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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

RON FRANKLIN,

Plaintiff,

v.

CITY OF SAN LEANDRO, et al.,

Defendants.

Case No. 17-cv-00789-HSG 

ORDER GRANTING IN PART AND 

DENYING IN PART DEFENDANTS’ 

MOTION TO DISMISS

Re: Dkt. No. 8

On March 22, 2017, the City of San Leandro (“the City”) and Officer Dennis Mally 

(collectively, “Defendants”) moved to dismiss several causes of action from the first amended 

complaint filed by Plaintiff Ron Franklin. Dkt. No. 8 (“Mot.”); see also Dkt. No. 6 (“FAC”). On 

April 5, 2017, Plaintiff opposed the motion. Dkt. No. 9. (“Opp.”). On April 12, 2017, Defendants 

replied. Dkt. No. 10 (“Reply”). The Court took the motion under submission on June 5, 2017. 

Dkt. No. 20; see Civ. L.R. 7-1(b). After carefully considering the parties’ arguments, the Court 

GRANTS in part and DENIES in part Defendants’ motion.

I. BACKGROUND

This case arises from an incident involving Plaintiff and several members of the City of 

San Leandro Police Department. The FAC sets forth the following allegations. At approximately 

12:50 p.m. on October 8, 2015, Plaintiff was a passenger in a vehicle stopped by a City of San 

Leandro police officer. Id. ¶¶ 9–10. The officer ordered the car’s driver to exit the vehicle. Id. ¶

10. When the driver asked for a reason, the officer indicated that he would “show” the driver why 

he was being asked to step out of the car. Id. The driver then “drove away from the traffic stop,”

and onto a divider located at or near an intersection. Id. ¶¶ 10–11. Police officers surrounded the 

vehicle. Id. The officers ordered Plaintiff and the driver to get out of the car and put their hands 

up, and they complied. Id. Defendant Officer Mally then “needlessly released a K9 officer into 
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the car.” Id. ¶ 11. The K9 officer “engaged Plaintiff and began to drag him out of the car.” Id. 

Officer Mally “ordered Plaintiff to get on his stomach.” Id. Officer Mally subsequently “watched 

as the K9 officer violently and needlessly continued to viciously bite and tug Plaintiff’s arm in 

multiple directions.” Id. Plaintiff states that “only an unreasonable officer would release a K9 

officer and allow it to viciously bite an unarmed and defenseless man in the manner and under the 

circumstances the Defendant officers did. . .” Id. ¶ 12. 

Plaintiff filed the FAC on March 1, 2017. Dkt. No. 6. The FAC sets forth eight causes of 

action. The first three arise under 42 U.S.C. § 1983 for (1) unlawful seizure in violation of the 

Fourth Amendment; (2) excessive force in violation of the Fourth Amendment, and (3) “deliberate 

indifference, customs, policies or practices” that resulted in a violation of Plaintiff’s constitutional 

rights, see Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978) (“Monell

claim”). FAC ¶¶ 17–27. The fourth cause of action asserts a violation of the Bane Act, Cal. Civ.

Code § 52.1. Id. ¶¶ 28–33. Causes of action 5–8 assert the following torts: (5) negligence, Cal. 

Gov. Code §§ 820, 815.2; (6) battery; (7) intentional infliction of emotional distress; and (8) 

malicious prosecution. Id. ¶¶ 34–44. Plaintiff seeks general, special, and punitive damages, and 

attorneys’ fees and costs under 42 U.S.C. §§ 1983, 1985–86, and 1988. Id. ¶¶ 16, 45. 

Defendants move to dismiss the third, fourth, and eighth causes of action from the FAC for 

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”). Mot. at 

2–14. Defendants argue that Plaintiff is not entitled to punitive damages or attorneys’ fees and 

costs under 42 U.S.C. §§ 1985 and 1986. Mot. at 14–15.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain 

statement of the claim showing that the pleader is entitled to relief[.]” A defendant may move to 

dismiss a complaint for failing to state a claim upon which relief can be granted under Rule 

12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a 

cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. 

Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) 

motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” 
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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when a 

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). In 

reviewing the plausibility of a complaint, courts “accept factual allegations in the complaint as 

true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. 

St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless, courts do not 

“accept as true allegations that are merely conclusory, unwarranted deductions of fact, or 

unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 

And even where facts are accepted as true, “a plaintiff may plead [him]self out of court” if he 

“plead[s] facts which establish that he cannot prevail on his . . . claim.” Weisbuch v. Cty. of Los 

Angeles, 119 F.3d 778, 783 n.1 (9th Cir. 1997) (quotation and citation omitted). 

III. DISCUSSION 

The Court turns first to the sufficiency of Plaintiff’s third, fourth, and eighth causes of 

action, and then to Plaintiff’s section 1985 and 1986 damages claims.

A. The Monell Claim (Claim 3)

Defendants move to dismiss Plaintiff’s Monell claim, arguing that the FAC contains 

insufficient factual allegations to show that the City maintained a “particular custom or practice 

that was so widespread as to have the force of law.” Mot. 4–6. Defendants argue that the FAC’s 

allegations relate only to Plaintiff’s specific interaction with Defendants. Reply at 4. Plaintiff 

argues that the City failed to train peace officers in the appropriate use of force, or discipline 

officers for the inappropriate use of force, especially with respect to the deployment of K9 

officers. Opp. at 7–8.

To plausibly state a Monell claim, Plaintiff must allege unconstitutional conduct 

attributable to (1) an official municipal policy, Monell, 436 U.S. at 694; (2) “a widespread practice 

that, although not authorized by written law or express municipal policy, is ‘so permanent and 

well settled as to constitute a ‘custom or usage’ with the force of law,’” City of St. Louis v. 

Praprotnik, 485 U.S. 112, 127 (1988) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–68

(1970)); (3) the decision of an official with “final policymaking authority,” id. at 123; or (4) a 
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“failure to train [that] amounts to deliberate indifference to the rights of persons with whom the 

police come into contact,” City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). The FAC 

states that the City’s acts, omissions, and/or a failure to adequately “investigate, train, supervise, 

monitor, instruct, and discipline” its police officers caused Plaintiff’s injuries. FAC ¶¶ 14, 22–26. 

But the FAC is devoid of any specific facts suggesting that Plaintiff’s constitutional rights were 

violated by an official municipal policy or widespread practice concerning K9 officers. See 

Harris, 489 U.S. at 389 (requiring also that the policy or practice be the “moving force” behind 

the alleged injury). The FAC speaks only to alleged unconstitutional conduct by individual 

defendants in handling one K9 officer. Plaintiff in his opposition does not cite to any allegations 

in the FAC showing a broader policy, practice, or pattern. The Court therefore finds Plaintiff’s 

Monell claim insufficient to survive Defendants’ dismissal motion.

B. The Bane Act Claim (Claim 4)

Defendants seek to dismiss claim 4 of the FAC, which alleges a violation of the Bane Act, 

Cal. Civ. 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.” Shoyoye v. Cty. of Los Angeles, 

137 Cal. Rptr. 3d 839, 845 (Ct. App. 2012) (quotation and citation omitted). Defendants rely on

Shoyoye for the proposition that Plaintiff must allege threats, intimidation, or coercion by 

Defendants “independent from the coercion inherent” in the underlying constitutional violation

itself—here, an allegedly unlawful seizure and use of excessive force. Mot. at 10–11 (citing 

Shoyoye, 137 Cal. Rptr. 3d at 849).

In response, Plaintiff contends that Shoyoye’s limitation applies only when a defendant’s 

conduct is unintentional. Opp. at 9. While Shoyoye’s exact contours remain somewhat unsettled, 

most courts in this District confirm the distinction drawn by Plaintiff. See M.H. v. Cty. of 

Alameda, 90 F. Supp. 3d 889, 898 (N.D. Cal. 2013) (“[T]his Court agrees with other courts 

holding that, at the pleading stage, the relevant distinction for purposes of the Bane Act is between 

intentional and unintentional conduct, and that Shoyoye applies only when the conduct is 
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unintentional.”); Bass v. City of Fremont, 12–cv–4943–TEH, 2013 WL 891090 (N.D. Cal. Mar. 8, 

2013) (denying a motion to dismiss a Bane Act claim where the plaintiff’s alleged “detention and 

arrest resulted from the officers’ action, rather than their inaction”) (citing Venegas v. Cty. of Los 

Angeles, 87 P.3d 1 (Cal. 2004)); see also Bender v. Cty. of Los Angeles, 159 Cal. Rptr. 3d 204, 

214 (Ct. App. 2013) (distinguishing Shoyoye based on a showing of unlawful arrest and 

“deliberate and spiteful” use of excessive force). To the extent that the Ninth Circuit has spoken 

on this issue, that court has reconfirmed that where “an arrest is unlawful and excessive force is 

applied in making the arrest, there has been coercion independent from the coercion inherent in the 

wrongful detention itself.” Lyall v. City of Los Angeles, 807 F.3d 1178, 1196 (9th Cir. 2015)

(quoting Bender, 159 Cal. Rptr. 3d at 214) (emphasis in original, internal quotations omitted). 

Plaintiff here states causes of action for both unlawful arrest and excessive force under 

section 1983. FAC ¶¶ 17–20. Defendant has not moved to dismiss either claim. Plaintiff’s 

complaint alleges that Officer Mally “needlessly released” a K9 officer into the vehicle occupied 

by Plaintiff, “ordered Plaintiff to get on his stomach,” and subsequently “watched as the K9 

officer violently and needlessly continued to viciously bite and tug Plaintiff’s arm in multiple 

directions.” Id. ¶ 11. Plaintiff further alleges that only an “unreasonable officer” would release a 

K9 officer under those circumstances. Id. ¶ 12. Taking these allegations as true, Plaintiff states 

sufficient facts to plausibly allege that Officer Mally’s use of a K9 officer constitutes “intentional 

conduct, conduct which should be reasonably perceived as threatening, intimidating, or coercive,” 

and that would not inhere in an otherwise unlawful arrest. Skeels v. Pilegaard, 12–cv–2175–TEH, 

2013 WL 970974, at *4 (N.D. Cal. Mar. 12, 2013); see Cardoso v. Cty. of San Mateo, No. C 12-

05130 CRB, 2013 WL 900816, at *1 (N.D. Cal. Jan. 11, 2013) (denying dismissal of a Bane Act 

claim as that claim “may turn on details about the alleged application of excessive force—details 

which are unavailable at this early stage in the litigation”). Plaintiff’s Bane Act claim therefore 

survives the motion to dismiss. 

C. The Malicious Prosecution Claim (Claim 8)

Defendants next seek dismissal of Plaintiff’s malicious prosecution claim, arguing that: (1) 

the claim is barred under California law by Plaintiff’s failure to timely file a corresponding
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government claim; (2) the FAC states no facts to support a malicious prosecution claim; and (3) 

Defendants are immune from liability under Cal. Gov. Code § 821.6.

1 Mot. at 11–14. Plaintiff 

suggests that the state law bar is inapplicable because Plaintiff’s malicious prosecution claim 

arises under section 1983. See Opp. at 10. The FAC itself does not specify whether Plaintiff’s 

claim arises under federal or state law. 

The FAC fails to plausibly assert a malicious prosecution claim under either federal or 

state law. Under both section 1983 and California law, a complaint must contain specific facts 

plausibly suggesting that Plaintiff was prosecuted (1) with malice, and (2) without probable cause. 

Compare Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (“In order to prevail on 

a §1983 claim of malicious prosecution, a plaintiff must show that the defendants prosecuted him 

with malice and without probable cause, and that they did so for the purpose of denying him equal 

protection or another specific constitutional right.”) (quotation and brackets omitted), with Conrad 

v. United States, 447 F.3d 760, 767 (9th Cir. 2006) (“To prove a claim of malicious prosecution in 

California, the plaintiff must prove that the underlying prosecution: ‘(1) was commenced by or at 

the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor; (2) 

was brought without probable cause; and (3) was initiated with malice.’”) (quoting Sheldon Appel 

Co. v. Albert & Oliker, 765 P.2d 498, 501 (Cal. 1989)). While Plaintiff asserts in his opposition 

that Defendant acted maliciously and without probable cause, Opp. at 10, the FAC itself contains 

no specific facts plausibly suggesting Defendants’ liability. The sole allegation in the FAC 

specifically addressing Plaintiff’s prosecution simply recites the requisite elements of a malicious 

prosecution claim. See FAC ¶ 44. That is insufficient to survive a motion to dismiss. See 

Twombly, 550 U.S. at 570. The Court therefore dismisses Plaintiff’s claim for malicious 

prosecution. 

D. The Section 1985 and 1986 Claims

Finally, Defendants assert that Plaintiff cannot seek punitive damages and attorneys’ fees 

 

1

That section provides that a “public employee is not liable for injury caused by his instituting or 

prosecuting any judicial or administrative proceeding within the scope of his employment, even if 

he acts maliciously and without probable cause.”
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and costs under 42 U.S.C. §§ 1985 and 1986. Plaintiff clarifies that any punitive damage claim 

applies only to individual defendants, not the City. Opp. at 11. 

The Ninth Circuit has set forth the governing standard for section 1985 claims at the 

pleading stage: 

Section 1985 proscribes conspiracies to interfere with certain civil 

rights. A claim under this section must allege facts to support the 

allegation that defendants conspired together. A mere allegation of 

conspiracy without factual specificity is insufficient.

Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). In addition, “a plaintiff 

must demonstrate a deprivation of that right motivated by ‘some racial, or perhaps otherwise classbased, invidiously discriminatory animus behind the conspirators’ action.’” Sever v. Alaska Pulp 

Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (quoting Griffith v. Breckenridge, 403 U.S. 88, 102 

(1971)). A plaintiff can state a section 1986 claim “only if the complaint contains a valid claim 

under section 1985.” Karim-Panahi, 839 F.2d at 626. 

Plaintiff fails to plausibly state damage claims under sections 1985 and 1986. The FAC is 

devoid of specific factual assertions suggesting that Defendants conspired with animus against

Plaintiff. While Plaintiff asserts that Defendants violated Plaintiff’s constitutional rights to be free 

from false arrest and malicious prosecution, Plaintiff fails to connect this with any alleged 

conspiracy. See Opp. at 11. Plaintiff, moreover, does not identify any allegation in the complaint 

suggesting that a conspiracy exists. Id. Rather, Plaintiff contends that the Court should apply “a 

relaxed pleading standard” to Plaintiff’s claim for damages. Id. at 11. Plaintiff cites no authority 

for this proposition. The Court therefore dismisses Plaintiff’s claim for damages under sections 

1985 and 1986.

IV. LEAVE TO AMEND

Even where dismissal is appropriate under Rule 12(b)(6), a court “should grant leave to amend 

even if no request to amend the pleading was made, unless it determines that the pleading could 

not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th 

Cir. 2000) (quotation and citation omitted). Since it is possible that the flaws in the FAC can be 

cured by the allegation of other facts, the Court grants Plaintiff leave to amend. See id. Any 
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second amended complaint must clearly and concisely state the basis for all claims alleged.

V. CONCLUSION

For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendants’ 

motion to dismiss.2 Any second amended complaint must be filed within 28 days of the date of 

this Order. 

IT IS SO ORDERED.

Dated:

______________________________________

HAYWOOD S. GILLIAM, JR.

United States District Judge

 

2

In addition, the Court DENIES as moot Defendants’ request for judicial notice, Dkt. No. 8-1, 

because the Court did not rely on the documents in question to reach its disposition.

11/27/2017