Smith v. Diaz et al, No. 4:2020cv04335 - Document 57 (N.D. Cal. 2023)
Court Description: ORDER DENYING 43 MOTION TO DISMISS. Case Management Statement due by 2/28/2023 and Initial Case Management Conference set for 3/7/2023 02:00 PM.The 3/7/2023 proceeding will be held by AT&T Conference Line. The parties are advised that in t he event of an audio problem, counsel should be prepared to attend the hearing via Zoom conference at the Courts direction. The court circulates the following conference number to allow the equivalent of a public hearing by telephone.For conferen ce line information, see: https://apps.cand.uscourts.gov/telhrg/ All counsel, members of the public and press please use the following dial-in information below to access the conference line: Dial In: 888-808-6929Access Code: 606425 5The Court may be in session with proceedings in progress when you connect to the conference line. Therefore, mute your phone if possible and wait for the Court to address you before speaking on the line. For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where at all possible, parties shall use landlines. The parties are further advised to ensure that the Court can hear and understand them clearly before speaking at length.PLEASE NOTE: P ersons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited. See General Order 58 at Paragraph III. Signed by Judge Haywood S. Gilliam, Jr. on 2/22/2023. (ndr, COURT STAFF) (Filed on 2/22/2023)
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Smith v. Diaz et al Doc. 57 Case 4:20-cv-04335-HSG Document 57 Filed 02/22/23 Page 1 of 11 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 C. JAY SMITH, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 20-cv-04335-HSG ORDER DENYING MOTION TO DISMISS v. RALPH DIAZ, et al., Re: Dkt. No. 43 Defendants. 12 Plaintiff C. Jay Smith filed this § 1983 action on June 29, 2020. Plaintiff brings the 13 following § 1983 claims: (1) an Eighth Amendment claim against Defendants Diaz and Davis for 14 failure to protect (see Dkt. No. 41, First Amended Complaint (“FAC”) ¶¶ 192-199); (2) a 15 Fourteenth Amendment claim against Defendants Duke, Haub, Bloise, and Taylor for a violation 16 of equal protection based on gender or transgender status (see id. ¶¶ 200-208); (3) a Fourteenth 17 Amendment claim against Defendants Feston, Haub, and Bloise for a violation of due process (see 18 id. ¶¶ 209-214); and (4) a Fourteenth Amendment claim against Defendants Duke, Haub, Bloise, 19 Franco, and Taylor for retaliation based on Plaintiff’s complaint under the Prison Rape 20 Elimination Act (“PREA”) (see id. ¶¶ 215-220). 21 Defendants Diaz and Davis previously moved to dismiss certain claims brought by 22 Plaintiff (see Dkt. No. 25, Motion to Dismiss), and the Court granted that motion with leave to 23 amend with respect to Plaintiff’s Eighth Amendment claim. See Dkt. No. 38, Order Granting in 24 Part and Denying in Part Defendants’ Motion to Dismiss, at 4. On April 29, 2022, Plaintiff filed 25 the FAC. See Dkt. No. 41. 26 27 Pending before the Court is the renewed motion to dismiss Plaintiff’s Eighth Amendment claim filed by Defendants Diaz and Davis, Dkt. No. 43, which the Court DENIES. 28 Dockets.Justia.com Case 4:20-cv-04335-HSG Document 57 Filed 02/22/23 Page 2 of 11 1 I. BACKGROUND The FAC alleges the following facts. 2 Plaintiff C. Jay Smith is an incarcerated transgender woman currently serving a 25 years3 to-life sentence with the possibility of parole. FAC ¶ 1. Ms. Smith’s incarceration at San Quentin 4 State Prison began in 2013 and ended in 2019. Id. ¶ 31. Defendant Diaz was the Secretary of the 5 California Department of Corrections and Rehabilitation (“CDCR”), and Defendant Davis was the 6 Warden of San Quentin, during the relevant period. Id. ¶¶ 18, 19. Defendant Davis has authority 7 over San Quentin, has supervisory authority over correctional staff, and has authority to oversee, 8 review, and approve investigations. Id. 9 While incarcerated at San Quentin, Plaintiff was “the victim of numerous acts of assault, 10 discrimination, harassment, and threats of retaliation related to her gender expression and identity United States District Court Northern District of California 11 by other people in custody and by CDCR employees.” Id. ¶ 34. Plaintiff alleges that these attacks 12 were the result of the failure by San Quentin and CDCR to implement provisions of PREA, a 13 federal law intended to deter the sexual assault of incarcerated people. Id. ¶¶ 162, 192-199. 14 Plaintiff alleges that Diaz and Davis knew of and perpetuated a culture of permitting sexual 15 harassment and assault to continue by failing to implement PREA rules intended to protect 16 transgender people in custody. Id. ¶ 152. Plaintiff alleges that Diaz and Davis, in their respective 17 roles, were aware or should have been aware that their failure to implement trans-specific PREA 18 rules, in particular for transgender women in men’s prisons, puts those women in danger. Id. ¶ 19 162. Plaintiff contends that the most recent PREA audit of San Quentin shows that it failed to 20 implement PREA rules designed to protect transgender women, including Plaintiff. Id. 21 Plaintiff alleges that Warden Davis, in particular, was not only aware of the PREA 22 research findings, but also had knowledge of threats against transgender inmates due to his 23 attendance at Institution Advisory Committee (“IAC”) meetings where Plaintiff or another 24 transgender inmate raised concerns about showering privacy. Id. ¶¶ 8, 54. In addition, Davis 25 served as chair of the Institutional PREA Review Committee (“IPRC”), which was responsible for 26 investigating incidents, examining the area of the facility where the incident occurred, preparing a 27 report and recommendation, and developing a plan to correct problems. Id. ¶ 165. PREA Rule § 28 2 Case 4:20-cv-04335-HSG Document 57 Filed 02/22/23 Page 3 of 11 1 115.86 and CDCR DOM § 54040.17 required establishment of the IPRC. Id. The chair is the 2 final decisionmaker. Id. Plaintiff alleges that Diaz and Davis were “or would have been made aware of San United States District Court Northern District of California 3 4 Quentin’s shower-related PREA violations through the IPRC annual data collection and reports 5 about San Quentin’s PREA compliance.” Id. ¶ 167. Per the 2020 PREA Audit Report, San 6 Quentin, under Davis’ leadership, collects data regarding the effectiveness of its sexual violence 7 prevention policies. Id. ¶ 168. Annual PREA Reports made clear that privacy or modesty screens 8 were needed to mitigate cross gender viewing issues. Id. ¶ 170. Davis’ role on the IPRC required 9 him to review complaints and assess the areas involved in the complaints and report PREA 10 noncompliance issues to Diaz. Id. ¶¶ 165, 194. Plaintiff alleges that Diaz and Davis “failed to 11 implement PREA screening, search, housing, and shower precautions for transgender people in 12 custody[.]” Id. ¶ 196. Plaintiff further alleges that Diaz and Davis’ failures and inaction with regard to known 13 14 constitutional violations were the moving force behind the deprivation of her constitutional rights. 15 Id. ¶ 197. Plaintiff alleges that Diaz and Davis exhibited deliberate indifference by failing to 16 comply with and implement the PREA rules. Id. ¶ 198. 17 II. LEGAL STANDARD 18 Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain 19 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 20 defendant may move to dismiss a complaint for failing to state a claim upon which relief can be 21 granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the 22 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 23 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 24 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on 25 its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 26 when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that 27 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 28 In reviewing the plausibility of a complaint, courts “accept factual allegations in the 3 Case 4:20-cv-04335-HSG Document 57 Filed 02/22/23 Page 4 of 11 1 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” 2 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless, 3 courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of 4 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 5 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). The Court 6 also need not accept as true allegations that contradict matters properly subject to judicial notice or 7 allegations contradicting the exhibits attached to the complaint. Sprewell, 266 F.3d at 988. 8 III. United States District Court Northern District of California 9 DISCUSSION To state a § 1983 claim under the Eighth Amendment against prison officials, Plaintiff 10 must plausibly allege that (1) the deprivation alleged is, objectively, sufficiently serious and (2) 11 the prison official is, subjectively, deliberately indifferent to the inmate’s health or safety. Farmer 12 v. Brennan, 511 U.S. 825, 834 (1994). A prison official exhibits deliberate indifference when the 13 official knows of and disregards a substantial risk of serious harm to inmate health or safety. Id. at 14 837 (holding that “a prison official cannot be found liable under the Eighth Amendment for 15 denying an inmate humane conditions of confinement unless the official knows of and disregards 16 an excessive risk to inmate health or safety; the official must both be aware of facts from which 17 the inference could be drawn that a substantial risk of serious harm exists, and he must also draw 18 the inference”). 19 Section 1983 liability for a supervisory prison official attaches “only if (1) he or she is 20 personally involved in the constitutional deprivation, or (2) there is ‘a sufficient causal connection 21 between the supervisor’s wrongful conduct and the constitutional violation.’” Crowley v. 22 Bannister, 734 F.3d 967, 977 (9th Cir. 2013). “Under the latter theory, supervisory liability exists 23 even without overt personal participation in the offensive act if supervisory officials implement a 24 policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving 25 force of a constitutional violation.” Id. (alteration adopted, internal citations and quotations 26 omitted). With regard to showing moving force, “[t]he plaintiff's burden is to establish that the 27 injury would have been avoided had proper policies been implemented.” Long v. Cnty. of Los 28 Angeles, 442 F.3d 1178, 1190 (9th Cir. 2006) (internal citations and quotations omitted). 4 Case 4:20-cv-04335-HSG Document 57 Filed 02/22/23 Page 5 of 11 Plaintiff’s first claim alleges under § 1983 that Secretary Diaz and Warden Davis violated United States District Court Northern District of California 1 2 the Eighth Amendment by failing to implement PREA Rules, resulting in conditions creating an 3 increased risk of sexual assault and harassment, which Plaintiff then suffered. Defendants argue 4 that Plaintiff’s allegations against Diaz and Davis again fail to support the inference that either of 5 them acted with deliberate indifference to the harm Plaintiff claims. Assessing whether the 6 allegations against each Defendant plausibly meet that standard, the Court finds that the FAC 7 sufficiently cures the pleading deficiencies identified in its prior order granting partial dismissal. 8 A. 9 In the FAC, Plaintiff contends that Davis was aware of the risk of the harms alleged based Warden Davis 10 on his professional responsibilities and attendance at meetings where concerns were raised. See 11 FAC ¶¶ 193-195. Two allegations are central to this theory. First, Davis, as chair of the IPRC, 12 was required to review complaints and assess areas for improvement with regard to PREA 13 noncompliance issues. Id. ¶¶ 19, 168, 194. Second, Davis was at meetings in 2018 and 2019 14 where Plaintiff or another transgender inmate presented complaints about the lack of privacy and 15 resulting sexual harassment in the showers. Id. ¶¶ 8, 54, 178, 180. The Court finds, taking these allegations as true as it must at this stage, that Plaintiff has 16 17 plausibly alleged that Warden Davis directly knew of and disregarded an excessive risk to inmate 18 safety. Plaintiffs allege that Davis failed to implement policies that would curb such violence 19 despite San Quentin having failed PREA audits and being required to take corrective action. Id. ¶ 20 197.1 The FAC also alleges that Davis had knowledge of the risks to transgender inmates based 21 on his review of IPRC data. Id. ¶ 165. And the Court finds especially pertinent the FAC’s 22 allegation that Davis attended at least two meetings at which transgender inmates, including 23 Plaintiff, expressed safety concerns based on San Quentin’s implementation of shower privacy 24 policies. Id. ¶¶ 8, 54, 178, 180. 25 26 27 28 Defendants’ invitation to the Court to consider audit reports not attached to the complaint, made for the purpose of undermining Plaintiff’s allegations and unaccompanied by any request for judicial notice or incorporation by reference, is improper at this stage. See Reply at 2, n.2; 5, n.3; see also United States v. Ritchie, 342 F.3d 903, 907-909 (describing exceptions to the general rule that 12(b)(6) motions are limited to the face of the pleadings as limited to i) incorporation by reference and ii) judicial notice). 5 1 Case 4:20-cv-04335-HSG Document 57 Filed 02/22/23 Page 6 of 11 Defendants argue that the allegations do not plausibly allege that Davis was deliberately United States District Court Northern District of California 1 2 indifferent to a risk of constitutional harm, or that there was a causal connection between his 3 actions and Plaintiff’s alleged injury. See Dkt. No. 43, Motion to Dismiss (“Mot.”) at 8-9. 4 Defendants argue that the fact that “transgender women [were permitted] to shower separately 5 from other people in custody[]” shows that Defendants were not deliberately indifferent. See id. at 6 9. But while that argument may or may not eventually have merit as a factual matter, at this stage 7 the allegations are sufficient when taken as true. Plaintiff plausibly pleads that the lack of privacy 8 was a serious harm, alleging, for example, that when another IAC representative reported the 9 problem to the lieutenant assigned to the showering area, he replied that he would report the 10 problem after she was raped. See FAC ¶ 176. Moreover, Plaintiff alleges that she has “been 11 forced to shower with dozens of men in custody or in direct view of other people in custody.” 12 FAC ¶ 174. Plaintiff further alleges that officials at San Quentin reversed the policy of permitting 13 “separate shower times for all transgender women or allow[ed] men in custody out of their cells 14 during the time allotted for transgender women to shower.” FAC ¶ 182. The FAC alleges that the 15 U.S. Department of Justice’s PREA rules protect transgender inmates not just from having to 16 shower with people of the opposite gender, but also from having to shower where “nonmedical 17 staff of the opposite gender” are able to “view[]” their private parts. FAC ¶¶ 5-6, 148 (emphasis 18 added). According to the FAC, CDCR’s policy precluding viewing only by people of the 19 “opposite biological sex” during showering violates the PREA rules framed in terms of “opposite 20 gender,” and thus discriminates against transgender inmates. Id. at ¶ 148.2 21 At the pleading stage, all of these allegations are enough to establish an objectively serious 22 harm: creation of an environment that both violates the privacy rights of transgender inmates and 23 subjects them to increased risk of sexual assault, harassment or stalking. And they also plausibly 24 25 26 27 28 2 Throughout their briefs, Defendants essentially quarrel with the substantive accuracy of the allegations. See Mot. at 8 (arguing that Plaintiff’s allegation that CDCR and San Quentin failed PREA audits “is contradicted by the 2019 San Quentin PREA Report that is available online”); Reply at 2 (asserting that “the factual allegations regarding the availability of shower privacy are vague and not entirely accurate”), 4 (taking issue with Plaintiff’s characterization of contents of audits as a factual matter). But the resolution of factual disputes of this sort is not proper at the motion to dismiss stage. 6 United States District Court Northern District of California Case 4:20-cv-04335-HSG Document 57 Filed 02/22/23 Page 7 of 11 1 allege that Warden Davis was sufficiently aware of this risk but failed to take the appropriate 2 corrective actions required by the law, thereby disregarding the risk of harm to Plaintiff. See FAC 3 ¶ 198. See McCurty v. Madsen, No. 21-CV-05435-YGR, 2021 WL 5998440, at *3 (N.D. Cal. 4 Dec. 20, 2021) (finding cognizable claim against warden based on sexually abusive pat-down 5 policy, where complaint alleged that “this type of conduct has been pervasive at [the prison] and 6 that defendant [warden] ‘knew of the violations and failed to act to prevent them’”) (quoting 7 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Osegueda v. Stanislaus Cnty. Pub. Safety Ctr., 8 No. 1:16-CV-1218-LJO-BAM, 2017 WL 1348943, at *14 (E.D. Cal. Apr. 11, 2017) (denying 9 motion to dismiss county sheriff where complaint alleged that he was responsible for conditions in 10 housing unit, and had been made “‘personally aware’ of conditions and deprivations in [the unit] 11 through meetings with the Stanislaus County Criminal Defense Bar”); cf. Jercich v. California 12 Dep't of Corr. & Rehab., No. 1:18-cv-00032-LJO-EPG-PC, 2019 WL 3231242, at *8 (E.D. Cal. 13 July 18, 2019), report and recommendation adopted, No. 1:18-cv-00032-LJO-EPG (PC), 2019 14 WL 4054006 (E.D. Cal. Aug. 28, 2019) (dismissing constitutional claim against warden where 15 there were “no allegations demonstrating that [warden] had notice of abuses or violations”). Because the FAC adequately alleges direct deliberate indifference liability on Warden 16 17 Davis’ part, the Court need not further consider whether the theories applicable only to 18 supervisory liability are also adequately pled.3 19 B. 20 Because Diaz is not alleged to have been personally involved in the events giving rise to Secretary Diaz 21 the alleged harm Plaintiff suffered, Plaintiff must show that he “implement[ed] a policy so 22 deficient that the policy itself is a repudiation of constitutional rights and [was] the moving force 23 of a constitutional violation.” Crowley, 734 F.3d at 977 (internal quotations and citation omitted). 24 While it is a close call, the Court finds that accepting the allegations against Secretary Diaz 25 as true, Plaintiff has plausibly alleged an Eighth Amendment violation at this stage. In contrast to 26 27 28 3 Even if the FAC did not adequately plead direct deliberate indifference liability on Defendant Davis’ part, the Court concludes that these same facts are sufficient at this stage to plead supervisory liability based on his implementation of the challenged policy, for the same reasons discussed below with respect to Defendant Diaz. 7 Case 4:20-cv-04335-HSG Document 57 Filed 02/22/23 Page 8 of 11 1 the allegations regarding Warden Davis, Plaintiff does not allege that Secretary Diaz was directly 2 responsible for reviewing complaints and assessing areas for improvement with regard to PREA 3 noncompliance issues, or that he was personally present at meetings where Plaintiff and another 4 transgender inmate raised concerns about inadequate shower privacy at San Quentin. Instead, 5 while the FAC (and Plaintiff’s opposition) attempt to lump Davis and Diaz together in a manner 6 not backed up by specific factual allegations regarding Diaz, the viability of the claim against him 7 comes down to whether the PREA shower privacy policies as alleged were so deficient as to 8 themselves violate the Eighth Amendment. The Court finds that while the facts pled in support of 9 this theory are not overwhelming, Plaintiff has alleged enough to proceed at this stage. 10 United States District Court Northern District of California 11 1. Deficiency Significantly, Plaintiff alleges that CDCR’s shower privacy policy is legally deficient on 12 its face because it differs in a key respect from the provisions of the Department of Justice’s 13 PREA Rules: 14 15 16 17 18 19 20 21 22 PREA Rule § 115.15(d) requires CDCR facilities to “implement policies and procedures that enable people in custody to shower, perform bodily functions and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. Despite the inclusive language in the federal PREA rules that allows transgender people the same dignity as their cisgender peers, CDCR’s policies and procedures relating to this PREA mandate explicitly removes the term “opposite gender” under the federal PREA rules and replaces it with “opposite biological sex” in the CDCR DOM—[a] term that is not defined in PREA, California law or in CDCR policies and procedures. FAC ¶ 148 (emphasis in original). Plaintiff thus alleges that “because of CDCR’s ‘opposite biological sex’ policy, transgender women at San Quentin, including Plaintiff, were forced to shower with and/or in the view of men.” Opp. at 11 (citing FAC ¶¶ 53, 172, 174). Plaintiff 23 further contends that this deficiency allowed another inmate to observe her in the shower, which 24 resulted in him stalking and harassing her there and elsewhere. FAC ¶¶ 50-58, 62, 66. The FAC 25 alleges that this deficiency was identified in PREA reports in 2016, 2107, 2018, 2019 and 2020, 26 and that Secretary Diaz was responsible for approving and publishing these annual reports. Id. ¶ 27 18, 158-160. The FAC alleges that the 2021 PREA audit conducted by the federal government 28 8 Case 4:20-cv-04335-HSG Document 57 Filed 02/22/23 Page 9 of 11 1 also identified this deficiency. Id. ¶ 161 (quoting finding with respect to West Block, where 2 Plaintiff alleges she was stalked and harassed, that “there were shower and toilet areas that were 3 identified during the on-site review that allowed opposite gender views and could not be remedied 4 prior to the issuance of the interim report”). United States District Court Northern District of California 5 The FAC alleges that “[a]s Secretary, Defendant Diaz had ultimate responsibility and 6 authority for the operation of CDCR, including the administration and implementation of CDCR’s 7 policies and procedures,” FAC ¶ 18. The FAC further alleges that CDCR’s official written 8 policies and procedures differ from the PREA Rules in a way that systematically discriminates 9 against transgender inmates and undermines their dignity and safety. Id. ¶¶ 147-148. At this 10 stage, these allegations sufficiently plead a deficient policy and enough of a connection to 11 Secretary Diaz to warrant the case proceeding against him. See Redman v. Cnty. of San Diego, 942 12 F.2d 1435, 1447 (9th Cir. 1991) (reversing directed verdict in favor of county sheriff where jury 13 could have found that he “acquiesced in a deficient policy that was a moving force behind 14 [plaintiff’s] rape and that repudiated [plaintiff’s] constitutional right to personal security”), 15 abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994), as recognized in Perez 16 v. Cox, 788 Fed. Appx. 438 (9th Cir. 2019); cf. Garcia v. Cate, No. ED CV 13-1610-JFW (MAN), 17 2015 WL 5998607, at *11 (C.D. Cal. June 4, 2015), report and recommendation adopted, No. ED 18 CV 13-01610-JFW (DFM), 2015 WL 5971550 (C.D. Cal. Oct. 13, 2015) (dismissing supervisory 19 liability claim against CDCR Secretary based on apparently unwritten “boots on the ground” 20 policy regarding response to security alarms). 21 22 2. Moving Force Defendants primarily argue that Plaintiff’s allegations do not “establish a causal 23 connection between” Secretary Diaz’s alleged failure to appropriately implement PREA policies 24 and the constitutional harm suffered by Plaintiff, such that the “moving force” requirement is not 25 met. See Mot. at 9-10. Defendants characterize Plaintiff’s allegation that she would not have been 26 subjected to harassment, stalking, or assault by her attacker if PREA rules had been implemented 27 at San Quentin as “speculat[ion].” Id. at 9. 28 The Court finds that taking the allegations as true, Plaintiff pleads a sufficient causal 9 United States District Court Northern District of California Case 4:20-cv-04335-HSG Document 57 Filed 02/22/23 Page 10 of 11 1 connection between Defendants’ alleged failure to implement adequate PREA policies and her 2 alleged injury (stalking and harassment in the showers and elsewhere). The FAC plausibly alleges 3 at length that PREA, and in particular its associated rules relating to shower privacy, are based on 4 the premise that cross-gender showering and observation pose a risk to both the dignity and the 5 safety of transgender inmates. See FAC ¶¶ 162, 170, 172, 174-182. In particular, the FAC quotes 6 a report prepared in 2020 by the California Inspector General’s Office that “devotes an entire 7 section to the dangers faced by transgender, nonbinary, and intersex people in CDCR custody in 8 the showers of CDCR transgender hub facilities because people in custody repeatedly raised this 9 issue in the comments of their surveys.” Id. ¶¶ 186-187. The FAC alleges that the report 10 “included several statements specifically from transgender women reporting safety concerns 11 related to lack of privacy in the showers at CDCR transgender hub facilities,” and noted that “[t]o 12 transgender, nonbinary and intersex individuals, privacy is not only self-respect and personal 13 dignity, but safety.” Id. ¶ 189. 14 The FAC thus plausibly pleads moving force at this stage, alleging that “[i]f the PREA 15 rules had been implemented at San Quentin, Plaintiff would not have been subject to repeated 16 stalking by [inmate] Prado in the shower because Prado would not have been allowed to view 17 Plaintiff during this time.” Id. ¶ 196. See Redman, 942 F.2d at 1447; Garcia, 2015 WL 5998607 18 at * 12 (finding moving force sufficiently pled at motion to dismiss stage where plaintiff 19 adequately alleged a connection between officers’ actions and the challenged policy). 20 Defendants argue that the causal connection here is “too attenuated to support a moving 21 force claim.” Reply at 6. In particular, they urge that “inmate Prado’s inappropriate behavior was 22 not a plausibly foreseeable result of the lack of shower privacy; it was an intervening act by 23 another individual that may have occurred regardless of the prison’s policy.” Id. The Court 24 disagrees: as alleged, the harm identified in the PREA Rules—the safety risk posed by allowing 25 cross-gender viewing in showers and elsewhere—is exactly the risk that came to pass when 26 Plaintiff was stalked and harassed by a male inmate who was allowed to watch her shower. Given 27 the close nexus between the violation claimed and the harm alleged, Defendants are not entitled to 28 dismissal. Whether Plaintiff can in fact prove her claims is an issue for summary judgment or 10 Case 4:20-cv-04335-HSG Document 57 Filed 02/22/23 Page 11 of 11 1 trial, not the motion to dismiss stage. 2 IV. 3 The Court accordingly DENIES Defendants’ motion to dismiss. The Court SETS a case 4 management conference for Tuesday, March 7, 2023 at 2:00 p.m. The Court further DIRECTS 5 the parties to submit a joint case management statement by February 28, 2023. All counsel shall 6 use the following dial-in information to access the call: 7 Dial-in: 888-808-6929 8 Passcode: 6064255 9 For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where 10 11 United States District Court Northern District of California CONCLUSION 12 at all possible, parties shall use landlines. IT IS SO ORDERED. Dated: 2/22/2023 13 14 HAYWOOD S. GILLIAM, JR. United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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