United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER RE DEFENDANTS'
SECOND MOTION TO DISMISS (ECF No. 23)
Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE
a putative class action suit commenced by Plaintiffs Armando
Osegueda and Robert Palomino (“Plaintiffs”)
alleging four causes of action under 42 U.S.C. § 1983
against Defendants Stanislaus County Public Safety Center
(“PSC”); Stanislaus County Sheriff's Office
(“Sheriff's Office”); Adam Christianson, the
Stanislaus County Sheriff; Bill Duncan, PSC Facilities
Captain; Greg Clifton, Lieutenant of Units 1 and 2; Ronald
Lloyd, Commander of Bureau Administrative Services; Steven
Verver, a sergeant at PSC; and James Shelton, a
classification officer at PSC (collectively,
“Defendants”). Second Amended Complaint
(“SAC”) (ECF No. 22). Plaintiffs filed the SAC
after the Court issued a memorandum decision and order
granting in part and denying in part Defendants' motion
to dismiss the First Amended Complaint. See ECF No.
before the Court is Defendants' second motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No.
23. Plaintiffs filed their opposition (ECF No. 25) and
Defendants have replied (ECF No. 26). This matter is suitable
for disposition on the papers. See E.D. Cal. L.R.
230(g). For the reasons the follow, the Court GRANTS IN PART
AND DENIES IN PART Defendants' motion to dismiss.
Classification at Stanislaus County Detention
booking in Stanislaus County detention facilities, detainees
are asked whether they are “active” or “a
drop-out, ” or if they can be housed “with
anybody or whether they need protection.” SAC
¶¶ 78-79. They are not provided the option to say
that they are neither. Id. ¶ 79. If a detainee
is classified as an active Norteño (gang member) he is
issued a green and white jumpsuit, which, according to
Sheriff's Office policy, denotes “Administrative
Segregation and Norteño, ” and is housed in an
“active tank, ” along with other suspected gang
members Id. ¶ 80. According to this policy,
detainees subject to “Administrative Segregation”
are defined as
Inmates who are determined to be prone to escape, assault
staff, assault other inmates, violate facility rules or
criminal laws, and/or disrupt the operations of the facility.
Administrative segregation shall consist of separate and
secure housing, but shall not involve any other deprivations
of privileges other than is necessary to obtain the objective
of protecting other inmates and staff or as a consequence of
the inmates behavior.
Id. ¶¶ 51, 81. Furthermore, the
Sheriff's Office maintains a list of “hazard codes,
” assigning codes to Norteño, Sureño, and
Northern Hispanic groups (which are typically associated with
persons of Hispanic descent), ” but does not assign
codes to groups associated with other races, such as the
Aryan Brotherhood, Skinheads, Juggalos, Crips, Bloods, and
Pirus. Id. ¶ 57, 82. The Sheriff's Office
also does not disclose its classification records to
defendants or their attorneys, but makes these records
available to the prosecution. Id. ¶¶ 56,
83. As a result, detainees cannot “intelligently answer
or oppose [their] classification.” Id.
Conditions in Norteño and Northern Hispanic
“Tanks” at the Stanislaus County Men's
who are classified as active Norteños are housed in
“active tanks” upon booking. Id. ¶
80. The active tanks house both pretrial detainees and
individuals serving sentences for misdemeanors and/or serving
“local prison” time pursuant to AB
and pre-trial detainees and convicted inmates are often
housed in the same tank. Id. ¶ 90-91. Each
active tank is twenty-five feet by twenty feet, contains six
bunk beds, and houses twelve men. Id. ¶¶
84-85. The tanks are also equipped with two toilets and sinks
and two large picnic-style tables and a telephone.
Id. ¶ 85, 87. Some tanks are “unsanitary
and in disrepair” and contain black mold; upper
respiratory infections and other illnesses are common among
inmates housed in the active tanks. Id. ¶ 89.
housed in active tanks are “offered yard privileges
outside constrained in a series of cages, without
recreational equipment, for three hours a week.”
Id. ¶ 91. The three hours are split into two
ninety-minute increments. Id. If a detainee is away
when his yard time his called, he is not given an alternate
time and must wait until the next week for his yard
they are housed in the active tanks, detainees are restrained
by waist chains, shackles, and lockboxes that secure their
hands tightly to their waist during attorney visits, personal
visits, and trips to the courthouse. Id. ¶ 92.
The lockboxes at the Men's Jail cause detainees to
experience pain and discomfort and make the use of telephones
painful and impracticable. Id. ¶ 92-93.
Conditions in the “B-Max”
B-Max is the maximum security unit at PSC. Id.
¶ 29. Assignment to the B-Max is often based on the
charges that the pretrial detainee is facing allegations that
have been charged (but not proven) that the person is a
Norteño or Northern Hispanic gang member. Id.
¶ 54. At the time the SAC was filed, there were fifteen
pretrial detainees housed in the B-Max who were classified as
active Norteño or Northern Hispanic gang members.
Id. ¶ 49. These detainees have been housed in
administrative segregation for periods ranging from between
five months and seven years, and half of these detainees have
been housed in administrative segregation without meaningful
review for more than three years. Id. There are also
pretrial detainees who have been housed in the B-Max for more
than ten years waiting for their trials. Id.
Administrative segregation is “over-used” in the
Stanislaus County jail system and the majority of pretrial
detainees who are housed in administrative segregation are
housed there for “non-disciplinary reasons.”
Id. ¶ 51. Pretrial detainees who are assigned
to the B-Max are often kept in the B-Max for disciplinary
reasons and are often held there for indeterminate lengths
after their disciplinary periods are served. Id.
detainee housed in the B-Max shares a “cramped concrete
cell” that measures six-and-a-half feet by twelve feet
with one other cellmate. Id. ¶ 59. The cell has
a bunk bed, a combination toilet-sink unit, a desk, a stool,
and a fluorescent light in the ceiling. Id.
Detainees in the B-Max stay in their cells for thirty-eight
to eighty continuous hours at a time and are only permitted
three showers per week and three hours of
“yard/recreation” time per week. Id.
¶¶ 59, 64. First-floor detainees are scheduled for
yard time on Mondays, Thursdays, and Saturdays for one hour
at a time. Id. Second-floor detainees are scheduled
for yard time on Tuesdays, Fridays, and Sundays. Id.
Morning and evening yard times are alternated. Id.
“recreational yard” is an enclosed concrete cell
with a window approximately twenty feet high equipped with a
telephone and a television. Id. ¶ 63-64. There
is no access to the outdoors, no exercise equipment, no
recreational equipment, and no seating. Id. ¶
64. Because the window is covered with a screen or wired
mesh, the window does not allow for unobstructed sunlight and
fresh air, and does not afford detainees an outdoor
environment. Id. B-Max detainees are only exposed to
the outdoors during their walks to and from transportation
taking them to the courthouse. Id. ¶ 65.
Furthermore, the yard schedule and telephone restrictions
limit B-Max detainees to only four telephone calls during
normal business hours per month. Id. ¶ 67.
detainees housed in active tanks, B-Max detainees are also
restrained by waist chains, shackles, and lockboxes that
secure their hands to their waist during attorney visits,
personal visits, and court. Id. ¶ 71. The
lockboxes cause them to experience pain and discomfort and
make it painful and impracticable for detainees to use the
telephones to speak to their visitors. Id.
detainees are unable to challenge or request meaningful
review of the conditions in the B-Max, including the amount
of time in which they are confined to their cells.
Id. ¶ 68, 70. Defendant Clifton has informed
them that housing is not a “grievable” matter and
that housing in the B-Max “is not a restrictive
program.” Id. ¶¶ 68, 70. Defendant
Verver has informed them that “current policy and
procedure are being administered correctly in regards to the
classification and housing of inmates in Stanislaus County.
You were and are housed with respect to your charges.”
Id. ¶ 69. Defendants, “by and through
their policies and practices, personally and through their
agents, ” have suggested that if detainees are unhappy
with their housing, they could always debrief. Id.
¶ 75. Furthermore, detainees are denied the ability to
make “citizen's complaints” regarding officer
misconduct or the “disproportionately harsh treatment
they are afforded, ” and are then informed that they
are “not a citizen, you are an inmate.”
Id. ¶ 77.
Plaintiffs and Their Putative Classes
Armando Osegueda is a thirty-five-year-old pretrial detainee.
Id. ¶ 47. He was placed in the care and custody
of the Sheriff's Office on March 12, 2012. Id.
¶ 30. Osegueda was housed in the B-Max from October 17,
2012 until August 2016. Id. ¶ 31. Despite a
Sheriff's Office policy stating that all detainees are
granted a classification review every three months, Osegueda
did not receive a classification review for nearly four years
while he was housed in the B-Max. Id. ¶ 32-33.
In May 2016, Osegueda was granted a “downgrade packet,
” but was never afforded the opportunity to challenge
his classification or present his views regarding
classification. Id. He was granted a green and white
jumpsuit (which denotes administrative segregation) rather
than the red and white jumpsuit (which denotes maximum
security) that he had been wearing since his incarceration.
Id. ¶ 34. In August 2016, Osegueda was moved
into an active Norteño tank, but was returned to the
B-Max, without warning or hearing, on January 20, 2017.
Id. ¶ 35-36. As of January 30, 2017, Osegueda
had not yet received a hearing or classification review
regarding his return to the B-Max. Id. ¶ 37.
Robert Palomino is a forty-seven-year-old pretrial detainee.
Id. ¶ 39, 47. He was placed into the care and
custody of the Sheriff's Office on February 26, 2013, and
was housed in the B-Max from February 26, 2013 until May
2016. Id. ¶ 38. Palomino did not receive a
classification review while he was in the B-Max and
repeatedly requested to be downgraded. Id.
¶¶ 40-41. In or about May 2016, Palomino was pulled
from his cell and escorted into a room with Defendants
Shelton and Verver, and non-party Sergeant Martinez.
Id. ¶ 42. Palomino had previously submitted a
grievance, which Verver submitted to Defendant Lloyd.
Id. Lloyd then decided to remove Palomino from the
B-Max. Id. Palomino was subsequently granted a green
and white jumpsuit, and was moved into an active
Norteño tank. Id. ¶¶ 43-44.
However, on January 20, 2017, Palomino was returned to the
B-Max without warning or hearing, and as of January 30, 2017,
Palomino has not received a classification review or hearing.
Id. ¶¶ 45-46.
David Lomeli has been in the care and custody of the
Sheriff's Office since April 22, 2013. Id.
¶ 17. He denies any gang membership, has never received
a classification review, and at all relevant times, has been
housed in an active tank. Id.
Jairo Hernandez was in the care and custody of the
Sheriff's Office from December 15, 2015 through January
24, 2017, when the charges against him were dismissed.
Id. ¶ 21. Hernandez was housed in an active
Excessive Force Allegations
and those similarly situated are subjected to
“excessive force” during “raids” and
routine searches of their cells. Id. ¶ 96. When
correctional officers and members decide to search inside an
active tank, they use “flash bang” grenades on
the tier before approaching the cells and shooting into the
cell with shotguns or block guns while ordering detainees to
get down. Id. ¶ 98-99. Because the doors are
closed and locked, the correctional officers are not in any
danger as they conduct these searches. Id.
about October 2012, when Osegueda was in an active tank,
officers came inside his cell and shot pepper balls into it,
spraying powder everywhere, despite there being no threat to
the officers. Id. ¶ 100. The officers shouted
obscenities at the detainees, handcuffed them, and took them
to another room, where the detainees were strip searched and
the cell was searched. Id.
about July 2013, pretrial detainees in the B-Max, including
Osegueda and Palomino, were removed from their cells and
placed in a concrete “yard” in only their boxers
and were forced to remain on their knees with block guns
pointed at them for hours. Id. ¶ 105. They were
not permitted to move, shift, access restrooms or drink water
while the cells in the B-Max were being searched.
about June 2014, Osegueda and Palomino returned from court
and entered the B-Max. Id. ¶ 102. Detainees
were in the yard, on their knees, with guns pointed at them.
Id. Osegueda and Palomino were stripped and placed
in the yard on their knees, with guns pointed at them, for
another one to two hours. Id.
about November 2014, members of the Correctional Emergency
Response Team (“CERT”) entered the B-Max after
dinner and told detainees to “cuff up” through
the tray slot and threatened to shoot detainees if they
shifted. Id. ¶ 103. The officers pointed guns
and tasers at the detainees, who were moved to the
multipurpose room or showers to be strip searched before
being brought to the dayroom, where they remained for another
two to three hours. Id.
about December 2015, Lomeli and Hernandez were housed in the
active tank. Id. ¶ 104. At about 6:00 or 7:00
pm, Lomeli was in the dayroom watching television.
Id. CERT members began to conduct a search and shot
“pepper balls” and deployed a “flash-bang
grenade” near the cell shared by Lomeli and Hernandez.
Id. Hernandez was hit with shrapnel. Id.
Lomeli backed up to get out of the way, but was struck by
rounds in the neck and leg when he tried to duck behind the
table. Id. There was no ongoing incident and no
known threat to the officers, and no contraband was located.
about January 29, 2017, at approximately 6:00 am, while
Lomeli was sleeping in his cell in the active tanks, CERT
members approached his cell and started shooting from outside
the bars. Id. ¶ 106. Detainees were placed in
mechanical restraints as officers searched the cell.
January 17, 2017, the Court granted in part and denied in
part Defendants' motion to dismiss the FAC. ECF No. 21.
Specifically, the Court found that the FAC had stated
cognizable constitutional violations with regard to
Fourteenth Amendment conditions of confinement and due
process, dismissed the remaining claims and some of the
originally named Defendants, and granted Plaintiffs leave to
amend most of their claims. Id. at 22-23.
SAC, Plaintiffs now bring four constitutional claims based on
the allegations described above: conditions of confinement,
due process, equal protection, and excessive force. ECF No.
22. The SAC also re-asserts Monell liability against
the Sheriff's Office and PSC. Id. Plaintiffs
seek monetary damages, punitive damages, declaratory relief,
and injunctive relief. Id. at 27-28.
motion to dismiss pursuant to Rule 12(b)(6) is a challenge to
the sufficiency of the allegations set forth in the
complaint. Dismissal under Rule 12(b)(6) is proper where
there is either a “lack of a cognizable legal
theory” or “the absence of sufficient facts
alleged under a cognizable legal theory.” Balisteri
v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.
1990). In considering a motion to dismiss for failure to
state a claim, the court generally accepts as true the
allegations in the complaint, construes the pleading in the
light most favorable to the party opposing the motion, and
resolves all doubts in the pleader's favor. Lazy Y.
Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
survive a 12(b)(6) motion to dismiss, the plaintiff must
allege “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the Plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions.”
Twombly, 550 U.S. at 555 (internal citations
omitted). Thus, “bare assertions . . . amount[ing] to
nothing more than a ‘formulaic recitation of the
elements' . . . are not entitled to be assumed
true.” Iqbal, 556 U.S. at 681. “[T]o be
entitled to the presumption of truth, allegations in a
complaint . . . must contain sufficient allegations of
underlying facts to give fair notice and to enable the
opposing party to defend itself effectively.” Starr
v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In
practice, “a complaint . . . must contain either direct
or inferential ...