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Gonzalez v. County of Merced

United States District Court, E.D. California

May 26, 2017

COUNTY OF MERCED, et al., Defendants.


         On April 18, 2017, Defendant County of Merced (“Defendant County”) filed a motion to dismiss Plaintiff's Monell[1] claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The matter was referred to the undersigned for issuance of findings and recommendations pursuant to 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 appeared for Plaintiff and James Stone appeared for Defendant County. Having considered the moving, opposition and reply papers, the declarations and exhibits attached thereto, except as excluded below, arguments presented at the May 24, 2017 hearing, as well as the Court's file, the Court recommends that Defendant County's motion to dismiss be granted with leave to amend.



         On November 4, 2016, Plaintiff filed this action against Defendant County and Defendant Rich. (ECF No. 1.) On November 29, 2016, Defendant County filed a motion to dismiss. (ECF No. 7.) On December 20, 2016, Defendant Rich filed a motion to stay this action pending the resolution of the state criminal action against him. (ECF No. 11.) On February 1, 2017, the undersigned filed findings and recommendations recommending that Defendant County's motion to dismiss be granted with leave to amend and that Defendant Rich's motion to stay this action be granted as to Defendant Rich at this time. The Court recommended the action not be stayed as to Defendant County until an answer is filed by Defendant County. (ECF No. 25.) On March 21, 2017, Chief Judge Lawrence J. O'Neill adopted the findings and recommendations. (ECF No. 29.) The Court also set a review hearing as to Defendant Rich for May 24, 2017, at 10:00 a.m., before the undersigned. (ECF No. 29.)

         On April 4, 2017, Plaintiff filed her first amended complaint. (ECF No. 30.) On April 18, 2017, Defendant County filed a motion to dismiss the first amended complaint and a request for judicial notice.[2] (ECF Nos. 31, 32.) On May 10, 2017, Plaintiff filed her opposition to the motion to dismiss and a declaration with three exhibits.[3] (ECF No. 36.) On May 17, 2017, Defendant County filed a reply in support of the motion to dismiss. (ECF No. 39.)



         Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” A motion under Rule 12(b)(6) tests the legal sufficiency of a claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In deciding a motion to dismiss, the court is to accept as true “all material allegations of the complaint, . . . as well as all reasonable inferences to be drawn from them.” Navarro, 250 F.3d at 732. “[T]o be entitled to the presumption of truth, allegations in a complaint . . . may not simply recite the elements of a cause of action, but 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). While detailed factual allegations are not required, the factual allegations of the complaint must plausibly suggest an entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Starr, 652 F.3d at 1216. Dismissal of the complaint is appropriate where the complaint fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).



         On or about January 27, 2015, Plaintiff was a pretrial detainee in the custody of Defendant County, and was being transported from the Merced County Courthouse to John Latorraca Correctional Facility (“JLCF”) in a Defendant County vehicle driven by Defendant Rich. (FAC at ¶ 12, ECF No. 30.) One of Defendant Rich's responsibilities granted by Defendant County was driving inmates to and from their court appearances. (Id.)

         Plaintiff was seated on one side of the vehicle with another female inmate. (Id.) A cage separated the female inmates' side from the male inmates' side. (Id.) After the male inmates were unloaded and gone from the vehicle, Defendant Rich directed Plaintiff to exit the vehicle. (Id. at ¶ 13.) Plaintiff asked “[f]or what?” and then proceeded to get up from her seat to go to the other side of the vehicle. (Id. at ¶ 14-15.) In order to move to the other side of the vehicle, Plaintiff had to turn her back to Defendant Rich as she utilized the vehicle's built in step-stool to help her get down to the ground. (Id. at ¶ 15.) As she was on the step-stool part of the vehicle with her back to Defendant Rich, Defendant Rich deliberately, without consent, and in a constitutionally violative fashion put his hand on Plaintiff's vaginal area. (Id.) Plaintiff responded with an emphatic question along the lines of, “what the …?” in an immediate, vigorous, loud, and protesting manner as she sat down where she was ordered to sit by Defendant Rich. (Id. at ¶ 16.) Defendant Rich remained silent. (Id.)

         After Plaintiff seated herself, Defendant Rich, who was facing Plaintiff, groped Plaintiff again in her genital area. (Id.) Plaintiff was helpless and unable to defend herself because she was in full body shackles. (Id.)

         Defendant Rich then drove Plaintiff to the female entrance to the JLCF. (Id. at ¶ 17.) Defendant Rich groped Plaintiff in the vaginal area as she was stepping out of the van. (Id.) Plaintiff did not physically resist, insult, threaten, touch, batter, or assault Defendant or fail to 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 nonconsensual sexual batteries in the course and scope of his employment with Defendant County and that Defendant County had both actual and constructive knowledge of at least some of such incidents. (Id. at ¶ 19.) The prior incidents were accomplished using the opportunities created to commit sexual batteries by the policies, or lack or inadequacy thereof, created, executed, perpetuated, and/or facilitated by Defendant County. (Id.)

         Plaintiff provides specific allegations for two incidents by Defendant Rich. (Id. at 21-22.) Plaintiff alleges that prior to the instant incident, [4] Defendant Rich unlawfully touched a female (coworker 1).[5] This individual was an assistant/medical clerk at JLCF in the jail medical division who worked pursuant to a contract between Defendant County and the California Forensic Medical Group, Inc. (“CFMG”). (Id. at ¶ 21.) Plaintiff alleges that at, before, or around 10:00 a.m., Defendant Rich unlawfully and without consent groped coworker 1 in the left breast area and accomplished this by utilizing his position to gain private access to coworker 1 in circumstances that provided seclusion. (Id.) This incident was reported shortly thereafter to coworker 1's supervisor, and was thereafter reported to others, including officials of Defendant County, all prior to the instant incident. (Id.) Defendant County officials, supervisors, and 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 sexual battery against a female correctional officer at JLCF employed by Defendant County (“coworker 2”). (Id. at ¶ 22.) Just as he waited until he had an opportunity to commit the sexual battery against Plaintiff, Defendant Rich waited until he was alone with coworker 2 in a room at JLCF. (Id.) Defendant Rich asked coworker 2, “Let me touch your butt, let me touch your butt, ” and then after being refused, asked her, “Let me lick your clit.” (Id.) After sexually harassing coworker 2 and being refused, Defendant Rich grabbed her in the left buttocks area. Plaintiff contends this incident was due to Defendant County's failure-and Defendant Rich's knowledge of such failure-to protect female employees and female inmates from him and others. (Id.) Defendant Rich utilized his position of authority and the access to areas where he would be alone with female coworkers and female inmates to sexually harass and unlawfully and without consent grab the left buttocks of coworker 2. (Id.) After the incident, coworker 2 told another employee of Defendant County at JLCF that Defendant Rich had done something highly inappropriate to her, pleading, “Please don't leave me alone with him again.” (Id.) This statement was made prior to the instant incident. (Id.) The other correctional officer responded, “…That's why I came back, ” which Plaintiff alleges implied knowledge of Defendant Rich's propensities and implied that Defendant Rich's propensities were known within JLCF. (Id. at ¶ 23.) The other correctional officer had actual and constructive knowledge of Defendant Rich's propensities to commit such sexual batteries, and to touch women inappropriately or otherwise sexually harass them. (Id.)

         Supervisors at JLCF, coworkers of Defendant Rich, Defendant County, and others had actual and constructive knowledge prior to the instant incident of Defendant Rich's propensities, prior sexual batteries, and the fact that Defendant Rich utilized secluded settings to accomplish sexual harassment and sexual batteries, but they failed to protect female inmates, including Plaintiff, and female coworkers from Defendant Rich, instead continuing to permit Defendant Rich to have unrestricted and secluded access to female inmates and female coworkers. (Id. at ¶ 26.)

         Plaintiff alleges that prior to the instant incident and incidents involving coworker 1 and coworker 2, Defendant Rich was the subject of a number of internal affair (“IA”) investigations by Defendant County, but was exonerated by Defendant County in all of them. (Id. at ¶ 24.) At least some of these incidents involved sexual misconduct, including, but not limited to sexual harassment, or sexual batteries of female inmates or coworkers. (Id.) Plaintiff contends that Defendant County's acquiescence and failure to discipline Defendant Rich encouraged him and emboldened him to continue to engage in sexual misconduct because it signaled to him that he would not be disciplined by Defendant County. (Id.) Defendant Rich communicated Defendant County's acquiescence in his misconduct to female coworkers and others in order to generate fear and intimidate, dissuade, and discourage his victims. (Id.) Supervisors for Defendant County would discipline employees that would report misconduct to IA in situations where IA did not sustain the allegations or otherwise absolved the named employee, such as Defendant Rich. (Id. at ¶ 25.)

         Plaintiff alleges that prior to the instant incident, other correctional officers and Defendant County transport officers that worked at JLCF transporting female inmates to and from court had also previously committed nonconsensual sexual batteries in the course and scope of their employment with Defendant County and that Defendant County had both actual and constructive knowledge of at least some of such incidents. (Id. at 20.) Defendant Rich's unlawful touching of coworker 1 was part of a pattern of conduct by Defendant Rich and other male correctional officers of Defendant County to use their position of authority, power, and seclusion to commit sexual batteries against female coworkers and female inmates. (Id. at ¶ 27.) Defendant Rich and others accomplished their unlawful touching because Defendant County failed to properly monitor their movements and activities and to implement policies that would prevent individuals like Defendant Rich from having secluded and prolonged contact with female inmates. (Id.)

         Plaintiff alleges that there is an abundance of evidence that Defendant County was on both actual and constructive notice of regarding the prevalence of officer-on-inmate sexual assault in correctional facilities and cites to four articles. (Id. at ¶ 28.)

         On or about April 21, 2015, Defendant Rich was charged with a felony violation of California Penal Code § 149 (assault by officer under color of authority) and a misdemeanor violation of Penal Code § 243.4(e)(1) (sexual battery) for the instant incident, and two additional misdemeanor violations of Penal Code § 243.4(e)(1) (sexual battery) for the incidents involving coworker 1 and coworker 2. (Id. at ¶ 31.)

         Plaintiff's first cause of action is against Defendant Rich for violation of 42 U.S.C. § 1983 for depriving Plaintiff of the right to privacy, right to be free from the unreasonable search and seizure of one's person, right to the equal protection of the laws, and right to one's liberty in bodily integrity. (Id. at ¶¶ 34-39.) Plaintiff's second cause of action is against Defendant County for a violation of 42 U.S.C. § 1983 based on the customs, policies, practices, and/or procedures or lack thereof of Defendant County based on Monell v. Dep't of Soc. Servs. Of City of N.Y., 436 U.S. 658 (1978). (Id. at ¶¶ 40-51.)



         Defendant County argues that the Monell claim should be dismissed because the Monell claim is devoid of substantive factual allegations. Defendant County asserts that the complaint's allegations are insufficient because they are conclusory, and are alleged to be on information and belief in this action. Defendant County also argues that Plaintiff has not sufficiently pled the deliberate indifference element of the Monell claim and that Plaintiff has failed to allege facts supporting deliberate indifference regardless of how Plaintiff's allegations are characterized.

         Plaintiff counters that Defendant County is ignoring Plaintiff's more than sufficient allegations and attempting to apply an artificially exacting pleading standard. Plaintiff also asserts that Defendant County is seeking to convert the instant motion to dismiss under Rule 12(b)(6) into a motion for summary judgment.

         A. Legal Standard for County Claims

         “Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States.” Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988). “Section 1983 ‘is not itself a source of substantive rights, ' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)). Section 1983 and other federal civil rights statutes address liability “in favor of persons who are deprived of ‘rights, privileges, or immunities secured' to them by the Constitution.” Carey v. Piphus, 435 U.S. 247, 253 (1978) (quoting Imbler v. Pachtman, 424 U.S. 409, 417 (1976)). “The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.'” Baker, 443 U.S. at 140. Stated differently, the first step in a ...

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