Rosenbaum v. City of San Jose

ZACHARY ROSENBAUM, Plaintiff, v. CITY OF SAN JOSE, et al. Defendants.

Case No. 20-CV-04777-LHK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

April 13, 2021

ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

Re: Dkt. No. 30

Plaintiff Zachary Rosenbaum ("Plaintiff") sues the City of San Jose ("the City"), Officer Ryan Ferguson, Sergeant Hatzenbuhler, Sergeant Gutierrez, Officer Dunn, Officer Anderson, Officer Tapia, Officer Vallejo, Officer Ochoa, and individuals whose identities are unknown to Plaintiffs (collectively, "Defendants") for (1) violation of the Fourth Amendment under 42 U.S.C. § 1983; (2) battery; (3) violation of the Bane Act; and (4) negligence. Before the Court is Defendants' motion to dismiss Plaintiff's Second Amended Complaint. ECF No. 30.¹ Having considered the parties' submissions, the relevant law, and the record in this case, the CourtGRANTS Defendants' motion to dismiss with leave to amend.

I. BACKGROUND

A. The Alleged Use of Excessive Force Against Plaintiff

According to Plaintiff, on September 10, 2019, Plaintiff was sleeping in an upstairs bedroom at the home he shared with his fiancé. ECF No. 26 ("SAC") ¶ 15. Plaintiff was awakened by "the sound of San Jose police officers inside his home calling his name." Id. ¶ 16. Plaintiff "walked to the top of his stairs and saw multiple police officers (Defendants) shining their lights at Plaintiff's face and pointing their handguns at Plaintiff." Id.

The Court refers to Sergeants Hatzenbuhler and Gutierrez and Officers Anderson, Tapia, Vallejo, and Ochoa collectively as the "Bystander Officers." Plaintiff alleges that the Bystander Officers "trained their firearms on Plaintiff and took defensive positions" on the first floor of Plaintiff's home. Id. ¶ 20. In addition, Plaintiff alleges that both Sergeants Gutierrez and Hatzenbuhler "had supervisory authority at the scene" of Plaintiff's seizure. Id. Sergeant Gutierrez "was the on-scene supervisor in charge of the seizure" and Sergeant Hatzenbuhler "commanded several of the officers to take positions inside" Plaintiff's home. Id.

Plaintiff allegedly "put his hands up where the Defendants could see them and asked the Defendants in a polite and respectful manner why they were inside his home and what they wanted with him." Id. ¶ 17. "The Defendants informed Plaintiff that he was under arrest but did not tell Plaintiff what for." Id. "Instead, Defendants issued commands for the Plaintiff to come down the stairs." Id.

Plaintiff, "with his hands remaining visibly raised," again "asked the Defendants what he was being arrested for and what they wanted with him." Id. ¶ 18. "Defendants . . . repeatedly refused to tell Plaintiff the reason for his purported arrest and commanded the Plaintiff to come down the stairs." Id. "[A]t least one officer warned Plaintiff that if he did not obey the officers' commands, a police K-9 would be deployed." Id.

Plaintiff allegedly continued "to keep his hands visibly raised" and continued "asking why Defendants were inside his home and what they wanted with him." Id. ¶ 19. "Plaintiff did notthreaten any of the officers either verbally or physically at any point." Id.

"Losing patience with the Plaintiff's questions, [Officer Dunn] deployed a police K-9 to attack the Plaintiff." Id. ¶ 21. The police dog was deployed "even though Plaintiff had his hands visibly raised in a surrender position, was not armed, was not trying to evade arrest, and had posed no threat to the officers." Id. ¶ 22. At the time that the police dog was deployed, the Bystander Officers were allegedly integral participants in the use of force because they "continued pointing their weapons at Plaintiff and took no actions "to prevent, or otherwise intervene[], in the use of force against Plaintiff despite being "aware that [Officer Dunn] was threatening to release the police K-9." Id. Plaintiff alleges that, "after the K-9 was deployed to bite the Plaintiff, and while the Plaintiff was laying on his stomach in full surrender with his hands stretched out and surrounded by all named Defendants with their firearms trained on him, . . . the K-9 was allowed to continue biting the [Plaintiff] . . for over 20 seconds" before being pulled away. Id.

"Within a second of the K-9 being deployed, [Officer Ferguson] shot the Plaintiff with a less lethal shotgun bean-bag projectile weapon, striking the Plaintiff in the stomach." Id. ¶ 21. Plaintiff allegedly "had his hands visibly raised in surrender, was not threatening any of the officers, was not armed or trying to evade arrest." Id. ¶ 23. "All the while," the Bystander Officers were allegedly integral participants in the use of force because they "had their firearms trained on Plaintiff and "failed to intervene to prevent the use of excessive force against Plaintiff." Id. ¶ 21.

As a result of the force used against him, Plaintiff allegedly "suffered severe physical and physical and psychological injuries." Id. ¶ 22. Plaintiff alleges that he "had to undergo several surgeries and procedures as a result of Defendants' actions." Id. Plaintiff alleges that Plaintiff still "has not regained full use of his arm and suffers from significant scarring." Id. ¶ 22.

Following this incident, Plaintiff filed a government claim with the City on March 9, 2020. Id. ¶ 27. On April 28, 2020, the City rejected Plaintiff's claim. Id. ¶ 27.

B. The City's Alleged Customs, Practices, and Policies

According to Plaintiff, the City has a policy, custom, and practice of "allowing, or at the very least not adequately disciplining, its officers for using severe force to effectuate arrests evenwhen the target, such as Plaintiff in this case, has not engaged in any behavior necessitating the use of such force." Id. ¶¶ 27, 42. On October 4, 2020, "the San Jose Mercury News released a report detailing that between 2014 and 2018, San Jose Police Department officers who used excessive force on suspects and citizens were 'rarely disciplined.'" Id. ¶ 26. Plaintiff further alleges that the City's custom and practice of not disciplining officers who use excessive force "has been fostered by Chief of Police Eddie Garcia who fails to discipline San Jose Police Officers no matter how egregious their deviations from use of force policies or how obvious their unconstitutional behavior." Id. ¶ 26.

Plaintiff alleges that the City "has a policy, custom and practice of encouraging and permitting the . . . excessive use of police K-9s, even on persons who are not evading arrest, or posing a threat to officers or bystanders." Id. ¶ 39. Additionally, Plaintiff alleges that the City has "a policy, custom, and/or practice of allowing/training its police K-9s to 'bite and hold' suspects even where a suspect is surrendering." Id. ¶ 39. Plaintiff alleges that the City's police department "employs K-9s to bite residents at higher rates than any other police department in the state." Id. ¶ 25. According to data released by the Marshall Project for the years 2017 to 2019, less than 1 per 100,000 residents in San Francisco is bitten by a police dog each year, while 8 per 100,000 residents of the City are bitten by police dogs each year. Id. Los Angeles also uses police dogs 40 percent less frequently than the City does. Id. Plaintiff alleges that these "customs, practices, and policies regarding the use of police K-9s were moving forces behind Plaintiff's constitutional injuries." Id. ¶ 27.

Finally, Plaintiff alleges that the City has a "policy, custom, and practice for allowing the deployment of less lethal shotguns on persons who are not evading arrest or posing a threat to officers or bystanders." Id. ¶ 40. Plaintiff alleges that the policy, custom, and practice were "moving forces behind the Plaintiff's constitutional injuries as said policies, customs, and practices make it predictable that constitutional violations would take place." Id.

C. Procedural History

On July 16, 2020, Plaintiff filed the instant case. ECF No. 1. On September 25, 2020,Defendants filed a motion to dismiss Plaintiff's Complaint. ECF No. 18. On October 11, 2020, Plaintiff filed an Amended Complaint in lieu of opposing Defendant's motion to dismiss. ECF No. 21. On October 23, 2020, the Court denied Defendants' motion to dismiss as moot. ECF No. 25.

On October 16, 2020, Plaintiff filed a Corrected First Amended Complaint. ECF No. 22. On October 21, 2020, the parties stipulated to permit Plaintiff to file a Second Amended Complaint. ECF No. 23. On October 23, 2020, the Court granted the parties' stipulation. ECF No. 24.

On October 24, 2020, Plaintiff filed the Second Amended Complaint ("SAC"). SAC. Plaintiff alleges four causes of action: (1) violation of the Fourth Amendment under 42 U.S.C. § 1983; (2) battery; (3) violation of the Bane Act; and (4) negligence. Id. ¶¶ 28-62.

On November 13, 2020, Defendants filed the instant motion. ECF No. 30 ("Mot."). On November 30, 2020, Plaintiff filed an opposition. ECF No. 32 ("Opp'n"). On December 9, 2020, Defendants filed a reply. ECF No. 34 ("Reply").

II. LEGAL STANDARD

A. Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(6)

Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Rule 8(a) requires a plaintiff to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic 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 alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has...