Gonzalez v. County of Merced et al, No. 1:2016cv01682 - Document 43 (E.D. Cal. 2017)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Defendant County's Motion to Dismiss the Monell Claim be GRANTED with leave to amend re 31 MOTION to DISMISS filed by County of Merced ; referred to Judge O'Neill,signed by Magistrate Judge Stanley A. Boone on 05/26/2017. Objections to F&R due (14-Day Deadline)(Martin-Gill, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ASHLEY GONZALEZ, 11 Case No. 1:16-cv-01682-LJO-SAB Plaintiff, 12 FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANT COUNTY OF MERCED’S MOTION TO DISMISS PLAINTIFF’S MONELL CLAIM WITH LEAVE TO AMEND v. 13 COUNTY OF MERCED, et al., 14 Defendants. 15 (ECF Nos. 31, 32, 36, 39) 16 OBJECTIONS DUE WITHIN FOURTEEN DAYS 17 18 On April 18, 2017, Defendant County of Merced (“Defendant County”) filed a motion to 19 1 20 dismiss Plaintiff’s Monell claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The 21 matter was referred to the undersigned for issuance of findings and recommendations pursuant to 22 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. (ECF Nos. 31, 33.) Oral argument on the motion to dismiss was conducted on May 24, 2017. Panos Lagos 23 24 appeared for Plaintiff and James Stone appeared for Defendant County. Having considered the 25 moving, opposition and reply papers, the declarations and exhibits attached thereto, except as 26 excluded below, arguments presented at the May 24, 2017 hearing, as well as the Court’s file, the 27 Court recommends that Defendant County’s motion to dismiss be granted with leave to amend. 28 1 Monell v. Dep’t of Soc. Servs. Of City of N.Y., 436 U.S. 658 (1978). 1 1 I. 2 BACKGROUND On November 4, 2016, Plaintiff filed this action against Defendant County and Defendant 3 4 Rich. (ECF No. 1.) On November 29, 2016, Defendant County filed a motion to dismiss. (ECF 5 No. 7.) On December 20, 2016, Defendant Rich filed a motion to stay this action pending the 6 resolution of the state criminal action against him. (ECF No. 11.) On February 1, 2017, the 7 undersigned filed findings and recommendations recommending that Defendant County’s motion 8 to dismiss be granted with leave to amend and that Defendant Rich’s motion to stay this action 9 be granted as to Defendant Rich at this time. The Court recommended the action not be stayed 10 as to Defendant County until an answer is filed by Defendant County. (ECF No. 25.) On March 11 21, 2017, Chief Judge Lawrence J. O’Neill adopted the findings and recommendations. (ECF 12 No. 29.) The Court also set a review hearing as to Defendant Rich for May 24, 2017, at 10:00 13 a.m., before the undersigned. (ECF No. 29.) On April 4, 2017, Plaintiff filed her first amended complaint. (ECF No. 30.) On April 14 15 18, 2017, Defendant County filed a motion to dismiss the first amended complaint and a request 2 16 for judicial notice. (ECF Nos. 31, 32.) On May 10, 2017, Plaintiff filed her opposition to the 3 17 motion to dismiss and a declaration with three exhibits. (ECF No. 36.) On May 17, 2017, 18 Defendant County filed a reply in support of the motion to dismiss. (ECF No. 39.) 19 2 The Court grants Defendant County’s request to take judicial notice of the fact that Defendant Rich is being 20 prosecuted in the Superior Court of California, County of Merced, for the incident alleged by Plaintiff. See Fed. R. 21 22 23 24 25 26 27 28 Evid. 201. However, the Court does not take judicial notice of the fact that Amanda Gibson, who testified she reported the incident between a female coworker (referred to as coworker 1, infra) and Mr. Rich, also testified that she did not report the incident to Defendant County until days later. This fact, which is from Ms. Gibson’s deposition testimony, is not a fact that is appropriate for the Court to take judicial notice of under Federal Rules of Evidence Rule 201. 3 A court generally cannot consider material outside of the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989). However, the incorporation by reference doctrine allows material that is attached to the complaint to be considered, as well as “unattached evidence on which the complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the document is central to plaintiff’s claim; and (3) no party questions the authenticity of the document.” Corinthian Colleges, 655 F.3d at 999. Here, the Court considers Exhibit B (JTO Performance Module 13) attached to Plaintiff’s opposition when ruling on the instant motion to dismiss because Plaintiff refers to it in the first amended complaint (FAC at ¶ 48), the document is central to Plaintiff’s claim, and Defendant County does not question the authenticity. However, the Court does not consider Exhibit A (preliminary testimony of Blanca Cortez) and Exhibit C (JTO Performance Module 32, PREA) attached to Plaintiff’s opposition, because these documents were not referred to in the first amended complaint. 2 1 II. 2 LEGAL STANDARD 3 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on 4 the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” A 5 motion under Rule 12(b)(6) tests the legal sufficiency of a claim. Navarro v. Block, 250 F.3d 6 729, 732 (9th Cir. 2001). In deciding a motion to dismiss, the court is to accept as true “all 7 material allegations of the complaint, . . . as well as all reasonable inferences to be drawn from 8 them.” Navarro, 250 F.3d at 732. “[T]o be entitled to the presumption of truth, allegations in a 9 complaint . . . may not simply recite the elements of a cause of action, but must contain sufficient 10 allegations of underlying facts to give fair notice and to enable the opposing party to defend itself 11 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). While detailed factual 12 allegations are not required, the factual allegations of the complaint must plausibly suggest an 13 entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Starr, 652 F.3d at 1216. 14 Dismissal of the complaint is appropriate where the complaint fails to state a claim supportable 15 by a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 16 1988). 17 III. 18 ALLEGATIONS IN FIRST AMENDED COMPLAINT 19 On or about January 27, 2015, Plaintiff was a pretrial detainee in the custody of 20 Defendant County, and was being transported from the Merced County Courthouse to John 21 Latorraca Correctional Facility (“JLCF”) in a Defendant County vehicle driven by Defendant 22 Rich. (FAC at ¶ 12, ECF No. 30.) One of Defendant Rich’s responsibilities granted by 23 Defendant County was driving inmates to and from their court appearances. (Id.) 24 Plaintiff was seated on one side of the vehicle with another female inmate. (Id.) A cage 25 separated the female inmates’ side from the male inmates’ side. (Id.) After the male inmates 26 were unloaded and gone from the vehicle, Defendant Rich directed Plaintiff to exit the vehicle. 27 (Id. at ¶ 13.) Plaintiff asked “[f]or what?” and then proceeded to get up from her seat to go to the 28 other side of the vehicle. (Id. at ¶ 14-15.) In order to move to the other side of the vehicle, 3 1 Plaintiff had to turn her back to Defendant Rich as she utilized the vehicle’s built in step-stool to 2 help her get down to the ground. (Id. at ¶ 15.) As she was on the step-stool part of the vehicle 3 with her back to Defendant Rich, Defendant Rich deliberately, without consent, and in a 4 constitutionally violative fashion put his hand on Plaintiff’s vaginal area. (Id.) Plaintiff 5 responded with an emphatic question along the lines of, “what the …?” in an immediate, 6 vigorous, loud, and protesting manner as she sat down where she was ordered to sit by Defendant 7 Rich. (Id. at ¶ 16.) Defendant Rich remained silent. (Id.) After Plaintiff seated herself, Defendant Rich, who was facing Plaintiff, groped Plaintiff 8 9 again in her genital area. (Id.) Plaintiff was helpless and unable to defend herself because she 10 was in full body shackles. (Id.) Defendant Rich then drove Plaintiff to the female entrance to the JLCF. (Id. at ¶ 17.) 11 12 Defendant Rich groped Plaintiff in the vaginal area as she was stepping out of the van. (Id.) 13 Plaintiff did not physically resist, insult, threaten, touch, batter, or assault Defendant or fail to 14 promptly obey any order prior to or after the “perverted conduct.” (Id. at ¶ 18.) Plaintiff alleges that prior to the instant incident, Defendant Rich had committed 15 16 nonconsensual sexual batteries in the course and scope of his employment with Defendant 17 County and that Defendant County had both actual and constructive knowledge of at least some 18 of such incidents. (Id. at ¶ 19.) The prior incidents were accomplished using the opportunities 19 created to commit sexual batteries by the policies, or lack or inadequacy thereof, created, 20 executed, perpetuated, and/or facilitated by Defendant County. (Id.) Plaintiff provides specific allegations for two incidents by Defendant Rich. (Id. at 21- 21 22 22.) Plaintiff alleges that prior to the instant incident,4 Defendant Rich unlawfully touched a 23 female (coworker 1).5 This individual was an assistant/medical clerk at JLCF in the jail medical 24 25 26 27 4 Although Plaintiff alleges that the incident with coworker 1 was prior to the instant incident, she alleges that this incident occurred at, before, or around 10:00 a.m., which leads to the inference that the incident with coworker 1 occurred on the same day as the instant incident. Also, the parties’ briefs and arguments at the hearing suggest that the incident with coworker 1 was on the same day as the instant incident. In filing any amended complaint, she should allege the specific date of incidents to the best of her knowledge. In a case such as this, “prior” may have different connotations. If one knows the time, one should know the date. 5 Although this female worked for Defendant County by virtue of a contract between Defendant County and CFMG, 28 for purposes of this order, the Court refers to her as coworker 1. 4 1 division who worked pursuant to a contract between Defendant County and the California 2 Forensic Medical Group, Inc. (“CFMG”). (Id. at ¶ 21.) Plaintiff alleges that at, before, or 3 around 10:00 a.m., Defendant Rich unlawfully and without consent groped coworker 1 in the left 4 breast area and accomplished this by utilizing his position to gain private access to coworker 1 in 5 circumstances that provided seclusion. (Id.) This incident was reported shortly thereafter to 6 coworker 1’s supervisor, and was thereafter reported to others, including officials of Defendant 7 County, all prior to the instant incident. (Id.) Defendant County officials, supervisors, and 8 employees knew or should have known about this incident prior to the instant incident. (Id.) Plaintiff also alleges that prior to the instant incident,6 Defendant Rich committed a 9 10 sexual battery against a female correctional officer at JLCF employed by Defendant County 11 (“coworker 2”). (Id. at ¶ 22.) Just as he waited until he had an opportunity to commit the sexual 12 battery against Plaintiff, Defendant Rich waited until he was alone with coworker 2 in a room at 13 JLCF. (Id.) Defendant Rich asked coworker 2, “Let me touch your butt, let me touch your butt,” 14 and then after being refused, asked her, “Let me lick your clit.” (Id.) After sexually harassing 15 coworker 2 and being refused, Defendant Rich grabbed her in the left buttocks area. Plaintiff 16 contends this incident was due to Defendant County’s failure—and Defendant Rich’s knowledge 17 of such failure—to protect female employees and female inmates from him and others. (Id.) 18 Defendant Rich utilized his position of authority and the access to areas where he would be alone 19 with female coworkers and female inmates to sexually harass and unlawfully and without 20 consent grab the left buttocks of coworker 2. (Id.) After the incident, coworker 2 told another 21 employee of Defendant County at JLCF that Defendant Rich had done something highly 22 inappropriate to her, pleading, “Please don’t leave me alone with him again.” (Id.) This 23 statement was made prior to the instant incident. (Id.) The other correctional officer responded, 24 “…That’s why I came back,” which Plaintiff alleges implied knowledge of Defendant Rich’s 25 propensities and implied that Defendant Rich’s propensities were known within JLCF. (Id. at ¶ 26 6 While Plaintiff alleges that the incident with coworker 2 happened prior to the instant incident, based on the 27 parties’ briefings and arguments at the hearing, it occurred on the same day as the instant incident. Plaintiff did not specifically allege in the first amended complaint the date that the incident with coworker 2 happened. Plaintiff 28 should allege the specific date in any second amended complaint. 5 1 23.) The other correctional officer had actual and constructive knowledge of Defendant Rich’s 2 propensities to commit such sexual batteries, and to touch women inappropriately or otherwise 3 sexually harass them. (Id.) 4 Supervisors at JLCF, coworkers of Defendant Rich, Defendant County, and others had 5 actual and constructive knowledge prior to the instant incident of Defendant Rich’s propensities, 6 prior sexual batteries, and the fact that Defendant Rich utilized secluded settings to accomplish 7 sexual harassment and sexual batteries, but they failed to protect female inmates, including 8 Plaintiff, and female coworkers from Defendant Rich, instead continuing to permit Defendant 9 Rich to have unrestricted and secluded access to female inmates and female coworkers. (Id. at ¶ 10 26.) 11 Plaintiff alleges that prior to the instant incident and incidents involving coworker 1 and 12 coworker 2, Defendant Rich was the subject of a number of internal affair (“IA”) investigations 13 by Defendant County, but was exonerated by Defendant County in all of them. (Id. at ¶ 24.) At 14 least some of these incidents involved sexual misconduct, including, but not limited to sexual 15 harassment, or sexual batteries of female inmates or coworkers. (Id.) Plaintiff contends that 16 Defendant County’s acquiescence and failure to discipline Defendant Rich encouraged him and 17 emboldened him to continue to engage in sexual misconduct because it signaled to him that he 18 would not be disciplined by Defendant County. (Id.) Defendant Rich communicated Defendant 19 County’s acquiescence in his misconduct to female coworkers and others in order to generate 20 fear and intimidate, dissuade, and discourage his victims. (Id.) Supervisors for Defendant 21 County would discipline employees that would report misconduct to IA in situations where IA 22 did not sustain the allegations or otherwise absolved the named employee, such as Defendant 23 Rich. (Id. at ¶ 25.) 24 Plaintiff alleges that prior to the instant incident, other correctional officers and 25 Defendant County transport officers that worked at JLCF transporting female inmates to and 26 from court had also previously committed nonconsensual sexual batteries in the course and scope 27 of their employment with Defendant County and that Defendant County had both actual and 28 constructive knowledge of at least some of such incidents. (Id. at 20.) Defendant Rich’s 6 1 unlawful touching of coworker 1 was part of a pattern of conduct by Defendant Rich and other 2 male correctional officers of Defendant County to use their position of authority, power, and 3 seclusion to commit sexual batteries against female coworkers and female inmates. (Id. at ¶ 27.) 4 Defendant Rich and others accomplished their unlawful touching because Defendant County 5 failed to properly monitor their movements and activities and to implement policies that would 6 prevent individuals like Defendant Rich from having secluded and prolonged contact with 7 female inmates. (Id.) 8 Plaintiff alleges that there is an abundance of evidence that Defendant County was on 9 both actual and constructive notice of regarding the prevalence of officer-on-inmate sexual 10 assault in correctional facilities and cites to four articles. (Id. at ¶ 28.) 11 On or about April 21, 2015, Defendant Rich was charged with a felony violation of 12 California Penal Code § 149 (assault by officer under color of authority) and a misdemeanor 13 violation of Penal Code § 243.4(e)(1) (sexual battery) for the instant incident, and two additional 14 misdemeanor violations of Penal Code § 243.4(e)(1) (sexual battery) for the incidents involving 15 coworker 1 and coworker 2. (Id. at ¶ 31.) 16 Plaintiff’s first cause of action is against Defendant Rich for violation of 42 U.S.C. § 17 1983 for depriving Plaintiff of the right to privacy, right to be free from the unreasonable search 18 and seizure of one’s person, right to the equal protection of the laws, and right to one’s liberty in 19 bodily integrity. (Id. at ¶¶ 34-39.) Plaintiff’s second cause of action is against Defendant 20 County for a violation of 42 U.S.C. § 1983 based on the customs, policies, practices, and/or 21 procedures or lack thereof of Defendant County based on Monell v. Dep’t of Soc. Servs. Of City 22 of N.Y., 436 U.S. 658 (1978). (Id. at ¶¶ 40-51.) 23 IV. 24 DISCUSSION 25 Defendant County argues that the Monell claim should be dismissed because the Monell 26 claim is devoid of substantive factual allegations. Defendant County asserts that the complaint’s 27 allegations are insufficient because they are conclusory, and are alleged to be on information and 28 belief in this action. Defendant County also argues that Plaintiff has not sufficiently pled the 7 1 deliberate indifference element of the Monell claim and that Plaintiff has failed to allege facts 2 supporting deliberate indifference regardless of how Plaintiff’s allegations are characterized. 3 Plaintiff counters that Defendant County is ignoring Plaintiff’s more than sufficient 4 allegations and attempting to apply an artificially exacting pleading standard. Plaintiff also 5 asserts that Defendant County is seeking to convert the instant motion to dismiss under Rule 6 12(b)(6) into a motion for summary judgment. 7 A. Legal Standard for County Claims 8 “Section 1983 imposes two essential proof requirements upon a claimant: (1) that a 9 person acting under color of state law committed the conduct at issue, and (2) that the conduct 10 deprived the claimant of some right, privilege, or immunity protected by the Constitution or 11 laws of the United States.” Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988). “Section 12 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating 13 federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting 14 Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)). Section 1983 and other federal civil rights 15 statutes address liability “in favor of persons who are deprived of ‘rights, privileges, or immunities 16 secured’ to them by the Constitution.” Carey v. Piphus, 435 U.S. 247, 253 (1978) (quoting 17 Imbler v. Pachtman, 424 U.S. 409, 417 (1976)). “The first inquiry in any § 1983 suit, therefore, 18 is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’” 19 Baker, 443 U.S. at 140. Stated differently, the first step in a section 1983 claim is to identify the 20 specific constitutional right allegedly infringed. Albright, 510 U.S. at 271. “Section 1983 21 imposes liability for violations of rights protected by the Constitution, not for violations of duties 22 of care arising out of tort law.” Baker, 443 U.S. at 146. 23 Plaintiff’s theory of liability against Defendant County is based upon municipal liability 24 under Monell, 436 U.S. at 691. Under Monell, 436 U.S. at 691 (1978), “a municipality cannot 25 be held liable under § 1983 solely because it employs a tortfeasor ... in other words, a 26 municipality cannot be held liable under § 1983 on a respondeat superior theory.” A 27 municipality can only be held liable for injuries caused by the execution of its policy or custom 28 or by those whose edicts or acts may fairly be said to represent official policy. Id. at 694. “In 8 1 addition, a local governmental entity may be liable if it has a ‘policy of inaction and such 2 inaction amounts to a failure to protect constitutional rights.’ ” Lee v. City of Los Angeles, 250 3 F.3d 668, 681 (9th Cir. 2001) (quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)). 4 A “policy” is a “deliberate choice to follow a course of action ... made from among 5 various alternatives by the official or officials responsible for establishing final policy with 6 respect to the subject matter in question.” Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). A 7 “custom” is a “widespread practice that, although not authorized by written law or express 8 municipal policy, is so permanent and well-settled as to constitute a custom or usage with the 9 force of law.” St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Los Angeles Police Protective 10 League v. Gates, 907 F.2d 879, 890 (9th Cir. 1990). 11 To impose liability against Defendant County here, Plaintiff must establish: (1) that she 12 possessed a constitutional right of which she was deprived; (2) that the municipality had a 13 policy; (3) that this policy “amounts to deliberate indifference” to the plaintiff’s constitutional 14 right; and (4) that the policy is the “moving force behind the constitutional violation.” City of 15 Canton v. Harris, 489 U.S. 378, 389–91 (1989). The Ninth Circuit has held that “a local 16 government may also be held liable under § 1983 for acts of ‘omission,’ when such omissions 17 amount to the local government’s own official policy. Clouthier v. County of Contra Costa, 591 18 F.3d 1232, 1249 (9th Cir. 2010) (citing Cabrales v. County of Los Angeles, 864 F.2d 1454, 1461 19 & n.2 (9th Cir. 1988)). 20 A plaintiff who sets forth a Monell claim against an entity defendant must show that the 21 entity acted with deliberate indifference to the constitutional rights of the plaintiff in adhering to 22 a policy or custom or by acts of omission. See Castro v. County of Los Angeles, 833 F.3d 1060, 23 1068-69 (9th Cir. 2016) (quoting Canton, 489 U.S. at 392); Clouthier, 591 F.3d at 1249. The 24 Ninth Circuit has held that an objective standard of notice applies to Monell claims. See Castro, 25 833 F.3d at 1076. The objective deliberate indifference standard is met when a “plaintiff [ ] 26 establish[es] that the facts available to [entity] policymakers put them on actual or constructive 27 notice that the particular omission is substantially certain to result in the violation of the 28 constitutional rights of their citizens.” Id. (quoting Canton, 489 U.S. at 396) (emphasis added). 9 1 Municipal liability cannot be premised on respondeat superior and it is not sufficient for a 2 plaintiff to merely point to something that the city could have done to prevent the incident. 3 Clouthier, 591 F.3d at 1250 (citing Canton, 489 U.S. at 392). In the context of a failure to train 4 claim, the Supreme Court has found that to show deliberate indifference the municipal actor 5 must disregard a known or obvious consequence of his action, which ordinarily requires that 6 there be a pattern of similar constitutional violations by untrained employees. Connick, 563 U.S. 7 at 61-62 (quoting Brown, 520 U.S. at 409). However, “in a narrow range of circumstances, a 8 pattern of similar violations might not be necessary to show deliberate indifference.” Connick, 9 563 U.S. at 63 (citation and quotation marks omitted). 10 Since Iqbal, courts have rejected conclusory Monell allegations that lack factual content 11 from which one could plausibly infer Monell liability. See e.g., Rodriguez v. City of Modesto, 12 535 Fed. App’x 643, 646 (9th Cir. 2013) (unpublished) (affirming district court's dismissal of 13 Monell claim based only on conclusory allegations and lacking factual support); Via v. City of 14 Fairfield, 833 F.Supp.2d 1189, 1196 (E.D. Cal. 2011) (collecting cases). In AE ex rel. 15 Hernandez v. Cnty of Tulare, 666 F.3d 631, 637 (9th Cir. 2012), the Ninth Circuit held that 16 pleadings in a case involving Monell claims are subject to the standard set forth in Starr v. Baca, 17 652 F.3d 1202 (9th Cir. 2011). In Starr, the Ninth Circuit held that allegations in a complaint 18 cannot simply recite the elements of a cause of action, “but must contain sufficient allegations of 19 underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” 20 Starr, 652 F.3d at 1216. The allegations must also plausibly suggest an entitlement to relief, 21 “such that it is not unfair to require the opposing party to be subjected to the expense of 22 discovery and continued litigation.” Id. 23 B. Facts Outside Complaint Cannot be Considered on Motion to Dismiss 24 Here, Defendant County argues facts outside of the first amended complaint to support its 25 position as to whether a claim has been stated in the first amended complaint and whether 26 Plaintiff should be granted leave to amend. Defendant County contends that the clerk’s 27 supervisor from CFMG did not report the matter involving coworker 1 until days later and that 28 Plaintiff is aware that it was not reported until days later. As discussed above, the Court declines 10 1 to take judicial notice of the facts contained in Ms. Gibson’s deposition testimony. In deciding a 2 Rule 12(b)(6) motion, the Court may not look beyond the complaint without converting the 3 motion to a motion for summary judgment. Ranch Realty, Inc. v. DC Ranch Realty, LLC, 614 F. 4 Supp. 2d 983, 987 (D. Ariz. 2007). The Court declines to convert the instant motion to dismiss 5 into a motion for summary judgment. The Court considers whether a claim has been stated 6 based upon the allegations set forth in the first amended complaint.7 First, the Court addresses Defendant County’s argument that the first amended complaint 7 8 is insufficient because the new allegations are based on “information and belief.” Second, the 9 Court addresses Plaintiff’s allegation that Defendant County is liable because it failed to have an 10 adequate policy to facilitate opposite sex transports and failed to require the presence and 11 supervision of at least two correctional officers, one of each sex, when transporting inmates, and 12 failed to properly hire, train, instruct, monitor, supervise, evaluate, investigate, and discipline 13 Defendant Rich, Doe defendants, and any other personnel under each supervisor defendant’s 14 supervision.8 15 C. Allegations Based on Information and Belief 16 Defendant County argues that courts have rejected allegations based upon “information 17 and belief.” Plaintiff counters that there is nothing talismanic about the phrase “information and 18 19 20 21 22 23 24 25 26 27 28 7 As stated above, a court generally cannot consider material outside of the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc., 896 F.2d at 1555 n.19. However, the incorporation by reference doctrine allows material that is attached to the complaint to be considered, as well as “unattached evidence on which the complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the document is central to plaintiff’s claim; and (3) no party questions the authenticity of the document.” Corinthian Colleges, 655 F.3d at 999. 8 Defendant County also contends that Plaintiff cannot comply with the Rule 11 requirements because if she could, the complaint would allege the factual basis of her claims. However, Defendant County has not made a separate motion for Rule 11 sanctions. Based on the record before the Court at this time, the Court will not order Plaintiff to show cause why sanctions should not be imposed for the allegations in the first amended complaint. Because the Court will allow for amendment, any subsequent amendment is subject to Rule 11 and if any party violates Rule 11, the Court will entertain a motion for sanctions. The Court relies upon the sanctity of pleadings in the complaint and answer. If the Court finds that a complaint is sufficient and then subsequently finds out that the allegations are patently false, the Court will entertain a request for sanctions by the party who had to conduct discovery on false allegations and the Court will consider awarding that party any fees and expenses it incurred in conducting discovery. Careful attention must be made in drafting one’s pleading. “Information and belief” is not immunity from sanctions. 11 1 belief” that triggers a heightened pleading standard.9 Allegations on information and belief are 2 ones where the person making the allegations does not have personal knowledge. See Bank 3 Melli Iran v. Pahlavi, 58 F.3d 1406, 1412 (9th Cir. 1995). “Pleading on information and belief is 4 a desirable and essential expedient when matters that are necessary to complete the statement of 5 a claim are not within the knowledge of the plaintiff but he has sufficient data to justify 6 interposing an allegation on the subject.” 5 Charles Alan Wright et al., Federal Practice & 7 Procedure § 1224 (3d ed., Apr. 2015 update) (collecting cases). In Soo Park v. Thompson, 851 F.3d 910, 928-29 (9th Cir. 2017), the Ninth Circuit held 8 9 that “[b]ecause many of the relevant facts here are known only to the defendant, and in light of 10 11 12 13 9 Defendant County cites to Blantz v. California Dept. of Corrections & Rehab., Div. of Correctional Health Care Services, 727 F.3d 917 (9th Cir. 2013), Yeftich v. Navistar, Inc., 722 F.3d 911 (7th Cir. 2013), and Chavez v. United States, 683 F.3d 1102 (9th Cir. 2012) to support its argument that courts have rejected allegations based upon “information and belief.” However, the courts in these cases did not hold that the fact that the allegations in a complaint are based upon “information and belief” causes the allegations to be insufficient to state a claim under Iqbal/Twombley. Blantz, 727 F.3d at 926-27; Yeftich, 722 F.3d at 916-17; Chavez, 683 F.3d at 1110. In Blantz, the Ninth Circuit determined that the complaint did not contain specific factual allegations regarding the 14 defendant’s involvement in the actions giving rise to the lawsuit, such as “the negative performance review, the termination of her placement, the failure to provide notice of these decisions and the negative job references.” 15 Blantz, 727 F.3d at 927. The Ninth Circuit found that “[a]lthough [defendant] is alleged to have ‘directed’ the other defendants to take these actions, no factual assertions support this allegation, and the conclusory allegations are 16 insufficient on their own to defeat a motion to dismiss.” Id. (citing Chavez, 683 F.3d at 1110). 17 In Yeftich, as part of the finding that a plaintiff did not state a claim for the breach of the duty of fair representation based on bad faith, the Seventh Circuit found that “[a]lthough the plaintiffs generally allege that the union is guilty 18 of bad faith because it ‘diverted, stalled, and otherwise terminated’ their grievances, the complaint lacks the factual specificity required to state a plausible breach-of-fair-representation claim.” Yeftich, 722 F.3d at 916. The court 19 found that “[b]are assertions of the state of mind required for the claim—here “bad faith”—must be supported with subsidiary facts.” Id. (citing Iqbal, 556 U.S. at 680-83). The court also found that plaintiffs did not state a claim for 20 the breach of the duty of fair representation based on arbitrariness because “[t]he plaintiffs generally allege an 21 22 23 24 25 26 27 28 arbitrary failure to act on their grievances (‘upon information and belief, none have been processed and all are dead’), but factual detail in support of this otherwise conclusory allegation is entirely missing.” Yeftich, 722 F.3d at 916-17. When the court considered the fact that “the union enjoys substantial discretion in fulfilling its duty of fair representation,” it found that the skeletal allegations in the complaint that mirror the elements of the alleged claim do not state a plausible claim for relief. Id. at 917. Although Defendant County argues in its reply that it cited to Chavez for authority that a Plaintiff cannot rely on conclusory pleadings by merely alleging “on information and belief,” in Chavez, there is no mention that the allegations in the complaint were based “on information and belief.” Chavez, 683 F.3d at 1105-1112. The Ninth Circuit found that the plaintiffs had stated a claim against only one supervisory defendant and had failed to state a claim against the other supervisory defendants because there were no “alleged facts that would allow a court to draw a reasonable inference that a reasonable supervisor in these defendants’ situations would have found their conduct to be clearly unlawful.” Id. at 1110. The court discounted the “wholly conclusory allegation that the supervisory defendants ‘personally reviewed and, thus, knowingly ordered, directed, sanctioned or permitted’ the allegedly unconstitutional stops” and found that “the remaining allegations do not plausibly suggest that these supervisors clearly should have regarded their conduct as unlawful.” Id. 12 1 the additional facts alleged by [plaintiff], we conclude that she has pleaded sufficient facts to 2 state a plausible claim for civil conspiracy under Section 1983.” The Ninth Circuit quoted the 3 Second Circuit’s holding that “[t]he Twombly plausibility standard … does not prevent a 4 plaintiff from pleading facts alleged upon information and belief where the facts are peculiarly 5 within the possession and control of the defendant or where the belief is based on factual 6 information that makes the inference of culpability plausible.” Soo Park, 851 F.3d at 928 7 (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) and citing Concha v. 8 London, 62 F.3d 1493, 1503 (9th Cir. 1995)). 9 Therefore, the fact that Plaintiff’s first amended complaint contains numerous allegations 10 that are “based upon information and belief” does not, in itself, mean that Plaintiff has failed to 11 state a claim against Defendant County. The Court next reviews the allegations in the first 12 amended complaint to determine whether Plaintiff has sufficiently alleged a policy, custom, 13 practice, procedure, omission, or any other basis that amounts to deliberate indifference to 14 Plaintiff’s constitutional right pursuant to Monell. 15 D. Unconstitutional Policy, Practice, Custom, or Omission 16 Although Plaintiff frames her argument in several ways she essentially argues that 17 Defendant County’s policies, practices, and customs regarding opposite sex inmate officer 18 transports were deficient and constituted deliberate indifference. The majority of the parties’ 19 arguments address Plaintiff’s allegations that Defendant County failed to have an adequate 20 policy for facilitating opposite sex transports, where the correctional officer carrying out the 21 transport is the opposite sex of the inmate. The parties’ arguments also address the specific 22 allegation that Defendant County should have had a policy requiring the presence and 23 supervision of at least two correctional officers, one of each sex, when transporting inmates to 24 and from the Merced County Courthouse and the JLCF. Defendant County argues that Plaintiff 25 has not sufficiently pled the deliberate indifference element of the Monell claim. 26 As in the previous motion, Defendant County relies on Flores v. County of Los Angeles, 27 758 F.3d 1154 (9th Cir. 2014), to support its argument for dismissal. In Flores, the Ninth Circuit 28 upheld a district court’s dismissal for Plaintiff’s failure to state a Monell claim for failure to 13 1 train. In Flores, the plaintiff “alleged that defendants ‘failed to implement proper training to 2 protect women to ensure that Sheriff’s [d]eputies do not sexually assault women that … [they] 3 come into contact with at the Vehicle Inspection Area.’ ” Flores, 758 F.3d at 1157. The 4 plaintiff “proposed additions to the Sheriff’s Department Manual that would instruct deputies 5 that they ‘shall not sexually harass or sexually attack women with whom they come into contact.’ 6 ” Id. The Ninth Circuit found that “[t]he isolated incidents of criminal wrongdoing by one 7 deputy other than Deputy Doe 1 do not suffice to put the County or Baca on ‘notice that a course 8 of training is deficient in a particular respect,’ nor that the absence of such a course ‘will cause 9 violations of constitutional rights.’ ” Id. at 1159 (quoting Connick v. Thompson, 563 U.S. 51, 62 10 (2011)). There was not a “pattern of similar constitutional violations by untrained employees.” 11 Flores, 758 F.3d at 1159 (citing Connick, 563 U.S. at 63.) Although there is a “narrow range of 12 circumstances [in which] a pattern of similar violations might not be necessary to show 13 deliberate indifference,” the Ninth Circuit found that the failure to train police officers not to 14 commit sexual assault did not have patently obvious unconstitutional consequences. Flores, 758 15 F.3d at 1159-1160 (quoting Connick, 563 U.S. at 63). 16 Here, Plaintiff again alleges in the first amended complaint that Defendant County should 17 have had a policy, procedure, or program that would facilitate opposite sex transports in a 18 fashion that would protect female inmates from male correctional officers sexually assaulting 19 them. (FAC at ¶ 42.) Plaintiff also alleges that Defendant County should have required the 20 “presence and supervision of at least two COUNTY Correctional Officers, one of each sex, when 21 transporting detainees to and from the Merced County Courthouse and JLCF.” (Id.) 22 Additionally, Plaintiff alleges that Defendant County “fail[ed] to have and enforce necessary, 23 appropriate, and lawful policies, procedures, and training programs to prevent or correct the 24 unconstitutional conduct, customs, and procedures described in this Complaint and in 25 subparagraphs (a) through (d) above, when the need for such was obvious, with deliberate 26 indifference to the rights and safety of Plaintiff and the public, and in the face of an obvious need 27 for such policies, procedures, supervision, and/or training programs.” (Id.) Plaintiff also alleges 28 that Defendant County failed to properly hire, train, instruct, monitor, supervise, evaluate, 14 1 investigate, and discipline Defendant Rich, Doe defendants, and any other personnel under each 2 supervisor defendant’s supervision, with deliberate indifference to Plaintiff’s constitutional 3 rights. (Id. at ¶ 49.) In this action, the alleged constitutional violation is similar to Flores. In both cases, a 4 5 plaintiff was allegedly sexually assaulted by an employee of the defendant entity. While the sole 6 claim in Flores was based on a failure to train officers not to commit sexual assaults, here, 7 Plaintiff alleges other theories of Monell liability in addition to a failure to train theory. At the 8 hearing, Plaintiff stated that she is asserting a failure to train claim, but not relying on it. She 9 then stated that Flores controls the failure to train claim. Defendant County argues that the bare 10 allegations in Flores are very similar to the nonconclusory allegations in the case at hand. 11 Defendant County contends that Plaintiff has not pled the necessary facts to show deliberate 12 indifference because she has not shown a pattern of similar violations.10 13 Pattern of Similar Violations 14 Here, Plaintiff makes several allegations regarding Defendant Rich’s conduct and 15 investigations of Defendant Rich’s conduct prior to the instant incident to support deliberate 16 indifference. As stated above, the objective deliberate indifference standard is met when a 17 “plaintiff [ ] establish[es] that the facts available to [entity] policymakers put them on actual or 18 constructive notice that the particular omission is substantially certain to result in the violation of 19 the constitutional rights of their citizens.” Castro, 833 F.3d at 1076 (quoting Canton, 489 U.S. at 20 396) (emphasis added). Plaintiff alleges in the first amended complaint that Defendant Rich previously 21 22 committed nonconsensual sexual batteries in the course and scope of his employment with 23 24 25 26 27 28 10 The Court recognizes that deliberate indifference is not per se about facts showing notice, knowledge or prior acts. However, the rule of law for Monell liability requires a showing that Defendant County was deliberately indifferent to one’s constitutional rights and that its employees violated those rights. Castro, 833 F.3d at 1076 (quoting Canton, 489 U.S. at 392). Facts associated with knowledge, notice and/or prior acts leads one to establishing “deliberate indifference” as may other facts (ie: policy, if one exists). Therefore, the court is not saying one has to have these per se facts in a complaint to prove deliberate indifference- just facts to show that deliberate indifference. To state a claim, Plaintiff must allege sufficient facts to plausibly suggest that Defendant County is liable for the misconduct alleged. See Iqbal, 556 U.S. at 678; AE ex rel. Hernandez, 666 F.3d at 637 (citing Starr, 652 F.3d at 1216). Otherwise, a Monell claim would be based upon respondeat superior, which is not permissible. Monell, 436 U.S. at 691. 15 1 Defendant County prior to the instant incident and that Defendant County had actual and 2 constructive knowledge of at least some of such incidents. (FAC at ¶ 19.) This allegation is not 3 sufficient to state the deliberate indifference element as it is conclusory as it does not explain 4 how Defendant County had actual and constructive knowledge. Therefore, this allegation, and 5 the other allegations that merely state “that Defendant County had actual and constructive 6 knowledge” do not contain sufficient factual information beyond reciting the element of 7 deliberate indifference and do not plausibly show that Plaintiff is entitled to relief. See Starr, 652 8 F.3d at 1216. Plaintiff specifically alleges two incidents where Defendant Rich allegedly committed 9 10 sexual batteries during the course of his employment against females who worked for Defendant 11 County.11 (Id. at ¶¶ 21-23.) Plaintiff alleges that the incident with coworker 1 was reported to 12 Defendant County prior to the instant incident. (Id. at ¶ 21.) However, this allegation only 13 shows that Defendant County had knowledge of one incident of sexual assault involving 14 Defendant Rich on the same day of the instant incident, which is not sufficient to plead 15 deliberate indifference. Allegations that Defendant County was aware that Defendant Rich had 16 committed a sexual battery prior to the instant incident are similar to the allegations in Flores, 17 where the Ninth Circuit found that isolated incidents by a deputy other than the defendant deputy 18 were insufficient to show a “pattern of similar constitutional violations” to show deliberate 19 indifference on the part of Defendant County. See Flores, 758 F.3d at 1159. Plaintiff does not allege that the incident with coworker 2 was reported to Defendant 20 21 County or a supervisor prior to the instant incident. Plaintiff alleges that following the incident 22 with coworker 2 and prior to the instant incident, coworker 2 told another correctional officer, 23 “Please don’t leave me alone with him again,” and the other correctional officer responded, 24 “…That’s why I came back.” (Id. at ¶¶ 22-23.) Plaintiff argues that this statement by the other 25 correctional officer shows that the other correctional officer had actual and constructive 26 knowledge of Defendant Rich’s propensities to assault. (Id. at ¶ 23.) However, this is 27 11 As discussed above, the incidents involving coworker 1 and coworker 2 occurred on the same day as the instant 28 incident. 16 1 insufficient to plead deliberate indifference, as one officer making a statement that could be 2 viewed as that officer knowing about Defendant Rich’s propensities to sexually assault is 3 insufficient to show that Defendant County had the knowledge required for deliberate 4 indifference. Further, Plaintiff conceded at the hearing that Defendant County itself did not have 5 actual or constructive knowledge of the incident with coworker 2 prior to the instant incident. Plaintiff alleges that supervisors at JLCF, coworkers of Defendant Rich, Defendant 6 7 County, and others had actual and constructive knowledge prior to the instant incident of 8 Defendant Rich’s propensities, prior sexual batteries, and the fact that Defendant Rich utilized 9 secluded settings to accomplish sexual harassment and sexual batteries, but they failed to protect 10 female inmates, including Plaintiff, and female coworkers from Defendant Rich, instead 11 continuing to permit Defendant Rich to have unrestricted and secluded access to female inmates 12 and female coworkers. (Id. at ¶ 26.) As discussed above, the allegation that Defendant County 13 had actual and constructive knowledge without more factual detail is insufficient. Plaintiff also alleges that Defendant Rich was the subject of a number of IA 14 15 investigations by Defendant County prior to the incidents involving Plaintiff, coworker 1, and 16 coworker 2. (Id. at ¶ 24.) Regarding these IA investigations, Plaintiff alleges that “[o]n 17 information and belief, at least some of such incidents involved sexual misconduct, including, 18 but not limited to sexual harassment, or sexual batteries of female inmates or co-workers.” 19 (Id.)12 Plaintiff’s allegation regarding the IA investigations of Defendant Rich is phrased so that 20 the incidents may have only involved sexual harassment of female inmates or co-workers. 21 Therefore, based on the allegations in the first amended complaint, the IA investigations are not 22 23 24 25 26 27 28 12 At the hearing, Defendant County stated that there were no IA investigations for Defendant Rich. The Court cannot take this assertion into account on the instant motion to dismiss, as the Court must look at the allegations contained in the complaint, material that is attached to the complaint, and evidence not attached to the complaint on which the complaint “necessarily relies.” Hal Roach Studios, Inc., 896 F.2d at 1555 n.19; Corinthian Colleges, 655 F.3d at 999. When Plaintiff’s counsel was asked at the hearing what the allegation regarding IA investigations is based on, he stated that Plaintiff does not know what the IA reports are based on and Plaintiff does not have any evidence that the IA investigations were involving sexual misconduct. Plaintiff’s counsel believes that it was appropriate to make this allegation (FAC at ¶ 24) “on information and belief” because it is reasonable to allege that Defendant Rich who committed these three sexual assaults involving Plaintiff, coworker 1, and coworker 2, had committed sexual assaults prior to the day of the three incidents and felt comfortable repeating sexual misconduct. However, the Court finds that the fact that Defendant Rich committed these three incidents does not reasonably lead to the conclusion that there would be IA investigations against him involving sexual misconduct prior to the three incidents and is not a sufficient basis to make an allegation “on information and belief.” 17 1 sufficiently similar to the violations alleged in the instant incident. Plaintiff further alleges that prior to the instant incident, other correctional officers and 2 3 Defendant County transport officers that worked at JLCF transporting female inmates to and 4 from court had also previously committed nonconsensual sexual batteries in the course and scope 5 of their employment with Defendant County and that Defendant County had both actual and 6 constructive knowledge of at least some of such incidents. (Id. at 20.) Plaintiff’s allegation 7 regarding the other correctional officers and transport officers committing sexual assaults only 8 states that Defendant County had both actual and constructive knowledge. Again, Plaintiff does 9 not explain how Defendant County had actual or constructive knowledge. Therefore, the Court finds that Plaintiff has not sufficiently alleged that Defendant 10 11 County had knowledge, whether actual or constructive, of a pattern of similar constitutional 12 violations by its officers. More importantly, the first amended complaint is devoid of facts to 13 show deliberate indifference by Defendant County. The Court next addresses Plaintiff’s 14 arguments that Defendant County’s other policies are sufficient to show that it acted with 15 deliberate indifference. Defendant County’s Other Policies 16 1. 17 Plaintiff argues that Defendant County’s own policies show that it was aware of the risk 18 of sexual assault between officers and inmates.13 Plaintiff points to Defendant County’s policy 19 regarding opposite sex transports in medical emergencies (JTO Performance Module 13), which 20 she contends shows that Defendant County was aware of the risk of inappropriate conduct 21 between male guards and female inmates during transport. In support of her argument that allegations of deliberate indifference can be based upon 22 23 the policy of an entity even if there are no prior incidents, Plaintiff cites Castro, a failure to 24 protect case where the Ninth Circuit affirmed jury instructions that did not require proof of a 25 pattern of similar prior incidents. Castro, 833 F.3d at 1076-77. In Castro, Ninth Circuit found 26 that, “[t]he County Board of Supervisors’ affirmative adoption of regulations aimed at mitigating 27 28 13 While Plaintiff argues that Defendant County’s policy addressing the Prison Rape Elimination Act (JTO Performance Module 32) shows notice by Defendant County, JTO Performance Module 32 was not mentioned in the first amended complaint. Therefore, the Court does not further address Module 32. 18 1 the risk of serious injury to individuals housed in sobering cells, and a statement to the same 2 effect in the station’s manual, conclusively prove that the County knew of the risk of the very 3 type of harm that befell Castro.” Id. at 1077. The Los Angeles County Code incorporated 4 chapters of the California Building Code which required an “an inmate-or sound-actuated audio 5 monitoring system in ... sobering cells ... which is capable of alerting personnel who can respond 6 immediately.” Id. at 1076-77 (citing Cal. Bldg. Code tit. 24 § 1231.2.22 (2007)). The West 7 Hollywood police station manual, which is the location of the incident at issue in Castro, also 8 “mandate[d] that a sobering cell ‘allow for maximum visual supervision of prisoners by staff.” 9 Castro, 833 F.3d at 1077. The West Hollywood police station manual also forbade the use of 10 non-compliant sobering cells. Id. The sobering cell at the West Hollywood police station that 11 was the subject of the case was non-compliant because it lacked all required padding and did not 12 “allow for maximum visual supervision of prisoners by staff.” Id. 13 As the Court noted at the hearing, the medical transports in medical emergencies can 14 require the unclothing of the inmate to address a medical emergency whether that be CPR or 15 some other medical procedure, a situation which would not necessarily apply to transporting an 16 inmate to court. While both involve transporting inmates, the reason for the transport raises 17 different potential for inmate contact. Module 13 is specifically addressing inmate transportation 18 to the hospital in a medical emergency. Medical transports to the hospital in an emergency and 19 transports from the court to the jail are not the same. The Court finds that Defendant County’s 20 policy requiring deputies to state the starting and ending mileage in opposite sex transports in 21 medical emergencies (Module 13) is insufficient at the pleading stage to show that Defendant 22 County was deliberately indifferent in opposite sex transports from court to JLCF. Next, the 23 Court addresses whether Defendant County’s actions after the instant incident are sufficient to 24 allege deliberate indifference for the Monell claim. Defendant County’s Actions After the Instant Incident 25 2. 26 Although Plaintiff recognizes that Defendant Rich was terminated from his job with 27 Defendant County, Plaintiff argues that Defendant County was deliberately indifferent because it 28 did not change its policy regarding opposite sex transports from the court to JLCF after the 19 1 instant incident even though it revised Modules 13 and 32 in March 2015. To show ratification, 2 a plaintiff must prove that the ‘authorized policymakers approve a subordinate’s decision and the 3 basis for it.’ ” Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999) (quoting City of St. Louis, 4 485 U.S. at 127). “We have found municipal liability on the basis of ratification when the 5 officials involved adopted and expressly approved of the acts of others who caused the 6 constitutional violation.” Trevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996). Ratification 7 generally requires more than acquiescence. Sheehan v. City and County of San Francisco, 743 8 F.3d 1211, 1231 (9th Cir. 2014). At the hearing, Plaintiff argued that Grandstaff v. City of Borger, Tex., 767 F.2d 161 (5th 9 10 Cir. 1985), shows that there is no need to show prior incidents where the conduct of the entity 11 after the incident indicates a culture, custom, or practice. Plaintiff asserts that the lack of a 12 policy change was a key factor in the finding of liability in Grandstaff and that similarly, in the 13 present case, there was no change in policy after the instant incident. In Grandstaff, the Fifth 14 Court found that“[t]he evidence does prove repeated acts of abuse on this night, by several 15 officers in several episodes, tending to prove a disposition to disregard human life and safety so 16 prevalent as to be police policy or custom.” Grandstaff, 767 at 171. The Fifth Circuit also 17 found: 18 The disposition of the policymaker may be inferred from his conduct after the events of that night. Following this incompetent and catastrophic performance, there were no reprimands, no discharges, and no admissions of error. The officers testified at the trial that no changes had been made in their policies. If that episode of such dangerous recklessness obtained so little attention and action by the City policymaker, the jury was entitled to conclude that it was accepted as the way things are done and have been done in the City of Borger. If prior policy had been violated, we would expect to see a different reaction. If what the officers did and failed to do on August 11, 1981 was not acceptable to the police chief, changes would have been made. 19 20 21 22 23 24 Id. The instant case is distinguishable from Grandstaff and other cases which are based on a 25 26 27 28 ratification theory. Here, Defendant Rich was terminated14 and is now facing criminal 14 Although Plaintiff does not allege in her first amended complaint that Defendant Rich was terminated following the instant incident, she also does not allege that he was not terminated and she states in her opposition to the motion to dismiss that he was terminated. 20 1 prosecution. The fact that Defendant County did not change its policies regarding opposite sex 2 transports from court to JLCF after the instant incident is not sufficient to state a claim on a 3 ratification theory. Further, Plaintiff does not clearly allege in the first amended complaint that 4 Defendant County did not change its policy regarding opposite sex transport from court to JLCF 5 after the instant incident. Therefore, the Court finds that Plaintiff has not sufficiently alleged a 6 ratification theory. 7 3. Notice Based on General Information 8 Plaintiff also alleges that Defendant County was on constructive notice of officer-on- 9 inmate sexual assaults in correctional facilities. Plaintiff does not provide any authority that 10 allegations that cite to articles and statutes demonstrating the prevalence of sexual abuse of 11 inmates by guards in correctional facilities are sufficient to show actual or constructive 12 knowledge of a problem within a specific correctional facility. In Flores, where there was not a 13 “pattern of similar constitutional violations by untrained employees,” the Ninth Circuit found 14 that not training officers not to sexually assault would not have patently obvious unconstitutional 15 consequences. Flores, 758 F.3d at 1159 (citing Connick, 563 U.S. at 63.) Plaintiff attempts to 16 use articles regarding statistics and accounts of officer-on-inmate sexual assault, and statutes 17 addressing officer-on-inmate sexual assault to show the vulnerabilities of female inmates. 18 Plaintiff argues that Defendant County knew the vulnerabilities of female inmates and allowed 19 unsupervised opposite sex transports (transports of female inmates by one male officer) and 20 permitted the transports to be without review and recording. Plaintiff’s argument would, in 21 essence, mean that every plaintiff sufficiently pleads the deliberate indifference element of a 22 Monell claim against every entity in the United States for officer-on-inmate sexual assault 23 because of statistics, articles, and statutes regarding officer-on-inmate sexual assault that are not 24 specific to that entity or even the area that the entity is in.15 25 15 The Court notes that one of the articles with data that Plaintiff cites in the first amended complaint provides that 26 Merced County Jail authorities had no allegations of sexual victimization in 2011, but it does not affirmatively say that Merced County Jail authorities did or did not have allegations of sexual victimization in 2010 and 2009. See 27 https://www.bjs.gov/index.cfm?ty=pbdetail&iid=4881 (last visited May 24, 2017). Merced County Jail was not part of the list of authorities with no allegations of sexual victimization in 2010 and 2009, but it was also not listed in the 28 table for jails with allegations of sexual victimization reported by local jail authorities in 2010 and 2009. Id. 21 1 To the extent that Plaintiff is arguing that Plaintiff’s Monell claim falls within the narrow 2 circumstances of cases in which a pattern of similar violations might not be necessary to show 3 deliberate indifference, Plaintiff’s complaint fails to state a claim. This case is distinguishable 4 from the hypothetical that the Supreme Court has given “of a city that arms its police force with 5 firearms and deploys the armed officers into the public to capture fleeing felons without training 6 the officers in the constitutional limitation on the use of deadly force.” Connick, 563 U.S. at 63 7 (citing Canton, 489 U.S. at 390 (internal citations and quotation marks omitted). The Court 8 cannot say that the violation of federal rights in this case, the sexual assault of Plaintiff, is a 9 “highly predictable” or “plainly obvious” consequence of Defendant County’s action or inaction. 10 The Court finds that there is no basis to conclude that Plaintiff has sufficiently pled that the 11 unconstitutional consequences of failing to have a policy of two or more officers transporting 12 opposite sex inmates, having a policy allowing one officer to transport opposite sex inmates, not 13 recording times of transports, not using cameras to record transports, and the other policies and 14 omissions that Plaintiff alleges in the first amended complaint are so patently obvious that 15 Defendant County was deliberately indifferent. See Flores, 758 F.3d at 1160. 16 Therefore, the Court finds that Plaintiff has not sufficiently pled that the facts available to 17 entity policymakers put them on actual or constructive notice that the particular policy, custom, 18 practice, or omission is substantially certain to result in the violation of the constitutional rights 19 of their citizens. See Castro, 833 F.3d at 1076 (quoting Canton, 489 U.S. at 396). Accordingly, 20 Plaintiff has failed to state a Monell claim against the County of Merced. Although the Court 21 has found that Plaintiff fails to state a Monell claim as she fails to allege sufficient facts for 22 deliberate indifference, the Court will address Defendant County’s argument regarding the 23 inadequate hiring theory. 24 4. Inadequacy of Hiring Theory 25 Defendant County also argues that Plaintiff fails to allege any facts supporting her claim 26 that Defendant County inadequately hired Defendant Rich, any Doe Defendants, and any other 27 personnel under each supervisor defendant’s supervision. The Supreme Court found that in 28 claims based on deficiencies related to hiring, “[o]nly where inadequate scrutiny of an 22 1 applicant’s background would lead a reasonable policymaker to conclude that the plainly 2 obvious consequence of the decision to hire the applicant would be the deprivation of a third 3 party’s federally protected right can the official’s failure to adequately scrutinize the applicant’s 4 background constitute ‘deliberate indifference.’ ” Board of County Com’rs of Bryan County, 5 Okl. v. Brown, 520 U.S. 397, 411 (1997). The first amended complaint does not contain any 6 allegations concerning Defendant County’s inadequacies in hiring Defendant Rich, any Doe 7 Defendants, and any other personnel under each supervisor defendant’s supervision. The first 8 amended complaint does not allege any facts describing how Defendant County was deficient in 9 the hiring of Defendant Rich, any doe Defendants, and any other personnel under each 10 supervisor defendant’s supervision. Therefore, the Court finds that Plaintiff has insufficiently 11 alleged a Monell claim based on the hiring of Defendant Rich as she has not alleged any facts to 12 support this claim. 13 Accordingly, the Court recommends that Defendant County’s motion to dismiss the 14 Monell claim be granted. 15 E. Leave to Amend 16 The final inquiry regarding Defendant County’s motion to dismiss is whether Plaintiff 17 should be granted leave to amend her Monell claim. 18 Generally, leave to amend shall be freely given when justice so requires. Eminence 19 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). “This policy is ‘to be 20 applied with extreme liberality.’” Id. (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 21 F.3d 708, 712 (9th Cir. 2001)). Leave to amend should be freely given in the absence of any 22 apparent or declared reason, such as undue delay, bad faith or dilatory motive on the part of the 23 movant, repeated failure to cure deficiencies by amendments previously allowed, undue 24 prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, 25 etc. Id. at 1051-52. Absent prejudice, or a strong showing of the other factors, there exists a 26 presumption under Rule 15(a) in favor of granting leave to amend. Id. at 1052. “Dismissal with 27 prejudice and without leave to amend is not appropriate unless it is clear on de novo review that 28 the complaint could not be saved by amendment.” Id. at 1052 (citing Chang v. Chen, 80 F.3d 23 1 1293, 1296 (9th Cir. 1996)). To the extent that new or different facts can be alleged to render her Monell claim 2 3 cognizable, Plaintiff should be granted an opportunity to amend her Monell claim. Plaintiff will 4 be given one final opportunity to amend. Accordingly, the Court recommends that Plaintiff be 5 granted leave to amend. 6 V. 7 RECOMMENDATIONS Based on the foregoing, it is HEREBY RECOMMENDED that Defendant County’s 8 9 motion to dismiss the Monell claim be GRANTED with leave to amend. These findings and recommendations are submitted to the district judge assigned to this 10 11 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 12 (14) days of service of these findings and recommendations, any party may file written 13 objections to these findings and recommendations with the Court and serve a copy on all parties. 14 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 15 Recommendations.” Within fourteen (14) days of service of any objections, any party may file a 16 reply. The district judge will review the magistrate judge’s findings and recommendations 17 pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections 18 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 19 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 20 1991)). 21 22 IT IS SO ORDERED. 23 Dated: May 26, 2017 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 24