Mascorro v. The City of San Diego et al

1
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ELOY MASCORRO,
Plaintiff,
v.
THE CITY OF SAN DIEGO, et al.,
Defendants.
Case No.: 21-cv-1725-RSH-DDL
ORDER
[ECF Nos. 77, 81, 82, 83, 95]
Pending before the Court are five motions: (1) a motion to dismiss filed by the City
of San Diego (the “City”), as well as individual police officers and a park ranger
(collectively, the “City Defendants”),1 ECF No. 81; (2) a motion to dismiss filed by Joshua
Culver, ECF No. 82; (3) a motion to dismiss filed by Universal Protection Service, LP d/b/a
Allied Universal Security Services, sued as Allied Universal Security (“Allied”), ECF No.
83; (4) a motion for judgment on the pleadings filed by Downtown San Diego Partnership,
1 As used herein, the “City Defendants” refers to the moving parties: the City, San
Diego Police Department Officers Brian Moreno, Felix Campante, Geoffrey Decesari,
MacKenzie Fuggett, Tyler Hamby, and Park Ranger Zadok Othniel.
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 1 of 24

2
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
sued as San Diego DTP (“Downtown Partnership”), ECF No. 95; and (5) Plaintiff’s motion
to effectuate service or re-service of process, ECF No. 77. The Court rules on these motions
as set forth below.
I. 	BACKGROUND
Plaintiff Eloy Mascorro, proceeding pro se, filed this lawsuit on October 5, 2021
against the City, the San Diego Police Department, the San Diego Chief of Police, and
unnamed police officers.2 ECF No. 1. The Complaint is based on an incident on October
6, 2020, in which San Diego police allegedly “unlawfully detained, searched, seized and
arrested” Plaintiff while he was visiting Balboa Park in San Diego. Id. at 2. The Complaint
further alleged that that the police knowingly arrested him without probable cause, that
they wrote false police reports about the incident, and that the arrest was made in retaliation
for Plaintiff’s prior complaints of police misconduct. Id. at 2–3. The Complaint also alleged
that the police unlawfully seized Plaintiff’s property and thereafter damaged it, which
Plaintiff discovered when he retrieved his property on October 15, 2020. Id. at 2. The
Complaint did not identify specific causes of action, but alleged that “[o]n 10/6/2020 my
1st, 2nd, 4th, 6th and 14th amendment rights were violated,” and further sought recovery
of a civil penalty under the Bane Civil Rights Act. Id. at 2, 4.
On May 11, 2023, the Court dismissed the case without prejudice for failure to
timely effectuate service of process. ECF No. 35. Plaintiff appealed that order. On April
29, 2025, the Court of Appeals vacated the order, and remanded the case with instructions
to this Court to forward process to the U.S. Marshals Service (“USMS”) for service on the
City. ECF No. 54 at 2. The mandate issued on May 19, 2025. ECF No. 55. On May 22,
2 This case is related to two other federal lawsuits brought by Plaintiff in this Court,
Case Nos. 21-cv-1427 and 21-cv-2012. In the former case, summary judgment for the
defendants was entered on January 22, 2025, and Plaintiff has appealed. The latter case is
pending before this Court.
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 2 of 24

3
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2025, this Court directed service by the USMS. ECF No. 56. On May 28, 2025, the USMS
served the Complaint on the San Diego City Attorney’s Office. ECF No. 57.
On June 18, 2025, Plaintiff filed the Amended Complaint, his operative pleading.
ECF No. 58. The Amended Complaint names over thirty defendants: (1) the City; (2) the
San Diego Chief of Police; (3) Officer #7176; (4) Officer #6870; (5) Officer #7028; (6)
Officer #6294; (7) Officer Williams; (8) Officer Richardson; (9) Officer D. Stone; (10)
Officer Felix Campante; (11) Officer M. Wright; (12) Officer Brian Moreno; (13) Officer
Tyler Hamby; (14) Lieutenant Nicholas Dedonato; (15) Lieutenant Geoffrey Decesari; (16)
Park Ranger Zadok E. Othniel; (17) Park Ranger John Doe #19; (18) Officer Bunch; (19)
Supervisor John Doe #5448; (20) Officer John Doe #5113; (21) Sergeant John Doe #7689;
(22) Sergeant Davis #6781; (23) IA Sergeant McCool; (24) IA Lieutenant Rivera; (25)
Officer Newman; (26) Officer Nunez; (27) Sergeant MacKenzie Fugett; (28) Josh Culver;
(29) San Diego DTP; (30) Allied Universal Security; (31) San Diego DTP Employees and
Supervisors 1-20; (32) Allied Universal Security Employees and Supervisors 1-20; (33)
San Diego Police Department Dispatcher John Does 1-20; and (34) San Diego Police
Department Dispatch Supervisor John Does 1-20.
While Plaintiff’s original Complaint was based his October 6, 2020 arrest and
discovery when he was released from jails days later that his seized property had been
damaged, Plaintiff’s Amended Complaint alleges over thirty incidents involving Plaintiff
spanning from March 2020 through February 2025. Whereas the original Complaint did
not specifically identify any causes of action, the Amended Complaint brings eleven causes
of action: (1) unlawful arrest in violation of the Fourth Amendment; (2) unlawful search
and seizure of property in violation of the Fourth Amendment; (3) retaliation in violation
of the First Amendment; (4) intentional misrepresentation; (5) perjury and fabrication of
evidence in violation of the Fourteenth Amendment; (6) battery; (7) deliberate indifference
to serious medical needs in violation of the Eighth Amendment; (8) Monell liability; (9)
violation of the Bane Civil Rights Act, Cal. Civ. Code § 52.1; (10) conversion; and (11)
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 3 of 24

4
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
denial of access to the courts in violation of the First Amendment. 3 The Amended
Complaint identifies only some of the incidents that serve as the partial basis for only some
of the claims.
Three defendants or sets of defendants have filed motions to dismiss the FAC: (1)
the City Defendants, ECF No. 81; (2) Joshua Culver, ECF No. 82; and (3) Allied, ECF No.
83. Defendant Downtown Partnership has filed a motion for judgment on the pleadings.
ECF No. 95. Plaintiff has opposed these motions and Defendants have filed replies. ECF
Nos. 86, 89, 90, 92, 93, 94, 96, 97.
Plaintiff has filed a motion for an order directing service or re-service by the USMS.
ECF No. 77. His motion is unopposed. See Docket.
II. 	LEGAL STANDARD
A. 	Motion to Dismiss for Failure to State a Claim
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 12(b)(6)
is read in conjunction with Federal Rule of Civil Procedure 8(a), which requires only “a
short and plain statement of the claim showing that pleader is entitled to relief[.]” Fed. R.
Civ. P. 8(a)(2). While Rule 8 does not require detailed factual allegations, at a minimum,
a complaint must allege enough facts to provide “fair notice” of both the particular claims
being asserted and “the grounds upon which [those claims] rests.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 & n.3 (2007).
In deciding a motion to dismiss, all material factual allegations of the complaint are
accepted as true, as well as all reasonable inferences to be drawn from them. Cahill v.
Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996). A court, however, need not accept
all conclusory allegations as true. Rather it must “examine whether conclusory allegations
follow from the description of facts as alleged by the plaintiff.” Holden v. Hagopian, 978
3 Claims One, Two, Three, Five, Seven, Eight, and Eleven are brought pursuant to 42
U.S.C. § 1983. The remaining claims are state law claims.
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 4 of 24

5
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
F.2d 1115, 1121 (9th Cir. 1992). A motion to dismiss should be granted if a plaintiff's
complaint fails to contain “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at
556).
A complaint by a plaintiff proceeding pro se is “held to less stringent standards than
formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(citation omitted). Pro se pleadings are construed liberally. Id. Nonetheless, courts may not
“supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents,
673 F.2d 266, 268 (9th Cir. 1982). A pro se litigant’s pleadings still “must meet some
minimum threshold in providing a defendant with notice of what it is that they allegedly
did wrong.” See Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
B. 	Motion to Dismiss for Insufficient Service of Process
Federal Rule of Civil Procedure 12(b)(5) allows a defendant to move to dismiss for
“insufficient service of process.” “A federal court does not have jurisdiction over a
defendant unless the defendant has been served properly under [Federal Rule of Civil
Procedure] 4.” Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d
685, 688 (9th Cir. 1988); see also Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S.
97, 104 (1987) (“Before a federal court may exercise personal jurisdiction over a defendant,
the procedural requirement of service of summons must be satisfied.”). Although “Rule 4
is a flexible rule that should be liberally construed so long as a party receives sufficient
notice of the complaint . . . without substantial compliance with Rule 4 neither actual notice
nor simply naming the defendant in the complaint will provide personal jurisdiction.”
Direct Mail, 840 F.2d at 688 (internal quotation marks and citation omitted). “Once service
is challenged, plaintiffs bear the burden of establishing that service was valid under
Rule 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004).
//
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 5 of 24

6
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
As to the timing of service, Federal Rule of Civil Procedure 4(m) provides in relevant
part:
If a defendant is not served within 90 days after the complaint is filed,
the court—on motion or on its own after notice to the plaintiff—must
dismiss the action without prejudice against that defendant or order that
service be made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for service for an
appropriate period.
Fed. R. Civ. P. 4(m).
III. 	ANALYSIS
A. 	Statute of Limitations
Defendants’ motions argue that some or all of the claims against them are time-
barred. The Court addresses these arguments first.
1. 	Applicable Law
“The statute of limitations for section 1983 actions is determined by state law.”
Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995). “Section 1983 actions are
characterized as personal injury actions for statute of limitations purposes.” Id. The statute
of limitations for personal injury actions in California is two years. Cal. Civ. Proc. Code §
335.1; see also Owens v. Okure, 488 U.S. 235, 249–50 (1989) (“[W]here state law provides
multiple statutes of limitations for personal injury actions, courts considering § 1983 claims
should borrow the general or residual statute for personal injury actions.”); Maldonado v.
Harris, 370 F.3d 945, 954 (9th Cir. 2004) (applying § 335.1’s two-year limitations period
to Section 1983 claim). In contrast, “[f]ederal law[] governs when civil rights claims
accrue.” Klein v. City of Beverly Hills, 865 F.3d 1276, 1278 (9th Cir. 2017). “Under federal
law, a claim accrues when the plaintiff knows or has reason to know of the injury which is
the basis of the action.” Maldonado, 370 F.3d at 955 (quoting Knox v. Davis, 260 F.3d
1009, 1013 (9th Cir. 2001)).
For Bane Act claims arising from personal injury, a two-year statute of limitations
applies. See Swadener v. California, No. 24-cv-283-DMS-MSB, 2025 WL 1095377, at *3
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 6 of 24

7
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(S.D. Cal. Mar. 3, 2025). Under California law, battery is subject to a two-year statute of
limitations. See Cal. Civ. Proc. Code. § 335.1 (two-year statute of limitations for “assault,
battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect
of another”). Intentional misrepresentation has a three-year statute of limitations. See Cal.
Civ. Proc. Code § 338(d) (three-year statute of limitations for “[a]n action for relief on the
ground of fraud,” and the cause of action does not accrue “until the discovery, by the
aggrieved party, of the facts constituting the fraud or mistake”). Conversion has a three-
year statute of limitations. See Cal. Civ. Proc. Code § 338(c) (three-year statute of
limitations for an action “for taking, detaining, or injuring goods or chattel”). Under
California law, “ordinarily, the statute of limitations runs from the occurrence of the last
element essential to the cause of action.” Aryeh v. Canon Bus. Sols., Inc., 55 Cal. 4th 1185,
1191, (2013) (internal quotation marks omitted).
For purposes of calculating the statute of limitations where a pleading is amended,
Rule 15(c)(1)(B) of the Federal Rules of Civil Procedure provides that an amendment
“relates back to the date of the original pleading” when “the amendment asserts a claim or
defense that arose out of the conduct, transaction, or occurrence set out—or attempted to
be set out—in the original pleading.”4 The Ninth Circuit has explained, citing the advisory
committee notes to the rule, that “Rule 15(c)(1) incorporates the relation back rules of the
law of a state when that state's law provides the applicable statute of limitations and is more
lenient. As a result, if an amendment relates back under the state law that provides the
applicable statute of limitations, that amendment relates back under Rule 15(c)(1) even if
4 The City Defendants appear to argue that the “relation back” doctrine governs
whether a complaint may be amended, such that any claims should be dismissed if “they
were brought for the first time in the FAC and do not relate back to the [Complaint].” ECF
No. 81 at 13–15. This argument misconstrues the doctrine. Whether a complaint may be
amended before trial is governed by Rule 15(a). The “relation back” rules of Rule 15(c)
govern the circumstances under which allegations in an amended pleading may borrow the
filing date of the original pleading for purposes of satisfying the statute of limitations.
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 7 of 24

8
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the amendment would not otherwise relate back under the federal rules.” Butler v. Nat’l
Cmty. Renaissance of Cal., 766 F.3d 1191, 1200 (9th Cir. 2014). In Butler, the Ninth
Circuit articulated the federal relation back rule as follows:
In 	order 	for 	an 	amended 	complaint 	to 	relate 	back 	under 	Rule
15(c)(1)(C), the following conditions must be met: “(1) the basic claim
must have arisen out of the conduct set forth in the original pleading;
(2) the party to be brought in must have received such notice that it will
not be prejudiced in maintaining its defense; (3) that party must or
should have known that, but for a mistake concerning identity, the
action would have been brought against it.” Schiavone v. Fortune, 477
U.S. 21, 29 (1986). Additionally, the second and third requirements
must have been fulfilled within 120 days after the original complaint is
filed, as prescribed by Federal Rule of Civil Procedure 4(m). See
[Hogan v. Fischer, 738 F.3d 509, 517 (2nd Cir.2013)] (indicating that
the fourth requirement is met when “ ‘the second and third criteria are
fulfilled within 120 days of the filing of the original complaint, and ...
the original complaint [was] filed within the limitations period.’”)
(quoting Barrow v. Wethersfield Police Dept., 66 F.3d 466, 468–69 (2d
Cir.1995)).
Id. at 1202. The Ninth Circuit also explained the California rule:
California law provides the applicable statute of limitations here.
Amendments of pleadings under California law are generally governed
by California Civil Procedure Code § 473(a)(1). See Bd. of Trs. of
Leland Stanford Jr. Univ. v. Superior Ct., 57 Cal. Rptr. 3d 755, 761–62
(Ct. App. 2007). Section 473(a)(1) does not contain any express
provision for relation back of amendments, and California courts have
held that it “does not authorize the addition of a party for the first time
whom the plaintiff failed to name in the first instance.” Kerr–McGee
Chem. Corp. v. Superior Ct., 206 Cal. Rptr. 654, 656 (Ct. App. 1984).
Under California Civil Procedure Code § 474, however, California
courts have recognized that “where an amendment does not add a ‘new’
defendant, but simply corrects a misnomer by which an ‘old’ defendant
was sued, case law recognizes an exception to the general rule of no
relation back.” Hawkins v. Pac. Coast Bldg. Prods., Inc., 22 Cal. Rptr.
3d 453, 457 (Ct. App. 2004) . . . . For § 474 to apply, however, the
plaintiff must be “genuinely ignorant” of the defendant’s identity at the
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 8 of 24

9
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
time the original complaint is filed. Woo v. Superior Ct., 89 Cal. Rptr.
2d 20, 25 (1999).
Id. at 1201–02.
As discussed above, Plaintiff’s original Complaint was filed on October 5, 2021, and
raised constitutional and Bane Act claims based on an incident occurring on October 6,
2020. The Amended Complaint was filed on June 18, 2025. To the extent that the Amended
Complaint asserts claims arising out of other incidents, those claims are timely to the extent
they accrued after June 18, 2023—or in the case of Plaintiff’s claims for intentional
misrepresentation or conversion, to the extent they accrued after June 18, 2022.
2. 	Culver
The Complaint did not name Culver as a defendant, but mentioned him by name,
alleging that he made false or unsubstantiated statements to the police that resulted in
Plaintiff’s arrest on October 6, 2020. ECF No. 1 at 3. The Amended Complaint makes
similar allegations but now names Culver as a defendant in Claims Four (intentional
misrepresentation) and Nine (Bane Act). ECF No. 58 at 12–13, 19, 22.
Culver argues that Plaintiff is barred from adding him as a defendant over four years
after the incident; that there is no basis for “relation back” under federal or California law;
and that there is no basis for tolling the statute of limitations. Plaintiff’s opposition does
not respond to these arguments. The Court agrees with Culver that Plaintiff’s claims are
filed outside the statutory period and are time-barred. The claims in the Amended
Complaint do not relate back to the filing of the Complaint under either federal or
California law; Plaintiff was not mistaken as to Culver’s identity, having mentioned him
in the timely filed Complaint but also having declined to sue him. In light of this, allowing
Plaintiff to add Culver at this time would be unfairly prejudicial. The Court therefore
dismisses Plaintiff’s claims against Culver as untimely.5 See Milgrim v. Garcia, No. 24-
5 The Court declines to address the remainder of Culver’s arguments for dismissal.
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 9 of 24

10
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1836, 2025 WL 2017471, at *2 (9th Cir. July 18, 2025) (holding plaintiff’s claims against
officer defendant did not relate back where there was no genuine dispute plaintiff was
aware of officer’s name prior to end of statute of limitations period).
3. 	Allied
The Complaint did not name Allied as a defendant. The Amended Complaint
contains allegations against Allied in connection with two incidents. On June 3, 2022, “a
security guard employed by The Alexan (likely an Allied Universal Security Defendant)
threatened Plaintiff, seized his bicycle, and attempted to damage it and other personal
belongings.” ECF No. 58 at 11. On May 20, 2023, “an unnamed security guard (like a DTP
or Allied Universal Security Defendant) approached Plaintiff, falsely stated the Balboa
Park Club Building was private property, and was recorded making a false report to the
police for alleged drug use after Plaintiff refused to leave.” Id. at 10. The Amended
Complaint names Allied as a defendant in Claims Four (intentional misrepresentation), Six
(battery), Nine (Bane Act), and Ten (conversion). Id. at 19–23.
Allied argues that the battery, Bane Act, and conversion claims asserted against it
are untimely. ECF No. 83-1 at 5–13. Plaintiff does not dispute that these claims are based
on conduct outside the statutory periods for each claim, but responds that the “relation
back” doctrine should apply because “the claims against Allied arise from the same series
of events as the claims against the other defendants.” ECF No. 89 at 3. However, Plaintiff
failed to name Allied in the Complaint, and Plaintiff’s amended claims against Allied do
not arise out of the conduct alleged in the Complaint. Indeed, the incidents involving Allied
in the Amended Complaint are alleged to have occurred after Plaintiff filed his Complaint.
The Court therefore dismisses Plaintiff’s Claims Six, Nine, and Ten against Allied as
untimely.6
6 The Court declines to address the remainder of Allied’s arguments for dismissal
directed to these three claims. The Court addresses Allied’s argument for dismissal of
Claim Four (intentional misrepresentation) further below.
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 10 of 24

11
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4. 	Downtown Partnership
The Complaint did not name Downtown Partnership as a defendant. The Amended
Complaint contains allegations against Downtown Partnership based on the May 20, 2023
incident discussed above, in which “an unnamed security guard (like a DTP or Allied
Universal Security Defendant) approached Plaintiff, falsely stated the Balboa Park Club
Building was private property, and was recorded making a false report to the police for
alleged drug use after Plaintiff refused to leave.” ECF No. 58 at 10. The Amended
Complaint names Downtown Partnership as a defendant in Claims Four (intentional
misrepresentation), Six (battery), Nine (Bane Act), and Ten (conversion). Id. at 19, 22–23.
Downtown Partnership argues that the battery and Bane Act claims asserted against
it are untimely. ECF No. 95-1 at 7–8. Plaintiff does not dispute that these claims are based
on conduct outside the statutory period, but argues that the allegations in the Amended
Complaint “relate back” to the reference to “security guards” in the Complaint, which
Plaintiff describes as a “placeholder.” ECF No. 96 at 2. The Complaint indeed refers to a
person called “Grace the security guard,” ECF No. 1 at 3, but it is in the context of an
altogether 	different 	incident—Plaintiff’s 	arrest 	on 	October 	6, 	2020, 	for 	which 	the
allegations in the Amended Complaint do not implicate Downtown Partnership. Indeed,
the incident involving Downtown Partnership in the Amended Complaint are alleged to
have occurred after Plaintiff filed his Complaint. The Court therefore dismisses Plaintiff’s
Claims Six and Nine against Downtown Partnership as untimely. 7
5. 	The City Defendants
The City Defendants argue that Plaintiff’s claims against Park Ranger Zadok Othniel
are time-barred. ECF No. 81 at 16. The Complaint did not mention Othniel. The Amended
7 The Court declines to address the remainder of Downtown Partnership’s arguments
for dismissal directed to these two claims. The Court addresses Downtown Partnership’s
argument 	for 	dismissal 	of 	Claims 	Four 	(intentional 	misrepresentation) 	and 	Ten
(conversion) further below.
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 11 of 24

12
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Complaint alleges a single incident involving Othniel: On April 17, 2021, at a building in
Balboa Park, Othniel “ordered Plaintiff to leave a public bench, falsely claiming the San
Diego Fire Department had reserved the patio for an event.” ECF No. 58 at 9. The
Amended Complaint names Othniel as a defendant in Claims Three (First Amendment –
retaliation), Four (intentional misrepresentation), Six (battery), and Nine (Bane Act). Id. at
19, 20, 22.
Plaintiff does not dispute that his claims against Othniel are based on conduct outside
the statutory period, but appears to argue that the allegations should relate back because
“[t]he FAC’s claims stems from the same core facts—the events of October 6, 2020, and
subsequent actions of City employees—and the City had general notice from the outset.”
ECF No. 86 at 3. However, Plaintiff failed to name Othniel in the Complaint, and Plaintiff’s
amended claims against Othniel do not arise out of the conduct alleged in the Complaint.
The Court therefore dismisses all claims against Othniel.
B. 	Adequacy of Pleading
The Court next addresses arguments made in the motions filed by the City
Defendants, Allied, and Downtown Partnership based on the adequacy of the Amended
Complaint.
1. 	The City Defendants
The City Defendants argue, in general terms, that “Plaintiff’s allegations against City
Officer Defendants in the FAC do not meet either the Iqbal or Twombly pleading
standards.” ECF No. 81 at 15. This argument is conclusory, and fails to engage the specific
allegations or claims in the Amended Complaint. The argument also appears to be based
on mistaken assumption that claims in the Amended Complaint must be traceable to claims
in the original Complaint in order to state a claim. See id. (“Plaintiff’s FAC contains
specific factual allegations that cannot be fairly traced to allegations made in his OC.”).
The Court addresses this argument herein only to the extent the City Defendants provide
additional specificity.
//
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 12 of 24

13
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a. 	Bane Act
The City Defendants argue that Plaintiff’s Bane Act claim (Claim Nine) is
inadequately pleaded. ECF No. 81 at 16–17.
The Thomas Bane Civil Rights Act (“Bane Act”) is codified in California Civil Code
§ 52.1. “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, 17 Cal. App. 5th 766, 791–92 (Ct. App. 2017) (quoting Cal. Civ. Code §
52.1). Violations of the federal and California Constitution are all Bane Act violations. See
Cal. Civ. Code § 52.1(b). “The elements of a Bane Act claim are essentially identical to
the elements of a § 1983 claim, with the added requirement that the government official
had a ‘specific intent to violate’ a constitutional right.” Hughes v. Rodriguez, 31 F.4th 1211,
1224 (9th Cir. 2022). The Ninth Circuit has held that “the Bane Act does not require the
‘threat, intimidation[,] or coercion’ element of the claim to be transactionally independent
from the constitutional violation alleged” so long as the claimant shows the defendant had
a “specific intent” to commit the constitutional violation. Reese v. Cnty. of Sacramento,
888 F.3d 1030, 1043 (9th Cir. 2018).
Here, the Amended Complaint does not specify which incidents are the basis of the
Bane Act claim, the constitutional violations that allegedly occurred in each of those
instances, or the defendants implicated in each violation during each of those incidents.
Nor does it plead facts for each of those incidents plausibly establishing that each identified
defendant had a specific intent to violate a constitutional right. The Court therefore
dismisses Claim Nine as to all Defendants for failure to state a claim, and will grant
Plaintiff leave to amend as set forth below.
//
//
//
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 13 of 24

14
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
b. 	Monell Liability
The City Defendants also argue that Plaintiff’s Monell claim (Claim Eight) fails to
adequately plead the elements of a failure to train claim. ECF No. 81 at 18–20.8
A municipality may not be vicariously liable under § 1983 for an injury caused by
its employee or agent. Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
However, municipalities may be held liable as “persons” under § 1983 “when execution of
a government’s policy or custom, whether made by its lawmakers or by those whose edicts
or acts may fairly be said to represent official policy, inflicts the injury.” Id. A plaintiff
may recover under Monell under one of three theories. Clouthier v. Cnty. of Contra Costa,
591 F.3d 1232, 1249–50 (9th Cir. 2010), overruled on other grounds by Castro v. Cnty. of
Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016). First, “a local government may be held
liable ‘when implementation of its official policies or established customs inflicts the
constitutional injury.’” Id. at 1249 (quoting Monell, 436 U.S. at 708). Second, “under
certain circumstances, a local government may be held liable under § 1983 for acts of
‘omission,’ when such omissions amount to the local government’s own official policy.”
Id. Third, “a local government may be held liable under § 1983 when the individual who
committed the constitutional tort was an official with final policy-making authority or such
an official ratified a subordinate’s unconstitutional decision or action and the basis for it.”
Id. at 1250 (internal quotations omitted).
Here, Plaintiff’s Monell claim is based on an alleged failure to adequately train and
supervise. ECF No. 58 at 21. A “[f]ailure to train may constitute a basis for Monell liability
where the failure amounts to deliberate indifference to the rights of those who deal with
municipal employees.” Benavidez v. Cty. of San Diego, 993 F.3d 1134, 1153 (9th Cir.
8 Plaintiff’s Monell claim is asserted against the City and the San Diego Chief of
Police, in the police chief’s official capacity. ECF No. 58 at 21–22. An official capacity
suit against the San Diego Chief of Police is functionally a claim against the City. See
Hafer v. Melo, 502 U.S. 21, 25 (1991) (“[O]fficial-capacity suits generally represent only
another way of pleading an action against an entity of which an officer is an agent.”).
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 14 of 24

15
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2021). “Mere negligence will not suffice to show Monell liability.” Id. “To allege a failure
to train, a plaintiff must include sufficient facts to support a reasonable inference (1) of a
constitutional violation; (2) of a municipal training policy that amounts to a deliberate
indifference to constitutional rights; and (3) that the constitutional injury would not have
resulted if the municipality properly trained their employees.” Id. “A pattern of similar
constitutional violations by untrained employees is ordinarily necessary to demonstrate
deliberate indifference for purposes of failure to train, though there exists a narrow range
of circumstances [in which] a pattern of similar violations might not be necessary to show
deliberate indifference.” Flores v. Cty. of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014)
(internal quotation marks omitted). Pleading a failure to supervise has similar requirements.
See Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989) (“We see no
principled reason to apply a different standard to inadequate supervision.”); Russell v. City
of San Diego, No. 24CV0527-GPC(SBC), 2025 WL 297034, at *7 (S.D. Cal. Jan. 24, 2025)
(“A claim of failure to supervise and discipline is subject to the same standard as a failure
to train claim.”).
Here, the Amended Complaint does not specify which incidents are the basis of the
failure to train or failure to supervise claim; does not establish a constitutional violation in
connection with each incident, let alone a pattern of similar violations; and makes no non-
conclusory allegations about the City’s training or supervision policy or the injuries
resulting from those policies. The Court therefore dismisses Claim Eight for failure to state
a claim, and will grant Plaintiff leave to amend as set forth below.
c. 	Claim presentation requirement for state law claims
The City Defendants argue that the Plaintiff’s state law claims should be dismissed
against 	them 	because 	Plaintiff 	has 	failed to 	establish 	compliance 	with 	the 	claims
presentation requirement of the California Government Claims Act.
The California Government Claims Act, Cal. Gov’t Code § 810 et seq., “is a
comprehensive statutory scheme that sets forth the liabilities and immunities of public
entities and public employees for torts.” Cordova v. City of Los Angeles, 61 Cal. 4th 1099,
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 15 of 24

16
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1104–05 (2015) (internal quotation marks omitted). “In order to bring suit for damages
against a public entity, the California Government Claims Act requires that a plaintiff give
notice to the public entity with written claims and that the public entity reject those claims.”
Brewster v. City of Los Angeles, No. EDCV 14-2257 JGB (SPx), 2020 WL 5991621, at
*11 (C.D. Cal. July 14, 2020) (citing Cal. Gov. Code §§ 945.4, 905, 910); see also Nguyen
v. Los Angeles Cnty. Harbor/UCLA Med. Ctr., 8 Cal. App. 4th 729, 732 (Ct. App. 1992)
(“The presentation of a claim to a public entity and its rejection are prerequisites to
maintaining suit against the entity.”). The purpose of the requirement is “not to prevent
surprise like judicial statutes of limitations,” but instead “to provide the public entity
sufficient information to enable it to adequately investigate claims and to settle them, if
appropriate, without the expense of litigation.” Willis v. City of Carlsbad, 48 Cal. App. 5th
1104, 1122 (Ct. App. 2020) (citations omitted). The purpose of the claims statutes is also
to “enable the public entity to engage in fiscal planning for potential liabilities and to avoid
similar liabilities in the future.” Id. (citations omitted). “Failure to comply with the
mandatory requirements [of the California Government Claims Act] is fatal to the cause of
action.” Nguyen, 8 Cal. App. 4th at 732. “[A] claim under Government Code section 910
is sufficient if (1) there is some compliance with all of the statutory requirements; and (2)
the claim discloses sufficient information to enable the public entity adequately to
investigate the merits of the claim so as to settle the claim, if appropriate.” Cnty. of Los
Angeles v. Superior Court, 159 Cal. App. 4th 353, 360 (Ct. App. 2008) (internal quotation
marks omitted).
Section 910 of the California Government Code requires that claim to include,
among other things, “[t]he date, place and other circumstances of the occurrence or
transaction which gave rise to the claim asserted,” Cal. Gov’t Code § 910(c); “[a] general
description of the … injury, damage or loss incurred so far as it may be known at the time
of presentation of the claim,” id. § 910(d); and “[t]he name or names of the public employee
or employees causing the injury, damage, or loss, if known,” id.§ 910(e). “If a plaintiff
relies on more than one theory of recovery against the [governmental agency], each cause
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 16 of 24

17
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
of action must have been reflected in a timely claim. In addition, the factual circumstances
set forth in the written claim must correspond with the facts alleged in the complaint; even
if the claim were timely, the complaint is vulnerable to a demurrer [or motion for judgment
on the pleadings] if it alleges a factual basis for recovery which is not fairly reflected in the
written claim.” Fall River Joint Unified Sch. Dist. v. Superior Court, 206 Cal. App. 3d 431,
434 (Ct. App. 1988) (quoting Nelson v. State, 139 Cal. App. 3d 72, 79 (Ct. App. 1982)). A
claim must be presented “not later than six months after the accrual of the cause of action.”
Cal. Gov’t Code § 911.2.
The Government Claims Act also applies to claims against public employees and
former public employees for acts or omissions committed within the scope of their
employment as public employees. Cal. Gov’t Code § 950.2 (except as otherwise provided,
“a cause of action against a public employee or former public employee for injury resulting
from an act or omission in the scope of his employment as a public employee is barred if
an action against the employing public entity for such injury is barred …”); see also Olson
v. Manhattan Beach Unified Sch. Dist., 17 Cal. App. 5th 1052, 1055 n.1 (2017) (“The
defense of noncompliance with the Government Claims Act also applies to the claims
against [individual defendant public employee].”).
The Amended Complaint does not allege compliance with the Government Claims
Act. Plaintiff’s opposition does not argue that he complied with the requirement, nor does
it otherwise respond to the City Defendants’ argument. The Court concludes that the
Amended Complaint fails to state a claim against the City Defendants as to Claims Four
(intentional misrepresentation), Six (battery), Nine (Bane Act), and Ten (conversion). See
Lacoste v. Cnty. of Los Angeles, No. CV 23-4917-DMG (AGRX), 2025 WL 2994712, at
*3 (C.D. Cal. Aug. 29, 2025) (“Because [plaintiff’s] FAC contains no allegations that could
demonstrate she complied with the Government Claims Act’s presentment requirement,
her state law claims must be dismissed.”).
//
//
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 17 of 24

18
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2. 	Allied
Allied argues that the Amended Complaint fails to adequately plead a claim for
intentional misrepresentation (Claim Four) against Allied. ECF No. 83-1 at 4–5.
Under California law, a claim for fraud or intentional misrepresentation “must allege
the following elements: (1) a knowingly false representation by the defendant; (2) an intent
to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting
damages.” Service by Medallion, Inc. v. Clorox Co., 44 Cal. App. 4th 1807, 1816 (Ct. App.
1996); 	see 	also 	Judicial 	Council 	of 	Cal. 	Civ. 	Jury 	Instr. 	No. 	1900 	(Intentional
Misrepresentation) (2025). “It is settled that a plaintiff, to state a cause of action for deceit
based 	on 	a 	misrepresentation, 	must 	plead 	that 	he 	or 	she 	actually 	relied 	on 	the
misrepresentation.” Mirkin v. Wasserman, 5 Cal. 4th 1082, 1088 (1993) (internal citations
omitted).
Allied argues that the Amended Complaint, in alleging that on May 20, 2023 “an
unnamed security guard (like a DTP or Allied Universal Security Defendant)” made a false
report to the police: (1) does not allege justifiable reliance by Plaintiff, or indeed by anyone,
on an alleged false statement, and it is clear that Plaintiff did not rely on the alleged
statement; and (2) does not allege any resulting damage. ECF No. 83-1 at 4–5. Plaintiff’s
opposition fails to meaningfully respond to these arguments. ECF No. 89 at 2–3.
Additionally, the Amended Complaint does not allege that the security guard in fact
worked for Allied; instead, Plaintiff merely alleges that the guard was “likely a DTP or
Allied Universal Security Defendant.” ECF No. 58 at 10 (emphasis added).
The 	Court 	concludes 	that 	Plaintiff 	fails 	to 	state 	a 	claim 	for 	intentional
misrepresentation against Allied, and dismisses Claim Four as to Allied. 9
//
//
9 The Court declines to address Allied’s remaining arguments for dismissal of this
claim.
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 18 of 24

19
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3. 	Downtown Partnership
Downtown Partnership argues that the Amended Complaint fails to adequately plead
claims for intentional misrepresentation (Claim Four) or conversion (Claim Ten) against
Downtown Partnership. ECF No. 95-1 at 8–9, 11.
The Court has set forth in the preceding section the elements of a claim for
intentional misrepresentation under California law. Plaintiff’s claim against Downtown
Partnership for intentional misrepresentation is identical to his claim against Allied—
Plaintiff sued both Allied and Downtown Partnership because he was not sure whether one
of them employed the “unnamed security guard” involved in the May 20, 2023 incident.
See ECF No. 58 at 10. For the reasons set forth above, The Court concludes that Plaintiff
also fails to state a claim for intentional misrepresentation against Downtown Partnership,
and dismisses Claim Four as to Downtown Partnership.
“Conversion is the wrongful exercise of dominion over the property of another.”
Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 601 (9th Cir. 2010) (quoting Oakdale Vill.
Grp. v. Fong, 43 Cal. App. 4th 539, 543 (1996)). “The elements of a conversion claim are:
(1) the plaintiff’s ownership or right to possession of the property at the time of the
conversion; (2) the defendant’s conversion by a wrongful act or disposition of property
rights; and (3) damages.” Id. (citation omitted). Downtown Partnership argues that Plaintiff
has not alleged any facts showing that Downtown Partnership interfered with Plaintiff’s
right to possess his property. ECF No. 95-1 at 11. Plaintiff does not meaningfully respond
to this argument. ECF No. 96 at 3. The Court concludes that Plaintiff fails to state a claim
for conversion against Downtown Partnership, and dismisses Claim Ten as to Downtown
Partnership.
C. 	Leave to Amend
As set forth above, the Court: (1) dismisses all claims against Culver, Allied,
Downtown Partnership, and Othniel based on statute of limitations and/or failure to
adequately plead a claim; (2) dismisses Claims Eight (Monell) against the City and Nine
(Bane Act) against the City Defendants for failure to adequately plead a claim; and (3)
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 19 of 24

20
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
dismisses the state-law claims, Claims Four (intentional misrepresentation), Six (battery),
Nine (Bane Act), and Ten (conversion), against the City Defendants for failure to comply
with the claims presentation requirement of the California Government Claims Act.
Plaintiff has requested leave to amend in the event of dismissal.
“A district court should not dismiss a pro se complaint without leave to amend unless
it is absolutely clear that the deficiencies of the complaint could not be cured by
amendment.” See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015). Based on the
allegations in the Complaint and the Amended Complaint, and the briefing on Defendants’
motions, 	including 	Plaintiff’s 	oppositions, 	the 	Court 	concludes 	that 	the 	following
deficiencies cannot be cured by amendment: (a) Plaintiff’s failure to plead a timely cause
of action against Culver or Othniel; (b) Plaintiff’s failure to plead a timely battery, Bane
Act, and conversion claim against Allied or a timely battery and Bane Act claim against
Downtown; and (c) Plaintiff’s failure to comply with the California Government Claims
Act as to his state-law claims against the City Defendants. The Court therefore declines
leave to amend to state additional claims against Othniel, Culver, or additional state-law
claims against the City Defendants. Plaintiff is granted leave to amend as to Claims Eight
and Nine against the City Defendants, Claim Four against Allied and Downtown, and
Claim 10 against Downtown.
With the foregoing limitation, within forty-five (45) days of the date of this order,
Plaintiff may file a second amended complaint. The Court is mindful of the fact that
Plaintiff 	has 	already 	amended 	his 	pleading 	once; 	that 	his 	amendment 	multiplied
dramatically the number of defendants, claims, and incidents at least loosely alleged to be
at issue in this lawsuit; and that, although the majority of defendants have not yet appeared,
been served, or had the opportunity to challenge the lawsuit, significant portions of the
lawsuit as amended appear to be time-barred. Absent a further order of this Court, Plaintiff
may not add further defendants, claims, or incidents in his second amended pleading that
are not present in the Amended Complaint; although he may name any defendant
previously identified by number or as a Doe defendant, provide factual elaboration of the
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 20 of 24

21
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
incidents in the Amended Complaint, and provide explanation of how his claims relate to
the incidents alleged.10 He may also choose to drop, narrow, or focus the defendants,
claims, or incidents at issue.
If Plaintiff fails to timely file a second amended pleading, the Court will deem his
Amended Complaint the operative pleading. If Plaintiff files a second amended pleading
that exceeds the scope of leave to amend granted herein without further order of the Court,
the Court may strike the second amended pleading.
D. 	Service of Process
The City Defendants contend that Plaintiff: (1) did not timely effect service of the
Complaint on the City; and (2) has not effected service of either the Complaint or the
Amended Complaint against any of the individual Officer Defendants. ECF No. 81 at 9–
13.
The City Defendants first argue that the City should be dismissed from the action
because it was not served with process within 90 days of the filing of the Complaint on
October 5, 2021, as required by Rule 4(m). See ECF No. 81 at 9. The City’s argument for
untimely service does not appear to account for the order of the Court of Appeals reversing
this Court’s dismissal of Plaintiff’s lawsuit for failure to timely effect service. ECF No. 54.
The Court of Appeals ordered, “On remand, the district court should forward a copy of
Form 285 filed on March 18, 2022, a copy of the summons, and a copy of the complaint to
the U.S. Marshal for service on the City of San Diego.” Id. at 2. Upon issuance of the
mandate, this Court entered an order as directed, and the USMS promptly effected service
of Plaintiff’s original complaint. ECF Nos. 55-57. That act of service may have been
ineffective—based on the address for service provided by Plaintiff—but it was not
10 The Amended Complaint attaches approximately almost two hundred pages of
exhibits without discussing them in the Amended Complaint itself. To the extent that
Plaintiff views these exhibits as reflecting facts that he wishes to allege, he should allege
these facts directly in his second amended complaint.
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 21 of 24

22
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
untimely. Based on the record to date, the Court declines to dismiss the action against the
City on the basis of untimely service of process.11
The City Defendants next contend that the individual officers and park ranger still
have not been properly served with the Amended Complaint.12 Id. Plaintiff amended his
complaint on June 18, 2025. ECF No. 58. An amended summons was issued on July 7,
2025. ECF No. 61. On July 17, 2025, the Court appointed the USMS to effect service of
the Amended Complaint. ECF No. 63. On July 23, 2025, Plaintiff filed an emergency
motion requesting that the Court direct the Clerk of Court to “prepare and forward the
required copies of the First Amended Complaint,” summons, and “all other necessary
service documents” to the USMS. ECF No. 64 at 4. The Court granted Plaintiff’s motion
and directed as follows:
Per the Court’s July 17, 2025 Order, Plaintiff is DIRECTED to
complete and file a Form 285 for each Defendant named in his FAC as
completely as accurately as possible on or before August 7, 2025. Upon
receipt, the Clerk’s Office is DIRECTED to transmit the completed
Form 285s along with the copies of the summons and Plaintiff’s FAC,
to the U.S. Marshal Service for service. Plaintiff is not required to print
or forward copies of his FAC and summons for service.
ECF No. 65 at 1–2 (emphasis in original). On July 30 and July 31, 2025, Plaintiff filed his
Form 285s on the docket. ECF Nos. 66–68. The USMS promptly effected service based on
the addresses provided on Plaintiff’s Form 285s. ECF Nos. 70–75, 78–79. The Court’s
docket reflects that process was left for several individuals with a “police records clerk,”
ECF Nos. 70–75, or with a “supervisor,” ECF No. 78, but Plaintiff has not demonstrated
11 The City Defendants’ motion notes that the City was duly served with Plaintiff’s
FAC on August 13, 2025. ECF No. 81 at 10.
12 The City Defendants’ motion purports to attach a declaration reflecting that the
individual City Defendants have not been served. See ECF No. 81 at 13 (“As attested to by
SDPD Detective Claudia Shadoah in Exhibit A, the SDPD City Officer Defendants have
not been served either directly or indirectly or according to City policies. Ex. A.”). There
is no Exhibit A.
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 22 of 24

23
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
that these persons were authorized to accept service for the individual Defendants. Indeed,
the Court notes that on August 14, 2025, Plaintiff filed a motion with this Court to again
effect service of his Amended Complaint against the City and the individual Officer
Defendants. ECF No. 77.
Based on the record to date, the Court concludes that the individual officers have not
been properly served. For good cause shown, and absent the filing of any opposition, the
Court grants Plaintiff’s motion for order directing re-service by the USMS. ECF No. 77.
After Plaintiff has either filed a second amended complaint, or fails to do so timely, or
otherwise indicates to the Court that he declines to amend his pleading, the Court will enter
a further order directing service of process by the USMS as to the remaining defendants in
the case. Plaintiff is advised that he will be required to provide the correct addresses for
service of initial process.
E. 	Motion to Strike
The City Defendants’ motion to dismiss also argues that the exhibits to the Amended
Complaint should be stricken. ECF No. 81 at 19–20. The City Defendants argue in
conclusory terms that the exhibits “may be relevant to [Plaintiff’s] causes of action, but are
immaterial to the viability of Plaintiff’s FAC and should be struck.” Id. at 20. This
argument appears to assume that the Court agrees with the City Defendant that the
Amended Complaint is not viable. The Court has not so ruled, and declines to strike the
exhibits to the Amended Complaint.
IV. 	CONCLUSION
For the foregoing reasons:
1. 	The City Defendants’ motion to dismiss [ECF No. 81] is GRANTED in part
and DENIED in part. The Court DISMISSES: (a) all claims against Zadok Othniel; (b)
Claims Four, Six, Nine, and Ten against the City and San Diego Police Department
Officers Brian Moreno, Felix Campante, Geoffrey Decesari, MacKenzie Fuggett, Tyler
Hamby; (c) Claim Eight against the City; and (d) Claim Nine against all City Defendants.
The Court also rules that Plaintiff has not at this time properly effectuated service of
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 23 of 24

24
21-cv-1725-RSH-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
process of the Complaint against the City and the Complaint and Amended Complaint
against San Diego Police Department Officers Brian Moreno, Felix Campante, Geoffrey
Decesari, MacKenzie Fuggett, and Tyler Hamby.
2. 	Culver’s motion to dismiss [ECF No. 82] is GRANTED. All claims against
Culver are DISMISSED.
3. 	Allied’s motion to dismiss [ECF No. 83] is GRANTED. All claims against
Allied are DISMISSED.
4. 	Downtown Partnership’s motion for judgment on the pleadings [ECF No. 95]
is GRANTED. All claims against Downtown Partnership are DISMISSED.
5. 	Plaintiff is GRANTED leave to file a second amended complaint within
forty-five (45) days of the date of this order. The scope of leave to amend is expressly
limited, as described above in the order.
6. 	Plaintiff’s motion to effect re-service [ECF No. 77] is GRANTED. The Court
will issue a further order after Plaintiff files a second amended complaint, fails to timely
make such a filing, or indicates that he does not intend to make such a filing.
IT IS SO ORDERED.
Dated: November 21, 2025 	____________________
Hon. Robert S. Huie
United States District Judge
Case 3:21-cv-01725-RSH-DDL Document 98 Filed 11/21/25 PageID.<pageID>
Page 24 of 24