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United States District Court, S.D. California

September 20, 2005.

ARNOLD C. BACON, JR., Plaintiff,

The opinion of the court was delivered by: PETER LEWIS, Magistrate Judge

On February 14, 2005, Plaintiff Arnold C. Bacon ("Bacon"), a civil detainee proceeding pro se, filed a complaint ("Complaint") against Defendants William B. Kolender and the San Diego County Board of Supervisors for violation of his civil rights under Title 42, United States Code § 1983. (Doc. No. 1) Defendant San Diego County Board of Supervisors ("Board") moves to dismiss the Complaint based on Bacon's failure to allege either facts or a theory sufficient to constitute a claim against the Board upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 12) Upon reviewing the Complaint, the Board's Motion to Dismiss, Bacon's Opposition and the Board's Reply, the Court recommends that the Board's Motion to Dismiss be GRANTED. II.


  The Complaint states that Bacon is a civilly committed detainee confined at Atascadero State Hospital pursuant to California's Sexually Violent Predator Act ("SVPA").*fn1 (Compl. at 3A) The events giving rise to Bacon's Complaint occurred on three separate occassions: first, on or about March 26, 2003; then, on or about April 4, 2003; and finally, during the period between April 7, 2003 and September, 2003. (Compl. at 3) During these periods of time, Bacon was transferred to and confined at San Diego County Central Jail ("SDCCJ") and George Bailey Detention Facility ("GBDF") for court appearances. Id. During his stay in the two San Diego County jails, Bacon alleges that his confinement and the conditions of his confinement resulted in violations of his constitutional rights.

  In Count One, Bacon alleges he was the victim of unreasonable searches and seizures. (Compl. at 3) Specifically, during each jail transfer Bacon was strip-searched numerous times within the view of female guards. Id. Bacon claims that GBDF conducted weekly strip searches and strip searches for punishment. Id. Additionally, Bacon alleges that guards confiscated legal research from his jail cell. Id.

  In Count Two, Bacon claims he was denied his right to adequate medical care. (Compl. at 4) A doctor at SDCCJ determined that many of the medications that Bacon had been taking at Atascadero State Hospital would no longer be provided. Id. Consequently, a controllable itching problem resurfaced while at the jails. Id. Additionally, Bacon claims the guards took his earplugs, citing the jail's security measures as explanation, resulting in poor sleeping conditions. Id. Lastly, the Complaint states that although the doctor at SDCCJ allowed Bacon to keep possession of his asthma inhaler, it was later taken away at GBDF never to be returned. Id. In Count Three, Bacon alleges a denial of his right to privacy. (Compl. at 5) First, the jailhouse staff recorded approximately ten telephone calls made to his attorney in violation of his right to privacy. Id. Bacon also claims a violation of his rights when "forced to urinate, defecate, and shower where he could be viewed by male and female guards." Id.

  In Counts Four through Eight, Bacon states the housing and treatment he endured at the jails violated his Due Process and Equal Protection rights, his Fifth Amendment right against Double Jeopardy, and his rights provided by the Ex Post Facto Clause because he was treated as a convicted criminal rather than as a civil detainee. (Compl. at 5A-5D) Bacon claims he was often chained to criminal detainees while outside his jail cell. (Compl. at 5A) Also, the jailhouse staff transported Bacon to court on a bus with criminal detainees. Id. During the bus ride, the guards placed Bacon inside a cage where criminal detainees threatened and spat on him. Id. After arriving at SDCCJ, Bacon notified the classification officer of his civil detainee status and demanded not to be housed with criminal detainees. (Compl. at 5B) In response, the officer told Bacon his only housing choice was between "main population or protective custody." Id. Bacon chose to be housed in protective custody and the officer placed him in a tank module with approximately twenty criminal detainees. Id. Bacon asserts he is "a civilian and had no business being placed in a hostile, penal environment where his ability to enjoy [his constitutional rights] . . . were severely curtailed." (Compl. at 5C) Bacon complains that his treatment in jail subjected him to "more restrictive, punitive, and degrading conditions than other civil commitment detainees." Id.



  A. Legal Standard

  The Board filed an Answer to the Complaint on June 14, 2005, the same day it filed the Motion to Dismiss. (Doc. No. 11) Federal Rule of Civil Procedure 12 requires that a motion made pursuant to Rule 12(b)(6) be filed prior to the filing of a responsive pleading. FED. R. CIV. P. 12; Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). Once a party files an answer, the appropriate procedural device is a motion for judgment on the pleadings pursuant to Rule 12(c). FED. R. CIV. P. 12(c). Therefore, the Court will review the motion pursuant to Federal Rule of Civil Procedure 12(c).

  When Rule 12(c) is used to raise the defense of failure to state a claim, the motion for judgment on the pleadings faces the same test as a motion under Federal Rule of Civil Procedure 12(b)(6). McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir. 1988). The complaint should not be dismissed unless "it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations." Id. (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). "A judgment on the pleadings is properly granted when, taking all the allegations in the pleading as true, the moving parties are entitled to judgment as a matter of law." Smith v. National Steel & Shipbuilding Co., 125 F.3d 751, 753 (9th Cir. 1997).

  As with Rule 12(b)(6) motions, in addition to assuming the truth of the facts pled, the court must construe all reasonable inferences drawn from these facts in the plaintiff's favor. See Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989). However, vague and conclusory allegations concerning official involvement of government in civil rights violations will not pass muster. Ivey v. Bd. of Regents of Univ. Of Alsaska, 673 F.2d 266, 268 (9th Cir. 1982). Moreover, the court does not have to accept as true legal conclusions couched as factual allegations, if those conclusions cannot be reasonably drawn from the alleged facts. Cholla Ready-Mix Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004).

  Although Rule 12(c) does not mention leave to amend, courts have discretion both to grant a Rule 12(c) motion with leave to amend and to simply grant dismissal of the action instead of entry of judgment. See Carmen v. San Francisco Unified Sch. Dist., 982 F.Supp. 1396, 1401 (N.D. Cal. 1997); Moran v. Peralta Cmty. Coll. Dist., 825 F.Supp. 891, 893 (N.D. Cal. 1993). Federal Rule of Civil Procedure 15(a) provides that leave to amend should be freely granted when "justice so requires." FED. R. CIV. P. 15(a); See U.S. ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). In assessing whether leave to amend is proper, courts consider "the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and futility of the proposed amendment." Id. (citing Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989)).

  Finally, Rule 12(c) motions are improper when the court must go beyond the pleadings to resolve an issue; such a proceeding must properly be treated as a motion for summary judgment. FED. R. CIV. P. 12(c). The Board's motion asserts contentions relating solely to the sufficiency of the allegations in the Complaint. No other evidence relevant to these contentions has been submitted to the Court. Therefore, the motion should not be analyzed as a summary judgment motion under Federal Rule of Civil Procedure 56(c). FED. R. CIV. P. 56(c) (Rule 56(c) analysis takes into consideration evidence outside the pleading such as "depositions, answers to interrogatories, and admissions on file, together with affidavits"). Instead, this court will analyze the motion under the aforementioned Rule 12(b)(6) standards.

  B. Analysis

  The Board claims that Bacon's complaint is conclusory and fails to allege the facts necessary to establish a nexus between the Board and the unconstitutional policies alleged in the Complaint. Bacon asserts that the Board is liable for these alleged constitutional violations because the San Diego County Board of Supervisors "sets policy for the jail and is directly responsible for establishing the rules by which the County jail system is operated." (Compl. at 2) Additionally, Bacon claims San Diego County Sheriff Kolender's policymaking actions inside the jails are an extension of the Board's regulatory power over the jails. (Opp'n at 3)

  1. Section 1983 Liability of Local Government Bodies

  Local government bodies may be sued under section 1983 for constitutional injuries. Monell v. New York City Dept. Of Social Servs., 436 U.S. 658, 694 (1978). Claims may not be based on a respondent superior theory of liability under section 1983. Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989). Liability may be imposed only if the plaintiff establishes that his injuries were inflicted pursuant to an official county policy or custom. Id. Official county policy may be set only by an official with "final policymaking authority." Id. (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83 (1986) (plurality opinion)). To identify those officials with "final policymaking authority," a court must look to state law. Id. (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 126 (1988) (plurality opinion)).

  2. Policymaking Authority

  The responsibility for operating jails in California is placed by law upon the sheriff. Cal. Penal Code section 4000; Brandt v. Board of Supervisors, 84 Cal.App.3d 598, 601 (1978) (ruling that a California county board of supervisors "not only has no duty, but has no right to control the operation of [a county] jail"). The sheriff is required by statute to take charge of and maintain the county jail and its prisoners: the sheriff is answerable for the prisoner's safekeeping. See Cal. Gov. Code section 26605, 26610; Cal. Penal Code section 4006; Brandt, 84 Cal.App.3d at 601 (noting the only "clear and present duty enjoined by law upon a board of supervisors with regard to a county jail is to provide the sheriff with food, clothing, and bedding for prisoners (Pen. Code, § 4015) and to pay as a county charge other expenses incurred in the keeping of prisoners (Gov. Code, § 29602).") The board of supervisors generally oversees the official conduct of county officers. See Cal. Gov. Code section 25303.

  Bacon makes the broad allegation that the Board sets policy and establishes the rules by which the county jail system is operated. However, he alleges no facts to show the Board implemented policy or rules that led to his alleged unconstitutional treatment. Without the aid of additional information, it would be unreasonable to infer that the Board established such policy.

  Moreover, in light of the California statutory and case law regarding policymaking authority, which convincingly establishes the Board does not control policy concerning the matters the Plaintiff complains of, such an inference is simply wrong. According to Cal. Penal Code section 4015 ("board . . . to provide the sheriff with food, clothing, and bedding for prisoners . . ."), Cal. Gov. Code section 29602 ("board . . . to pay as a county charge other expenses incurred in the keeping of prisoners"), and Cal. Gov. Code section 25303 (board generally oversees conduct of county officers), it is clear that the Board plays a budgetary role within the county jails. According to Cal. Penal Code section 4000 ("responsibility for operating jails in California is placed by law upon the sheriff"), it is the sheriff who possesses policymaking authority over the operation of county jails. In short, the Board is not the appropriate defendant in this case. 3. Causation

  Even assuming Bacon could point to a policy established by the Board, a section 1983 plaintiff still must show that the government body, through its deliberate conduct, was the "moving force" behind the injury alleged. Bryan County Commissioners v. Brown, 520 U.S. 397, 403-04 (1997). The plaintiff "must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Id. at 404.

  Bacon fails to allege any facts showing the Board was the "moving force" behind the treatment alleged in the Complaint. Bacon does not provide the required demonstration of a direct causal link between any action taken by the Board and the jails' alleged treatment of Bacon as a criminal detainee rather than a civil detainee. For example, in Bryant County Commissioners, the court determined that a sheriff's hiring of a deputy sheriff without performing an adequate background check did not subject the county to liability because it was not shown that the county, through its deliberate conduct, was the moving force behind the excessive force used by the deputy sheriff complained of by the plaintiff. Bryant County Commissioners, 520 U.S. at 415. Similarly, Bacon presents no evidence of deliberate acts by the Board which caused Bacon's purported injuries.

  As shown above, under California law the sheriff operates the county jails. Bacon fails to identify a specific policy undertaken or produced by the Board. Bacon also fails to allege deliberate conduct by the Board that was the moving force behind the injuries he suffered. Therefore, taking all the allegations in the pleading as true, the Board is entitled to judgment as a matter of law.



  For the reasons set forth above, the Board should not be held liable for the constitutional violations Bacon asserts in the Complaint. Therefore, the Court recommends the Board's motion to dismiss be GRANTED with leave to amend.

  This Report and Recommendation is submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).

  Accordingly, IT IS ORDERED that, no later than ten (10) days from the date this order is filed, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation." The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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