Tovar, Sr. v. City of San Jose

Background

David Tovar Jr. was shot and killed by several San Jose police officers on January 21, 2020. His father, David Tovar Sr., and minors D.T.M. and J.M. sued the officers and the City of San Jose. The amended complaint alleged that the officers used excessive force, including shooting Tovar Jr. and releasing a police dog to attack him after he was on the ground.

The complaint asserted claims against the officers under the Fourth and Fourteenth Amendments and a municipal-liability claim against the City under 42 U.S.C. § 1983. The City challenged only the municipal-liability claim, known as a Monell claim. The City did not challenge the other claims in this motion.

Legal standard

The court applied Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not contain enough factual matter to state a legally plausible claim. Under Monell, a municipality cannot be held liable merely because it employs an officer who allegedly violated the Constitution. The plaintiff must identify a City policy or custom, show deliberate indifference to a constitutional right, and show that the policy or custom was the moving force behind the alleged injury.

Court’s analysis

In their opposition, the plaintiffs relied on a theory that the City failed to retrain or discipline the officers for using the canine. The court found that the plaintiffs did not identify the alleged policy or training practice or point to a corresponding allegation in the complaint.

The court identified several deficiencies. First, treating the officers’ conduct in this single incident as proof of a City policy would improperly impose employer liability based on the officers’ actions alone. Second, the complaint’s other examples of excessive force did not involve a canine and did not establish a City policy. Third, the complaint did not connect the alleged failure to retrain or discipline the officers to a decision by a City policymaker. Finally, the complaint did not explain how a City policy or training deficiency caused the constitutional injury.

The court also treated several arguments as conceded because the plaintiffs did not address them in their opposition. Those arguments concerned allegations about cover-ups, investigations, discipline, tolerance or encouragement of misconduct, other excessive-force lawsuits, failure to train, and policymaker ratification.

Disposition

The court GRANTED the City’s partial motion to dismiss the amended complaint with leave to amend. It concluded that the plaintiffs might be able to correct the deficiencies by providing more specific facts about the City’s canine policy. The plaintiffs were required to file an amended complaint by January 13, 2022. The order stated that failure to amend, or failure to cure the identified deficiencies, would result in dismissal of the claims with prejudice. The plaintiffs could not add new claims or parties without court permission or the parties’ stipulation.