The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
On June 13, 2008, Defendants County of Sacramento, Sheriff John McGinnis in his official capacity and Lou Blanas ("Blanas") in his individual capacity (collectively "Defendants") filed a motion for summary adjudication of Plaintiffs' third and fourth claims in Plaintiffs' Second Amended Complaint.*fn3 Defendants also seek dismissal of all class action allegations, Doe Defendants (claim one) and Defendant William Kevin Sowles (claim two). Plaintiffs Robert Hunter ("Hunter") and Howard Eley ("Eley") oppose the summary adjudication motion, but have not opposed the dismissal motions. (Opp'n at 1:23-26.)
The Order Setting Status (Pretrial Scheduling) Conference filed March 6, 2008, required Plaintiffs to justify keeping allegations against Doe Defendants in the action and warned that failure to provide justification could result in the Doe Defendants being dismissed; since said justification has not been provided, and the discovery and law and motion deadlines have past, the Doe Defendants are dismissed.
Further, the Status (Pretrial Scheduling) Order filed November 17, 2006, provided Plaintiffs notice under Rule 4(m) of the Federal Rules of Civil Procedure that if Defendant William Kevin Sowles was not served with the Second Amended Complaint on or before December 20, 2006, he would be dismissed from this action for failure to serve process within Rule 4(m)'s 120-day service period unless Plaintiffs filed on December 21, 2006 either a proof of service or an explanation of good cause why Sowles should not be dismissed. To date, Plaintiffs have not filed anything required by the Order and there is no indication whatsoever that Sowles has been served or will be served; therefore, Sowles is dismissed from this action.
In addition, since Plaintiffs failed to file a motion to certify a class action as prescribed in the Status (Pretrial Scheduling) Order filed November 17, 2006, Plaintiffs' class action claims are dismissed.
Hunter was arrested for driving under the influence on September 17, 2005. (Second Am. Compl. ¶ 9.) While at the Sacramento County Main Jail detox holding center, Hunter saw the toilet he desired to use was clogged and overflowing; therefore, he signaled to sheriff deputies to inform them of the toilet's condition and to request access to another toilet. (Id. ¶¶ 26-27.) Several unknown deputies responded by throwing him on the floor and applying force that resulted in a fractured elbow, stretched tendons, and nerve damage. (Id. ¶¶ 33, 28.) In addition, Hunter feared his safety would be threatened if he asked to use a telephone. (Hunter Decl. ¶ 32.)
Eley was incarcerated in the Main Jail on or about March 21, 2004, where Eley and then-deputy sheriff Sowles had a verbal disagreement, following which Sowles shoved, slapped and then chocked Eley without provocation. (Second Am. Compl. ¶¶ 11, 48.)
Plaintiffs allege in their third claim that the excessive force to which they were subjected, in violation of their rights under 42 U.S.C. § 1983, was ratified in an unwritten policy allowed to exist by the County of Sacramento and former County of Sacramento Sheriff Lou Blanas, and that this policy has resulted in other detainees being subjected to excessive force in the County's Main Jail, and led to Hunter and Eley's injuries. (Compl. ¶¶ 63, 99, 100, 122, 126.)
Plaintiffs allege in their fourth claim that their liberty interests, and the liberty interests of other inmates, were violated when the County of Sacramento and former Sheriff Lou Blanas ratified a policy preventing them from making phone calls. (Id. at ¶¶ 148, 155, 158, 164.)
SUMMARY JUDGMENT STANDARD OF REVIEW
When considering a summary judgment motion, the facts are viewed in the light most favorable to the non-moving party and reasonable inferences are drawn in the non-movant's favor. Devereaux v. Abbey, 263 F.3d 1070, 1086 (9th Cir. 2001). ANALYSIS
A. Against the County of Sacramento
The County argues it is entitled to summary judgment because it "has established specific [constitutional] policies [and training] regarding both the general treatment of persons incarcerated and, specifically, with respect to the use of force." (Mot. at 6:24-7:3 (citing Main Jail Operations Orders 1/30 and 3/11).) Plaintiffs argue this evidence is not relevant, contending that the policies have not been shown to have been in effect at the time of Plaintiffs' incarceration. However, the County provides the declaration of Dawn Douglas in which she declares that the policies were in effect in 2004 and 2005. (Supp. Douglas Decl. ¶ 3.) In addition, the County presents evidence the policies were in effect before 2004 since the policies attached to the Douglas declaration contain notations that they were revised in 1998 and 2002. (Douglas Decl. Exs. A, B, C.) Therefore, Plaintiffs' objection is overruled. Defendants have shown that the County's formal written policies prohibit the use of excessive force.
Plaintiffs counter with the declarations of Hunter, Eley, Austin Chase ("Chase") and their expert Lieutenant Timothy Twomey (retired) ("Twomey"), arguing these declarations show, notwithstanding the County's written policies and training, that the County had an unwritten policy at the ...