United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS RE: DKT. NO. 24
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE.
January 16, 2018, the City of San Leandro (“the
City”) and Officer Dennis Mally (collectively,
“Defendants”) moved to dismiss the following
causes of action from Plaintiff Ron Franklin's second
amended complaint: Plaintiff's second cause of action for
excessive force in violation of the Fourth and Fourteenth
Amendments; Plaintiff's third cause of action for
“deliberate indifference, customs, policies or
practices” that resulted in a violation of
Plaintiff's constitutional rights, see Monell v.
Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658,
694 (1978) (“Monell claim”); and
Plaintiff's fourth cause of action for malicious
prosecution under 42 U.S.C. § 1983. Dkt. No. 24
(“Mot.”) at 2; see also Dkt. No. 23
(“SAC”). On January 30, 2018, Plaintiff filed an
opposition to the motion. Dkt. No. 25 (“Opp.”).
On February 6, 2018, Defendants replied. Dkt. No. 26
(“Reply”). After carefully considering the
parties' arguments, the Court GRANTS IN
PART and DENIES IN PART
Court previously dismissed Plaintiff's Monell
and malicious prosecution claims under Federal Rule of Civil
Procedure (“Rule”) 12(b)(6) for failure to state
a claim. See Dkt. No. 22 (“Dismissal
Order”) at 3-4, 5-6. Specifically, the Court found that (1)
Plaintiff's Monell claim failed to identify an
“official municipal policy or widespread practice
concerning K9 officers;” and (2) Plaintiff's
malicious prosecution claim did not plausibly suggest malice
or the absence of probable cause. See Id. at 4, 6;
Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th
Cir. 2004) (setting forth the elements of a malicious
prosecution claim under section 1983). The Court accordingly
dismissed these causes of action from Plaintiff's first
amended complaint, and granted Plaintiff leave to amend.
Dismissal Order at 7-8; see Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
amended Monell and malicious prosecution claims
suffer from the same factual deficits. Though Plaintiff added
allegations to his Monell cause of action, those
allegations are entirely conclusory. See SAC
¶¶ 40-43. Plaintiff again fails to identify a
particular municipal policy that Defendant Mally acted
pursuant to. See Id. Plaintiff also fails to state
what the City's specific policy or custom is, if any,
regarding the use of K9 officers. See AE ex rel.
Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th
Cir. 2012) (holding that, at the pleading stage, a
plaintiff's Monell claim “may not simply
recite the elements of a cause of action, but [must] contain
sufficient allegations of underlying facts” so as to
provide the opposing party with fair notice so it can defend
itself) (quoting Starr v. Baca, 652 F.3d 1202, 1216
(9th Cir. 2011)). The SAC omits specific facts to show that
the City: (1) ratified Defendant Mally's conduct; (2)
failed to train Defendant Mally or others in the use of K9
officers; or (3) did not properly investigate Plaintiff's
unlawful seizure and excessive force claims. See SAC
¶ 43. Plaintiff, moreover, has not supplemented his
complaint with facts establishing the requisite causality.
See City of Canton, Ohio v. Harris, 489 U.S. 378,
388-89 (1989) (holding that the particular policy or practice
must be the “moving force” behind Plaintiff's
injury). Despite filing three complaints to date, Plaintiff
has failed to plead a cognizable Monell claim. Given
these repeated failures, the Court dismisses Plaintiff's
Monell claim without leave to amend. See Zucco
Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th
Cir. 2009) (“[W]here the Plaintiff has previously been
granted leave to amend and has subsequently failed to add the
requisite particularity to its claims, the district
court's discretion to deny leave to amend is particularly
broad.”) (quotations and alteration omitted).
similarly fails to state sufficient facts to support
Plaintiff's malicious prosecution claim. See
Dismissal Order at 6; SAC ¶¶ 50-51. Again,
Plaintiff elides how Defendants acted with malice to
prosecute him: the only facts contained in the complaint
pertain to Plaintiff's allegedly unconstitutional arrest.
See id.; Mot. at 8. As the Ninth Circuit stated in
Lacey v. Maricopa Cty., a plaintiff cannot at the
pleading state simply recast allegations regarding an
unlawful arrest “as a claim for malicious
prosecution.” 693 F.3d 896, 920 (9th Cir. 2012)
(affirming the district court's dismissal of the
plaintiff's malicious prosecution claim under Rule
12(b)(6)). Rather, “where the arrest is not a valid
one, an action for malicious prosecution will not lie unless
some further step is taken, such as bringing the accused
before a magistrate for determination whether he is to be
held.” Id. at 919-20 (quotations omitted). To
that end, Plaintiff asserts that he “could state with
further specificity that he had to defend himself against the
unwarranted criminal citation for over a year and that he was
ultimately brought before a magistrate for the determination
of criminal consequences related to the citation. . .
.” Opp. at 5. It is unclear why-having recognized that
he could plead more-Plaintiff did not do so. See
Reply at 8.
the SAC again fails to adequately plead this claim, the Court
dismisses it. Based on the assertions in Plaintiff's
opposition, the Court cannot conclude that granting leave to
amend this claim necessarily would be futile. The Court thus
will give Plaintiff one last chance to amend this claim
only. Lopez v. Smith, 203 F.3d 1122, 1130 (9th
Cir. 2000) (quotations and citation omitted). Plaintiff's
counsel is directly warned that failing to include facts in
the complaint, then referencing those facts in briefs, wastes
the time and resources of the Court and the parties.
All necessary facts need to be pled in the
complaint, and the Court will disregard any future claims in
pleadings about what “Plaintiff could state with
further specificity, ” Opp. at 5, if given leave to
the Court rejects Defendants' request to dismiss
Plaintiffs second cause of action for excessive force under
the Fourth Amendment. See Mot. at 5-6. Contrary to
Defendants' suggestion, Plaintiffs excessive force claim
adds additional allegations beyond those stated in his first
cause of action for unreasonable seizure in violation of the
Fourth Amendment. See SAC ¶¶ 30-39. Though
overlapping, those actions are not entirely duplicative of
one another. Both causes of actions may therefore proceed.
these reasons, the Court GRANTS IN PART and
DENIES IN PART Defendants' renewed
dismissal motion. Any third amended complaint must be filed
within 28 days of the date of this order.
IS SO ORDERED.
 The Court finds this matter
appropriate for disposition without oral argument and the
matter is deemed submitted. See Civil L.R.
 The Court detailed the factual
background in its Dismissal Order, and incorporates those
unchanged facts and the legal analysis from the Dismissal
Order here. In this order, the Court only discusses the facts
and legal standards as necessary to address the new issues
raised in the second amended complaint and the renewed motion
 Separately, Plaintiff admits that he
“inadvertently” included a claim for excessive
force under the Fourteenth Amendment. Opp. at 6. Plaintiff
accordingly withdraws this claim. Id. Plaintiff also
withdraws the malicious prosecution claim against the City,
conceding that the City was improperly named. Opp. at 5.