Stein v. The City of San Diego et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
NICK STEIN,
Plaintiff,
vs.
THE CITY OF SAN DIEGO, a municipal
corporation, LUISITO FANLO SD7841,
an individual, L. PULIDO SD7226, an
individual, SAN DIEGO POLICE CHIEF
DAVID NISLEIT, an individual,
WALLACE SD7739, an individual,
STANEK SD7824, an individual, and
DOES 1-7, inclusive,
Defendants.
Case No.: 24cv00953 DMS (AHG)
ORDER GRANTING DEFENDANT
CITY OF SAN DIEGO’S MOTION
TO DISMISS FIRST AMENDED
COMPLAINT
This case comes before the Court on Defendant City of San Diego’s motion to
dismiss pro se Plaintiff Nick Stein’s First Amended Complaint (“FAC”). Plaintiff filed an
opposition, and Defendant filed a reply. The matter is fully briefed and submitted.
Plaintiff, a “Caucasian male[,]” brings eleven claims against the City of San Diego,
former San Diego Police Chief Nisleit, San Diego Police Officers Fanlo, Pulido, Wallace,
and Stanek, and Does 1 to 7 based on a June 29, 2002 incident in which Plaintiff alleges
he was violently assaulted by Mexican gang members (the Doe Defendants) while he was
exercising at Mission Beach Park in San Diego. Plaintiff alleges he ran from the gang and
sought assistance from Officer Fanlo, “a Pilipino immigrant[,]” who was patrolling the
area. Instead of assisting, Officer Fanlo “grabbed Plaintiff … shook him violently[,]” and
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handcuffed and arrested Plaintiff for “doing flutter kicks” and other “weird” things. (FAC
¶¶ 27 & 28.) Plaintiff claims Officer Fanlo filed a false report stating Plaintiff was the
“main aggressor … was on drugs …[and] then tried to stand up … [and] run[,]” and that
Officer Fanlo filed the false report because he was “angry” and “bias[ed] about how
Plaintiff described his assailants … using the word ‘Mexican[.]’” (Id. ¶¶ 31 & 40.)
Plaintiff complains Defendant Officers failed to act against Doe Defendant gang
members, illegally arrested Plaintiff, and acted with “egregious conflicts of interest and
abuse[] of police power[.]” (Id. ¶ 1.). Plaintiff further complains that the City has a “de
facto policy or custom” of permitting SDPD Officers to “selective[ly] enforce[] the law,
… [and] escalate encounters with citizens without cause and abuse [] law enforcement
power to further personal interests[;]” that the City has “failed to train, supervise, or
discipline SDPD officers regarding the very kind of violations that Plaintiff suffered,” and
that the City through its official policymakers “made a deliberate choice … to endorse,
approve, and ratify Officer Fanlo’s unconstitutional conduct.” (Id. ¶¶ 8-10.)
Plaintiff brings six claims against Defendant Officers under 42 U.S.C. § 1983 for
violations of his First Amendment right to petition the government for redress of
grievances, retaliation, false arrest, abuse of process, violation of his Fourteenth
Amendment right to equal protection, and conspiracy to interfere with his civil rights,
respectively. Plaintiff brings three § 1983 “Monell” claims against the City—Claims 7, 8
and 9—based on (1) policy or custom, (2) failure to train, supervise, and discipline, and (3)
ratification. Plaintiff also brings Claim 10 for intentional infliction of emotional distress
against Officer Fanlo and Doe Defendants, and Claim 11 for assault and battery against
Doe Defendants only. Before the Court is the City’s motion to dismiss the three Monell
claims.
I. Legal Standard.
In deciding a motion to dismiss under Federal Rule of Procedure 12(b)(6), the Court
is mindful of Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), where the Supreme Court established a more stringent standard of
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review for 12(b)(6) motions. To survive a motion to dismiss under this standard, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570).
Under these authorities, the Court must view the allegations of the complaint in the light
most favorable to Plaintiff, consider allegations of the complaint as true, and accept all
reasonable inferences—though the Court is “not required to indulge in unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (citation
omitted). And while detailed factual allegations are not required under Rule 8(a)(2),
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff’s claims
must contain sufficient factual detail to allow the Court to reasonably infer that each named
defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678.
II. Analysis.
A. Policy or Custom.
To state a Monell claim under § 1983 based on policy or custom, a plaintiff must
sufficiently allege “he was deprived of a constitutional right; (2) the [City] had a policy;
(3) the policy amounted to deliberate indifference to [the plaintiff’s] constitutional rights;
and (4) the policy was the moving force behind the constitutional violation.” Lockett v.
County of Los Angels, 977 F.3d 737, 741 (9th Cir. 2020). The plaintiff must show a “direct
causal link” between the policy and the constitutional deprivation. Castro v. County of Los
Angeles, 833 F.3d 1060, 1075 (9th Cir. 2016) (en banc). Liability may arise from an
“expressly adopted official policy or a widespread or longstanding practice or custom” that
“is so closely related to the deprivation of the plaintiff’s rights as to be the moving force
that caused the ultimate injury.” See 9th Cir. Civ. Jury Instr. 9.5 (2017). A widespread
practice or custom must be so “persistent” that it constitutes a “permanent and well settled
city policy” and “constitutes the standard operating procedure of the local governmental
entity.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).
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Here, Plaintiff alleges the City has a “de facto policy or custom” of permitting SDPD
officers to “selective[ly] enforce[] the law, … [and] escalate encounters with citizens
without cause and abuse [] law enforcement power to further personal interests.” (FAC ¶
8.) Plaintiff argues his Monell claims are based in Officer Fanlo’s “seizing a crime victim
for using the word ‘Mexican,’ refusing to take his report, and fabricating a false report[,]”
and the Officer’s conduct was a “predictable result of the City’s deliberate indifference to
a well-settled custom within … SDPD of tolerating abuse of power, racial bias, and official
dishonesty[.]” (Opp’n at 2.) According to Plaintiff, he has alleged a “single, pervasive
custom within SDPD: a custom of tolerating and covering up officer misconduct, including
abuse of power, racial bias, and the filing of false reports.” (Id. at 3.) The custom is
“demonstrated,” says Plaintiff, by a “persistent pattern of violations throughout SDPD”
that are detailed in his FAC at Paragraphs 57-65 and through “on-scene actions” of other
Defendant Officers (Pulido, Wallace, and Stanek) who “ratified Officer Fanlo’s
misconduct.” (Opp’n at 3.) Officer Pulido was on-scene on June 29, 2022 and
“acquiesced” in the alleged constitutional violations of Officer Fanlo; the next day Officer
Wallace “participated in the cover-up[;]” and Officer Stanek was present with Officer
Wallace and he too “acquiesced in the continued refusal to accept Plaintiff’s report or
address the prior day’s misconduct[.]” (Id.) (citing FAC ¶¶ 50, 102, 110).
However, these allegations are insufficient to state a Monell claim based on custom
or practice. First, Plaintiff’s identification of several incidents involving SDPD fails to
allege a specific longstanding custom or practice that demonstrates bias against Caucasian
males or racist policing generally, abuse of power, and covering up. Four of the incidents
attributed to SDPD appear to postdate the events of this case and involve general
allegations of excessive force, racist behavior, false reporting and nepotism, and failure to
properly investigate a murder case, (FAC ¶¶ 57-60), but it is unclear how those events are
relevant to the circumstances of this case and create a longstanding practice that served as
the moving force for the alleged misconduct here. Plaintiff also cites a 2018 incident
involving a person who died after being restrained, criticism of SDPD for its “handling of
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demonstrators” following George Floyd’s death in 2020, and efforts by San Diego City
Council and the Community Review Board on Police Practices in 2018 and 2020 to
implement de-escalation policies. (Id. ¶¶ 61-64.) Finally, Plaintiff identifies a 2014
“physical assault” case against a woman by an SDPD officer. However, cobbling together
several unrelated incidents that generally involve use of excessive force, false reporting,
physical assault, dishonesty, or racial bias by other officers is insufficient to allege a
longstanding custom of SDPD “of tolerating abuse of power, racial bias, and official
dishonesty,” (Opp’n at 2), let alone a moving force for Defendant Officers in this case to
engage in such misconduct. Plaintiff’s allegations are insufficient to plausibly allege
SDPD has a “standard operating procedure” of this scope and sort. See Trevino, 99 F.3d
at 918.
In addition, Plaintiff’s allegations of “on-scene actions” of other Defendant Officers
(Pulido, Wallace, and Stanek) who “ratified” Officer Fanlo’s misconduct do not advance
his claim. Ratification is a separate theory of public entity liability, (see, infra, § II. C.),
and Officers Pulido, Wallace, and Stanek are not “policymakers” as required for such a
claim. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (stating whether an
official is a policymaker for Monell purposes is a question of law for the court to decide).
Accordingly, Plaintiff’s Monell claim based on policy or custom fails.
B. Failure to Train, Supervise, and Discipline.
To state a claim for failure to train, supervise, and discipline, the plaintiff must
ordinarily show a “pattern of similar constitutional violations by untrained employees”
necessary to demonstrate deliberate indifference. Connick v. Thompson, 563 U.S. 51, 62
(2011). Typically, “a single instance of unlawful conduct is insufficient” to state a claim
under this theory. Benavidez v. County of San Diego, 993 F.3d 1134, 1154 (9th Cir. 2021).
Plaintiff argues that while a pattern of similar constitutional violations is ordinarily
required, he falls within an exception to the general rule where in “a narrow range of
circumstances,” a single violation can suffice if the need for training is “so obvious” that
the failure to do so amounts to deliberate indifference, citing Connick, 563 U.S. at 63-64.
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(Opp’n at 4.) Plaintiff argues “[i]t is ‘so obvious’ that failing to train officers on their most
basic duties—to accept crime reports from victims, to manage their own racial biases, and
to understand the absolute prohibition on filing false reports—will lead to constitutional
violations.” (Id.)
In Flores v. County of Los Angeles, 758 F.3d 1154, 1159-60 (9th Cir. 2011), where
the plaintiff brought a claim for failure to properly train “to ensure that Sheriff's [d]eputies
do not sexually assault women that [d]eputies come in contact with” based on a prior sexual
assault conviction of a different deputy, the Ninth Circuit affirmed dismissal of the claim:
Nor does Flores's failure to train claim fall within the ‘narrow range of
circumstances [in which] a pattern of similar violations might not be necessary
to show deliberate indifference.’ In City of Canton, [489 U.S. 378, 389-90
(1989)], the ‘Court posed the hypothetical example of a city that arms its
police force with firearms and deploys the armed officers into the public to
capture fleeing felons without training the officers in the constitutional
limitation on the use of deadly force.’ … In its hypothetical, the Court ‘sought
not to foreclose the possibility, however rare, that the unconstitutional
consequences of failing to train could be so patently obvious that a city could
be liable under § 1983 without proof of a pre-existing pattern of violations.’
… As the Court observed, this hypothetical recognizes that ‘[t]here is no
reason to assume that police academy applicants are familiar with the
constitutional constraints of the use of deadly force.’ … There is, however,
every reason to assume that police academy applicants are familiar with the
criminal prohibition on sexual assault, as everyone is presumed to know the
law. … There is no basis from which to conclude that the unconstitutional
consequences of failing to train police officers not to commit sexual assault
are so patently obvious that the County or Baca were deliberately indifferent.
758 F.3d at 1159-60 (citations omitted) (emphasis added). As in Flores, there is no basis
from which to conclude that the alleged unconstitutional consequences of failing to train
police officers to accept crime reports from victims, manage their own racial biases, and
not file false reports are so patently obvious that the City is deliberately indifferent.
“‘Where the proper response ... is obvious to all without training or supervision, then the
failure to train or supervise is generally not ‘so likely’ to produce a wrong decision as to
support an inference of deliberate indifference by city policymakers to the need to train or
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supervise.’” Id. at 1160 (quoting Walker v. City of New York, 974 F.2d 293, 299-300 (2d
Cir. 1992)). So it is here. Plaintiff’s Monell claim on this ground therefore fails.
C. Ratification.
To allege a Monell claim for ratification, the plaintiff must show that authorized
policymakers approved a subordinate’s decision and the basis for it. Lytle v. Carl, 382
F.3d 978, 987 (9th Cir. 2004) (stating the “policymaker must have knowledge of the
constitutional violation and actually approve of it.”) Plaintiff argues he sent detailed letters
to the Mayor and Chief Nisleit “(the final policymakers), providing them with specific
evidence of Officer Fanlo’s unconstitutional conduct and the falsified report.” (Opp’n at
5.) According to Plaintiff, the City neither investigated nor disciplined Officer Fanlo and
“instead investigated” Plaintiff, which “constitutes de facto ratification.” (Id.)
As the City correctly notes, Plaintiff fails to allege that the Mayor or the Chief “knew
of any determination that the officers’ actions violated Plaintiff’s constitutional rights, what
investigation they did of Plaintiff’s claims, or that they made a deliberate choice to approve
of those actions if they concluded they were unconstitutional.” (Mot. at 7.) A mere failure
to overrule a subordinate’s actions, without more, is insufficient to support a § 1983
ratification claim. Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999) (stating “it is well-
settled that a policymaker's mere refusal to overrule a subordinate's completed act does not
constitute approval.”) (Citation omitted). Plaintiff’s ratification claim therefore fails.
III. Conclusion.
For these reasons, Defendant’s motion to dismiss is granted with leave to amend.
Though it is unlikely Plaintiff can plausibly state Monell claims, the Court will allow
Plaintiff a final attempt to amend his FAC against the City. Plaintiff may file a Second
Amended Complaint within 14 days of the filing of this Order.
SO ORDERED.
Dated: January 12, 2026
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