United States District Court, S.D. California
ORDER: (1) GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS; (DOC. NO. 45) (2) GRANTING
DEFENDANTS' UNOPPOSED MOTION TO FILE DOCUMENTS UNDER
SEAL; AND (DOC. NO. 46) (3) GRANTING DEFENDANT CITY OF SAN
DIEGO'S REQUEST TO BE DISMISSED WITH PREJUDICE (DOC. NO.
Anthony J. Battaglia United States District Judge
before the Court are several motions brought by Defendants
City of San Diego, Officer C. Bernard, and Officer Crawford.
(Doc. Nos. 45, 46, 51.) Pursuant to Local Rule 7.1.d.1, the
Court found these motions suitable for determination on the
papers. Accordingly, the hearing date set for March 2, 2017,
was vacated. With the issuance of this order, the Court
GRANTS IN PART AND DENIES IN PART Defendants Bernard and
Crawford's motion to dismiss, (Doc. No. 45), GRANTS
Defendants Bernard and Crawford's unopposed motion to
file documents under seal, (Doc. No. 46), and GRANTS
Defendant City of San Diego's motion to request to be
DISMISSED from this matter WITH PREJUDICE. (Doc. No. 51.)
FACTS ALLEGED IN THE FAC 
Mark Covert (“Plaintiff”) is a fifty-seven year
old retired Navy Seal. (Doc. No. 41 ¶ 8.) Due to a
training accident while in the Navy, Plaintiff suffers from
severe depression, and Post Traumatic Stress Disorder
(“PTSD”). (Id.) Plaintiff also suffers
from skin cancer and herniated disks in his back.
(Id.) On information and belief, Plaintiff alleges
that Defendant Christopher Bernard and Defendant Brett
Crawford (collectively referred to as
“Defendants”) are employed by the city of San
Diego, and in doing the acts alleged, acted within the course
and scope of their employment. (Id. ¶¶
March 1, 2015, Plaintiff went to the Veterans Affairs
Hospital (“V.A. Hospital”) in La Jolla,
California, because he was feeling depressed. (Id.
¶ 10.) Plaintiff was then treated and sent home.
(Id.) The next day, Plaintiff went back to the V.A.
Hospital for a scheduled treatment for his skin cancer.
(Id. ¶ 11.) Due to the length of time and pain
involved in the procedure, Plaintiff asked to reschedule the
appointment. (Id.) Plaintiff then returned home.
after Plaintiff left, Dawn Miller at the V.A. Hospital
contacted the police and requested a welfare check on
Plaintiff. (Id. ¶ 12.) On the same day,
Defendants arrived at Plaintiff's home. (Id.
¶ 13.) As Plaintiff was napping at the time, one of
Plaintiff's daughters let Defendants in. (Id.)
entering, Defendants and Plaintiff conversed about
Plaintiff's health and family life. (Id. ¶
15.) During the conversation, Plaintiff alleges that he was
generally calm and polite with Defendants, though he did
become agitated at times. (Id.) At the end of their
discussion, Defendants told Plaintiff that they wanted to
take him to be examined by a doctor. (Id. ¶
16.) Plaintiff agreed to go with Defendants, however, before
leaving he wished to call someone to pick up his son at
school. (Id. ¶ 17.) Defendants however refused
to let Plaintiff call anyone and said that they would send a
police car to pick up his son. (Id.) Not wanting his
son to be scared or embarrassed by a police car picking him
up, Plaintiff told Defendants that if he would not be allowed
to call someone about his son that he would not go with them.
contends that Defendants then grabbed him and threw him on
the floor, causing him to hit his head on the edge of a
coffee table as he fell. (Id. ¶ 18.) This
resulted in a gash to Plaintiff's head. (Id.)
Plaintiff also alleges that while he was on the floor, one of
the Defendants put his foot or knee on Plaintiff's back
where he had recently had an epidural treatment.
(Id. ¶ 19.) Though Plaintiff cried out in pain,
the Defendant did not lift his foot or knee from
Plaintiff's back. (Id.) During this altercation,
Plaintiff also alleges that Defendant Bernard tased Plaintiff
for thirteen continuous seconds without releasing the
trigger, when a standard tase cycle lasts only up to five
seconds. (Id. ¶ 22.)
confrontation described above was not caught on
Defendants' body worn camera videos (“BWCV”)
as Plaintiff argues that Defendants intentionally turned off
their body worn cameras. (Id. ¶ 20.) Thus, it
was while the BWCV were turned off that Plaintiff contends
the alleged excessive force occurred. (Id.)
Plaintiff was subdued, additional officers arrived on the
scene. (Id. ¶ 23.) Paramedics then took
Plaintiff out of his home on a gurney with four-point
restrains on. (Id.) At the same time, a senior
officer on the scene reminded Defendants that their BWCV
should be turned on. (Id.)
was taken to University of California San Diego Medical
Center, where he was held until around 11:00 PM.
(Id. ¶ 24.) While at the hospital, doctors
ordered X-Rays of Plaintiff's torso and found that he had
two broken ribs. (Id.) Plaintiff was then released
later that night. (Id. ¶ 25.) On March 4, 2015,
Plaintiff went to the emergency room at the V.A. Hospital and
obtained another X-Ray that confirmed that Plaintiff's
pain was from two broken ribs. (Id. ¶ 26.)
instituted this action on September 20, 2015. (Doc. No. 1.)
The Court then granted and denied several joint motions to
extend discovery deadlines, and motions to continue the
mandatory settlement conference. (See Doc. Nos. 14,
17, 18, 20.) On October 26, 2016, the City of San Diego and
Defendants filed a motion for judgment on the pleadings,
(Doc. No. 21), which was denied as moot as the Court granted
Plaintiff's motion for leave to amend. (Doc. No. 36.) On
December 20, 2016, Plaintiff filed his FAC. (Doc. No. 41.) On
January 3, 2017, Defendants filed the present motions, their
motion to dismiss and motion to file documents under seal.
(Doc. Nos. 45, 46.) On the same day, Defendant City of San
Diego filed a motion to request to be dismissed from the
present lawsuit with prejudice. (Doc. No. 51.)
Motion to Dismiss
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a plaintiff's complaint and allows a court
to dismiss a complaint upon a finding that the plaintiff has
failed to state a claim upon which relief may be granted.
See Navarro v. Block, 250 F.3d 729, 732 (9th Cir.
2001). “[A] court may dismiss a complaint as a matter
of law for (1) lack of a cognizable legal theory or (2)
insufficient facts under a cognizable legal claim.”
SmileCare Dental Grp. v. Delta Dental Plan of Cal.
Inc., 88 F.3d 780, 783 (9th Cir. 1996) (citations
omitted). However, a complaint will survive a motion to
dismiss if it contains “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making
this determination, a court reviews the contents of the
complaint, accepting all factual allegations as true, and
drawing all reasonable inferences in favor of the nonmoving
party. Cedars-Sinai Med. Ctr. v. Nat'l League of
Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007).
this deference, the reviewing court need not accept
“legal conclusions” as true. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). It is also improper for
a court to assume “the [plaintiff] can prove facts that
[he or she] has not alleged.” Assoc. Gen.
Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983). However,
“[w]hen there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
Motions to Seal
have historically recognized a “general right to
inspect and copy public records and documents, including
judicial records and documents.” Nixon v. Warner
Commc'ns, Inc., 435 U.S. 589, 597 & n.7 (1978).
“Unless a particular court record is one
‘traditionally kept secret, ' a ‘strong
presumption in favor of access' is the starting
point.” Kamakana v. City & Cnty. of
Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting
Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d
1122, 1135 (9th Cir. 2003)). In order to overcome this strong
presumption, a party seeking to seal a judicial record must
articulate justifications for sealing that outweigh the
public policies favoring disclosure. See Kamakana,
447 F.3d at 1178-79. In turn, the court must
“conscientiously balance the competing interests of
the public and the party who seeks to keep certain judicial
records secret.” Id. at 1179 (quoting
Foltz, 331 F.3d at 1135) (internal quotation marks
considering these interests, if the court decides to seal
certain judicial records, it must ‘base its decision on
a compelling reason and articulate the factual basis for its
ruling, without relying on hypothesis or
conjecture.'” Id. (quoting Hagestad v.
Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). However,
where the material is, at most, “tangentially
related” to the merits of the case, the request to seal
may be granted on a showing of “good cause.”
Ctr. For Auto Safety v. Chrysler Grp., LLC., 809
F.3d 1092, 1097 (9th Cir. 2016).
Defendant City of San Diego's Motion to be Dismissed
interests of judicial economy, the Court will turn to
Defendant City of San Diego's assertion that it should be
dismissed from this matter with prejudice as Plaintiff's
FAC has removed all claims and causes of action against it.
(Doc. No. 51-1 at 2-3.) Plaintiff does not oppose the