1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CARREA CHRISTOPHER, Case No.: 23-cv-1789-RSH-VET

12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT 14

15 THE CITY OF SAN DIEGO, et al., [ECF Nos. 37, 39] 16 Defendants. 17 18 19 Pending before the Court is a motion to dismiss Plaintiff’s Second Amended 20 Complaint filed by defendants City of San Diego, San Diego Police Department, Mayor 21 Todd Gloria, Chief of Police David Nisleit, Mallory Marachiello, Jose Arriero Jr., and 22 Gerardo Dias (collectively, the “City Defendants”). ECF No. 37. As discussed below, the 23 Court grants the City Defendants’ motion and dismisses the Second Amended Complaint. 24 I. BACKGROUND 25 On September 29, 2023, Plaintiff filed his original Complaint against Lucas 26 Arellano, Deja Jackson, AAA Insurance, and the City Defendants. ECF No. 1. In brief, 27 Plaintiff alleged that on April 9, 2023, he was involved in an auto accident in which the 28 other motorist was at fault, but that the San Diego Police determined to falsely assign the 1 blame to him because of racial animus. The City Defendants thereafter moved to dismiss 2 for failure to state a claim. ECF No. 3. 3 On January 5, 2024, the Court granted the City Defendants’ motion and dismissed 4 the Complaint. ECF No. 14. The Court determined that Plaintiff failed to plead facts 5 establishing his entitlement to relief against any Defendant. Id. at 5. The Court noted, 6 among deficiencies in the Complaint, that: “Although Plaintiff accuses the police of 7 wrongdoing in connection with that incident, he does not identify any of the individual 8 officers he sued as having taken any specific action or even as being present at the accident 9 scene on April 9, 2023.” Id. at 5-6. The Court also determined that Plaintiff failed to 10 plausibly allege that the City of San Diego had a “policy, custom, or practice” that was a 11 moving force behind a violation of Plaintiff’s rights. Id. at 6. The Court granted Plaintiff 12 leave to amend. Id. Plaintiff did not timely file an amended complaint, and so on February 13 9, 2024, the Court dismissed the action. ECF No. 15. 14 On February 13, 2024, Plaintiff moved to reopen the case and to extend the time for 15 him to file an amended pleading, stating that he had not received the Court’s prior order. 16 ECF No. 17. The next day, the Court entered an order reopening the case and allowing 17 Plaintiff time to file an amended pleading. ECF No. 18. 18 On March 15, 2024, Plaintiff filed his First Amended Complaint (the “FAC”). ECF 19 No. 21. The City Defendants moved to dismiss for failure to state a claim. ECF No. 25. 20 On June 24, 2024, the Court granted the City Defendants’ motion and dismissed the 21 FAC. ECF No. 32. The Court noted numerous deficiencies in the FAC, including: (1) as 22 noted in the Court’s prior order, Plaintiff’s failure to identify any of the individual officers 23 he sued as having taken any specific action or being present at the accident scene; (2) failing 24 to allege a conspiracy by failing to identify any of the Defendants by name as having 25 participated in an agreement, failing to describe such an agreement, and failing to plausibly 26 allege a conspiracy to violate his rights; (3) making only conclusory allegations regarding 27 municipal liability under Monell, and failure to plausibly allege facts establishing an 28 unconstitutional policy, deliberate indifference, or a failure to train; (4) failing to plausibly 1 allege a Bane Act claim; and (5) failure to include any discussion or elaboration of his 2 common-law or Eighth Amendment claims. Id. at 4-8. The Court again granted Plaintiff 3 leave to amend within 30 days. Id. at 9. The Court thereafter granted Plaintiff, upon his 4 motion, additional time to file his amended pleading. ECF No. 35. 5 On August 8, 2024, Plaintiff filed his Second Amended Complaint (the “SAC”) on 6 August 8, 2024. ECF No. 36. On August 22, 2024, the City Defendants filed a motion to 7 dismiss Plaintiff’s SAC. ECF No. 37. Plaintiff did not file an opposition or seek an 8 extension by the due date of September 12, 2024. On September 19, 2024, the City 9 Defendants filed a notice of Plaintiff’s failure to timely oppose. ECF No. 38. Later that 10 day, Plaintiff filed a motion for an extension of time. ECF No. 39. On October 2, 2024, 11 Plaintiff filed his opposition to the motion to dismiss. ECF No. 40. The City Defendants 12 have objected to that opposition as untimely. ECF No. 42. 13 II. LEGAL STANDARD 14 A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.” 15 Navarro v. Block,

(9th Cir. 2001). A pleading must contain “a short and 16 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 17 8(a)(2). However, plaintiffs must also plead “enough facts to state a claim to relief that is 18 plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007); see Fed. R. 19 Civ. P. 12(b)(6). The plausibility standard demands more than a “formulaic recitation of 20 the elements of a cause of action,” or “‘naked assertions’ devoid of ‘further factual 21 enhancement.’” Ashcroft v. Iqbal,

(2009) (quoting Twombly,

). Instead, a complaint “must contain sufficient allegations of underlying facts 23 to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. 24 Baca,

(9th Cir. 2011). 25 When reviewing a motion to dismiss under Rule 12(b)(6), courts assume the truth of 26 all factual allegations and construe them in the light most favorable to the nonmoving party. 27 Cahill v. Liberty Mut. Ins. Co.,

, 337–38 (9th Cir. 1996) (citing Nat’l Wildlife 28 Fed’n v. Espy,

, 1340 (9th Cir. 1995)). But a court “disregard[s] ‘[t]hreadbare 1 recitals of the elements of a cause of action, supported by mere conclusory statements.’” 2 Telesaurus VPC, LLC v. Power,

(9th Cir. 2010) (quoting Ashcroft v. 3 Iqbal,

, 678–79 (2009)). Likewise, “conclusory allegations of law and 4 unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 5

(9th Cir. 1998) (citing In re Syntex Corp. Sec. Litig.,

, 926 6 (9th Cir. 1996)). “After eliminating such unsupported legal conclusions, [courts] identify 7 ‘well-pleaded factual allegations,’ which [are] assume[d] to be true, ‘and then [courts] 8 determine whether they plausibly give rise to an entitlement to relief.’” Telesaurus VPC, 9

. Dismissal under Rule 12(b)(6) is proper where there is no cognizable 10 legal theory to support the claim or when there is an absence of sufficient factual allegations 11 to support a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., 12 Inc.,

(9th Cir. 2010). 13 A complaint by a plaintiff proceeding pro se is “held to less stringent standards than 14 formal pleadings drafted by lawyers.” Hebbe v. Pliler,

(9th Cir. 2010) 15 (citation omitted). Pro se pleadings are construed liberally.

Nonetheless, courts may not 16 “supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents, 17

(9th Cir. 1982). A pro se litigant’s pleadings still must meet some 18 minimum threshold in providing the defendants with notice of what it is that they allegedly 19 did wrong. See Brazil v. U.S. Dep’t of Navy,

, 199 (9th Cir. 1995). 20 III. DISCUSSION 21 In granting Plaintiff leave to amend while dismissing the FAC, the Court reasoned 22 as follows: 23 The Court has already granted Plaintiff leave to amend his Complaint once. Plaintiff’s Amended Complaint failed to address the deficiencies 24 identified by this Court’s order dismissing the original complaint. Still, 25 in light of Plaintiff’s pro se status, the Court grants Plaintiff leave to file a second amended complaint, which corrects the defects identified in 26 this order. 27 28 1 ECF No. 32 at 8. The purpose of permitting Plaintiff to file a second amended complaint 2 was to give him an opportunity to address the deficiencies previously identified. However, 3 the SAC does not address these deficiencies. 4 Comparing the SAC and the FAC side by side, the SAC largely re-pleads in a 5 verbatim manner the deficient allegations contained in the FAC. 6 The only factual allegation that Plaintiff has added to the 26-page SAC consists of a 7 two-page description of an incident occurring at an unspecified time in the past. ECF No. 8 36 at 10-11. Plaintiff alleges that he and his brother were selected by the administration of 9 Lincoln High School to be peer counselors during a time in which the community was 10 angry at the San Diego Police. Although the community was happy with the work of 11 Plaintiff and his brother, the police were not. In order “to prove they were rulers of the 12 area, [the police] decided to attack members of the community.” Id. at 11. Plaintiff alleges 13 that the police arrested Plaintiff and his brother, beat them, and falsely claimed that Plaintiff 14 had his brother had attacked the police. Plaintiff alleges that he and his brother hired an 15 attorney and were found not guilty, but that the San Diego Police Department “till this day 16 still falsely accuses and makes false reports.” Id. Plaintiff alleges that “[t]he report of this 17 case was so false other officers have admitted it.” Id. He does not allege that he was targeted 18 by the police because of his race on that occasion, but he states more broadly that “[t]he 19 problem lies with the Design failure’s to address racial animus.” Id. 20 Plaintiff’s brief in opposition to the motion to dismiss does not mention the Lincoln 21 High School incident or discuss its relevance to the auto accident on April 9, 2023. Despite 22 these additional allegations, the SAC remains deficient in the ways previously identified 23 by this Court. Fundamentally, the SAC contains no further factual allegations about the 24 auto accident on April 9, 2023, the individuals who participated or the nature of their 25 participation, the alleged conspiracy between those individuals, or a police department 26 policy or failure to train that was the moving force behind a constitutional violation. Apart 27 from adding his description of the Lincoln High School incident, it appears that Plaintiff 28 has not even attempted to address deficiencies identified by the Court in his FAC, including | ||deficiencies identified earlier in his original Complaint. The Court has given Plaintiff 2 ||ample notice of those deficiencies, and ample time to remedy them, but Plaintiff has not 3 so. The Court concludes that further amendment would be futile.! 4||VI. CONCLUSION 5 For the foregoing reasons, the City Defendants’ motion to dismiss [ECF No. 37] is 6 ||GRANTED, and the SAC is DISMISSED without leave to amend. The action 1s 7 || DISMISSED, and the Clerk of Court is directed to close the case. 8 IT IS SO ORDERED. . 9 || Dated: December 11, 2024 feb 7 ‘ Howe 10 Hon. Robert S. Huie United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

27 ||" In light of this disposition, the Court declines to reach Defendants’ other arguments 28 or objections. The Court GRANTS Plaintiff's motion to allow the late filing of his opposition brief [ECF No. 39], which the Court has read and considered.