Holland v. City of San Francisco et al

Filing 28

ORDER by Judge Thelton E. Henderson granting in part and denying in part 15 Motion to Dismiss (tehlc2, COURT STAFF) (Filed on 12/7/2010)

Holland v. City of San Francisco et al

Doc. 28

1 2 3 4 5 6 7 8 9 10 v.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

ELICIA HOLLAND, Plaintiff, NO. C10-2603 TEH ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

CITY OF SAN FRANCISCO, et al., Defendants.

United States District Court

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For the Northern District of California

This matter came before the Court on October 18, 2010, on Defendants' motion to

12 dismiss. For the reasons set forth below, Defendants' motion is GRANTED IN PART and 13 DENIED IN PART. 14 15 BACKGROUND 16 This lawsuit arises from the May 26, 2009 arrest and search of Plaintiff Elicia R.

17 Holland ("Holland") by employees of the City and County of San Francisco ("City").1 18 Holland contends that these events violated federal and state law. At issue on this motion is 19 whether some of Holland's claims must be dismissed because the search was lawful or 20 because defendants are not liable for the unlawful search under federal and state immunity 21 doctrines. 22 The evening of her arrest, Holland was protesting the California Supreme Court's

23 ruling upholding Proposition 8, a same-sex marriage ballot initiative, in San Francisco, 24 California.2 As Holland stepped into a crosswalk to cross the street, officers of the San 25
1 In her complaint, Holland names the City of San Francisco and County of San 26 Francisco as separate entities. This order recognizes that they are a single entity.

27

On a motion to dismiss, the Court must accept as true all material factual allegations in the complaint, as well as any reasonable inferences to be drawn from them. Ashcroft v. 28 Iqbal, ­ U.S. ­, 129 S. Ct. 1937, 1949-50 (2009); Broam v. Brogan, 320 F.3d 1023, 1028

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Dockets.Justia.com

1 Francisco Police Department hoisted her up and slammed her to the ground on her face, 2 chest, and stomach. One of the officers put his knee on Holland's neck, and two sat on her 3 back. Other officers held her feet and legs. She was kicked in the shins. She emerged bruised 4 and battered. 5 The officers arrested Holland for misdemeanor battery on a police officer, Cal. Pen.

6 Code § 243(b), refusal to comply with a lawful order, Veh. Code § 2800(a), and being a 7 pedestrian outside of a crosswalk, Veh. Code § 21954(a). She was taken to San Francisco 8 County Jail, where unnamed deputies strip searched her.3 Holland cried and complained of 9 menstrual cramps, but the deputies continued the search. After the search, Holland was put in 10 a cell marked with a sign that read: "Inmate to be housed alone." Pl.'s Compl. At 7: 23-24.

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11 Twelve to fourteen hours after her arrest, Holland was released. She was never charged with
For the Northern District of California

12 a crime or placed in the jail's general population. 13 Holland filed this action on June 14, 2010, against multiple defendants involved in her

14 arrest and search. Relevant to this motion are claims arising from the search, which allege 15 that the City, Sheriff Hennessey, and unnamed deputies (collectively "Defendants") violated 16 federal and state law. Holland brings federal causes of action under 42 U.S.C. section 1983 17 ("section 1983"), alleging unlawful search, failure to supervise the persons who conducted 18 the unlawful search, and causation of an unlawful search by the enforcement of a blanket 19 policy. Holland brings state causes of action under California Civil Code section 52.1, 20 alleging interference with her exercise and enjoyment of rights, and California Penal Code 21 section 4030(f), alleging violations of the state's strip search laws. Finally, Holland alleges 22 that the City, Sheriff Hennessey, and unnamed deputies are liable for assault, battery, 23 negligence, negligent infliction of emotional distress, and negligent training and supervision. 24 25 26 (9th Cir. 2003).
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Whether a search constitutes a strip search can be a legal question. See Edgerly v. 27 City and County of San Francisco, 599 F.3d 946, 957-58 (9th Cir. 2010). Because Defendants do not challenge whether Holland pleaded sufficient facts relating to her search, 28 this Court assumes that she was strip searched. 2

1 Defendants filed a motion to dismiss these claims on August 26, 2010, and this motion is 2 now before the Court. 3 4 LEGAL STANDARD 5 Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) when a

6 plaintiff's allegations fail "to state a claim upon which relief can be granted." In ruling on a 7 motion to dismiss, the Court must "accept all material allegations of fact as true and construe 8 the complaint in a light most favorable to the non-moving party." Vasquez v. L.A. County, 9 487 F.3d 1246, 1249 (9th Cir. 2007). Courts are not, however, "bound to accept as true a 10 legal conclusion couched as a factual allegation." Iqbal, 129 S. Ct. at 1949-50.

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A Rule 12(b)(6) dismissal "can be based on the lack of a cognizable legal theory or

12 the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica 13 Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To survive a motion to dismiss, a plaintiff 14 must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic 15 Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility does not equate to probability, but 16 it requires "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 17 S. Ct. at 1949. "A claim has facial plausibility when the plaintiff pleads factual content that 18 allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged." Id. Dismissal of claims that fail to meet this standard should be with 20 leave to amend unless it is clear that amendment could not possibly cure the complaint's 21 deficiencies. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir. 1998). 22 23 DISCUSSION 24 Defendants ask the Court to dismiss the following state and federal claims relating to

25 Holland's strip search: (1) unlawful search under section 1983 (fifth cause of action); (2) 26 failure to supervise the persons who conducted the unlawful search under section 1983 (sixth 27 cause of action); (3) causation of an unlawful search by the enforcement of a blanket policy 28 under section 1983 (seventh cause of action); (4) interference with the exercise and 3

1 enjoyment of rights under California Civil Code section 52.1 (eighth cause of action); (5) 2 assault (ninth cause of action); (6) battery (tenth cause of action); (7) negligence (twelfth 3 cause of action); (8) negligent infliction of emotional distress (thirteenth cause of action); (9) 4 violation of the strip search regulations in California Penal Code section 4030(f) (fourteenth 5 cause of action); and (10) negligent training and supervision (fifteenth cause of action). 6 Defendants argue that their conduct does not violate federal or state law, and if it does, 7 federal and state immunity laws bar certain claims. They also argue that Holland should not 8 be granted leave to amend dismissed claims. 9 10 I. Federal Claims

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Defendants move to dismiss Holland's fifth, sixth, and seventh causes of action, all of

12 which allege that the strip search of Holland was unconstitutional pursuant to the Fourth and 13 Fourteenth Amendments to the United States Constitution and is therefore actionable under 14 section 1983. At issue on each of these claims is whether Holland alleges a constitutional 15 violation, and if she does, whether her claims are nonetheless barred by qualified immunity. 16 17 A. Constitutionality of the Search 18 Whether a search is constitutional turns upon the need for the particular search

19 weighed against the invasion of rights the search entails. Bell v. Wolfish, 441 U.S. 520, 55820 59 (1979). Under this balancing test, a court must consider the scope of the particular 21 intrusion, the manner in which it is conducted, the justification for initiating it, and the place 22 in which it is conducted. Bell, 441 U.S. at 559; Bull v. City and County of San Francisco, 595 23 F.3d 964, 974-75 (9th Cir. 2010). Where the policy or practice of a prison or jail is at issue, 24 courts must also look to the test articulated in Turner v. Safley, 482 U.S. 78, 89-91 (1987). 25 Turner directs courts to consider whether any infringement on a prisoner's Fourth 26 Amendment rights is reasonably related to legitimate penological interests. Bull, 595 F.3d at 27 973. This analysis requires consideration of (1) whether there is a valid, rational connection 28 between the prison regulation and the legitimate governmental interest put forward to justify 4

1 it; (2) the impact the accommodation of the asserted constitutional right will have on guards 2 and other inmates, and on the allocation of prison resources generally; and (3) the absence of 3 ready alternatives. Id. 4 In Edgerly v. City and County of San Francisco, the Ninth Circuit explained Fourth

5 Amendment balancing as it is applied in the strip search context: 6 7 8 9 10 [W]e first held in Giles v. Ackerman that arrestees charged with minor offenses may be subjected to a strip search only if jail officials possess a reasonable suspicion that the individual arrestee is carrying or concealing contraband. Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984), overruled by Bull[, 595 F.3d 964]. We have repeatedly applied this rule in cases following Giles. E.g., Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir. 1991). We recently carved out an exception to this rule in Bull v. City and County of San Francisco, in which we overruled Giles and held that such an arrestee could be strip searched without individualized suspicion if the arrestee would be introduced into the general jail population. Bull, at 977. In those circumstances, the institutional need to prevent arrestees from bringing contraband into the jail justified the invasion of personal rights that the search entails. Bull (citing Bell, 441 U.S. at 559). Bull, however, left undisturbed our line of precedent requiring reasonable suspicion to strip search arrestees charged with minor offenses who are not housed in the general jail population. Bull, at 972-73. 599 F.3d at 957 (internal quotations omitted). Holland alleges that she was never placed in the general jail population, and the sign next to her cell, "Inmate to be housed alone," indicates that jail authorities never intended to house her there. Compl. 7:23-24. As a result, Defendants needed individualized reasonable suspicion in order to strip search Holland. See Edgerly, 599 F.3d at 957. On this motion, Defendants argue that Holland's arrest for misdemeanor battery on a police officer, by itself, provided jail officials with reasonable suspicion. The relevant cases, however, show that Holland's alleged offense, without more, does not support reasonable suspicion. The Ninth Circuit has noted that "in some cases, the charge itself may give rise to reasonable suspicion." Way v. County of Ventura, 445 F.3d 1157, 1161 (9th Cir. 2006). The panel's example of this, and the only example presented in the parties' briefs, is found in Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989). In that case, the Ninth 5

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12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 Circuit upheld the strip search of an inmate in part because the charge against him ­ grand 2 theft auto ­ gave rise to reasonable suspicion. Id. at 1447. The charge was "sufficiently 3 associated with violence to justify a visual strip search," the court reasoned. Id. Defendants 4 argue that misdemeanor battery on a police officer is also a "crime of violence," and 5 therefore gives rise to reasonable suspicion. Defs.' Mot. 3:12-14. Thompson is 6 distinguishable from the instant case, however. First, the Thompson court emphasized that its 7 decision was "extremely narrow" and only applied to "theft of an automobile." Id. at n.6. 8 This narrow decision did not prevent a later panel from finding that the charge of grand theft 9 did not support reasonable suspicion. See Kennedy v. Los Angeles Police Dep't, 901 F.2d 10 702, 716 (9th Cir. 1990), implied overruling on other grounds recognized by Act

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11 Up!/Portland, 971 F.2d 298. Second, the inmate searched in Thompson was housed in the
For the Northern District of California

12 general population of the jail. Thompson, 885 F.2d at 1447. At the time Thompson was 13 decided, the fact that an inmate was housed in the general jail population did not, by itself, 14 justify a strip search. The Thompson panel noted this, and concluded that the nature of the 15 grand theft auto charge justified the search. Id. While the court did not expressly say that its 16 analysis would have been different if the inmate had not been classified for housing in the 17 general population, the court refers to this as "a factor [which] by itself cannot justify a strip 18 search." Id. That it was a "factor" in the balancing test distinguishes Thompson from the 19 instant case, where Holland was not housed in the general population. Finally, even if 20 Thompson could be read to support the idea that the charge alone, irrespective of where an 21 inmate is to be housed, can give rise to reasonable suspicion, Holland's alleged offense is not 22 one of them. Holland was arrested for misdemeanor battery on a police officer under Penal 23 Code section 243(b) ("section 243(b)"). For the purposes of section 243(b), battery is defined 24 as "any willful and unlawful use of force or violence upon the person of another." Cal. Pen. 25 Code § 242. In Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006)4, the Ninth 26 At oral argument, Defendants argued that immigration and criminal cases analyzing 27 whether California's battery statutes are "crimes of violence" are inapplicable here because of the high standards of proof involved in those cases. Assuming that is true, these cases are 28 nonetheless instructive regarding the kind of conduct outlawed by California's battery 6
4

1 Circuit noted that the phrase "use of force or violence" "is a term of art, requiring neither a 2 force capable of hurting or causing injury nor violence in the usual sense of the term." Id. at 3 1016. State court decisions bear this out. The California Supreme Court in People v. 4 Colantuono explained that 5 6 7 [i]t has long been established, both in tort and criminal law, that the least touching may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.

8 7 Cal. 4th 206, 214 n.4 (1994) (emphasis in original) (internal quotations omitted). Another 9 California court noted that because the "least touching" may constitute battery, "[t]he word 10 violence [in the statute] has no real significance." People v. Mansfield, 200 Cal. App. 3d 82,

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11 87-88 (1988). As the relevant California jury instruction explains, "[t]he slightest touching
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12 can be enough to commit a battery if it is done in a rude or angry way. Making contact with 13 another person, including through his or her clothing, is enough. The touching does not have 14 to cause pain or injury of any kind." Judicial Council of California, Criminal Jury 15 Instructions 945. These sources make clear that the offense of misdemeanor battery on a 16 police officer is not "sufficiently associated with violence to justify a visual strip search." See 17 Thompson, 885 F.2d at 1447. Therefore Thompson does not apply to this case. 18 This conclusion is supported by other Ninth Circuit cases. In Way, the Ninth Circuit

19 held that the strip search of a woman after she was booked into jail on a misdemeanor charge 20 of being under the influence of drugs was unconstitutional. 445 F.3d at 1158-59. In Kennedy, 21 the court held that a strip search of a woman arrested for grand theft, a felony, after she took 22 some of her roommate's belongings to settle a debt, was unconstitutional. 901 F.2d at 704. 23 Both cases cite Thompson and acknowledge that in some cases, the charge alone may give 24 rise to reasonable suspicion. Way, 445 F.3d at 1161; Kennedy, 901 F.2d at 716. In neither 25 case does the court follow Thompson, however. They conclude that the charges in those 26 cases ­ being under the influence of drugs in Way and grand theft in Kennedy ­ do not give 27 28 statutes. 7

1 rise to reasonable suspicion. Way, 445 F.3d at 1162; Kennedy, 901 F.2d at 716. While neither 2 case explains why Thompson is distinguishable, Bull suggests one of the aforementioned 3 reasons ­ Way and Kennedy involved "searches of arrestees who were not classified for 4 housing in the general jail or prison population." Bull, 595 F.3d at 981. 5 Way and Kennedy show that where Thompson does not apply, the circumstances of

6 the offense determine reasonable suspicion. Both cases cite Giles, 746 F.2d 614, which 7 emphasized that "[r]easonable suspicion may be based on such factors as the nature of the 8 offense, the arrestee's appearance and conduct, and the prior arrest record." Id. at 617. In 9 Kennedy, the court characterized the offense as "an ordinary disagreement between two 10 roommates." Kennedy, 901 F.2d at 716. In Way, the court noted that the plaintiff "was under

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11 the control of the arresting officer from the time she was taken into custody at work until
For the Northern District of California

12 booking. The officer perceived no indication that she was carrying drugs or contraband." 445 13 F.3d at 1162. The circumstances of Holland's arrest show that they, too, did not give rise to 14 reasonable suspicion. Holland alleges that she was crossing the street legally while engaging 15 in a street protest. While she does not explicitly deny battering a police officer, she notes that 16 she was released twelve to fourteen hours after she had been arrested, and was never charged 17 with a crime. The fact that Holland was never charged raises an inference that her conduct 18 was not violent. Furthermore, her other alleged offenses ­ refusal to comply with a lawful 19 order and a crosswalk infraction ­ are minor. This Court has no reason to believe that the 20 officer who searched Holland had reasonable suspicion that she was carrying drugs or 21 contraband. While questions remain as to what went on during the street protest leading to 22 Holland's arrest, these ambiguities are resolved in her favor on a motion to dismiss. 23 The analyses in Way and Kennedy confirm the rule in Edgerly ­ if an inmate arrested

24 on a minor offense is not classified for housing in a jail's general population, jail officials 25 must have individualized reasonable suspicion before conducting a strip search. See 599 F.3d 26 at 957. Here the offense was minor and it does not appear that the officers had reasonable 27 suspicion that Holland was carrying or concealing contraband. Therefore, this Court finds 28 that Holland's allegations are sufficient to state a claim of illegal search under section 1983, 8

1 and Defendants' motion to dismiss Holland's section 1983 claims on the basis that Holland's 2 constitutional rights were not violated is DENIED. 3 4 B. Qualified Immunity 5 Even if the strip search of Holland was unconstitutional, dismissal of her section 1983

6 claims against Sheriff Hennessey is appropriate if he is entitled to qualified immunity.5 7 Qualified immunity applies if the unlawfulness of Holland's strip search was not clearly 8 established at the time it was conducted. See Saucier v. Katz, 533 U.S. 194, 202 (2001). A 9 law is clearly established where "it would be clear to a reasonable officer that his conduct 10 was unlawful in the situation he confronted." Id. "[O]fficials can still be on notice that their

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11 conduct violates established law even in novel factual circumstances." Hope v. Pelzer, 536
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12 U.S. 730, 731 (2002). 13 This Court concludes that Sheriff Hennessey is not entitled to qualified immunity for

14 the strip search of Holland. Arguing otherwise, Defendants contend that under Thompson and 15 Kennedy, it was not clearly unlawful to conduct a jail strip search of a person arrested for a 16 crime of violence. That may be true, but Defendants offer no authority other than Thompson 17 to show that misdemeanor battery on a police officer is a crime of violence. As the above 18 analysis shows, the "least touching" is a crime under section 243(b). See People v. Mansfield, 19 200 Cal. App. 3d 82, 87-88 (1988). The phrase "use of force or violence" in the definition of 20 battery "is a term of art . . . ." Ortega-Mendez, 450 F.3d at 1016. "The word violence [in the 21 statute] has no real significance." Mansfield, 200 Cal. App. 3d at 87-88. Thus the offense of 22 misdemeanor battery on a police officer is clearly not "sufficiently associated with violence 23 to justify a visual strip search." Thompson, 885 F.2d at 1447. It is a minor offense, and as the 24 panel in Edgerly noted in its analysis of qualified immunity, "it was clearly established in 25 1989 `that it is unlawful to strip search an arrestee brought to a jail facility on charges of 26 committing a minor offense, unless the officer directing the search possesses "a reasonable 27 No other Defendant has invoked qualified immunity with respect to Holland's 28 section 1983 claims. 9
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1 suspicion that the individual arrestee is carrying or concealing contraband."'" 599 F.3d at 2 958 (quoting Act Up!/Portland, 988 F.2d at 871-72 (quoting Giles, 746 F.2d at 617)). 3 This is especially true in light of Kennedy, where the charge of grand theft belied "an

4 ordinary disagreement between two roommates." 901 F.2d at 718. Together with Way, these 5 cases clearly show that where Thompson does not apply, the circumstances of the offense 6 determine reasonable suspicion. Id.; Way, 445 F.3d at 1161-62. The circumstances as 7 Holland describes them indicate that "[n]o weapons, no drugs, no contraband, no violent acts 8 of any kind were involved." See Kennedy, 901 F.2d at 716. She challenges her arrest as 9 unlawful, claiming that police officers "hoisted [her] off the ground as she stepped into a 10 crosswalk to cross the street." Compl. 7:5-7. Any ambiguity about what else occurred

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11 between Holland and the officers must be resolved in Holland's favor on a motion to dismiss.
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12 Thus the circumstances of Holland's arrest, like the circumstances in Kennedy and Way, 13 clearly do not give rise to individualized reasonable suspicion. In light of the nature of 14 Holland's offense and the circumstances of her arrest, no reasonable officer could have 15 believed that the strip search of Holland was lawful. 16 Defendants contend that Bull favors qualified immunity in this case. 595 F.3d 964.

17 Bull was decided in 2010, too late to have put Defendants on notice of the unlawfulness of 18 their conduct. Even so, Bull reinforces the above analysis. It distinguishes Way and Kennedy 19 from cases like Thompson, making clear that if an arrestee is not classified for housing in the 20 general jail population, individualized reasonable suspicion is the rule. Bull, 595 F.3d at 981. 21 For the foregoing reasons, strip searching Holland on the basis of her arrest for

22 misdemeanor battery on a police officer was clearly unlawful such that its unlawfulness 23 would have been clear to a reasonable officer. As a result, Defendants' motion to dismiss 24 Holland's section 1983 claims against Sheriff Hennessey based upon the doctrine of 25 qualified immunity is DENIED. 26 // 27 // 28 // 10

1 II. State Claims 2 Holland brings her eighth cause of action against Defendants under California Civil

3 Code section 52.1 ("section 52.1"), and her fourteenth cause of action under California Penal 4 Code section 4030(f) ("section 4030(f)"). She also alleges that Defendants are liable for 5 assault (ninth cause of action), battery (tenth cause of action), negligence (twelfth cause of 6 action), negligent infliction of emotional distress (thirteenth cause of action), and negligent 7 training and supervision (fifteenth cause of action). The Court will first analyze the 8 substantive claims and turn to state immunities. 9 10 A. Section 52.1

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Section 52.1 authorizes a cause of action where a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state . . .

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16 Cal. Civil Code § 52.1(a). Defendants contend that to state a claim for relief, Holland must 17 show both that her rights were violated, and that the violation was "accompanied by a threat 18 of violence." Defs. Mot. At 5:11-12. Defendants cite no authority construing section 52.1 to 19 require a threat of violence, nor do they cite authority holding that the threat of a strip search, 20 or the effectuation of a strip search, is not a threat, intimidation, or coercion under section 21 52.1. In light of the fact that Holland states a claim for the violation of her constitutional 22 rights, Defendants' motion to dismiss Holland's claim under section 52.1 on the grounds that 23 the statute was not violated is DENIED. 24 25 B. Section 4030(f) 26 27 28 California Penal Code section 4030(f) provides that no person arrested and held in custody on a misdemeanor or infraction offense, except those involving weapons, controlled substances or violence ... , shall be subjected to a strip search or 11

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visual body cavity search prior to placement in the general jail population, unless a peace officer has determined there is reasonable suspicion based on specific and articulable facts to believe such person is concealing a weapon or contraband, and a strip search will result in the discovery of the weapon or contraband. Defendants' sole argument for dismissing Holland's cause of action under section 4030(f) is that she was arrested for a crime of violence, and thus the statute did not prohibit her strip search. However, Defendants have not shown that the offense of misdemeanor battery on a police officer is a crime of violence. Therefore Defendants' motion to dismiss on the grounds that section 4030(f) was not violated is DENIED.

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C. Tort Claims Defendants contend that because a jailer may lawfully conduct a full body search of a prisoner at the time the prisoner is booked into jail, People v. Maher, 17 Cal. 3d 196, 200-01 (1976), all common law torts arising from a strip search incident to booking are foreclosed. Defendants correctly cite Maher for the principle that some full body searches are lawful. However, Maher itself recognizes that some are not ­ "a full body search incident to arrest is impermissible when the person is arrested for an offense for which he will merely be cited or released on bail." Id. at 199. Furthermore, in Edgerly, another strip search case, the Ninth Circuit reinstated various state tort claims against defendants. Edgerly, 599 F.3d at 691. Defendants fail to persuade the Court that Holland's tort claims must fail, and their motion to dismiss on the basis of California common law is DENIED.

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D. Immunity for the City Defendants argue that the City is immune from all claims of injury to Holland under California Government Code section 844.6 ("section 844.6"), which provides that "[n]otwithstanding any other provision of this part, except as provided in this section and in Sections 814, 814.2, 845.4, and 845.6, or in Title 2.1 (commencing with Section 3500) of

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1 Part 3 of the Penal Code, a public entity is not liable for . . . [a]n injury to any prisoner." A 2 "prisoner" is defined as 3 4 5 6 an inmate of a prison, jail, or penal or correctional facility. For the purposes of this chapter, a lawfully arrested person who is brought into a law enforcement facility for the purpose of being booked, as described in Section 7 of the Penal Code, becomes a prisoner, as a matter of law, upon his or her initial entry into a prison, jail, or penal or correctional facility, pursuant to penal processes.

7 Cal. Gov't Code § 844. At issue is whether Holland is a prisoner, and if so, whether her state 8 claims nonetheless survive immunity under section 844.6. 9 10 1. Whether Holland is a Prisoner

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The parties submitted supplemental briefing on the question of whether Holland is a

12 prisoner under section 844.6. Plaintiff contends that a person cannot be a prisoner unless she 13 was lawfully arrested, and that because Holland challenges the lawfulness of her arrest, it 14 would be premature to label her a prisoner for the purposes of government immunity. 15 Defendants argue that a person who has been booked into jail, regardless of whether that 16 person was lawfully arrested, is a prisoner for the purposes of immunity under section 844.6. 17 The Court is persuaded that a person need not be lawfully arrested to qualify as a

18 prisoner under section 844.6. According to the plain language of the statute, prisoners 19 include inmates as well as lawfully arrested persons brought into jail for booking. Black's 20 Law Dictionary defines "inmate" as "a person confined in a prison, hospital, or similar 21 institution." Black's Law Dictionary 803 (8th ed. 1999). Webster's New World Dictionary 22 uses a similar definition, which describes an inmate as "a person . . . confined with others in 23 a prison or mental institution." Webster's New World Dictionary 696 (3d college ed. 1991). 24 These definitions do not suggest that to be considered an inmate, and therefore a prisoner, a 25 person must have been lawfully arrested. 26 The legislative history of section 844.6 supports this view. The first sentence of the

27 statutory definition of "prisoner," which provides that a prisoner is "an inmate of a prison, 28 jail, or penal or correctional facility," Cal Gov't Code § 844, was part of the original 13

1 California Tort Claims Act of 1963. 1963 Cal. Stat. 3277. This sentence makes no mention of 2 the lawfulness of the arrest leading to an inmate's confinement. The goal of immunity in the 3 jail context, according to a report that resulted in the California Tort Claims Act, is to shield 4 public entities from liability for their custodial activities. Teter v. City of Newport Beach, 30 5 Cal. 4th 446, 453 (2003). The report "observed that `no tort liability should be admitted for 6 damages sustained as a consequence of conditions which are common to all inmates and 7 which simply represent a reasonable application of general policy determinations by 8 responsible prison or jail authorities with respect to the administration of such institutions.'" 9 Id. (quoting the commission report) (emphasis in Teter). Holland alleges that her strip search 10 was conducted pursuant to jail policy. She does not contend that jail officials deviated from

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11 routine intake procedure, or did anything other than process a person presented to jail
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12 officials as a lawful arrestee. 13 The second sentence of section 844 was enacted in 1996. Teter, 30 Cal. 4th at 455. It

14 adds that "a lawfully arrested person who is brought into a law enforcement facility for the 15 purpose of being booked . . . becomes a prisoner, as a matter of law, upon his or her initial 16 entry into a prison, jail, or penal or correctional facility, pursuant to penal processes." Cal. 17 Gov't Code § 844. This amendment was sponsored by the California State Sheriffs' 18 Association in response to a court opinion holding that an arrestee injured at a jail facility 19 was not a prisoner because her booking process was not yet complete. Teter, 30 Cal. 4th at 20 455. The amendment "clarified that a lawfully arrested person who is brought into a law 21 enforcement facility for the purpose of being booked becomes a prisoner, as a matter of law, 22 upon his initial entry into the facility." Id. The intent was to restore the definition of 23 "prisoner," not add limitations to it. 24 Cases considering whether a person is a prisoner focus on forced confinement rather

25 than lawful arrest. In Lawson v. Superior Court, the Court of Appeal held that a woman in a 26 community-based facility for women prisoners with young children was a prisoner under 27 section 844.6, but that her child was not. 180 Cal. App. 4th 1372, 1384, 1387 (4th Dist. 28 2010). The court held that because the child "was not confined in the facility under any legal 14

1 compulsion," she was not a prisoner under section 844.6. Id. at 1387. Holland was legally 2 compelled to remain in jail until released. She was "being held in pretrial detention . . . 3 attendant upon enforcement of a criminal statute," and was therefore a prisoner. Teter, 30 4 Cal. 4th at 455 (internal quotations omitted). 5 In support of her position, Holland cites Sullivan v. County of Los Angeles, 12 Cal. 3d

6 710, in which the Supreme Court of California held that section 844.6 did not bar the false 7 imprisonment action of an inmate confined in jail for several days beyond the end of his 8 sentence. Id. at 713, 717. The inmate was not a prisoner, the court held, limiting its reasoning 9 to the tort of false imprisonment. Id. at 716-17. It noted that in false imprisonment cases, "the 10 `injury' suffered by an individual is the illegal confinement itself rather than any detriment

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11 occurring after imprisonment; in other words, false imprisonment is not an `injury to a
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12 prisoner' but instead is an injury to a non-prisoner which converts him into a prisoner." Id. at 13 716. No false imprisonment claim is at issue on this motion.6 Thus Holland is a prisoner 14 pursuant to section 844.6. 15 16 2. Whether the City is Immune 17 In her briefs, Holland makes no argument as to the viability of her section 52.1 and

18 state tort claims in light of section 844.6. She contends that her claim under section 4030(f) 19 survives because it was enacted after section 844.6. She points out that section 4030(p) 20 provides that "[a]ny person who suffers damage or harm as a result of a violation of this 21 section may bring a civil action . . . ." Because section 4030 explicitly grants detainees the 22 right to sue, Holland argues, section 844.6 "could not reasonably be applied to wipe out the 23 very cause of action 4030 later defined as viable." Pl.'s Opp. At 8:8-10. 24 Holland's reading of these statutes is unpersuasive. By its own language, section

25 844.6 immunity applies "[n]otwithstanding any other provision of this part, except as 26 provided in this section and in Sections 814, 814.2, 845.4, and 845.6, or in Title 2.1 27 Plaintiff brings a claim of false imprisonment, but based upon the facts recited in the the Complaint, it appears to challenge her unlawful arrest rather than her jail confinement. 28 Defendants did not challenge this claim on this motion to dismiss. 15
6

1 (commencing with Section 3500) of Part 3 of the Penal Code . . . ." Section 4030(f) is not 2 listed among these statutory sections. Just as the California Legislature was capable of 3 passing section 4030, it was capable of amending the immunity provisions of section 844.6 to 4 exempt the new law. The canon of statutory interpretation expressio unius est exclusio 5 alterius supports the conclusion that if the legislature had intended to exclude section 4030 6 from section 844.6, it would have done so. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 7 168 (2003) (explaining that the canon applies where the items listed are members of an 8 associated group, justifying the inference that the items not listed were excluded 9 deliberately). It has not done so, and this Court interprets the legislature's inaction as 10 preserving section 844.6's general immunity provisions, rendering them effective against

United States District Court

11 section 4030(f).7
For the Northern District of California

12

Applying section 844.6 to suits brought under section 4030 does not "wipe out" the

13 causes of action created by section 4030, as Holland contends. Instead, immunity under 14 section 844.6 forecloses causes of action against one type of defendant ­ public entities ­ 15 while leaving intact other kinds of suits, including those against public officials. This result 16 does not unreasonably frustrate the goals of the statute, as Holland argues. Therefore, 17 Defendants' motion is GRANTED as to Holland's eighth, ninth, tenth, twelfth, thirteenth, 18 fourteenth, and fifteenth causes of action, which are DISMISSED against the City, insofar as 19 they arise from the strip search of Holland. 20 // 21 // 22 // 23 // 24 // 25 // 26 Another district court reached the opposite result. Bull v. City and County of San Francisco, C03-01840 (N.D. Cal. Sept. 22, 2005), overruled on other grounds in Bull, 595 27 F.3d 964. The court reasoned that because section 4030 does not limit suits against particular classes of defendants, immunity under section 844.6 does not apply. Contra Moyle v. Contra 28 Costa County, 2007 WL 4287315 (N.D. Cal Dec. 5, 2007). 16
7

1 E. Immunity for Sheriff Hennessey 2 Defendants contend that Sheriff Hennessey is not liable under Holland's state law

3 claims because he is immune under Government Code section 820.2 ("section 820.2"), which 4 provides that "a public employee is not liable for an injury resulting from his act or omission 5 where the act or omission was the result of the exercise of the discretion vested in him, 6 whether or not such discretion be abused." Holland alleges that Sheriff Hennessey is liable 7 for adopting the policy under which she was strip searched, as well as for his negligent 8 failure to supervise his employees and for his employees' failure to establish reasonable 9 suspicion prior to searching her.8 10 In her opposition to Defendants' motion, Holland seems to concede that insofar as she

United States District Court

11 is pursuing claims against Sheriff Hennessey as a policymaker, he is immune from those
For the Northern District of California

12 claims. However, Holland contends that Sheriff Hennessey is directly liable for his deputies' 13 failure to establish reasonable suspicion before strip searching Holland because section 820.2 14 does not immunize the ministerial implementation of a policy. See Johnson v. California, 69 15 Cal. 2d 782, 797 (1968). In Johnson, the California Supreme Court held that "a basic policy 16 decision . . . may be discretionary and hence warrant governmental immunity, [but] 17 subsequent ministerial actions in the implementation of that basic decision still must face 18 case-by-case adjudication . . . ." Holland argues that because the ministerial actions 19 undertaken to carry out Sheriff Hennessey's policy are not immunized, Sheriff Hennessey is 20 liable for those ministerial actions. However, in Johnson, the court held the ministerial actor, 21 not the policymaker, liable for the challenged ministerial actions. Id. Here Holland does not 22 allege that Sheriff Hennessey had any role in Holland's strip search beyond setting the 23 policy. Sheriff Hennessey's deputies implemented the policy, according to Holland. Thus 24
8 Holland submitted supplemental briefing on the question of discretionary immunity 25 under section 820.2. However, the Court's October 25, 2010 order, which allowed the parties to submit supplemental briefs, explicitly limited the content of these briefs to "whether the 26 absence of probable cause to arrest Plaintiff would render Government Code section 844.6 immunity inapplicable to Plaintiff's strip search claims." The portions of Plaintiff's 27 supplemental brief dealing with immunity under section 820.2 are untimely and clearly beyond the scope of the Court's order, and will not be considered. See Lujan v. National 28 Wildlife Federation, 497 U.S. 871, 894-95(1990).

17

1 while Holland may be correct that the deputies who searched her are not immune under 2 section 820.2, she cites no authority that would withdraw immunity from the policymaker 3 simply because his or her policy was carried out. To do so would nullify policymaker 4 authority in all cases in which a policy was implemented. Holland cites no authority in 5 support of this result. 6 Holland also contends that policymaker immunity under section 820.2 does not

7 immunize Sheriff Hennessey from liability under her cause of action for negligent failure to 8 supervise. She cites no authority in support of this argument, however, and levels of training 9 and supervision would seem to fall within the realm of policymaking, as Defendants contend. 10 For the foregoing reasons, Defendants' motion to dismiss is GRANTED as to

United States District Court

11 Holland's eighth, ninth, tenth, twelfth, thirteenth, fourteenth, and fifteenth causes of action,
For the Northern District of California

12 which are DISMISSED against Sheriff Hennessey insofar as they arise from the strip search. 13 14 III. Leave to Amend 15 Defendants argue that Holland should not be granted leave to amend her claims.

16 However, dismissal of claims should be with leave to amend unless it is clear that 17 amendment could not possibly cure the deficiencies leading to dismissal. Steckman, 143 F.3d 18 at 1296. Defendants have not shown that Holland could plead no set of facts to cure the 19 deficiencies described above. Therefore, their motion for denial of leave to amend is 20 DENIED. 21 22 CONCLUSION 23 For the reasons set forth above, Defendants' motion to dismiss is GRANTED IN

24 PART and DENIED IN PART. Holland's eighth, ninth, tenth, twelfth, thirteenth, fourteenth, 25 and fifteenth causes of action against the City and Sheriff Hennessey, relating to the strip 26 search of Holland, are DISMISSED with leave to amend. The motion to dismiss is denied, 27 however, as to Holland's fifth, sixth, and seventh causes of action under section 1983, and as 28 to Holland's state law claims against defendants other than the City and Sheriff Hennessey. 18

1 Holland's amended complaint, should she choose to amend, shall be filed no later than 2 January 28, 2011. 3 4 IT IS SO ORDERED. 5 6 Dated: 12/7/10 7 8 9 10 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

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11
For the Northern District of California

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