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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 DEFENDANT'S 

MOTION TO DISMISS

Re: Dkt. No. 24

On January 16, 2018, the City of San Leandro (“the City”) and Officer Dennis Mally 

(collectively, “Defendants”) moved to dismiss the following causes of action from Plaintiff Ron 

Franklin’s second amended complaint: Plaintiff’s second cause of action for excessive force in 

violation of the Fourth and Fourteenth Amendments; Plaintiff’s third cause of action for 

“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”); and Plaintiff’s fourth cause of action for malicious prosecution under 42 U.S.C. 

§ 1983. Dkt. No. 24 (“Mot.”) at 2; see also Dkt. No. 23 (“SAC”). On January 30, 2018, Plaintiff 

filed an opposition to the motion. Dkt. No. 25 (“Opp.”). On February 6, 2018, Defendants 

replied. Dkt. No. 26 (“Reply”). After carefully considering the parties’ arguments, the Court 

GRANTS IN PART and DENIES IN PART Defendants’ motion.1 

The Court previously dismissed Plaintiff’s Monell and malicious prosecution claims under 

Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for failure to state a claim. See Dkt. No. 22 

 

1

The Court finds this matter appropriate for disposition without oral argument and the matter is 

deemed submitted. See Civil L.R. 7-1(b).
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(“Dismissal Order”) at 3–4, 5–6.2 Specifically, the Court found that (1) Plaintiff’s Monell claim

failed to identify an “official municipal policy or widespread practice concerning K9 officers;” 

and (2) Plaintiff’s malicious prosecution claim did not plausibly suggest malice or the absence of 

probable cause. See id. at 4, 6; Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004)

(setting forth the elements of a malicious prosecution claim under section 1983). The Court 

accordingly dismissed these causes of action from Plaintiff’s first amended complaint, and granted 

Plaintiff leave to amend. Dismissal Order at 7–8; see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

Plaintiff’s amended Monell and malicious prosecution claims suffer from the same factual 

deficits. Though Plaintiff added allegations to his Monell cause of action, those allegations are 

entirely conclusory. See SAC ¶¶ 40–43. Plaintiff again fails to identify a particular municipal 

policy that Defendant Mally acted pursuant to. See id. Plaintiff also fails to state what the City’s 

specific policy or custom is, if any, regarding the use of K9 officers. See AE ex rel. Hernandez v. 

Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (holding that, at the pleading stage, a plaintiff’s 

Monell claim “may not simply recite the elements of a cause of action, but [must] contain 

sufficient allegations of underlying facts” so as to provide the opposing party with fair notice so it 

can defend itself) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). The SAC omits 

specific facts to show that the City: (1) ratified Defendant Mally’s conduct; (2) failed to train 

Defendant Mally or others in the use of K9 officers; or (3) did not properly investigate Plaintiff’s

unlawful seizure and excessive force claims. See SAC ¶ 43. Plaintiff, moreover, has not 

supplemented his complaint with facts establishing the requisite causality. See City of Canton, 

Ohio v. Harris, 489 U.S. 378, 388–89 (1989) (holding that the particular policy or practice must 

be the “moving force” behind Plaintiff’s injury). Despite filing three complaints to date, Plaintiff 

has failed to plead a cognizable Monell claim. Given these repeated failures, the Court dismisses 

Plaintiff’s Monell claim without leave to amend. See Zucco Partners, LLC v. Digimarc Corp., 

 

2

The Court detailed the factual background in its Dismissal Order, and incorporates those 

unchanged facts and the legal analysis from the Dismissal Order here. In this order, the Court 

only discusses the facts and legal standards as necessary to address the new issues raised in the 

second amended complaint and the renewed motion to dismiss.
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552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the Plaintiff has previously been granted leave to 

amend and has subsequently failed to add the requisite particularity to its claims, the district 

court’s discretion to deny leave to amend is particularly broad.”) (quotations and alteration 

omitted).

The SAC similarly fails to state sufficient facts to support Plaintiff’s malicious prosecution 

claim. See Dismissal Order at 6; SAC ¶¶ 50–51. Again, Plaintiff elides how Defendants acted 

with malice to prosecute him: the only facts contained in the complaint pertain to Plaintiff’s 

allegedly unconstitutional arrest. See id.; Mot. at 8. As the Ninth Circuit stated in Lacey v. 

Maricopa Cty., a plaintiff cannot at the pleading state simply recast allegations regarding an 

unlawful arrest “as a claim for malicious prosecution.” 693 F.3d 896, 920 (9th Cir. 2012)

(affirming the district court’s dismissal of the plaintiff’s malicious prosecution claim under Rule 

12(b)(6)). Rather, “where the arrest is not a valid one, an action for malicious prosecution will not 

lie unless some further step is taken, such as bringing the accused before a magistrate for 

determination whether he is to be held.” Id. at 919–20 (quotations omitted). To that end, Plaintiff 

asserts that he “could state with further specificity that he had to defend himself against the 

unwarranted criminal citation for over a year and that he was ultimately brought before a 

magistrate for the determination of criminal consequences related to the citation. . . .” Opp. at 5.

It is unclear why—having recognized that he could plead more—Plaintiff did not do so. See 

Reply at 8.

Because the SAC again fails to adequately plead this claim, the Court dismisses it. Based 

on the assertions in Plaintiff’s opposition, the Court cannot conclude that granting leave to amend 

this claim necessarily would be futile. The Court thus will give Plaintiff one last chance to amend 

this claim only. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quotations and citation 

omitted). Plaintiff’s counsel is directly warned that failing to include facts in the complaint, then 

referencing those facts in briefs, wastes the time and resources of the Court and the parties. All

necessary facts need to be pled in the complaint, and the Court will disregard any future claims in 

pleadings about what “Plaintiff could state with further specificity,” Opp. at 5, if given leave to 

amend. 
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Finally, the Court rejects Defendants’ request to dismiss Plaintiff’s second cause of action 

for excessive force under the Fourth Amendment. See Mot. at 5–6. 3 Contrary to Defendants’ 

suggestion, Plaintiff’s excessive force claim adds additional allegations beyond those stated in his 

first cause of action for unreasonable seizure in violation of the Fourth Amendment. See SAC ¶¶ 

30–39. Though overlapping, those actions are not entirely duplicative of one another. Both

causes of actions may therefore proceed. 

For these reasons, the Court GRANTS IN PART and DENIES IN PART Defendants’ 

renewed dismissal motion. Any third 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

 

3

Separately, Plaintiff admits that he “inadvertently” included a claim for excessive force under the 

Fourteenth Amendment. Opp. at 6. Plaintiff accordingly withdraws this claim. Id. Plaintiff also 

withdraws the malicious prosecution claim against the City, conceding that the City was 

improperly named. Opp. at 5. Again, counsel needs to make these assessments before filing the 

complaint.

April 3, 2018