Doe v. San Joaquin County et al

Filing 30

MEMORANDUM AND ORDER signed by District Judge Troy L. Nunley on 5/10/19 GRANTING in PART and DENYING in PART 8 Defendants San Joaquin County and Sheriff Steve Moore's Motion to Dismiss. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JANE DOE,

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Plaintiff,

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No. 2:18-cv-00667-TLN-AC

v.
SAN JOAQUIN COUNTY, SHERIFF
STEVE MOORE, AND DANNY
SWANSON,

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MEMORANDUM AND ORDER
GRANTING IN PART AND DENYING IN
PART DEFENDANTS COUNTY OF SAN
JOAQUIN AND SHERIFF STEVE
MOORE’S MOTION TO DISMISS

Defendants.

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This matter is before the Court pursuant to Defendants County of San Joaquin (“County”)

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and Sheriff Steve Moore’s (“Moore”) (collectively, “Defendants”) Motion to Dismiss Portions of

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Plaintiff’s Complaint (“Complaint”). (ECF No. 8.) Plaintiff Jane Doe (“Plaintiff”) filed an

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opposition (ECF No. 14) and Defendants filed a reply (ECF No. 16). For the reasons set forth

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below, the Court hereby GRANTS in part and DENIED in part Defendants San Joaquin County

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and Sheriff Steve Moore’s Motion to Dismiss. (ECF No. 8.)

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff is a female inmate at San Joaquin County Jail. (ECF No. 1 ¶ 10–11.) On March

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27, 2018, Plaintiff filed a complaint against Danny Swanson (“Swanson”), the County, and

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Moore for various causes of action resulting from the alleged sexual battery, sexual harassment,

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and sexual discrimination of Plaintiff. (ECF No. 1 ¶ 9.) Specifically, Plaintiff alleges the

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following causes of action: (1) Violation of Plaintiff’s Eighth Amendment Rights; (2) Violation

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of Plaintiff’s Fourteenth Amendment Due Process Rights; (3) Sexual Battery; (4) Intentional

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Infliction of Emotional Distress; (5) Negligence; (6) Bane Act Violation; (7) Sexual Harassment;

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(8) Sexual Discrimination; and (9) Negligent Hiring, Retention, and Supervision. (ECF No. 1.)

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Defendants now move to dismiss Plaintiff’s First, Second, Fifth, Seventh, Eight, and Ninth

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Causes of Action against them. (ECF No. 8.)

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Plaintiff’s Complaint alleges Swanson, a sheriff’s deputy for the County, engaged in

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sexual battery, sexual harassment, and sexual discrimination against her in five separate incidents

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occurring between September 2017 and November 2017. (ECF No. 1 ¶¶ 4, 9.) The Court will

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discuss each incident in turn.

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A.

The First Incident

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Swanson was regularly assigned to transport Plaintiff between San Joaquin County Jail

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and a local hospital for medical examinations. (ECF No. 1 ¶ 10.) During one of these hospital

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visits, Plaintiff was placed in an examination room where a nurse directed her to get undressed

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from the waist down and wait for a doctor for her pelvic examination. (ECF No. 1 ¶ 11.)

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Plaintiff alleges that while the doctor was performing the pelvic examination, Swanson

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intentionally opened a portion of the partition curtain and viewed the partially nude Plaintiff

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undergoing her pelvic examination. (ECF No. 1 ¶ 12.) Plaintiff alleges once the examination

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was completed, Swanson entered the examination room, “positioned himself directly in front of

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the sitting Plaintiff, with his crotch within two inches of [her] face, grabbed her shackled hands

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and forced her hands to grope and fondle his penis through his pants for an extended period of

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time.” (ECF No. 1 ¶ 13.) Plaintiff claims this conduct ceased when a nurse entered the

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examination room. (ECF No. 1 ¶ 13.)
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B.

The Second Incident

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Next, Plaintiff alleges that on a subsequent trip to a local hospital, Swanson took her to a

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private room and removed her handcuffs. (ECF No. 1 ¶ 14.) Plaintiff alleges Swanson then told

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her she was free to get water. (ECF No. 1 ¶ 14.) While she was getting water, Plaintiff claims

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Swanson “walked up closely behind [her] and started gyrating and rubbing his crotch area” on

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Plaintiff’s buttocks for an extended period of time. (ECF No. 1 ¶ 14.)

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C.

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The Third Incident

On the same day the second incident occurred, Plaintiff alleges Swanson was transporting
Plaintiff back to San Joaquin County Jail when he pulled over in a desolate secluded area and

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parked the transport vehicle. (ECF No. 1 ¶ 15.) Once parked, Plaintiff alleges Swanson exited

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the vehicle, walked to the back of the vehicle where Plaintiff was seated, opened the door, and

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started fondling Plaintiff while she was shackled. (ECF No. 1 ¶ 16.) Plaintiff alleges she

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“screamed out no” when Swanson “grabbed her and kissed her full on the lips.” (ECF No. 1 ¶

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16.) Plaintiff alleges while Swanson was forcing himself on her, his supervisors radioed him

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inquiring about his whereabouts. (ECF No. 1 ¶ 17.) According to Plaintiff, Swanson then

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immediately stopped his conduct and proceeded back to the jail. (ECF No. 1 ¶ 17.) Plaintiff

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claims she told her friends about the incident once she returned to the jail and contemplated

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telling the authorities, but decided not to say anything out of fear of retaliation from the

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Defendant and other deputies. (ECF No. 1 ¶ 18.)

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D.

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The Fourth Incident

Plaintiff alleges the fourth incident occurred when Plaintiff was picked up from San

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Joaquin County Jail by several sheriff deputies to be transported to a local hospital for further

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medical examinations. (ECF No. 1 ¶ 19.) After Plaintiff finished one of these examinations,

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Defendant allegedly entered the waiting room where Plaintiff was waiting to be driven back to the

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jail. (ECF No. 1 ¶ 19.) Plaintiff alleges Defendant told her that he had been monitoring her

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examination through the surveillance cameras at the hospital. (ECF No. 1 ¶ 19.) Plaintiff claims

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Defendant then ordered her to come with him so he could transport her back to jail. (ECF No. 1 ¶

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20.)
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E.

The Fifth Incident

The final incident occurred on the drive back from the hospital to the San Joaquin Jail

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following the fourth incident. (ECF No. 1 ¶ 20.) Plaintiff claims that while Swanson was

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transporting her, he pulled over to a secluded area and parked the vehicle. (ECF No. 1 ¶ 20.)

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Plaintiff alleges Swanson pulled out his cell phone and encouraged Plaintiff to look at

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photographs of his children on his phone. (ECF No. 1 ¶ 21.) As Plaintiff was shackled and

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looking through these pictures, she claims Swanson began showing her photographs of his body

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parts, such as his penis and buttocks. (ECF No. 1 ¶ 22.) Swanson allegedly forced Plaintiff to

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look at the nude photographs of himself for an extended period of time while he stared at her and

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told her “again and again how attractive she was.” (ECF No. 1 ¶ 23.) Plaintiff alleges Swanson

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then received a radio call inquiring about Plaintiff’s whereabouts, at which time he started the car

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and headed back to the jail. (ECF No. 1 ¶ 24.) Upon returning to the jail, Plaintiff informed her

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friends of these events and decided to tell the authorities of the sexual abuse that she had endured

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for months. (ECF No. 1 ¶ 25.)

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II.

STANDARD OF LAW

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A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure

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(“Rule”) 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732

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(9th Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 678–79

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(2009). Under notice pleading in federal court, the complaint must “give the defendant fair notice

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of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S.

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544, 555 (2007) (internal quotations omitted). “This simplified notice pleading standard relies on

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liberal discovery rules and summary judgment motions to define disputed facts and issues and to

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dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

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On a motion to dismiss, the factual allegations of the complaint must be accepted as true.

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Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give plaintiff the benefit of every

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reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail

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Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege
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“‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to

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relief.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 544, 556 (2007)).

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Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of

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factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir.

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1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an

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unadorned, the defendant–unlawfully–harmed–me accusation.” Iqbal, 556 U.S. at 678. A

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pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the

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elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678

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(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove

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facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not

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been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459

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U.S. 519, 526 (1983).

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Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough

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facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting

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Twombly, 550 U.S. at 570). Only where a plaintiff has failed to “nudge[] [his or her] claims . . .

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across the line from conceivable to plausible,” is the complaint properly dismissed. Id. at 680.

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While the plausibility requirement is not akin to a probability requirement, it demands more than

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“a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility inquiry is

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“a context–specific task that requires the reviewing court to draw on its judicial experience and

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common sense.” Id. at 679.

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If a complaint fails to state a plausible claim, “[a] district court should grant leave to

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amend even if no request to amend the pleading was made, unless it determines that the pleading

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could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130

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(9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 1995)); see

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also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in
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denying leave to amend when amendment would be futile). Although a district court should

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freely give leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to

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deny such leave is ‘particularly broad’ where the plaintiff has previously amended its complaint.”

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Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting

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Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)).

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III.

ANALYSIS

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First, Defendants move to dismiss Plaintiff’s First and Second Causes of Action against

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the County for failure to allege an unconstitutional policy or practice. (ECF No. 8 at 15–18.)

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Second, Defendants move to dismiss Plaintiff’s First, Second, and Ninth Causes of Action against

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Moore in both his individual and official capacities. (ECF No. 8 at 18–20.) Third, Defendants

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move to dismiss Plaintiff’s Fifth, Seventh, Eighth, and Ninth Causes of Action for failure to state

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a claim under Rule 12(b)(6). (ECF No. 8 at 20–23.)

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A.

First and Second Causes of Action Against Defendant San Joaquin County

Defendants move to dismiss Plaintiff’s First and Second Causes of Action against the

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County for failure to allege an unconstitutional policy or practice. (ECF No. 8 at 15–18.)

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Plaintiff voluntarily dismisses her First and Second Causes of Action against the County with a

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request for leave to amend. (ECF No. 14 at 6.) Defendants argue that Plaintiff should not be

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given leave to amend her complaint because her opposition does not explain how she would

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amend her complaint. (ECF No. 16 at 3.)

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Leave to amend shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2).

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“[T]his policy is to be applied with extreme liberality.” Owens v. Kaiser Found. Health Plan,

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Inc., 244 F.3d 708, 712 (9th Cir. 2001). The Court should only deny a request for leave to amend

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if allowing amendment would unduly prejudice the opposing party, cause undue delay, be futile,

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or if the moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522,

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532 (9th Cir. 2008); see also Sharkey v. O’Neal, 778 F.3d 767, 774 (9th Cir. 2015) (holding a

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district court should grant leave to amend when additional factual allegations could cure a

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complaint’s defects). The Court finds that amendment may not be futile, nor would it unduly

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prejudice Defendants or cause undue delay at this early stage in litigation. Therefore, the Court
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dismisses Plaintiff’s First and Second Causes of Action against the County with leave to amend.
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First, Second, and Ninth Causes of Action Against Defendant Moore

Plaintiff does not allege whether she is suing Moore in his official or individual capacity.

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Therefore, the Court will address Defendants arguments regarding both Moore’s official and

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individual capacities.

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i.

Official Capacity

Defendants move to dismiss Plaintiff’s First, Second, and Ninth Causes of Action against

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Moore in his official capacity because Plaintiff’s claims against him in his official capacity as

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Sheriff of San Joaquin County are duplicative of Plaintiff’s claims against the County. (ECF No.

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8 at 19–20.) As stated above, Plaintiff voluntarily dismisses her First and Second Causes of

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Action against Moore with a request for leave to amend, but does not explicitly address the

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argument that claims against Moore in his official capacity are duplicative of the same claims

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against the County. (ECF No. 14 at 6.)

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A claim against a municipal officer in his official capacity is duplicative of a claim against

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the municipality. Brandon v. Holt, 469 U.S. 464, 471–72 (1985). “For this reason, when both an

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officer and the local government entity are named in a lawsuit and the officer is named in official

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capacity only, the officer is a redundant defendant and may be dismissed.” Luke v. Abbott, 954 F.

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Supp. 202, 203 (C.D. Cal. 1997). Accordingly, the Court finds the claims duplicative. Since any

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amendment would be futile, the Court dismisses Plaintiff’s First, Second, and Ninth Causes of

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Action against Moore in his official capacity without leave to amend.

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ii.

Individual Capacity

Defendants move to dismiss Plaintiff’s First, Second, and Ninth Causes of Action against

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Moore in his individual capacity because Plaintiff fails to allege that Moore “personally

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participated in the underlying incidents, or was even present for any of the alleged actions.”

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(ECF No. 8 at 18–19.) Plaintiff voluntarily dismisses her First and Second Causes of Action

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against Moore with a request for leave to amend and does not respond to Defendants’ arguments

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regarding dismissal of Plaintiff’s Ninth Cause of Action against Moore in his individual capacity.

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(ECF No. 14 at 6.) Defendants argue that Plaintiff should not be given leave to amend her
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complaint because her opposition does not explain how she would amend her complaint. (ECF

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No. 16 at 3.)

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“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that

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each Government-official defendant, through the official’s own individual actions, has violated

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the Constitution.” Iqbal, 556 U.S. at 676. Here, Plaintiff has failed to allege any conduct on

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behalf of Moore that violated Plaintiff’s constitutional rights, and has offered no argument in her

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opposition that Moore violated Plaintiff’s constitutional rights. However, the Court finds that

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amendment would not be futile, nor would it unduly prejudice Defendants or cause undue delay

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at this early stage in litigation. Therefore, the Court dismisses Plaintiff’s First and Second Causes

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of Action against Moore in his individual capacity with leave to amend.

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With regard to Plaintiff’s Ninth Cause of Action, however, the Court finds Plaintiff has

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adequately plead facts supporting this cause of action against Moore in his individual capacity.

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Indeed, Plaintiff has alleged Moore personally hired Defendant Swanson, that he personally

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supervised him, and that he knew or should have known Swanson was unfit for the position for

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which he was hired. (ECF No. 1 at 24-25.)

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Moreover, to the extent Defendants argue that Plaintiff’s claim fails because she has failed

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to allege facts supporting a special relationship between Plaintiff and Moore, Defendants’

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argument also fails. Plaintiff argues that such a special relationship does in fact exist here, and

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claims this special relationship required Defendants to protect Plaintiff. (ECF No. 14 at 4.) “A

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defendant may owe an affirmative duty to protect another from the conduct of third parties if he

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or she has a ‘special relationship’ with the other person.” Giraldo v. Dep't of Corr. & Rehab.,

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168 Cal. App. 4th 231, 245 (2008). The California Supreme Court has found that such a special

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relationship exists “in cases involving the relationship between business proprietors such as

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shopping centers, restaurants, and bars, and their tenants, patrons, or invitees.” Delgado v. Trax

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Bar & Grill, 36 Cal. 4th 224, 235 (2005). Moreover, California courts have recognized that “the

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relationship of jailer and prisoner imposes a duty of care, [and] recognition of such a duty finds

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support in numerous, if not all, pertinent authorities.” Giraldo, 168 Cal. App. 4th at 246, 252–53

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(holding that “there is a special relationship between jailer and prisoner which imposes a duty of
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care on the jailer to the prisoner”). Courts within the district have determined that “there is a

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well-established special relationship between jailers and prisoners.” Lum v. Cty. of San Joaquin,

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756 F. Supp. 2d 1243, 1254 (E.D. Cal. 2010).

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Defendants cite to Fuentes v. City of San Diego, No. 316CV02871BENJMA, 2017 WL

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2670976, at *3 (S.D. Cal. June 20, 2017), to argue that the special relationship doctrine does not

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apply in this case. (ECF No. 16 at 5.) However, in Fuentes, the court examined the doctrine as it

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applies to law enforcement and the general public. Fuentes, 2017 WL 2670976, at *3 (finding the

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special relationship doctrine inapplicable after officers shot and killed the plaintiffs’ family pet).

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Here, Plaintiff is anything but the general public. She is a custodian of the state who is vulnerable

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and dependent on Defendants for protection. See Lum, 756 F. Supp. 2d at, 1255 ([P]risoners and

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arrestees are equally vulnerable and dependent on officers and jailers for safety and security . . .

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.”); Giraldo, 168 Cal. App. 4th at 250. Fuentes is therefore inapplicable here.

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C.

State Law Claims

Defendants move to dismiss Plaintiff’s Fifth, Seventh, Eighth, and Ninth Causes of Action
for failure to state a claim under Rule 12(b)(6). (ECF No. 8 at 20–23.)
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Fifth Cause of Action

Defendants argue Plaintiff fails to state a claim for negligence since all conduct alleged

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was intentional. (ECF No. 8 at 20.) Plaintiff voluntarily dismisses her Fifth Cause of Action and

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has not requested leave to amend. (ECF No. 14 at 6.) Plaintiff’s Fifth Cause of Action is

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therefore dismissed without leave to amend.

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ii.

Seventh Cause of Action

California Civil Code § 51.9(a) provides that a person is liable in a cause of action for

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sexual harassment when a plaintiff proves all of the following elements: (1) there is a business,

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service, or professional relationship between the plaintiff and defendant; (2) the defendant has

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made sexual advances, solicitations, requests, or demands, or engaged in other conduct of a

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sexual nature or hostile nature based on gender, that were unwelcome and pervasive or severe;

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and (3) the plaintiff has suffered or will suffer economic loss or disadvantage or personal injury,

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including, but not limited to, emotional distress or the violation of a statutory or constitutional
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right. Cal. Civ. Code § 51.9(a). Defendants argue that Plaintiff fails to state a claim under § 51.9

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because she has not established a qualifying relationship. (ECF No. 8 at 20–21.) Plaintiff

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responds that § 51.9 should apply to jailor-inmate relationships because “by their nature, county

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jails are charged with providing inmates services while the inmates are in their custody.” (ECF

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No. 14 at 5.) Specifically, Plaintiff contends that the San Joaquin County Jail provides housing,

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recreation, religious, education, and healthcare services. (ECF No. 14 at 5.) Plaintiff further

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maintains that Swanson was providing the service of transporting Plaintiff to the hospital when

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the alleged incidents occurred. (ECF No. 14 at 6.)

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“[T]he Legislature enacted Civil Code section 51.9 to address ‘relationships between

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providers of professional services and their clients.’” Hughes v. Pair, 46 Cal. 4th 1035, 1044

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(2009). Section 51.9 enumerates numerous qualifying relationships, including but not limited to

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physicians, psychotherapists, dentists, attorneys, accountants, real estate agents, executors,

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trustees, landlords, teachers, elected officials, lobbyists, directors, and producers. Cal. Civ. Code

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§ 51.9. Section 51.9 also includes a catchall provision stating that it applies to any “relationship

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that is substantially similar to any of the above.” Id.

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Plaintiff provides no authority supporting her proposition that a jailor-inmate relationship

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is substantially similar to any of the professional relationships enumerated in § 51.9. Jailor-

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inmate relationships are inherently distinct from the professional, business, or service

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relationships contemplated by § 51.9 because such relationships occur outside of the professional

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business setting. Jailor-inmate relationships are not professional relationships involving a client

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voluntarily seeking a paid professional’s health, legal, or other business services, but rather are

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custodial relationships in which an inmate is subjected to the relationship as a result of the

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inmate’s involuntary incarceration. See Solesbee v. Cty. of Inyo, No. 1:13-CV-1548 AWI JLT,

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2014 WL 3890680, at *9 (E.D. Cal. Aug. 7, 2014) (holding § 51.9 did not apply to a relationship

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between a participant in a county jail work release program and the county). Thus, even if

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Defendant technically provided Plaintiff housing, recreation, religious, education, healthcare, or

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transportation services, the services do not arise out of the kind of professional relationship

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contemplated by § 51.9. Accordingly, Plaintiff is not in a business, service, or professional
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relationship with Defendants, and the Court dismisses Plaintiff’s Seventh Cause of Action for

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sexual harassment. Because amendment of the claim would be futile, that dismissal is without

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leave to amend.

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iii.

Eighth Cause of Action

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Defendants argue Plaintiff fails to state a claim under California Civil Code § 52.4(e)

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because the statute is inapplicable to employers. (ECF No. 8 at 21–22.) Plaintiff voluntarily

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dismisses her Eighth Cause of Action and has not requested leave to amend. (ECF No. 14 at 6.)

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Plaintiff’s Eighth Cause of Action is therefore dismissed without leave to amend.

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iv.

Ninth Cause of Action against the County

Defendants argue that negligent hiring, supervision, and retention claims are not

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cognizable against public entities. (ECF No. 8 at 22–23.) Indeed, “California’s Government

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Claims Act immunizes public entities from tort liability in all cases except those where liability is

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explicitly created by a particular statute.” Lindsay v. Fryson, No. 2:10-CV-02842 LKK, 2012

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WL 2683019, at *3 (E.D. Cal. July 6, 2012) (citing Cal. Gov’t Code § 815(a)(7)). Defendants

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argue that Plaintiff has failed to point to any statutory basis for liability. (ECF No. 8 at 22–23.)

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For her part, Plaintiff cites to C.A. v. William S. Hart Union High School District to argue

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that a plaintiff can in fact sue a public entity for negligent hiring, retention, and supervision.

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(ECF No. 14 at 3, citing C.A. v. William S. Hart Union High School District, 53 Cal. 4th 861

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(2012).) In C.A., the California Supreme Court, relying on Gov’t Code § 815.2, determined that a

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student could bring suit against a public entity for negligently hiring, retaining, and supervising a

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school counselor who sexually harassed a student. C.A., 53 Cal. 4th at 701–02. Cal. Gov’t Code

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§ 815.2 states that “[a] public entity is liable for injury proximately caused by an act or omission

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of an employee of the public entity within the scope of his employment if the act or omission

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would, apart from this section, have given rise to a cause of action against that employee or his

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personal representative.” And Plaintiff in fact cites to § 815.2 in her Complaint to support the

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theory that the County may be held vicariously liable for Moore’s negligent hiring, training,

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and/or supervision of Defendant Swanson if any such negligence is present here.

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As Defendant points out (see ECF No. 8 at 22), the C.A. court limited its holding to
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situations where there was a special relationship between the plaintiff and the supervisory or

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administrative personnel of the public entity. See Fuentes, 2017 WL 2670976, at *3 (discussing

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the limitation of C.A.). But Defendants’ argument that the “special relationship” doctrine does

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not apply in this context is similarly misguided. (See ECF No. 16 at 5.) Plaintiff argues that

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Defendants have a “special relationship” with Plaintiff which required Defendants to “protect . . .

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Plaintiff who was detained in their jail facility from harm and to exercise care in selection,

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retention, training, and supervision of their employees.” (ECF No. 14 at 3–4.) Essentially,

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Plaintiff argues the County is vicariously liable because a “special relationship” existed between

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Defendant Moore and Plaintiff (ECF No. 14 at 3), and the Court agrees. As explained above, the

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Court finds such a special relationship exists under the facts plead. Consequently, the County

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may be held vicariously liable.

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Accordingly, Plaintiff has made a showing that the necessary statutory basis and special

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relationship exists sufficient to survive a motion to dismiss. Therefore, Defendants’ motion to

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dismiss Plaintiff’s Ninth Cause of Action against the County is denied.

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IV.

CONCLUSION

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For the foregoing reasons, the Court hereby GRANTS in part and DENIES in part

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Defendants’ Motion to Dismiss. (ECF No. 8.)

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Specifically, the Court hereby:

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1.

DISMISSES Sheriff Moore in his official capacity with prejudice.

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2.

DISMISSES Plaintiff’s First Cause of Action against the County and Moore in his

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individual capacity with leave to amend.

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3.

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DISMISSES Plaintiff’s Second Cause of Action against the County and Moore in
his individual capacity with leave to amend.

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DISMISSES Plaintiff’s Fifth Cause of Action without leave to amend.

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5.

DISMISSES Plaintiff’s Seventh Cause of Action without leave to amend.

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6.

DISMISSES Plaintiff’s Eighth Cause of Action without leave to amend.

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7.

DENIES Defendants’ Motion to Dismiss Plaintiff’s Ninth Cause of Action against

both Defendant Moore and the County.
IT IS SO ORDERED.
Dated: May 10, 2019

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Troy L. Nunley
United States District Judge

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25
26
27
28
13