Gustine v. County of San Diego

          ORDER: (1) GRANTING DEFENDANT COUNTY OF SAN DIEGO'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT; AND (2) ISSUING ORDER TO SHOW CAUSE [ECF NO. 11]

          HON. LARRY ALAN BURNS CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff has brought this action under 42 U.S.C. Section 1983 alleging that his constitutional rights were violated when he was housed at the San Diego Central Jail (“SDCJ”) in November of 2018. (See First Am. Compl., ECF No. 10.) Defendant County of San Diego moves to dismiss all the claims in Plaintiff's First Amended Complaint^[1] (“FAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6). (Def.'s Mot., ECF No. 11.) Plaintiff filed an Opposition to Defendants' Motion to which Defendants filed a Reply. (See ECF Nos. 13, 14.)

         While the Motion was initially calendared before Magistrate Judge Nita L. Stormes, the Court has determined that this Motion is suitable for disposition upon the papers without oral argument and that no Report and Recommendation from Magistrate Judge Stormes is necessary.

         For the reasons set forth more fully below Defendant's Motion is GRANTED.

         I. Factual allegations ^[2]

         On July 25, 2018, Plaintiff was arrested and housed in the SDCJ. See FAC at 4. Plaintiff was placed in “Intake Holding #1” and “went to sleep.” Id. One day later, Inmate George Julius (“Julius”) “was arrested by El Centro Police Department for violating a protective order to prevent domestic violence.” Id. Plaintiff claims “Doe Officers” examined Julius and “knew of his propensity of violence.” Id. Defendant Doe Deputy #1 purportedly told Defendant Doe Deputy #2 that Julius “should not be placed with other inmates.” Id.

         Plaintiff claims that Defendants, “despite … knowing [Julius'] propensity of violence, ” placed Julius in the same cell as Plaintiff. Id. As a result, Julius purportedly “walk[ed] up to Plaintiff and began punching Plaintiff's face and body.” Id. Plaintiff “fell off the bench” as Julius continued to punch and kick Plaintiff “several times.” Id. Plaintiff claims to have lost “consciousness” during the encounter. Id.

         After Plaintiff “regained consciousness, he heard deputies telling him to get out of the cell.” Id. As he was escorted out of the cell, he “overheard Doe Deputy #1tell Doe Deputy, ‘I told you [Julius] shouldn't have been placed in a cell with anyone'.” Id. “As a result of Plaintiff being attacked, he suffered a broken nose, contusion to his lip, fractured back, shoulder injury, concussions, brain trauma, headaches, memory loss, anxiety, depression and lack of focus.” Id. at 5.

         II. Defendant's Motion to Strike

         In Defendant's Motion they request that the “Court strike the references to ‘all Defendants', ” or in the alternative, dismiss them as a named Defendant from Plaintiff's first, second, and fourth claims. (Def.'s Mot. at 9.)

         In Plaintiff's response, he indicates that the first and second claims in his FAC “are not alleged against the County.” (Pl.'s Reply at 4.) Therefore, Plaintiff “accepts Defendant County's request to strike reference to ‘all Defendants' made in Plaintiff's first and second claims, as said claims are only alleged against Defendants DOE Deputies 1-10, individually.” (Id.) Plaintiff further states he “never intended to seek liability against the County based on the first two claims.” (Id.)

         Based on these representations, the Court strikes Defendant County of San Diego from Plaintiff's first and second claims.

         Plaintiff does not address Defendant's request to strike his fourth claim which is a state law negligence claim. In the Court's August 1, 2019, it was made clear that Plaintiff's state law negligence claim was dismissed with prejudice. (Aug. 1, 2019 Order at 2.) Plaintiff was not given permission by the Court to re-allege this claim in his FAC.

         Thus, the Court GRANTS Defendant's Motion to Strike Plaintiff's state law negligence claim found in count 4 ...