Opinion
B292769
02-18-2020
ANTRANIK KEVORKIAN, Plaintiff and Appellant, v. LOS ANGELES COUNTY SHERIFF'S DEPARTMENT et al., Defendants and Respondents.
Antranik Kevorkian, in pro. per., for Plaintiff and Appellant. Fuentes & McNally, Raymond J. Fuentes and Jennifer C. Koo for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. EC065694) APPEAL from a judgment of the Superior Court of Los Angeles County, Ralph C. Hofer, Judge. Affirmed in part, reversed in part. Antranik Kevorkian, in pro. per., for Plaintiff and Appellant. Fuentes & McNally, Raymond J. Fuentes and Jennifer C. Koo for Defendants and Respondents.
Antranik Kevorkian appeals from a judgment entered after the trial court sustained without leave to amend the demurrer filed by the Los Angeles County Sheriff's Department (LASD), and three LASD officers (Lieutenant Tracy Stewart, Sergeant Patrick Blanchfield-Gadut, and Deputy Tareq Abdulfattah) to Kevorkian's claims under title 42 United States Code section 1983 (section 1983) for violation of his constitutional rights. Kevorkian alleges he was arrested without probable cause based on a false accusation he had caused a disruption at a police station and struck an officer, and the LASD officers applied excessive force in handcuffing him and transporting him to jail.
Section 1983 "creates a private right of action to vindicate violations of 'rights, privileges, or immunities secured by the Constitution and laws' of the United States. Under the terms of the statute, '"[e]very person" who acts under color of state law to deprive another of a constitutional right [is] answerable to that person in a suit for damages.'" (Rehberg v. Paulk (2012) 566 U.S. 356, 361.)
We affirm the trial court's judgment in favor of LASD because Kevorkian has not alleged an official LASD policy or practice that caused the infringement of Kevorkian's civil rights pursuant to Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 690 (Monell). However, Kevorkian has sufficiently alleged against the three LASD officers a section 1983 claim for violation of his Fourth Amendment rights. We therefore reverse the judgment as to Lieutenant Stewart, Sergeant Blanchfield-Gadut, and Deputy Abdulfattah in their individual capacities.
FACTUAL AND PROCEDURAL BACKGROUND
A. Kevorkian's Allegations in His Second Amended Complaint
At 11:30 on the night of August 22, 2014 Kevorkian accompanied his sister-in-law Nancy to LASD's Altadena station so Nancy could file a complaint against sheriff's deputies for coming to her home earlier that evening and stealing her belongings. Kevorkian was standing next to Nancy in the lobby of the police station while Nancy explained her complaint to Lieutenant Stewart. Lieutenant Stewart became angry and refused to allow Nancy to file a report. When Nancy objected, Lieutenant Stewart grew increasingly irate and, in an expletive-laden tirade, ordered Nancy and Kevorkian out of the building.
Kevorkian "was already by the exit" holding the door open for Nancy to leave when Lieutenant Stewart approached and "started to bully" Kevorkian, demanding to know why he had come to the station. Before Kevorkian could respond, Lieutenant Stewart, standing four feet away, exclaimed Kevorkian had hit her in the face. Lieutenant Stewart accused Kevorkian of "various criminal acts that never accrued [sic]" and ordered Sergeant Blanchfield-Gadut and Deputy Abdulfattah, who "were . . . coming from inside" the station, to arrest Kevorkian. Sergeant Blanchfield-Gadut and Deputy Abdulfattah then "arrested [Kevorkian] by attac[k]ing like animals and forcing their arms and bodies towards [him] while one was holding [him] from his shoulders and the other deputy was forcing [his] arms behind him and forcing the handcuffs on [him]."
Sergeant Blanchfield-Gadut and Deputy Abdulfattah then searched Kevorkian and transported him to the jail for the offense of intentionally interfering with a business (Pen. Code, § 602.1, subd. (b)). As they brought him to the jail, all three officers cursed at Kevorkian, yelling "f---ing Armenians" for unnecessarily creating trouble for the police.
Penal Code section 602.1, subdivision (b), provides, "Any person who intentionally interferes with any lawful business carried on by the employees of a public agency open to the public, by obstructing or intimidating those attempting to carry on business, . . . and who refuses to leave the premises of the public agency after being requested to leave by the office manager or a supervisor of the public agency, or by a peace officer acting at the request of the office manager or a supervisor of the public agency, is guilty of a misdemeanor . . . ."
Kevorkian's wrists were in pain, and he asked the officers to loosen the handcuffs so he would not be injured. Lieutenant Stewart rejected Kevorkian's request, stating the officers were not doctors and the sheriff's station was not a hospital. Deputy Abdulfattah then said to Kevorkian if he did not stop complaining, they would take him to the county jail where the other inmates would provide medical treatment. All three officers laughed at this comment. Kevorkian remained in pain from the handcuffs while the officers questioned him, fingerprinted him, and issued him a misdemeanor ticket, before releasing him.
After he was released, Kevorkian asked the officers to call the paramedics to look at his wrists, but they refused. Kevorkian walked back to Nancy's house, arriving around 2:00 a.m. At that time his brother called the paramedics. No charges were ever filed against Kevorkian. B. Procedural Background
On February 18, 2016 Kevorkian submitted a claim to the County of Los Angeles pursuant to the Government Claims Act (Gov. Code, § 910 et seq. (GCA)) for damages arising from the August 22, 2014 incident. The county denied his claim on April 8, 2015.
On August 22, 2016 Kevorkian, as a self-represented litigant, filed this action. On December 11, 2017 Kevorkian filed a first amended complaint (FAC) asserting six causes of action: (1) violation of his Fourth Amendment rights; (2) violation of his Fourteenth Amendment rights; (3) negligence; (4) violation of article I, section 7, subdivision (a) of the California Constitution; (5) intentional infliction of emotional distress; and (6) "racism." The FAC alleged only a short account of the August 22, 2014 incident.
Defendants demurred to the FAC on January 11, 2018, arguing Kevorkian's claims were time-barred under the GCA and Kevorkian failed to allege sufficient facts to state claims under section 1983 for violation of the Fourth and Fourteenth Amendments or under California law. The trial court sustained the demurrer to the state law causes of action without leave to amend on multiple grounds, including that they were time-barred under the GCA. The court also sustained the demurrer to Kevorkian's section 1983 claims, finding Kevorkian had failed to allege conduct by the defendants that violated Kevorkian's constitutional rights and a policy or practice supporting a Monell claim, but the court granted leave to amend.
Before filing this lawsuit, Kevorkian filed an identical action in a different courthouse of the Los Angeles Superior Court (first action), within six months of denial of his GCA claim. (Kevorkian v. County of Los Angeles Sheriff's Department et al. (Super. Ct. L.A. County, 2016, No. BC596795).) The trial court dismissed the action without prejudice because Kevorkian failed to file proof he had served the defendants with a statement of damages to support his request for a default judgment. In response to defendants' demurrer to the FAC in this action, Kevorkian argued the deadline to file his state claims in this action was equitably tolled during the pendency of the first action. The trial court rejected this argument, finding if Kevorkian wanted to revive his time-barred state law claims, he should have sought relief from the dismissal in the first action.
Kevorkian filed the operative seconded amended complaint (SAC) on May 18, 2018, alleging section 1983 causes of action for violation of his Fourth and Fourteenth Amendment rights. The SAC alleges the facts of the August 22, 2014 incident in greater detail than the FAC. Although the SAC is not a paragon of clarity, the gravamen of both causes of action appears to be claims for false arrest and excessive force.
Defendants demurred to the SAC, arguing Kevorkian still failed to state sufficient facts under section 1983 to show a violation of either the Fourth or Fourteenth Amendment and failed to allege a viable section 1983 claim under Monell against LASD and the LASD officers in their official capacities.
On July 20, 2018 the trial court sustained defendants' demurrer to the SAC without leave to amend, finding the SAC "again fails to sufficiently allege a policy or widespread practice on the part of the moving defendants or the department which is the subject of this action." The court found Kevorkian's failure to correct the flaws in the previous pleading or to demonstrate how he could amend to address those defects warranted denial of further leave to amend. On June 26, 2018 the trial court entered a judgment of dismissal with prejudice as to all defendants. Kevorkian timely appealed from the judgment.
Kevorkian does not appeal the trial court's dismissal of his state law claims alleged in the FAC.
DISCUSSION
On appeal, Kevorkian contends he adequately alleged section 1983 claims against LASD and the three LASD officers for violation of his rights under the Fourth and Fourteenth Amendments based on his arrest and detention without probable cause and use of excessive force in handcuffing him during the August 22, 2014 incident. We agree Kevorkian has alleged sufficient facts to constitute a section 1983 claim against the three officers in their individual capacities, but not against LASD or the officers in their official capacities. A. Standard of Review
"'In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.'" (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1050 (King); accord, T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) In reviewing the complaint, "we assume the truth of the allegations." (Lee v. Hanley (2015) 61 Cal.4th 1225, 1230; accord, McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.)
When reviewing a demurrer to a section 1983 claim, "we '"apply federal law to determine whether [the] complaint [has pleaded] a cause of action . . . sufficient to survive a general demurrer." [Citations.] According to federal law, "we are required to construe complaints under [section 1983] liberally." [Citation.] "To uphold a dismissal [for failure to state a claim for relief, the federal counterpart of our general demurrer], it must appear to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved." [Citation.]' [Citation.] . . . [Citations.] In line with California practice, the court accepts the allegations in the complaint as true and construes the allegations, and any reasonable inferences that may be drawn from them, in the light most favorable to the plaintiff." (Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1471 (Arce); accord, Rubin v. Padilla (2015) 233 Cal.App.4th 1128, 1144.)
Under federal law, allegations of a complaint filed by a self-represented litigant, "'however inartfully pleaded[,]' are held 'to less stringent standards than formal pleadings drafted by lawyers . . . .'" (Hughes v. Rowe (1980) 449 U.S. 5, 9; accord, Litmon v. Harris (9th Cir. 2014) 768 F.3d 1237, 1241 ["We construe pro se complaints liberally, especially in civil rights cases."]; Pierce v. San Mateo County Sheriff's Dept. (2014) 232 Cal.App.4th 995, 1002 (Pierce).) "'However, a liberal interpretation of a pro se civil rights complaint may not supply essential elements of the claim that were not initially pled. Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.'" (Litmon, at p. 1241; see Ashcroft v. Iqbal (2009) 556 U.S. 662, 678 (Iqbal) ["Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."].) B. The Trial Court Erred in Dismissing Kevorkian's Section 1983 Claims Against the LASD Officers in Their Individual Capacities
"'To state a claim under [section] 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.' [Citation.] '"State courts look to federal law to determine what conduct will support an action under section 1983. [Citation.]"' [Citation] 'The threshold inquiry [in analyzing a section 1983 claim] is whether the evidence establishes that appellants have been deprived of a constitutional right.'" (Arce, supra, 211 Cal.App.4th at pp. 1472-1473; accord, Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 384.)
1. The SAC alleges facts constituting a claim against Lieutenant Stewart for unlawful arrest in violation of Kevorkian's Fourth Amendment rights
"'The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In conformity with the rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.'" (People v. Thompson (2006) 38 Cal.4th 811, 817.) Conversely, "[i]t is well established that 'an arrest without probable cause violates the Fourth Amendment and gives rise to a claim for damages under [section] 1983.'" (Rosenbaum v. Washoe County (9th Cir. 2011) 663 F.3d 1071, 1076; accord, Yousefian v. City of Glendale (9th Cir. 2015) 779 F.3d 1010, 1014.)
"Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested." (United States v. Lopez (9th Cir. 2007) 482 F.3d 1067, 1072, citing Beck v. Ohio (1964) 379 U.S. 89, 91; accord, People v. Mower (2002) 28 Cal.4th 457, 473 ["'"'Reasonable or probable cause' means such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused."'"].) "Probable cause is measured by an objective standard based on the information known to the arresting officer, rather than a subjective standard that would take into account the arresting officer's actual motivations or beliefs." (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1045.) "'"'[S]ufficient probability [that a crime has been committed], not certainty, is the touchstone of reasonableness under the Fourth Amendment.'"'" (Levin v. United Air Lines, Inc. (2008) 158 Cal.App.4th 1002, 1018.)
Defendants contend the SAC does not allege facts showing Kevorkian was detained and arrested without probable cause. But it does. Kevorkian alleges he was arrested, detained for two hours, and issued a misdemeanor citation for obstructing LASD employees from carrying on their business, then refusing to leave the police station. He alleges he was not being disruptive and Lieutenant Stewart fabricated that he had hit her. Further, after Lieutenant Stewart commanded Kevorkian to leave the police station, Kevorkian was "already by the exit (entrance) door and telling Nancy lets [sic] go there is no point to be here, and was holding the door open so Nancy will come towards [Kevorkian] and exit to leave." Kevorkian alleges he "did not even get the chance to say that he . . . was there to accompany his sister in law . . . ." When Kevorkian tried to respond to Lieutenant Stewart, she accused him of hitting her in the face and of "various criminal acts that never accrued [sic]," and she ordered Sergeant Blanchfield-Gadut and Deputy Abdulfattah to arrest him.
Accepting these allegations as true and construing them in the light most favorable to Kevorkian (Arce, supra, 211 Cal.App.4th at p. 1471), it was not reasonable for Lieutenant Stewart to believe Kevorkian committed the offense of intentionally interfering with a business when he simply accompanied Nancy into the police station and complied with Lieutenant Stewart's command to leave. (People v. Mower, supra, 28 Cal.4th at p. 473; United States v. Lopez, supra, 482 F.3d at p. 1072.) Further, to the extent the SAC alleges Lieutenant Stewart falsely accused Kevorkian of hitting her and ordered his arrest on that basis, the SAC alleges a Fourth Amendment violation. (Orellana v. County of Los Angeles (C.D.Cal., Apr. 29, 2013, No. CV 12-01944 MMM (CWx)) 2013 WL 12122692, *12 ["Proof that an officer intentionally fabricated evidence may . . . show that plaintiff was deprived of [his or] her Fourth Amendment right to be free from unreasonable seizure."].) Because Lieutenant Stewart did not have probable cause to arrest Kevorkian but ordered his arrest under color of law, the SAC alleges facts constituting a section 1983 claim against Lieutenant Stewart for false arrest in violation of Kevorkian's Fourth Amendment rights.
In addition to Fourth Amendment guarantees, "'there is a clearly established constitutional due process right not to be subject to criminal charges on the basis of false evidence that was deliberately fabricated by the government.'" (Caldwell v. City and County of San Francisco (9th Cir. 2018) 889 F.3d 1105, 1112.) However, Kevorkian was never charged, and therefore his false arrest claim is properly cognizable under the Fourth, not the Fourteenth Amendment.
The SAC fails, however, to allege facts supporting a section 1983 claim for false arrest against Sergeant Blanchfield-Gadut and Deputy Abdulfattah. As alleged, Sergeant Blanchfield-Gadut and Deputy Abdulfattah were not present when Lieutenant Stewart began to argue with Nancy, and they were still "coming from inside while they heard Lt. Stewart was yelling at Nancy and [Kevorkian]." The SAC does not allege Sergeant Blanchfield-Gadut or Deputy Abdulfattah witnessed Kevorkian and Lieutenant Stewart's interaction prior to arresting him or that they had any reason to suspect Lieutenant Stewart was lying when she said Kevorkian had hit her. To the contrary, the SAC repeatedly emphasizes the two officers were acting on Lieutenant Stewart's orders. It was therefore objectively reasonable for Sergeant Blanchfield-Gadut and Deputy Abdulfattah, approaching the frenzied scene described in the SAC, to conclude Kevorkian was obstructing police business and endangering Lieutenant Stewart, providing probable cause to arrest Kevorkian under Penal Code section 602.1. To the extent the SAC is construed as alleging separate claims for an arrest without probable cause (first cause of action) and excessive force (second cause of action), we affirm the trial court's dismissal of Kevorkian's section 1983 claims for false arrest against Sergeant Blanchfield-Gadut and Deputy Abdulfattah.
We focus on Kevorkian's factual allegations and the substantive violations of his rights rather than the constitutional provisions he claims were violated. "The failure in a complaint to cite a statute [or constitutional provision], or to cite the correct one, in no way affects the merits of a claim. Factual allegations alone are what matters." (Albert v. Carovano (2d Cir. 1988) 851 F.2d 561, 571, fn. 3; accord, McLeod v. Jewish Guild for the Blind (2d Cir. 2017) 864 F.3d 154, 158 [self-represented litigant's failure to check boxes specifying she was asserting state law discrimination claims was not a proper ground for dismissal]; see Cervantes v. Zimmerman (S.D.Cal., July 29, 2019, Nos. 17-cv-1230-BAS-NLS, 18-cv-1062-BAS-NLS) 2019 WL 3413508, *4 ["[T]he [c]ourt rejects the [c]ounty [d]efendants' apparent belief that any [s]ection 1983 claim would necessarily be subject to dismissal for a purported failure to identify the correct constitutional provision."].)
2. The SAC alleges sufficient facts to constitute a section 1983 claim against the three LASD officers for use of excessive force in violation of Kevorkian's Fourth Amendment rights
Defendants contend the SAC fails to allege the LASD officers used excessive force in arresting Kevorkian because handcuffing a defendant without additional facts showing excessive force does not support a section 1983 claim. On the facts alleged, defendants' contention lacks merit. The use of excessive force by law enforcement officers in the course of an arrest is properly analyzed under the Fourth Amendment's protections against unreasonable searches and seizures. (Graham v. Connor (1989) 490 U.S. 386, 395 ["[A]ll claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach."]; Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 527 [same].) "The reasonableness of th[e] use of force 'must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.' [Citation.] The reasonableness inquiry is an objective one: 'whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.' [Citation.] In other words, '[a]n officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.' [Citation.] The reasonableness test evaluates the totality of the relevant circumstances, which may include 'the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.'" (People v. Perry (2019) 36 Cal.App.5th 444, 465-466, quoting Graham, at pp. 396-397.)
Kevorkian has alleged his section 1983 claim under both the Fourth and Fourteenth Amendments. The United States Supreme Court has recognized a pretrial detainee may bring a section 1983 claim against jail officers for excessive force during detention under the due process clause of the Fourteenth Amendment. (See Kingsley v. Hendrickson (2015) 135 S.Ct. 2466, 2473.) However, Kingsley and its progeny have involved either excessive force during pretrial incarceration (see id. at pp. 2470, 2473; Piazza v. Jefferson County (11th Cir. 2019) 923 F.3d 947, 949) or pretrial detention conditions (see Darnell v. Pineiro (2d Cir. 2017) 849 F.3d 17, 20, 29 [triable Fourteenth Amendment claim concerning pre-arraignment conditions of confinement at booking facility where arrestees were confined for up to 24 hours]; Gordon v. County of Orange (9th Cir. 2018) 888 F.3d 1118, 1124 [applying Kingsley to due process claim for failure to provide medical care in county jail to inmate 30 hours after initial detention]). Here, other than conclusory allegations Kevorkian was walked "inside the station (jail) under arrest" and later "was out of jail from the station," the SAC does not allege excessive force was used while he was incarcerated, and he was released within two and a half hours from his arrest. Under these facts, the SAC does not adequately allege a Fourteenth Amendment due process claim for excessive force.
The SAC alleges Sergeant Blanchfield-Gadut and Deputy Abdulfattah arrested Kevorkian "by attac[k]ing like animals and forcing their arms and bodies towards [him] while one was holding [him] from his shoulders and the other deputy was forcing [his] arms behind him and forcing the handcuffs on [him]," which caused Kevorkian to be "confused, shocked, [and] traumatized." The SAC further alleges Kevorkian was in pain from the handcuffs and asked the officers to loosen them so his wrists would not be injured, but Lieutenant Stewart responded the officers were not doctors, and Deputy Abdulfattah told Kevorkian he would instead have the other inmates provide medical care, generating laughter from the three officers. In addition, Kevorkian remained in pain from the handcuffs while the officers questioned, fingerprinted, and cited him, before releasing him sometime before 2:00 a.m.
Arguably Sergeant Blanchfield-Gadut and Deputy Abdulfattah's initial use of force to restrain and handcuff Kevorkian after Lieutenant Stewart claimed Kevorkian had hit her was objectively reasonable. (See, e.g., Palacios v. City of Oakland (N.D.Cal. 1997) 970 F.Supp. 732, 741 [officers behaved in an objectively reasonable manner when they handcuffed plaintiff pursuant to a lawful arrest for public intoxication because "it is standard practice for police officers to handcuff a suspect to eliminate the possibility of an assault when the suspect is taken into custody"].) But the officers' alleged refusal to loosen Kevorkian's handcuffs during the booking process after they had secured him and he complained of pain and requested medical attention, instead laughing at his predicament, was not objectively reasonable. (See Wall v. County of Orange (9th Cir. 2004) 364 F.3d 1107, 1112 ["On [plaintiff's] version of the facts, [officer] used excessive force in making the arrest and continuing the restraint by handcuffs that hurt and damaged [plaintiff's] wrist. . . . It is well-established that overly tight handcuffing can constitute excessive force." (Citations omitted.)]; LaLonde v. County of Riverside (9th Cir. 2000) 204 F.3d 947, 952 [officers conducting search used excessive force when they ignored arrestee's complaints his handcuffs were cutting off his circulation by telling the arrestee, whose skin was irritated from having been pepper-sprayed, that he would be fine if he held still].)
Defendants' reliance on Stevenson v. Jones (N.D.Cal. 2017) 254 F.Supp.3d 1080 is misplaced. In Stevenson, the court granted summary judgment in favor of a corrections officer who had used tight single-cuffs instead of double cuffs while transporting a disruptive jail inmate, leaving bruises on the inmate's wrist. (Id. at p. 1092.) But unlike here, the inmate had not complained his handcuffs were too tight or asked the deputy to loosen them. (Ibid.) Indeed, the Stevenson court surveyed several handcuffing cases and noted the cases finding a disputed question of fact involved significant force, serious injuries, or "refusals by officers to loosen handcuffs once alerted by the handcuffed person that the handcuffs were painfully tight." (Id. at p. 1091; accord Hupp v. City of Walnut Creek (N.D.Cal. 2005) 389 F.Supp.2d 1229, 1232 ["In cases where the Ninth Circuit has held that excessively tight handcuffing can constitute a Fourth Amendment violation, plaintiffs either were demonstrably injured by the handcuffs or their complaints about the handcuffs being too tight were ignored by the officers."].)
Although only Sergeant Blanchfield-Gadut and Deputy Abdulfattah fastened the handcuffs, the SAC alleges all three LASD officers interacted with Kevorkian after his initial arrest and rejected his complaints of pain and requests for medical attention. Accordingly, the SAC alleges a section 1983 claim for excessive force under the Fourth Amendment against all three LASD officers. C. The Trial Court Did Not Err in Dismissing Kevorkian's Claims Against LASD and the LASD Officers in Their Official Capacity
1. Pleading requirements under Monell
A local government agency may only be liable for constitutional violations under section 1983 "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury . . . ." (Monell, supra, 436 U.S. at p. 694; accord, Pierce, supra, 232 Cal.App.4th at p. 1007; Perry v. County of Fresno (2013) 215 Cal.App.4th 94, 105.) To establish liability under Monell, "[t]he plaintiff must establish that (1) the plaintiff was deprived of a constitutional right; (2) the government entity had a policy [or custom]; (3) this policy amounted to deliberate indifference to the plaintiff's constitutional right; and (4) the policy was the moving force behind the constitutional violation." (Perry, at pp. 105-106.)
Claims against government employees sued in their official capacity are treated as claims against the employing agency and are subject to the Monell requirements. (Kentucky v. Graham (1985) 473 U.S. 159, 166 ["As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity."]; Payne v. McDermott (9th Cir. 2017) 683 Fed.Appx. 643, 645 [applying Monell to § 1983 claim against sheriff's deputies who confiscated sexually explicit comic book in jail on basis "suit against a government employee in his official capacity is a suit against the government entity the individual represents"].)
The federal courts have applied the pleading requirements of Iqbal, supra, 556 U.S. at page 678 (requiring more than conclusory allegations) to Monell claims. (See Galindo v. City of San Mateo (N.D.Cal., Dec. 7, 2016, No. 16-cv-03651-EMC) 2016 WL 7116927, *5 [". . . Monell allegations must be pleaded with specificity as required under Twombly and Iqbal."]; accord, Bedford v. City of Hayward (N.D.Cal., Oct. 15, 2012, No. 3:12-cv-00294-JCS) 2012 WL 4901434, *12 ["to withstand a motion to dismiss for failure to state a claim, a Monell claim must consist of more than mere 'formulaic recitations of the existence of unlawful policies, conducts or habits'"].)
The United States Supreme Court in Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544, 555, held that "[w]hile a complaint attacked by a . . . motion to dismiss does not need detailed factual allegations [citations], a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."
2. The SAC fails to allege an official policy or custom responsible for the alleged violations of Kevorkian's rights
We agree with defendants the SAC fails to allege an official policy or custom that caused the alleged constitutional violations. The SAC bases Kevorkian's Monell claim on alleged "evidence of a policy of discrimination exhibited by the LASD, and especially the LASD[] in Altadena California station/division." In support of this assertion, the SAC alleges the Department of Justice (DOJ) investigated LASD in the Antelope Valley and found LASD "employs a pattern or practice of misconduct by making pedestrian and vehicle stops that violate the [Fourth] Amendment, making stops that appear racially motivated, in violation of the [Fourteenth] Amendment; using unreasonable force in violation of the [Fourteenth] Amendment; and discriminating against African-American residents of the cities of Lancaster and Palmdale on the basis of race by making [h]ousing unavailable, altering the terms and conditions of housing, and coercing, intimidating, and interfering with housing rights in violation of the Fair Housing Act [(42 U.S.C. § 3601, et seq.)]." (Boldface omitted.)
The allegations of racially motivated investigatory stops and housing discrimination do not show an LASD policy or custom of false arrests or the use of excessive force. Although Kevorkian also alleges an LASD pattern or practice of "using unreasonable force in violation of the [Fourteenth] Amendment," this conclusory allegation does not set forth a specific policy that bears on Kevorkian's excessive force claim, for example, a policy directing LASD officers to use excessive force in handcuffing a suspect or to deny requests to loosen handcuffs in response to complaints of pain. Moreover, the SAC alleges the LASD policies were implemented by officers in the Antelope Valley. This allegation does not bear on whether there was an official policy or custom to use excessive force in Altadena (in Los Angeles County), or whether the "pattern" of excessive force was in response to a policy promulgated by authorized county officials.
Even where there is a relevant policy or custom a plaintiff must allege under Monell that the policy or custom was promulgated by county lawmakers or officials who set official policy. (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 569; Federer v. County of Sacramento (1983) 141 Cal.App.3d 184, 186 [affirming order sustaining demurrer without leave to amend to § 1983 claim against county, sheriff, and sheriff's deputies where plaintiffs alleged deputy sheriff enabled prisoners to escape by leaving jail door open, violating official policy].)
3. Kevorkian has not shown a reasonable possibility he can amend
"If the demurrer was sustained without leave to amend, we consider whether there is a 'reasonable possibility' that the defect in the complaint could be cured by amendment." (King, supra, 5 Cal.5th at p. 1050.) "The burden is on plaintiff[] to prove that amendment could cure the defect." (Ibid.) Plaintiff "'may [even] meet this burden [for the first time] on appeal.'" (Sierra Palms Homeowners Assn. v. Metro Gold Line Foothill Extension Construction Authority (2018) 19 Cal.App.5th 1127, 1132; accord, Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 971.)
Kevorkian has repeatedly failed to explain, including on appeal, how he could amend his complaint to allege an unlawful policy or custom to support his section 1983 claims against LASD. In his opening brief on appeal, Kevorkian for the first time asserts LASD is liable for "negligent hiring, training, and supervision" under Government Code section 815.2, subdivision (a), but he does not address the more limited circumstances where inadequate training may be a basis for government agency liability under Monell. (See Connick v. Thompson (2011) 563 U.S. 51, 61 [a "municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train," and the municipality's "failure to train its employees in relevant respect must amount to 'deliberate indifference to the rights of persons with whom the [untrained employees] come into contact'"]; Shadrick v. Hopkins County (6th Cir. 2015) 805 F.3d 724, 737 [Plaintiff's "burden under § 1983 is to prove that [the defendant entity's] failure to train and supervise its . . . nurses about the legal duty to provide constitutionally adequate medical care amounted 'to deliberate indifference to the rights of persons with whom the [nurses] come into contact.'"].)
Kevorkian does not state what facts he could allege to support a widespread failure to train amounting to deliberate indifference or other policy or custom supporting his Monell claim. "[N]otwithstanding the liberal policy favoring amendment of complaints, upon sustaining a demurrer to a[n] . . . amended complaint, the court may deny leave to amend when the plaintiff fails to demonstrate the possibility of amendments curing the . . . amended complaint's defects." (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 579.)
Defendants also argue in their respondent's brief that Kevorkian's filing of identical complaints in the first action and this action was an abuse of the judicial system in an effort to avoid an unfavorable ruling in the first action. But defendants did not raise this argument in their demurrer, and it is not properly before us on appeal. As defendants concede, "the dismissal by the . . . court [of the first action] is not dispositive to the issue on appeal." We therefore deny defendants' June 25, 2019 request for judicial notice of documents filed in the first action as unnecessary to our resolution of this appeal. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [judicial notice denied where "the requests present no issue for which judicial notice of these items is necessary, helpful, or relevant"]; Appel v. Superior Court (2013) 214 Cal.App.4th 329, 342, fn. 6 [judicial notice denied where materials are not "relevant or necessary" to the court's analysis].)
DISPOSITION
The judgment is affirmed in part and reversed in part. The parties are to bear their own costs on appeal.
FEUER, J. We concur:
PERLUSS, P. J.
SEGAL, J.