Osegueda et al v. Stanislaus County Public Safety Center et al

Filing 21

MEMORANDUM DECISION and ORDER Re Defendants' Motion to Dismiss 11 , signed by Chief Judge Lawrence J. O'Neill on 1/17/17: 20-Day Deadline. (Hellings, J)

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1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 ARMANDO OSEGUEDA and ROBERT PALOMINO, Plaintiffs, 6 Case No. 1:16-CV-1218-LJO-BAM 7 v. 8 9 STANISLAUS COUNTY PUBLIC SAFETY CENTER, et al., 10 Defendants. 11 MEMORANDUM DECISION AND ORDER RE DEFENDANTS’ MOTION TO DISMISS (ECF No. 11) 12 Plaintiffs Armando Osegueda and Robert Palomino (“Plaintiffs”) commenced this putative 13 14 class action suit against Defendants Stanislaus County Public Safety Center (“PSC”); Stanislaus 15 County Sheriff’s Office (“Sheriff’s Office”); Adam Christianson, in his official capacity as Stanislaus 16 County Sheriff; Bill Duncan, in his official capacity as PSC Facilities Captain; Ronald Lloyd, in his 17 official capacity as Captain of the Correctional Emergency Response Team and the Commander of 18 the Facility Training Officer Program at PSC; James Shelton, in his official capacity as a 19 classification officer at PSC; Steven Verver, in his official capacity as a sergeant at PSC; the 20 Stanislaus County Board of Supervisors1; and Birgit Fladagar, in her official capacity as District 21 Attorney of Stanislaus County (collectively, “Defendants”). First Amended Complaint (“FAC”), ECF 22 No. 8. Plaintiffs assert eight claims against Defendants under 42 U.S.C. § 1983 (“§ 1983”) relating to 23 their treatment as pre-trial detainees at PSC and the Stanislaus County Men’s Jail (“Men’s Jail”) and 24 seek both injunctive relief and monetary damages. Id 25 Now before the Court is Defendants’ motion to dismiss the FAC pursuant to Federal Rule of 26 Civil Procedure 12(b)(6).2 ECF No. 11. Defendants additionally seek to strike portions of the FAC 27 1 28 Plaintiffs subsequently moved to dismiss the Board as a Defendant. ECF No. 15 at 15. The Board is thereby DISMISSED as a Defendant in this case. 2 All further references to any “Rule” are to the Federal Rules of Civil Procedure, unless otherwise indicated. 1 pursuant to Rule 12(f) and request that the Court dismiss Plaintiffs’ right to counsel claims on the 2 grounds of abstention. Id. Plaintiffs filed their opposition (ECF No. 15), and Defendants replied 3 (ECF No. 16). The matter is appropriate for resolution without oral argument. See E.D. Cal. L.R. 4 230(g). Having reviewed the record and the parties’ briefing in light of the relevant law, the Court 5 GRANTS IN PART and DENIES IN PART Defendants’ motion. 6 LEGAL STANDARD 7 A motion to dismiss pursuant to Rule 12(b)(6) is a challenge to the sufficiency of the 8 allegations set forth in the complaint. Dismissal under Rule 12(b)(6) is proper where there is either 9 a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable 10 legal theory.” Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In considering a 11 motion to dismiss for failure to state a claim, the court generally accepts as true the allegations in 12 the complaint, construes the pleading in the light most favorable to the party opposing the motion, 13 and resolves all doubts in the pleader’s favor. Lazy Y. Ranch LTD v. Behrens, 546 F.3d 580, 588 14 (9th Cir. 2008). 15 To survive a 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a 16 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 17 “A claim has facial plausibility when the Plaintiff pleads factual content that allows the court to 18 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 19 Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability 20 requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” 21 Id. (quoting Twombly, 550 U.S. at 556). “While a complaint attacked by a Rule 12(b)(6) motion to 22 dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ 23 of his ‘entitlement to relief’ requires more than labels and conclusions.” Twombly, 550 U.S. at 555 24 (internal citations omitted). Thus, “bare assertions . . . amount[ing] to nothing more than a 25 ‘formulaic recitation of the elements’ . . . are not entitled to be assumed true.” Iqbal, 556 U.S. at 26 681. “[T]o be entitled to the presumption of truth, allegations in a complaint . . . must contain 27 sufficient allegations of underlying facts to give fair notice and to enable the opposing party to 28 defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In practice, “a 2 1 complaint . . . must contain either direct or inferential allegations respecting all the material 2 elements necessary to sustain recovery under some viable legal theory.” Twombly, 550 U.S. at 562. 3 To the extent that the pleadings can be cured by the allegation of additional facts, a plaintiff should 4 be afforded leave to amend. Cook, Perkiss and Liehe, Inc. v. Northern Cal. Collection Serv., Inc., 5 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted). Finally, in ruling on a Rule 12(b)(6) motion, “[a] court may take judicial notice of 6 7 [undisputed] matters of public record’ without converting a motion to dismiss into a motion for 8 summary judgment.” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001); see also 9 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“courts must consider the 10 complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 11 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, 12 and matters of which a court may take judicial notice.”). Moreover, the court is permitted to 13 consider matters that are proper subjects of judicial notice under Rule 201 of the Federal Rules of 14 Evidence: facts that are not subject to reasonable dispute because they are “generally known within 15 the trial court’s territorial jurisdiction” or “can be accurately and readily determined from sources 16 whose accuracy cannot reasonably be questioned.” See Lee, 250 F.3d at 668. FACTUAL ALLEGATIONS3 17 18 I. The B-Max The “B-Max” is the maximum security unit at PSC. FAC ¶ 1. Conditions at the B-Max are 19 20 “inhumane and debilitating.” Id. ¶ 18. Each detainee at the B-Max shares a cramped 6.5’ x 12’, 21 minimally furnished cell with one other detainee. Id. Detainees at the B-Max have very limited 22 access to telephone calls to their attorneys or family members, contact visits with attorneys, 23 recreational time or “yard privileges” (meaning access to a cell with a telephone and television), 24 rehabilitative, vocational, recreational, or educational programming. Id. ¶ 19. They have no access 25 to the outdoors, no physical equipment, and no recreational equipment. Id. Detainees are confined 26 27 28 3 These allegations are drawn from the FAC, the truth of which the Court must assume for purposes of a Rule 12(b)(6) motion to dismiss. 3 1 in their cells for periods of 38, 54, 60 or up to 80 continuous hours depending on their yard 2 schedules. Id. ¶ 23. 3 There is only one room at the B-Max used for attorney-client meetings. Id. ¶ 33. This room 4 is adjacent to and shares a vent with a staff bathroom, which results in correctional officers using 5 the bathroom being able to hear conversations between detainees and their attorneys. Id. Detainees 6 meeting with their attorneys are handcuffed in a “lock box,” shackled at the waist and ankles, and 7 secured by a bolt to the floor. Id. ¶ 34. The restrictions are uncomfortable and prevent detainees 8 from writing notes during their meetings and drawing diagrams for their attorneys. Id. 9 Detainees placed on disciplinary action are not permitted to have yard access and therefore 10 are impeded from calling their attorneys. Id. ¶ 26. The decision to place a detainee on disciplinary 11 action is made through a “cursory, in-house review” that does not afford the detainee any counsel 12 or enable him to respond meaningfully. Id. This results in detainees on disciplinary action being 13 denied the assistance of counsel while they are being disciplined. Id. 14 Additionally, detainees have been subject to excessive force during “raids” or searches of 15 their cells through the use of pellets, block guns, and tasers. Id. ¶ 28. On at least two occasions, 16 detainees have been removed from their cells, placed in the “yard” with or without clothing aside 17 from underwear, and forced to remain on their knees for hours during these raids. Id. ¶ 29. Officials 18 have also removed detainees’ legal materials from their cells during the raids. Id. ¶ 30. B-Max staff 19 have admitted to conducting searches upon cells belonging to detainees who have been classified as 20 Norteno or Northern Hispanics “for reasons related to retaliation for refusals to engage in 21 conversation with staff rather than for penological interests.” Id. ¶ 59. 22 Placement in the B-Max is often made based on unproven charges that the detainee is a 23 Norteno or Northern Hispanic Gang member. Id. ¶ 9. As of the date of the FAC, there are 15 pre- 24 trial detainees in the B-Max who are classified as active Norteno gang members. Id. ¶ 5. These 25 detainees have been housed in the B-Max for periods ranging between five months and seven years. 26 Id. Half of these detainees have not received meaningful review of their placement in the B-Max 27 for over three years, id., which appears to be in violation of the Sheriff’s Department’s written 28 policy that all detainees be granted a classification review every three months. Id. ¶ 14. Detainees 4 1 furthermore lack any meaningful way to address the conditions of their confinement, as Defendant 2 Clifton has informed them that “housing is not a grievable matter.” Id. ¶ 27. Similarly, detainees are 3 denied the ability to make citizens’ complaints about officer misconduct or other “disproportionate 4 and harsh treatment,” and have been informed that they are “not [a] citizen, you are an inmate.” Id. 5 ¶ 36. 6 II. 7 Norteno and Northern Hispanic “Tanks” at the Men’s Jail Upon booking in Stanislaus County detention facilities, detainees are asked whether they 8 are an “active gang member” or a “drop-out.” Id. ¶ 40. They are not provided the option to state that 9 they are neither. Id. Detainees who are classified as Active Norteno or Northern Hispanic are issued 10 green and white jumpsuits, which in Stanislaus County, denotes administrative segregation. Id. ¶ 11 41. If these detainees are placed in the Men’s Jail, they are housed in 12-man “active tanks.” Id. ¶ 12 41, 44. Each tank is 25’ x 20’, and is equipped with six bunk beds and two toilet/sink combinations, 13 two tables, and one telephone. Id. ¶ 45, 47. The tanks house both pre-trial detainees and individuals 14 serving misdemeanor sentences. Id. ¶ 48. 15 Detainees housed in the “tanks” have yard privileges outside “in a series of cages without 16 recreational equipment” for no more than three hours, two times per week. Id. ¶ 49. Detainees are 17 restrained through the use of waist chains, shackles, and lock boxes that tightly secure their hands 18 to their waists during attorney visits, when in court, and during personal visits. Id. ¶ 50. The lock 19 boxes used at the Men’s Jail are larger than those used at PSC and have caused detainees to 20 experience pain, cramping, and numbness. Id. ¶ 51. 21 During searches of the cells, correctional officers use shotguns and block guns to shoot into 22 the cells while ordering detainees to “get down.” Id. ¶ 54. These raids have resulted in detainees 23 being hit with fire from the shotguns and block guns. Id. ¶ 55. Furthermore, correctional officers 24 use “flash bang” grenades in each tank prior to searches. Id. ¶ 56. Correctional officers use these 25 methods despite not being endangered. Id. ¶¶ 54, 56. 26 Detainees classified as active Nortenos, whether housed at the Men’s Jail or PSC, are denied 27 access to rehabilitative programs, anger management classes, parenting classes, educational 28 programs, vocational programs, and if convicted, are denied access to the Alternative Work 5 1 Program or Ankle Monitor Programs that are available to others. Id. ¶ 57. Detainees who have 2 inquired about access to these programs have been denied relief under the justification that “gang 3 members are not trying to rehabilitate themselves.” Id. ¶ 58. 4 III. Plaintiffs and Their Putative Classes 5 Osegueda is a pre-trial detainee who has had no significant rule violations since his 6 detention began in 2012. Id. ¶¶ 1, 64. He spent over three years in the B-Max, without meaningful 7 review of his placement, which is a violation of the Sheriff’s Department written policy. Id. ¶¶ 2, 8 14. Specifically, Osegueda was placed in B-Max on October 17, 2012, and did not receive a 9 classification review until May 2016. Id. ¶ 13, 15. Osegueda was moved from B-Max into an 10 “Active Norteno” tank on or around August 2016, but is subject to return to B-Max without 11 warning or hearing. Id. ¶ 17. Osegueda seeks relief on his own behalf and those similarly situated 12 who have been housed in the B-Max without meaningful review of their placement. Id. ¶ 1. Palomino is a pre-trial detainee who has had no significant rule violations since his detention 13 14 began in 2013. Id. ¶ 65. Palomino spent more than three years in the B-Max due to his classification 15 as a Norteno, before being “downgraded” and placed in an Active Norteno tank at the Men’s Jail. 16 Id. Palomino seeks relief on his own behalf and those similarly situated who have been classified as 17 Nortenos or Northern Hispanics without meaningful review of this classification. Id. ¶ 38. DISCUSSION 18 19 I. Request for Judicial Notice Defendants have asked that this Court take judicial notice of both Plaintiffs’ criminal case 20 21 records from the Stanislaus Superior Court, including the charges on their indictments, and section 22 1050 of Title 15 of the California Code of Regulations, which governs the classification plans of 23 detention facilities. ECF No. 11-2. Plaintiffs oppose the request as it relates to their pending 24 criminal charges, on the grounds that the information is “inflammatory, not relevant, and is only 25 undertaken in an effort to prejudice this court.” ECF No. 15 at 17.4 The Court understands that 26 Plaintiffs are presumed innocent until proven guilty and agrees that Defendants’ usage of the term 27 28 4 Pincites refer to CM/ECF pagination located at the top of each page. 6 1 “accused murderers” to describe Plaintiffs is unnecessary and inappropriate in these proceedings. 2 Nevertheless, because both 15 C.C.R. § 1050 and Plaintiffs’ Stanislaus County criminal records are 3 undisputed matters of public record and proper subjects of judicial notice under Rule 201, the Court 4 GRANTS Defendants’ request. 5 II. Substantive Constitutional Violations Because the FAC alleges various constitutional violations against multiple defendants, 6 7 including municipal entity defendants, the Court finds it appropriate to first address whether 8 Plaintiffs have alleged facts that plausibly support constitutional claims before addressing liability 9 as to each Defendant. See, e.g., Shorter v. Baca, 101 F. Supp. 3d 876, 890 (C.D. Cal. 2015). a. First Cause of Action: Fourteenth Amendment -- Conditions of Confinement5 10 Plaintiffs first assert that conditions in the B-Max are unconstitutional. FAC ¶¶ 76-86. 11 12 Distilled, Plaintiffs argue (1) that conditions in the B-Max, as described above, amount to 13 disproportionate punishment that lacks a legitimate justification; and (2) Defendants’ awareness of 14 the conditions in the B-Max amount to deliberate indifference. Id. 15 Conditions of confinement claims brought by pre-trial detainees are analyzed under the Due 16 Process clause of the Fourteenth Amendment rather than the Cruel and Unusual Punishment Clause 17 of the Eighth Amendment. Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003); 18 see also Pierce v. Cty. of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008) (“Under the Due Process 19 Clause, detainees have a right against jail conditions or restrictions that ‘amount to punishment.’”). 20 “[T]o constitute punishment, the harm or disability caused by the government’s action must either 21 significantly exceed, or be independent of, the inherent discomforts of confinement.” Demery v. 22 Arpaio, 378 F.3d 1020, 1030 (9th Cir. 2004) (citing Bell v. Wolfish, 441 U.S. 520, 537 (1979)). In 23 Bell, the Supreme Court explained as follows: 24 [I]f a particular condition or restriction of pre-trial detention is reasonably related to a legitimate governmental objective, it does not without more, amount to ‘punishment.’ 25 26 27 28 5 The FAC includes under this claim allegations that confinement in the B-Max is “designed to coerce Plaintiffs to provide information or accept pleas” offered by the District Attorney, in that Defendants’ policies are not legitimately related to security needs. FAC ¶ 82-84. To the extent Plaintiffs argue that their confinement in the B-Max is the result of Defendants’ policies intended to “coerce” them into “debriefing” and becoming informants for the State, and/or accept plea offers made by the District Attorney, the Court finds that these allegations do not fit within the parameters of a Fourteenth Amendment conditions of confinement claim. Accordingly, insofar as this claim refers to the allegations regarding Defendants’ purported coercion of Plaintiffs, it is DISMISSED WITH LEAVE TO AMEND. 7 1 2 Conversely, if a restriction or condition is not reasonably related to a legitimate goal— if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. 3 4 441 U.S. at 439. “Legitimate nonpunitive governmental objective include ‘maintaining security and 5 order’ and ‘operating the [detention facility] in a manageable fashion.’” Pierce, 526 F.3d at 1205 6 (quoting Bell, 441 U.S. at 540 n. 23). Furthermore, while prison administrators may be justified in 7 placing certain detainees in more restrictive conditions on the grounds of these legitimate 8 nonpunitive governmental objectives, there is nevertheless a constitutional floor that conditions 9 may not fall beneath, even in heightened security units, such as the B-Max at PSC. See, e.g., Lopez 10 v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000). At a minimum, the Constitution mandates that 11 detention facilities provide for detainees’ “basic human needs” in accordance with “[c]ontemporary 12 standards of decency.” See Helling v. McKinney, 509 U.S. 25, 32-33 (1993) (citing DeShaney v. 13 Winnebago Cty. Dept. of Social Svcs., 389 U.S. 189, 199-200 (1989) and Estelle v. Gamble, 429 14 U.S. 97, 103-104 (1976)). In determining the standard for the constitutional rights of pre-trial 15 detainees, the Court may look to decisions defining the constitutional rights of prisoners under the 16 Eighth Amendment. Mink, 322 F.3d at 1120 (“In light of the Supreme Court’s observation that the 17 due process rights of pre-trial detainees are ‘at least as great as the Eighth Amendment protections 18 available to a convicted prisoner,” … we have recognized that, even though the pre-trial detainees’ 19 rights arise under the Due Process Clause, the guarantees of the Eighth Amendment provide a 20 minimum standard of care for determining their rights …”) (emphasis in original). For instance, in 21 Lopez, the Ninth Circuit found that summary judgment for prison officials was inappropriate when 22 the plaintiff alleged he was denied access to outdoor exercise while he was segregated from other 23 inmates in a secured housing unit. 203 F.3d 1122, 1132-33 (9th Cir. 2000). The Ninth Circuit 24 reasoned that although the record demonstrated that the plaintiff was segregated for his own 25 protection pursuant to the prison’s policies, the prison failed to explain why the plaintiff “was not 26 given some other opportunity for outdoor exercise.” See id. 27 28 Although the law in this area remains somewhat unsettled, the Ninth Circuit has indicated that claims brought by pre-trial detainees for inhumane conditions of confinement under the 8 1 Fourteenth Amendment should be evaluated under the objectively unreasonable standard articulated 2 by the Supreme Court in Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015), in the context of 3 deciding a pre-trial detainee’s excessive force claim. Castro v. Cty. of Los Angeles, 833 F.3d 1060, 4 1069-70 (9th Cir. 2016) (en banc). “Prior to Kingsley, a pre-trial detainee complaining of conditions 5 of confinement had to allege facts that, if true, would satisfy both prongs of a bifurcated test under 6 the Eighth Amendment.” King v. Cty. of Los Angeles, No. CV 15-07072-SVW (AFM), 2016 WL 7 6902097, at *8 (C.D. Cal. Oct. 7, 2016). Under this test, the plaintiff was required to allege that (1) 8 objectively, he was subjected to conditions that “are or were serious enough to be considered cruel 9 and unusual,” and (2) subjectively, the defendants acted with “a sufficiently culpable state of mind 10 (i.e., with ‘deliberate indifference’).” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298-99 (1991)). 11 Subsequent to Kingsley, and in consideration of the Ninth Circuit’s application and extension of 12 Kingsley to a pre-trial detainee’s failure-to-protect claim in Castro, it appears to this Court that a 13 pre-trial detainee need no longer allege “deliberate indifference” to satisfy the objective prong in 14 his conditions of confinement claim, but need only allege that defendants engaged in “objectively 15 unreasonable” conduct. See Castro, 833 F.3d at 1071. In determining whether a defendant’s 16 conduct is “objectively unreasonable,” courts should carefully consider the “facts and 17 circumstances of each particular case.” Id. (quoting Kingsley, 135 S.Ct. at 2473). 18 Here, Defendants have correctly noted that Plaintiffs, as pre-trial detainees, do not have a 19 constitutional right to a particular classification status or housing assignment. ECF No. 11-1 at 15 20 (citing Hernandez v. Johnston, 833 F.2d 1316 (9th Cir. 1987) and Moody v. Daggett, 429 U.S. 78, 21 88 n.9 (1976)). Plaintiffs allege that they were housed in the B-Max on account of their 22 classification as Norteno gang members. FAC ¶¶ 64-65. However, “California’s policy of assigning 23 suspected gang affiliates to the [Secure Housing Unit] is not a disciplinary measure, but an 24 administrative strategy designed to preserve order in the prison and protect the safety of all 25 inmates.” Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir. 1997). 26 California law authorizes prison administrators to “develop and implement a written 27 classification plan designed to properly assign inmates to housing units and activities according to 28 the categories of sex, age, criminal sophistication, seriousness of crime charged, physical or mental 9 1 health needs, assaultive/non-assaultive behavior and other criteria which will provide for the safety 2 of the inmates and staff.” 15 C.C.R. § 1050(a). The Court has taken judicial notice of information 3 Defendants have provided that provides an additional reason why Plaintiffs may have been housed 4 in the B-Max: Osegueda has been charged with three counts of murder, one count of burglary, one 5 count of torture, one count of false imprisonment, and one count of participation in a criminal street 6 gang, and Palomino has been charged with three counts of murder, one count of burglary, and one 7 count of participation in a criminal street gang. ECF No. 11-1, Exs. A, B. The charges on both 8 Plaintiffs’ indictments are serious, which is a consideration mandated by 15 C.C.R. § 1050(a), and 9 demonstrate that the decision to place Plaintiffs in the B-Max and to segregate him from other pre- 10 trial detainees was warranted and served a “legitimate, non-punitive governmental objective” of 11 maintaining security and order in the PSC. 6 Pierce, 526 F.3d at 1205. Therefore, to the extent 12 Plaintiffs’ first cause of action argues that their classification as Nortenos caused them to be placed 13 in the B-Max itself is unconstitutional, the Court GRANTS Defendants’ motion to dismiss this 14 claim. In an abundance of caution, dismissal shall be with leave to amend. 15 Plaintiffs additionally argue that the conditions in the B-Max are unconstitutional, citing 16 long periods of confinement in their cells, sensory deprivation, limited access to telephones and 17 physical exercise, the denial of “good” medical care, and being deprived of access to rehabilitative 18 programming.7 Insofar as the FAC alleges that detainees have been denied “good” medical care, the Court 19 20 finds this to be a conclusory allegation lacking in factual support because Plaintiffs have not 21 provided any factual allegations regarding even one instance during which either Osegueda or 22 6 23 24 25 26 27 28 For these reasons, the Court disagrees with Plaintiffs’ reliance on United States v. Gotti, 755 F. Supp. 1159 (E.D.N.Y. 1991), in which a court ordered that pre-trial detainees be released from administrative detention after concluding that the detention facility failed to comply with the applicable regulations regarding classification of detainees. Importantly, although the Gotti court ordered that the detainees be released from administrative detention, the court clarified that “the Warden is not precluded from imposing such conditions or restrictions and for such legitimate purpose as he may deem appropriate, in the future.” See 755 F. Supp. at 1165. 7 To this argument, Defendants point out that Plaintiffs have failed to allege that they were personally harmed by these allegedly unconstitutional conditions, and therefore lack standing to bring these claims on behalf of other pre-trial detainees. ECF No. 11 at at 14 (citing Warth v. Seldin, 422 U.S. 490, 499 (1975) for the notion that a “federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered ‘some threatened or actual injury resulting from the putatively illegal action.’”). However, Plaintiffs’ opposition, while inartfully articulated, conveys that they meant to allege that as pre-trial detainees, they personally endured the conditions described in the FAC. With the exception of the medical care claim, there is sufficient factual content allowing the Court to infer that Plaintiffs have personally experienced the conditions described in the FAC. Any amended complaint must address this issue. 10 1 Palomino was denied medical care. See Starr, 652 F.3d at 1214. Accordingly, the Court GRANTS 2 with leave to amend Defendants’ motion to dismiss Plaintiffs’ medical care claim. Insofar as the FAC alleges that being deprived of access to educational, vocational, and 3 4 rehabilitative programming on account of being housed in the B-Max is in violation of the 5 Constitution, the Court disagrees. “Idleness and the lack of programs are not Eighth Amendment 6 violations. The lack of these programs simply does not amount to the infliction of pain.” Hoptowit 7 v. Ray, 682 F.2d 1237, 1254 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 8 U.S. 472 (1995). These programs are not the type of “basic human needs” that the Constitution 9 mandates detention facilities must provide. See id.; see also Johannes v. Cty. of Los Angeles, No. 10 CV 02-03197 SVW (VBK), 2011 WL 6149253, at *14 (C.D. Cal. Apr. 8, 2011) (pre-trial 11 detainee’s allegations “regarding vocational/educational programs fail to give rise to a 12 constitutional violation.”). The Court GRANTS without leave to amend Defendants’ motion to 13 dismiss Plaintiffs’ claims pertaining to educational, vocational and rehabilitative programming. 14 Similarly, insofar as the FAC alleges that limited access to the telephones is in violation of 15 the Constitution, the Court does not believe this claim is cognizable. The FAC acknowledges that 16 that Plaintiffs had access to telephones during their yard time for about three hours per week. FAC 17 ¶ 19. “Although prisoners have a First Amendment right to telephone access, this right is subject to 18 reasonable limitations arising from the legitimate penological administrative interests of the prison 19 system.” Johnson v. State of Cal., 207 F.3d 650, 656 (9th Cir. 2000). Thus, the Court GRANTS 20 with leave to amend Defendants’ motion to dismiss Plaintiffs’ claims pertaining to telephone 21 access. 22 Finally, insofar as the FAC alleges that detainees, including Plaintiffs, are subject to sensory 23 deprivation and are unable to engage in physical exercise during long periods of confinement while 24 housed in the B-Max, the Court finds that Plaintiffs have pleaded sufficient facts to state a 25 constitutional violation. The Ninth Circuit has noted that “[e]xercise is one of the basic human 26 necessities protected by the Eighth Amendment,” and “[d]etermining what constitutes adequate 27 exercise requires consideration of ‘the physical characteristics of the cell and jail and the average 28 length of stay of the inmates.” Pierce, 526 F.3d at 1211-12. In Pierce, the Ninth Circuit found that 11 1 pre-trial detainee plaintiffs who were only afforded ninety minutes of exercise per week had 2 established a constitutional violation, in light of the fact that they spent the approximately 21-22 3 hours of each day in their cells and on average, were held in pre-trial detention for 110 days or 312 4 days if they were “third-strike” offenders.” Id. Here, Plaintiffs have sufficiently pleaded facts 5 demonstrating that conditions in the B-Max are objectively unconstitutional. According to the FAC, 6 B-Max detainees are only allotted three hours of “yard time,” within which they are permitted 7 access to an enclosed concrete cell with a telephone and a television and does not have any 8 recreational equipment. FAC ¶¶ 19-21. Plaintiffs have alleged that they had essentially no means of 9 engaging in physical exercise while they were both held in the B-Max for over three years, and may 10 be returned to the B-Max, and that they were only exposed to the outdoors during their walks to and 11 from transportation taking them to the courthouse. FAC ¶ 22. Plaintiffs have alleged that they have 12 suffered “serious psychological and physical injury, pain, and suffering on account of conditions in 13 the B-Max.” Id. ¶ 80-11. These allegations sufficiently allege that Plaintiffs have suffered a 14 constitutional harm. Pierce, 526 F.3d at 1211-12 (citing cases supporting the notion that “detainees 15 who are held for more than a short time and spend the bulk of their time inside their cells are 16 ordinarily entitled to daily exercise, or five to seven hours of exercise per week, outside their 17 cells”); Lopez, 203 F.3d at 1133; Shorter, 101 F. Supp. 3d at 894-95. 18 Next, the FAC adequately alleges that Defendants’ conduct was “objectively unreasonable” 19 in failing to rectify the lack of opportunity for detainees to exercise and their lack of access to the 20 outdoors. The FAC alleges that Defendants were made personally aware of conditions in the B- 21 Max through grievances and complaints made by Plaintiffs and other detainees, and that they have 22 “demonstrated a lack of regard for the constitutional rights of pre-trial detainees and a deliberate 23 indifference to the deprivations suffered by Plaintiffs in [their] care.” FAC ¶¶ 69-70. At this stage 24 of proceedings, these allegations are sufficient to survive a 12(b)(6) motion. See, e.g., Ashker v. 25 Brown, No. C 09-5796 CW, 2013 WL 1435148, at *5 (N.D. Cal. Apr. 9, 2013) (finding that 26 allegations that prison officials were “given explicit notice” of the plaintiffs’ injuries “by way of 27 administrative grievances, written complaints, and inmate hunger strikes” were sufficient to survive 28 the higher deliberate indifference standard at the pleading stage). Therefore, the Court finds that 12 1 Plaintiffs have stated a cognizable Fourteenth Amendment conditions of confinement violation 2 relating to exercise and sensory deprivation. b. Second and Third Causes of Action: Fourteenth Amendment – Due Process 3 Although they are pleaded separately, Plaintiffs’ second and third causes of action allege 4 5 essentially the same claims—namely that Defendants have denied them due process before housing 6 them in the B-Max by failing to provide them with “a chance to be heard,” and failed to provide 7 them with a timely classification hearing. FAC ¶¶ 87-102.8 As discussed above, pre-trial detainees do not have a right to a particular classification 8 9 status and PSC officials are authorized under California law to house detainees in more restrictive 10 conditions on account of suspected gang affiliation or the seriousness of the crimes charged against 11 them. Nevertheless, pre-trial detainees have a right “to a due process hearing before they are 12 restrained for reasons other than to assure their appearance at trial.” Mitchell v. Dupnik, 75 F.3d 13 517, 524 (9th Cir. 1996); see also Shorter, 101 F. Supp. 3d at 891(“the Ninth Circuit has held that 14 segregated confinement of pre-trial detainees, where that confinement amounts to punishment, must 15 be accompanied by a due process hearing.”). This hearing must be “an informal nonadversary 16 hearing” held within a reasonable time after the detainee is segregated, and the detainee must be 17 informed of the reasons he is to be segregated and must have the opportunity to present his views. 18 Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986). The Ninth Circuit has indicated that a 19 hearing held within 72 hours of segregation constitutes a “reasonable time.” Id. at 1100 n. 20 (citing 20 Hewitt v. Helms, 459 U.S. 460, 476-78 n. 8 & 9 (1983)). According to the FAC, each detainee is asked upon booking whether he is an “active gang 21 22 member” or a “drop-out,” which then determines whether the detainee will be housed in the B-Max 23 or an active tank. FAC ¶¶ 40-42. The FAC also alleges that detainees are placed in the B-Max or an 24 active tank “without a chance to be heard” or “notice of what criteria will subject a person to 25 housing in the B-Max Unit or active tanks,” id. ¶ 88, and that Plaintiffs were housed in the B-Max 26 for over three years without any sort of classification review, id. ¶¶ 64-65. Osegueda received a 27 8 28 Because the Court finds that Plaintiffs have sufficiently alleged a due process violation on the grounds that they were not provided a timely classification review upon housing in the B-Max, the Court declines to address Plaintiffs’ remaining claims regarding Defendants’ failure to provide them with notice as to how they might be permitted to rejoin the general detainee population and periodic classification reviews. 13 1 classification review in May 2016 and was then downgraded from the B-Max to an active tank at 2 the Men’s Jail. Id. ¶ 15-17. Palomino was also initially housed in the B-Max and after three and a 3 half years, was downgraded and housed in an active tank at the Men’s Jail. Id. ¶ 43. From these 4 allegations, it is plausible for the Court to infer that Plaintiffs did not receive the timely due process 5 hearing mandated by the Ninth Circuit. Although Plaintiffs were asked upon booking whether they 6 are gang members, Plaintiffs have alleged that they were not given a chance to present their views 7 before they were housed in the B-Max or shortly thereafter. Furthermore, it appears from the FAC 8 that they did not receive their classification reviews until more than three years after their arrival at 9 PSC. Plaintiffs have therefore stated a due process claim. Accordingly, the Court DENIES 10 Defendants’ motion to dismiss Plaintiffs’ due process claim.9 c. Fourth Cause of Action: Fourteenth Amendment – Equal Protection 11 Plaintiffs next allege that their equal protection rights have been violated because unlike 12 13 detainees in the general population housed in other Stanislaus County jail facilities, they “and 14 others similarly situated” are denied access to rehabilitative, vocational, and educational 15 programming. FAC ¶ 104-106. Although the complaint does not explicitly articulate this, the Court 16 assumes that Plaintiffs allege that this deprivation is on account of their classification as Norteno 17 and/or Northern Hispanic gang members, because other detainees have access to these programs. The Court agrees with Defendants that this cause of action fails to state a claim upon which 18 19 relief can be granted. “The Equal Protection Clause of the Fourteenth Amendment commands that 20 no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is 21 essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, 22 Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985). “To state a claim for violation of the 23 Equal Protection Clause, a plaintiff must show that the defendant acted with an intent or purpose to 24 discriminate against him based upon his membership in a protected class.” Serrano v. Francis, 345 25 F.3d 1071, 1082 (9th Cir. 2003). Here, Plaintiffs have failed to allege that they have suffered 26 discrimination on account of a protected class, as they alleged that the disparate treatment they 27 9 28 The Court notes that Plaintiffs pleaded this claim under two separate causes of action. Although the Court has determined that Plaintiffs’ due process claim may proceed, Plaintiffs are advised that the claim will proceed under only one cause of action and that they should be more attentive in their drafting of their next amended complaint so as to not plead duplicative causes of action. 14 1 experienced was on account of their classification as Norteno and/or Northern Hispanic gang 2 members. Gang membership classification does not constitute a protected class that triggers the 3 Equal Protection Clause. See, e.g., Mitchell v. Cate, No. 2:11-cv-1240 JAM AC P, 2015 WL 4 5255339, at *7 (E.D. Cal. Sept. 9, 2015); Allen v. Hubbard, No. CV 11-4056-SJO (PJW), 2911 WL 5 6202910, at *4 (C.D. Cal. Oct. 12, 2011) (“Gang membership is not a suspect class.”). Furthermore, 6 as the Court noted above, access to educational, rehabilitative and vocational programs are not 7 fundamental rights. Therefore, the Court GRANTS Defendants’ motion to dismiss this claim. 8 Dismissal shall be with leave to amend. 9 10 11 d. Fifth and Sixth Causes of Action: Sixth and Fourteenth Amendments – Right to Counsel Again, Plaintiffs have pleaded essentially the same constitutional claim under two separate 12 causes of action. Here, Plaintiffs assert that conditions in the B-Max have deprived them of 13 meaningful access to counsel because of limited access to telephones, limited space to conduct 14 meetings with their attorneys, and a lack of privacy during these meetings. FAC ¶¶ 109-10, 112-13. 15 Defendants argue that the Court should abstain from deciding Plaintiffs’ right to counsel 16 claim because this claims relates to Plaintiffs’ ongoing criminal proceedings in state court. ECF No. 17 11-1 at 22-23. Under the Supreme Court’s decision in Younger v. Harris, 401 U.S. 37, 44 (1971), 18 federal courts should not interfere in ongoing state court criminal proceedings, and a federal court 19 may not grant injunctive relief while the state court criminal case is pending. See Samuels v. 20 Mackell, 401 U.S. 66, 68-74 (1971). The notion of “comity,” which forms the underpinning of this 21 principle, is “a proper respect for state functions, a recognition of the fact that the entire country is 22 made of up of a Union of separate state governments, and a continuance of the belief that the 23 National Government will fare best if the States and their institutions are left free to perform their 24 separate functions in their separate ways.” Younger, 401 U.S. at 44. Abstention pursuant to Younger 25 is appropriate if “(1) there are ongoing state judicial proceedings, (2) the proceedings implicated 26 important state interests, and (3) there is an adequate opportunity in the state proceedings to raise 27 federal questions.” Dubinka v. Judges of Superior Ct. of State of Cal. for Cty. of Los Angeles, 23 28 F.3d 218, 223 (9th Cir. 1994). 15 The three requirements for abstention are present here. First, Plaintiffs are defendants in 1 2 ongoing state criminal proceedings. ECF No. 11-2, Exs. A, B. Second, courts have recognized that 3 the enforcement of state criminal laws is an important state interest within the meaning of Younger. 4 Kelly v. Robinson, 479 U.S. 36, 59 (1986); Peterson v. Contra Costa Cty. Sup. Ct., No. C03-5534 5 MMC (PR) 2004 WL 443457, at *1-2 (N.D. Cal. Mar. 2, 2004). Third, the state court proceedings 6 provide Plaintiffs with an adequate opportunity to raise their constitutional claims. Pennzoil Co. v. 7 Texaco, Inc., 481 U.S. 1, 15 (1987) (“when litigant has not attempted to present his federal claims 8 in related state-court proceedings, a federal court should assume that state procedures will afford an 9 adequate remedy, in the absence of unambiguous authority to the contrary”). Furthermore, in 10 finding that Younger abstention was appropriate in the case of a § 1983 petitioner who had asserted 11 a right-to-counsel claim in his state court proceedings, the Ninth Circuit noted that “the potential for 12 federal-state friction [resulting from federal intervention] is obvious.” Mann v. Jett, 781 F.2d 1448, 13 1449 (9th Cir. 1986) (quoting Guerro v. Mulhearn, 498 F.2d 1249, 1253 (1st Cir. 1974)). 14 Therefore, the Court GRANTS Defendants’ motion to dismiss Plaintiffs’ Sixth Amendment claims 15 on the basis of Younger abstention. Dismissal shall be with leave to amend. e. Seventh10 Cause of Action: First and Fifth Amendments 16 Plaintiffs’ next claim attempts to invoke the First and Fifth Amendments. It reads, verbatim, 17 18 as follows: Plaintiff[s] and others similarly situated are classified as “Administrative Segregation” or active gang members according to invidious discrimination in contravention of the First and Fifth Amendments. Defendants act with a discriminatory purpose against Hispanic detainees. 19 20 21 Plaintiffs and others similarly situated, who are classified as Active Norteno or Northern Hispanic are immediately administered a green and white jumpsuit, which denotes administrative segregation and placed into either B-Max or active tanks. Others who are classified as associates of other “gangs/disruptive groups” and associated with other classifications of inmates are housed in general population. 22 23 24 25 26 27 28 10 The FAC erroneously titled this claim its “Sixth Cause of Action.” However, because this claim was preceded by six other separately numbered claims, it is actually the seventh cause of action. 16 1 FAC ¶¶ 116-17. Even incorporating by reference the preceding paragraphs, the Court finds these 2 allegations unintelligible. It is unclear how these allegations, even generously construed, could 3 possibly support a finding that Plaintiffs’ First and Fifth Amendment rights have been violated. 4 Plaintiffs’ opposition sheds no light on the issue. Defendants’ motion to dismiss Plaintiffs’ 5 Plaintiffs’ seventh claim is GRANTED. Dismissal shall be with leave to amend. 6 7 f. Eighth Cause of Action: Excessive Force Plaintiffs’ final claim asserts that they have been “repeatedly subjected to excessive force in 8 connection with their pre-trial detention” through the regular searches conducted by Defendant 9 Lloyd and other correctional officers. FAC ¶ 119. Plaintiffs claim that the correctional officers, who 10 are supervised by Defendants Lloyd, Clifton, Duncan, and Christianson, use flash-bang grenades or 11 fire block gun or pellet guns before unlocking cell doors as they conduct searches despite there not 12 being any ongoing incident or threat to either the detainees or officers, and that the use of these 13 devices has “caused ongoing injury for some similarly situated to Plaintiffs.” Id. ¶¶ 121-22. 14 Excessive force claims brought by pre-trial detainees are evaluated under the “objectively 15 unreasonable standard.” Kingsley, 135 S.Ct. at 2473. In determining whether the force used was 16 objectively unreasonable, courts look to a variety of factors, including: “the relationship between 17 the need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any 18 effort made by the officer to temper or to limit the amount of force; the severity of the security 19 problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was 20 actively resisting.” Id. (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). The Court must 21 additionally account for the “‘legitimate interests that stem from [the government’s] need to 22 manage the facility in which the individual is detained,” appropriately deferring to ‘policies and 23 practices that in th[e] judgment’ of jail officials ‘are needed to preserve internal order and discipline 24 and to maintain institutional security.’” Id. (quoting Bell, 441 U.S. at 540). 25 On this claim, the Court agrees with Defendants’ argument that the FAC’s allegations are 26 vague and conclusory, and therefore not entitled to the presumption of truth. Although the FAC 27 states that Plaintiffs were “injured” by the officers’ use of the devices mentioned, it provides no 28 further details as to the extent of Plaintiffs’ injuries or the amount of force these devices actually 17 1 unleashed when employed, making it impossible for the Court to evaluate the allegations under 2 Kingsley’s standard. Therefore, the Court GRANTS with leave to amend Defendants’ motion to 3 dismiss Plaintiffs’ excessive force claim. 4 III. Defendants’ Liability 5 42 U.S.C. § 1983 requires that there be an actual connection or link between the actions of 6 Defendants and the deprivations alleged to have been suffered by Plaintiffs. See Monell v. Dept. of 7 Social Svcs., 436 U.S. 658 (1978). The Ninth Circuit has held that “[a] person ‘subjects’ another to 8 the deprivation of a constitutional right, within the meaning of section 1983, if he does an 9 affirmative act, participates in another's affirmative acts or omits to perform an act which he is 10 legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 11 588 F.2d 740, 743 (9th Cir. 1978). In order to state a claim for relief under § 1983, Plaintiffs must 12 link each named Defendant with some affirmative act or omission that demonstrates a violation of 13 Plaintiffs’ federal rights. Plaintiffs must specify which Defendant(s) he feels are responsible for 14 each violation of his constitutional rights and the factual basis as his Complaint must put each 15 Defendant on notice of Plaintiffs’ claims against him. See Austin v. Terhune, 367 F.3d 1167, 1171 16 (9th Cir. 2004). 17 Furthermore, when a named defendant holds a supervisory position, the causal link between 18 him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 19 F.2d 858, 862 (9th Cir. 1979). To state a claim for relief under §1983 based on a theory of 20 supervisory liability, Plaintiffs must allege some facts that would support a claim that supervisory 21 Defendants either: personally participated in the alleged deprivation of constitutional rights; knew 22 of the violations and failed to act to prevent them; or promulgated or “implemented a policy so 23 deficient that the policy ‘itself is a repudiation of constitutional rights' and is ‘the moving force of 24 the constitutional violation.’” Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989) (internal citations 25 omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Under § 1983, liability may not be 26 imposed on supervisory personnel for the actions of their employees under a theory of respondeat 27 superior. Iqbal, 556 U.S. at 677. “In a § 1983 suit or a Bivens action—where masters do not answer 28 for the torts of their servants—the term ‘supervisory liability’ is a misnomer.” Id. Knowledge and 18 1 acquiescence of a subordinate’s misconduct is insufficient to establish liability; each government 2 official is only liable for his or her own misconduct. Id. a. Individual Defendants11 3 The Court determined that the FAC has stated facts that could support cognizable 4 5 constitutional violations with regard to Plaintiffs’ conditions of confinement and due process 6 claims. The FAC lists the following individuals Defendants in connection with these two claims: 7 Christianson, the elected Stanislaus County Sheriff; Duncan, PSC’s Facilities Captain; Clifton, 8 PSC’s Facilities Commander; Lloyd, Captain of PSC’s Correctional Emergency Response Team 9 and the Commander of the Facility Training Officer Program; and Shelton, PSC’s classification 10 officer that dealt most directly with Plaintiffs. Upon review of the FAC’s allegations regarding each individual Defendants’ connections 11 12 with the two claims that may be cognizable, the Court finds that Plaintiffs’ conditions of 13 confinement claim may proceed against Defendants Clifton, Duncan, and Christianson. According 14 to the FAC, Defendants Clifton and Duncan are responsible for conditions in the B-Max and have 15 authorized, approved or knowingly acquiesced to these conditions. FAC ¶¶ 69-70. The Court 16 further finds that because the FAC alleges that Christianson has been made “personally aware” of 17 conditions in the B-Max through meetings with the Stanislaus County Criminal Defense Bar, it has 18 sufficiently alleged § 1983 supervisory liability as to Plaintiffs’ conditions of confinement claim. 19 Similarly, the Court finds that Plaintiffs’ due process claim may proceed against Defendants 20 Clifton, Duncan, Shelton, and Christianson. For the same reasons they may be liable for Plaintiffs’ 21 conditions of confinement claim, Defendants Clifton, Duncan, and Christianson may also be liable 22 for Plaintiffs’ due process claim. Furthermore, because the FAC alleges Shelton is responsible for 23 classification assignments and housing assignments, and has denied Plaintiffs the opportunity to 24 challenge their classification, the Court finds that Shelton may also be held liable for Plaintiffs’ due 25 process claim. 26 // 27 11 28 Although Plaintiffs named Sargeant Steven Verver as a Defendant in this case, Sargeant Verver is not listed under Plaintiffs’ due process or conditions of confinement claims. Therefore, the Court declines to address his liability at this time. If Plaintiffs wish to proceed with claims against Sargeant Verver, they are advised to state their allegations against him specifically by name. 19 1 b. Entity Defendants 2 The FAC has also named two public entities as Defendants: PSC and the Sheriff’s Office. 3 Defendants argue that Plaintiffs have failed to state a claim for municipal liability pursuant 4 to Monell. To state a claim against a public entity under Monell, a plaintiff must plead “(1) that the 5 plaintiff possessed a constitutional right of which she was deprived; (2) that the municipality had a 6 policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional right; 7 and, (4) that the policy is the moving force behind the constitutional violation.” Dougherty v. City 8 of Covina, 654 F.3d 892, 900 (2011) (internal quotation marks and citations omitted). The policy 9 must be the result of a decision of a person employed by the entity who has final decision or policy 10 11 making authority. Monell, 436 U.S. at 694. Again, the Court agrees with Defendants. The FAC fails to attribute any policy to 12 Defendants PSC and the Sheriff’s Office, and therefore falls far short of satisfying the requirements 13 set forth in Monell. The Court therefore GRANTS Defendants’ motion to dismiss Plaintiffs’ Monell 14 claims. Dismissal shall be with leave to amend. 15 16 c. District Attorney Fladagar Defendants note that District Attorney Fladagar “is not named as a responsible defendant in 17 any of Plaintiffs’ claims, despite the claims naming all other individual and Stanislaus County 18 associated Defendants.” ECF No. 11-1 at 10. Defendants further point out that the FAC’s only 19 allegation pertaining to Fladagar is that she “has participated in a conspiracy with Sherriff 20 Christianson to house people in inhumane and extreme conditions in order to encourage pre-trial 21 detainees to debrief or accept plea deals.” Id. at 11 (quoting FAC ¶ 75). Finally, Defendants argue 22 that Fladagar is immune from suit under absolute prosecutorial immunity under § 1983 for 23 initiating a prosecution and presenting the state’s case, including the plea bargaining process. Id. 24 (citing Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976)). 25 In their opposition, Plaintiffs attempt to add factual allegations not contained in the FAC 26 regarding Fladagar’s conduct. ECF No. 15 at 9. However, the Court cannot consider factual 27 allegations not made in the complaint. See Schneider v. Cal. Dept. of Corrs., 151 F.3d 1194, 1198 28 n.1 (9th Cir. 1998) (“In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look 20 1 beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a 2 defendant's motion to dismiss”) (emphasis in original). Plaintiffs further argue that Fladagar is not 3 immune because Imbler did not foreclose the possibility that prosecutors may be liable under 4 § 1983 when they engage in certain investigatory or administrative activities. ECF No. 15 at 9. 5 At this stage of the proceedings, the Court finds that the allegations in the FAC are 6 insufficient to make a determination as to whether Fladagar may be held liable. Because the FAC 7 contains only conclusory allegations regarding Fladagar and fails to connect Fladagar to any 8 specific claims, the Court GRANTS Defendants’ motion to dismiss Fladagar as a Defendant in this 9 case. In an abundance of caution, dismissal shall be with leave to amend. 10 11 IV. Motion to Strike Defendants finally ask that the Court strike two portions of the FAC: (1) Plaintiffs’ prayer 12 for punitive damages, on the grounds that punitive damages are not recoverable against public 13 entities under § 1983; and (2) Plaintiffs’ request that Defendants release them from the B-Max and 14 that Defendants present a written plan to the Court providing for alleviation of conditions in the B- 15 Max and a meaningful review process. ECF No. 11-1 at 25. 16 Rule 12(f) permits the court to “strike from a pleading an insufficient defense or any 17 redundant, immaterial, impertinent, or scandalous matter.” The Court may only strike material from 18 a pleading if it falls within one of these five categories. Whittlestone, Inc. v. Handi–Craft Co., 618 19 F.3d 970, 973–74 (9th Cir. 2010). However, the Ninth Circuit has held that “Rule 12(f) does not 20 authorize district courts to strike claims for damages on the grounds that such claims are precluded 21 by law.” Id. at 974-75. “The proper vehicle for challenging the sufficiency of a punitive damages 22 claim is a motion to dismiss under Rule 12(b)(6), and not a motion to strike under Rule 12(f).” 23 Walker v. McCoud Comm. Servs. Dist., 2016 WL 951635, at *2 (E.D. Cal. Mar. 14, 2016) (citing 24 Kelley v. Corr. Corp. of Am., 750 F. Supp. 2d. 1132, 1146 (E.D. Cal. 2010)). Accordingly, the 25 Court will evaluate Defendants’ 12(f) motion as it relates to the punitive damages claim under the 26 12(b)(6) standard. See Kelley, 750 F. Supp. 2d at 1146. Punitive damages are proper under § 1983 27 “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it 28 21 1 involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 2 461 U.S. 30, 56 (1983). 3 Defendants are correct that as a matter of law, public entities cannot be sued under § 1983 4 for punitive damages. Gay-Straight Alliance Network v. Visalia Unified School Dist., 262 F. Supp. 5 2d 1088, 1111 (E.D. Cal. 2001). Therefore, insofar as Defendants seek dismissal of Plaintiffs’ 6 prayer for punitive damages against PSC and the Sheriff’s Office, the Court GRANTS their motion 7 to dismiss. However, because at this stage, the Court has determined individual Defendants 8 Christianson, Duncan, Shelton, and Clifton may be liable for two violations of Plaintiffs’ 9 Fourteenth Amendment rights, and the FAC has pleaded that these Defendants have demonstrated 10 deliberate indifference to Plaintiffs’ constitutional rights, the Court DENIES the motion to dismiss 11 Plaintiffs’ prayer for punitive damages against these individual Defendants. 12 As for Defendants’ motion to strike Plaintiffs’ prayer for injunctive relief, the Court notes 13 that it determined that Plaintiffs have stated cognizable Fourteenth Amendment claims relating to 14 their conditions of confinement and due process rights. Therefore, the Court declines to consider 15 Defendants’ request at this time and DENIES without prejudice the motion to strike Plaintiff’s 16 injunctive relief prayer. CONCLUSION AND ORDERS 17 18 19 For these reasons, Defendants’ motion to dismiss is GRANTED IN PART and DENIED IN PART as follows: 20 1) As to Plaintiffs’ Fourteenth Amendment Conditions of Confinement claim against 21 individual Defendants Clifton, Duncan, and Christianson, the Motion is DENIED 22 insofar as it alleges that Plaintiffs were not afforded adequate sensory stimulation and 23 opportunities to exercise, the Motion is GRANTED without leave to amend insofar as it 24 alleges that Plaintiffs were denied access to vocational, educational and rehabilitative 25 programs, but is GRANTED with leave to amend in all other respects; 26 27 2) As to Plaintiffs’ Fourteenth Amendment Due Process claim against individual Defendants Clifton, Duncan, Christianson, and Shelton, the Motion is DENIED insofar 28 22 1 as it alleges that Plaintiffs were not afforded a timely classification hearing upon 2 placement in the B-Max, but is GRANTED with leave to amend in all other respects; 3 3) As to Plaintiffs’ remaining claims regarding equal protection, the right to counsel, the 4 First and Fifth Amendments, and excessive force, the motion is GRANTED with leave 5 to amend; 6 4) As to Plaintiffs’ Monell allegations, the motion is GRANTED with leave to amend; 7 5) As to Defendant Fladagar, the motion is GRANTED with leave to amend; 8 6) As to Plaintiffs’ prayer for punitive damages against the entity Defendants, the motion is GRANTED without leave to amend; 9 7) As to Plaintiffs’ prayer for punitive damages against individual Defendants, the motion 10 is DENIED without prejudice. 11 8) As to Plaintiffs’ request for injunctive relief, the motion is DENIED without prejudice. 12 13 14 The Court has gone to great lengths to give Plaintiffs direction on deficiencies in the FAC, which 15 reflects carelessness in its research, organization, and presentation. Plaintiffs shall have twenty 16 days from electronic service of this order to file an amended complaint or give notice that they will 17 stand on the current FAC. Plaintiffs are cautioned that this will be the last opportunity to amend and 18 that they should only amend if amendment would not be futile based on the law and findings in this 19 Order. 20 21 22 23 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ January 17, 2017 UNITED STATES CHIEF DISTRICT JUDGE 24 25 26 27 28 23

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