J. K. J. v. City of San Diego

• Decision Date: 15 November 2021
• Docket Number: No. 20-55622,20-55622
• Citation: 17 F.4th 1247
• Parties: J. K. J., individually, and successor in interest to the Deceased Aleah Jenkins, by and through his guardian-ad-litem Jeremy Hillyer, Plaintiff-Appellant, v. CITY OF SAN DIEGO, a public entity; David Nislet, in his individual capacity and official capacity as Police Chief of the San Diego Police Department; Lawrence Durbin, an individual; Jason Taub, an individual; Does, 1–10, Inclusive, Defendants-Appellees, and Nicholas Casicola, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

17 F.4th 1247

J. K. J., individually, and successor in interest to the Deceased Aleah Jenkins, by and through his guardian-ad-litem Jeremy Hillyer, Plaintiff-Appellant,

v.CITY OF SAN DIEGO, a public entity; David Nislet, in his individual capacity and official capacity as Police Chief of the San Diego Police Department; Lawrence Durbin, an individual; Jason Taub, an individual; Does, 1–10, Inclusive, Defendants-Appellees,andNicholas Casicola, Defendant.

No. 20-55622

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 6, 2021 Pasadena, California

Filed November 15, 2021

Kaveh Navab (argued), Navab Law APC, Marina Del Rey, California, for Plaintiff-Appellant.

Seetal Tejura (argued), Chief Deputy City Attorney; George F. Schaefer, Assistant City Attorney; Mara W. Elliott, City Attorney; Office of the City Attorney, San Diego, California; for Defendants-Appellees.

Before: D. Michael Fisher,^* Paul J. Watford, and Patrick J. Bumatay, Circuit Judges.

D.M. FISHER, Circuit Judge

Aleah Jenkins was arrested at a traffic stop and fell ill in police custody. Tragically, she died nine days later. Her minor son, J.K.J., brought constitutional claims against the City of San Diego and two officers who participated in the traffic stop. The District Court dismissed J.K.J.'s amended complaint with prejudice. Because we conclude that J.K.J. failed plausibly to allege a constitutional violation, and that the officers, alternatively, did not violate clearly established law and are protected by qualified immunity, we affirm.

BACKGROUND

I. Factual History

We accept as true all factual allegations in the amended complaint, construing them in the light most favorable to J.K.J., the non-moving party. Fields v. Twitter, Inc. , 881 F.3d 739, 743 (9th Cir. 2018). We also draw on a bodycam video that J.K.J. incorporated into the amended complaint by reference. See Tellabs, Inc. v. Makor Issues & Rts., Ltd. , 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007).

On November 27, 2018, San Diego police officers Nicholas Casciola and Jason Taub stopped a Cadillac with an expired registration. A third officer, Lawrence Durbin, arrived to provide backup. Inside the Cadillac sat three people: two men in the front, and Jenkins in the back. The two men had prior convictions for drug offenses. The officers knew or became aware of these prior convictions as they investigated.

Durbin questioned Jenkins, who spoke coherently and showed no signs of distress. When the officers discovered that she was subject to arrest based on a warrant involving a prior methamphetamine offense, they handcuffed her and put her in Durbin's cruiser.

With all three passengers secured, the officers searched the Cadillac. They found "a saran wrap-like plastic ... known to law enforcement officers ... as being commonly used for narcotics sale." They also found two wallets, one of which was full of cash. They did not find any drugs.

Inside Durbin's cruiser, Jenkins vomited. Taub called for paramedics and asked Jenkins if she was detoxing. Durbin asked if she was withdrawing. Jenkins responded: "No, I'm sick[,] my stomach is turning." She then added, "I'm pregnant." Hearing this explanation, Durbin told Taub, "Don't worry about it," indicating that paramedics were not needed. Taub approached Jenkins and asked: "Did you eat something, just for our knowledge?" She responded, "Mmm-mm," while shaking her head slightly from side to side.¹ Taub replied, "Alright, that's fine. We just wanna make sure you're gonna be ok." Durbin then remarked: "She says she's pregnant." The call to paramedics was canceled.

Durbin began driving Jenkins to a police station for fingerprinting. The trip took over an hour. En route, Jenkins told Durbin she did not want to go to jail. She requested water and a bathroom break. And on several occasions, she groaned and screamed. When Durbin spoke to her, Jenkins sometimes responded and sometimes remained silent. At one point she screamed loudly, "[P]lease help me, please help me!" and "[O]h my [G]od, please, stop, stop, stop!" Durbin asked, "What's going on?" When Jenkins remained silent for about ten minutes, Durbin stopped the car to check on her. He opened the rear door and patted her, saying, "I need you to stay awake." Jenkins then said, "I'm sick." When she again screamed, Durbin told her to "[k]nock it off." Jenkins shouted, "[H]elp me[,] please." Durbin responded, "[Y]ou're fine," and continued driving to the police station.

On arrival, about three minutes later, Durbin opened the rear door and again patted Jenkins, who was lying face down across the backseat. Jenkins screamed and took several quick, audible breaths, to which Durbin responded: "Stop hyperventilating ... you are doing [that] to yourself." Durbin then removed Jenkins from the cruiser to the pavement. Jenkins screamed and asked for help, and Durbin remarked to an approaching officer: "She doesn't want to go to jail." Shortly thereafter, Durbin and the other officer fingerprinted Jenkins as she lay on her side, handcuffed. Durbin asked Jenkins if she still wanted water, and she responded at a normal volume: "Yes, please." After confirming Jenkins' identity, Durbin and the other officer placed her back inside the cruiser.

About eleven and a half minutes later, Durbin opened the rear door of his cruiser. Jenkins had fallen unconscious. Durbin immediately removed her from the car and radioed for paramedics. Soon, another officer arrived with a breathing tool, and Durbin began CPR. He remarked to the gathering officers that Jenkins had a narcotics warrant, but that this was not a narcotics arrest. He then added, "She may have ingested something," telling the other officers that he had Narcan

in his trunk. Paramedics arrived. Despite their efforts, Jenkins fell into a coma. Nine days later, she died. The amended complaint refers to Jenkins "suffering from an overdose," but does not identify a cause of death.

II. Procedural History

In November 2019, J.K.J. filed this lawsuit by and through his father and personal representative, Jeremy Hillyer. The District Court granted the defendants' motion to dismiss, granting leave to amend. J.K.J. then filed the amended complaint at issue here, asserting three causes of action under 42 U.S.C. § 1983. The first, against Taub and Durbin, was labeled "Unreasonable Search and Seizure—Denial of Medical Care ( 42 U.S.C. § 1983 )." The second, against the City, asserted municipal liability under Monell v. Dep't of Soc. Servs. of City of New York , 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). And the third, against Taub and Durbin, was labeled "Deprivation of Life Without Due Process ( 42 U.S.C. § 1983 )." The amended complaint also explicitly "incorporate[d] by reference" the "publicly available bodycam video of the interaction" between Jenkins and the officers.

The defendants again moved to dismiss. This time, the District Court granted the motion with prejudice. The Court reviewed the bodycam video and concluded that it comported with J.K.J.'s factual allegations. The Court also stated: "Th[e] video ... renders any written allegations describing what occurred on November 27, 2018, somewhat superfluous because the Court is not ‘required to accept as true allegations that contradict exhibits attached to the Complaint.’ " Next, the Court concluded that "if the [amended complaint] could otherwise avoid dismissal," further briefing would be needed to determine whether, under California law governing survival actions, Jenkins' other children were required parties.²

On the merits, the District Court held that J.K.J.'s first cause of action failed to state a plausible claim for denial of medical care under the Fourteenth Amendment. The Court noted J.K.J.'s argument that the claim should instead be analyzed under a Fourth Amendment reasonableness standard, but concluded that "it [fares] no better" under that standard. Additionally, the Court held that Taub and Durbin are entitled to qualified immunity. As to the second cause of action, the Court held that J.K.J. failed to state a claim under Monell because (1) the amended complaint alleged no plausible violation of Jenkins' constitutional rights; and (2) it failed to identify any municipal policy or custom as the cause of the alleged violation. Lastly, the Court dismissed the third cause of action, the "Deprivation of Life" claim, as duplicative of the claim for denial of medical care. J.K.J. timely appealed.

JURISDICTION AND STANDARDS OF REVIEW

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction to review its final judgment under 28 U.S.C. § 1291.

"We review de novo ... a district court's dismissal for failure to state a claim; a district court's decision on qualified immunity; and a district court's decision on municipal liability." Benavidez v. County of San Diego , 993 F.3d 1134, 1141 (9th Cir. 2021) (citations omitted). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear on de novo review that the complaint could not be saved by amendment." Stoyas v. Toshiba Corp. , 896 F.3d 933, 939 (9th Cir. 2018) (quoting Harris v. County of Orange , 682 F.3d 1126, 1131 (9th Cir. 2012) ). Additionally, we review the decision to incorporate documents by reference for an abuse of discretion. Khoja v. Orexigen Therapeutics, Inc. , 899 F.3d 988, 998 (9th Cir. 2018).

ANALYSIS

I. The District Court did not err in relying on the incorporated video.

At the outset, we address J.K.J.'s argument that the District Court erred by giving too much weight to the bodycam video he incorporated by reference into the amended complaint. J.K.J. says the Court improperly allowed that video to override his written allegations, using it to resolve factual disputes and effectively converting the defendants' motion to dismiss into a motion for summary judgment. We disagree.

"Ordinarily, a court may look only at the face of the complaint to decide a motion to dismiss." Van...