United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART COUNTY
DEFENDANTS' MOTION TO DISMISS AND DENYING PLAINTIFF'S
MOTIONS TO STRIKE RE: DKT. NOS. 12, 23, 28
William H. Orrick United States District Judge
Jearhamel Fanaro seeks to hold the County of Contra Costa,
the Contra Costa County Sheriff's Office, Sheriff David
O. Livingston, and various other individuals responsible for
an attack that allegedly took place while he was incarcerated
in the County's Martinez Detention Facility. Fanaro
alleges that five inmates brutally attacked him, that four
Doe deputies of the Contra Costa County Sheriff's Office
took steps that enabled the attack to happen, and that the
County and Sheriff have acted and failed to act in ways that
caused his attack. Before me is a motion to dismiss by the
County, the Sheriff's Office, and Livingston (“the
County defendants”), along with Fanaro's motion to
strike the answer of Thomas Leon, one of his alleged inmate
attackers. For the reasons set forth below, I will GRANT IN
PART defendants' motion to dismiss but grant Fanaro leave
to amend some claims, and I will DENY Fanaro's motion to
is a Filipino-American who was a convicted inmate at the
Martinez Detention Facility between May 8 and August 17,
2018. Complaint (“Compl.”) [Dkt. No. 1] ¶ 6.
The Martinez Detention Facility is a maximum-security jail
and serves as the point of intake for arrestees booked in
Contra Costa County. Id. ¶ 22. Fanaro's
allegations stem from a series of events that took place on
May 15, 2018, when he was brutally attacked by five fellow
to the complaint, the County divides the Martinez Facility
into modules and assigns inmates to a particular module based
on various criteria, including gang affiliation. Compl.
¶ 23. Fanaro was housed on A Module, which is the gang
unit. Id. ¶ 24. Some of the inmates housed in
the A Module are members of Norteño, “a violent
criminal organization whose primary activities include
murder, attempted murder, and violent assaults.”
Id. ¶ 25. If an inmate wishes to withdraw from
the gang and be moved to a different housing module, he must
participate in an interview with County staff and share
everything he knows about the gang. Id. ¶ 27.
The County Sheriff's Office collects information about
the gang in various ways, and it trains employees on how to
recognize signs that an individual is in a gang, including
the Norteño gang. Id. ¶¶ 26, 28.
alleges that the Sheriff's office “supports the
power structure within the gang” in various ways.
Id. ¶¶ 29-31. It houses the gang leaders,
or “shot callers, ” in the same cell, which
“allows gang activities to flourish.”
Id. ¶ 29. It allows gang
“ambassadors” to haze new inmates in A Module by
escorting them “orient[ing] [them] to the gang's
policies and procedures within the Module.”
Id. ¶ 30. The hazing involves a denial of
certain privileges, like television and commissary shoes,
during a “freeze” period that can last up to
several weeks. Id. ¶ 30. Deputies also allow
gang members to respond when inmates push call buttons inside
their cells. Id. ¶¶ 34-35. These buttons
are used when there is a medical emergency or when an inmate
wants to debrief about exiting from a gang. Id.
to the complaint, Martinez jail is insufficiently staffed,
with a ratio of 25 inmates to 2 deputies when inmates are out
of their cells during free time. Id. ¶ 32.
Fanaro asserts that the County defendants have received
complaints from employees about such insufficient staffing.
Id. Employees of the mail have also complained that
the camera in the courtyard of Module A does not rotate and
has large blind spots. Id. The County has denied
four Public Records Act requests from Fanaro seeking
information on these problems. Id. ¶ 63.
Fanaro arrived at the Martinez jail on May 8, 2018, the Doe
deputies “knowingly handed [him over] to two
Norteño ranking members with intention of subjecting
him to a ‘freeze.'” Id. ¶ 33.
Fanaro pushed the call button in his cell in order to inform
the deputy Does that he wished to withdraw from the gang, but
Norteños entered his cell rather than the deputies.
Id. ¶¶ 36-38. When the Norteños
asked why Fanaro had pushed the call button, he said that he
was sick. Id. ¶ 38. The Norteños turned
off the call button, and no deputies never followed up with
Fanaro about it; instead Norteño members began
escorting him at all times. Id. ¶¶ 39-40.
As a result, Fanaro “never had the chance to explicitly
inform [Livingston] of his intention to withdraw.”
Id. ¶ 40.
15, 2018, defendant inmate Leon gave Fanaro a pair of shoes,
“falsely signaling the end of the
‘freeze.'” Id. ¶ 43.
Norteño members then lured Fanaro to an area of the
courtyard located in the camera's blind spot in order to
attack him. Id. ¶¶ 43-45. Inmates Leon,
Francisco Ramirez, and Francisco Vargas then attacked Fanaro.
Id. ¶ 46. When Fanaro attempted to get up and
walk back inside, Leon, Ramirez, and Vargas attacked him
again, this time with the help of two Doe inmates.
Id. ¶¶ 46-47. In total, the attack was
between 15 and 25 minutes long, and it left a 10' by
6' blood stain on the ground. Id. ¶ 48.
deputy defendants allegedly facilitated and endorsed the
attack in several ways. Their training and experience should
have allowed them to discern that Norteño members were
planning an attack on Fanaro. Id. ¶ 41. But
they did nothing to prevent the attack because they treated
Fanaro, a Filipino American, more poorly than Latino inmates.
Id. ¶ 42. The attack occurred in a blind spot
in the courtyard camera, meaning that the deputies in the
control center did not see it and “were unable to send
additional sheriff's deputies to intervene.”
Id. ¶ 50. The attackers were aware of the
camera's blind spot because of information they received
from the deputies. Id. Deputies failed to perform
security rounds on the roof, where they would have seen the
attack taking place. Id. ¶ 45. Fanaro's
assailants should have returned to their cells when free time
ended, but the Doe deputies allowed them to remain in the
courtyard and continue the attack. Id. ¶ 48.
to the complaint, several facts show the deputies were aware
the attack was occurring. Norteño members
“signaled Defendants Does 1 to 2 by their words, by
making eye contact with them, and by openly guarding
[Fanaro].” Id. ¶ 52. The deputies could
see the other inmates watching the attack. Id. In
addition, they could hear Fanaro's screams, cries, and
grunts. Id. They also served as lookouts for the
attackers themselves. Id. After the attack ended,
Fanaro went inside and asked deputies for help, at which
point he was transported to John Muir Medical Center.
Id. ¶ 54. Fanaro's injuries included
several broken bones. Id. ¶ 55.
allege that the County, the Sheriff's Office, and
Livingston knew that their employees were inadequately
trained, supervised, or disciplined. Id. ¶ 59. They
knew there was a group of deputies at the Martinez jail who
“conspired with the inmates to permit them to
‘control' A Module, ” and yet the County
actors allowed them to continue their work, thus putting
Fanaro and other inmates in harm's way. Id.
¶ 61. The County actors were aware of the limited camera
views and insufficient staffing and yet failed to act, which
allowed the inmates to exploit the gaps in
security. Id. ¶ 62. Specifically,
Livingston is aware from reports and briefings he has
received in various forms. Id. ¶ 66. Despite an
“epidemic of violent attacks, ” there has been no
discipline. Id. ¶ 64. Fanaro makes these
allegations on information and belief because without
discovery, “access to the existence or absence of
internal policies[, ] customs, or practices . . . is
necessarily limited.” Id. ¶ 67.
filed this case on June 10, 2019. Defendant Leon answered on
August 1, 2019. Leon Answer [Dkt. No. 9]. The County, the
Sheriff's Office, and Livingston moved to dismiss on
August 13, 2019 and then refiled their motion on August 16
after the case was reassigned to me. Motion to Dismiss
(“MTD”) [Dkt. No. 16]. On August 22, Fanaro moved
to strike Leon's Answer. Motion to Strike
(“MTS”) [Dkt. No. 23]. I heard argument on
September 25, 2019, and on October 8, 2019, Fanaro filed a
first amended complaint naming two of the Doe deputies. Dkt.
MOTION TO DISMISS
Federal Rule of Civil Procedure 12(b)(6), a district court
must dismiss a complaint if it fails to state a claim upon
which relief can be granted. Fed.R.Civ.P. 12(b)(6). To
survive a Rule 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, 556 (2007). A claim is facially
plausible when the plaintiff pleads facts that “allow
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) (citation omitted).
There must be “more than a sheer possibility that a
defendant has acted unlawfully.” Id. While
courts do not require “heightened fact pleading of
specifics, ” a plaintiff must allege facts sufficient
to “raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555, 570.
deciding whether the plaintiff has stated a claim upon which
relief can be granted, the court accepts the plaintiff's
allegations as true and draws all reasonable inferences in
favor of the plaintiff. Usher v. City of Los
Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the
court is not required to accept as true “allegations
that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences.” In re Gilead Scis.
Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). If the
court dismisses the complaint, it “should grant leave
to amend even if no request to amend the pleading was made,
unless it determines that the pleading could not possibly be
cured by the allegation of other facts.” Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).
MOTION TO STRIKE
Rule of Civil Procedure 12(f) allows the Court to
“strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). “The function of a
12(f) motion to strike is to avoid the expenditure of time
and money that must arise from litigating spurious issues by
dispensing with those issues prior to trial.”
Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970,
973 (9th Cir. 2010) (citation and alteration omitted).
Motions to strike “are generally disfavored [by courts]
because the motions may be used as delaying tactics and
because of the strong policy favoring resolution on the
merits.” Barnes v. AT & T Pension Ben.
Plan-Nonbargained Program, 718 F.Supp.2d 1167, 1170
(N.D. Cal. 2010) (citation omitted). Such motions should only
be granted if “the matter has no logical connection to
the controversy at issue and may prejudice one or more of the
parties to the suit.” New York City Employees'
Ret. Sys. v. Berry, 667 F.Supp.2d 1121, 1128 (N.D. Cal.
2009). “Where the moving party cannot adequately
demonstrate such prejudice, courts frequently deny motions to
strike even though the offending matter literally was within
one or more of the categories set forth in Rule 12(f).”
Id. (citation and quotation marks omitted).
resolving a motion to strike, the pleadings must be viewed in
the light most favorable to the nonmoving party. Platte
Anchor Bolt, Inc. v. IHI, Inc., 352 F.Supp.2d 1048, 1057
(N.D. Cal. 2004). “Ultimately, whether to grant a
motion to strike lies within the sound discretion of the
district court.” Cruz v. Bank of New York
Mellon, No. 12-CV-00846-LHK, 2012 WL 2838957, at *2
(N.D. Cal. July 10, 2012) (citing Whittlestone, 618
F.3d at 973).
THE COUNTY, THE SHERIFF'S OFFICE, AND LIVINGSTON'S
brings a total of fifteen claims against the various
defendants in this case. The County, the Sheriff's
Office, and Livingston move to dismiss all nine of the claims
against them, four of which are state law claims and five of
which are federal law claims under 42 U.S.C. Section 1983.