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Case No. 17-CV-00007-LHK 

ORDER RE: MONELL LIABILITY

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

JACQUELINE ZHANG,

Plaintiff,

v.

COUNTY OF MONTEREY, et al.,

Defendants.

Case No. 17-CV-00007-LHK 

ORDER RE: MONELL LIABILITY

The parties have now engaged in several rounds of briefing with respect to the bases upon

which municipal liability may be shown. See, e.g., ECF No. 149, 152, 159, 164, 167, 168. Below, 

the Court outlines the governing precedent under United States Supreme Court and Ninth Circuit 

doctrine. The Court then addresses various issues raised by the parties. The Court continues to 

research and analyze municipal liability and may issue further orders.

Under Section 1983, liability may attach to a municipality only where the municipality 

itself caused 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.” Monell v. Dep’t of Soc. Serv. of N.Y., 436 U.S. 658, 694 (1978). “The ‘official 

policy’ requirement was intended to distinguish acts of the municipality from acts of employees of 
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Case No. 17-CV-00007-LHK 

ORDER RE: MONELL LIABILITY

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United States District Court

Northern District of California

the municipality, and thereby make clear that municipal liability is limited to actions for which the 

municipality is actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479–80 

(1986). Thus, the municipality itself must have caused Plaintiff’s injury for the municipality to be 

liable under Section 1983 and Monell. 

Under controlling precedent of the United States Supreme Court and Ninth Circuit, there 

are three ways that municipal liability may be established: 

(1) Plaintiff may show that a municipal employee committed a constitutional violation 

pursuant to an expressly adopted official policy or to a “longstanding practice or 

custom which constitutes the ‘standard operating procedure’ of the local government 

entity.” Ulrich v. City and County of San Francisco, 308 F.3d 968, 984 (9th Cir.

2002) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)).

(2) Plaintiff may show “that the decision-making official was, as a matter of state law, a 

final policymaking authority ‘whose edicts or acts may fairly be said to represent 

official policy’ in the area of decision.” Id. (quoting Monell, 436 U.S. at 694).

(3) Plaintiff may show “that an official with final policy-making authority ratified a 

subordinate’s unconstitutional decision or action and the basis for it.” Gillette v. 

Delmore, 979 F.3d 1342, 1346-47 (9th Cir. 1992); see also Ulrich, 308 F.3d at 985 

(holding that plaintiff may establish official policy “by showing that an official with 

final policymaking authority either delegated that authority to, or ratified the decision 

of, a subordinate.”).

The parties appear to agree that municipal liability may be established pursuant to (1). 

However, Defendants’ final jury instructions and Monell briefing are inconsistent in

acknowledging municipal liability bases (2) and (3). See ECF No. 149, at 153-154; ECF No. 159, 

at 3. 

The Court briefly outlines municipal liability under (2) and (3) below so that there is no 

confusion between the parties moving forward.
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Case No. 17-CV-00007-LHK 

ORDER RE: MONELL LIABILITY

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United States District Court

Northern District of California

Final Policymaking Authority (2); Plaintiff may establish municipal liability by showing

that the employee committing the constitutional violation was an official with “final policymaking 

authority” in the area of the decision made. Ulrich, 308 F.3d at 985. “Whether an official is a 

policymaker for Monell purposes is a question governed by state law.” Ellins, 710 F.3d at 1066; 

see also City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988) (same). “Depending on the 

circumstances, however, [the Court] may also look to the way a local government entity operates 

in practice” to determine if an individual possessed final policymaking authority. Lytle v. Carl, 

382 F.3d 978, 983 (9th Cir. 2004). Thus, “[t]he final policymaker is the individual who had 

authority in the particular area where the constitutional violation occurred.” Barone v. City of 

Springfield, Oregon, 902 F.3d 1091, 1108 (9th Cir. 2018). “For a person to be a final 

policymaker, he or she must be in a position of authority such that a final decision by that person 

may appropriately be attributed to the District.” Lytle, 382 F.3d at 983. Moreover, it does not 

matter that “the final policymaker may have subjected only one person to only one 

unconstitutional action.” Id. A single action can constitute an official policy if that action is made 

or ratified by the final policymaker. Id.

However, “[t]he fact that a particular official—even a policy-making official—has 

discretion in the exercise of particular functions does not, without more, give rise to municipal 

liability based on an exercise of that discretion. The official must also be responsible for 

establishing final government policy respecting such activity before the municipality can be held 

liable.” Pembaur, 475 U.S. at 482-83 (internal citations omitted); Gillette, 979 F.2d at 1349 

(same). Thus, the fact that an individual “possessed the discretionary authority to hire and fire 

employees” is “not sufficient to establish a basis for municipal liability” on its own. Gillette, 979 

F.2d at 1350. Rather, that individual must possess “final policymaking authority” in the particular 

area where the constitutional violation occurred. Barone, 902 F.3d at 1108. 

“Authority to make municipal policy may be granted directly by a legislative enactment” 

or “delegated by an official who possesses such authority . . . .” Pembaur, 475 U.S. at 483. Thus, 

an individual may have been “delegated final policymaking authority over the decisions at issue.” 
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Case No. 17-CV-00007-LHK 

ORDER RE: MONELL LIABILITY

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United States District Court

Northern District of California

See Ulrich, 308 F.3d at 985.

Ratification by a Final Policymaker (3): Plaintiff also may establish municipal liability 

by showing that “an official with final policymaking authority . . . ratified the decision of, a 

subordinate.” Ulrich, 308 F.3d at 985. However, acquiescence to the decision of a subordinate is 

not sufficient to establish liability. Rather, municipal liability “requires that a policymaker 

approve a subordinate’s decision and the basis for it before the policymaker will be deemed to 

have ratified the subordinate’s discretionary decision.” Gillette, 979 F.3d at 1348; Ellins, 710 F.3d 

at 1067-68 (same).

Having outlined the bases for municipal liability under Section 1983, the Court will now 

address several issues raised by the parties.

Jury Instructions

First, Defendants’ proposed Special Jury Instruction No. 3, ECF No. 149, at 153 is 

incomplete because it fails to state that municipal liability under Section 1983 may be imposed 

where Plaintiff establishes that the decision that caused her injury was (1) made by an employee 

with “final policymaking authority” in the area of the decision made, Ulrich, 308 F.3d at 985, or 

(2) an individual with final policymaking authority ratified a subordinate’s decision and the basis

for that decision. Gillette, 979 F.3d at 1348.

However, Plaintiff’s proposed Special Jury Instruction No. 15 is also misleading because it 

conflates discretion with final policymaking authority and provides unclear guidance as to the 

bases for municipal liability. See ECF No. 149, at 161. Specifically, Plaintiff states that 

municipal liability must be found if “[t]he individual involved, such as Ellerbee or Guertin, was 

given the authority or ability to act at his or her discretion and is the final word on the matter.” Id. 

However, “[t]he fact that a particular official—even a policy-making official—has discretion in 

the exercise of particular functions does not, without more, give rise to municipal liability based 

on an exercise of that discretion. The official must also be responsible for establishing final 

government policy respecting such activity before the municipality can be held liable.” Pembaur, 

475 U.S. at 482-83; Gillette, 979 F.2d at 1349 (same). Thus, the fact that an individual “possessed 
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Case No. 17-CV-00007-LHK 

ORDER RE: MONELL LIABILITY

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United States District Court

Northern District of California

the discretionary authority to hire and fire employees” is “not sufficient to establish a basis for 

municipal liability” on its own. Gillette, 979 F.2d at 1350. Therefore, Plaintiff must establish that 

Ellerbee or Guertin were responsible for establishing final government policy with respect to the 

decision made. It is not enough to show that Ellerbee or Guertin had the authority to act at their 

own discretion.

Second, Plaintiff states that municipal liability can be established by showing that “[t]he 

County later upheld, ratified, or adopted the conduct of the individual or individuals.” ECF No. 

149, at 161. Municipal liability under Section 1983 “requires that a policymaker approve a 

subordinate’s decision and the basis for it before the policymaker will be deemed to have ratified 

the subordinate’s discretionary decision.” Gillette, 979 F.3d at 1348 (emphasis added). Plaintiff’s 

proposed jury instruction is therefore incomplete.

Jury Verdict Forms

The parties also dispute whether the special jury verdict form on violation of procedural 

due process under Section 1983 should include a question regarding whether Plaintiff’s injury was 

the result of an official municipal policy under Monell. See ECF No. 154 at 7, 21. The Court 

agrees with Defendants that the special jury verdict form should include a question regarding 

municipal liability. However, Defendants’ proposed special jury verdict form is incomplete. 

Defendants’ instruction states that the means of establishing an official policy are that the decision 

was an “expressly adopted official policy or a widespread or longstanding practice or custom.” Id.

at 21. This instruction ignores that municipal liability may also be established where the decision 

was made by “a final policymaking authority,” Ulrich, 308 F.3d at 985, or a final policymaking 

authority “approve[d] a subordinate’s decision and the basis for it . . . .” Gillette, 979 F.3d at 

1348. The special jury verdict form must reflect these additional bases for municipal liability.

Evidence / Admissions

Plaintiff also requests that the Court enter an order preventing Defendants from presenting 

any evidence or arguments to the effect that (1) “The acts of Ellerbee and others in connection 

with the discharge of Zhang were not acts of the County”; (2) “The acts of Ellerbee and others in 
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Case No. 17-CV-00007-LHK 

ORDER RE: MONELL LIABILITY

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United States District Court

Northern District of California

connection with the discharge of Zhang were not authorized or approved by the County”; and (3) 

“That Plaintiff is required to show that any denial of due process in Zhang’s discharge was due to 

a custom, policy, or practice of such denial of rights.” ECF No. 162, at 2.

Plaintiff’s objection lacks merit. Defendants are entitled to argue that Plaintiff has not 

established municipal liability under Section 1983. Municipal liability attaches where the 

municipality itself caused 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.” Monell, 436 U.S. at 694. Defendants are entitled to argue that 

Plaintiff’s claim under Section 1983 is barred because Plaintiff has failed to establish municipal 

liability through one of the three bases for liability outlined above. 

Plaintiff further argues that Defendants may not raise an affirmative defense under Monell

because Defendants have already admitted that the actions of Ellerbee and others were “authorized

acts of the County.” ECF No. 162, at 4. Plaintiff argues that if an act of Ellerbee or others was 

“authorized” by the County, then that act represented official policy and municipal liability may 

be found under Section 1983 and Monell. Id. at 7. However, the fact that an individual was 

authorized to act by the County does not by itself demonstrate that the individual had final 

policymaking authority with regard to the decision made. Thus, for example, the fact that an 

individual “possessed the discretionary authority to hire and fire employees” is “not sufficient to 

establish a basis for municipal liability” on its own. Gillette, 979 F.2d at 1350. Rather, that 

individual must possess “final policymaking authority” in the particular area where the 

constitutional violation occurred. Barone, 902 F.3d at 1108. Defendants are entitled to argue at 

trial that while Ellerbee and others were authorized to act, they lacked final policymaking 

authority with respect to the decision that caused Plaintiff’s injury. 

Accordingly, the Court DENIES Plaintiff’s request to prevent Defendants from presenting 

any evidence or arguments to the effect that Plaintiff has failed to establish municipal liability 

under Section 1983 and Monell.
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Case No. 17-CV-00007-LHK 

ORDER RE: MONELL LIABILITY

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United States District Court

Northern District of California

IT IS SO ORDERED.

Dated: June 4, 2021

______________________________________

LUCY H. KOH

United States District Judge