govinfo:USCOURTS-casd-3_24-cv-01445-2

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
JOHN MOFFITT, 
Plaintiff, 
v. 
COUNTY OF SAN DIEGO, et al., 
Defendants. 
 Case No. 24-cv-1445-MMA-DDL 
 
NOTICE AND ORDER PROVIDING 
TENTATIVE RULINGS RE: 
DEFENDANT’S MOTION TO 
DISMISS 
 
[Doc. No. 22] 
 
 On May 7, 2025, Plaintiff John Moffitt (“Plaintiff”) and Defendant City of San 
Diego (“the City”) will appear before the Court for a hearing on the City’s motion to 
dismiss Plaintiff’s Third Amended Complaint.  Doc. No. 22.  In anticipation of the 
hearing, the Court issues the following tentative ruling GRANTING IN PART and 
DENYING IN PART the City’s motion. 
As a preliminary matter, municipal departments and sub-units, including police 
departments, are generally not considered “persons” within the meaning of Section 1983.  
See Hervey v. Estes, 65 F.3d 784, 791–92 (9th Cir. 1995) (Finding that because an 
intergovernmental narcotics taskforce was not a itself a municipality or independent local 
governmental entity, but instead a municipality or local governmental entity’s creation, it 
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was “only subject to suit if the parties that created [it] intended to create a separate legal 
entity.”); United States v. Kama, 394 F.3d 1236, 1239–40 (9th Cir. 2005) (Ferguson, J., 
concurring) (noting local government departments and bureaus are generally not 
considered “persons” within the meaning of § 1983).  As such, neither the San Diego 
County Sheriff’s Department, San Diego County Jail, nor San Diego Police Department 
appear to be proper parties. Vance v. County of Santa Clara, 928 F. Supp. 993, 995–96 
(C.D. Cal. 1996).  The Court thus tentatively DISMISSES WITH PREJUDICE claims 
as to the San Diego County Sheriff’s Department, San Diego County Jail, and San Diego 
Police Department.  
Turning to its motion, the City moves to dismiss Plaintiff’s Third Amended 
Complaint insofar as he asserts claims against it.   Doc. No. 22.  It likewise moves to 
dismiss Plaintiff’s claims against the Doe Defendants.  Id. at 9–10.  The City argues that 
Plaintiff’s first and third causes of action— at least as alleged against the City—are truly  a 
single cause of action for excessive force in violation of Plaintiff’s Fourth Amendment 
rights.  Id. at 4.
 1  The Court addressed this issue in previous orders and came to that the 
same conclusion.  See Doc. No. 19 at 6–7, 17.  In his TAC, Plaintiff still does not remedy 
or clarify the matter.  Therefore, the Court will again construe the two causes of action, as 
relevant to the City, as a single claim for excessive force in violation of Plaintiff’s Fourth 
Amendment rights brought under 42 U.S.C. § 1983. 
1. Doe Defendants 
 The City moves to dismiss Plaintiff’s claims against the Doe Defendants on the 
grounds that the TAC fails to allege how each Doe Defendant “personally violated 
[Plaintiff’s] constitutional rights” or behaved in a manner allowing liability.  Doc. No. 22 
at 9.  While Plaintiff may refer to unnamed defendants as “Does” at the pleading stage, he 
must still allege that Doe defendants personally participated in the alleged deprivation of 
 
1 The Court has, in prior orders, determined that Plaintiff’s claims concerning his medical treatment in 
jail are asserted against the County of San Diego (“County”) and County employees.  Doc. No. 19 at 7.  
As the County did not file a motion to dismiss, the Court will not discuss those claims. 
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constitutional rights.  See Brink v. Cnty. of San Diego, No. 23-cv-1756-DMS (SBC), 
2024 WL 3315992 *3 (S.D. Cal. July 3, 2024).  “A district court should dismiss claims 
against Doe defendants in a Section 1983 suit when the complaint does not ‘even 
minimally explain how any of the unidentified parties . . . personally caused a violation of 
[the plaintiff’s] constitutional rights.’”  Id. (quoting Estate of Serna v. Cnty. of San Diego, 
No. 20-cv-2096-LAB (MSB), 2022 WL 827123, *3 (S.D. Cal. Mar. 18, 2022)).   
In his TAC, Plaintiff describes the relevant Doe Defendants as follows:  
 
At all relevant times, Defendant Officers, employed by the San Diego Police 
Department, [were] actively involved in executing the arrest of Plaintiff . . . at 
his residence.  Defendant Officers had direct control over the deployment of 
a police canine and made  the affirmative decision to release the dog into 
Plaintiff’s apartment . . . . 
 
Doc. No. 20 (“TAC”) ¶ 20.  He expands on the referenced events described in detail.  Id. 
¶¶ 22–24, 46.  Plaintiff also identifies as Doe Defendants medical and custodial 
employees in the County Jail, who he alleges violated his Fourteenth Amendment 
rights—a claim not dealt with here, with similar particularity.  TAC ¶ 20.  Though not a 
pinnacle of clarity, the Court tentatively finds that this sufficiently identifies how the Doe 
Defendants each violated his rights or incurred liability. 
 The Court will also address the City’s arguments insofar as it asserts that Plaintiff 
fails to state a claim for excessive force against the Doe Defendants.  See Doc. No. 22 at 
4–7.  Claims that an officer used excessive force are analyzed under the Fourth 
Amendment’s “objective reasonableness” standard.  Graham v. Connor, 490 U.S. 386, 
388, 394–95 (1989).  Courts in the Ninth Circuit: (1) assess the severity of the intrusion 
on the individual’s Fourth Amendment rights by evaluating the type and amount of force 
inflicted; (2) evaluate the government’s interest in the use of force; and (3) “balance the 
gravity of the intrusion on the individual against the government’s need for that 
intrusion.”  Glenn v. Washington Cnty., 673 F.3d 864, 871 (9th Cir. 2011) (quoting Miller 
v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003)).  Though the most important factor is 
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whether the plaintiff “posed an immediate threat to the safety of the officers or others,” 
the Court must consider the totality of the circumstances.  Mattos v. Agarano, 661 F.3d 
433, 441, 449 (9th Cir. 2011); see also Glenn., 673 F.3d at 872.  Reasonableness “must 
be judged from the perspective of a reasonable officer on the scene, rather than with the 
20/20 vision of hindsight[,]” and cannot consider an officer’s subjective intentions.  
Graham, 490 U.S. at 396–97; Cnty. of Los Angeles v. Mendez, 581 U.S. 420, 428 (2017).   
Plaintiff alleges that when officers arrived at his apartment late at night, he was 
asleep.  TAC ¶ 46.  He also alleges that at no point did he “threaten the officers, . . . lunge 
at the officers . . . or do anything while in the apartment” that put the officers at risk.  Id.  
Despite this, he alleges that officers released a canine unit without “assess[ing] whether 
the plaintiff was present . . . asleep, or awake,” or announcing themselves in way that 
would not warn or awaken” him before releasing the canine unit.  Id.  Once released, the 
canine bit him, causing severe bite wounds. Id. ¶¶ 24–27, 46, 62.  At a motion to dismiss, 
the Court must assume the truth of all factual allegations and must construe them in the 
light most favorable to the nonmoving party.  Cahill v. Liberty Mut. Ins. Co., 80 F.3d 
336, 337–38 (9th Cir. 1996).
 2  Here, the Court tentatively finds that Plaintiff sufficiently 
pleads that officers’ use of force in effecting his arrest was unreasonable in light of the 
circumstances.  Thus, the Court tentatively DENIES the City’s motion on that basis.  
2.  Municipal Section 1983 Liability 
The City also moves to dismiss Plaintiff’s excessive force claim against it.  Doc. 
No. 22 at 4.  To seek damages against a municipality under § 1983, Plaintiff must allege 
that: (1) he was deprived of a constitutional right; (2) the City has a policy, custom or 
practice which amounted to deliberate indifference to that constitutional right; and (3) the 
policy, custom or practice was the moving force behind the constitutional violation.  See 
 
2 The City cites Vera Cruz v. City of Escondido to argue that Plaintiff must plead facts as to the crime for 
which officers sought his arrest.  Doc. No. 22 at 7 (citing 139 F.3d 659 (9th Cir. 1997), as amended on 
denial of reh’g and reh’g en banc (Mar. 31, 1998)); Doc. No. 27 at 4–5.  The Court does not share this 
reading.  See also Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (partially overturning Vera 
Cruz). 
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Dougherty v. City of Covina, 654 F.3d 892, 900–01 (9th Cir. 2011); Monell v. 
Department of Social Services, 436 U.S. 658, 694 (1978)).  As with his past pleadings, 
Plaintiff’s claim against the City relies on allegations that the arresting officers’ actions 
were not in compliance with the San Diego Police Department Canine Manual’s 
provisions for use of police dogs in arrests.  TAC ¶ 70–74.  However, the Court 
tentatively finds he has not pleaded sufficient facts to plausibly allege the City has a 
policy, custom, or practice of not complying with the Canine Manual such that this 
noncompliance amounts to, itself, the actual custom, policy, or practice in place.  See 
Adickes v. S. H. Kress & Co., 398 U.S. 144, 167–68 (1970); Trevino v. Gates, 99 F.3d 
911, 918 (9th Cir. 1996), holding modified on other grounds by Navarro v. Block, 250 
F.3d 729 (9th Cir. 2001).  (“The custom must be so ‘persistent and widespread’ that it 
constitutes a ‘permanent and well settled city policy.’”) (internal citations omitted).   
Plaintiff’s only relevant addition to this claim in the TAC is one paragraph alluding 
to “a substantial number of complaints and lawsuits [against the city] concerning the use 
and control of canine units in the field” and, in broad strokes, the underlying problems 
drawing those complaints.  TAC ¶ 40.  “While a complaint . . . does not need detailed 
factual allegations . . . [it] requires more than labels and conclusions, and a formulaic 
recitation of the elements . . . will not do.”  Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 
(2007) (internal quotations, brackets, and citations omitted).  The Court tentatively finds 
this is insufficient as Plaintiff provides no details as to how many complaints or lawsuits 
he is referencing and provides no insight as to how many individuals within the 
department “know of this issue,” or where they fall in the chain of command.  TAC ¶ 40.  
Likewise, despite his arguments in opposition, the Court tentatively finds no indication 
that Plaintiff pleads facts to support a theory that the City fails to train officers to an 
extent that constitutes a policy or custom of inadequate training.  See Doc. No. 26 at 2. 
Additionally, it tentatively appears that Plaintiff provides no facts alleging that any 
City policy is the moving force behind the violation he alleges.  Dougherty, 654 F.3d at 
900–01.  Therefore, the Court tentatively finds Plaintiff fails to plead an excessive force 
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claim against the City.  And because Plaintiff has been unable, after three iterations, to 
plead a plausible claim against the City, the Court tentatively finds that leave to amend 
would be futile.  Accordingly, the Court tentatively GRANTS the City’s motion, and 
tentatively DISMISSES with prejudice Plaintiff’s excessive force claim against the 
City. 
3. State Law Claims (Claim 2) 
In its motion the City, in two sentences preceding its “Argument” section, asserts 
that “Plaintiff’s [s]econd [c]ause of [a]ction for Professional Negligence is . . . is 
improperly pled because it assumes that police officers, as opposed to [canines], must 
search an area before releasing a K-9 . . . .”  Doc. No. 22 at 3.  It makes no further 
argument, except to state that “[a]s a general matter, the use of police canines to search 
for and apprehend fleeing or concealed suspects is long-standing and widespread, and is 
lawful.”  Id.3.  However, the City dedicates a majority its reply to arguments that 
Plaintiff: fails to state a cause of action for negligence; failed to provide it notice of the 
claims against it; and is required to plead facts as to why officers sought his arrest.  Doc. 
No. 27 at 3–5.  The City also raises state-law immunity issues for the first time in its 
reply.  Id. 
First, the Court already found that Plaintiff had sufficiently pleaded and could 
proceed with this claim against the City.  Doc. No. 19 at 13–17.  And to the extent the 
City raises new arguments in reply, the Court tentatively finds it would be unfair to reach 
these arguments as Plaintiff has not had an adequate opportunity to respond.   
Even if the Court reaches the merits of these newly raised arguments, the Court 
tentatively finds that the City is not entitled to dismissal of this claim.  Plaintiff alleges a 
negligence claim consonant with California Civil Code § 1714, establishing a cause of 
action against harm caused by anyone failing to exercise “ordinary care or skill in the 
management of his or her property or person . . . .” TAC ¶ 58 (citing Cal. Civ. Code § 
 
3 The case that the City cites in support did not, however, find that use of a police canine is  per se 
reasonable use of force. Koistra v. Cnty. of San Diego, 310 F. Supp. 3d 1066, 1083 (S.D. Cal. 2018). 
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1714); Doc. No. 26 at 6.  The Court addressed this claim at length in its prior order and 
sees no reason to reverse itself.  Doc. No. 19 at 13–17.   
Moreover, while a plaintiff must identify a specific statute to allege direct liability 
against a municipal entity, public entities are still vicariously—rather than directly —
liable for “employee[s’] negligent acts or omissions within the scope of employment 
. . . .”  Eastburn v. Reg’l Fire Prot. Auth., 80 P.3d 656, 658 (Cal. 2003); Lallemand v. 
Cnty. of Los Angeles, No. LACV1700781JAKSSX, 2018 WL 6136816 *9 (C.D. Cal. 
June 12, 2018); Cal. Gov. Code § 820(a).  Plaintiff sufficiently alleges that the claim is 
brought against the City through the allegedly negligent acts of its employees in effecting 
his arrest, leading to injury—allegations sufficient to invoke vicarious liability.  TAC 
¶ 17, 31, 60; see also Doc. No. 26 at 6.  Relevantly, it is also well established that “police 
officers have a duty in tort to act reasonably when employing deadly force against a 
suspect.”  Golick v. State of California, 299 Cal. Rptr. 3d 229, 239 (Cal. Ct. App. 2022); 
Hayes v. Cnty. of San Diego, 305 P.3d 252, 255–56 (Cal. 2013).  Therefore, the Court 
tentatively DENIES the City’s motion as to this claim. 
As these rulings are tentative, the Court looks forward to counsel’s arguments. 
IT IS SO ORDERED. 
Dated:  April 28, 2025    _____________________________ 
     HON. MICHAEL M. ANELLO 
United States District Judge 
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