Opinion
3:22-cv-00801-AR
08-23-2023
JOSEPH KING, Plaintiff, v. CITY OF PORTLAND, BRENT TAYLOR, personally, Defendants.
FINDINGS AND RECOMMENDATION
JEFF ARMISTEAD, UNITED STATES MAGISTRATE JUDGE
Plaintiff Joseph King brings this 42 U.S.C. § 1983 action against defendants Brent Taylor and the City of Portland. King alleges that Taylor, a Portland police officer, violated his rights under the First, Fourth, and Fourteenth Amendments by using unreasonable and excessive force to assault and arrest him during demonstrations in support of the Black Lives Matter movement on June 30, 2020. Under a theory of Monell liability, King also asserts that the City of Portland violated his First and Fourth Amendment rights by having an unconstitutional training policy, custom, or practice and by ratifying Taylor's conduct.
The City moves to dismiss King's Monell claims against it. (Def.'s Mot. Dismiss at 2 (moving to dismiss Counts 2 and 3 of King's First Claim for Relief and Counts 2 and 3 of his Second Claim for Relief), ECF No. 7.) Because the allegations supporting King's Monell claims are conclusory, the court recommends granting the City's motion.
PRELIMINARY PROCEDURAL MATTER
King filed this action on June 1, 2022, and he is represented by attorney Leonard Berman. On September 27, 2022, the City moved to dismiss. (ECF No. 9.) King's response to that motion was due on October 11, 2022, but it was not filed until October 23, 2022. (Pl.'s Resp. to Mot. Dismiss, ECF No. 12.) Berman, on King's behalf, did not request any extensions of the pleading deadlines and offered no explanation for that late filing. The Response also lacks any substantive argument opposing dismissal. (See id. at 1 (noting, without explanation of the relevance, that the pleadings here are similar to another case before this court that has since settled).) Instead, the Response relies on the attached “Exhibit A”-a document stylized as an amended complaint with new allegations that purportedly support King's Monell claims against the City. (Id., Ex. A.)
The City does not oppose treating Exhibit A as the operative complaint and has responded to the new allegations in its Reply. (Def.'s Reply at 1, ECF No. 14.) To ensure that King has a meaningful opportunity to be heard, the court accepts Exhibit A and treats it as the operative complaint for this dispute. See Edwards, 2022 WL 819449 (accepting untimely exhibit as operative complaint “because it contains the most detailed allegations Plaintiffs have offered to date [and] it bears on the court's determination whether additional facts, if allowed to be pleaded, will cure the deficiencies identified” in the motion to dismiss).
BACKGROUND
The court construes as true the factual allegations of King's amended complaint. Weston Fam. P'ship LLLP v. Twitter, Inc., 29 F.4th 611, 617 (9th Cir. 2022). King is an Oregon resident. (Ex. A ¶ 7.) Taylor is a police officer who, during the underlying events, was employed by the City of Portland and assigned to the Rapid Response Team (RRT) as a Grenadier. (Id. ¶ 8.) The City of Portland is a municipal corporation in the State of Oregon. (Id. ¶ 9.)
In the summer of 2020, members of the Portland community demonstrated in support of the Black Lives Matter movement and “in protest of police violence disproportionately directed at Black people, Indigenous people, and people of Color.” (Id. ¶ 10.) Although those demonstrations were part of a national movement, they were “extremely relevant” in Portland, as data shows that Portland Police Bureau's (PPB's) use of force, traffic stops, searches, seizures and arrests are disproportionately directed at Black, Indigenous, and community members of Color as compared to their white counterparts. (Id.)
On June 26, 2020, in response to escalating tensions between PPB and demonstrators, Chief District Judge Marco Hernandez entered a Stipulated Additional Restraining Order in the federal civil case Don't Shoot Portland v. City of Portland, Case No. 3:20-cv-00917-HZ (D. Or. June 26, 2020). (Id. ¶ 11.) As relevant to this action, that Order limited the City's permitted use of FN 303s, a type of “less lethal” launcher:
FN 303s and 40MM less lethal launchers . . . are limited to use as outlined in PPB Use of Force Directive 1010, and in addition shall not be used where people engaged in passive resistance are likely to be subject to the force.See Don't Shoot Portland, Case No. 3:20-cv-00917-HZ, ECF No. 43. The Order was effective through July 24, 2020. (Id.)
On June 30, 2020, King was peacefully demonstrating in North Portland in support of the Black Lives Matter movement. (Ex. A ¶ 10.) While King was trying to help another demonstrator, Taylor “grabbed and threw him harshly to the pavement” and, when he was lying faced down, shot him in the back with multiple FN 303 projectiles-in violation of Judge Hernandez's Order in Don't Shoot Portland. (Id. ¶¶ 12, 29.) Taylor deployed his FN 303 against another demonstrator on July 4, 2020. (Id. ¶ 4.)
Taylor arrested King, and he was transported to jail in handcuffs. (Id. ¶ 13.) King did not resist arrest. He was incarcerated overnight and charged with the offenses of “Interfering with a Police Officer (Class A Misdemeanor); Riot (C Felony); and Disorderly Conduct II (B Misdemeanor).” On the police report for that incident, Taylor wrote: “I did not know if the subject was going to fight me [or] flee.” (Id. ¶ 16.) Because Taylor used force in the arrest, he was also required to complete a “Force Data Collection Report.” (Id. ¶ 17.) On the section of that report describing why use of force was necessary, Taylor selected the following categories: (1) “prevent or terminate the commission of an offense”; (2) “defend the member or other person from the use of force”; and “accomplish some official purpose or duty that is authorized by law or judicial decree.” (Id. (capitalization normalized).) King asserts that Taylor “deliberately distorted the facts to cover up the lack of probable cause for King's arrest, and to justify his use of excessive force.” (Id. ¶ 16.) King suffered physical and emotional harm from the incident and arrest, as well as economic damages. (Id. ¶ 20.)
With respect to the liability of the City of Portland, King alleges that Taylor's “false report was reviewed and ratified in the regular course by [his] immediate superior officer and possibly higher ranking PPB members.” (Id. ¶ 18.) He asserts that “a City of Portland supervisor with policymaking authority expressly approved of the decision, ratifying [Taylor's] acts and casting it in the form of a policy statement.” (Id. ¶¶ 24, 31.) The report was then “referred through channels to the Multnomah County District Attorney's officer” for prosecution, where the charges were dismissed. (Id. ¶ 19.) King alleges that the City has a “policy, custom, and/or practice of training their members to violate people's” First and Fourth Amendment rights. (Id. at ¶¶ 23, 30).
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the plaintiff's claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal can be based on either the “lack of a cognizable legal theory” or the “absence of sufficient facts alleged under a cognizable legal theory.” Goldingay v. Progressive Cas. Ins. Co., 306 F.Supp.3d 1259, 1263 (9th Cir. 2018) (citing Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (1988)). To survive a motion to dismiss under a cognizable legal theory, a complaint “must contain sufficient factual matter to state a facially plausible claim to relief.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true.”) “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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).
The complaint “may not simply recite the elements of a cause of action;” instead, it must contain “sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (emphasis added); Iqbal, 556 U.S. at 678 (Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”). In evaluating the sufficiency of a complaint, the court accepts as true all well-pleaded factual allegations and construes them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). The court need not, however, credit a plaintiff's legal conclusions that are couched as factual allegations. Iqbal, 556 U.S. at 678-79.
DISCUSSION
In Counts 2 and 3 of his first and second claims, King asserts-under 42 U.S.C. § 1983- that the City of Portland violated his First Amendment rights to free speech and peaceful protest and his Fourth Amendment right to be free of unreasonable search and seizure. (Ex. A ¶¶ 23-27, 30-31.) The City argues that those claims should be dismissed with prejudice because King's allegations are conclusory and, consequently, do not state plausible claims for municipal liability under Monell v. New York City Department of Social Services, 436 U.S. 658 (1978).
The City only moves to dismiss Counts 2 and 3 of King's first and second claims. The claims against individual defendant Taylor are not implicated by this F&R.
A. Monell Claims
The Supreme Court held in Monell that a municipal entity can be liable as a “person” under § 1983 if a plaintiff shows that the constitutional violation complained of was caused by “(1) an official policy; (2) a pervasive practice or custom; (3) a failure to train, supervise, or discipline; or (4) a decision or act by a final policymaker.” Horton by Horton v. City of Santa Maria, 915 F.3d 592, 602-03 (9th Cir. 2019). “A municipality may not, however, be sued under a respondeat superior theory.” Id. To establish Monell liability, the plaintiff must plausibly allege that (1) he was deprived of a constitutional right; (2) the municipality had a policy, custom, or practice; (3) the policy, custom, or practice amounted to deliberate indifference of the plaintiff's constitutional rights; and (4) the policy, custom, or practice was the “moving force” behind the constitutional violation. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)).
A “policy” is a “deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). A “custom” is a “widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well-settled as to constitute a custom or usage with force of law.” Sherman v. Clackamas Cnty. Sherriff's Office, Case No. 3:21-cv-01005-HL, 2022 WL 2670148, at *8 (D. Or. June 23, 2022) (citing St. Louis v. Praptronik, 485 U.S. 112, 127 (1988)).
King asserts that the City should be held liable for violating his First and Fourth Amendment rights because (1) it has an unconstitutional “policy, custom, and/or practice of training [its officers] to violate” citizens' constitutional rights and because (2) a City “supervisor with policy making authority” ratified Taylor's conduct. (Ex. A ¶¶ 23-24, 30-31.) The City counters that King's allegations in support of those theories are insufficient. The court agrees.
“Since Iqbal, courts have repeatedly rejected conclusory Monell allegations that lack factual content from which one could plausibly infer Monell liability.” Wilson ex rel. Bevard v.City of W. Sacramento, Case No. CIV. 2:13-2550 WBS, 2014 WL 1616450, at *2 (E.D. Cal. Apr. 22, 2014) (citing Rodriguez v. City of Modesto, 535 Fed.Appx. 643, 646 (9th Cir. 2013)). To withstand a motion to dismiss, a Monell claim must consist of more than mere “formulaic recitations of the existence of unlawful policies, conducts or habits.” Cook v. Cty. of Contra Costa, Case No. 15-CV-05099-THE, 2016 WL 913395, at *4 (N.D. Cal. Mar. 10, 2016).
King does not identify any “formal or express” PPB policy to support this first theory of Monell liability. Sherman, 2022 WL 2670148, at *8. Instead, he argues that the fact that Taylor twice deployed FN 303 projectiles against demonstrators in violation of Judge Hernandez's Order plausibly establishes that the City has a “persistent and widespread” custom of training its police officers to violate citizens' rights. (See Pl.'s Resp. at 2 (noting amended allegations about Taylor's use of force against another demonstrator on July 4, 2020).) The court disagrees. The Ninth Circuit has long recognized that “[l]iability 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, 99 F.3d at 918 (emphasis added). Because King's allegations are based on two isolated incidents that stem from Taylor's conduct, they do not plausibly establish a custom or practice that would be “so permanent and well-settled as to constitute a custom or usage with the force of law” within PPB. See Monell, 436 U.S. at 681; see also Meehan v. Cnty. of Los Angeles, 856 F.2d 102, 107 (9th Cir. 1988) (holding that proof of two unconstitutional assaults by county police officers, standing alone, did not establish a “custom” sufficient to support Monell liability). Thus, King has not plausibly alleged that the City has an unconstitutional “policy, custom, and/or practice” of training its officers to violate citizens' constitutional rights.
King also asserts that “further proof of Monell violations can be found in [Judge Hernandez's] Court ruling that the [City] should be held in contempt for 2020 FN303 violations of civil rights.” (Pl.'s Resp. at 2 (citing Don't Shoot Portland, Case No. 3:20-cv-00917)). King's amended complaint lacks any reference to that ruling, and he offers no developed argument as to how Judge Hernandez's ruling that the City violated the Stipulated TRO constitutes “proof of Monell violations.” Thus, his assertion is not well-taken.
To the extent King asserts that the City unconstitutionally failed to train and supervise its officers, his allegations are also insufficient. Failure to train or supervise can lead to Monell liability only where the training or supervision is sufficiently inadequate to constitute “deliberate indifference” to citizens' constitutional rights. City of Canton v. Harris, 489 U.S. 378, 390 (1989) (failure to train); Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989) (failure to supervise). Deliberate indifference is “a stringent standard of fault,” requiring proof that a municipality disregarded a known or obvious consequence of its action or inaction. Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997); Horton, 915 F.3d at 603. To show deliberate indifference, a plaintiff generally must demonstrate that “the need ‘for more or different' action ‘is so obvious, and the inadequacy [of existing practice] 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.'” Hyun Ju Park v. City & Cnty. of Honolulu, 952 F.3d 1136, 1141 (9th Cir. 2020) (quoting City of Canton v. Harris, 489 U.S. 378, 390 n.10 (1989)). A plaintiff can meet this standard by establishing that a city “continue[d] adherence to an approach that [it knew or should have known] ha[d] failed to prevent tortious conduct by employees.” Brown, 520 U.S. at 408. A city's failure to ensure compliance with its written policies, particularly when there is frequent noncompliance with those policies, demonstrates deliberate indifference. See Horton, 915 F.3d at 604-05. Prior complaints against city employees may put a municipality on notice of the likelihood of future constitutional violations. See, e.g., Beck v. City of Pittsburgh, 89 F.3d 966, 973 (3d Cir. 1996); Berrios v. City of Philadelphia, 96 F.Supp.3d 523 (E.D. Pa. 2015).
King does not explicitly allege that the City failed to train or supervise its police officers, nor does he identify in what respect the officers' training or supervision was deficient or evidenced deliberate indifference. Neither the complaint nor the Stipulated TRO alleges facts- such as prior complaints against the City related to police officers' use of FN 303s- demonstrating that the City knew or should have known that continued adherence to its training or supervision practices was likely to lead to future constitutional violations. Instead, King offers only the conclusory allegation that “Defendants City and County were deliberately indifferent to King's rights and caused or contributed to the cause of his injuries.” (Ex. A ¶ 23.) On a motion to dismiss, the court is “not bound to accept a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678. Because King's amended complaint lacks factual allegations to support his assertion that the City acted with deliberate indifference, King has not stated plausible Monell claims under either a failure to train or failure to supervise theory of liability.
Finally, King seeks to hold the City liable for the alleged constitutional violations under a ratification theory. To establish Monell liability based on ratification, a plaintiff must offer factual allegations plausibly demonstrating that a final policymaker for the City “knew of and specifically made a deliberate choice to approve” a constitutional violation. Santos v. NaphCare, Inc., 3:21-cv-00131-YY, 2022 WL 828140, at *11 (D. Or. Feb. 4, 2022) (citing Model Civ. Jury Instr. 9th Cir. 9.7 (2020)). “A single decision by a municipal policymaker ‘may be sufficient to trigger [§] 1983 liability under Monell, even though the decision is not intended to govern future situations,' but the plaintiff must show that the triggering decision was the product of a ‘conscious, affirmative choice' to ratify the conduct in question.” Lassiter v. City of Bremerton, 556 F.3d 1049, 1055 (9th Cir. 2009) (quoting Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992)); see also Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).
In his original complaint, King's sole allegation to support his ratification theory was that “Taylor's false report was reviewed and ratified in the regular course by Taylor's immediate superior officer and possibly higher ranking PPB members.” (Compl. ¶¶ 18-19.) The City, in its motion to dismiss, correctly noted that King had not alleged “that any person with policy-making authority reviewed or approved” Taylor's allegedly false report. (Def.'s Mot. Dismiss at 6.) King responded to that argument with the following amended allegation:
[A] City of Portland supervisor with policy making authority expressly approved of the decision, ratifying defendant Taylor's acts and casting it in the form of a policy statement, and further the basis for said acts, and ratified defendant Taylor's acts and the basis for said acts, that is, City of Portland policymakers knew of and specifically approved of the individual defendant's acts of violating the court Order, as Taylor failed to comply with that lawful Order as to FN303 projectiles.(Ex. A ¶¶ 24, 31; Pl's Resp. at 2 (“Plaintiff also amends his ratification language to assuage defendant's allegations of deficient pleading.”).)
The City argues that King's “reworded allegations remain a formulaic recitation of a Monell claim that does not entitle [him] to Monell relief.” (Def.'s Reply at 3.) The court agrees.
King does not allege what “decision” was ratified or how it was “cast[] in the form of a policy statement.” He also alleges no facts from which the court reasonably could infer that the “supervisor” reviewing Taylor's report had “policy making authority” for the City and “knew of and specifically made a deliberate choice to approve” the alleged constitutional violations. Given those deficiencies, King's amended allegations remain insufficient to establish Monell liability under a ratification theory. See Sherman, 2022 WL 2670148, at *9 (ratification theory failed where plaintiff did “not allege what decision was ratified or by whom”).
In summary, because King's amended allegations do not plausibly establish that (1) the City has an unconstitutional “policy, custom, and/or practice of training [its officers] to violate” citizens' constitutional rights or that (2) a City official with policymaking authority knew of and affirmatively ratified Taylor's alleged constitutional violation, the City's motion to dismiss those claims should be granted.
B. Leave to Amend
“Whether to grant leave to amend is committed to the sound discretion of the district court.” United Bhd. of Carpenters & Joiners of Am. v. Bldg. & Constr. Trades Dep't, AFL-CIO, 770 F.3d 834, 845 (9th Cir. 2014). The Ninth Circuit has emphasized that “[t]he standard for granting leave to amend is generous,” United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011) (citation omitted), because the purpose of Federal Rule of Civil Procedure 15(a) is “to facilitate decision on the merits, rather than on the pleadings or technicalities.” Novak v. United States, 795 F.3d 1012, 1020 (9th Cir. 2015) (citation omitted).
The City argues that, because King's amended complaint simply offers “reworded allegations” that do not remedy the deficiencies in his original pleadings, it would be futile to grant King further leave to amend his Monell claims. (Def.'s Reply at 4.) King counters that he should be granted leave to file a second amended complaint. (Pl.'s Resp. at 3.)
“Futility alone is enough to deny a motion for leave to amend.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). “However, a proposed amendment is only futile if no set of facts can be proven under the amendment to the pleadings that would constitute a valid and sufficient claim.” Munoz v. Union Pacific R.R. Co., Case No. 2:21-cv-0186-SU, 2021 WL 3598531, at *1 (D. Or. Aug. 13, 2021) (citation omitted). Here, although King's amended allegations were conclusory, it is possible that his Monell claims could be saved by amendment to include additional factual allegations regarding the City's alleged policies and conduct. Thus, the City's motion to dismiss King's Monell claims should be granted with leave to amend.
CONCLUSION
As explained above, the City of Portland's motion to dismiss (ECF No. 9) should be GRANTED. King's Monell claims against the City should be dismissed with leave to file an amended complaint within 14 days of an Order adopting this F&R.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within fourteen days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.