that plaintiff was, or even might be, armed and dangerous. The City only offers generalized concerns about officer safety, the time of night at which the traffic stop occurred, and the lighting in the area as reasons for Piercy's pat-down search of plaintiff. The Ninth Circuit Court of Appeals has rejected such attempts to justify pat-down searches or frisks on the basis of "a conclusory reference to officer safety." See Ramirez, 560 F.3d at 1022.

In Ramirez v. City of Buena Park, the Court of Appeals held that an officer lacked a reasonable suspicion that justified any pat-down search of a motorist for weapons. Id. There, a police officer, Officer Montez, noticed a convertible car parked outside of a drugstore just after 8:00 p.m., with the appellant, Ramirez, reclined in his seat and asleep behind the wheel. See id. at 1016. Officer Montez decided to investigate further because of his knowledge that "several grab-and-run type thefts" of alcohol had occurred at that location and that getaway vehicles had been used in those thefts. Id. The car's parking lights were on, and the keys were in the ignition.

Id. at 1016-17. Additionally, Officer Montez noticed that Ramirez was breathing rapidly, which, based on Officer Montez's specialized training, suggested that Ramirez might be under the influence. See id. Officer Montez subsequently ordered Ramirez out of his vehicle, conducted a pat-down search of Ramirez's outer clothing without Ramirez's consent, and arrested Ramirez for being under the influence of a controlled substance. See id. at 1018. Although the Court of Appeals held that Officer Montez was justified in detaining Ramirez, see id. at 1020-21, it rejected Officer Montez's justification for the pat-down search of Ramirez and held that the pat-down search violated the Fourth Amendment. Id. at 1022. In finding a constitutional violation, the Court of Appeals reasoned:

Montez's only justification for the pat-down search of Ramirez is a conclusory reference to "officer safety." Montez has not alleged any specific facts that would establish reasonable suspicion that Ramirez was armed and dangerous. On the contrary, Ramirez was cooperative. He complied with Montez's request that he exit his vehicle, and there is no evidence he did so in a furtive manner. There is nothing in the record to suggest Ramirez made any abrupt movements or that he attempted to reach for anything upon exiting his vehicle. He also cooperatively submitted to the search of his person, albeit without his consent. Montez testified that he tapped Ramirez's outer garments "to make sure" there were no bulges or weapons concealed, but does not allege that he observed a visible bulge or weapon on Ramirez. Unless an officer can point to specific facts that demonstrate reasonable suspicion that the individual is armed and dangerous, the Fourth Amendment tolerates no frisk.

Id. (citations omitted). The Court of Appeals further stated that "being 'testy' and suspected of illicit drug use does not support a finding that Ramirez had a weapon." Id.

Plaintiff's case is analogous to Ramirez, except that Piercy had even less of a basis to conduct a pat-down search of plaintiff than Officer Montez had to search Ramirez. The City argues that Piercy had a reasonable suspicion to conduct a pat-down search of plaintiff because of the time of night when the traffic stop occurred, the location of the stop, and conclusory references to officer safety. These justifications, alone, are insufficient to justify the pat-down search under Ramirez. Moreover, as in Ramirez, plaintiff was cooperative and responsive to Piercy's requests. She exited her vehicle without any furtive movements and cooperatively submitted to the search of her person, even though she provided no consent to the search and felt that she was being violated by Piercy. And unlike Ramirez, there is no suggestion that plaintiff was "testy" or suspected of drug use, neither of which would have, in any event, constituted a legitimate, reasonable suspicion that plaintiff was armed and dangerous. In short, Piercy had no basis to conduct a pat-down search of plaintiff, and the City has not persuasively articulated any such basis.

The fact that the City and Piercy have not articulated a reasonable suspicion in support of the pat-down search is not surprising in light of Piercy's deposition testimony, which reflects that Piercy routinely searched any person he ordered out of a vehicle. Piercy testified as follows:

Q. Every time -- was it your routine in January of '09 to do a weapon search every time you stopped somebody for suspected drunk driving?

A. If I pulled them out of the vehicle, yes.

Q. Okay. So man or woman, didn't matter, you would always search them; is that right?

A. Yes.

Q. And it didn't matter what kind of clothes they had on, tight clothes or baggy clothes, you would still search them; right?

A. Well, if they were wearing a dress, clearly I'm not going to search the bottom. But if it was fully clothed jeans or shirt or anything, then yes, I would.

(Piercy Depo. at 24:4-16.) Piercy further testified: Q. Does the cooperation of the driver during a suspected DUI stop make any difference in determining whether you're going to do a patdown search or not?

A. I'd say most of the time no.

Q. So the fact that the driver was not -- did not appear threatening or verbally confrontational or resistive, it makes no differences in whether you do a search; is that right?

A. Yes.

Q. If a driver is wearing baggy clothing, would that make you more likely to do a search on the driver?

A. No, as I just stated, I would do it anyway because usually my practice was that, if I pulled somebody out of the vehicle, I would search them. So whether they had baggy clothes on or form-fitting clothes on, I would still do it and conduct a search. (Piercy Depo. at 99:10-25.) Additionally, Piercy testified that while observing plaintiff as plaintiff walked from her vehicle to the sidewalk, Piercy did not observe any:

(1) suspicious behavior on plaintiff's part that tended to indicate that plaintiff was concealing a weapon;

(2) bulges in any plaintiff's clothing that appeared to be a weapon, although Piercy testified it was difficult to see at night even though his headlights were pointed at plaintiff; and

(3) movement of plaintiff's hands suggesting that plaintiff was reaching in her pockets or for a weapon or an object that could hurt him. (See Piercy Depo. at 111:1-112:20.)

In light of the facts stated above and the standard set forth in Ramirez, the court concludes that, at a minimum, a triable issue of material fact exists as to whether Piercy violated plaintiff's Fourth Amendment rights by conducting any pat-down search of plaintiff, regardless of the manner of the search. Accordingly, Piercy's motion for partial summary judgment is denied as to this claim. However, whether the City's motion ultimately succeeds depends on the resolution of whether the City's policy, practice, or custom was the moving force behind the violation. That issue is addressed below.

4. A Genuine Dispute of Material Fact Exists Regarding Whether The Manner In Which Piercy Searched Plaintiff Violated Plaintiff's Constitutional Rights

As stated above, a genuine dispute of material fact exists regarding whether Piercy violated plaintiff's Fourth Amendment rights by conducting a pat-down search at all. However, plaintiff also contends that the manner in which Piercy searched plaintiff violated plaintiff's Fourth Amendment rights. (Pl.'s Opp'n at 9-10.)

As noted above, a Terry "frisk is limited to a patdown of the exterior clothing." Johnson, 581 F.3d at 999. "Such a search . . . 'must be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.'" United States v. Hartz, 458 F.3d 1011, 1018 (9th Cir. 2006) (quotation marks omitted) (quoting Minnesota v. Dickerson, 508 U.S. 366, 373 (1993)). "If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry." Dickerson, 508 U.S. at 373.

Briefly stated, if Piercy had no lawful basis to conduct a pat-down search of plaintiff in the first place, then the manner in which Piercy searched plaintiff was necessarily unconstitutional. Because the undersigned concludes that a genuine dispute of material fact exists regarding whether Piercy had a proper basis to conduct a pat-down search, a genuine dispute of material fact also exists as to the manner of the search. Accordingly, Piercy's motion for partial summary judgment is denied.

However, whether the City is municipally liable for the manner of Piercy's pat-down search of plaintiff depends on whether a policy, practice, or custom of the City was the moving force behind this additional constitutional violation. That issue is addressed below. Before reaching the issue of the City's potential liability under Monell, the undersigned addresses the City's and Piercy's motions for partial summary judgment as to two additional, alleged constitutional injuries.

B. The City Is Entitled to Partial Summary Judgment to the Extent that Plaintiff Alleges that Piercy's Pat-Down Search of Plaintiff Constituted Excessive Force Under the Fourth Amendment The City contends that Piercy's pat-down search of plaintiff did not constitute

excessive force under the Fourth Amendment. (City's Memo. at 6-7.) As to Piercy, plaintiff's First Amended Complaint alleges that Piercy "unlawfully and wrongfully assaulted plaintiff in a sexual manner and applied physical force to her person in violation of the Fourth Amendment." (First Am. Compl. ¶ 10.) As to the City, plaintiff alleges that the City violated her constitutional rights by "failing to educate and train its police officers, including PIERCY, in the proper use of force against detainees and to avoid offensive contact during a pat down search by an officer of the opposite gender." (Id. ¶ 19.) Plaintiff's operative complaint arguably alleges a claim for excessive force, but it is not entirely clear.

"Allegations of excessive force are examined under the Fourth Amendment's prohibition on unreasonable seizures." Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010) (citing, inter alia, Graham v. Connor, 490 U.S. 386, 394 (1989)). All claims that law enforcement officers used excessive force in the course of an arrest, investigatory stop, or other seizure are analyzed exclusively under the Fourth Amendment's "reasonableness" standard. See Davis v. City of Las Vegas, 478 F.3d 1048, 1054 (9th Cir. 2007); accord Smith v. City of Hemet, 394 F. 3d 689, 700 (9th Cir. 2005) (en banc), cert. denied, 545 U.S. 1128 (2005). "That analysis requires balancing the 'nature and quality of the intrusion' on a person's liberty with the 'countervailing governmental interests at stake' to determine whether the use of force was objectively reasonable under the circumstances." Smith, 394 F.3d at 701 (citing Graham, 490 U.S. at 396).

Plaintiff's written opposition to the City's motion does not oppose or even address the City's argument that no genuine dispute of material fact exists insofar as plaintiff's potential excessive force claim is concerned and that, as a result, the City is entitled to judgment as a matter of law on that claim. In light of plaintiff's failure to oppose the City's motion in this respect or offer evidence in support of such a claim, the court grants partial summary judgment to the City to the extent that plaintiff alleges that Piercy's pat-down search constituted excessive force in violation of plaintiff's Fourth Amendment rights.

C. The City Is Entitled to Partial Summary Judgment to the Extent that Plaintiff Alleges A Violation of Her Substantive Due Process Rights Under the Fourteenth Amendment The City also moves for partial summary judgment to the extent that plaintiff

alleges a violation of her substantive due process rights provided by the Fourteenth Amendment to the United States Constitution. (See City's Memo. at 7-8.) Plaintiff's First Amended Complaint alleges that Piercy's pat-down search of plaintiff violated plaintiff's rights provided by the Fourth and Fourteenth Amendments. (See First Am. Compl. ¶¶ 15, 22.) She specifically alleges that the City's "custom, practice or policy of not educating and training its police officers as alleged shocks the conscience and violates plaintiff's right to be free from unreasonable search and seizure and to have due process as guaranteed by the Fourth and applied to the states under the Fourteenth Amendment to the United States Constitution." (Id. ¶ 22.)

The City contends that Piercy's "brief touching of Plaintiff's buttocks and legs during the course of a pat down is not a conscience shocking 'sexual assault' under the Fourteenth Amendment." (City's Memo. at 7.) The Ninth Circuit Court of Appeals has held in the context of a Section 1983 claim against a law enforcement officer that "only official conduct that 'shocks the conscience' is cognizable as a due process violation." Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) (citing County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)); accord A.D. v. Markgraf, 636 F.3d 555, 560 (9th Cir. 2011). Plaintiff's written opposition to the City's motion does not oppose or address the City's argument that no genuine dispute of material fact exists insofar as plaintiff's substantive due process claim is concerned and that, as a result, the City is entitled to judgment as a matter of law on that claim. Accordingly, the court grants partial summary judgment to the City on plaintiff's substantive due process claim.

D. A Genuine Dispute of Material Fact Exists Regarding the City's Liability Under Monell

The City argues that even if a genuine dispute of material fact exists as to whether Piercy's pat-down search violated plaintiff's constitutional rights, plaintiff's Section 1983 claim against the City fails as a matter of law because plaintiff cannot show that a policy, practice, or custom of the City caused any such constitutional violation. (City's Memo. at 8.) Adopting an unfocused, shotgun approach, plaintiff counters by alleging a slough of proposed policies, acts of omission, and assertions of inadequate training. (See Pl.'s Opp'n at 10-12.) She further argues that the City is liable because the City ratified, or acquiesced in, Piercy's conduct. (Id. at 12-13.)

Although the court concludes that all of the plaintiff's arguments are unpersuasive and grants partial summary judgment to the City in regards to plaintiff's claim that the manner in which Piercy searched plaintiff was unconstitutional, summary judgment is nonetheless improper as to plaintiff's contention that Piercy violated plaintiff's constitutional rights by conducting a pat-down search at all. In short, a genuine dispute of material fact exists regarding the nature of the City's policies, practices, and customs dictating when an officer of the Woodland Police Department is permitted to conduct a pat-down search.

1. The City's and/or the Woodland Police Department's Policies, Practices, Customs, and Training

Between plaintiff's First Amended Complaint and opposition to the motions for partial summary judgment, plaintiff asserts that several policies, practices, or customs caused Piercy's unconstitutional pat-down search of plaintiff. In the First Amended Complaint, plaintiff alleges that the City is liable based on policies of: (1) "failing to educate and train [the City's] police officers, including PIERCY, in the proper use of force against detainees and to avoid offensive contact during a pat down search by an officer of the opposite gender"; and (2) "failing to budget enough funds to provide [the City's] police officers with training and education in the proper use of force against detainees and to avoid offensive contact during a pat down search by an officer of the opposite gender." (First Am. Compl. ¶¶ 19, 21.) Plaintiff's opposition brief alleges the following, additional bases for the City's municipal liability: (3) the City's generalized policy of "tolerating and condoning the pat-down search of persons on routine traffic stops," and not only when consistent with the law (Pl.'s Opp'n at 10-11); (4) inadequate training manifested through a lack of "written guidelines" requiring the City's officers to use the back and blade of the hand, rather than the palm, when searching persons of the opposite sex (id. at 11); (5) inadequate training in the form of a lack of a policy against officers listening to civilian radio, which allegedly led Piercy to feel "less professional and more like he was trolling for women to stop and search" (id. at 11-12); and (6) the City's lack of a "policy in place to monitor and review the video tapes of stops performed by new officers who were still on probation," which "hindered the training process" (id. at 12).

The court summarily concludes that no genuine dispute of material fact exists as to whether an alleged policy of failing to budget funds for training and education in the proper use of force against detainees exists and led to the constitutional violations here. Plaintiff identifies no express policy of under-funding training programs, and similarly points to no evidence that remotely suggests that the City's purported failure to budget funds to support training programs led to Piercy's unconstitutional conduct.

The court further concludes that the City is entitled to partial summary judgment to the extent that plaintiff contends that inadequate training led to the constitutional violations here. Specifically, plaintiff has not created a genuine dispute of material fact in regards to her allegations that the Woodland Police Department had an inadequate training program due to the lack of: (a) "written guidelines" requiring the City's officers to use the back and blade of the hand, rather than the palm, when searching persons of the opposite sex; (b) a policy against officers listening to civilian radio; and (c) a "policy in place to monitor and review the video tapes of stops performed by new officers who were still on probation." (See Pl.'s Opp'n at 11-12.)

"[U]nder certain circumstances, a local government may be held liable under § 1983 for acts of 'omission,' when such omissions amount to the local government's own official policy." Clouthier, 591 F.3d at 1249. "A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011). "The 'inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.'" Price, 513 F.3d at 973 (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)); see also Clouthier, 591 F.3d at 1249 ("To impose liability on a local government for failure to adequately train its employees, the government's omission must amount to 'deliberate indifference' to a constitutional right."). "This standard is met when 'the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.'" Clouthier, 591 F.3d at 1249 (citing Harris, 489 U.S. at 390). "Under Harris and progeny, one must demonstrate a 'conscious' or 'deliberate' choice on the part of a municipality in order to prevail on a failure to train claim." Id. (citing Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007)).

Plaintiff's contention that the City's or the Woodland Police Department's training on the manner of conducting a Terry pat-down search was inadequate fails as a matter of law. Plaintiff's objection to the manner in which Piercy searched plaintiff is that Piercy used the palm of his hand to search plaintiff rather than the back and blade of his hand. Here, the City offered evidence that during its orientation and field training programs, officers are trained on "how to conduct pat down searches." (Cucchi Decl. ¶ 4.) Moreover, the City offered evidence that "Woodland Police Department officers are trained to use the back and blade of the hand when searching females' breast and buttock areas." (Id. ¶ 5.) Specifically, the City's evidence reflects that "when an officer searches the area under the breasts, the blade section of the hand (fingers up, thumb against the body) sweeps along the bra line and the back of the hand is used on the buttocks." (Id.) The City submitted that these facts regarding the Woodland Police Department's training are undisputed, and plaintiff failed to identify evidence that creates a genuine dispute of material fact regarding the City's training. (Compare City's SUF ¶¶ 7-8, with Pl.'s SDF ¶¶ 7-8 (stating only that "[n]o written manual was ever produced on this issue").) Plaintiff's contention that the Woodland Police Department lacked a written policy in this regard does not create a genuine dispute of material fact; the City identified undisputed evidence of its training policy, and plaintiff failed to rebut that evidence with any of her own. At bottom, plaintiff relies only on Piercy's individualized conduct to substantiate her claim of inadequate training and identifies no instances where other officers conducted pat-down searches of females in derogation of the department's training such that the need for more or different training would have been obvious to the Woodland Police Department or the City. See Connick, 131 S. Ct. at 1360 ("A pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train."). Accordingly, the City is entitled to partial summary judgment to the extent that plaintiff claims that the City is liable under Monell for the unconstitutional manner in which Piercy conducted the pat-down search of plaintiff.

The court also rejects plaintiff's claim of inadequate training premised on the City's or the Woodland Police Department's lack of a policy against officers listening to civilian radio. Although plaintiff points to deposition testimony substantiating a department practice that permits officers to listen to civilian radio while on patrol (see Cucchi Depo. at 46:22-25--47:1-7, 49:4-7), she points to no evidence that this policy was the moving force behind the unconstitutional search of plaintiff. Moreover, under the stringent standards governing claims of inadequate training, plaintiff has identified no evidence that the need for different training vis-avis the use of civilian radio by patrol officers was so obvious, and the purported inadequacy was so likely to result in the violation of constitutional rights, that the lack of a policy against listening to civilian radio amounted to deliberate indifference to the need for different training.

Additionally, the City is also entitled to partial summary judgment as to plaintiff's claim that inadequate training resulted from a lack of a policy requiring the review of video recordings of traffic stops and searches conducted by probationary officers. Again, plaintiff relies only on Piercy's conduct to substantiate this aspect of her claim of inadequate training, and identifies no evidence that substantiates that the failure to have a policy addressed to reviewing video recordings was so obvious, and the purported inadequacy was so likely to result in the violation of constitutional rights, that the lack of a video review policy amounted to deliberate indifference.

The court concludes, however, that a genuine dispute of material fact exists in regards to whether the City or the Woodland Police Department had a policy, practice, or custom that authorized patrol officers to conduct a pat-down search of a motorist seized during a traffic stop without a reasonable suspicion that the motorist is or might be armed and dangerous. This conclusion impacts the City's liability in that Piercy searched plaintiff without a constitutional basis to do so, but it does not create liability for the City insofar as the manner of the search is concerned because, as discussed above, it is undisputed that the Woodland Police Department had a policy of training its officers how to properly conduct a pat-down search.

Plaintiff's opposition brief asserts that the Woodland Police Department had a purported policy, practice, or custom of "tolerating and condoning the pat-down search of persons on routine traffic stops," and not only when consistent with Terry. (See Pl.'s Opp'n at 10-11.) As an initial matter, the court rejects plaintiff's evidentiary basis for this argument. Plaintiff only relies on the conclusory declaration of her expert, David A. Dusenbery, which states:

The Woodland Police Department tolerated and condoned the pat-down search of persons on routine traffic stops. That is a very poor and illegal practice. The department should have required officers to do pat-down searches only when consistent with the law.

(Dusenbery Decl. at 3.) Dusenbery offers no factual basis or explanation for his conclusion and, accordingly, his declaration does not create a genuine dispute of material fact that precludes the grant of partial summary judgment. See Clouthier, 591 F.3d at 1252; Soremekun, 509 F.3d at 984. Indeed, Dusenbery's expert declaration plays no part in the court's determination.

However, and in a somewhat peculiar twist, the City's own evidence and statement of undisputed facts creates a genuine dispute of material fact here. Specifically, and as discussed at length during the hearing, the City proposed the following undisputed fact: "For the safety of the Officer, the decision to do a pat down search during a traffic stop is at their discretion."*fn17 (City's SUF ¶ 12.) As the basis for this fact, the City cites Lieutenant Cucchi's declaration, which contains a nearly identical statement: "For the safety of the officer, the decision to do a pat down search during a traffic stop is at their discretion." (Cucchi Decl. ¶ 9.) The court's concern is that a reasonable jury could conclude on the basis of this fact that the Woodland Police Department has or had an official policy, practice, or custom of permitting, condoning, or instructing its officers to conduct Terry pat-down searches of motorists during routine traffic stops, regardless of the legal requirement from Terry and its progeny that an officer have a reasonable suspicion that the individual is armed and dangerous in order to conduct such a pat-down search. Lieutenant Cucchi's statement indicates that an officer may, in his or her "discretion," conduct a pat-down search simply when he or she is concerned about officer safety. As discussed at length above, this is not the proper legal standard; general concerns about "officer safety" alone do not support a pat-down search under Terry. Moreover, Lieutenant Cucchi's declaration and deposition testimony do not clarify the meaning, contours, or boundaries the phrases "[f]or the safety of the officer" and "at their discretion" provided in his declaration. Similarly, the deposition testimony of Lieutenant Wilts and retired Chief Sullivan do not clarify Lieutenant Cucchi's statements or precisely state what the Woodland Police Department's policies, practices, or customs were in regards to when it was appropriate for an officer to conduct a Terry pat-down search. Accordingly, the undersigned denies the City's motion for summary judgment to the extent that the City's Monell liability is premised on Piercy's pat-down search of plaintiff without a reasonable suspicion that plaintiff was armed and dangerous.

At the hearing, the City argued that it is nonetheless entitled to partial summary judgment because, in its view, plaintiff's First Amended Complaint does not allege that the City or the Woodland Police Department had a policy, practice, or custom of permitting officers to conduct pat-down searches of motorists during routine traffic stops without a reasonable suspicion that the motorist was armed and dangerous. The City contends that, as a result, it was unaware of plaintiff's claim in this regard when it prepared its motion for partial summary judgment. Without a doubt, plaintiff's First Amended Complaint is hardly a model of clarity. However, the court concludes that the allegations in the First Amended Complaint are sufficient, even if only barely, to have put the City on notice of plaintiff's theory of Monell liability. The First Amended Complaint alleges that the City is liable for "failing to educate and train its police officers, including PIERCY, in the proper use of force against detainees and to avoid offensive contact during a pat down search by an officer of the opposite gender." (First Am. Compl. ¶ 19.) Additionally, even if plaintiff's First Amended Complaint is ambiguous, plaintiff's opposition brief put the City on notice of plaintiff's theory of Monell liability as it pertains to when officers may conduct pat-down searches. It states:

The constitutional deprivation resulting from actions taken pursuant to government policy or custom in this case relate to The [sic] Woodland Police Department tolerating and condoning the pat-down search of persons on routine traffic stops. . . . The department should have required officers to do pat-down searches only when consistent with the law . . . . WOODLAND's municipal liability is based on a custom and or policy which violated Terry. (Pl.'s Opp'n at 10-11.) Despite this language, the City raised no objection to this theory of Monell liability in its reply brief. Furthermore, the City framed the question of when an officer may conduct a Terry pat-down search as a material fact in its statement of undisputed facts. (See City's SUF ¶ 12.) In any event, as plaintiff's counsel argued at the hearing, plaintiff would very likely be permitted to further amend her pleading to conform to the evidence presented on the motion for partial summary judgment. See, e.g., Grisham v. Philip Morris, Inc., 670 F. Supp. 2d 1014, 1022-23 (C.D. Cal. 2009) (constructively amending complaint based on evidence adduced in the context of a motion for summary judgment); see also Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994) ("An addition of new issues during the pendency of a summary judgment motion can be treated as a motion for leave to amend the complaint."), cert. denied, 516 U.S. 810 (1995). Accordingly, the court rejects the City's argument premised on the adequacy of notice provided by the First Amended Complaint.

During the hearing, the court also provided the City's counsel with an opportunity to review the record during a recess and provide citations to evidence in the record, including the lodged deposition testimony, that clarifies Lieutenant Cucchi's statement of the Woodland Police Department's policies, practices, or customs regarding when an officer may conduct pat-down searches during a routine traffic stop. The City's counsel cited to several pieces of evidence, which are addressed in turn below.

First, the City notes that Piercy received training on pat-down searches at the Butte College Police Academy, consisting of the basic Peace Officer Standards and Training, which would have been reinforced by Piercy's training with the Woodland Police Department. However, the court does not have before it evidence detailing the training provided to Piercy at the Butte College Police Academy. It is unclear what Piercy's precise academy training was and, therefore, it is unclear what was purportedly enforced by the Woodland Police Department's training. Furthermore, the City's counsel candidly stated at the hearing there is no specific evidence before the court regarding Piercy's academy training and that she did not believe that Piercy testified during his deposition about his academy training in regards to when it is appropriate to conduct a Terry pat-down search. Accordingly, this line of argument does not resolve the court's concerns about granting partial summary judgment.

Second, the City relies on the deposition testimony of Lieutenant Cucchi describing his concerns that Piercy's searches resembled searches incident to arrest rather than Terry pat-down searches. Specifically, the City cited the following testimony:

A. We're only looking for weapons from a patdown search and we have to have some good reasonable facts behind why we're going to search an area or some sort of suspicion that there would be a weapon there, and I never really felt that in some of these. And to finish answering your question, search incident to an arrest we can search everything because they're getting in the back of our patrol car and we're got to take them to jail, and that's what kind of struck me odd with his -- with his searches.

Q. Did you feel it was odd that he was doing searches in the first place on these traffic stops?

A. No, I didn't think it was odd that he was doing searches. We want our officers to be safe foremost. It's just the ones he -- the ones -- when he chose to search I guess would probably be -- or how detailed of a search he did would be what my concern was.

(Cucchi Depo. at 34:3-19.) Lieutenant Cucchi's testimony clarifies little about the Woodland Police Department's policies regarding when a pat-down search is permitted. Although Lieutenant Cucchi's testimony describes his criticisms of Piercy's searches and alludes to the Terry standard, it does not clearly address the Woodland Police Department's actual policies, practices, or customs. Moreover, Lieutenant Cucchi's testimony is in some respects consistent with his declaration in that he testified that it was not odd that Piercy was conducting searches in the first place because "we want our officers to be safe foremost." Thus, it remains entirely possible that the Woodland Police Department instructed its officers to place general concerns about officer safety ahead of the applicable constitutional standards.

Third, the City relies on a portion of an internal Woodland Police Department memorandum filed by plaintiff under seal in this case, which is stamped CITY00739-CITY00741 and was prepared by Sergeant Heath Parsons. This memorandum concerns Sergeant Parsons's inquiry about, and discussion with, another female motorist who Piercy had searched and made uncomfortable; that search occurred during the same shift when Piercy searched plaintiff. The City cites to a portion of the memorandum in which Sergeant Parsons discusses what he told the second motorist about when officers conduct pat-down searches:

I explained to [the motorist] that a pat search of a person is not uncommon when an officer is going to be in close contact with a person (during a field sobriety test for example) and there is reason to believe a weapon may be involved. In this case, the search was likely performed due to the possibility of intoxication, circumstances of the stop, and her coat covering her waistline. . . . I explained that as long as he had a good reason to do the search and did it using the proper techniques then there would be no problem with his actions.

Sergeant Parsons's memorandum further indicates that Piercy told Sergeant Parsons that Piercy "often pat searches individuals prior to field sobriety tests when he can't visually clear a person for weapons." However, similar to the other evidence cited by the City, this memorandum does not clarify what the department's policies, practices, and customs are or were in regards to when a part-down search is appropriate such that partial summary judgment would be appropriate. Although it recites one officer's statement of when a pat-down search is "not uncommon," it does not make sufficiently certain the Woodland Police department's policies, practices, and customs.

Fourth, the City cites to another portion of Lieutenant Cucchi's deposition, where Lieutenant Cucchi testified regarding whether it would be appropriate to conduct a pat-down search of a woman wearing tight jeans. He testified:

THE WITNESS: Yeah, kind of what I was getting at is the type of clothing that the individual is wearing can determine whether or not you search that area for weapons or not.

Q. MR. JANOFF: And if it's tight jeans, how does that make your decision? . . .

A. I was just going to say when I used to train as a training officer I would always tell my rooks, you know, there is no reason to search something that is so obvious there's nothing going to be there, other than the real baggie sweatshirts and jackets or bulge. That's what we want to make sure to look at.

(Cucchi Depo. at 40:1-16.) As with the portion of Lieutenant Cucchi's testimony discussed above, this testimony does not clarify Lieutenant Cucchi's declaration insofar as the Woodland Police Department's policies, practices, or customs are concerned. It simply recounts how Lieutenant Cucchi trained his trainees when he was a training officer in regards to what types of clothing to search during a pat-down. It does not clarify the policies, practices, or customs regarding when to conduct a Terry pat-down at all.

Fifth, the City cites to a portion of a "Incident Supplement Report" prepared by Detective Mat Jameson, which was filed under seal and is stamped CITY00661. The City relies on a statement in the report wherein Detective Parsons recounts Piercy's statement to him. According to the report, Piercy stated that "he would conduct searches of persons when he felt they could be concealing weapons due to the layers of clothing worn or other factors." However, this statement is merely Piercy's recounting of when he would conduct pat-down searches. Again, it does not clarify the Woodland Police Department's policies, practices, and customs in place regarding when a Terry pat-down search is appropriate. Moreover, Piercy's statement to Detective Jameson is flatly contradicted by his deposition testimony regarding his routine pat-down searches of motorists that is quoted above.

Even considering the evidence cited by the City as a whole, the court cannot conclude that there is an absence of a genuine dispute of material fact regarding the City's or the Woodland Police Department's policies, practices, or customs dictating when a Terry pat-down search is appropriate. Accordingly, as noted above, the court denies the City's motion for partial summary judgment in part.

2. Ratification or Acquiescence By the City Although not raised in the First Amended Complaint, plaintiff also contends in her opposition brief that the Woodland Police Department ratified Piercy's conduct or acquiesced in that conduct by promoting Piercy out of field training and advancing Piercy to patrolman status. (Pl.'s Opp'n at 12-13.) Plaintiff's argument fails as a matter of law.

A local government may be held liable under Section 1983 when an official with final policy-making authority "ratified a subordinate's unconstitutional decision or action and the basis for it." See Clouthier, 591 F.3d at 1250 (citation and quotation marks omitted). "There must, however, be evidence of a conscious, affirmative choice on the part of the authorized policymaker." Id. (citation and quotation marks omitted).

Plaintiff relies on evidence filed under seal that reflects that Piercy was disrespectful during field training. For example, this evidence indicates that Piercy generally questioned some of the training methods employed by the department, and also used expletives and other derogatory language when referring to senior officers. However, plaintiff does not explain how Piercy's promotion to patrolmen in the face of such relative insubordination constitutes a conscious, affirmative choice by a policymaker to ratify or acquiescence in Piercy's unconstitutional search of plaintiff.

Plaintiff also alleges ratification of, or acquiescence in, Piercy's conduct in that video recordings of traffic stops taken shortly before February 1, 2009, show illegal or inappropriate conduct, but that no action against Piercy was taken until after the stop involving plaintiff. Again, however, plaintiff points to no evidence that an official with policy-making authority at the Woodland Police Department or the City made a conscious, affirmative choice to ratify Piercy's conduct. Moreover, the department took action in this case shortly after all of the incidents occurred. It investigated Piercy's prior traffic stops and ultimately terminated Piercy in June 2009, just months after the stop involving plaintiff.

Plaintiff's arguments premised on ratification or acquiescence plainly lack merit. Accordingly, the City is entitled to judgment as a matter of law to the extent that plaintiff's Monell claim is based on the City's or the Woodland Police Department's ratification of, or acquiescence in, Piercy's unconstitutional conduct.

IV. CONCLUSION

For the reasons stated above, IT IS HEREBY ORDERED that:

1. Defendant City of Woodland's Motion for Summary Adjudication (Dkt. No. 52) is granted in part and denied in part.

2. Defendant Ryan Piercy's motion for partial summary judgment, by way of partial joinder in the City's Motion for Summary Adjudication (Dkt. No. 62), is granted in part and denied in part.

IT IS SO ORDERED.


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