Hartsfield v. City of San Diego et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DAMION HARTSFIELD, an individual,
Plaintiff,
v.
CITY OF SAN DIEGO; SCOTT WAHL,
an individual; JUSTINE SMITH, an
individual; ANGELA BULL, an
individual; COUNTY OF SAN DIEGO;
and DOES 1–14,
Defendants.
Case No.: 3:25-cv-01950-WQH-DEB
ORDER
HAYES, Judge:
The matters before the Court are: (1) the Motion to Dismiss filed by Defendant
County of San Diego (ECF No. 9), (2) the Motion to Dismiss filed by Defendant City of
San Diego (ECF No. 15), and (3) the Motion to Dismiss filed by Defendants Scott Wahl,
Justin Smith, and Angela Bull (ECF No. 16).
I. 	BACKGROUND
On July 31, 2025, Plaintiff Damion Hartsfield (“Plaintiff”) filed a Complaint against
Defendants City of San Diego (the “City”); Scott Wahl (“Wahl”), Justine Smith (“Smith”),
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Angela Bull (“Bull”) (collectively, “Supervisor Defendants”); County of San Diego (the
“County”); and Does 1–14. (Compl., ECF No. 1.)
On August 22, 2025, the County filed a Motion to Dismiss Plaintiff’s Complaint
(“County’s Motion to Dismiss”). (ECF No. 9.) On September 22, 2025, Plaintiff filed a
Response in Opposition. (ECF No. 13.) On September 29, 2025, the County filed a Reply.
(ECF No. 14.)
On October 3, 2025, the City filed a Motion to Dismiss Plaintiff’s Complaint
(“City’s Motion to Dismiss”). (ECF No. 15.) On October 20, 2025, Plaintiff filed a
Response in Opposition. (ECF No. 17.) On October 27, 2025, the City filed a Reply. (ECF
No. 20.)
On October 3, 2025, the Supervisor Defendants filed a Motion to Dismiss Plaintiff’s
Complaint (“Supervisor Defendants’ Motion to Dismiss”). (ECF No. 16.) On October 20,
2025, Plaintiff filed a Response in Opposition. (ECF No. 18.) On October 27, 2025, the
Supervisor Defendants filed a Reply. (ECF No. 16.)
II. 	ALLEGATIONS IN THE COMPLAINT
This case concerns the arrest, detention, and treatment of Plaintiff by officers of the
San Diego Police Department. It also involves the dissemination of Plaintiff’s booking
photo to his coworkers by County deputies.
A. The Parties
Plaintiff is a 45-year old man who lives in San Diego. (Compl. ¶ 9.) Defendant Wahl
was the Chief of Police of the San Diego Police Department (“SDPD”) at the time of the
incident. Id. ¶ 10. Defendants Smith and Bull were SDPD sergeants and supervisors of the
SDPD’s downtown Bike Team at the time of the incident. Id. ¶¶ 11, 28. Defendants Smith
and Bull “were present” during Plaintiff’s arrest and either participated in it or permitted
their subordinates to arrest Plaintiff. Id. ¶ 28.
Does 1–12 were SDPD officials and other agents of the City at the time of the
incident. Id. ¶ 12. Does 13–14 were County Sheriff’s employees at the time of the incident.
Id. ¶ 13.
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B. Plaintiff’s Detention and Arrest
On New Year’s Day, 2025, Plaintiff was celebrating in downtown San Diego. Id. ¶
16. At around 1:30 a.m., Plaintiff and his date were walking down Fifth Avenue back to
their hotel. Id. ¶ 18. Dozens of other pedestrians were standing on the street, walking and
talking. Id. ¶ 19.
Plaintiff stopped to “chitchat[]” with a police officer. Id. ¶ 21. “In the middle of his
conversation, [Plaintiff] heard a faint voice say, ‘Clear the area.’ It was not possible for
him to discern from where the voice came from or” who it was addressing. Id. ¶ 22. “As
he was finishing up his conversation with the police officer so that he could return to his
hotel with his date, [Plaintiff] was suddenly grabbed and handcuffed behind his back.” Id.
¶ 23.
Although “no one had created a disturbance or obstructed the street,” officers
handcuffed Plaintiff. Id. ¶ 24. Plaintiff heard a voice say, “[W]ell, you didn’t listen.” Id. ¶
26. “There was no explanation as to what” Plaintiff was supposed to listen to, and “[t]here
had been no commands or warnings given to him.” Id. Plaintiff had not obstructed anyone
on the sidewalk, was not impaired, and could walk, stand, and speak without difficulty. Id.
¶ 27.
C. Plaintiff’s “Rough Ride” to the Jail
Officers placed Plaintiff and other handcuffed individuals in a van that “remained
stationary for approximately 30–45 minutes” before taking off “suddenly” and stopping at
a “random dark street” to “let all the other detainees out of the van except [Plaintiff].” Id.
¶¶ 29–30.
Plaintiff remained handcuffed but “he was never secured by a seatbelt or anything
else to the interior of the van for safety purposes.” Id. ¶¶ 32–33. “The transport van
accelerated at a high rate of speed and then aggressively stopped, at which point [Plaintiff]
was forcibly tossed onto the van floor, landing on his back and right shoulder while
handcuffed and unable to brace himself.” Id. ¶ 33. Plaintiff “laid in pain for approximately
15 minutes as the van continued to drive.” Id. ¶ 35.
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The van eventually stopped, and an officer told Plaintiff to “[g]et up.” Id. Plaintiff
“told the officer that he could not move. The officer then dragged [Plaintiff] out of the van
and took him to the processing area of the San Diego [Central] Jail” (the “Jail”). Id. ¶ 36.
The officers picked Plaintiff up on Fifth Avenue, which is only a “four-minute drive” from
the Jail. Id. ¶ 37.
The 	officers 	arrested 	Plaintiff 	under 	California 	Penal 	Code 	647(f), 	which
criminalizes public intoxication when an individual is “in a condition that they are unable
to exercise care for their own safety.” Id. ¶ 34.
D. Plaintiff’s Arrival at the Jail and Booking Photo
When Plaintiff arrived at the Jail, he was “running on fear and adrenaline from the
rough ride” and felt confused, anxious, and in “increasing pain from his shoulder.” Id. ¶¶
38–39. Jail staff took Plaintiff’s fingerprints and booking photo, processed him, and placed
him in a cell. Id. ¶ 42. Plaintiff believed “a terrible mistake had been made and that someone
would immediately release him when they discovered their mistake,” but “[n]o one came.”
Id. ¶ 43.
While Plaintiff waited in his cell, County employees Does 13–14 “accessed
[Plaintiff’s] booking photograph via JIMS while on duty and photographed and texted it to
third parties, including [Plaintiff’s] coworkers.” Id. ¶ 44. They texted the photo “knowing
that doing so would violate [Plaintiff’s] right to privacy,” intending to “harass and
humiliate” Plaintiff and “punish” him. Id. ¶ 45. “No compelling public safety or law
enforcement interest” justified the distribution of Plaintiff’s booking photo. Id. ¶ 46.
E. Plaintiff’s Pain and Release from Jail
“After several hours, [Plaintiff] started to experience extreme pain in his right
shoulder and chest area.” Id. ¶ 47. He pushed the call button in his cell and told the deputy
that he felt shortness of breath and chest pain. Id. The deputies took him to the nurse’s unit,
where he received an EKG. Id. ¶ 48. Plaintiff “was in horrible pain.” Id. “After the EKG,
[Plaintiff] was escorted back to his cell and eventually released from custody after another
two to three hours.” Id.
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Plaintiff was released from the Jail at 11:15 a.m. pursuant to Penal Code 849(b)(2).
Id. ¶ 49–50. He had a fractured shoulder. Id. ¶ 50.
“When he returned to work, [Plaintiff’s] arrest was fodder for office gossip.” Id. ¶
51. His booking photo, “distributed by Does 13–14[,] had made its way around [Plaintiff’s]
work place and was even made into a widely circulated meme.” Id. This caused Plaintiff
ridicule, humiliation, and harm to his reputation. Id.
F. The County’s Policy Regarding Distribution of Booking Photos
“In 	the 	County 	jails, 	deputies 	have 	constant 	access 	to 	detainees’ 	booking
photographs.” Id. ¶ 148. “All booking photographs are stored in the Jail’s electronic system
[(‘JIMS’),] which is designed to share information among all [J]ail staff.” Id. Deputies can
access booking photographs via JIMS at any time. Id. “Booking photos are displayed on
each 	arrestee’s 	‘Facecard,’ 	a 	physical 	identification 	card 	which 	includes 	booking
photographs,[] and other personal identifying information, such as scars and tattoos.” Id. ¶
149. Deputies access booking photos on a daily basis, using detainees’ Facecards daily to
verify their identities. Id. Deputies also routinely use their cell phones during their shifts at
the Jail to time safety checks. Id. ¶ 150.
California Penal Code § 13665 prevents sheriff’s departments from “shar[ing], on
social media, booking photos of an individual arrested on suspicion of committing a
nonviolent crime . . . .” Id. ¶ 152. Penal Code § 13365(d)(2)’s definition of “social media”
includes “instant and text messages.” Id. ¶ 153. The County’s written policy, Procedure
7.14, states: “Social Media includes, but is not limited to, Instagram, Facebook, Twitter,
LinkedIn, Nixle, Wikipedia, blogs, etc.” Id. ¶ 154. The County’s written policy (in contrast
to Penal Code § 13665(d)(2)) does not include text messages in its definition of “social
media.” Id.
Does 13–14’s “act of texting Mr. Hartsfield’s booking photo to his colleague, and
the resulting constitutional violation, was a highly predictable consequence” of the
County’s failure to “enact a policy and train and supervise its personnel to comply with
California state law.” Id. ¶ 157.
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G. SDPD’s History of Misconduct
The SDPD “has a long history of the use of excessive and unnecessary force,” and
of “supervisors acquiescing to the misconduct of their subordinates.” Id. ¶ 52.
1. History of Misconduct in Downtown San Diego
The SDPD “was well aware of the long and troubling history of officers patrolling
the downtown and the Gaslamp area in which victims, bystanders and community members
had complained of excessive force and false arrest.” Id. ¶ 53. SDPD officers “were known
to target” young Black or Hispanic men. Id. ¶ 54.
Between approximately 2015 and 2024, several incidents occurred involving SDPD
officers and Black men in downtown San Diego. See id. ¶¶ 55–64. Defendants Smith and
Bull “were well aware of this repeated unconstitutional conduct[,] [w]ere present during
these unlawful arrests[,] and failed to properly supervise or intervene.” Id. ¶ 65.
On May 28, 2017, SDPD officers arrested a Black man named Michael Lee without
probable cause in downtown San Diego. Mr. Lee was “standing on the sidewalk talking on
his cell phone” when officers slammed him to the ground, broke his humerus bone, put a
knee on his back, and choked him while he was on the ground. Id. ¶ 55 (citing Lee v. City
of San Diego, No. 3:18-cv-00159-W-BLM (S.D. Cal.)). “The City paid $1.35 million to
settle the case,” but the SDPD did not change its practices. Id.
In 2015, a jury awarded compensatory and punitive damages to a Black Marine who
was sucker punched in downtown San Diego. Even though he “was the victim of the crime,
the police officers threw him down” and booked him into jail. Id. ¶ 56.
On July 9, 2023, a Black man named Muslah Muhammad Abdul Hafeez was trying
to retrieve his phone from his car when officers from the SDPD Bike Team pointed a gun
at him, jumped on him, kneeled on him, and pulled him by the handcuffs over his head,
causing him serious injuries and bruising. Id. ¶ 57. The officers did not tell him why they
arrested him and “the District Attorney never filed charges.” Id. The SDPD took no action.
Id.
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On November 19, 2023, a Black man and a white man “were about to engage in a
physical altercation” in downtown San Diego. Video footage1 shows that SDPD officers
approached the Black man with guns drawn and tackled him, even though he was already
kneeling in a compliant position, but they “issued no commands to the [white] man and []
did not engage him.” The SDPD received this footage but took no action. Id. ¶ 58.
On July 21, 2024, a Black man named Travis Stocking Jr. was walking down Fifth
Avenue when an officer told him, “You didn’t hear what I said, I said get on the sidewalk.”
The officer asked for Mr. Stocking’s ID and said he smelled alcohol on his breath, even
though Mr. Stocking had not been drinking. The officer arrested Mr. Stocking and kept
him in jail for four hours. The SDPD took no action. Id. ¶ 59.
Video footage2 taken on August 19, 2024 demonstrates that a Black man had his
hands raised and was walking away from an SDPD Bike Team officer when the officer
shoved him down, “causing him to almost strike his head on the concrete curb.” “Witnesses
reported that this victim posed no threat to anyone at the time he was attacked by the
police.” Id. ¶ 60.
Local news footage shows two more Black men being assaulted by SDPD officers
on the same day as the above incident. Officers punched one man and shoved his face into
the pavement with an elbow. Id. ¶ 61. They also pepper sprayed a group of people who
were not doing anything illegal. When one of those people spit in their direction, “four
officers charged him and took him to the ground violently.” When the SDPD received this
video footage, it “took no action and blamed the victims.” Id. ¶ 62.
“Around the same time, another Black male named Rodku Smith reported that he
was tackled while speaking to a police officer, attempting to get the officer’s help. Mr.
1 Compl. ¶ 58 (citing SDPD Bike Team Member Using Excessive Force Against Compliant Black Man,
YouTube (Mar. 16, 2025), https://youtube.com/shorts/_vjvGx-iNzU).
2 Compl. ¶ 60 (citing SDPD Bike Team Using Excessive Force Against Rodku Smith, YouTube (Mar. 16,
2025), https://youtube.com/shorts/E-jmqEQq1sE).
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Smith had committed no crimes.” The SDPD received the footage and took no action. Id.
¶ 63.
Video footage3 from September 12, 2024 shows that a Black man who had
committed no crime was walking in a downtown parking lot when an officer almost ran
him over with a bicycle and “several officers attack[ed] him without warning.” The man
put his hands up, “immediately saying ‘okay, okay, okay.’” The SDPD Bike Team captain
told the media that no misconduct occurred. The officers cited the man with obstruction
and resisting an officer. Id. ¶ 64.
2. Studies Concerning SDPD’s Disparate Treatment of Black People
Between 	approximately 	2016 	and 	2021, 	studies 	and 	reports 	revealed 	racial
disparities in San Diego law enforcement, including that: “Black individuals were
disproportionately subjected to searches and questioning after being stopped by SDPD
officers,” Black people were more likely to face prosecution for minor drug offenses, and
the SDPD “stopped Black individuals at more than double the rate of [white] people, with
a higher likelihood of searches, arrests, and the use of force.” Id. ¶¶ 66–74. “These studies
and reports were provided to the [City] and the [SDPD], giving them notice of the disparate
treatment of Black individuals.” Id. ¶ 68. But the SDPD “took no action to change the
culture of singling out [Black men] by the Bike Team.” Id. ¶ 75.
3. Prior Misconduct by Specific Officers
The SDPD has a culture of covering up misconduct and excessive force incidents,
instead of engaging in independent investigations. Id. ¶ 95. For instance, between 2010 and
2017, several SDPD officers arrested individuals without cause and used excessive force
multiple times. See id. ¶¶ 76–78, 83, 85, 88–89, 92–93. In one of these cases, a federal
district court found that the officers unlawfully arrested one of the victims without probable
3 Compl. ¶ 64 (citing ABC 10 News, SDPD Addresses Recent Viral Arrest Video in the Gaslamp, YouTube
(Sept. 12, 2024), https://www.youtube.com/watch?v=YEtlFRWUpIs).
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cause. Id. ¶ 81. The SDPD failed to discipline or retrain these officers and promoted some
of the officers. Id. ¶¶ 79, 80–82, 84, 86–87, 94, 102, 128–29.
4. Code of Silence
The SDPD was aware of the “code of silence” among its officers. Id. ¶ 103. The
Supervisor Defendants knew about this code of silence, including that “their subordinates
were routinely covering up for fellow officers’ misconduct [,] engaging in retaliatory action
against innocent citizens,” and “charging innocent people with resisting arrest.” Id. ¶¶ 190–
92. Officers who committed misconduct “were consistently promoted to supervisory roles
in which they would train and supervis[e] the newer officers.” Id. ¶ 194.
A 2014 lawsuit made the SDPD aware of its culture of covering up misconduct. Id.
¶ 105, 114. That case involved an officer who had a reputation for sexually assaulting
women while on duty for years. Id. ¶¶ 107–13. Former officers testified that the SDPD
often “swept [misconduct] under the rug.” Id. ¶¶ 110–12.
In 2021, Captain Alberto Leos “discovered documents were illegally forged under
his name by other officers within the Department in order to cover up or to reduce
punishment for officer misconduct.” Id. ¶ 130. When he tried to report the forgeries, his
supervisors told him to “go along with the program.” Id. ¶¶ 133–34. An investigator with
the City Attorney’s Office told Captain Leos that he could not substantiate the forgery
allegations and that he was “looking out for the department heads and the city.” Id. ¶¶ 141–
42.
5. Reporting About Lack of Reforms
In 2020, the Voice of San Diego news organization reported that the SDPD failed to
implement reforms regarding officer accountability. Id. ¶¶ 115–20. In 2023, “inewsource
and KPBS” reported that one-third of the SDPD’s public reports on officer misconduct
“were missing disciplinary records.” Id. ¶¶ 121–24. Those cases missing disciplinary
records involved excessive force and discrimination, including rampant racism against
fellow officers. Id. ¶¶ 125–26, 144. The City “was well aware of the longstanding problems
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of the culture of violence and the institutional failure to investigate and discipline officers
who engage in serious misconduct.” Id. ¶ 208.
H. Summary of the Claims
Plaintiff brings three Fourth Amendment claims under 42 U.S.C. § 1983 against the
Doe 	Defendants 	involved 	in 	his 	arrest, 	detention, 	and 	transportation 	to 	the 	Jail:
(1) wrongful detention, (2) false arrest, and (3) excessive force. Plaintiff also brings a
§ 1983 claim for failure to supervise and discipline against the Supervisor Defendants and
Monell claims against the City and the County.
Plaintiff brings seven claims under California state law: (1) negligence, against all
Defendants; (2) negligence per se, against the County and Does 13–14; (3) battery, against
Does 6–7; (4) false arrest and imprisonment, against Does 1–7; (5) violation of the Bane
Act, against the City, the Supervisor Defendants, and Does 1–12; (6) invasion of privacy,
against the County and Does 13–14; and (7) intentional infliction of emotional distress,
against Does 1–7 and 13–14.
III. 	LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”) permits dismissal
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To
state a claim for relief, a pleading “must contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal under FRCP
Rule 12(b)(6) “is proper only where there is no cognizable legal theory[,] or an absence of
sufficient facts alleged to support a cognizable legal theory.” Shroyer v. New Cingular
Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (quoting Navarro v. Block, 250
F.3d 729, 732 (9th Cir. 2001)).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
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alleged.” 	Id. 	However, 	“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.” Twombly, 550 U.S. at 555
(alteration in original) (quoting Fed. R. Civ. P. 8(a)). While a pleading “does not require
‘detailed factual allegations,’” FRCP Rule 8 nevertheless “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). A court is not “required to accept as true allegations
that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”
Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “In sum, for a
complaint to survive a motion to dismiss, the non-conclusory factual content, and
reasonable inferences from that content, must be plausibly suggestive of a claim entitling
the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009)
(quotations omitted).
IV. 	DISCUSSION
A. Monell Municipal Liability
1. Legal Standard
Municipalities are considered “persons” under § 1983 and therefore may be liable
for causing a constitutional deprivation. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690
(1978). A municipality, however, “cannot be held liable solely because it employs a
tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Id. at 691. Liability only attaches where the municipality itself
causes the constitutional violation through “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.” Id. at 694.
In order to establish liability for governmental entities under Monell, a
plaintiff must prove “(1) that [the plaintiff] possessed a constitutional right of
which he was deprived; (2) that the municipality had a policy; (3) that this
policy amounts to deliberate indifference to the plaintiff’s constitutional right;
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and, (4) that the policy is the moving force behind the constitutional
violation.”
Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (alteration in original)
(quoting Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)).
A plaintiff can satisfy Monell’s policy requirement under one of three theories: (1) a
formal, “expressly adopted official policy,” (2) a “longstanding practice or custom,” or (3)
when the person who committed the violation was “an official with final policy-making
authority or such an official ratified a subordinate’s unconstitutional decision.” Gordon v.
Cnty. of Orange, 6 F.4th 961, 974 (9th Cir. 2021) (quotations and citations omitted).
Historically, the Ninth Circuit allowed plaintiffs to plead a Monell claim with
nothing more than “a bare allegation that government officials’ conduct conformed to some
unidentified government policy or custom.” AE ex rel. Hernandez v. Cnty. of Tulare, 666
F.3d 631, 637 (9th Cir. 2012). However, following the decisions in Iqbal and Twombly, the
Ninth Circuit clarified that Monell claims must include sufficient allegations to provide fair
notice to the opposing party and to “plausibly suggest an entitlement to relief, such that it
is not unfair to require the opposing party to be subjected to the expense of discovery and
continued litigation.” Id. (quotations and citation omitted).
2. The City4
Plaintiff alleges a Monell claim against the City based on a municipal policy, custom,
or practice theory of liability. (Compl. ¶¶ 204–14.) The City contends that Plaintiff fails to
state a Monell claim against it because he “identifies no policy and alleges no sufficiently
similar pattern of unlawful conduct.” (ECF No. 15-1 at 8.)
i. 	Formal Policy
4 The City contends that body camera footage of the incident “depicts a materially different sequence of
events than alleged in the complaint.” (ECF No. 15-1.) The Court declines to address this argument at this
stage of the proceedings because it must “accept factual allegations in the complaint as true and construe
the pleadings in the light most favorable to the nonmoving party” when ruling on a motion to dismiss.
Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
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The City first contends that Plaintiff fails to allege a formal City policy that was the
moving force behind his constitutional injury. (ECF No. 15-1 at 10.) Plaintiff responds that
he “is not required to allege formal City policy to support his Monell claim.” (ECF No. 17
at 8.) “An unconstitutional policy need not be formal or written to create municipal liability
under Section 1983; however, it must be so permanent and well settled as to constitute a
custom or usage with the force of law.” Gordon, 6 F.4th at 974 (quotations and citations
omitted). Plaintiff’s failure to allege a formal City policy that caused his injury does not
defeat his Monell claim.
ii. 	Custom or Practice
The City next contends that “Plaintiff fails to allege a custom or practice related to
his case to establish Monell” liability. (ECF No. 15-1 at 12.) The City contends that
Plaintiff’s allegations of past SDPD behavior are too dissimilar from this case to establish
a policy or custom. Id. Plaintiff contends that these prior incidents put the City “on notice
that SDPD officers routinely target African American males, subject them to excessive
force and false arrest[,] and then are shielded from repercussions by institutionalized cover
ups.” (ECF No. 17 at 10.)
Because Plaintiff does not allege the existence of a formal or express policy, the
Court applies the “longstanding practice or custom” theory of Monell liability. Gordon, 6
F.4th at 974. To qualify as a municipal policy under Monell, a custom must be “so
‘persistent and widespread’ that it constitutes a ‘permanent and well settled city policy.’”
Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting Monell, 436 U.S. at 691).
“Liability for improper custom may not be predicated on isolated or sporadic incidents; it
must be founded upon practices of sufficient duration, frequency and consistency that the
conduct has become a traditional method of carrying out policy.” Id. at 918 (citations
omitted). When a plaintiff seeks to establish a custom based on a municipality’s “failure to
act, [he] must allege that the municipality exhibited deliberate indifference to the violation
of [his] federally protected rights.” Hyun Ju Park v. City & Cnty. of Honolulu, 952 F.3d
1136, 1141 (9th Cir. 2020). If the policy “is not obviously, facially deficient,” plaintiffs
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must demonstrate a “pattern of prior, similar violations of federally protected rights, of
which the relevant policymakers had actual or constructive notice.” Id. at 1142.
In support of his Monell custom or practice claim, Plaintiff alleges that the City
exhibited deliberate indifference to three general categories of prior actions by SDPD
officers: (1) using excessive force and engaging in retaliatory arrests, Compl. ¶ 204, (2)
detaining people without cause, id. ¶ 205, and (3) racially targeting Black men in downtown
San Diego, id. ¶ 206. Plaintiff cites several prior incidents of alleged misconduct by SDPD
officers against Black men in downtown San Diego. Id. ¶¶ 55–65. The City contends that
these incidents fail to establish a Monell custom because they are factually distinguishable,
they lack context, they occurred too long ago, and Plaintiff does not allege enough of them.
First, the City contends that because Plaintiff does not allege a racial discrimination
claim, allegations of the SDPD’s past racial discrimination are not relevant to his Monell
claim.5 (ECF No. 15-1 at 11–12.) “The threshold question as to whether Plaintiff can
establish Monell liability is whether a constitutional violation has occurred.” Abdul-Hafeez
v. City of San Diego, No. 24-cv-1184-RSH-DDL, 2025 WL 696993, at *7 (S.D. Cal. Mar.
4, 2025) (quotations and citations omitted) (dismissing Monell claims based on underlying
First Amendment and equal protection violations because plaintiff failed to adequately
plead those underlying violations). Plaintiff does not allege an underlying constitutional
claim related to racial discrimination. The Court concludes that the allegations of prior
racial profiling or targeting by SDPD officers are irrelevant to Plaintiff’s Monell claim.
Second, the City contends that the alleged prior incidents are irrelevant to this case
because they do not “involve a pedestrian stop or van transport comparable to Plaintiff’s
alleged incident[],” and thus are factually distinct. (ECF No. 20 at 2.) “To evaluate whether
a sufficient pattern of unconstitutional conduct exists, courts typically consider the number
5 The City also contends that “Plaintiff never alleges he himself is African American.” (ECF No. 15-1 at
11.) However, Plaintiff alleges that he smiled when Jail staff took his booking photo because “he did not
want to be ‘yet another angry Black man’ in a mugshot.” (Compl. ¶ 40.) This allegation supports the
reasonable inference that Plaintiff is Black.
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of incidents, the factual similarity of those incidents, their timing, and any subsequent
action by the defendant.” Hightower v. Cnty. of San Diego, No. 24-cv-1152-RSH-MSB,
2025 WL 824368, at *6 (S.D. Cal. Mar. 14, 2025) (citations omitted). The incidents must
be “substantially similar in character to establish a Monell claim.” Raudelunas v. City of
Vallejo, No. 2:21-cv-00394, 2022 WL 329200, at *8 (E.D. Cal. Feb. 3, 2022) (citing
McCoy v. City of Vallejo, No. 2:19-cv-001191-JAM-CKD, 2020 WL 374356, at *4 (E.D.
Cal. Jan. 23, 2020)).
Here, Plaintiff alleges at least five prior incidents of SDPD officers arresting
individuals in downtown San Diego without probable cause or when the individuals had
not committed a crime. (See Compl. ¶¶ 55, 56, 57, 59, 64.) He also alleges at least six prior
incidents of SDPD officers using force that could plausibly be considered excessive during
arrest. See id. ¶¶ 55, 57, 58, 60, 61, 62. Eight of those incidents allegedly occurred within
two years before Plaintiff’s arrest. See id. ¶¶ 57, 58, 59, 60, 61, 62, 63, 64. Plaintiff alleges
that the SDPD knew about these incidents but did nothing. See id. Although the factual
circumstances in those incidents may not “perfectly match the circumstances alleged here,”
the Court finds the prior incidents similar enough to this case to sufficiently plead that (1)
the City has a custom of SDPD officers arresting individuals without cause and using
excessive force; (2) that custom amounts to deliberate indifference to Plaintiff’s Fourth
Amendment rights; and (3) the custom was the moving force behind Plaintiff’s injuries.
Wright v. Cnty. of San Bernadino, No. 5:24-cv-01123-JLS-JC, 2025 WL 546362, at *4
(C.D. Cal. Jan. 14, 2025); see also Weaver v. City of Stockton, No. 2:20-cv-00990-JAM-
EFB, 2020 WL 5763763, at *8 (E.D. Cal. Sept. 28, 2020) (citations omitted) (“A custom
can be ‘inferred from . . . evidence of repeated constitutional violations for which the errant
municipal officers were not discharged or reprimanded.’”).
Third, the City contends that the alleged prior incidents cannot establish a Monell
custom because Plaintiff fails to provide factual context about these incidents or “proof”
that unconstitutional conduct occurred. (See ECF No. 15-1 at 13–15.) However, “proof of
prior adjudicated constitutional violations is [] not required” to state a Monell claim at the
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motion to dismiss stage. Greer v. Cnty. of San Diego, 726 F. Supp. 3d 1058, 1080 (S.D.
Cal. 2023) (citing Sandoval v. Cnty. of San Diego, 985 F.3d 657, 682 (9th Cir. 2021)); see
also Bagos v. Vallejo, No. 2:20-cv-00185-KJM-AC, 2020 WL 6043949, at *5 (E.D. Cal.
Oct. 13, 2020) (citation omitted) (“Prior incidents involving lawsuits alone, even those
which 	do 	not 	result 	in 	a 	finding 	or 	admission 	of 	wrongdoing, 	can 	be 	sufficient
for Monell liability purposes in the face of a motion to dismiss.”). Plaintiff sufficiently
alleges facts about the prior incidents supporting a reasonable inference that SDPD officers
wrongfully detained, falsely arrested, or used excessive force during arrest.
Fourth, the City contends that Plaintiff fails to allege a sufficient number of prior
incidents to establish a Monell custom. (ECF No. 20 at 4.) “While one or two incidents are
insufficient to establish a custom or policy” under Monell, the Ninth Circuit has “not
established what number of similar incidents would be sufficient to constitute a custom or
policy.” Oyenik v. Corizon Health Inc., 696 F. App’x 792, 794 (9th Cir. 2017) (citations
omitted). Courts in this Circuit are “somewhat split . . . on the number of similar
unconstitutional incidents a plaintiff must show to establish a longstanding practice or
custom.” Est. of Kong ex rel. Kong v. City of San Diego, No. 22-cv-1858-BAS-DDL, 2023
WL 4939370, at *6 (S.D. Cal. Aug. 2, 2023) (quotation and citation omitted). At this stage
of the proceedings, the Court finds that Plaintiff alleges enough prior incidents to establish
the existence of a Monell custom. See Abdul-Hafeez, 2025 WL 1677782, at *9 (finding
four prior incidents sufficient to allege a Monell custom of the SDPD’s discrimination
against Black individuals).
iii. 	Captain Leos Allegations
The City moves to strike Plaintiff’s allegations regarding Captain Leos and
corruption within the SDPD under Federal Rule of Civil Procedure 12(f).6 (ECF No. 15-1
at 26.) The City contends that the Captain Leos allegations are irrelevant because they
6 The Supervisor Defendants also move to strike the Captain Leos allegations, for the same reasons. (ECF
No. 16-1 at 14–15.)
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concern “internal discipline and personnel disputes within the City,” not constitutional
violations related to Plaintiff’s Monell claim. Id. The City further contends that Plaintiff
fails to show how the corruption and cover-ups alleged by Captain Leos were the moving
force behind Plaintiff’s injury. Id. Plaintiff contends that the Captain Leos allegations
“create a strong inference that there was an entrenched ‘program’ . . . within the [SDPD]
in which the chain of command falsified records to cover up for their subordinates,” and
that this was the “moving force behind the culture in which officers acted with impunity
without fear of investigation or consequences.” (ECF No. 17 at 15.)
Federal Rule of Civil Procedure 12(f) provides that a court “may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P. 12(f). Motions to strike under Rule 12(f) are “generally disfavored”
and “should not be granted unless it is clear that the matter to be stricken could have no
possible bearing on the subject matter of the litigation.” Rosales v. Cnty. of San Diego, 511
F. Supp. 3d 1070, 1083 (S.D. Cal. 2021) (quotations and citations omitted).
At this stage of the proceedings, the Court declines to strike the Captain Leos
allegations from Plaintiff’s Complaint. See Lobaton v. City of San Diego, No. 3:15-cv-
1416-GPC-DHB, 2015 WL 7864186, at *3 (S.D. Cal. Dec. 2, 2015) (declining to strike
allegations of unrelated SDPD officers’ repeated sexual assaults from complaint in
unlawful arrest case with Monell claim). The Court makes no finding as to the relevance
of the Captain Leos allegations in any further proceedings in this case, such as summary
judgment or trial.
iv. 	Additional Custom or Practice Allegations
The City raises several objections to Plaintiff’s other allegations supporting his
Monell custom claim, including: the incidents involving Officers Savage, McClain, and
Browder, see Compl. ¶¶ 76–94; the studies and news reports describing racial disparities
in law enforcement and SDPD’s failure to implement reforms, see id. ¶¶ 66–75, 115–29;
and the “code of silence” within the SDPD, see id. ¶¶ 103–14. The Court declines to address
these objections at this stage of the proceedings because, as discussed, it finds that
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Plaintiff’s description of the prior SDPD arrests in downtown San Diego sufficiently
alleges a Monell custom of detaining individuals without cause and using excessive force
during arrest.
Drawing all reasonable inferences in Plaintiff’s favor, the Court finds that Plaintiff
adequately pleads his Monell claim against the City at this stage of the proceedings. The
City’s Motion to Dismiss (ECF No. 15-1) is denied as to the Monell claim.
3. The County
Plaintiff brings a Monell claim against the County based on two theories: (1) failure
to train and (2) deficient policy. (Compl. ¶¶ 215–19.) The County moves to dismiss
Plaintiff’s Monell claim against it. (ECF No. 9-1 at 12–16.)
i. 	Request for Judicial Notice
The County submits a Request for Judicial Notice in support of its Motion to
Dismiss. (ECF No. 9-2.) The County requests the Court to take judicial notice of (1) the
Government Claim Plaintiff submitted to the County, see Compl. ¶ 5, (2) Sheriff’s
Department Policy 7.14,7 see id. ¶ 154, and (3) the Sheriff’s Department’s “Who’s in Jail”
website8 that allows the public to look up people incarcerated in County jails. Id. at 2.
Federal Rule of Evidence 201 provides that courts may take judicial notice of “a fact
that is not subject to reasonable dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Ev.
201(b). “[A] court may take judicial notice of matters of public record.” Khoja v. Orexigen
Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (quotations and citation omitted).
The Court takes judicial notice of Sheriff’s Department Policy 7.14 and the “Who’s in Jail”
website because they exist on public government websites. The Court takes judicial notice
7 7.14 Social Media, San Diego County Sheriff’s Office – Policy Section, https://www.sdsheriff.gov
/home/showpublisheddocument/9365/638880924367530000%20at%2067 (accessed March 9, 2026).
8 Sheriff’s Who is in Jail, San Diego County Sheriff’s Office, https://apps.sdsheriff.net/wij/ (accessed
March 9, 2026).
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of Plaintiff’s Government Claim because he presented it to the County and does not object
to the County’s judicial notice request. (See ECF No. 9-2, Ex. A.) Plaintiff’s Claim states,
in part, that “an employee of the County sent booking photos of [Plaintiff] to others,
including [Plaintiff’s] coworkers at the Department of Homeland Security.” Id. at 9.
ii. 	Sufficiency of Allegations Against Does 13–14
The County contends that Plaintiff’s Monell claim should be dismissed because
Plaintiff fails to sufficiently allege the challenged conduct: that Does 13–14 are County
Sheriff’s deputies who texted Plaintiff’s booking photo to his coworkers. (ECF No. 9-1 at
11.) Specifically, the County contends that Plaintiff fails to allege enough facts to support
that inference, such as the phone number that sent the text or which of Plaintiff’s coworkers
received the text. (ECF No. 9-1 at 10–11.)
The County asserts that the JIMS system containing Plaintiff’s booking photo “is
part of a widely used interagency database accessible [] by many state and Federal law
enforcement agencies.” Id. at 11. The County does not provide any evidence supporting
this assertion. The County theorizes that Plaintiff’s coworkers at the Department of
Homeland Security or employees of other government entities could have accessed
Plaintiff’s booking photo through JIMS, and contends that Plaintiff fails to establish that
Does 13–14 texted the photo to Plaintiff’s coworkers.9 See id. In response, Plaintiff
contends that the Court must accept his factual allegations about Does 13–14 as true at the
motion to dismiss stage. (ECF No. 13 at 11.)
Plaintiff alleges that, “as [he] waited in his cell, Does 13–14, employees of the
County, accessed Mr. Hartsfield’s booking photograph via JIMS while on duty and
photographed and texted it to third parties, including Mr. Hartsfield’s coworkers.” (Compl.
9 The County also contends for the first time in its reply brief that Plaintiff’s failure to adequately
investigate the source of the text message raises Article III standing issues and violates Plaintiff’s
counsel’s duty under Federal Rule of Civil Procedure 11. (ECF No. 14 at 4–6.) The Court declines to
address these arguments because the County failed to raise them in its opening brief and they do not
change the Court’s conclusion. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district
court need not consider arguments raised for the first time in a reply brief.”).
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¶ 44.) Plaintiff further alleges that, when he returned to work after his release from the Jail,
the “booking photo distributed by Does 13–14 had made its way around Mr. Hartsfield’s
work place and was even made into a widely circulated meme.” Id. ¶ 51.
The Court finds these allegations specific enough to constitute factual allegations
that it must accept as true at this stage of the proceedings, instead of mere “[t]hreadbare
recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 678. Because County
employees booked Plaintiff into the Jail, took his booking photo, and had the ability to
access that booking photo via JIMS, it is plausible that they disseminated the photo to his
coworkers via text.
iii. 	Failure to Train
The County contends that Plaintiff fails to establish Monell liability based on a
failure to train theory because he does not “allege any knowledge of comparable employee
misconduct in the past.” (ECF No. 9-1 at 16.) Plaintiff contends that because the handling
of booking photos is a “common occurrence involving every single employee of the San
Diego jails,” the texting of Plaintiff’s booking photo to a third party was a “highly
predictable consequence” of failing to train staff that California law prohibits texting
booking photos. (ECF No. 16).
“A municipality’s culpability for a deprivation of rights is at its most tenuous where
a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citing
City of Oklahoma City v. Tuttle, 571 U.S. 808, 822 (1985)). “Failure to train may amount
to a policy of ‘deliberate indifference,’ if the need to train was obvious and the failure to
do so made a violation of constitutional rights likely.” Dougherty, 654 F.3d at 900 (citing
City of Canton v. Harris, 489 U.S. 378, 390 (1989)). To establish that a municipality had
notice of a constitutional deficiency in its training, “it is ‘ordinarily necessary’ for a
plaintiff to demonstrate a ‘pattern of similar constitutional violations by untrained
employees.’” Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784, 794 (9th Cir. 2016) (quoting
Connick, 563 U.S. at 62).
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However, “in a narrow range of circumstances, a particular showing of obviousness
can substitute for the pattern of violations” usually needed to establish municipal liability.
Id. (quotations and citation omitted). In these “rare” situations, the constitutional violations
resulting from a failure to train must be “so patently obvious” and a “highly predictable
consequence” of the deficient training program. Connick, 563 U.S. at 63–64 (citing Bd. of
the Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 409 (1997)). “A single
unconstitutional incident, without more,” does not “establish that a municipality failed to
provide proper training.” Kirkpatrick, 843 F.3d at 796 (citations omitted).
Here, Plaintiff does not allege that the County had notice of a pattern of similar
constitutional violations by untrained employees. See Connick, 563 U.S. at 62. The Court
accordingly must determine whether Plaintiff sufficiently alleges his single-incident theory
of Monell liability—that unconstitutional consequences of the County’s failure to train its
deputies on the dissemination of booking photos were so “patently obvious” as to constitute
deliberate indifference.
In Canton, the Supreme Court “left open the possibility that, ‘in a narrow range of
circumstances,’ a pattern of similar violations might not be necessary to show deliberate
indifference.” Id. (citing Brown, 520 U.S. at 409). 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.” Id. (citing Canton, 489 U.S. at 390 n.10). In that
scenario, involving officers who “must sometimes make split-second decisions with life-
or-death consequences,” the Court “theorized” that the “unconstitutional consequences of
failing to train [the officers] could be so patently obvious” that a failure to do so would
amount to deliberate indifference. Id.
This case does not fall into the “narrow range of circumstances” giving rise to single-
incident liability. Unlike the hypothetical scenario raised in Canton, this case does not
involve 	County 	employees 	making 	“split-second 	decisions 	with 	life-or-death
consequences.” Connick, 563 U.S. at 64. Plaintiff alleges that Does 13–14’s “act of taking
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and disseminating [his] booking photo via text message when there was no compelling
public safety or law enforcement interest deprived [Plaintiff] of his substantive due process
right to not be subjected to punishment before adjudication of guilt.” (Compl. ¶ 146.) He
alleges that the County knew that “[d]eputies routinely access booking photos in the course
of their duties on a daily basis,” such as during safety checks and to verify detainees’
identity. Id. ¶¶ 149–50, 155. Plaintiff further alleges that, “[g]iven the frequency with
which deputies are confronted with handling booking photos, it was obvious to the County
that misuse of the booking photos was a probability without proper training and guidance
on the state law.” Id. ¶ 150.
The Court finds these allegations insufficient to establish that it was “patently
obvious” that the County’s failure to train its deputies regarding the confidentiality of
booking photos would cause constitutional violations. In Houston v. Maricopa County of
Arizona, the Ninth Circuit held that allegations that a county posted detainees’ mugshots
on a public municipal website stated a claim for a substantive due process violation. 116
F.4th 935, 940 (9th Cir. 2024). The court found that the plaintiff—a detainee who was
never prosecuted—adequately alleged harm under the due process clause because the
website “exposed [his] image and the fact of his arrest to the ‘millions of strangers’ able to
access the Sheriff’s public website online.” Id. at 940 (quoting Demery, 378 F.3d at 1029).
The court relied on the fact that the public website allowed an “‘exponential number’ of
viewers worldwide” to access the plaintiff’s mugshot by searching for his name. Id. at 941
(quoting Demery, 378 F.3d at 1029–30). Other cases in this Circuit concerning substantive
due process and booking photos likewise involve public Internet postings by municipal
entities—not text messages to individual people, like those alleged by Plaintiff. See
Morales v. City of Tucson, No. CV-23-00498-TUC-BGM, 2024 WL 4475095, at *3 (D.
Ariz. Oct. 11, 2024); Ross v. Cnty. of Lake, No. 24-cv-09475-JSC, 2025 WL 2259003, at
*6 (N.D. Cal. Aug. 7, 2025).
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Plaintiff alleges that County deputies texted his booking photo to at least one of his
colleagues at the federal law enforcement agency where they work.10 (Compl. ¶ 44.)
Unlike the plaintiff in Houston, Plaintiff does not allege that Does 13–14’s actions allowed
anyone besides his coworkers to view his booking photo—let alone an “exponential
number” of Internet users worldwide. Houston, 116 F.4th at 941. And although Plaintiff
alleges that his booking photo became a “widely circulated meme” at his workplace,
Compl. ¶ 51, he does not specify the breadth of this circulation or that the circulation
expanded beyond employees of law enforcement agencies.
The Court finds that Plaintiff fails to sufficiently allege that constitutional violations
were a “patently obvious” result of the County’s failure to train its deputies on the
dissemination of booking photos. Accordingly, Plaintiff fails to state a claim for Monell
municipal liability against the County on a failure to train theory. The Court declines to
rule at this stage of the proceedings on whether texting a detainee’s booking photo to a
third party at a different law enforcement agency categorically violates the Due Process
Clause.
iv. 	Deficient Policy
The County contends that Plaintiff fails to allege that its policy regarding booking
photos and social media was the moving force behind his injury. (ECF No. 9-1 at 13–14.)
Plaintiff contends that the County’s policy “was grossly deficient on its face because it fails
to accurately reflect” that California law prohibits deputies from disseminating booking
photos over text message, in addition to posting them on social media. (ECF No. 13 at 12.)
Plaintiff contends that because the County’s policy refers to “postings to social media,” it
fails to give deputies “clear guidance” that the law prohibits texting booking photos. Id. at
14–15. Lastly, Plaintiff contends that the County’s failure to amend its policy to also
prohibit sending booking photos via text message constitutes deliberate indifference to
10 The Court takes judicial notice of the Government Claim Plaintiff submitted to the County, which states
that Plaintiff and his coworkers work at the Department of Homeland Security. (ECF No. 9-2 at 9.)
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Plaintiff’s constitutional rights. Id. at 16. In response, the County notes that the challenged
policy explicitly requires employee social media use to comply with other laws relating to
disseminating confidential information. (ECF No. 9-1 at 14.)
To show that a municipality’s failure to enact a policy constitutes deliberate
indifference, a plaintiff “must demonstrate that [the municipality] was on actual or
constructive notice that its omission would likely result in a constitutional violation.” Tsao
v. Desert Palace, 698 F.3d 1128, 1145 (9th Cir. 2012) (quotations and citations omitted).
“[A] plaintiff must also show that the policy at issue was the ‘actionable cause’ of the
constitutional violation, which requires showing both but for and proximate causation.” Id.
(quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008)).
Plaintiff alleges that the County “maintained a deficient written policy that failed to
comply with the state law under Penal Code § 13665 and § 632.01” because it “failed to
prohibit texting of booking photographs.” (Compl. ¶ 215.) Plaintiff further alleges that
because the County knew that its deputies access booking photos frequently, it had notice
that “the absence of a policy prohibiting dissemination of booking photographs via text
message would likely result in violations of [detainees’] constitutional rights.” Id. ¶ 156.
The challenged County policy states: “Employees are instructed to be sure that their
use of social media complies with all laws and with other policies, particularly those
relating to the dissemination of confidential information . . . Social media includes, but is
not limited to, Facebook, Twitter, LinkedIn, Nixle, Wikipedia, blogs, etc.” San Diego
County Sheriff’s Department Policy 7.14.11 The policy does not include text messages or
emails in its definition of “social media.”
The Court finds that Plaintiff “has not plausibly alleged that this is a situation in
which ‘the need for more or different’ action [by the County] was ‘so obvious’ that [it] can
infer deliberate indifference from the text of the policy alone.” Hyun Ju Park, 952 F.3d at
11 7.14 Social Media, San Diego County Sheriff’s Office – Policy Section, https://www.sdsheriff.gov
/home/showpublisheddocument/9365/638880924367530000%20at%2067 (accessed March 9, 2026).
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1143 (quoting Canton, 489 U.S. at 390). First, the policy’s definition of social media is
non-exhaustive. It states that social media “includes, but is not limited to” a list of social
media forms, and ends that list with the phrase “etc.” San Diego County Sheriff’s
Department Policy 7.14 (emphasis added). The policy does not obviously omit text
messages from its list of prohibited communication forms. Additionally, the policy requires
County employees to follow “all laws” and “other policies” related to the “dissemination
of confidential information.” “All laws” encompasses California Penal Code § 13665,
which prohibits sharing booking photos via text message. The Complaint fails to establish
that the County’s policy caused Plaintiff’s injury or that the County’s failure to amend the
policy constituted deliberate indifference to Plaintiff’s rights. See Tsao, 698 F.3d at 1145–
46. Accordingly, Plaintiff fails to state a Monell claim against the County on a deficient
policy theory. The County’s Motion to Dismiss (ECF No. 9-1) is granted as to the Monell
claim.
B. Section 1983 Supervisory Liability
The Supervisor Defendants move to dismiss Plaintiff’s § 1983 claims for failure to
supervise and discipline against them. (ECF No. 16-1 at 8–17.)
1. Legal Standard
Under § 1983, supervisory officials “may not be held liable [in their individual
capacities] 	for 	the 	unconstitutional 	conduct 	of 	their 	subordinates 	under 	a 	theory
of respondeat superior.” Iqbal, 556 U.S. at 676. Instead, the (1) the supervisor must have
been “person[ally] involve[d] in the constitutional deprivation,” or (2) a “sufficient causal
connection [must exist] between the supervisor’s wrongful conduct and the constitutional
violation.” Hansen v. Black, 885 F.2d 642, 645–46 (9th Cir. 1989). In other words, “a
supervisor can be liable in his individual capacity for his own culpable action or inaction
in the training, supervision, or control of his subordinates; for his acquiescence in the
constitutional deprivation; or for conduct that showed a reckless or callous indifference to
the rights of others.” Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018) (quotations and
citations omitted).
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2. Defendant Wahl
Defendant Wahl contends that Plaintiff fails to state a claim for supervisory liability
against 	him 	because 	“Plaintiff 	does 	not 	allege 	[that 	Defendant 	Wahl] 	personally
participated in the violations, was causally connected to the violations, or was deliberately
indifferent to Plaintiff’s rights.” (ECF No. 16-1 at 10.) Defendant Wahl contends that
Plaintiff’s allegations against him are conclusory, “generalized assertions” and “untethered
from Plaintiff’s injuries.” Id. at 10–11. Defendant Wahl further contends that many of the
allegations of prior SDPD misconduct predate his appointment as Chief of Police, so he
was not the SDPD’s final policymaker when those events occurred. Id. at 11.
Plaintiff responds that Defendant Wahl served on the SDPD for 26 years before he
became Chief and contends that he was the SDPD’s final policymaker when several
incidents of the Bike Team using excessive force against Black men occurred. (ECF No.
18 at 9.) Plaintiff further contends that Defendant Wahl had “personal awareness” of these
incidents and “condoned and acquiesced in [the] abusive behavior” by promoting the
offending officers, instead of retraining or disciplining them. Id. at 9.
Because Plaintiff does not allege that Defendant Wahl was personally involved in
Plaintiff’s arrest, detention, or treatment, he must establish a causal connection between
Defendant Wahl’s actions and Plaintiff’s injury to state a supervisory liability claim. See
Hansen, 885 F.2d at 646. A causal connection “can be established . . . by setting in motion
a series of acts by others . . . or by knowingly refusing to terminate a series of acts by
others, which the supervisor knew or reasonably should have known would cause others to
inflict a constitutional injury.” Starr v. Baca, 652 F.3d 1202, 1207–08 (9th Cir. 2011)
(quoting Dubner v. City of San Francisco, 266 F.3d 959, 968 (9th Cir. 2001)).
For instance, in Starr, the Ninth Circuit found that the plaintiff stated a supervisory
liability claim against the sheriff because the sheriff knew about and acquiesced in
unconstitutional conditions in county jails. Starr, 652 F.3d at 1216. In that case, the plaintiff
pled detailed facts demonstrating that the sheriff received notice about the jail conditions
through several DOJ reports, weekly Special Counsel reports, a DOJ Memorandum of
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Understanding signed by the sheriff, civil settlements, and personal knowledge of several
similar inmate killings in the jails. Id. at 1209–11. The Ninth Circuit found these allegations
sufficient to establish supervisory liability as to Plaintiff’s § 1983 claim related to
conditions of confinement because the plaintiff “specifically allege[d] that Sheriff Baca
was given notice of” prior inmate deaths and, “in several reports, of systematic problems
in the county jails under his supervision that have resulted in these deaths and injuries.” Id.
at 1216.
Plaintiff’s allegations concerning Defendant Wahl are far less detailed and specific
than the allegations against the sheriff in Starr. Plaintiff alleges that Defendant Wahl
worked for the SDPD for 26 years, served as Assistant Chief from September 2023 to June
2024, and became Chief of Police on June 7, 2024. (Compl. ¶ 10.) Plaintiff alleges that
Defendant Wahl was “intimately familiar with the multiple allegations by his own
employees that there had been a long tradition of covering up misconduct only to promote
the bad actors” and a “code of silence” within the SDPD but did nothing. Id. ¶¶ 145, 191.
Plaintiff further alleges that Defendant Wahl “failed to supervise police officers to prevent,
deter, and punish the unconstitutional and excessive use of force.” Id. ¶ 185. He alleges
that Defendant Wahl knew about the SDPD’s “pattern of charging innocent people with
resisting arrest in order to cover up” violations, “condoned and acquiesced in” officer
misconduct, and took no action to ensure offending officers received discipline. Id. ¶¶ 192,
193, 196.
Unlike the allegations in Starr, which provided detailed facts about the sheriff’s
knowledge of constitutional violations in jails, Plaintiff’s allegations largely restate the
relevant legal standards and offer minimal facts about Defendant Wahl’s individual actions
or omissions. Regarding the alleged prior incidents of excessive force and false arrest in
downtown San Diego, see Compl. ¶¶ 55–64, Plaintiff fails to sufficiently allege Defendant
Wahl’s personal connection to these incidents. Several of these incidents allegedly
occurred before Defendant Wahl became Assistant Chief or Chief. And Plaintiff fails to
identify Defendant Wahl’s connection to the more recent incidents beyond the conclusory
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allegation that the “Department was well aware” of these incidents and “took no action.”
Id. ¶¶ 52, 62.
The Court concludes that Plaintiff’s allegations are too conclusory and vague to
adequately allege that Defendant Wahl’s conduct caused Plaintiff’s injury. See Est. of
Mendez v. City of Ceres, 390 F. Supp. 3d 1189, 1213 (E.D. Cal. 2019) (dismissing
individual supervisory liability claim against police chief where complaint failed to
“differentiat[e] in any way” the chief’s conduct “from that of the City or the Police
Department”). Accordingly, the Supervisor Defendants’ Motion to Dismiss (ECF No. 16-
1) is granted as to the § 1983 claim against Defendant Wahl.
3. Defendants Smith and Bull
Defendants Smith and Bull raise similar arguments as Defendant Wahl. (ECF No.
16-1 at 12.) They contend that Plaintiff fails to allege that they “set in motion” or
“knowingly refused to terminate” acts from subordinates that caused Plaintiff’s injuries.
Id. at 12. Plaintiff contends that he alleges that Defendants Smith and Bull were present
during his arrest, and thus personally involved in his injury. (ECF No. 18 at 8.) In response,
Defendants Smith and Bull contend that Plaintiff’s allegation relating to their presence at
his arrest is conclusory because Plaintiff bases that allegation “on information and belief.”
(ECF No. 18 at 12–13.)
First, Plaintiff alleges “on information and belief” that Defendants Smith and Bull—
supervisors of the SDPD Bike Team—were “present during” his arrest and detention and
“either participated in the arrest or permitted their subordinates to arrest” and use unlawful
force against Plaintiff. Id. ¶¶ 11, 28, 186. Courts in this Circuit have found similar
allegations too conclusory to state a claim for supervisory liability. For instance, in Rosales
v. County of San Diego, the plaintiff in an excessive force case alleged that his injury
“happened in the presence of multiple [sheriff’s] deputies who responded to the scene,”
including one sergeant “who did nothing to stop his deputies from engaging in [] wrongful
conduct.” Case No. 3:19-cv-02303-JLS (LL), ECF No. 1 ¶ 58 (S.D. Cal. Dec. 3, 2019).
The Rosales court held that the plaintiff “failed to allege any specific and non-conclusory
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facts showing that [the sergeant] personally participated in the alleged violations.” 511 F.
Supp. 3d 1070, 1085 (S.D. Cal. 2021). And in Chavez v. United States, the Ninth Circuit
deemed the plaintiff’s allegations that Border Patrol supervisors “personally reviewed and,
thus, knowingly ordered, directed, sanctioned or permitted” unconstitutional traffic stops
“wholly conclusory” and insufficient to state a claim for supervisory liability. 683 F.3d
1102, 1110 (9th Cir. 2012). The Court likewise finds that Plaintiff fails to sufficiently allege
that Defendants Smith and Bull were personally involved in his constitutional injury.
The Court next assesses whether Plaintiff adequately alleges a causal connection
between the conduct of Defendants Smith and Bull and his injury. See Hansen, 885 F.2d
at 646. Plaintiff alleges “on information and belief” that Defendants Smith and Bull “were
well aware of” the Bike Team’s prior incidents of excessive force and false arrest against
Black men in downtown San Diego, “were present during these unlawful arrests,” and
“failed to properly supervise or intervene.” Id. ¶ 65. He alleges that Defendants Smith and
Bull “knew or should have known of the dangerous and racist propensities of the [Bike
Team] from their personal experience with the same officers but took no steps to supervise
[the officers]” or correct or discourage their use of authority. Id. ¶ 187. Lastly, Plaintiff
alleges that when footage of the prior incidents “was provided to” Defendants Smith and
Bull, they “blamed the victims and covered up for their officers.” Id. ¶ 188.
As with the claim against Defendant Wahl and unlike the plaintiff in Starr, the Court
finds that Plaintiff fails to allege specific, non-conclusory facts regarding Defendants Smith
and Bull’s involvement in, knowledge of, and acquiescence in prior constitutional
violations by the SDPD. For the same reasons as discussed above, the Court grants the
Supervisor Defendants’ Motion to Dismiss (ECF No. 16-1) as to the § 1983 supervisory
liability claims against Defendants Smith and Bull.
C. Negligence
1. Legal Standard
To establish negligence under California law, “a plaintiff must show that defendant
had a duty to use due care, that he breached that duty, and that the breach was the proximate
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or legal cause of the resulting injury.” Nally v. Grace Cmty. Church, 763 P.2d 948, 956
(Cal. 1988).
2. The City
Plaintiff brings a negligence claim against the city on a theory of vicarious liability.
(Compl. ¶ 226.)
The City contends that it cannot be held vicariously liable for the Supervisor
Defendants’ actions because the Supervisor Defendants are not personally liable for
negligence. (ECF No. 15-1 at 29.) Plaintiff contends that the Supervisor Defendants acted
negligently, creating respondeat superior liability for the City. (ECF No. 17 at 17.) The
City also contends that it cannot be held vicariously liable for the Doe Defendants’ actions
because 	Plaintiff 	does 	not 	bring 	specific 	negligence 	allegations 	against 	the 	Doe
Defendants. (ECF No. 15-1 at 29.) Plaintiff contends that he “alleges in specific detail how
the Doe Defendants wrongfully detained and falsely arrested and then subjected him to
excessive force,” which is sufficient 	to state 	a negligence claim against the Doe
Defendants. (ECF No. 17 at 17.)
California Government Code § 815 states: “except as otherwise provided by
statute[,] [a] public entity is not liable for an injury, whether such injury arises out of an
act or omission of the public entity or a public employee or any other person.” Cal. Gov’t
Code § 815. However, § 815.2 provides that “[a] public entity is liable for injury
proximately caused by an act or omission of an employee of the public entity within the
scope of his employment if the act or omission would, apart from this section, have given
rise to a cause of action against that employee or his personal representative.” Id. § 815.2.
“[A] governmental entity can be held vicariously liable when a police officer acting
in the course and scope of employment uses excessive force or engages in assaultive
conduct.” Mary M. v. City of Los Angeles, 814 P.2d 1341, 1348 (Cal. 1991) (collecting
cases). Under California law, a police officer “owes a duty of reasonable care to the
arrestee” once he is in custody. Frausto v. Dep’t of Cal. Highway Patrol, 267 Cal. Rptr. 3d
889, 906 (Cal. Ct. App. 2020).
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Plaintiff alleges that SDPD officers arrested him, handcuffed him, and placed him
into a transport van without securing him to the interior of the van or the seat. (Compl.
¶¶ 24, 29–32.) Plaintiff alleges that the officers accelerated the van at a high rate of speed
and then abruptly stopped it, “forcibly toss[ing]” him onto the van floor. Id. ¶ 33. Plaintiff
alleges that he landed on his back and shoulder “while handcuffed and unable to brace
himself.” Id. Plaintiff further alleges that he experienced “extreme pain in his right shoulder
and chest area” hours after the “rough ride” and that he had a fractured shoulder when he
left the Jail. Id. ¶¶ 47, 50. Plaintiff brings his excessive force claim against Does 6–7, who
are unidentified SDPD officers. Id. at 32.
The Court finds that Plaintiff’s allegations support the reasonable inference that
Does 6–7 owed a duty of reasonable care to Plaintiff, they breached that duty by subjecting
Plaintiff to a “rough ride,” and their breach caused Plaintiff’s injury. Because Does 6–7
acted in the scope of their employment when they injured an arrestee while transporting
him to the Jail, Plaintiff sufficiently alleges that the City can be held vicariously liable for
Does 6–7’s negligence. The City’s Motion to Dismiss (ECF No. 15-1) is denied with
respect to the negligence claim.
3. Supervisor Defendants
i. 	Defendant Wahl
Plaintiff brings a negligent training and supervision claim against Defendant Wahl.
(Compl. ¶ 224.)
Defendant Wahl contends that because Plaintiff does not allege that he personally
interacted with Plaintiff, he did not owe Plaintiff a duty. (ECF No. 16-1 at 18.) Defendant
Wahl contends that Plaintiff fails to allege that a special relationship existed between
himself and Plaintiff. Id. Defendant Wahl further contends that Plaintiff fails to state a
negligent supervision and training claim against him because Plaintiff does not allege that
he had prior knowledge of Doe Defendant officers’ “dangerous propensity” to commit
misconduct. Id. at 20–21. Plaintiff contends that Defendant Wahl owed a “duty of ordinary
care in training and supervising [] subordinates” because he “was specifically aware of the
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dangerous propensities of the Bike Team officers of using excessive force” against Black
men. (ECF No. 18 at 14.)
Plaintiff does not allege that Defendant Wahl personally participated in his arrest,
detention, or treatment. Plaintiff instead alleges that the Supervisor Defendants “failed to
act with ordinary care in failing to properly train and supervise their officers with respect
to proper procedures on detention and arrest of citizens and the use of force.” (Compl.
¶ 224.) The Court construes this as a negligent training and supervision claim.
“[W]here the Chief of Police is not directly involved in the incident, any ‘claims
against the Chief for negligent training, retention, hiring, etc. are in reality a direct claim
against the City[.]’” Sandoval ex rel. B.U. v. City of National City, No. 22CV1657-
GPC(AGS), 2023 WL 3295590, at *12 (S.D. Cal. May 5, 2023) (citation omitted); see also
Berman v. Sink, No. CV F 13-0597 LJO SAB, 2013 WL 2360899, at *16 (E.D. Cal. May
29, 2013) (collecting cases). “[A] direct claim against a governmental entity asserting
negligent hiring and supervision, when not grounded in the breach of a statutorily imposed
duty owed by the entity to the injured party, may not be maintained.” de Villers v. Cnty. of
San Diego, 156 Cal. App. 4th 238, 266 (Cal. Ct. App. 2007).
Additionally, “California law does not recognize a general duty of care on the part
of supervisors with respect to negligent hiring, retention, or training” unless the supervisors
have a “special relationship” with the injured party. Est. of Osuna v. Cnty. of Stanislaus,
392 F. Supp. 3d 1162, 1182 (E.D. Cal. 2019) (citing C.A. v. William S. Hart Union High
Sch. Dist., 270 P.3d 699, 709 (Cal. 2012)). Here, Plaintiff fails to allege that he had a special
relationship with Defendant Wahl. See id. (collecting cases declining to find a special
relationship between plaintiffs and sheriffs or police chiefs). Accordingly, the Supervisor
Defendants’ Motion to Dismiss (ECF No. 16-1) is granted as to the negligence claim
against Defendant Wahl.
ii. 	Defendants Smith and Bull
Plaintiff brings a negligent training and supervision claim against Defendants Smith
and Bull. (Compl. ¶ 224.)
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Defendants Smith and Bull make the same arguments as Defendant Wahl regarding
Plaintiff’s negligence claims against them. (ECF No. 16-1 at 19.) Plaintiff contends that
because Defendants Smith and Bull were present during his arrest, they breached their duty
to Plaintiff by “participating in the unlawful conduct themselves in falsely arresting
[Plaintiff] or by permitting their subordinates to do so.” (ECF No. 18 at 14.) Plaintiff
contends that Defendants Smith and Bull had a duty to supervise and train their Bike Team
subordinates with ordinary care and breached that duty because they were “personally
aware of the dangerous propensities of their employees and yet failed to take action.” Id.
Plaintiff alleges that Defendants Smith and Bull “failed to act with ordinary care in
failing to properly train and supervise their officers with respect to proper procedures on
detention and arrest of citizens and the use of force.” (Compl. ¶ 224.) As discussed in
Section IV(B)(3), Plaintiff fails to sufficiently allege that Defendants Smith and Bull were
personally involved in Plaintiff’s arrest, detention, or treatment. Plaintiff fails to allege the
existence of a special relationship between himself and Defendants Smith and Bull, and
thus fails to state a claim for negligent training and supervision against those Defendants.
The Supervisor Defendants’ Motion to Dismiss (ECF No. 16-1) is granted with respect to
the negligence claims against Defendants Smith and Bull.
4. The County
Plaintiff appears to rely on three theories to support his negligence claims against
the County: (1) direct negligence per se liability for failure to discharge a mandatory duty,
(2) vicarious negligence per se liability based on Does 13–14’s violation of California
Penal Code § 13665, and (3) vicarious common law negligence liability based on Does 13–
14’s dissemination of Plaintiff’s booking photo.
iii. 	Direct Liability – Negligence Per Se
The County contends that Plaintiff fails to state a direct negligence per se claim
against the County because “nothing in the language of Penal Code Section 13665 provides
for a private right of action in civil court.” (ECF No. 9-1 at 17.) Plaintiff contends that
§ 13665 imposes a “mandatory duty” on the County that provides a basis for a negligence
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per se claim, so a private right of action is not required. (ECF No. 13 at 20–21.) In response,
the County contends that § 13665 does not impose a mandatory duty. (ECF No. 14 at 6–
8.)
California Government Code § 815.6 states:
Where a public entity is under a mandatory duty imposed by an enactment
that is designed to protect against the risk of a particular kind of injury, the
public entity is liable for an injury of that kind proximately caused by its
failure to discharge the duty unless the public entity establishes that it
exercised reasonable diligence to discharge the duty.
Cal. Gov’t Code § 815.6 (emphasis added).
Plaintiff alleges that “Does 13–14 were under a statutory duty to comply with
California Penal Code § 13665” and violated that statute when they texted Plaintiff’s
booking photo to his coworkers. (Compl. ¶¶ 229, 231.) Plaintiff further alleges that the
County is “vicariously liable for the negligent conduct of its employees.” Id. ¶ 233. In his
Opposition brief, Plaintiff contends for the first time that the County is directly liable under
Government Code § 815.6 for “failure to discharge a mandatory duty.” (ECF No. 13 at 20.)
However, the Complaint does not allege that § 13665 imposed a mandatory duty on the
County. (See Compl. ¶¶ 228–34.) In evaluating a 12(b)(6) motion, courts “may not look
beyond the complaint to a plaintiff’s moving papers, such as a memorandum in opposition
to a defendant’s motion to dismiss.” Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197
n.1 (9th Cir. 1998) (emphasis and citation omitted). The Court concludes that Plaintiff fails
to adequately allege a direct negligence per se claim against the County for failure to
discharge a mandatory duty imposed by § 13665.
iv. 	Vicarious Liability – Negligence Per Se
The County contends that Plaintiff’s allegations that Does 13–14 violated § 13665
are conclusory. (ECF No. 9-1 at 17.)
California Penal Code § 13665 provides that:
A police department or sheriff’s office shall not share, on social media,
booking photos of an individual arrested on suspicion of committing a
nonviolent crime unless any of the following circumstances exist: (1) A police
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department or sheriff’s office has determined that the suspect is a fugitive or
an imminent threat . . . (2) A judge orders the release or dissemination of the
suspect’s image . . . [or] (3) . . . an exigent circumstance [] necessitates the
dissemination 	of the suspect’s 	image in 	furtherance of an urgent 	and
legitimate law enforcement interest.
Cal. Penal Code § 13665(a). The statute defines “social media” as “an electronic
service or account, or electronic content, including, but not limited to, videos or still
photographs, blogs, video blogs, podcasts, instant and text messages, email, online services
or accounts, or Internet Web site profiles or locations.” Id. § 13665(d)(2); id. § 632.01(a)(1)
(emphasis added).
As discussed in Section IV(A)(3)(ii), Plaintiff adequately alleges that Does 13–14
texted Plaintiff’s booking photo to Plaintiff’s coworkers. Plaintiff further alleges that “no
compelling public safety or law enforcement interest” justified texting his booking photo
because he was arrested for the nonviolent offense of “being drunk in public,” he “posed
no imminent threat to public safety and was already in law enforcement custody,” and “no
judge ordered the release of the image.” (Compl. ¶ 257.) The Court finds that Plaintiff
adequately pleads that Does 13–14 violated California Penal Code § 13665.
The Court next considers whether Plaintiff sufficiently alleges a presumption of
negligence per se based on Does 13–14’s violation of § 13665. “[T]he doctrine of
negligence per se is not a separate cause of action, but creates an evidentiary presumption
that affects the standard of care in a cause of action for negligence.” Turner v. Seterus, Inc.,
238 Cal. Rptr. 3d 528, 543 (Cal. Ct. App. 2018) (quotations and citation omitted). A
plaintiff establishes a rebuttable presumption of negligence by showing:
(1) the defendant violated a statute, ordinance, or regulation of a public entity;
(2) the violation proximately caused death or injury to person or property; (3)
the death or injury resulted from an occurrence the nature of which the statute,
ordinance, or regulation was designed to prevent; and (4) the person suffering
the death or the injury to his person or property was one of the class of persons
for whose protection the statute, ordinance, or regulation was adopted.
Quiroz v. Seventh Ave. Ctr., 45 Cal. Rptr. 3d 222, 244 (Cal. Ct. App. 2006) (citing Cal.
Evid. Code § 669).
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As discussed, Plaintiff adequately alleges that Does 13–14 violated § 13665, which
caused Plaintiff’s injury. The statute was adopted to protect the privacy of individuals who,
like Plaintiff, have been arrested and booked on suspicion of committing a nonviolent
crime. The question remaining is whether § 13665 was designed to prevent Does 13–14’s
conduct. The County contends that the California Legislature intended § 13665 to apply
only to “traditional social media platforms such as Facebook or Instagram,” not text
messages. (ECF No. 14 at 7.) However, the statute itself includes “text messages” in its
definition of social media. Cal. Pen. Code §§ 13665(d)(2), 632.01(a)(1). Accordingly, the
Court concludes that Plaintiff adequately pleads a rebuttable presumption of negligence
based on Does 13–14’s conduct. As discussed below, the County can be held vicariously
liable for Does 13–14’s negligence. The County’s Motion to Dismiss (ECF No. 9-1) is
denied as to Plaintiff’s negligence per se theory.
v. 	Vicarious Liability – Common Law Negligence
Plaintiff also brings a common law negligence claim against the County under a
vicarious liability theory. (Compl. ¶¶ 220–27.) The County contends that it cannot be held
vicariously liable for the conduct of Does 13–14 because California Government Code
§ 844.6 provides that vicarious liability of public entities does not apply in cases involving
injuries to prisoners. (ECF No. 9-1 at 16.) Plaintiff contends that the rule granting immunity
for injuries to prisoners does not apply here because Plaintiff “has not alleged, because he
does not know, the date and time the booking photos were texted to his colleagues.” (ECF
No. 13 at 21–22.)
California Government Code Section 844.6 provides in relevant part that “a public
entity is not liable for . . . an injury to any prisoner.” Cal. Gov’t Code § 844.6(a). “Although
a public entity may be vicariously liable for the acts and omissions of its employees . . .
that rule does not apply in the case of injuries to prisoners,” subject to some exceptions that
do not apply here. Lawson v. Superior Ct., 103 Cal. Rptr. 3d 834, 844 (Cal. Ct. App. 2010).
The Court assesses whether Plaintiff constitutes a “prisoner” under California law.
California Government Code § 844 states that “a lawfully arrested person who is brought
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into a law enforcement facility for the purpose of being booked . . . becomes a prisoner . . .
upon his or her initial entry into a prison, jail, or penal or correctional facility, pursuant to
penal processes.” Cal. Gov’t Code § 844. “[A] person need not be lawfully arrested to
qualify as a prisoner under [Section] 844.6.” Holland v. City of San Francisco, No. C10-
2603 THE, 2010 WL 5071597, at *9 (N.D. Cal. Dec. 7, 2010). Individuals who have not
yet entered a correctional facility or who are “on the way out of prison are not prisoners
and are not, therefore, barred from bringing a tort action against a public entity.” Fearon
v. Dep’t of Corr., 209 Cal. Rptr. 309, 311 (Cal. Ct. App. 1984).
Plaintiff alleges that, “[o]n or around January 1, 2025, Does 13–14 violated Penal
Code § 13665 when [they] accessed [Plaintiff’s] booking photo via JIMS and distributed
it via text message.” (Compl. ¶ 231.) Plaintiff must have already had his booking photo
taken before Does 13–14 allegedly sent it to his coworkers. However, because Plaintiff
does not plead an exact time when the alleged violation occurred, it is possible that Does
13–14 disseminated the booking photo after Plaintiff was released from the Jail. After his
release, Plaintiff would no longer be considered a “prisoner” under § 844.6, and the County
could be held liable for his injury. See Fearon, 209 Cal. Rptr. at 311. Because the Court
must construe the allegations in the light most favorable to Plaintiff at the motion to dismiss
stage, Manzarek, 519 F.3d at 1031, the Court assumes for the purposes of ruling on this
motion only that Plaintiff was no longer a “prisoner” when Does 13–14 disseminated his
booking photo. The Court concludes that § 844.6 immunity does not bar Plaintiff’s
negligence claim against the County at this stage of the proceedings.
The County further contends that Plaintiff’s vicarious liability negligence claim fails
because Plaintiff “identifies no statutory basis for holding the County, a public entity,
directly liable for negligence.” (ECF No. 9-1 at 17.) Plaintiff contends that California
Government Code § 815.2 provides a statutory basis for holding the County vicariously
liable for the conduct of Does 13–14. (ECF No. 13 at 21.) Plaintiff does not cite § 815.2 in
the “negligence” section of his Complaint. (Compl. ¶¶ 220–27.) But elsewhere in the
Complaint, he alleges that, “[p]ursuant to Gov. Code, § 815.2, the County is liable for
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injuries proximately caused by acts or omissions of their employees within the scope of
their employment.” Id. ¶ 262. Although California law requires plaintiffs to identify the
“statute or ‘enactment’ claimed to establish the duty,” Searcy v. Hemet Unified Sch. Dist.,
223 Cal. Rptr. 206, 212 (Cal. Ct. App. 1986), “[p]leading in federal court is governed by
Federal Rules of Civil Procedure, not state pleading requirements,” Miller v. Sawant, 18
F.4th 328, 337 (9th Cir. 2021). Federal Rule of Civil Procedure 8(a)(2)’s notice pleading
requirement “does not require a plaintiff to cite statutes in support of his or her claims for
relief.” Essex v. Cnty. of Imperial, No. 3:24-cv-00763-L-VET, 2025 WL 525110, at *8
(S.D. Cal. Feb. 18, 2025) (citation omitted). Plaintiff’s failure to directly cite § 815.2 in the
“negligence” section of his Complaint does not require dismissal of his negligence claim.
Plaintiff alleges that Does 13–14 are County employees who “accessed [Plaintiff]’s
booking photograph while on duty and photographed and texted it to third parties,” in
violation of California law. (Compl. ¶¶ 44, 46.) Plaintiff alleges that “Does 13–14 were
able to access and distribute the booking photo by virtue of their access to JIMS, gained
through their employment with the Department.” Id. ¶ 262. Plaintiff alleges that this
conduct caused him ridicule, humiliation, and reputational harm. Id. ¶ 51.
The Court finds these allegations sufficient to hold Does 13–14 liable for negligence.
Plaintiff cites California Government Code § 820, which provides that “a public employee
is liable for injury caused by his act or omission to the same extent as a private person.”
Cal. Gov’t Code § 820(a); Compl. ¶ 222. “[A]s a general proposition one is required to
exercise 	the 	care 	that 	a 	person 	of 	ordinary 	prudence 	would 	exercise 	under 	the
circumstances.” Flowers v. Torrance Mem’l Hosp. Med. Ctr., 884 P.2d 142, 144 (Cal.
1994) (quotation and citations omitted). The Court finds that Plaintiff sufficiently alleges
that Does 13–14 had a duty to Plaintiff to act with ordinary care, they breached that duty
by disseminating his booking photo without cause, and their breach caused Plaintiff harm.
The Court concludes that Plaintiff sufficiently alleges that the County is vicariously
liable for Does 13–14’s negligence. Under California law, an act occurs within the scope
of 	employment 	if 	it 	is 	an 	“outgrowth” 	of 	the 	employment, 	“engendered 	by 	the
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employment,” or a “generally foreseeable consequence of the activity.” Lisa M. v. Henry
Mayo Newhall Mem’l Hosp., 907 P.2d 358, 362 (Cal. 1995) (quotations and citations
omitted). Plaintiff adequately pleads that Does 13–14’s access to and dissemination of
Plaintiff’s booking photo was an outgrowth of their employment with the County, and that
they acted within the scope of their employment. Accordingly, Plaintiff states a claim for
vicarious negligence liability against the County at this stage of the proceedings. The
County’s Motion to Dismiss (ECF No. 9-1) is denied as to the negligence claim on a
vicarious liability theory.
D. Bane Act
1. Legal Standard
California Civil Code § 52.1 codifies the Tom Bane Civil Rights Act (the “Bane
Act”), which creates a private right of action against any person who:
interferes by threat, intimidation, or coercion, or attempts to interfere by
threat, intimidation, or coercion, with the exercise or enjoyment by any
individual or individuals of rights secured by the Constitution or laws of the
United States, or of the rights secured by the Constitution or laws of this
state . . . .
Cal. Civ. Code § 52.1(b).
“The essence of a Bane Act claim is that the defendant, by the specified improper
means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff from
doing something he or she had the right to do under the law or to force the plaintiff to do
something that he or she was not required to do under the law.” Cornell v. City & Cnty. of
San Francisco, 225 Cal. Rptr. 3d 356, 376 (Cal. Ct. App. 2017) (citing Simmons v. Superior
Ct., 212 Cal. Rptr. 3d 884, 893 (Cal. Ct. App. 2016)). The Bane Act “require[s] an
attempted or completed act of interference with a legal right, accompanied by a form of
coercion.” Jones v. Kmart Corp., 949 P.2d 941, 943–44 (Cal. 1998).
In Reese v. County of Sacramento, the Ninth Circuit concluded that (1) “the Bane
Act does not require the ‘threat, intimidation, or coercion’ element of the claim to be
transactionally independent from the constitutional violation alleged,” and (2) “the Bane
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Act requires [ ] ‘a specific intent to violate the arrestee’s right to 	freedom from
unreasonable seizure.’” 888 F.3d 1030, 1043 (9th Cir. 2018) (citing Cornell, 225 Cal. Rptr.
3d at 382–84). Specific intent can be established by showing that the defendant acted with
reckless disregard for the plaintiff’s constitutional rights. Id. at 1045.
2. Supervisor Defendants
The Supervisor Defendants contend that Plaintiff’s Bane Act claim against them
fails because Plaintiff does not adequately plead underlying constitutional violations
committed by the Supervisor Defendants or allege “facts that these defendants had any
specific intent to deprive Plaintiff of his constitutional rights.” (ECF No. 16-1 at 7–8.)
Plaintiff contends that he meets the Bane Act’s intent requirement by alleging that the
Supervisor Defendants acted with “reckless disregard” to cause Plaintiff’s constitutional
injury. (ECF No. 18 at 12.) Specifically, Plaintiff contends that Defendants Smith and Bull
“were present during the incident and permitted, directed, or caused their subordinates” to
violate Plaintiff’s rights, and Defendant Wahl “fail[ed] to take any corrective action, which
led to” Plaintiff’s injury. Id. at 12–13.
“[A] successfully pled deliberate-indifference claim suffices to state a Bane Act
claim because of the coercion, or specific intent, inherent in the deliberate-indifference
standard.” Barry v. Cnty. of Riverside, No. EDCV2101770JGBKKX, 2022 WL 2063247,
at *7 (C.D. Cal. May 11, 2022) (collecting cases). When a plaintiff fails to adequately plead
his constitutional deliberate indifference claim against a particular defendant, he must
allege additional evidence of specific intent by that defendant to state a Bane Act claim.
See, e.g., id. at *7 (dismissing Bane Act claim because plaintiff failed to state a deliberate
claim against the same defendants); Campos v. Cnty. of Orange, No. 8:23-cv-00072-WLH-
JDEx, 2024 WL 4799879, at *6 (C.D. Cal. Feb. 27, 2024) (“[T]he Bane Act claim . . . rises
or falls with the deliberate indifference claim.”).
As discussed in Section IV(B), Plaintiff fails to adequately plead § 1983 supervisory
liability claims against the Supervisor Defendants. To state a Bane Act claim against the
Supervisor Defendants, Plaintiff must therefore allege additional evidence of specific
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intent to violate his constitutional rights by those same Defendants. Plaintiff alleges that
the Supervisor Defendants “violated [his] rights with the specific intent and purpose to
deprive him of his enjoyment of those rights and of the interests protected by those rights.
Each defendant acted with reckless disregard for [Plaintiff’s] rights.” (Compl. ¶ 249.) The
Court finds this conclusory allegation insufficient to adequately allege specific intent by
the Supervisor Defendants to violate Plaintiff’s rights.
Plaintiff relies on Greer v. County of San Diego for the proposition that the Bane
Act applies to supervisory defendants. 726 F. Supp. 3d 1058 (S.D. Cal. 2023); see ECF
No. 18 at 13–14. In that case, the court stated that “a Bane Act claim can be brought against
a sheriff based on his supervisory conduct.” Greer, 726 F. Supp. 3d at 1085 (citing Venegas
v. Cnty. of Los Angeles, 87 P.3d 1 (Cal. 2004)). However, the Greer court also allowed the
§ 1983 supervisory liability claims against the sheriff and other supervisory defendants to
proceed past the summary judgment stage. Id. at 1080–82. Here, by contrast, Plaintiff fails
to adequately allege § 1983 supervisory liability claims against the Supervisor Defendants.
And because he does not sufficiently plead additional evidence of specific intent, Plaintiff
fails to state a Bane Act claim against the Supervisor Defendants. The Court grants the
Supervisor Defendants’ Motion to Dismiss (ECF No. 16-1) with respect to the Bane Act
claim.
E. Invasion of Privacy (California Constitution)
The County moves to dismiss Plaintiff’s invasion of privacy claim under Article I,
Section 1 of the California Constitution. The County contends that Plaintiff fails to allege
that Does 13–14 invaded his privacy because the fact of Plaintiff’s arrest is public
information. (ECF No. 9-1 at 18.) Plaintiff contends that he has a right to privacy regarding
his booking photo, which is not publicly available. (ECF No. 13 at 20.)
To state a claim for invasion of privacy under Article I, Section 1 of the California
Constitution, a plaintiff must establish “that they have a legally protected privacy interest,
a reasonable expectation of privacy under the circumstances, and a ‘serious invasion’ of
privacy by the [County] that constitutes ‘an egregious breach of the social norms
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underlying the privacy right.’” San Francisco Apartment Ass’n v. City & Cnty. of San
Francisco, 881 F.3d 1169, 1178 (9th Cir. 2018) (quoting Hill v. Nat’l Collegiate Athletic
Ass’n, 865 P.2d 633, 654–55 (Cal. 1994)). The right to privacy under the California
Constitution does not “prohibit all incursion into individual privacy but [] any such
intervention must be justified by a compelling interest.” Loder v. Mun. Ct., 553 P.2d 624,
628 (Cal. 1976) (citing White v. Davis, 533 P.2d 222, 234 (Cal. 1975)). The defendant
bears the burden to “articulate a compelling state interest and to demonstrate that it is
necessarily served by the policy.” Central Valley Chapter of the 7th Step Found., Inc. v.
Younger, 262 Cal. Rptr. 496, 506–07 (Cal. Ct. App. 1989) (citations omitted).
The 	right 	to 	privacy 	under 	the 	California 	Constitution 	protects 	against 	the
“dissemination of information regarding arrests not resulting in convictions” without a
compelling state interest. Id. at 499. The California legislature found that “publishing
booking photos on social media when there is a low risk to public safety is detrimental to
the right to a fair trial because it diminishes the presumption of innocence and potentially
violates privacy rights of Californians without a commensurate benefit to public safety.”
2021 Cal. Legis. Serv. Ch. 126, § 1(i) (A.B. 1475) (West). The legislature also defined
“social media” to include text messages. Cal. Pen. Code §§ 13665(d)(2), 632.01(a)(1). And
although the County’s “Who’s In Jail” website contains information about arrestees
currently in jail, it does not publicize booking photos. (ECF No. 9-1 at 19.)
At this stage of the proceedings, the Court finds that Plaintiff adequately alleges that
he had a legally protected privacy interest and reasonable expectation of privacy in his
booking photo, and that Jail deputies’ dissemination of the photo without cause constituted
a serious invasion of his privacy. The County does not attempt to satisfy its burden of
identifying a compelling state interest that would justify dissemination. The County’s
Motion to Dismiss (ECF No. 9-1) is denied with respect to Plaintiff’s claim for invasion of
privacy under the California Constitution.
F. Leave to Amend
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Plaintiff seeks leave to amend to correct the pleading deficiencies identified in this
Order. See, e.g., ECF No. 13 at 22. Federal Rule of Civil Procedure 15 mandates that “[t]he
court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a). “This policy
is to be applied with extreme liberality.” Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d
1048, 1051 (9th Cir. 2003) (per curiam) (quoting Owens v. Kaiser Found. Health Plan,
Inc., 244 F.3d 708, 712 (9th Cir. 2001)). The Court grants Plaintiff leave to amend his
Complaint to correct the deficiencies addressed in this order.
V. 	CONCLUSION
IT IS HEREBY ORDERED that the City’s Motion to Dismiss (ECF No. 15-1) is
denied. The Supervisor Defendants’ Motion to Dismiss (ECF No. 16-1) is granted. The
County’s Motion to Dismiss (ECF No. 9-1) is granted as to the Monell claim and denied in
all other respects. All dismissals are without prejudice and with leave to amend.
IT IS FURTHER ORDERED that Plaintiff may file an amended complaint within
thirty (30) days of the filing of this Order. If no amended complaint is filed within (30)
days, the County and the City shall file an answer to the Complaint within forty (40) days
of the filing of this Order.
Dated: March 26, 2026
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