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Turner v. County of San Diego

United States District Court, S.D. California

July 7, 2017

DAVID B. TURNER, Plaintiff,
v.
COUNTY OF SAN DIEGO, Defendant.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: DEFENDANT'S MOTION TO DISMISS [ECF No. 4]

          Hon. Mitchell D. Dembin United States Magistrate Judge

         This Report and Recommendation is submitted to United States District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California. For the reasons set forth herein, the Court RECOMMENDS that Defendant's Motion to Dismiss be GRANTED.

         I. PROCEDURAL HISTORY

         Plaintiff David B. Turner, who is proceeding without the assistance of counsel, brings this action against the County of San Diego, California. (ECF No. 1). On February 13, 2017, Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983. It sets forth four claims alleging violations of his civil rights by the County of San Diego. (Id.). Specifically, Plaintiff alleges Fourth, Eighth and Fourteenth Amendment violations stemming from various altercations which took place from December 2015 to February 2016.[1] On April 3, 2017, Defendant, County of San Diego, filed this motion to dismiss all counts. (ECF No. 4-1).

         Defendant contends that: (1) Plaintiff's claims are insufficient to impute liability against a municipality per the requirements set forth in Monell v. New York City Dept. of Social Serv., 436 U.S. 658 (1978) or City of Canton v. Harris, 489 U.S. 378 (1989); (2) Plaintiff's first claim is time barred; and (3) Plaintiff's second claim fails to state a claim under the Eighth Amendment because he does not allege facts sufficient to support the objective requirement for a civil rights claim for cruel and unusual punishment. (ECF No. 4-1 at 2).

         Plaintiff opposes the motion to dismiss on the grounds that: (1) the statute of limitations has not run on Claim 1, and the claim was not properly answered as required by Rule 55 of the Federal Rules of Civil Procedure; (2) the allegations in Claim 2 are predicated on the “policies on sexual harassment, and policies on human dignity and respect during visual cavity searches conducted by County of San Diego employees that showed deliberate indifference to [Plaintiff's] constitutional, and ‘personal rights;'” (3) Claim 3 was not properly answered pursuant to Rule 55, and “deal[s] with policies on sexual harassment, human dignity and respect during service of the morning meal by County of San Diego employees. . .that policy was the moving force behind the constitutional violations in [the] count;” and (4) “the County of San Diego's policies. . .[are] the mov[ing] force behind the civil rights violations that cause[d] Turners [sic] injury.” (ECF No. 7 at 4).

         Defendant replies that Plaintiff fails to allege facts sufficient to support his claims against the County by failing to identify a policy or pattern as required to impute liability to a municipality. (ECF No. 8).

         II. BACKGROUND FACTS

         The facts are taken from Plaintiff's Complaint and are not to be construed as findings of fact by the Court.

         The Complaint alleges the County violated Plaintiff's constitutional rights on four separate occasions while he was in custody. (ECF No. 1). The only named defendant is the County. There are no individually named defendants in this action.[2] The first incident took place on December 12, 2015, when Plaintiff was placed in “overly tight hand-cuffs” and attacked by a “crazy inmate, ” whom the deputies mistakenly allowed to be placed in the same holding cell as Plaintiff. (ECF No. 1 at 3).[3] The second incident occurred on January 22, 2016, when Plaintiff asked another inmate for a “hot-tray, ” to which Deputy Tillman replied, “You can get a peace [sic] of this dick.” (ECF No. 1 at 17).[4] The third incident happened on February 12, 2016, when, “in the scope of his employment deputy Johnson unreasonab[ly] perform[ed] a[n] unreasonably [sic] cavity search on [the Plaintiff] by jaming [sic] his thumb or finger into [Plaintiff's] rectal cavity, and sqeezing [sic] [Plaintiff's] genitals.” (ECF No. 1 at 47).[5] The final incident occurred on February 21, 2016, when Plaintiff, while nude, was cavity searched in the outside yard at night. (ECF No. 1 at 4). Plaintiff alleges a deputy taking part in the search remarked, “I seen a lot of ass tonight” and told Plaintiff to “open up wider.” (ECF No. 1 at 4).[6]

         During this time Plaintiff filed a number of Prisoner Grievance Reports regarding each incident, all of which appear to have been acknowledged by prison officials. (ECF No. 1). Plaintiff included the Prisoner Grievance Reports and subsequent replies in the Complaint presumably to show he exhausted his administrative remedies.

         III. LEGAL STANDARD

         “A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (internal quotations omitted). The pleader must provide the Court with “more than an un-adorned, the-defendant-unlawfully harmed-me accusation.” Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements will not suffice.” Id. “Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [a court is] not bound to accept as true a legal conclusion couched as a factual allegation.” Id. (internal quotations omitted).

         A pro se pleading is construed liberally on a defendant's motion to dismiss for failure to state a claim. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (citing Ortez v. Washington Cnty., 88 F.3d 804, 807 (9th Cir. 1996)). The pro se pleader must still set out facts in his complaint that bring his ...


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