1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Mussalina Muhaymin, 

Plaintiff, 

v. 

City of Phoenix, et al., 

Defendants. 

No. CV-17-04565-PHX-SMB 

ORDER 

Defendants City of Phoenix, Antonio Tarango, and Officers Oswald Grenier, Kevin 

McGowan, Jason Hobel, Ronaldo Canilao, David Head, Susan Heimbigner, James Clark, 

Dennis Leroux, Ryan Nielsen, and Steven Wong (collectively the “Phoenix Defendants”) 

filed an Amended Motion to Dismiss Plaintiff’s First Amended Complaint based on 

Qualified Immunity (Doc. 43, “Mot.”) and pursuant to Rule 12(b)(6). Plaintiff filed a 

Response (Doc. 50, “Resp.”), and the Phoenix Defendants filed a Reply (Doc. 57, 

“Reply”). Oral argument was held on January 11, 2019. The Court has now considered 

the Motion, Response, and Reply along with arguments of counsel and relevant case law. 

I. BACKGROUND 

This case arises out of the death of Muhammad Abdul Muhaymin Jr. 

(“Muhaymin”). At the time of Muhaymin’s death, he was 43 years old and suffered from 

post-traumatic stress disorder, acute claustrophobia, and schizophrenia. (FAC ¶ 1).1

 On 

January 4, 2017, Muhaymin was at the Maryvale Community Center along with his dog, 

 

1

 Citations to paragraphs in the FAC correspond to the numbered paragraphs beginning 

on page 4 of the FAC. 
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

“Chiquita.” (FAC ¶ 3). Plaintiff asserts that Chiquita was a “service dog,” (FAC ¶ 3), 

while Defendants contend that Chiquita did not qualify as a “service animal.” (Mot. at 12). 

When Muhaymin attempted to use the restroom facilities at the community center, he was 

refused entry by Defendant Tarango because of Chiquita. (FAC ¶¶ 4, 5). Muhaymin and 

Tarango argued and “chest bumped.” (FAC ¶6). The Phoenix Police were called and 

arrived on the scene shortly after. (FAC ¶¶ 7, 9). Upon arrival, Officer Grenier asked 

Muhaymin to see Chiquita’s documentation. (FAC ¶ 12). Muhaymin was permitted to 

enter the restroom after he provided Defendant Officers with his identifying information. 

(FAC ¶¶ 14, 17). Defendant Officers subsequently discovered an outstanding arrest 

warrant against Muhaymin and informed Muhaymin that he was being arrested. (FAC 

¶¶ 21, 23). During the course of the arrest, Defendant Officers and Muhaymin struggled. 

(FAC ¶¶ 31–36). Muhaymin went into cardiac arrest and began vomiting. (FAC ¶ 37). 

Muhaymin was pronounced dead shortly thereafter. 

Plaintiff, Mussalina Muhaymin, sister of Muhammad Abdul Muhaymin Jr. and 

personal representative of his estate, originally filed a complaint on December 8, 2017. 

(Doc. 1). On January 17, 2018, Plaintiff filed a First Amended Complaint against City of 

Phoenix, Antonio Tarango, Officers Oswald Grenier, Kevin McGowan, Jason Hobel, 

Ronaldo Canilao, David Head, Susan Heimbigner, James Clark, Dennis Leroux, Ryan 

Nielsen, Steven Wong, and Doe Supervisors 1-5.2

 (Doc. 16, “FAC”). In the FAC, Plaintiff 

alleges fifteen counts against the Defendants, including claims pursuant to 42 U.S.C. 

§§ 1983 and 12131, et. seq., as well as multiple state law claims. Phoenix Defendants now 

move to dismiss all counts in Plaintiff’s FAC with prejudice. 

II. LEGAL STANDARD 

To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must 

contain a “short and plain statement of the claim showing that the pleader is entitled to 

relief,” so that the defendant has “fair notice of what the . . . claim is and the grounds upon 

which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. 

 

2

 Defendants names are spelled pursuant to the spellings provided by Defendants in the 

instant motion. 
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Gibson, 355 U.S. 41, 47 (1957)); Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) 

“can be based on the lack of a cognizable legal theory or the absence of sufficient facts 

alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 

699 (9th Cir. 1988). A complaint that sets forth a cognizable legal theory will survive a 

motion to dismiss if it contains sufficient factual matter, which, if accepted as true, states 

a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Twombly, 550 U.S. at 570). Facial plausibility exists if the pleader sets forth 

“factual content that allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of 

action, supported by mere conclusory statements, do not suffice.” Id. Plausibility does not 

equal “probability,” but requires “more than a sheer possibility that a defendant has acted 

unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent’ with a 

defendant’s liability, it ‘stops short of the line between possibility and plausibility of 

entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).3

In ruling on a Rule 12(b)(6) motion to dismiss, the well-pled factual allegations are 

taken as true and construed in the light most favorable to the nonmoving party. Cousins v. 

Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 

factual allegations are not given a presumption of truthfulness, and “conclusory allegations 

of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 

v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). 

“As a general rule, ‘a district court may not consider any material beyond the 

pleadings in ruling on a Rule 12(b)(6) motion.’” Lee v. City of Los Angeles, 250 F.3d 668, 

688 (9th Cir. 2001) (quoting Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled 

on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002)). 

 

3

 While the Defendants, at times, appear to conflate the heightened summary judgment 

standard with the applicable Rule 12(b)(6) motion to dismiss standard of review by arguing 

that Plaintiff lacks sufficient evidence to maintain certain claims at this stage, the Court 

will apply the legal standard set forth herein to all claims in its analysis of Defendants’ 

motion to dismiss. See, e.g., Doc. 43 at 9 (Defendants concluding that Count II should be 

dismissed because “[t]here is no evidence officers failed to intervene[.]”). 
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

“[I]f a district court considers evidence outside the pleadings, it must normally convert the 

12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the 

nonmoving party an opportunity to respond.” United States v. Ritchie, 342 F.3d 903, 907 

(9th Cir. 2003); see Fed. R. Civ. P. 12(d). The court may, however, consider “matters of 

judicial notice [ ] without converting the motion to dismiss into a motion for summary 

judgment.” Id. at 908. A “court may take judicial notice of matters of public record . . . , 

[b]ut a court cannot take judicial notice of disputed facts contained in such public records.” 

Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (quotation marks 

and citations omitted). The Court may also consider evidence outside of the pleadings 

where the “authenticity is not contested, and the plaintiff’s complaint necessarily relies” 

on the evidence. Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th 2013). If the Court finds 

that the evidence may not be considered when ruling on a 12(b)(6) motion to dismiss, the 

Court has “discretion whether to consider the extrinsic evidence and convert the motion to 

dismiss into a motion for summary judgment pursuant to Rule 12(d), or to merely exclude 

the evidence.” Sternberger v. Gilleland, No. CV-13-02370-PHX-JAT, 2014 WL 3809064, 

at *4 (D. Ariz. Aug. 1, 2014) (citing Hamilton Materials, Inc. v. Dow Chem. Corp., 494 

F.3d 1203, 1207 (9th Cir. 2007)). 

III. ANALYSIS 

A. Evidence Outside The Pleadings 

Phoenix Defendants attached two exhibits to the instant motion which contain 

evidence outside of the pleadings. Exhibit 1 contains videos taken from Defendant 

Officers’ body-cameras (the “Videos”), and Exhibit 2 consists of Phoenix Police 

Department Incident Report No. 201700000019424 (the “Incident Report”). (Mot. at 4 

n.13–14). Plaintiff objects to the Court’s consideration of the Incident Report arguing that 

it is self-serving, contains inadmissible hearsay, and is not authenticated. (Resp. at 7). In 

United States v. Ritchie, the Ninth Circuit held that courts “may take judicial notice of some 

public records, including the ‘records and reports of administrative bodies.’” 342 F.3d at 

909 (quoting Interstate Nat. Gas Co. v. S. Cal. Gas Co., 209 F.2d 380, 385 (9th Cir.1953)). 
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

The Ninth Circuit further articulated that such a holding “does not mean that all evidence 

related to this case . . . fits within the judicial notice exception,” citing to a Second Circuit 

case that held “the existence and content of a police report are not properly the subject of 

judicial notice.” Id. (citing Pina v. Henderson, 752 F.2d 47, 50 (2d Cir.1985)); see also 

Ledet v. Gibson, No. 3:06-CV-00179-LRH (VPC), 2007 WL 777686, at *4 (D. Nev. Mar. 

9, 2007) (declining to consider police reports and noting that “the Ninth Circuit has inferred 

that courts should not take judicial notice of police reports”); Victoria v. City of San Diego, 

326 F. Supp. 3d 1003, 1012 (S.D. Cal. 2018) (declining to consider more than the 

“reasonably undisputed facts” in a police report even after plaintiff referenced the report in 

her complaint). The Court will not consider the Incident Report and disregards facts from 

the Incident Report added by Defendants. 

Phoenix Defendants also assert that the Court may consider the Videos as they are 

matters of public record and they can be considered without converting this to a motion for 

summary judgment. (Reply at 4). As discussed above the court can consider additional 

evidence if it is a matter of public record and not disputed. Additionally, there are other 

courts in this Circuit that have considered video from body-cameras in analyzing similar 

motions to dismiss because the “complaints necessarily relie[d] on the circumstances 

surrounding” the incident alleged in the complaint. Lihosit v. Flam, No. CV-15-01224-

PHX-NVW, 2016 WL 2865870, at *3 (D. Ariz. May 17, 2016); see also Covert v. City of 

San Diego, No. 15-CV-2097 AJB (WVG), 2017 WL 1094020, at *5 (S.D. Cal. Mar. 23, 

2017) (considering officer body-camera videos and transcripts of the videos in a motion to 

dismiss as they were “incorporated into the FAC by reference and [were] documents that 

partially form[ed] the basis of Plaintiff’s complaint”). 

Plaintiff objects to the consideration of the Videos because they are incomplete, but 

later asserts that they are “potentially incomplete.” (Resp. at 11). They base this on their 

allegation that “significant portions appear to have been intentionally obstructed.” (Resp. 

at 10). The fact that the view from the cameras may have been obstructed does not 

invalidate the authenticity of the Videos, but rather may make the Videos less valuable. 
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Additionally, Plaintiff asserts that Defendants have failed to authenticate the Videos. In 

their Reply, Defendants submitted an affidavit to authenticate that the 13 Videos are 

complete, unredacted, and unedited copies, (Reply, Exhibit 1), which distinguishes this 

case from Brown v. City of San Diego, No. 3:17-CV-00600-H-WVG, 2017 WL 3993955, 

at *2 (S.D. Cal. Sept. 11, 2017), cited by Plaintiff in its Response. The Court will consider 

the Videos.4

In reviewing the Videos, the Court notes that it is clear that an extensive physical 

struggle occurred between the Defendant Officers and Muhaymin. However, without 

outside testimony, the angles of the Defendant Officers’ body-cameras do not provide a 

definitive answer to what occurred on that day. The beginning stages of the arrest that 

occurred near the building appear in Videos 1–5. The Defendant Officers told Muhaymin 

to stop as he exited the building because there was a warrant, (Video 1 at 18:18) (Video 2 

at 11:30) (Video 4 at 9:19) (Video 5 at 11:31), but in reviewing what ensued shortly 

thereafter, the movements of Defendant Officers and Muhaymin are difficult to define 

because of the angles of the cameras or because the cameras were obstructed or faced away 

from the Defendant Officers and Muhaymin. What occurred after Defendant Officers 

arrived at the vehicle with Muhaymin and began to search and further restrain him appears 

in Videos 1, 3, 5, 7, 8, and 11. The movements of Defendant Officers and Muhaymin are 

again difficult to define due to obstructed cameras or angles. (Video 1 at 19:35) (Video 3 

at 3:00) (Video 5 at 16:00) (Video 7 at 0:22) (Video 8 at 0:06) (Video 11 at 23:45). The 

remaining Videos begin after Defendant Officers had already begun CPR (6, 9, 10, and 12) 

or only record conversations between Defendant Officers and witnesses (13). 

B. Counts I and VII – Excessive Force 

Plaintiff brings Counts I and VII pursuant to 42 U.S.C. § 1983 and A.R.S. §§ 12-611 

et. seq., 14-3110, 13-410 for excessive force against Defendant Officers and Doe 

Supervisors 1–5. 

 

4

 The Court will limit its review of the Videos with this motion to the interaction between 

Defendants and Muhaymin. The Court will not consider statements between Defendant 

Officers and bystanders for the same reasons it is not considering the Incident Report. 
- 7 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Claims of excessive force during an arrest are analyzed under the Fourth 

Amendment. Graham v. Connor, 490 U.S. 386, 394 (1989). In determining whether a law 

enforcement officer used excessive force in violation of the Fourth Amendment, the Court 

considers “whether the officers’ actions are ‘objectively reasonable’ in light of the facts 

and circumstances confronting them, without regard to their underlying intent or 

motivation.” Id. at 397. “The calculus of reasonableness must embody allowance for the 

fact that police officers are often forced to make split-second judgments—in circumstances 

that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary 

in a particular situation.” Id. at 396–397. “Determining the reasonableness of an officer’s 

actions is a highly fact-intensive task for which there are no per se rules.” Torres v. City 

of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011). In evaluating the “objective 

reasonableness” of a use of force, the Court considers: “(1) the severity of the intrusion on 

the individual’s Fourth Amendment rights by evaluating the type and amount of force 

inflicted, (2) the government’s interest in the use of force, and (3) the balance between the 

gravity of the intrusion on the individual and the government’s need for that intrusion.” 

Lowry v. San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017) (internal quotation marks 

omitted). The Court considers “the totality of the circumstances, including (1) the severity 

of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the 

officers or others, and (3) whether the suspect was actively resisting arrest or attempting to 

evade arrest by flight.” Torres, 648 F.3d at 1124 (citing Graham, 490 U.S. at 396). 

Further, Ninth Circuit cases hold that “excessive force claims may proceed even when the 

plaintiff cannot identify the defendant who assaulted him or allege the actions of specific 

defendants.” Hernandez v. Ryan, No. CV-16-03699-PHX-DGC (BSB), 2018 WL 

2009053, at *10 (D. Ariz. Apr. 30, 2018) (citing Santos v. Gates, 287 F.3d 846, 851–852 

(9th Cir. 2002); Rutherford v. City of Berkeley, 780 F.2d 1444, 1448 (9th Cir. 1986)). 

Phoenix Defendants assert that “[t]he Amended Complaint does not identify 

conduct demonstrating a specific action of the Phoenix Police was an excessive-force 

violation or caused Muhaymin’s death.” (Mot. at 8). In opposition, Plaintiff points to 
- 8 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

various paragraphs of the FAC, including ¶¶ 31–34 and ¶¶ 36–39. (Resp. at 16–17). 

Plaintiff alleges that Muhaymin was “forced . . . to the ground” and “can be heard yelling, 

‘Okay!’ and ‘I can’t breathe’ as multiple Defendant Officers placed the weight of their 

bodies on his head, back, arms, and legs”; that “[a]fter wrestling Muhaymin to the ground, 

one of the Defendant Officers placed his knee on Muhaymin’s head while another 

Defendant Officer placed him in handcuffs”; that “Defendant Officers again wrestle[d] 

Muhaymin, who had already been restrained, back down to the ground”; and that “[s]everal 

Defendant Officers placed their weight on top of Muhaymin, while one Defendant Officer 

requested ‘hobbles’ in order to restrict Muhaymin’s ability to walk.” (FAC ¶¶ 31–33, 35–

36). Plaintiff also alleges that “Muhaymin went into cardiac arrest and began vomiting” 

due to the excessive force and that the “unreasonable, excessive, and [conscience]-

shocking physical force to the person of Muhaymin” caused his death. (FAC ¶¶ 37, 43). 

In response, Phoenix Defendants contend that the acts were not excessive “in the context 

of Muhaymin’s pushing, kicking, and thrashing about while trying to escape arrest.” 

(Reply at 10). 

In considering the totality of the circumstances alleged surrounding the use of force 

by Defendant Officers, the Court first notes that Muhaymin was being arrested on a warrant 

for failure to appear, not for the alleged assault. (Mot. at 17). The Court also notes that 

neither Plaintiff nor Defendants have indicated that Muhaymin was armed. While 

Defendants assert that Muhaymin had just committed an assault of a government employee, 

(Mot. 8, 14, 17), Plaintiff denies that Muhaymin committed such an assault. (Resp. at 12). 

Rather Plaintiff alleges that the assault was actually committed against Muhaymin. (Resp. 

at 12). Assuming the truth of Plaintiff’s allegations, these facts weigh in Plaintiff’s favor. 

Lastly, the Court considers whether Muhaymin was actively resisting arrest. While 

Defendant asserts that Muhaymin resisted arrest, (Mot. at 6, 8), Plaintiff is silent regarding 

whether Muhaymin resisted arrest. Defendants assertion is likely based on the Incident 

Report, which the Court will not consider with this motion.5

 While the Videos confirm the 

 

5

 Defendants note in their motion that the recital of facts is “gleaned from” the Incident 

Report. (Mot. at 4 n.14). 
- 9 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

extensive struggles between Muhaymin and Defendant Officers during the course of the 

arrest, the angles of the Defendant Officers’ body cameras do not provide a complete 

picture of the events. Without further fact development, the Videos alone do not indicate 

whether Muhaymin’s resistance warranted the force used by Defendant Officers. 

Therefore, assuming the truth of Plaintiff’s allegations, and viewing the allegations 

in the light most favorable to the Plaintiff, the Court finds that Plaintiff has stated a 

plausible claim for excessive force, and that dismissal of Counts I and VII is not warranted 

at this stage of the proceedings. 

C. Count II – Failure to Protect/Intervene 

Count II is brought pursuant to 42 U.S.C. § 1983 for failure to protect/intervene 

against Defendant Officers and Doe Supervisors 1–5. “Police officers have a duty to 

intercede when their fellow officers violate the constitutional rights of a suspect or other 

citizen.” Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000), as amended (Oct. 

31, 2000). “Importantly, however, officers can be held liable for failing to intercede only 

if they had an opportunity to intercede.” Id. “An officer who fails to intercede is liable for 

the preventable harm caused by the actions of the other officers where that officer observes 

or has reason to know: (1) that excessive force is being used; (2) that a citizen has been 

unjustifiably arrested or (3) that any constitutional violation has been committed by a law 

enforcement official.” Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994) (citations omitted). 

Plaintiff relies on Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) 

to explain that elements of a pretrial detainee’s failure-to-protect claim. (Resp. at 17–18). 

However, that case involves a detainee’s right to be free from violence by other inmates. 

Castro, 833 F.3d at 1064. This case involves a completely different scenario where the 

alleged constitutional violation occurred while effectuating a valid arrest. 

Defendants argue that Count II should be dismissed because “[t]he force used 

against Muhaymin was both reasonable and necessary, given his behavior.” (Mot. at 9). 

Defendants also argue that “plaintiff cannot show Muhaymin’s arrest was unjustified,” and 

that there is “no evidence officers failed to intervene on Muhaymin’s behalf during his 
- 10 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

arrest.” Id. However, given the Court’s above ruling on the excessive force claims, there 

remains a question as to whether the force used was reasonable and necessary. 

Defendants’ arguments fail to show that Plaintiff has not alleged enough facts to 

state a claim to relief that is “plausible on its face.” Iqbal, 556 U.S. at 678. Rather 

Defendants arguments go to whether the Defendant Officers used excessive force. Plaintiff 

alleges that (1) Defendant Officers arrived at the Community Center (FAC ¶¶ 8–9), (2) 

Defendant Officers used excessive force (FAC ¶¶ 31–33, 35–36), (3) none of the Defendant 

Officers “took reasonable steps to protect Muhaymin from the objectively unreasonable 

and conscience shocking excessive force of other Defendant Officers” (FAC ¶ 53), and (4) 

Defendant Officers were in a position to intervene (FAC ¶ 53). The Court therefore denies 

Phoenix Defendants Motion to Dismiss Count II. 

D. Counts IV, V, VI – Supervisor and Municipal Liability 

Pursuant to 42 U.S.C. § 1983, Plaintiff brings Count IV against Doe Supervisors 1–

5 for supervisor liability, Count V against City of Phoenix for municipal liability/failure to 

train, and Count VI against City of Phoenix for municipal liability/unlawful policies, 

practices, and/or customs. 

“Neither state officials nor municipalities are vicariously liable for the deprivation 

of constitutional rights by employees.” Flores v. County of Los Angeles, 758 F.3d 1154, 

1158 (9th Cir. 2014) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). A 

supervisor may, however, be liable in their individual capacity “if there exists either (1) his 

or her personal involvement in the constitutional deprivation, or (2) a sufficient causal 

connection between the supervisor’s wrongful conduct and the constitutional violation.” 

Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (quoting Hansen v. 

Black, 885 F.2d 642, 646 (9th Cir. 1989)). “A supervisor can be liable in his individual 

capacity for his own culpable action or inaction in the training, supervision, or control of 

his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that 

showed a reckless or callous indifference to the rights of others.” Watkins v. City of 

Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998) (internal alteration and quotation marks 
- 11 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

omitted). 

A municipality may be liable under § 1983 if a plaintiff shows “that a policy or 

custom led to the plaintiff’s injury,” and “that the policy or custom . . . reflects deliberate 

indifference to the constitutional rights of its inhabitants.” Castro, 833 F.3d at 1073 (9th 

Cir. 2016) (citations and quotation marks omitted); see also Connick v. Thompson, 563 

U.S. 51, 60 (2011) (“Plaintiffs who seek to impose liability on local governments under 

§ 1983 must prove that ‘action pursuant to official municipal policy’ caused their injury.”). 

A municipality may only be held liable for the inadequacy of police training if 

Plaintiff shows “(1) he was deprived of a constitutional right, (2) the [municipality] had a 

training policy that amounts to deliberate indifference to the constitutional rights of the 

persons’ with whom its police officers are likely to come into contact; and (3) his 

constitutional injury would have been avoided had the [municipality] properly trained those 

officers.” Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007) (quotation 

marks, brackets, and citations omitted); see also City of Canton v. Harris, 489 U.S. 378, 

388 (1989) (municipality may only be held liable for the inadequacy of police training 

“where the failure to train amounts to deliberate indifference to the rights of persons with 

whom the police come into contact”). In order to prevail on a failure to train claim against 

a municipality, Plaintiff must therefore “demonstrate a ‘conscious’ or ‘deliberate’ choice 

on the part of the municipality[.]” Price v. Sery, 513 F.3d 962, 973 (9th Cir. 2008). 

“‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a municipal 

actor disregarded a known or obvious consequence of his action.” Connick, 563 U.S. at 

61. However, a “municipality’s culpability for a deprivation of rights is at its most tenuous 

where a claim turns on a failure to train.” Id. “A pattern of similar constitutional violations 

by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for 

purposes of failure to train.” Id. at 62 (quoting Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. 

Brown, 520 U.S. 397, 409 (1997)). “After all, ‘[w]ithout notice that a course of training is 

deficient in a particular respect, decisionmakers can hardly be said to have deliberately 

chosen a training program that will cause violations of constitutional rights.’” Hein v. City 
- 12 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

of Chandler, No. CV-15-01162-PHX-DJH, 2016 WL 11530432, at *6 (D. Ariz. Sept. 16, 

2016) (quoting Connick, 563 U.S. at 62). 

Notwithstanding the different legal standards applicable to supervisor and 

municipal liability, Defendants combine their arguments moving for dismissal of all three 

counts. Defendants argue that Counts IV, V, and VI (1) do not provide fact-specific 

allegations of a pattern of inappropriate conduct, (2) do not identify specific, nonspeculative steps the Defendants could have taken to stop the alleged behavior, (3) do not 

identify a constitutionally protected right that was violated by Defendants, (4) do not 

identify specific Phoenix Police Department policies, customs, or usages violating 

Plaintiff’s constitutional rights, and (5) do not demonstrate how the alleged constitutional 

deprivations are causally connected to a final, unreviewable Phoenix policy. (Mot. at 11). 

On the claim of supervisor liability, Plaintiff alleges that the Doe Supervisors “failed 

to prevent the individual defendants from – and/or otherwise directed them to – use 

unreasonable, excessive and/or deadly force where not objectively reasonable or necessary, 

refuse[d] to protect Muhaymin from the application of unreasonable, excessive and/or 

deadly force at the hands of their fellow officers, and disregard[ed] the federally mandated 

requirement not to discriminate against individuals with disabilities and/or require proof 

that an animal is a certified or licensed service animal.” (FAC ¶ 73). Plaintiff alleges that 

Doe Supervisors’ “failure to prevent the individual defendants from depriving Muhaymin 

of his Constitutional and federally protected rights was so closely related to the deprivation 

of Muhaymin’s rights as to be the moving force that caused his death.” (FAC ¶ 74). 

Plaintiff’s complaint is entirely void of factual details regarding the Doe Supervisors. See 

Wilson ex rel. Bevard v. City of W. Sacramento, No. CIV. 2:13-2550 WBS, 2014 WL 

1616450, at *3 (E.D. Cal. Apr. 22, 2014) (finding allegations of supervisor liability 

“conclusory” and lacking “the factual support that Iqbal requires”). 

On the claim of failure to train, Plaintiff alleges that the training policies “were not 

adequate to prevent the gross violation of Muhaymin’s federally protected rights, which 

led to his death,” and that Defendants “were deliberately indifferent to the substantial risk 
- 13 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

that its policies were inadequate to prevent violations by its employees and/or were 

otherwise deliberately indifferent to the known or obvious consequences of its failure to 

train[.]” (FAC ¶¶ 80–81). Plaintiff argues that she “need only allege that the City was 

deliberately indifferent to the rights of its citizens.” (Resp. at 20). That is not the correct 

pleading standard. Plaintiff does not cite to what the training practice was, how it was 

deficient, or how the training practice caused Plaintiff’s harm. See Hein, 2016 WL 

11530432, at *6 (citing Young v. City of Visalia, 687 F. Supp. 2d 1141, 1149–50 (E.D. Cal. 

2009)). 

On the claim of unlawful policies, practices, and/or customs, Plaintiff alleges that 

“the City of Phoenix had a policy, practice and/or custom of ignoring misconduct by 

officers despite knowledge of the violations by policy-making officials who knew or had 

reason to know of the violations,” and that the “widespread policy, practice and/or custom 

caused the deprivation of Muhaymin’s rights by the individual Defendants [and] is so 

closely related to the deprivation of Muhaymin’s rights as to be the moving force that 

caused Muhaymin’s death.” (FAC ¶¶ 87–88). Again, Plaintiff does not specify what 

custom, practice, or policy was in play on the date of this incident, whether it was an official 

policy, practice or custom, or how it led to injury. See Hein, 2016 WL 11530432, at *6; 

see also Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012) (holding that plaintiffs’ 

allegations were “bald” and “conclusory” when plaintiffs did not allege a “specific policy 

implemented by the Defendants or a specific event or events instigated by the Defendants 

that led to the[ ] purportedly unconstitutional” actions). 

For all of Plaintiff’s claims of supervisor and municipal liability, the allegations are 

no more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements,” which do not meet the pleading standard articulated in Iqbal. 556 

U.S. at 678. Plaintiff has done no more than recite the elements of each claim, and has 

failed to plead sufficient factual details, or any factual details, regarding supervisor 

liability, unlawful policies/customs, or failure to train that would make such claims 

“plausible.” Id. Counts IV, V, and VI will be dismissed for failure to state a claim. 
- 14 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

E. Counts III, XI, XII, and XIII 

Counts III and XIII allege claims for discrimination pursuant to Title II of the 

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131, et. seq., and the Arizona 

Civil Rights Act (“ACRA”) against Defendant Tarango, Defendant Officers, Doe 

Supervisors 1–5, and City of Phoenix. Counts XI and XII allege claims pursuant to A.R.S. 

§ 12-611 et. seq. and § 14-3110 for negligence and gross negligence against Defendant 

Tarango, Defendant Officers, Doe Supervisors 1–5, and City of Phoenix. The substance 

of Plaintiff’s claims under these counts is that Muhaymin was denied access to the 

community center because he had a service dog. Additionally, Plaintiff claims that the 

named defendants discriminated against Muhaymin when they asked for proof that 

Chiquita was a certified or licensed service animal. 

Phoenix Defendants assert that Counts III, XI, XII, and XIII should be dismissed 

because “Plaintiff’s ADA and ACRA discrimination claims fail as a matter of law.” (Mot. 

at 13). Phoenix Defendants assert that Muhaymin’s dog “does not qualify as a service 

animal,” that the attempt to remove Muhaymin’s dog “was only because [the dog] was not 

properly leashed,” and “[e]ven if Ch[i]quita was a service animal, Muhaymin was required 

to comply with all local dog-licensing and registration laws.” (Mot. at 12–13). 

1. Counts III and XIII – ADA and ACRA 

“To prove a public program or service violates Title II of the ADA, a plaintiff must 

show: (1) he is a ‘qualified individual with a disability’; (2) he was either excluded from 

participation in or denied the benefits of a public entity’s services, programs or activities, 

or was otherwise discriminated against by the public entity; and (3) such exclusion, denial 

of benefits, or discrimination was by reason of his disability.” Weinreich v. L.A. Cty. 

Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (citations omitted). Under the 

ADA, “a public entity shall modify its policies, practices, or procedures to permit the use 

of a service animal by an individual with a disability.” 28 C.F.R. § 35.136. A service 

animal is “any dog that is individually trained to do work or perform tasks for the benefit 

of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or 
- 15 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

other mental disability.” 28 C.F.R. § 35.104. 

The Arizonans with Disabilities Act (“AzDA”), A.R.S. §§ 41–1492 to 41–1492.12 

“is intended to be consistent with the ADA.”6

 Castle v. Eurofresh, Inc., 734 F. Supp. 2d 

938, 945 (D. Ariz. 2010). The AzDA prohibits discrimination by public accommodation 

and commercial facilities as follows: “No individual may be discriminated against on the 

basis of disability in the full and equal enjoyment of the goods, services, facilities, 

privileges, advantages or accommodations of any place of public accommodation by any 

person who owns, leases, leases to others or operates a place of public accommodation.” 

A.R.S. §41-1492.02(A). 

 While Defendants raise questions of fact that may go to the merits of the claim, 

Plaintiff’s allegations do survive the 12(b)(6) standard for alleging facts sufficient to 

support a claim. Plaintiff alleges that Muhaymin carried a service dog named Chiquita to 

“alleviate the symptoms of his mental impairment,” (FAC ¶ 2), that Defendants “were 

made aware that ‘Chiquita’ was a service dog used by Muhaymin to alleviate his mental 

disabilities,” (FAC ¶ 64), that “Officer Grenier asked Muhaymin to see his dog’s 

documentation,” (FAC ¶ 12), and that Muhaymin was denied access “because of his service 

dog.” (FAC ¶ 97). 

Defendants also argue that they were allowed to exclude Chiquita because she had 

a history of bad behavior and was not properly leashed. (Mot. at 12–13). Defendants rely 

on A.R.S. §11-1024(B), 28 C.F.R. 35.136(b), 35.139(a), and a statement of facts regarding 

Chiquita’s behavior that appears nowhere in the FAC. Under 28 C.F.R. 35.136(b), a public 

entity is permitted to ask an individual to remove a service dog if the animal “is out of 

control and the animal’s handler does not take effective action to control it.” See also 

A.R.S. §11-1024(B) (permitting a public place to exclude a service animal under certain 

circumstances, including when the animal “poses a direct threat to the health or safety of 

 

6

 “The Arizonans with Disabilities Act [AzDA], A.R.S. 41-1492 et seq., is included within 

the Arizona Civil Rights Act [ACRA], A.R.S. 41-1401 et seq.” Wagner v. Maricopa 

County, No. CV 07-00819-PHX-EHC, 2009 WL 10673411, at *2 n.3 (D. Ariz. Feb. 12, 

2009). 
- 16 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

others” and when the animal “is out of control and the animal’s handler does not take 

effective action to control the animal”). In reading the FAC, there is nothing to support a 

finding that the dog was acting aggressively at the time Muhaymin attempted to enter the 

community center restroom, and the Videos show Muhaymin holding Chiquita. Nor is 

there anything in the FAC indicating that the dog had a history of bad behavior. There 

were statements made in the Videos by more than one person that Chiquita had previously 

tried to bite them. Whether this is enough to create an exception is a factual dispute not 

appropriate for a motion to dismiss. Furthermore, only 28 C.F.R. 35.136 requires a service 

dog to be leashed, but it also provides an exception if the use of the leash would interfere 

with the service animal’s safe, effective performance of work or tasks. There are no facts 

available to determine if a leash was required or if the exception applied. 

Taking Plaintiff’s allegations that Muhaymin’s dog was a “service dog” as true, and 

construing the allegations in the light most favorable to the Plaintiff, the Court accordingly 

denies Defendants’ motion to dismiss Counts III and XIII. 

2. Counts XI and XII 

In their motion, Defendants do not distinguish Counts XI and XII from the analysis 

for Counts III and XIII and offer no analysis specific to these counts. In response to 

Defendants’ request to dismiss Counts XI and XII, Plaintiff notes that “even if Plaintiff’s 

discrimination claims fail . . . the negligence and/or gross negligence alleged in Counts XI 

and XII should not be dismissed in their entirety as they are only based in part on the 

alleged discrimination.” (Resp. at 21). Defendants do not raise any other reasons why 

these counts should be dismissed other than the reasons discussed above concerning the 

ADA and ACRA claims. Accordingly, the Court denies Defendants’ request to dismiss 

Counts XI and XII. 

F. Counts VIII, IX, X, XIV, and XV 

Defendants contend that Plaintiff’s “state-law claims are barred by her failure to 

comply with the notice-of-claim statute.” (Mot. at 16). Specifically, Defendants assert 

that “[t]he Notice provides no facts or details identifying what the Amended Complaint 
- 17 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

now describes as Muhaymin’s wrongful-death/survival actions for battery [Count VIII], 

intentional infliction of emotional distress [Count IX], negligent infliction of emotional 

distress [Count X], state-law negligent hiring, supervision, retention and training [Count 

XIV], and state-law civil conspiracy [state-law components of Count XV].” (Mot. at 16). 

“Before filing a claim against a public entity or public employee, a claimant must 

serve a Notice of Claim containing sufficient facts to permit the entity or employee to 

understand the basis for the claimed liability.” Riley v. City of Buckeye, No. 1 CA-CV 17-

0306, 2018 WL 2440249, at *2 (Ariz. Ct. App. May 31, 2018) (citing A.R.S. § 12–

821.01(A)). “The notice of claim requirements . . . serve ‘to allow the public entity to 

investigate and assess liability, to permit the possibility of settlement prior to litigation, and 

to assist the public entity in financial planning and budgeting.’” Falcon ex rel. Sandoval 

v. Maricopa County, 144 P.3d 1254, 1256 (Ariz. 2006) (quoting Martineau v. Maricopa 

County, 86 P.3d 912, 915–16 (Ariz. App. 2004)). “The plain text of the statute is clear that 

§ 12–821.01 requires a claimant to give a prospective public entity defendant notice of 

facts underlying the claim.” Watson-Nance v. City of Phoenix, No. CV-08-1129-PHXROS, 2009 WL 792497, at *6 (D. Ariz. Mar. 24, 2009). “[A] notice of claim does not limit 

Plaintiffs to the legal theories identified therein,’” and “need not be a prelude to substantive 

legal briefing.’” Id. (citations and internal quotation marks omitted). 

Plaintiff’s Notice of Claim (Reply, Exhibit 2) lists specific factual allegations, 

similar to the factual allegations listed in the FAC. In addition to describing the encounter 

between Muhaymin and Defendants, the Notice of Claim also includes the names of 

individuals involved, the date of the alleged violations, and the address where the alleged 

violation occurred. Plaintiff’s Notice includes sufficient facts to permit Defendants “to 

understand the basis on which liability is claimed” for Counts VIII, IX, X, XIV, and the 

state law components of count XV. See A.R.S. § 12-821.01. 

Accordingly, Phoenix Defendants motion to dismiss Counts VIII, IX, X, XIV and 

part of Count XV is denied. 

/// 
- 18 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

G. Count XV 

Plaintiff alleges that Defendant Tarango and a least two Defendant Officers agreed 

and conspired to violate Muhaymin’s statutory, common law, and Constitutional rights. 

(FAC ¶ 153). Plaintiff then talks about a conversation from the Videos where Defendant 

Officers and Tarango are discussing a plan to have Muhaymin arrested and banned from 

the Community Center. (FAC ¶ 154). 

Plaintiff alleges both state and federal claims for civil conspiracy. Under Arizona 

law, “[f]or a civil conspiracy to occur two or more people must agree to accomplish an 

unlawful purpose or to accomplish a lawful object by unlawful means, causing 

damages.” Wells Fargo Bank v. Arizona Laborers, Teamsters and Cement Masons Local 

No. 395 Pension Trust Fund, 38 P.3d 12, 36 (Ariz. 2002). Under 42 U.S.C. § 1985(3), “a 

plaintiff must allege and prove four elements: (1) a conspiracy; (2) for the purpose of 

depriving, either directly or indirectly, any person or class of persons of the equal 

protection of the laws, or of equal privileges and immunities under the laws; and (3) an act 

in furtherance of this conspiracy; (4) whereby a person is either injured in his person or 

property or deprived of any right or privilege of a citizen of the United States.” deParrie 

v. Hanzo, No. CIV. 99-987-HA, 2000 WL 900485, at *3 (D. Or. Mar. 6, 2000), aff’d, 5 F. 

App’x 601 (9th Cir. 2001). 

Defendants assert that the civil conspiracy claim “fails as a matter of law” based on 

“probable cause to arrest” an individual being and absolute defense to a civil-conspiracy 

claim. (Mot. at 17). Plaintiff responds by asserting that she “has never alleged false arrest 

as a basis for any of her allegations,” and that the alleged “unlawful acts were those taken 

in the process of arresting Plaintiff, not the arrest itself.” (Resp. at 27). 

In this case, one of the allegations is that the Defendants conspired to have 

Muhaymin arrested. (FAC ¶ 154). Yet, there is no dispute that there was an outstanding 

warrant for Muhaymin’s arrest so the Defendant Officers had probable cause to arrest. The 

arrest was not unlawful and cannot be the basis of this conspiracy claim. See Russo v. City 

of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007). 
- 19 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Plaintiff argues that the unlawful acts used as the basis for the conspiracy claim 

“were those taken in the process of arresting Plaintiff, not the arrest itself”. (Resp. at 27). 

It is not clear what that means, but the Court presumes that it relates to the facts underlying 

the excessive force claims. There are no facts to support this argument in the FAC. The 

only facts alleged relate to a discussion about arresting Muhaymin, ie, “discussing their 

plan to have Muhaymin arrested and banned from the Community Center.” (FAC ¶ 154). 

There are no facts supporting a claim that the Defendant Officers talked about and agreed 

how they were going to arrest Muhaymin or how much force they were going to use. Count 

XV will be dismissed in its entirety. 

H. Qualified Immunity 

 Phoenix Defendants also assert that Plaintiff’s federal-law claims (Counts I-VI and 

the federal law portion of Count XV) should be dismissed because the Phoenix Defendants 

are entitled to qualified immunity. (Doc. 43 at 13); (Reply at 7). As noted above, Counts 

IV, V, VI, and XV have been dismissed for failure to state a claim. The only remaining 

counts properly subject to a qualified immunity analysis are Count I (excessive force), 

Count II (failure to protect/intervene), and Count III (ADA discrimination). See Johnson 

v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1171 (9th Cir. 2013) (holding that the 

doctrine of qualified immunity does not apply to state law claims). 

‘“Determining whether officials are owed qualified immunity involves two 

inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, 

the facts alleged show the officer’s conduct violated a constitutional right; and (2) if so, 

whether the right was clearly established in light of the specific context of the case.’” 

O’Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016) (quoting Krainski v. Nevada ex rel. 

Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 970 (9th Cir.2010)). Judges 

“should be permitted to exercise their sound discretion in deciding which of the two prongs 

of the qualified immunity analysis should be addressed first in light of the circumstances 

in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). 

When a motion to dismiss brings a qualified immunity claim, the inquiry “raises 
- 20 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

special problems for legal decision making.” Keates v. Koile, 883 F.3d 1228, 1234 (9th 

Cir. 2018). “On the one hand, we may not dismiss a complaint making a claim to relief 

that is plausible on its face . . . [b]ut on the other hand, defendants are entitled to qualified 

immunity so long as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Id. at 1234–35 

(citations and internal quotation marks omitted). The inquiry then becomes “whether the 

complaint alleges sufficient facts, taken as true, to support the claim that the officials’ 

conduct violated clearly established constitutional rights of which a reasonable officer 

would be aware ‘in light of the specific context of the case.’” Id. at 1235 (quoting Mullenix 

v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)). Dismissal of the claims is not warranted 

if the complaint “contains even one allegation of a harmful act that would constitute a 

violation of a clearly established constitutional right.” Id. (citation omitted); see also 

O’Brien, 818 F.3d at 936. However, a court’s “decision at the motion-to-dismiss stage 

sheds little light on whether the government actors might ultimately be entitled to qualified 

immunity” at a later stage in the proceedings. Id. 

In determining whether a constitutional right was clearly established at the time of 

the alleged violation, “a case directly on point” is not required, “but existing precedent 

must have placed the statutory or constitutional question beyond debate.” Mullenix, 136 

S. Ct. at 308 (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011)); see also Kisela v. 

Hughes, 138 S. Ct. 1148, 1153 (2018) (“[P]olice officers are entitled to qualified immunity 

unless existing precedent ‘squarely governs’ the specific facts at issue”). While “general 

statements of the law are not inherently incapable of giving fair and clear warning to 

officers,” courts may not deny qualified immunity by simply stating “that an officer may 

not use unreasonable and excessive force.” Kisela, 138 S. Ct. at 1153. The Court must 

undertake this inquiry “in light of the specific context of the case, not as a broad general 

proposition.” Mullenix, 136 S. Ct. at 308 (quoting Brosseau v. Haugen, 543 U.S. 194, 198 

(2004)). Furthermore, the Supreme Court has “repeatedly told courts—and the Ninth 

Circuit in particular—not to define clearly established law at a high level of generality.” 
- 21 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Kisela, 138 S. Ct. at 1152 (citations and internal quotation marks omitted). 

1. Count I (Excessive Force) and Count II (Failure to Protect/Intervene) 

In considering the first part of the qualified immunity test, the Court must determine 

if Plaintiff’s complaint alleges sufficient facts, taken as true, to support a claim that 

Defendant Officers used excessive force during the course of the arrest. For the reasons 

stated above, and at this stage in the litigation, Plaintiff has sufficiently alleged facts to 

support a claim of excessive force. 

Defendants assert that in analyzing the second prong of the test, Plaintiff “must 

show through established case law defendants used excessive force against a man, who 

was high on methamphetamine, with an uncontrolled dog, who assaulted a government 

employee, and then actively resisted legitimate arrest on a valid warrant, who later died in 

[ ] custody.” (Mot. at 14). This statement, however, fails to take the allegations of Plaintiff 

as true, and fails to view the allegations in the light most favorable to Plaintiff. First, 

nowhere in the FAC does the Plaintiff allege that Muhaymin was high on 

methamphetamine, nor does Muhaymin assert such a statement in the Videos. Second, no 

party contests that Chiquita was unleashed, but Plaintiff does argue that the lack of leash 

does not equate to a finding that Chiquita was not under control. Third, while Defendant 

asserts that Muhaymin assaulted a government employee, Plaintiff alleges exactly the 

opposite—that Muhaymin was assaulted by a government employee. Lastly, Defendant 

states that Muhaymin was actively resisting the arrest. Plaintiff however makes no such 

statements in the FAC, and as noted above, in this stage of the litigation, the Videos alone 

do not provide sufficient evidence of the details of the struggle between Defendant Officers 

and Muhaymin. 

In response to Defendants’ motion, Plaintiff states that Muhaymin’s “right to be free 

from such excessive force was clearly established before the day of his death, January 4, 

2017, given the facts and circumstances of this case,” but makes no attempt to cite case 

law that would have put Defendant Officers on notice that their use of force was excessive. 

(Resp. at 25–26). Considering that the Court must take Plaintiff’s allegations as true, the 
- 22 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Court notes that at a minimum, the Ninth Circuit addressed a case with some of the factors 

that Plaintiff has alleged here. In Drummond ex rel. Drummond v. City of Anaheim, the 

Ninth Circuit reversed the district court’s holding that police officers did not use excessive 

force in effectuating the arrest of the plaintiff, Drummond. 343 F.3d 1052. In that case, 

officers were called to check on Drummond, an unarmed, mentally-ill individual. Id. at 

1054. While officers awaited the arrival of an ambulance, they decided to take Drummond 

into custody for his own safety. Id. Drummond did not resist arrest, but claimed that “two 

officers continued to press their weight on his neck and torso as he lay handcuffed on the 

ground and begged for air.” Id. at 1056. The officers also used hobble restraints on 

Drummond. Id. at 1055. Drummond lost consciousness in the course of the arrest, and 

sustained brain damage which led to his being in a “permanent vegetative state.” Id. The 

court noted that there was no underlying crime at issue when officers arrested Drummond. 

Id. at 1057. 

Here, Plaintiff has alleged that Muhaymin was unarmed and mentally-ill; that 

Muhaymin said he could not breathe as Defendant Officers placed the weight of their 

bodies on his head, back, arms, and legs; that Muhaymin was handcuffed and an officer 

requested hobbles; and that Muhaymin died as a result of the force used by Defendant 

Officers. As alleged by Plaintiff, Drummond may have placed Defendant Officers on 

notice that the use of force in this case may have been excessive. The Court recognizes 

that the Videos show the struggle between Muhaymin and Defendant Officers, but as noted 

above, the Videos alone do not provide sufficient evidence of the details of the struggle. 

The Court therefore denies Defendants’ motion to dismiss on the grounds of 

qualified immunity in regard to the excessive force claim. For the same reasons, the Court 

also denies Defendants’ motion in regard to the failure to protect/intervene claim. 

However, as noted above, the Court’s decision to deny Defendants’ motion at this time 

“sheds little light on whether the government actors might ultimately be entitled to 

qualified immunity” at a later stage in the proceedings. See Keates, 883 F.3d at 1235. 

/// 
- 23 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

2. Count III (ADA Discrimination) 

While Defendants included Count III in the motion’s request to dismiss on the 

grounds of qualified immunity, Defendants do not provide any analysis on the issue in their 

motion. Defendants instead focus their motion on qualified immunity for the excessive 

force claim. Because Defendants have done no more than summarily include a request to 

dismiss the ADA claim on the grounds of qualified immunity, the Court will deny 

Defendants’ request. 

IV. Plaintiff’s Request for Sanctions 

Plaintiff has requested sanctions alleging “blatant misstatements of law and fact”. 

(Resp. at 27). The Court disagrees that any misstatements were so blatant as to require 

sanctions. Both Plaintiff and Defendants have misstated and/or misapplied case law at 

various times in the pleadings. Plaintiff’s request will be denied. 

V. Conclusion 

For the reasons explained above, IT IS ORDERED AS FOLLOWS: 

1. Granting Defendants’ motion to dismiss in part—Counts IV, V, VI and XV are 

dismissed; 

2. Denying Defendants’ motion to dismiss as to all remaining counts. 

 

Dated this 20th day of February, 2019.