United States District Court, E.D. California
Lives Matter Stockton Chapter (“BLM”) and several
of its members bring this civil rights action and putative
class action against San Joaquin County, the San Joaquin
County Sheriff's Office, and several individual officers.
Defendants have moved to dismiss the first amended complaint.
Mot., ECF No. 17. Plaintiffs opposed, ECF No. 26, defendants
replied, ECF No. 27, and the court held a hearing on December
7, 2018, ECF No. 29. As explained below, the court GRANTS
defendants' motion in part and DENIES it in part.
March 7, 2017, plaintiffs Lareesha Brown, Kenneth Marbley and
three others were arrested at a BLM protest in Stockton and
eventually charged with state criminal misdemeanor charges of
assaulting officers and resisting arrest. First Am. Compl.
(FAC), ECF No. 16, ¶ 33. On October 30, 2017, a
discovery motion related to the five BLM members' cases
was heard before Judge Bernard J. Garber at the San Joaquin
County Superior Court. Id. ¶¶ 35, 39. BLM
organized “court support” for the October 30
hearing, meaning that it organized BLM members to attend the
hearing, dressed in ways that identified them as BLM members.
Id. ¶¶ 38-39. When BLM members, including
the plaintiffs in this case, attempted to enter the
courthouse to attend the hearing, San Joaquin County sheriffs
deputies controlled the entrance to the courthouse. See
Id. ¶ 42. Allegedly, the officers questioned and
denied entrance to individuals who are black and brown, and
to BLM members specifically, while allowing white individuals
unfettered entrance. Id. ¶ 43. On January 29,
2018, after a hearing on another related motion, a group of
sheriff s deputies allegedly followed, insulted, harassed and
intimidated BLM members inside the courthouse, implying BLM
members were not welcome and would be subjected to violence
and arrest if they did not leave. Id. ¶¶
its founding member Dionne Smith-Downs sued the County, the
sheriff, and several individual sheriffs deputies for
violating their civil rights under federal and state law.
Compl., ECF No. 1. Defendants moved to dismiss each of the
claims in the original complaint, ECF No. 4, plaintiffs
opposed, ECF No, 6, and defendants replied, ECF No. 7. After
a hearing on May 18, 2018, the court granted defendants'
motion and dismissed the complaint with leave to amend.
Order, ECF No. 15. Plaintiffs filed their first amended
complaint on August 13, 2018, identifying Denise Friday,
Lareesha Brown and Kenneth Marbley as plaintiffs, in addition
to BLM and Smith-Downs. See generally FAC.
FAC, plaintiffs allege violations of federal constitutional
rights under 42 U.S.C. § 1983. Specifically, they assert
claims under the First Amendment, providing the right to free
speech and association (Claim 1); the Sixth Amendment,
establishing the right to a public trial (Claim 2); and the
Fourteenth Amendment, providing rights of due process (Claim
3). See FAC ¶¶ 70-82. Plaintiffs also
assert two state civil rights claims under the Act,
California Civil Code § 51.7 (Claim 4), and the Bane
Act, California Civil Code § 52.1 (Claim
Id. ¶¶ 83-86. Finally, they bring a
negligence claim (Claim 6). Id. ¶¶ 87-89.
Plaintiffs ask the court to certify as a class the members
and supporters of BLM, make findings of fact reflecting
defendants' violations of plaintiffs' rights, grant
preliminary and permanent injunctive relief, award
compensatory damages, and award punitive damages against the
individual defendants. Id. at 31-32. All claims are
pled against all defendants, without differentiation.
may move to dismiss for “failure to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
The court may grant the motion only if the complaint lacks a
“cognizable legal theory” or if its factual
allegations do not support a cognizable legal theory.
Hartmann v. Cal. Dep't of Corr. & Rehab.,
707 F.3d 1114, 1122 (9th Cir. 2013) (citation omitted). A
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to relief,
” Fed.R.Civ.P. 8(a)(2), though it need not include
“detailed factual allegations, ” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 545 (2007). But
“sufficient factual matter” must make the claim
at least plausible. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). Conclusory or formulaic
recitations of elements do not alone suffice. Id.
(citing Twombly, 550 U.S. at 555). In a Rule
12(b)(6) analysis, the court must accept well-pled factual
allegations as true and construe the complaint in
plaintiff's favor. Erickson v. Pardus, 551 U.S.
89, 93-94 (2007) (citing Bell Atl. Corp., 550 U.S.
plaintiff requests leave to amend a claim subject to
dismissal, the federal rules mandate that leave “be
freely given when justice so requires.” Fed.R.Civ.P.
15(a). Before granting leave, a court considers any potential
bad faith, delay, or futility regarding the proposed
amendment, and the potential prejudice to the opposing party.
Foman v. Davis, 371 U.S. 178, 182 (1962).
ELEVENTH AMENDMENT IMMUNITY
Official-capacity Claims for Damages
the Eleventh Amendment, agencies of the state are immune from
private damage actions or suits for injunctive relief brought
in federal court.” Mitchell v. Los Angeles Cty.
Coll. Dist, 861 F.2d 198, 201 (9th Cir. 1988) (citing
Pennhurst State School & Hosp. v. Halderman, 465
U.S. 89, 100 (1984) (Eleventh Amendment proscribes suit
against state agencies “regardless of the nature of the
relief sought”)). Because the instant suit is against
county actors, not state actors, Eleventh Amendment immunity
ordinarily would not apply. Monell v. Dep't of Soc.
Servs. of City of New York, 436 U.S. 658, 690-691 &
n.54 (1978). However, when local government units are
considered part of the state, they can be entitled to
Eleventh Amendment immunity as well. See Regents of Univ.
of Cal. v. Doe, 519 U.S. 425, 429 (1997).
support their argument that court security officers should be
considered state actors for purposes of this case, defendants
cite Rojas v. Sonoma Cty., No. C-11-1358 EMC, 2011
WL 5024551, at *4 (N.D. Cal. Oct. 21, 2011), in which the
court concluded that “sheriffs . . . function as
representatives of the state and not the county when
providing courtroom security services.” In so
concluding, the court relied on the fact that, under
California Government Code § 77200, the state had sole
responsibility for the funding of court operations and, under
then-§ 72115, court-related services formerly provided
by marshals were provided by sheriffs. Id. (citing
Cal. Gov't Code § 77200 (West, effective
2009-present) (providing “the state shall assume sole
responsibility for the funding of court operations, as
defined in Section 77003”); Cal. Gov't Code §
77003(a)(3) (West, effective 2008-2012) (defining court
operations to include “[t]hose marshals and sheriffs as
the court deems necessary for court operations”); Cal.
Gov't Code § 72115(a) (West, effective 2003-2017)
(repealed by Stats. 2002, c. 784 (S.B.1316) § 370,
effective Jan. 1, 2018) (referring to “abolition of the
marshal's office and the transfer of court-related
services provided by the marshal within the county to the
argue Rojas is no longer good law, because the
Superior Court Security Act of 2012 shifted the funding of
court security from the state to the counties, thereby either
repealing or significantly amending the statutes relied upon
by the court in Rojas. Opp'n at 4 (citing Cal.
Gov't Code §69920 et seq.); see
also A.B. 118, 2011-2012 Reg. Sess. Legis. Serv. (Ca.
2011) (amending, inter alia, Cal. Gov't Code
§ 30025, creating the “Trial Court Security
Account” within the Local Revenue Fund 2011, and
requiring county treasurer to create a “Trial Court
Security Account” to “be used exclusively to fund
trial court security provided by county
one sister court has addressed this issue since the 2012
amendments to the statutes relied upon in Rojas. See
Hiramanek v. Clark, No. C-13-0228 EMC, 2013 WL 4734025,
at *4 (N.D. Cal. Sept. 3, 2013) (“Order Re
Plaintiffs' Amended Complaint”); Hiramanek v.
Clark, No. 13-00228, 2014 WL 2855512, at *6 (N.D. Cal.
June 20, 2014) (“Order Granting in Part Motion to
Amend”). In both Hiramanek decisions, the
court held that court security officers are state actors and
cited only to Rojas, without any mention of the
statutory changes. Hiramanek, 2013 WL 4734025, at
*4; Hiramanek, 2014 WL 2855512, at *6. Because of
the statutory changes, this court declines to rely on
Rojas, but rather conducts its own analysis, and
concludes as explained below, that, in San Joaquin County,
sheriffs and sheriff's deputies are state actors when
providing court security to the Superior Court.
Supreme Court's McMillian Decision
McMillian, the United States Supreme Court directed
courts to analyze state law to determine “the actual
function of a governmental official, in a particular
area.” McMillian v. Monroe Cty., Ala., 520
U.S. 781, 786 (1997). In conducting this functional analysis,
the court in that case rejected plaintiff's argument that
the sheriffs were county actors because their salaries were
paid by the county: “The county's payment of the
sheriff's salary does not translate into control over
him, since the county neither has the authority to change his
salary nor the discretion to refuse payment completely. The
county commissions do appear to have the discretion to deny
funds to the sheriffs for their operations beyond what is
‘reasonably necessary.' But at most, this
discretion would allow the commission to exert an attenuated
and indirect influence over the sheriff's
operations.” McMillian, 520 U.S. at 791-92
(citation omitted). Instead, the Court held that sheriffs
were state actors under Alabama law, because they were
controlled primarily by state officials. Id. at
holding regarding which entity “controlled” the
sheriffs turned on several aspects of Alabama state law.
First, it relied on the fact that the Alabama Constitution
provided for sheriffs as part of the executive department of
the state. Id. at 787 (citing Ala. Const. of 1901,
Art. V, § 112). The state constitution also made
sheriffs impeachable by the State Supreme Court, at the
direction of the Governor, meaning sheriffs shared the same
impeachment procedures as state legal officers and judges
rather than county and municipal officers. Id. at
788 (citing Ala. Const. of 1901, Art. VII, § 174; Ala.
Const. of 1875, Art. VII, § 3). Second, by statute,
sheriffs were required to carry out orders from state court
judges, even those outside the sheriff's county, and the
presiding circuit judge exercised general supervision over
county sheriffs. Id. at 789-90 (citing Ala. Code
§§ 36-22-3(1), (2) (1991); Ala. Code §
12-17-24 (1995)). Most importantly, Alabama law gave
sheriffs “complete authority to enforce the state
criminal law in their counties, ” a power which the
County wholly lacked. Id. at 790 (citing Ala. Code
§ 36-22-3(4), § 11-3-11 (1989). Thus, the County
lacked the authority to tell the sheriff how to carry out his
law enforcement duties. McMillian, 520 U.S. at 790.
And, ultimately, the sheriff was required to share criminal
evidence he obtained with the district attorney, a state
official, and not with the County. Id. (citing
Hooks v. Hitt, 539 So.2d 157, 159 (Ala. 1988)).
Finally, although the sheriff's salary was paid out of
the county treasury, the salaries of all sheriffs were set by
the state legislature, not the county. Id. at 791
(citing Ala. Code § 36-22-16).
Federal Courts Applying McMillian
the 2012 amendments to the California statutes implicated
here, the Central District applied McMillian's
reasoning to a sheriff's role in providing court
security. Hawkins v. Comparet-Cassani, 33 F.Supp.2d
1244, 1253 (C.D. Cal. 1999), opinion modified on
reconsideration (Feb. 5, 1999), rev'd in part on
other grounds, 251 F.3d 1230 (9th Cir. 2001). The court
did not mention the source of the sheriff's funding, but
rather alluded to the fact that district attorneys, who are
state actors, and sheriffs are both under the direct
supervision of the Attorney General, a state official.
Id. (citing Cal. Const. art. V, § 13; Cal. Gov.
Code § 12550; Cal. Penal Code § 923; Pitts v.
County of Kern, 17 Cal.4th 340 (Cal. 1998)). The
Hawkins court also added, “here the Sheriff
was providing security to a state court at the time of the
incident. . . . [and] municipal and superior courts are
instruments of the State and are exempt from suit in federal
courts by the Eleventh Amendment.” Id.
Therefore, the court found, “in light of Pitts
and given the activities in which the Sheriff was engaged at
the time of the incident, a California court would find that
the Sheriff was acting as a state rather than a county
policymaker.” Id. This reasoning, based on the
role of the Sheriff as subordinate to the Attorney General
and the role of courts as instruments of the State, holds
true even after the 2012 amendments to the law governing the
Sheriff's funding structure.
California State Law
court also looks to California state law for guidance with
respect to the functional role of court security officers.
See McMillian, 520 U.S. at 786. Plaintiffs emphasize
the importance of the Superior Court Security Act of 2012,
which provides a framework for sheriffs and courts to work
together to plan for court security. See Opp'n
at 4 (citing Cal. Gov't Code §69920 et
seq.). Under this framework, the sheriff is directed to
enter into a memorandum of understanding with the Superior
Courts, “on behalf of the county” and “with
the approval and authorization of the board of supervisors,
” laying out a plan for the provision of court security
services for the Superior Courts. Cal. Gov't Code §
69926(b). The statute provides for a process of negotiation
in the event the Superior Court and the sheriff are unable to
reach a timely agreement. Id. § 69926(c)-(d).
“Any recommended resolution” that comes out of
this negotiation process, “shall be approved by the
board of supervisors, consistent with subdivision (b).”
Id. § 69926(d). While this framework primarily
dictates collaboration between the sheriff and the courts in
planning for court security, it gives the ultimate power to
the board of supervisors, which is a County entity. As such,
it counsels in favor of treating court security officers as
with respect to San Joaquin County specifically, a statute
tailored to the County ultimately leads to the opposite
conclusion. The California Government Code creates a division
within the San Joaquin County Sheriff's Department to
provide security for the Superior Court, named the
“court services division.” Cal. Gov't Code
§§ 74820.2-3 The sheriff has authority to staff the
division,  but “the selection, appointment, and
removal of the chiefs of the court services division shall be
made by a majority vote of the incumbent superior court
judges and commissioners from a list of qualified candidates
submitted by a committee comprised of the sheriff and an
incumbent judge of the superior court.” Id.
§ 74820.3. In other words, while the sheriff is
responsible for the staffing of court security officers, the
chief of the court services division is effectively
controlled by the superior court judges and commissioners.
This puts the court services division in San Joaquin County
ultimately under the control of the Superior Court, which is
an arm of the state, see Greater Los Angeles Council on
Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir.
1987), superseded by statute on other grounds.
conclusion reached in Rojas, albeit prior to the
2012 statutory amendments, remains sound when applied to San
Joaquin County. When San Joaquin County sheriffs are
providing court security to the Superior Court, they are
acting as state employees. As state actors, they are immune
from suit for damages against them in their official
capacities by virtue of the Eleventh Amendment, because such
a suit is essentially a suit for damages against the state.
See Will v. Michigan Dep't of State Police, 491
U.S. 58, 71 (1989) (“[A] suit against a state official
in his or her official capacity is not a suit against the
official but rather is a suit against the official's
office.”) (citation omitted).
the Eleventh Amendment bars plaintiffs' federal and state
law claims for damages against any defendant sued in
his or her official capacity; here the defendant protected by
immunity is defendant Moore. All claims in the first
amended complaint stem from the defendant sheriffs'
actions while they were providing security services for the
San Joaquin County Superior Courthouse on October 30, 2017
and January 29, 2018. See FAC ¶¶ 39,
42-47. Plaintiffs have not pled any facts to suggest
defendants were acting outside the scope of their role as
courtroom security during these incidents. Plaintiffs have
already amended their complaint once after the court
dismissed this claim, inter alia, see
Order, ECF No. 15, and they have given no indication this
deficiency can be cured by another amendment. Accordingly,
plaintiffs' § 1983 claims against Moore are
DISMISSED with prejudice. See Foman v. Davis, 371
U.S. 178, 182 (1962) (citing “repeated failure to cure
deficiencies by amendments previously allowed” and
“futility of amendment” as reasons to why leave
to amend may be denied); Reddy v. Litton Indus.,
Inc., 912 F.2d 291, 296 (9th Cir. 1990) (dismissal with
prejudice not abuse of discretion if amendment would be
same reasoning applies to the San Joaquin County
Sheriff's Department and San Joaquin County, because all
claims against them arise out of defendants' conduct as
state actors. Boakye-Yiadom v. City, Cty. of San
Francisco, No. C-99-0873 VRW, 1999 WL 638260, at *2-3
(N.D. Cal. Aug. 18, 1999) (“If the San Francisco
Sheriff's Department was acting as a representative of
the State of California, rather than the City and County of
San Francisco, in taking the actions plaintiff complains of,
then it too is immune from suit under section 1983.”)
(citing McMillian, 520 U.S. at 781). Accordingly,
the court need not reach the issue of whether plaintiffs have
adequately pled Monell liability, which would allow
plaintiffs to hold the County liable for the actions of
defendants if those actions constitute County
“policy.” See Mot. at 15-17 (citing
Monell, 436 U.S at 692); see also
McMillian, 520 U.S. at 783; Rojas v. Sonoma
Cty., 2011 WL 5024551, at *4 (finding that, because
defendant deputy “was acting as a representative of the
state, and not the County, there are no factual allegations
to support a § 1983 claim against the County. The Court
therefore dismisses the § 1983 claim against the County
on that basis, without entertaining the parties' dispute
over . . . municipal liability . . . .”).
all of plaintiffs' claims for damages against the San
Joaquin County Sheriff's Department and San Joaquin
County are DISMISSED with prejudice as barred by the Eleventh
Amendment. See Foman v. Davis, 371 U.S. at 182;
Reddy v. Litton Indus., Inc., 912 F.2d at 296.
Claims for Declaratory Relief
claim against a state for declaratory relief relates
“solely to past violations of federal law, ” it
is barred by the Eleventh Amendment in the same way as a
claim for damages is barred. Green v. Mansour, 474
U.S. 64, 73 (1985) (declaratory relief regarding past
violations of federal law prohibited under Eleventh Amendment
where it would have essentially same effect as damages award
due to its res judicata implications in state court).
Therefore, to the extent plaintiffs' claims are for
declaratory relief, they are DISMISSED.
Official-capacity § 1983 Claims for Prospective
Ex parte Young doctrine provides a narrow exception
to Eleventh Amendment immunity for “prospective
declaratory or injunctive relief against state officers in
their official capacities for their alleged violations of
federal law.” Coal. to Defend Affirmative Action v.
Brown,674 F.3d 1128, 1134 (9th Cir. 2012) (citing
Alden v. Maine, 527 U.S. at 747; Ex parte
Young,209 U.S. 123, 155-56 (1907)). For the exception
to apply, it must be clear “that such officer must have
some connection with the enforcement of the act, or else it
is merely making him a party as a representative of the
State, and thereby attempting to make the State a
party.” Snoeck v. Brussa,153 F.3d 984, 986
(9th Cir. 1998). “This connection must be fairly
direct; a generalized duty to enforce state ...