ORDER

WILLIAM Q. HAYES, District Judge.

The following motions are pending before the Court: 1) Defendant Scott Holslag's motion to dismiss the first amended complaint (ECF No. 16), 2) Defendants City of San Diego and Shelley Zimmerman's motion to dismiss the first amended complaint (ECF No. 17), and 3) Defendant Natalie Ann Macey's motion to dismiss the first amended complaint (ECF No. 23).

BACKGROUND

On December 8, 2016, the Estate of Timothy Gene Smith; Janie Sanders, the surviving spouse of Timothy Smith; Sandy Simmons, the mother of Timothy Smith; and Wyatt Smith, the son of Timothy Smith initiated this action by filing a complaint. (ECF No. 1). On December 29, 2016, Plaintiffs filed the First Amended Complaint (hereinafter "the complaint") alleging constitutional violations pursuant to 42 U.S.C. § 1983 and state law claims against Defendant Police Officer Scott Holstag for the unconstitutional use of deadly force; against Defendants City of San Diego and Shelley Zimmerman for failure to properly train, supervise and discipline police officers; and against other named defendants for conspiracy to violate civil rights (ECF No. 7).

On February 9, 2017, Defendant Scott Holslag filed a motion to dismiss Plaintiff's first amended Complaint. (ECF No. 16).

On February 9, 2017, Defendants City of San Diego and Shelley Zimmerman filed a motion to dismiss Plaintiff's first amended Complaint. (ECF No. 17).

On March 3, 2017, Defendant Natalie Macey filed a motion to dismiss Plaintiff's first amended Complaint. (ECF No. 23).

Plaintiff filed responses in opposition to all motions to dismiss (ECF Nos. 26, 30).

ALLEGATIONS OF THE COMPLAINT

On November 4, 2015, decedent Timothy Smith was with Janie Sanders, his wife, in the Pacific Beach area of San Diego. At the time, Sanders was on bail for minor, non-violent drug possession charges pending in the State of Missouri. Defendant Natalie Ann Macey, d/b/a/Macey Bail Bonds, had posted bail in Missouri on behalf of Sanders in the amount of $7500. Sanders and Smith left Missouri to visit Smith's sister in San Diego.

Macey hired Defendants Escamilla, Legal Services Bureau, Leland Chapman Bail Bonds Co., and/or Kama Aina Bail Bonds (hereinafter referred to as "hired bondsmen") to apprehend Sanders. Smith had not committed any crime in California and was not wanted for any crime in California.

Macey and the hired bondsmen in an intentional and malicious effort to apprehend Sanders fabricated false information about past violent activity of both Sanders and Smith, including acts of violence, assault, weapons possession, and child molestation. These defendants printed and distributed "WANTED" posters throughout San Diego which contained this false information and photos of Sanders and Smith.

On November 4, 2015, two officers of the San Diego Police Department saw Smith exiting a store in the Pacific Beach area. Smith was wearing tan shorts and no shirt. The officers gave chase and Smith fled. A perimeter was set up with helicopters overhead. Canine units were deployed. Smith was eventually cornered in an alley. Smith had no weapons. Smith did not make any verbal threats, or threatening movements or gestures. Officer Scott Holstag fatally shot Smith numerous times with a .45 caliber weapon. Officer Holslag failed to warn Smith that they would shoot him and failed to use any alternative, non-deadly measures to apprehend Smith. Smith posed no immediate threat to Officer Holslag or to any third person.

In 2002, Officer Holslag shot Gary Martin three times, killing an unarmed man while he was seated in his vehicle. The San Diego Police Department did not discipline Officer Holslag. The San Diego Police Department failed to alter any policies with respect to the practices or training of its police officers, including Officer Holslag. The City and the Police Department have a de facto policy, custom, and practice of not properly training its officers in the use of force and constitutional rights of arrestees; of authorizing and ratifying the use of excessive force; and failing to discipline and supervise officers who have been involved in excessive force allegations.

APPLICABLE STANDARD

Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pac. Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

"[A] plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). When considering a motion to dismiss, a court must accept as true all "well-pleaded factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). However, a court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted).

Where government officials are sued in their individual capacities for civil damages, a court must "begin by taking note of the elements a plaintiff must plead to state a claim . . . against officials entitled to assert the defense of qualified immunity." Iqbal, 556 U.S. at 675. Government officials are entitled to qualified immunity unless the plaintiff can allege the violation of a "clearly established" constitutional right. Pearson v. Callahan, 555 U.S. 223, 232 (2009).

ANALYSIS

1) Defendant Scott Holslag's motion to dismiss

Defendant Holslag moves to dismiss the first, second, sixth, seventh and eighth claims for relief. Defendant contends that the facts alleged in the complaint are not sufficient to support a claim that his use of deadly force was not reasonable under the totality of the circumstances. Defendant Holslag asserts that the facts alleged support the inference that it would be reasonable based upon information provided to the San Diego Police Department that Smith was an armed, dangerous, fleeing felon with a long history of committing violent crimes. Defendant Holslag asserts that reasonable inferences from the facts support "concerns that Smith was armed, violent, and a danger to the surrounding public given the information the police had." (ECF No. 16-1 at 20). Defendant Holslag asserts that his "split-second decision to use deadly force was not a violation of Smith's Fourth Amendment rights because there was probable cause — based on objectively reasonable facts — to believe Smith posed a threat of serious physical harm to others." Id. Even if the Court concludes that there was a constitutional violation, Defendant Holslag contends that the right at issue was not clearly established.

Plaintiffs contend that the facts alleged support the inference that Defendant Holslag acted unreasonably when he shot and killed an unarmed man who posed no threat to the officer or the public. Plaintiffs assert that there are no facts in the complaint to support any inference that Holstag received an information about Smith at the time of the shooting. Plaintiffs assert that the fact alleged support an inference that Smith was unarmed, cornered in an alleyway, and posed no threat.

An excessive force claim is analyzed under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395 (1989). Reasonableness of force is assessed from the perspective of a reasonable officer at the scene. Id. The relevant inquiry is whether 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 (quotation marks and citation omitted). "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 396-97. However, "it is equally true that even where some force is justified, the amount actually used may be excessive." Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002).

The Court concludes that the facts alleged in the complaint and the reasonable inferences from those facts support a claim that the use of deadly force was not reasonable under the circumstances. The facts alleged do not support the inference that Smith posed an immediate threat to the safety of police officers or the public justifying the use of deadly force as a matter of law. The Court further concludes that the right at issue was clearly established. See Tennessee v. Garner, 471 U.S. 1, 11 (1985) ("Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force.").

Defendant Scott Holslag's motion to dismiss the first, second, sixth, seventh and eight claims for relief is denied.1

2) Defendants City of San Diego and Shelley Zimmerman's motion to dismiss (ECF No. 17)

Defendants City of San Diego and Shelley Zimmerman move to dismiss the third, fourth, fifth, and sixth claims for relief. Defendants contend that the facts alleged in the complaint fail to state a claim that Officer Holslag's use of force violated Smith's constitutional rights. Because Plaintiffs fail to plead any constitutional violation, Defendants contend that Plaintiffs' Monell claim fails as a matter of law. Defendants further contend that Plaintiffs provide no factual allegations supporting their claim of deliberate indifference, failure to properly train, failure to properly discipline and failure to properly supervise. Defendants assert that Plaintiff's claim is based upon a single incident not sufficient to support a claim for a persistent or widespread custom or policy.

Plaintiffs contend that the complaint alleges sufficient facts to support deliberate indifference and ratification of unlawful practices which condone the unjustified use of force by officers.

42 U.S.C. § 1983 provides that "[e]very person who, under color of any [state law] subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." 42 U.S.C. § 1983. Section 1983 does not provide for vicarious liability, local governments "may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 693 (1978). A local government entity may be sued for constitutional deprivations caused by a government "custom," even when the custom has not been formally approved through official decision-making channels. Id. at 690. However, such a practice must be so permanent and well settled that it constitutes a "custom or usage" with the force of law. Id. at 691. "Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).

In this case, the Court has concluded that the complaint states a claim against Officer Holslag for a violation of Plaintiff's fourth amendment and fourteenth amendment rights based upon an excessive force theory of liability. The complaint alleges that City of San Diego and Shelley Zimmerman, the Chief of Police, proximately caused the constitutional violation through unlawful policies, customs and habits of improper and inadequate hiring, training, retention, discipline and supervision of its police officers. The complaint alleges that the police officers are not trained properly in the use of excessive force, and that the police officers are aware that no discipline or adequate investigation will result from any excessive use of force. The complaint alleges that the police department has a policy requiring the use of body cameras and failed to enforce this policy. The complaint alleges that Officer Holslag shot and killed an individual in 2002, and that Officer Holslag was not disciplined.

The Court concludes that the facts alleged in the complaint and the reasonable inferences from those facts do not support a claim for municipal and supervisory liability. The complaint alleges constitutional violations centered around a single incident of alleged excessive force. The allegations that this incident was proximately caused by a custom and practice of not properly training officers, authorizing and ratifying the use of excessive force, and not properly investigating officer's use of force are conclusory.

Defendants City of San Diego and Shelley Zimmerman motion to dismiss the third, fourth, fifth, and sixth claims for relief is granted.

3) Defendant Natalie Ann Macey's motion to dismiss

Defendant Natalie Ann Macey moves to dismiss the ninth claims for relief for conspiracy to violate civil rights pursuant to 42 U.S.C. § 1983.2 Defendant Macey contends that there is no factual allegation that she or any bondsman acting on her behalf attempted to apprehend Smith or used excessive force in apprehending Smith.

Plaintiffs contend that the facts alleged in the complaint show that Defendant Macey conspired with others to fabricate and falsify information with the intent that law enforcement agencies would rely upon the false information, and that these actions resulted in the use of excessive force by law enforcement officers.

A civil rights plaintiff suing a private individual under § 1983 must demonstrate that the private individual acted under color of state law; plaintiffs do not enjoy Fourteenth Amendment protections against "private conduct abridging individual rights." Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961). In Franklin v. Fox, 312 F.3d 423,444-45 (9th Cir. 2002), the Court of Appeals explained,

The complaint in this case alleges that Macey and other hired bondsmen fabricated and falsified information about Smith. The complaint alleges that Macey and others published and disseminated the information to law enforcement agencies with the knowledge and expectation that law enforcement would act on the information. The complaint alleges that Macey and other hired bondsmen intended for police to rely upon false information resulting in the use of excessive force on the part of the police. The Court concludes that the facts alleged in the complaint and the reasonable inferences from those facts support a claim that Macey acted in concert with state officials to deprive Smith of his constitutional rights.

Defendant Natalie Ann Macey's motion to dismiss the ninth claims for relief is denied.

CONCLUSION

IT IS HEREBY ORDERED that 1) Defendant Scott Holslag's motion to dismiss the first amended complaint (ECF No. 16) is denied, 2) Defendants City of San Diego and Shelley Zimmerman's motion to dismiss the first amended complaint (ECF No. 17) is granted, and 3) Defendant Natalie Ann Macey's motion to dismiss the first amended complaint (ECF No. 23) is denied.