United States District Court, S.D. California
ORDER: (1) OVERRULING OBJECTIONS, (2) ADOPTING REPORT
AND RECOMMENDATION, AND (3) GRANTING IN PART AND DENYING IN
PART THE MOVING DEFENDANTS' MOTION TO DISMISS (ECF NOS.
93, 97, 99, 100)
Janis L. Sammartino, United States District Judge.
before the Court is a Motion to Dismiss Plaintiff Elliot
Scott Grizzle's Second Amended Complaint filed by
Defendants County of San Diego (the “County”),
Sheriff William Gore, Lieutenant Lena Lovelace, and
Lieutenant Eric Froistad (the “Moving
Defendants”) (“Mot., ” ECF No. 93). Also
before the Court is Magistrate Judge Ruth Bermudez
Montenegro's Report and Recommendation (“R&R,
” ECF No. 97) advising the Court to grant in part and
deny in part the Moving Defendants' Motion, as well as
the Moving Defendants' (“Defs.' Obj., ”
ECF No. 99) and Plaintiff's (“Pl.'s Obj.,
” ECF No. 100) Objections to Magistrate Judge
Montenegro's R&R and Plaintiff's
(“Pl.'s Reply, ” ECF No. 101) and the Moving
Defendants (“Defs.' Reply, ” ECF No. 102)
Replies. Having considered the Parties'
arguments and the law, the Court OVERRULES
Plaintiff's Objections, OVERRULES the
Moving Defendants' Objections, ADOPTS
the R&R in its entirety, and GRANTS IN PART AND
DENIES IN PART the Moving Defendants' Motion.
Judge Montenegro's R&R contains a thorough and
accurate recitation of the facts and procedural history
underlying the instant Motion. See R&R at 2-6.
This Order incorporates by reference the background as set
Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1)
set forth a district court's duties in connection with a
magistrate judge's report and recommendation. The
district court must “make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made, ” and
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1); see also United
States v. Raddatz, 447 U.S. 667, 673-76 (1980);
United States v. Remsing, 874 F.2d 614, 617 (9th
Cir. 1989). In the absence of timely objection, however, the
Court “need only satisfy itself that there is no clear
error on the face of the record in order to accept the
recommendation.” Fed.R.Civ.P. 72 advisory
committee's note (citing Campbell v. U.S. Dist.
Court, 501 F.2d 196, 206 (9th Cir. 1974)).
operative Second Amended Complaint alleges four causes of
action against the Moving Defendants for: (1) violation of
Plaintiff's rights under the Due Process Clause of the
Fourteenth Amendment as to his placement in the
administrative segregation housing unit
(“Ad-Seg”); (2) violation of Plaintiff's
Eighth Amendment rights premised on sleep deprivation
resulting from his confinement in Ad-Seg; (3) violation of
Plaintiff's Eighth Amendment rights premised on
prevention from exercising; and (4) violation of
Plaintiff's Eighth Amendment Rights premised on Plaintiff
being forced to choose between sleep and exercise.
See ECF No. 88 (“SAC”) at 15-19.
Judge Montenegro recommends that the Court deny the Motion as
to Plaintiff's first, see R&R at 7-11, and
second, see Id. at 11-14, causes of action against
the County. Magistrate Judge Montenegro also recommends that
the Court terminate without leave to amend Defendant Froistad
as to all Plaintiff's causes of action; terminate
Defendant Lovelace as to Plaintiff's second, third, and
fourth causes of action; and terminated Sheriff Gore as to
Plaintiff's first cause of action. See Id. at
14-19, 21-22. Finally, Magistrate judge Montenegro recommends
that the Court dismiss without prejudice Plaintiff's
claims for injunctive and declaratory relief. See
Id. at 19-21.
Moving Defendants object to Magistrate Judge Montenegro's
recommendations concerning Plaintiff's first and second
causes of action and claim that Plaintiff has not stated a
viable claim against either the County of Sheriff Gore.
See generally ECF No. 99. Plaintiff separately
objects to Magistrate Judge Montenegro's recommendations
concerning the termination of individual defendants Froistad,
Lovelace, and Gore and dismissal of his claims for
declaratory and injunctive relief. The Court reviews de
novo those portions of Magistrate Judge Montenegro's
R&R to which the Parties object and reviews for clear
error those portions to which the Parties do not object.
The First Cause of Action Against the County
first alleges violation of his due process rights under the
Fourteenth Amendment arising from his placement in solitary
confinement without notice or opportunity for a
non-adversarial hearing. See SAC ¶¶ 44-51.
The Court previously denied a motion to dismiss this claim.
See ECF No. 73 at 3-5. Nonetheless, the Moving
Defendants again argue that Plaintiff's due process claim
against the County should be dismissed because
“Plaintiff fails to establish the County's
liability under any of the Gilette[ v.
Delmore, 979 F.2d 1342 (9th Cir. 1992)] prong[s].”
Mot. at 6. Magistrate Judge Montenegro again recommends that
the Court deny the Moving Defendants' Motion.
See R&R at 7-11.
Deprivation of Plaintiff's Right to Due
Judge Montenegro concludes that Plaintiff's allegations
that Defendants did not provide Plaintiff with an informal,
nonadversary hearing within a reasonable time after being
placed in Ad-Seg; a written decision describing the reasons
for placing him in Ad-Seg; and an opportunity to present his
view amount to a constitutional violation. See
R&R at 8-9 (citing Toussaint v. McCarthy, 801
F.2d 1080, 1100 (9th Cir. 1986), abrogated in part on
other grounds by Sandin v. Conner, 515 U.S. 472 (1995)).
Neither Party appears to object to this portion of Magistrate
Judge Montenegro's R&R, see generally
Defs.' Obj. at 1-3; Pl.'s Obj. at 2, and the Court
finds no clear error in the recommendation.
Wide-Settled City Policy
Judge Montenegro finds that Plaintiff has sufficiently stated
a claim that Plaintiff's alleged due process violation
was caused by a de facto County policy because
“Plaintiff has alleged a widespread practice that is so
permanent and well settled as to constitute a custom or usage
with the force of law.” R&R at 10. The Moving
Defendants object that “the R&R did not point to
any authority providing a clear standard in alleging a viable
section 1983 claim under the ‘de facto policy'
theory.” Defs.' Obj. at 2. Further,
“Plaintiff did not sufficiently allege a pattern or
custom of the constitutional deprivation.” Id.
short, the Moving Defendants attempt to distinguish
Plaintiff's situation, which involves multiple alleged
due process violations against Plaintiff, from cases in which
multiple plaintiffs alleged separate due process violations.
The Moving Defendants, however, cite no authority that would
require the Court to conclude that Plaintiff's
allegations are insufficient to establish a pattern or custom
as necessary to state a claim against the County. To the
contrary, it would appear that other district courts have
found such allegations sufficient to state a claim. See,
e.g., Kirk v. Foster, No. 3:13-CV-00296-RCJ,
2014 WL 6792028, at *15 (D. Nev. Dec. 1, 2014)
(“Plaintiff avers Plaintiff that he was written up more
than fifty times for more than 100 alleged rule violations,
which resulted in the loss of liberties, including four
months in punitive segregation, for which he was seldom
afforded due process. He has sufficiently alleged a claim for
denial of his procedural due process rights under the
Fourteenth Amendment against [the defendant] County . . .
.”). On de novo review, the Court therefore
OVERRULES the Moving Defendants'
objection and ADOPTS Magistrate Judge
Montenegro's recommendation that Plaintiff sufficiently
alleges that the County maintains a policy resulting in the
deprivation of Plaintiff's due process rights in
violation of the Fourteenth Amendment.
Magistrate Judge Montenegro concludes that
“Plaintiff's allegations of repeated failures to
respond to his grievances and the lack of process afforded
him are sufficient to allege that th[e County's] de facto
policy was widely adhered to with deliberate indifference to
Plaintiff's Fourteenth Amendment rights.” R&R
at 10-11. Neither Party appears to object to this portion of
Magistrate Judge Montenegro's R&R, see
generally Defs.' Obj. at 1-3; Pl.'s Obj. at 2,
and the Court finds no clear error in the recommendation. The
Court therefore ADOPTS Magistrate Judge
Montenegro's R&R and DENIES the
Moving Defendants' Motion as to Plaintiff's first
cause of action.
The Second Cause of ...