Rodriguez, III et al v. Orange County et al, No. 3:2023cv00823 - Document 17 (S.D. Cal. 2023)
Court Description: ORDER Granting in Part and Denying in Part 9 Defendants' Motion to Dismiss with Leave to Amend. The Second Amended Complaint is due on or before October 25, 2023. Signed by Judge Thomas J. Whelan on 10/4/2023. (All non-registered users served via U.S. Mail Service)(exs)
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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 14 MARCUS RODRIGUEZ, III, and VALERIE CASTANEDA, 17 18 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH LEAVE TO AMEND [DOC. 9] Plaintiffs, 15 16 Case No.: 23-CV-823-W-DDL v. ORANGE COUNTY, CAMERON MATHIS, DAVID PULTZ, and DOES 1 THROUGH 10, Defendants. 19 20 21 Pending before the Court is the County of Orange, Deputy Cameron Mathis, and 22 Sergeant David Pultz’s (collectively “Defendants”) motion to dismiss portions of 23 Plaintiffs’ First Amended Complaint (“FAC” [Doc. 6]) pursuant to Federal Rule of Civil 24 Procedure 12(b)(6). Plaintiffs Marcus Rodriguez, III, and Valerie Castaneda (collectively 25 “Plaintiffs”) oppose. 26 27 The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons stated below, the Court GRANTS IN PART 28 1 23-CV-823-W-DDL 1 AND DENIES IN PART Defendants’ motion to dismiss [Doc. 9] WITH LEAVE TO 2 AMEND. 3 4 I. BACKGROUND 5 This is a civil rights action where Plaintiffs are seeking damages for alleged 6 violence and discriminatory conduct. (FAC ¶ 1.) Plaintiffs filed their initial complaint on 7 May 4, 2023, asserting nine causes of action against Defendants County of Orange (the 8 “County”), Sergeant Pultz, and Deputy Mathis. (See Compl. [Doc. 1].) On June 26, 2023, 9 Plaintiffs filed the FAC against the same Defendants, asserting the same causes of action. 10 11 (See FAC.) According to the FAC, on March 28, 2022, Plaintiff Rodriguez was picking up a 12 prescription for his wife, Plaintiff Castaneda, at a Walgreens drive-thru when multiple 13 unmarked vehicles swarmed Rodriguez’s car, and several Caucasian men exited the 14 vehicles, yelling and pointing firearms at him. (FAC ¶¶ 16, 17.) The officers aggressively 15 approached Rodriguez, yanked him out of his car, and handcuffed him tightly, causing 16 pain to his arms and back. (Id. ¶¶ 20–21.) Rodriguez was given no explanation for why 17 he was being detained and tried explaining that he was a retired peace officer and had 18 identification. (Id. ¶¶ 20–22.) The officers eventually realized they had arrested the 19 wrong Marcus Rodriguez, and his son was the target of the arrest. (Id. ¶ 23.) 20 The officers told Rodriguez that law enforcement was at his residence and that they 21 would enter the premises unless he called his son and told him to come outside with his 22 hands up. (FAC ¶ 24.) Rodriguez called his son and drove home, with the officers 23 following him. (Id. ¶¶ 24–25.) The officers then proceeded to enter Plaintiffs’ home with 24 no search warrant and demanded that Rodriguez and Castaneda remain in the kitchen 25 while they performed a search. (Id. ¶¶ 26–28.) Rodriguez claims Defendants subjected 26 him to physical pain and severe emotional distress as a result of their conduct. (Id. ¶ 29) 27 Castaneda claims Defendants subjected her to mental and emotional distress as several 28 2 23-CV-823-W-DDL 1 law enforcement officers entered her home without a search warrant. (Id. ¶ 30.) Plaintiffs 2 also claim Defendants displayed and acted with racial animus against them. (Id. ¶ 33.) 3 4 II. 5 LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) allows a defendant to file a motion to 6 dismiss for failing to state a claim upon which relief can be granted. Fed. R. Civ. P. 7 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the 8 complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 9 A complaint may be dismissed as a matter of law either for lack of a cognizable legal 10 theory or for insufficient facts under a cognizable theory. Balisteri v. Pacifica Police 11 Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). In ruling on the motion, a court must “accept 12 all material allegations of fact as true and construe the complaint in a light most favorable 13 to the non-moving party.” Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007). 14 Well-pled allegations in the complaint are assumed to be true, but a court is not required 15 to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable 16 inferences. Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State 17 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). To survive a motion to dismiss, a complaint must contain “a short plain statement 18 19 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The 20 Supreme Court has interpreted this rule to mean that “[f]actual allegations must be 21 enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 22 550 U.S. 554, 555 (2007). The allegations in the complaint must “contain sufficient 23 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 24 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 25 26 27 28 III. DISCUSSION The FAC contains nine causes of action for: (1) Unreasonable Use of Excessive Force; (2) Unreasonable Search and Seizure; (3) Right to Equal Protection; (4) Municipal 3 23-CV-823-W-DDL 1 Liability under Monell1; (5) Battery and Assault; (6) Negligence; (7) Bane Act; (8) Ralph 2 Civil Rights Act; and (9) Intentional Infliction of Emotional Distress. (See FAC.) 3 Defendants now move to dismiss the third, fourth, seventh and eighth causes of action for 4 failure to state a claim. 5 6 A. 7 Plaintiffs’ third cause of action alleges Defendants abused their authority and 8 engaged in misconduct because of Plaintiffs’ race and national origin, violating their right 9 to Equal Protection. (FAC ¶¶ 56–64.) Defendants argue Plaintiffs failed to allege facts Right to Equal Protection, 42 U.S.C. § 1983 10 supporting their contention that Defendants’ conduct was racially motivated. (Mot. 5:15– 11 17.) 12 To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection 13 Clause, “a plaintiff must show that the defendants acted with an intent or purpose to 14 discriminate against the plaintiff based upon membership in a protected class.” Lee v. 15 City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting Barren v. Harrington, 16 152 F.3d 1193, 1194 (9th Cir. 1998)). To sufficiently plead an Equal Protection violation, 17 Plaintiffs must plausibly allege that Defendants acted with some intent or purpose to 18 discriminate against Plaintiffs based on their race or national origin. Id. Here, the allegation most pertinent to Plaintiffs’ Equal Protection claim reads as 19 20 follows: 21 PLAINTIFFS are informed and believe and thereon allege that DEFENDANTS’ use of excessive force, unlawful detention, unlawful arrest, and false imprisonment was due to their being emboldened to commit misconduct to misuse and abusing their authority or power by taking advantage of some weakness or disability or misfortune of the PLAINTIFFS because of PLAINTIFFS’ race and national origin, in reckless disregard of PLAINTIFFS’ rights, accompanied by ill will or spite, and was executed 22 23 24 25 26 27 28 1 Monell v. Dep’t of Soc. Servs. Of City of New York, 436 U.S. 658, 690 (1978) 4 23-CV-823-W-DDL 1 2 with unnecessary harshness or severity warranting punitive damages against the individual (non-government entity) DEFENDANTS. 3 (FAC ¶ 60.) This paragraph is devoid of any facts supporting the conclusory allegation 4 that Defendants’ conduct was “because of PLAINTIFFS’ race and national origin.” (Id.) 5 For example, there are no allegations that Defendants made racially charged comments 6 while handcuffing Rodriguez or during the search of Plaintiffs’ home. As such, the 7 FAC’s allegations fail to suggest Defendants intentionally discriminated against Plaintiffs 8 based on their membership in a protected class. See Howe v. Cnty. of Mendocino, 2022 9 WL 3952395, at *2 (9th Cir. Aug. 31, 2022) (finding conclusory allegations of 10 discriminatory intent without facts supporting the allegations insufficient to state an equal 11 protection claim). 12 Similarly, there are no facts suggesting that the officers acted with a discriminatory 13 purpose. Discriminatory purpose implies that the “decisionmaker . . . selected or 14 reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite 15 of,’ its adverse effects upon an identifiable group.” Pers. Adm’r of Massachusetts v. 16 Feeney, 442 U.S. 256, 279 (1979). Here, the FAC alleges the officers incorrectly arrested 17 and detained Rodriguez instead of his son. (FAC ¶ 23.) Arguably, these facts support the 18 inference that Rodriguez was detained based on his familial association, not because of 19 his membership in a protected class. Hence, the FAC failed to indicate the officers 20 “selected or affirmed a particular course of action at least in part because of . . . its 21 adverse effects upon an identifiable group.” Pers. Adm’r of Massachusetts, 442 U.S. at 22 279 (internal quotation marks omitted). 23 24 For these reasons, the Court will grant Defendants’ motion to dismiss Plaintiffs’ Equal Protection claim with leave to amend. 25 26 B. 27 The Supreme Court established that municipalities can be sued directly under 42 28 Municipal Liability Under Monell U.S.C. § 1983 for “monetary, declaratory, or injunctive relief where . . . the action that is 5 23-CV-823-W-DDL 1 alleged to be unconstitutional implements or executes a policy statement, ordinance, 2 regulation, or decision officially adopted and promulgated by that body’s officers.” 3 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). To state a 4 Monell claim, a plaintiff must plead facts demonstrating: (1) his or her constitutional right 5 was violated; (2) the municipality had a policy; (3) the policy amounts to deliberate 6 indifference to plaintiff’s constitutional right; and (4) the policy is the moving force 7 behind the constitutional violation. Lockett v. Cty. of Los Angeles, 977 F.3d 737, 741 (9th 8 Cir. 2020) (citing Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)). 9 Defendants move to dismiss Plaintiffs’ Monell claim for failure to identify any specific 10 policies or longstanding practices that resulted in the deprivation of Plaintiffs’ rights. 11 (Mot. 6:20–26.) 12 13 14 1. Express Policy To establish a Monell claim, Plaintiffs must identify one of the County’s policies 15 that was the moving force behind the constitutional violation. See Lockett, 977 F.3d at 16 741. Plaintiffs allege the “COUNTY and its officials maintained or permitted one or more 17 of the following policies, customs or practices which displayed deliberate indifference to 18 the constitutional rights of persons such as PLAINTIFFS and were a direct cause of 19 PLAINTIFFS’ damages.” (FAC ¶ 69.) Plaintiffs then purport to list eleven policies, 20 customs, or practices permitted or maintained by the County (Id.) 21 In Warner v. County of San Diego, 2011 WL 662993, at *2 (S.D. Cal. Feb. 14, 22 2011), the complaint alleged San Diego County had “an unlawful policy, custom or habit 23 of: permitting or condoning the unnecessary and unjustified use of force by sheriff’s 24 deputies; permitting or condoning acts of unlawful detention, false arrest and unlawful 25 search and seizure; and inadequate hiring, training, supervision and discipline of 26 deputies.” Id. at *3. The court held the allegations were insufficient to support a Monell 27 claim because they amounted to “formulaic recitations of the existence of unlawful 28 policies, customs, or habits” and failed to include specific facts Id. at *4. Similarly, in 6 23-CV-823-W-DDL 1 Garcia v. County of Napa, 2022 WL 110650 (N.D. Cal. Jan. 12, 2022), the district court 2 found allegations that the County of Napa had policies “[t]o use or tolerate the use of 3 unlawful deadly force, of covering up constitutional rights,” and for encouraging a “code 4 of silence” failed because they were “too vague and insufficiently detailed to adequately 5 allege the policy at issue. Id. at *6 (citing numerous other cases finding similar 6 allegations insufficient.) 7 Here, it difficult to even discern which of the eleven items listed in paragraph 69 of 8 the FAC purport to be County policies. Many of the items listed refer to failures to train 9 or discipline (i.e., 69.b., c.), while others appear to implicate ratification (i.e., 69.f., g.). 10 Two of the eleven reference the word “policy” and thus presumably represent Plaintiffs’ 11 attempt to allege County policies. The first alleges the County has announced “that 12 unjustified uses of excessive force are ‘within policy.’” (FAC ¶ 69.) The second alleges 13 the County maintains “a policy of inaction … towards soaring numbers of police 14 excessive force incidents….” (Id.) Similar to the allegations in Warner and Garcia, 15 these allegations are simply too vague to adequately plead a policy or to suggest that any 16 policy was the moving force behind the alleged constitutional violations. Accordingly, 17 the Court finds Plaintiffs have failed to plead a Monell claim based on a County policy. 18 19 20 2. Unconstitutional Patterns or Practices The FAC also alleges the County permitted “customs or practices” of 21 unconstitutional conduct. (FAC ¶ 69.) An unconstitutional pattern or practice can be 22 inferred from pervasive evidence of “repeated constitutional violations” that are closely 23 related to the alleged practices. Gillette v. Delmore, 979 F.2d 1342, 1349 (9th Cir. 1992). 24 Again, it is difficult to figure out which of the eleven items listed in paragraph 69 25 support Plaintiffs’ pattern or practice theory. Regardless, the FAC is devoid of any 26 allegations of previous wrongful conduct by the County’s officers to support an inference 27 of repeated constitutional violations. For example, the FAC alleges the County condones 28 and encourages officers “in belief that they can violate the rights of persons, such as 7 23-CV-823-W-DDL 1 PLAINTIFFS, with impunity….” (FAC ¶ 69f.) Yet, Plaintiffs fail to identify any other 2 instances where the County’s officers violated anyone’s constitutional rights, much less 3 the same constitutional rights at issue in this case. For this reason, the Court finds the 4 FAC fails to state a Monell claim based on a pattern and practice of unconstitutional 5 conduct. See Segura v. City of La Mesa, 2022 WL 17905529, at *6 (S.D. Cal. Dec. 23, 6 2022) (plaintiff must do more than allege in a conclusory fashion that the county 7 maintains an unwritten policy or custom permitting the types of wrongs plaintiff 8 experienced); J.K.G. v. County of San Diego, 2011 WL 5218253, at *9 (S.D. Cal. Nov. 2, 9 2011) (pattern and practice theory insufficiently pled without facts of other similar 10 constitutional violations). 11 12 13 3. Failure to Train Plaintiffs also base their Monell claim on a failure to train. A failure to train or 14 supervise may also give rise to a Monell claim, but only if “the failure to train amounts to 15 deliberate indifference to the rights of persons with whom the police come into contact 16 with.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). Failure to train may 17 amount to a policy of deliberate indifference if the need to train was obvious and the 18 failure to do so made a violation of constitutional rights likely. Dougherty, 654 F.3d at 19 900 (citing City of Canton, 489 U.S. at 390). Moreover, for liability to attach, the 20 “identified deficiency in a city’s training program must be closely related to the ultimate 21 injury.” City of Canton, 489 U.S. at 391. 22 Plaintiffs’ failure to train theory is based on two general claims. Plaintiffs allege 23 the County failed to “retrain” officers previously involved in “misconduct,” “shootings” 24 that were “determined in court to be unconstitutional” or “excessive force incidents.” 25 (FAC ¶¶ 69i, j, k.) The problem with these allegations is they are not “closely related to 26 the ultimate injury” Plaintiffs suffered. According to the FAC, Plaintiffs’ constitutional 27 injuries arose from the manner in which the officers removed Rodriguez from his car and 28 handcuffed him, and the search of Plaintiffs’ home. Yet, the most of the failure to train 8 23-CV-823-W-DDL 1 allegations deal with the failure to “retrain” officer previously involved in 2 unconstitutional conduct, such as “shootings.” There are no allegations any of the officer 3 defendants were previously involved in misconduct, and there are no allegations that the 4 officers fired their weapons. Thus, the allegations are not closely related to Plaintiffs’ 5 injuries. 6 The FAC also alleges the County failed to adequately train and supervise officers 7 “with respect to constitutional limits on the use of excessive force.” (FAC ¶ 69b.) This 8 allegation is too vague, implicating a large number of circumstances including the use of 9 deadly force, tasers, batons, etc. and thus cannot be said to be “closely related” to 10 Plaintiffs’ injury. For these reasons, the Court finds the FAC fails to state a Monell claim 11 based on a failure to train. 12 13 14 4. Ratification Plaintiffs additionally claim “[r]atification by the highest levels of authority of the 15 specific unconstitutional acts alleged in the Complaint.” (FAC ¶ 69g.) Monell liability can 16 be demonstrated through decisions of a final policy-making official who commits the 17 violation himself or ratifies the unlawful act of a delegate. Lytle v. Carl, 382 F.3d 978, 18 986 (9th Cir. 2004). 19 Here, the FAC is devoid of facts indicating how Defendants ratified the alleged 20 constitutional violations. There are simply no allegations remotely suggesting knowledge 21 or approval of the alleged constitutional violations by any policy-making official. See 22 Lytle, 382 F.3d at 987 (explaining to support ratification, a policymaker must have 23 knowledge of the constitutional violation and actually approve of it). Accordingly, the 24 Court finds the FAC fails to allege Monell liability based on ratification. 25 26 C. 27 Plaintiffs assert Defendants intentionally interfered with their exercise and 28 California Civil Code § 52.1, the Tom Bane Civil Rights Act enjoyment of rights under federal and state law by acting with reckless disregard for 9 23-CV-823-W-DDL 1 Plaintiffs’ rights, violating California Civil Code § 52.1, known as the Bane Act. (FAC ¶ 2 87–91.) “The Bane Act civilly protects individuals from conduct aimed at interfering 3 with rights that are secured by federal or state law, where the interference is carried out 4 by threats, intimidation or coercion.” Reese v. Cty. of Sacramento, 888 F.3d 1030, 1040 5 (9th Cir. 2018) (citation and internal quotation marks omitted). Although a plaintiff must 6 prove an intent to violate a person’s constitutional rights, it is not necessary for the 7 defendant to have been “thinking in constitutional or legal terms at the time of the 8 incidents.” Id. at 1045 (emphasis in original). “[A] reckless disregard for a person’s 9 constitutional rights is evidence of a specific intent to deprive that person of those rights.” 10 11 Id. Defendants raise several arguments related to Plaintiffs’ Bane Act claim. First, 12 they argue they “are left guessing what actions allegedly violated the Bane Act and the 13 manner in which those actions prevented Plaintiffs from exercising their rights or forced 14 Plaintiffs to do something they were not legally required to do.” (Mot. 7:11–16.) The 15 Court disagrees with respect to Rodriguez, who alleges Defendants violated his Fourth 16 Amendment right by using excessive force. (See FAC ¶ 35.) Defendants do not challenge 17 the excessive force claim, which at this stage in the litigation is sufficient to support the 18 Bane Act claim. See Reese, 888 F.3d at 1043 (holding the use of excessive force can be 19 enough to satisfy the threat, intimidation, or coercion element of the Bane Act). 20 With regard to Castaneda, however, the Court finds she failed to allege a Bane Act 21 violation. The only constitutional right allegedly violated with respect to Castaneda 22 relates to the search of her home and her detention. According to the FAC, this violation 23 was carried out by Defendants “demand[ing] that [Plaintiffs] stay in the kitchen while 24 officers performed an illegal search that lasted hours.” (FAC ¶ 27.) Beyond demanding 25 that Plaintiffs remain in the kitchen, there are no allegations the officers pointed their 26 weapons at Plaintiffs or used any force or means of intimidation during the 27 search/detention. Thus, these allegations are insufficient to show her constitutional rights 28 were interfered with by the use of threats, intimidation, or force. 10 23-CV-823-W-DDL 1 Second, Defendants argue a plaintiff bringing a claim under the Bane Act must 2 allege something “beyond the coercion inherent in his momentary detention.” (Mot. 3 7:25–26.) The standard proposed by Defendants is incorrect. In Reese, 888 F.3d at 1043, 4 the Ninth Circuit held the Bane Act does not require the element of threat, intimidation, 5 or coercion to be independent from the alleged constitutional violation. 6 Third, Defendants argue Plaintiffs have not alleged sufficient facts to infer a 7 specific intent to violate their rights. (Mot. 8:12–25.) But the Ninth Circuit has held that 8 for the specific intent element, it is not necessary for the defendants to have been 9 “thinking in constitutional or legal terms at the time of the incidents,” but rather that “a 10 reckless disregard for a person’s constitutional rights is evidence of a specific intent to 11 deprive that person of those rights.” Reese, 888 F.3d at 1045 (emphasis in original) 12 (quoting United States v. Reese, 3 F.3d 870, 885 (9th Cir. 1993)). At this stage in the 13 litigation, Rodriguez’s allegations that the officers subjected him to excessive force, 14 bodily restraint, and violence when they detained him are enough to support this element. 15 16 Based on the foregoing, the Court finds the FAC sufficiently alleges a Bane Act claim with respect to Rodriguez, but not Castaneda. 17 18 D. 19 Plaintiffs’ eighth cause of action asserts Defendants violated California Civil 20 Code§ 51.7, also known as the Ralph Civil Rights Act, by committing acts of racial 21 violence against Plaintiffs. (FAC ¶¶ 92–98.) Defendants move to dismiss this claim, 22 arguing Plaintiffs do not allege any facts from which the Court could infer that 23 Defendants’ actions were racially motivated. (Mot. 6:6–7.) The Court agrees. 24 California Civil Code § 51.7, Ralph Civil Rights Act To sufficiently plead a Ralph Act claim, a plaintiff must allege that (1) the 25 defendant threatened or committed violent acts against the plaintiff; (2) the defendant was 26 motivated by his perception of plaintiff’s race; (3) the plaintiff was harmed; and (4) the 27 defendant’s conduct was a substantial factor in causing the plaintiff’s harm. Knapps v. 28 11 23-CV-823-W-DDL 1 City of Oakland, 647 F. Supp. 2d 1129, 1167 (N.D. Cal. 2009) (citing Austin B. v. 2 Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 880–81 (2007)). 3 Here, the allegation most pertinent to Plaintiffs’ Ralph Act claim alleges: 4 Upon information and belief, a substantial and motivating reason for the DEFENDANTS’ use of unreasonable and excessive force was due to their being emboldened to commit misconduct to misuse and abuse their authority or power by taking advantage of some weakness or disability or misfortune of PLAINTIFFS because of PLAINTIFFS’ race in reckless disregard of PLAINTIFFS’ rights, accompanied by ill will or spite, and was executed with unnecessary harshness or severity warranting punitive damages against the individual (non-governmental entity) DEFENDANTS. 5 6 7 8 9 10 (FAC ¶ 95.) The Court finds the second element of the Ralph Act insufficiently plead. 11 As explained with respect to the Equal Protection Clause claim, this paragraph is devoid 12 of facts supporting the conclusory assertion that Defendants were motivated by their 13 perception of Plaintiffs’ race. 14 In Young v. Cnty. of San Diego, 2021 WL 1087102, at *7 (S.D. Cal. Mar. 22, 15 2021), the plaintiff, an African American man, alleged officers treated him differently 16 than his non-African American wife. Young, 2021 WL 1087102, at *7. Specifically, he 17 alleged the officers refused to let him take his son home because he did not have his 18 photo identification. Id. However, the officers allowed his wife to do so without checking 19 her photo identification. Id. Based on these factual allegations, the court found they were 20 sufficient to satisfy the second element of the Ralph Act claim. Id. 21 In Piccini v. City of San Diego, 2022 WL 2788753, at *5 (S.D. Cal. July 15, 2022), 22 plaintiffs alleged that while returning to their car from a Black Lives Matter (“BLM”) 23 protest, an officer saw their protest sign and immediately reported their appearance, sign, 24 actions, and affiliation with BLM to other officers. Piccini, 2022 WL 2788753, at *5. 25 Moments later, one of the plaintiffs was arrested and thrown into an unmarked van, while 26 the other was forced to their knees and threatened that if they followed, they would be 27 shot. Id. The court held these facts sufficiently pleaded that the officers were motivated 28 by their perception of plaintiffs’ race. Id. 12 23-CV-823-W-DDL In both Young and Piccini, the facts suggested that the officers’ conduct may have 1 2 been motivated by plaintiffs’ race. Here, in contrast, Plaintiffs’ conclusory claims that the 3 use of excessive force was the result of Plaintiffs’ race are not supported by any facts. For 4 these reasons, the Court will grant Defendants’ motion to dismiss the Ralph Act claim 5 with leave to amend. 6 7 8 9 10 11 12 13 IV. CONCLUSION & ORDER For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendants’ motion [Doc. No. 9] and ORDERS as follows: • Defendants’ motion to dismiss the third cause of action is GRANTED WITH LEAVE TO AMEND. • Defendants’ motion to dismiss the fourth cause of action is GRANTED WITH LEAVE TO AMEND. 14 • Defendants’ motion to dismiss the seventh cause of action is DENIED as to 15 Rodriguez and GRANTED WITH LEAVE TO AMEND as to Castaneda. 16 • Defendants’ motion to dismiss the eighth cause of action is GRANTED WITH 17 LEAVE TO AMEND. 18 The Second Amended Complaint is due on or before October 25, 2023. 19 IT IS SO ORDERED. 20 Dated: October 4, 2023 21 22 23 24 25 26 27 28 13 23-CV-823-W-DDL
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