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Estate of Osuna v. County of Stanislaus

United States District Court, E.D. California

June 24, 2019



         This matter is before the court on a motion to dismiss plaintiffs' complaint filed on behalf of defendants. (Doc. No. 9-1.) A hearing on the motion was held on December 18, 2018. Attorney Mark Merin appeared in person on behalf of plaintiffs. Attorney John Whitefleet appeared telephonically on behalf of defendants. Having reviewed the parties' submissions, and having heard from counsel, defendants' motion will be granted in part and denied in part for the reasons explained below.


         This action arises from the death of Armando Osuna (the “decedent”) on or about May 29, 2018. In their complaint, plaintiffs allege as follows. On the date in question, the decedent returned to a house from which he and his wife, plaintiff Nancy Osuna, had been evicted in order to ascertain when furniture that they had left behind would be made available to them so that the decedent could arrange for a truck to pick it up. (Doc. No. 1 at ¶¶ 13-15.) The owner of the property told the decedent to leave the premises and called defendant Stanislaus County Sheriff's Department (the “Sheriff's Department”). (Id. at ¶ 16.) Deputies from the Sheriff's Department responded to the call and encountered the decedent on the street near the house. (Id. at ¶ 17.) Sometime thereafter, the unarmed decedent was shot by the deputies. (Id. at ¶ 18.) He was transported to a nearby hospital; he later lost his life as a result of this incident. (Id. at ¶ 19.)

         On September 12, 2018, the estate of the decedent (the “estate”), Nancy Osuna, and the decedent and Nancy Osuna's son, Paul Osuna (collectively, “plaintiffs”) filed this complaint against defendants County of Stanislaus (the “County”), the, Stanislaus County Sheriff's Department, Stanislaus County Sheriff Adam Christianson, and Doe Defendants 1-50 (collectively, “defendants”). (Doc. No. 1.) Doe Defendants 1-25 were deputies employed by the Sheriff's Department who responded to the property owner's call and encountered Mr. Osuna on the street. (Id. at 3-4.) Doe Defendants 26-50 were policy-makers for the county and/or the Sheriff's Department responsible for policies relating to training, supervision, and discipline of law enforcement officers. (Id. at 4.)

         Plaintiff bring the following eight causes of action: (1) unreasonable force in violation of Mr. Osuna's Fourth Amendment rights, asserted by the estate against all defendants; (2) deprivation of familial association, companionship, and society in violation of the Fourteenth Amendment, asserted by Nancy and Paul Osuna against Doe defendants 1-25; (3) deprivation of association, companionship, and society in violation of the First Amendment, asserted by Nancy and Paul Osuna against Doe defendants 1-25; (4) unreasonable force in violation of Article I, Section 13 of the California constitution, asserted by the estate against all defendants; (5) Bane Act violations alleging unreasonable force and deprivation of familial association, companionship, and society, asserted by all plaintiffs against all defendants; (6) assault and battery claims asserted by the estate against Stanislaus County, the Stanislaus County Sheriff's Department, and Doe defendants 1-25; (7) a negligence claim asserted by the estate against all defendants, and (8) a wrongful death claim asserted by Nancy and Paul Osuna against all defendants. (Id. at 7-19.) The complaint also alleges that multiple incidents of police misconduct have recently occurred involving the Sheriff's Department, frequently resulting in large monetary settlements being reached or jury verdicts in favor of plaintiffs being returned. (See Id. at ¶ 23.) Based upon those previous incidents, plaintiffs allege a pattern and practice of police misconduct.

         On November 5, 2018, defendants filed the instant motion to dismiss. (Doc. No. 9-1.) On December 4, 2018, plaintiffs filed an opposition to the motion to dismiss. (Doc. No. 13.) On December 11, 2018, defendants filed a reply to the opposition. (Doc. No. 14.)


         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “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). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. See also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).


         Defendants advance multiple arguments in support of their motion to dismiss. Each is addressed in turn below.

         A. Use of Doe Defendants Does Not Violate Federal Rule of Civil Procedure 8(a)(2).

         Defendants argue that the naming of Doe defendants by plaintiffs violates Federal Rule of Civil Procedure 8(a)(2) because “[p]laintiffs do not identify each doe defendant and his or her alleged act or omission” and “vague and generalized allegations . . . [are] insufficient to put prospective defendants on notice of their alleged actions or omissions.” (Doc. Nos. 9-1 at 4; 14 at 3); see also Fed. R. Civ. P. 8(a)(2) (“A pleading . . . must contain: a short and plaint statement of the claim showing that the pleader is entitled to relief.”). Defendants' argument is not persuasive.

         It is true that the use of Doe defendants in federal courts is “generally disfavored.” (Doc. No. 9-1 at 4) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). However, as the court in Gillespie noted

situations arise, such as the present, where the identity of alleged defendants will not be known prior to the filing of a complaint. In such circumstances, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.

629 F.2d at 642. Here, defendants do not contend that discovery will not uncover the identities of the Doe defendants and, as reflected in this order, the court does not find that the complaint should be dismissed on other grounds. Moreover, plaintiffs have alleged all the information about the Doe defendants as plaintiffs possess at this juncture of the litigation. In this regard, the complaint alleges that Doe defendants 1-25 are or were deputies of the Stanislaus County Sheriff's Department who encountered the decedent on the day that he was killed, and that Doe defendants 26-50 are or were policymakers for Stanislaus County or the Sheriff's Department who are or were responsible for policies relating to training, supervision, and discipline of law enforcement officers. (Doc. No. 1 at 3-4.) Defendants' contention that plaintiffs “should be required to identify the unnamed defendants as best as possible, and allege specific acts that these doe defendants did, ” (Doc. No. 9-1 at 4), is unavailing because plaintiffs have alleged as best as possible at this time facts regarding the Doe defendants, and “[they] do not have access to any further information concerning these parties, including their identities, because, as far as plaintiffs know, ‘the only witness other than the officers was killed during the encounter.'” (Doc. No. 12 at 11) (quoting Gonzalez v. City of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014)). See Wells v. Kendall, No. 2:17-cv-2709 AC P, 2019 WL 1787172, *5 (E.D. Cal. Apr. 24, 2019); Powe v. Nevada, No. 2:17-cv-00470-JAD-GWF, 2019 WL 918982, at *(D. Nev. Feb. 22, 2019) (“Although the use of the ‘Doe' placeholder to identify a defendant is not favored, flexibility is allowed in some cases where the identity of the parties will not be known prior to filing a complaint but can subsequently be determined through discovery.”).

         Accordingly, the court finds that plaintiffs naming of Doe defendants does not violate Rule 8(a)(2).

         B. The Sheriff's Department is a Properly Named Defendant.

         Next, defendants contend that the Stanislaus County Sheriff's Department should be dismissed from this action as duplicative because it is not a separate legal entity apart from the County, which is also named as a defendant. (Doc. No. 9-1 at 5.)

         Whether a party has the capacity to be sued in federal court is governed by Federal Rule of Civil Procedure 17(b)(3), which states that the capacity to be sued is determined by the law of the state in which the court is located. California Government Code § 945 provides that “[a] public entity may sue or be sued.” Meanwhile, California Government Code § 811.2 defines a “public entity” to include “the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.” It appears that only one district court has held that a sheriff's department is not a “public entity” under California law. See Garcia v. Los Angeles County, 588 F.Supp. 700, 707 (C.D. Cal. 1984). However, that conclusion was subsequently rejected by the Ninth Circuit, which held that the San Jose Police Department could be sued in federal court. Shaw v. State of Cal. Dep't of Alcoholic Beverage Control, 788 F.2d 600, 605 n.1 (9th Cir. 1986). Defendants contend that Shaw was based on a misapplication of the California Supreme Court's decision in Peterson v. City of Long Beach, 24 Cal.3d 238 (1979). (Doc. No. 14 at 3-4.) Defendants' argument in this regard is unpersuasive. In Shaw the Ninth Circuit did not rely on the decision in Peterson in concluding that a police department was a separately suable public entity; instead, the court relied on Peterson to reject the notion that a public entity must have some degree of sovereignty. 788 F.3d at 605. The undersigned concludes there is no basis upon which to dismiss the Stanislaus County Sheriff's Department from any of plaintiffs' state law causes of action.

         The somewhat more complicated question is whether the Stanislaus County Sheriff's Department is a “person” within the meaning of 42 U.S.C. § 1983 and may be properly named as a defendant as to claim brought pursuant to that provision. In seeking dismissal, defendants cite to a concurring opinion in United States v. Kama, 394 F.3d 1236 (9th Cir. 2005) (Ferguson, J., concurring)[1], which stated that “municipal police departments and bureaus are generally not considered ‘persons' within the meaning of 42 U.S.C. § 1983.” 394 F.3d 1236, 1239-40. Defendants misconstrue this opinion. In reaching that conclusion, the concurring opinion cited to the Ninth Circuit's decision Hervey v. Estes, 65 F.3d 784, 791 (9th Cir. 1995), which held that the Tacoma Narcotics Enforcement Team was not a “person” under § 1983 because it was an intergovernmental task force composed of several local, county, and state governmental entities, rather than a separate legal entity unto itself. 65 F.3d 784, 791-92 (9th Cir. 1995). Because this case includes claims against a sheriff's department, and not an intergovernmental association, the court finds Hervey to be of only limited guidance. Moreover, the concurring opinion in Kama also relied upon an Eleventh Circuit decision in Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992), which found that because the county sheriff's department lacked the capacity to be sued under Alabama law, it could not be sued under § 1983. However, California law is to the contrary. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 624 n.2 (9th Cir. 1988) (“Municipal police departments are ‘public entities' under California law and, hence, can be sued in federal court for alleged civil rights violations.”).

         More recently, the Ninth Circuit has permitted an action under § 1983 to proceed against a California sheriff's department notwithstanding the department's contention that it is not a “person” within the meaning of § 1983. Streit v. County of Los Angeles, 236 F.3d 552, 564-65 (9th Cir. 2001) (affirming the district court's holding that when the Los Angeles County Sheriff's Department acts on behalf of the County, it is subject to liability under 42 U.S.C. § 1983); see also Brewster v. Shasta County, 275 F.3d 803, 807 (9th Cir. 2001) (finding that the Shasta County Sheriff is subject to liability under § 1983 after concluding that the “Shasta County Sheriff acts for the County, not the state, when investigating crime in the county”). The undersigned concludes that these binding decisions control resolution of this issue, and therefore will deny defendants' motion to dismiss the Stanislaus County Sheriff's Department as a defendant in this action.[2]

         C. The Estate Has Sufficiently Pled its Monell Claims Against the County.

         Next, defendants seek dismissal of the plaintiffs estate's cause of action for excessive use of force against the County. Defendants contend that this cause of action, brought on a theory of Monell liability, is not supported by sufficient factual allegations in the complaint to establish a policy or custom. (Doc. No. 9-1 at 5-7); see also Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978).

         It is well-established 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 692; see also Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997). To state a Monell claim against the County, plaintiff “must demonstrate that an ‘official policy, custom, or pattern' on the part of [the County] was ‘the actionable cause of the claimed injury.'” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012) (quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008)). A Monell claim can be established in one of three ways. See Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014). First, a local government may be held liable when it acts “pursuant to an expressly adopted policy.” Id. (citing Monell, 436 U.S. at 694); Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004). Second, a public entity may be held liable for a “longstanding practice or custom.” Thomas, 763 F.3d at 1170. Such circumstances may arise when, for instance, the public entity “fail[s] to implement procedural safeguards to prevent constitutional violations” or when it fails to adequately train its employees. Tsao, 698 F.3d at 1143 (citing Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992)); see also Connick v. Thompson, 563 U.S. 51, 61 (2011) (“A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.”); Flores v. County of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014) (requiring a plaintiff asserting a claim based on a failure to train to allege facts showing that defendants “disregarded the known or obvious consequence that a particular omission in their training program would cause municipal employees to violate citizens' constitutional rights”) (internal brackets omitted) (quoting Connick, 563 U.S. at 61). “Third, a local government may be held liable under § 1983 when ‘the individual who committed the constitutional tort was an official with final policy- making authority' or such an official ‘ratified a subordinate's unconstitutional decision or action and the basis for it.'” Clouthier v. County of Santa Clara, 591 F.3d 1232, 1250 (9th Cir. 2010) (quoting Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992)), overruled on other grounds by Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en banc).

         Defendants' motion raises two separate challenges to the sufficiency of the complaint with respect to its Monell cause of action. First, defendants contend that the complaint contains factual allegations regarding an insufficient number of incidents so that the allegations do not adequately demonstrate the existence of a policy or custom. (Doc. No. 9-1 at 5-6.) Second, defendants argue that even if the complaint sufficiently alleges the existence of a policy or custom, it does not contain allegations describing the alleged county policy in sufficient detail. (Id. at 6.) Each argument is addressed below.

         1. Plaintiff Has Alleged a Sufficient Number of Incidents.

         “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), holding modified on other grounds by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001); see also Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (“A single constitutional deprivation ordinarily is insufficient to establish a longstanding practice or custom.”); Cain v. City of Sacramento, No. 2:17-cv-00848-JAM-DB, 2017 WL 4410116, at *3 (E.D. Cal. Oct. 4, 2017) (dismissing the plaintiff's Monell claim because it alleged only a single encounter between plaintiff and jail staff). Although “[i]t is difficult to discern from the caselaw the quantum of allegations needed to survive a motion to dismiss a pattern and practice claim, ” Gonzalez v. County of Merced, No. 1:16-cv-01682-LJO-SAB, 2017 WL 6049179, at *2 (E.D. Cal. Dec. 7, 2017), “where more than a few incidents are alleged, the determination appears to require a fully-developed factual record.” Lemus v. County of Merced, No. 1:15-cv-00359-MCE-EPG, 2016 WL 2930523, at *4 (E.D. Cal. May 19, 2016), aff'd, 711 Fed. App'x 859 (9th Cir. 2017); see also Becker v. Sherman, No. 1:16-cv-00828-AWI-MJS (PC), 2017 WL 6316836, at *9 (E.D. Cal. Dec. 11, 2017) (concluding that “four assaults related to [plaintiff's] housing assignment and status as a transgender ...

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