Velarde v. County of Alameda et al

Filing 44

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS THE FIRST AMENDED COMPLAINT AND GRANTING LEAVE TO AMEND 33 . (Illston, Susan) (Filed on 4/20/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HEIDE VELARDE,

Case No. 15-cv-03323-SI

Plaintiff,
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v.
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COUNTY OF ALAMEDA, et al.,
Defendants.

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ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS THE FIRST
AMENDED COMPLAINT AND
GRANTING LEAVE TO AMEND

United States District Court
Northern District of California

Re: Dkt. No. 33
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Defendants’ motion to dismiss the first amended complaint is scheduled for a hearing on

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April 22, 2016. Pursuant to Civil Local Rule 7-1(b), the Court determines that this matter is
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appropriate for resolution without oral argument and hereby VACATES the hearing. For the
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reasons set forth below, the Court GRANTS in part and DENIES in part defendants’ motion to

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dismiss the first amended complaint and GRANTS plaintiff leave to amend. The amended
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complaint is due by April 29, 2016. The case management conference scheduled for April 22,
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2016 at 2:30 pm remains on calendar.
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BACKGROUND
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This lawsuit arises out of plaintiff’s pretrial detention at the Santa Rita Jail from June 16,

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2014 until her release on July 2, 2014. On June 15, 2014, police arrested plaintiff Heide Velarde
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on a misdemeanor violation of Cal. Penal Code § 245, assault with a deadly weapon. First
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Amended Compl. (“FAC”) Dkt. No. 25 at ¶ 20. Velarde was taken to the Fremont Jail before

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being transported to Santa Rita Jail the next day. Id. Plaintiff alleges that her cell at Santa Rita
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Jail was “very cold” and that the “air blowing out of air vents was freezing.” Id. at ¶ 21. Plaintiff

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alleges that when she was locked in her cell, defendant Doe 5, a deputy, told plaintiff she would

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not be given a blanket, and that plaintiff then heard defendant Doe 5 state that plaintiff was “being

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punished.” Id. Plaintiff also claims that from the time of her arrest until she was fed breakfast the

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next day, over thirty-six hours passed. Id. at ¶¶ 22-23.
Plaintiff alleges that the next day, two deputies spoke with her and told her that she was

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going to be punished by being placed in solitary confinement,1 or “the hole,” for having made a

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“scene” at court. Id. at ¶ 24. The complaint alleges that “Plaintiff demurred, stating she had never

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caused a disturbance, but that she had simply requested a different judge as was her right.” Id.2

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Plaintiff also alleges that a deputy later informed her “that she heard that Plaintiff wrote a book

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criticizing the Oakland Police Department,” and that plaintiff “understood this to mean that

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United States District Court
Northern District of California

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anyone who criticized the police or peace officers would be punished, and that the deputies

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believed plaintiff to be deserving of punishment.” Id. at ¶ 35. Plaintiff claims that if she “verbally

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protested or questioned the treatment she received, she was told that she would be further

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maltreated if she persisted in her verbal protests.” Id. at ¶ 2.

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Plaintiff claims that despite repeated requests, she was never provided with toilet paper

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while in administrative isolation. Id. at ¶ 24. Plaintiff also alleges that she was never given the

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opportunity to bathe during her detention at Santa Rita Jail. Id. at ¶ 29. Plaintiff alleges that she

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was never afforded the opportunity to launder her clothes because she was never provided a

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writing instrument with which to fill out a laundry form. Id. at ¶ 30. She admits, however, that

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she never actually verbally or otherwise requested a writing instrument, but plaintiff alleges she

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did not make these requests because she did not want to anger the deputies. Id. According to

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Defendants state that Santa Rita Jail has “administrative isolation,” “which is likely what
Plaintiff is referring to in her Complaint as ‘solitary confinement.’” Dkt. 33 at 4 n. 2. This order
will use the term administrative isolation.
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Defendants assert that Judge Saunders of the Alameda County Superior Court ordered
that plaintiff be placed into administrative isolation, and therefore that plaintiff’s placement in
administrative isolation was not punitive. In support of this assertion, defendants seek judicial
notice of the Clerks Docket and Minutes dated June 18, 2014. That document states that plaintiff
was present for a court appearance on June 18, 2014, and states “Previous order of 6-16-14,
defendant held at zero bail, is to not have any communications, no visitors and no telephone calls,
(Has not accepted P.O.) remains in effect.” Dkt. No. 34-1 at 2. The Court addresses the parties’
arguments about plaintiff's placement in administrative segregation infra.
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plaintiff, she was never allowed to call her attorney or anyone else during her time in

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administrative isolation. Id. at ¶¶ 32-33.

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Plaintiff alleges that on days when she went to court, she was segregated from other

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detainees. Id. at ¶ 34. Upon return from court on July 1, 2014, plaintiff alleges she was subjected

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to a strip and body cavity search by defendant Jane Doe 6 in a cell with the door open. Id. at ¶ 37.

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Specifically, plaintiff alleges,

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United States District Court
Northern District of California

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37 . . . The search was conducted in a cell with the door wide open, which allowed
the search to be viewed by all individuals and other guards, male and female, who
passed by the open door while the strip search and body cavity search was being
conducted.
38. Plaintiff was ordered to remove all of her clothing and stand there naked. She
was required to display and shake each of the pieces of clothing. These articles of
clothing were clearly very soiled, given that Plaintiff had had no access to personal
sanitation products, including the basics such as toilet paper, and had not been
provided an opportunity since her incarceration, to shower or have access to a clean
change of clothing.
39. After removing all of her clothing, she was required to stand there naked and
open her mouth and lift her tongue, lift her breasts, run her hands through her hair
and shake her head of hair.
40. Continuing, while standing there naked, Plaintiff was then required to stand on
one foot while lifting one leg so defendant Doe 6 could to examine the sole of
Plaintiff’s foot. This procedure was repeated with the opposite foot. Plaintiff was
then forced to turn around, bend over in a squat position and spread her buttock
while coughing three times.
Id. at ¶¶ 37-40.

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On July 2, 2014, plaintiff again went to court, and on that day the charges against her were

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dismissed. Id. at ¶ 42. Plaintiff alleges that she was not immediately released and was instead

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“kept . . . handcuffed and shackled, and maintained . . . in the isolation cage . . . for an additional 4

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or more hours, until Plaintiff was forcibly returned to Santa Rita Jail.” Id. Upon returning to

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Santa Rita Jail, plaintiff was subjected to a second strip and body cavity search by defendant Jane

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Doe 7. Id. Plaintiff alleges,

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43. The strip search and body cavity searches ordered by defendant Jane Doe 7
was conducted in the identical manner as the strip search and body cavity search
conducted as the strip search and body cavity search the day before. Defendant
Jane Doe 7 also kept the door in the cell in a fully opened position so that this
second strip and body cavity search was also observed by all persons, male and
female, who walked by the door of the cell.
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Id. ¶ 43. The complaint does not state the amount of time that passed between the time charges

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were dismissed and plaintiff’s release.

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Plaintiff has sued defendants Gregory J. Ahern, Sheriff for Alameda County; Brett M.

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Keteles, Assistant Sheriff for Alameda County in charge of the Detentions and Corrections Unit in

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that county; Carla Kennedy, second in command for Detention and Corrections; David Brady and

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C. Staysa, captains of the Alameda County Sheriff’s Office; and the County of Alameda. See id.

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at ¶¶ 10-14. The named defendants are sued in their official capacities. Id. Plaintiff also sues

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Does 5-50, who were all Sheriff’s deputies assigned to detentions and corrections and were on

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duty between June 16, 2014 and July 3, 2014. Id. at ¶ 15. The Doe defendants are sued in their

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official and individual capacities. Id. at ¶ 16.

United States District Court
Northern District of California

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The FAC alleges the following claims pursuant to 42 U.S.C. § 1983 and state law: (1)

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violation of the Eighth Amendment’s prohibition against cruel and unusual punishment based on

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the deprivations she suffered while in custody; (2) violation of the Eighth and Fourteenth

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Amendments based on her placement in administrative isolation; (3) retaliation based upon the

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exercise of her First Amendment rights; (4) violation of the Fourth Amendment and Equal

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Protection clause of the Fourteenth Amendment with respect to the timing and location of the strip

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and body cavity searches; (5) violation of Article 1, § 1 of the California Constitution and

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California Civil Code § 51.7; (6) violation of the Fourth, Eighth, and Fourteenth Amendments

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based on defendants’ failure to immediately release plaintiff after the charges against her were

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dismissed; (7) violation of California Civil Code § 52.1; and (8) negligence. 3 Plaintiff requests

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monetary damages as well as injunctive relief requiring defendants to provide the putative class of

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“female individuals who are arrested and placed in the custody of the Alameda County Sheriff’s

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Office . . . jail and held by the Sheriff in solitary confinement in Santa Rita Jail while under

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pretrial detention” with “constitutionally adequate” cells and conditions of incarceration or

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Plaintiff filed her complaint on behalf of herself and as representative of a putative class
of “female individuals who are arrested and placed into the custody of the Alameda County
Sheriff’s Office (“Sheriff”) jail facility and held by the Sheriff in solitary confinement in Santa
Rita Jail while under pretrial detention.” Dkt. No. 25 at ¶ 1.
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detention, a halt to “abusive behavior and conduct,” the cessation of First Amendment retaliation

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against those speak out against “defendants’ unlawful treatment,” and an end to administrative

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isolation of pretrial detainees. Id. at ¶¶ 1, 6-7.

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Now before the Court is defendants’ motion to dismiss the FAC.4

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LEGAL STANDARD

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Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint

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if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to

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dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its

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face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard

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United States District Court
Northern District of California

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requires the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant

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has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not require

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“heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to

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relief above the speculative level.” Twombly, 550 U.S. at 555, 570.

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In deciding whether the plaintiff has stated a claim upon which relief can be granted, the

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court must assume that the plaintiff’s allegations are true and must draw all reasonable inferences

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in the plaintiff’s favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987).

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However, the court is not required to accept as true “allegations that are merely conclusory,

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unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536

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F.3d 1049, 1055 (9th Cir. 2008). Furthermore, a court need not “accept as true allegations that

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contradict matters properly subject to judicial notice or by exhibit.” Sprewell v. Golden State

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Warriors, 266 F.3d 979, 988 (9th Cir.) opinion amended on denial of reh’g, 275 F.3d 1187 (9th

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Cir. 2001). If the Court dismisses the complaint, it must then decide whether to grant leave to

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amend. The Ninth Circuit has “repeatedly held that a district court should grant leave to amend

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

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not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th

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Plaintiff filed the original complaint pro se, and then she obtained an attorney who filed
the first amended complaint.
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Cir. 2000) (citations and internal quotation marks omitted).

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DISCUSSION

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I.

Claim 1: Violation of the Eighth Amendment

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United States District Court
Northern District of California

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Plaintiff alleges that the deprivations she suffered while detained at Santa Rita Jail amount
to cruel and unusual punishment in violation of the Eighth Amendment. Dkt. No. 25 at ¶ 59.
Plaintiff alleges that she was deprived of “basic human hygiene needs including toilet paper, soap,
clean clothing, clean underwear, showers and other accoutrements of a minimum of personal
hygiene and cleanliness.” Id. at ¶ 60. Defendants move to dismiss this claim, arguing that the
Eighth Amendment applies only to convicted prisoners.

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Plaintiff alleges that she was a pretrial detainee throughout her June - July 2014 detention.

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When a pretrial detainee challenges conditions of his confinement, the proper inquiry is whether

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the conditions amount to punishment in violation of the Due Process Clause of the Fourteenth

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Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). “‘[T]he State does not acquire

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the power to punish with which the Eighth Amendment is concerned until after it has secured a

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formal adjudication of guilt in accordance with due process of law. Where the State seeks to

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impose punishment without such an adjudication, the pertinent guarantee is the Due Process

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Clause of the Fourteenth Amendment.’” Id. (quoting Ingraham v. Wright, 430 U.S. 651, 671-72

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n.40 (1977)).

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Accordingly, the Court GRANTS defendants’ motion to dismiss Velarde’s Eighth
Amendment claim. However, the Court grants plaintiff leave to amend the complaint to allege a
claim for violation of her rights under the Fourteenth Amendment. See generally Bell, 441 U.S. at
538 (discussing “useful guideposts in determining whether particular restrictions and conditions
accompanying pretrial detention amount to punishment in the constitutional sense of that word”);
Demery v. Arpaio, 378 F.3d 1020, 1028-29 (9th Cir. 2004); Keenan v. Hall, 83 F.3d 1083, 109091 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998); Toussaint v. McCarthy, 597 F. Supp.
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1388, 1411 (N.D. Cal. 1984), aff’d in part and vacated in part, 801 F.2d 1080 (9th Cir. 1986).5

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II.

Claim 2: Violation of Eighth and Fourteenth Amendments

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Velarde alleges that she was placed in administrative isolation as punishment based on her

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request for a different judge in Judge Saunders’ courtroom. Dkt. No. 25 at ¶ 24. She alleges that

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two deputies told her she would be punished for having made a “scene” in court, and that she

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would be placed in “the hole.” Id.
Defendants move to dismiss this claim, arguing that plaintiff’s allegations are “clearly

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contradicted” by the Superior Court’s Clerks Docket and Minutes document dated June 18, 2014,

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which states: “Previous order of 6-16-14, defendant held at zero bail, is to not have any

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United States District Court
Northern District of California

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communications, no visitors and no telephone calls, (Has not accepted P.O.) remains in effect.”

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Dkt. No. 34-1 at 2.

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California Penal Code § 136.2, which “allows criminal courts to issue protective orders to protect

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witnesses and victims of domestic abuse.”6 Dkt. No. 33 at 9:21-10:1, n.3. Defendants do not

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provide any evidence in support of this assertion except for the Docket and Minutes document.

Defendants assert that the proposed protective order was pursuant to

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As discussed supra, as a pretrial detainee, plaintiff cannot bring this claim under the Eighth

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Amendment, and instead she must bring it under the Fourteenth Amendment.7 Lee, 250 F.3d at

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In addition, the Court notes that the complaint does not specify which causes of action
are brought against which defendants. Plaintiff is directed to provide such clarification in the
amended complaint.
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Defendants do not cite the specific subsection of Cal. Penal Code § 136.2 to which they
refer. Based upon defendants’ arguments, it appears that they are referring to subsection
(a)(1)(D), which states:
Upon a good cause belief that harm to, or intimidation or dissuasion of, a
victim or witness has occurred or is reasonably likely to occur, a court with
jurisdiction over a criminal matter may issue orders, including, but not limited to,
the following:
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(D) An order that a person described in this section shall have no
communication whatsoever with a specified witness or a victim, except through an
attorney under reasonable restrictions that the court may impose.

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Cal. Penal Code § 136.2.

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In her Opposition, Velarde requested leave to amend to allege a claim under the Fifth
Amendment in place of the Eighth Amendment. Dkt. No. 35 at 5:4-6. However, “[w]here the
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686. Pretrial detainees may not be placed in disciplinary segregation without a due process

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hearing. Mitchell v. Dupnik, 75 F.3d 517, 524 (9th Cir. 1996). Here, Velarde alleges that she was

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placed in “the hole” by defendants in order to punish plaintiff for making a “scene” in court. The

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Clerks Docket and Minutes do not “clearly contradict” plaintiff’s allegations such that dismissal at

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the pleading stage is appropriate. The Court cannot draw the inference that the restrictions ordered

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by Judge Saunders -- that plaintiff was “not have any communications, no visitors and no

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telephone calls” -- necessarily meant placing plaintiff in administrative segregation. Accordingly,

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the Court concludes that plaintiff has stated a claim for violation of her rights under the Fourteenth

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Amendment. Defendants’ motion to dismiss plaintiff’s second cause of action is GRANTED to

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the extent that plaintiff alleges a violation of her rights under the Eighth Amendment, and

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United States District Court
Northern District of California

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DENIED to the extent plaintiff alleges a violation of her rights under the Fourteenth Amendment.

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III.

Claim 3: Violation of First Amendment - Retaliation

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Plaintiff alleges that defendants retaliated against her by punishing her while she was in

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custody in response to her speaking up in court, inquiring about the rules of the Santa Rita Jail,

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requesting food and other basic necessities, and criticizing the actions and policies of government

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actors. Dkt. No. 25 at ¶ 69. Defendants argue that Velarde has not alleged sufficient facts to

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allege retaliation, and that her allegations of mistreatment at the hands of defendants are

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insufficient under current law.

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To prove retaliation in violation of the First Amendment and to recover under 42 U.S.C.
§ 1983, a plaintiff must show:
(1) [that] he engaged in constitutionally protected activity; (2) as a result, he was
subjected to adverse action by the defendant that would chill a person of ordinary
firmness from continuing to engage in the protected activity; and (3) there was a
substantial causal relationship between the constitutionally protected activity and
the adverse action.

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State seeks to impose punishment without such an adjudication, the pertinent constitutional
guarantee is the Due Process Clause of the Fourteenth Amendment.” Bell, 441 U.S. at 441 U.S. at
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Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010); Skoog v. Cnty. of Clackamas, 469

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F.3d 1221, 1232 (9th Cir. 2006) (applying same test, but with two instead of three elements). To

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rise to a constitutional violation, the defendant’s adverse action “must be of a nature that would

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stifle someone from speaking out.” Blair, 608 F.3d at 544. Examples of adverse actions are

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“‘exercise[s] of governmental power’ that are ‘regulatory, proscriptive, or compulsory in nature’

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and have the effect of punishing someone for his or her speech.” Id. (quoting Laird v. Tatum, 408

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U.S. 1, 11 (1972)).

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defendant intended to inhibit free speech. Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d

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1283, 1300-01 (9th Cir. 1999) (internal citations and quotations marks omitted).

Furthermore, direct or circumstantial evidence can demonstrate that a

Verbal

harassment or abuse is “not sufficient to state a constitutional deprivation under 42 U.S.C. §

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United States District Court
Northern District of California

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1983.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987).

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Plaintiff alleges that Santa Rita Jail deputies retaliated against her because she spoke up in

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court and because of her criticism of Oakland police. See Dkt. No. 25 at ¶ 69. Defendants argue

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that Velarde has not alleged sufficient facts to allege a retaliation claim “because no adverse action

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was taken against her as a result of her free speech,” and her allegations of mistreatment at the

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hands of defendants are insufficient under current case law. The Court finds that plaintiff has

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alleged an adverse action, namely placement in the “hole,” as a result of her speech in Judge

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Saunders’ courtroom. Blair, 608 F.3d at 543.

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The Court finds that plaintiff’s remaining allegations of retaliation are insufficient.

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Plaintiff generally alleges that she was “verbally abused, punished and denied the basics of

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humanitarian treatment.” Dkt. No. 25 at ¶¶ 2, 26, 30. For example, plaintiff alleges that

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[w]hile at the beginning [of her detention], Plaintiff made one or two requests [for
soap] of the sheriff deputies, it was soon made amply clear to Plaintiff, that any
requests she made was treated as a form of ‘non-cooperation’, and all requests
provoked the anger of sheriff’s deputies, which resulted in some additional form of
deprivation or punishment. Therefore, Plaintiff quickly learned not to make any
requests and to initiate few, if any verbal communications with the sheriff’s
deputies.
Id. at ¶ 26. Plaintiff has not alleged with any specificity how the deputies retaliated against her in

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response to her requests for soap (or anything else). Further, to the extent that plaintiff alleges
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retaliation in the form of verbal mistreatment, those allegations do not state a constitutional

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violation. See Oltarzewski, 830 F.2d at 139.

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The Court therefore DENIES defendants’ motion to dismiss the retaliation claim to the

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extent this claim is based on plaintiff’s her placement in administrative isolation, and GRANTS

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defendants’ motion to dismiss the balance of the retaliation claim. The Court GRANTS plaintiff

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leave to amend the retaliation claim in order to allege specific facts showing that there was an

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adverse action taken against her by the deputies as a result of her exercise of free speech. See

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Blair, 608 F.3d at 543.

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IV.

Claim 4: Violation of the Fourth and Fourteenth Amendments

United States District Court
Northern District of California

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The fourth claim for relief alleges that defendants’ “policies, practices, and customs

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regarding the strip and visual body cavity searches complained of herein violated the rights of

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Plaintiff . . . under the Fourth Amendment to be free from unreasonable searches and seizures

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[and violated plaintiff’s right] to due process and privacy under the Fourteenth Amendment.” Dkt.

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No. 25 at ¶ 73.

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Defendants argue that this claim fails as a matter of law because strip searching upon

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returning a detainee to administrative isolation is constitutional. In support of this argument,

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defendants cite Supreme Court and the Ninth Circuit cases upholding strip and body cavity search

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policies as reasonable. See Florence v. Bd. of Chosen Freeholders of City. of Burlington, 132 S.

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Ct. 1510 (2012); Bull v. San Francisco, 595 F.3d 964, 974-75 (9th Cir. 2010) (en banc);

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Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988); Rickman v. Avaniti, 854 F.2d 327, 328

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(9th Cir. 1988); but see Lopez v. Youngblood, 609 F. Supp. 2d 1125, 1139-40 (E.D. Cal. 2009)

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(granting summary judgment in favor of plaintiffs, finding a policy of strip searching detainees

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ordered released by a court upon return to jail violates the Fourth Amendment); Craft v. City of

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San Bernardino, 468 F. Supp. 2d 1172, 1179 (C.D. Cal. 2006) (holding on summary judgment that

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a blanket policy of strip searching all detainees upon return from court, including detainees

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ordered released, violated the Fourth Amendment).

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The Court concludes that plaintiff has stated a claim to challenge the strip searches. To
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determine whether a strip search is constitutional, courts must consider inter alia the scope,

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manner and justification for the search. Bull, 595 F.3d at 974–75. This evaluation necessarily

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involves an examination of the factual context, and the Court notes that the cases cited by

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defendants were all decided at summary judgment on a full factual record. At the pleadings stage,

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the Court cannot assess the reasonableness of the challenged strip searches. Defendants may

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renew their arguments, including regarding qualified immunity, on a fuller factual record.
Defendants also argue that the named defendants, including the County, may not be held

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vicariously liable for the strip searches because they were performed by Doe defendants (Jane

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Does 6 and 7). Supervisors may be held liable in an individual capacity for their own culpable

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action or inaction in the training, supervision, or control of their subordinates. Menotti v. City of

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United States District Court
Northern District of California

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Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005). Plaintiffs may hold a municipality liable if action

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pursuant to official municipal policy caused the plaintiff’s injuries. Connick v. Thompson, 131

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S.Ct. 1350, 1359 (2011). Here, the complaint alleges that the named defendants were policy

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makers with regard to the challenged conditions and policies at the jail.

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V.

Claim 5: Violation of California Civil Code § 51.7 (Ralph Civil Rights Act)

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Plaintiff’s fifth claim for relief alleges a violation of California Civil Code § 51.7.8 Dkt.

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No. 25 at ¶¶ 74-77. The complaint incorporates all of the previous factual allegations, and alleges

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that

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Defendants' above-described violated Plaintiff's and class members’ right to
privacy as guaranteed by Article 1 § 1 of the California Constitution. At all
relevant times, Defendants’ and more particularly Jane Does 6 and 7’s individual
and/or concerted conduct was unreasonable and without any lawful justification
and done with a conscious, callous and deliberate indifference to Plaintiff[’s] . . .
constitutional right to due process. In addition, the Jane Does were acting with
reckless disregard . . . by conducting a demeaning . . . strip and visual body cavity
search that may be viewed by those outside the room.
Id. at ¶ 76.
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The fifth claim for relief also alleges a violation of the California Constitution Article 1,
§1 Right to Privacy. Defendants’ motion to dismiss does not specifically address this aspect of the
fifth cause of action, except to assert that defendants are immune from liability on the state law
claims. See Part VIII, infra.
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Defendants move to dismiss plaintiff’s claim for failure to state the elements of a § 51.7

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claim. California Civil Code § 51.7 states that persons within California have the right to be free

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from any “violence, or intimidation by threat of violence, committed against their persons or

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property because of political affiliation, or on account of any characteristic listed or defined in

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subdivision (b) or (e) of Section 51 . . . .” Cal. Civ. Code § 51.7(a). At the time of plaintiff’s

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detention, Section 51(b) provided that all people in California “are free and equal, and no matter

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what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic

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information, marital status, or sexual orientation. . . .” Cal. Civ. Code § 51.9 When claiming a

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violation of § 51.7, a plaintiff must show: “(1) the defendant threatened or committed violent acts

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against the plaintiff; (2) the defendant was motivated by his perception of plaintiff’s [protected

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United States District Court
Northern District of California

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characteristic]; (3) the plaintiff was harmed; and (4) the defendant’s conduct was a substantial

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factor in causing the plaintiff’s harm. Knapps v. City of Oakland, 647 F. Supp. 2d 1129, 1167

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(N.D. Cal. 2009), amended in part (Sept. 8, 2009) (citing Austin B. v. Escondido Union Sch. Dist.,

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149 Cal. App. 4th 860, 880-81 (2007).

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Defendants argue that plaintiff has not alleged “that any of the Defendants, including

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Sheriff Ahern, the Defendant Deputies or Doe deputies threatened Plaintiff with violent acts or

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committed violent acts against Plaintiff. Plaintiff merely alleges, generally, that she was verbally

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abused, punished, or ignored.” Dkt. No. 33 at 23:1-4. Defendants also contend that “[t]he alleged

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verbal harassment by the Doe deputies, even if taken as true, does not amount to threatening or

20

committing a violent act sufficient to state a claim under” § 51.7. Id. at 23:4-6.

21

Plaintiff’s opposition argues that she “pled that all of her requests (for basic sanitation such

22

as toilet paper) provoked ‘the anger of sheriff’s deputies, which resulted in additional deprivation

23

and punishment.’ . . . In this situation, where plaintiff is under the complete physical control of

24

defendants, and where defendants have clearly informed her that they are punishing her and will

25

punish her further, constitutes intimidation by threat of violence.” Dkt. No. 35 at 5:22-26 (internal

26

citation omitted). Plaintiff argues that the verbal abuse and threat of punishment were not “mere

27
9

28

Section 51(b) was amended on January 1, 2016 to add to its list of protected groups
people of any “citizenship, primary language, or immigration status.”
12

1

coercion of arrest, but intimidation by threat of violence” that she interpreted as a threat that the

2

conditions of her detention would worsen. Dkt. No. 35 at 6:3-5.
The Court finds that plaintiff has failed to allege a violation of § 51.7. Plaintiff does not

4

allege any facts regarding specific threats of violence made against her. Plaintiff has not alleged

5

that Doe defendants 6 and 7 threatened her with any violence when conducting the strip and body

6

cavity searches. With respect to the other defendants, plaintiff has not alleged any particular

7

threats of violence, and instead the complaint generally alleges that defendants interpreted any

8

requests from her as “non-cooperation,” and that her requests “provoked the anger of sheriff’s

9

deputies,” which would lead to some unspecified “additional form of deprivation or punishment.”

10

Dkt. No. 25 at ¶ 26. These allegations are insufficient to show a specific threat of violence.

11
United States District Court
Northern District of California

3

Compare Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1290 (9th Cir. 2001)

12

(holding statement “chick, you better walk faster or I am going to hurt you again” constituted a

13

threat of violence under § 51.7) with Ramirez v. Wong, 188 Cal. App. 4th 1480, 1482, 1486 (2010)

14

(no threat of violence when a landlord entered two female tenants’ apartment in their absence to

15

sniff their underwear because “[t]here can be no ‘threat of violence’ without some expression of

16

intent to injure or damage plaintiffs or their property . . . .").

17

Accordingly, the Court GRANTS defendants’ motion to dismiss the § 51.7 claim with

18

leave to amend. If plaintiff amends the § 51.7 claim, plaintiff must also allege the other elements

19

of a § 51.7 claim, including that defendants were motivated by a perception of plaintiff’s protected

20

characteristic (as well as what that protected characteristic is). See Knapps, 647 F. Supp. 2d at

21

1167.

22
23

VI.

Claim 6: Violation of Fourth and Fourteenth Amendments

24

Plaintiff alleges that defendants violated her Fourth and Fourteenth Amendment rights by

25

not releasing her immediately after the charges against her were dismissed.10 Dkt. No. 25 at ¶¶

26
27
28

10

Plaintiff also brings this claim under the Eighth Amendment. For reasons previously
discussed, this is improper and the Court dismisses this claim to the extent plaintiff alleges a
violation of the Eighth Amendment.
13

1

80-82. Specifically, plaintiff alleges:
80. Defendants’ policies, practices and customs regarding the release of pre-trial
detainees who have been ordered release by the court, either through their Own
Recognizance (OR), or dismissal of the pending charges or other basis, whereby
instead of releasing said pre-trial detainees forthwith, force all pre-trial detainees to
wait at court, sometimes for long periods of time, and then return to Santa Rita Jail,
handcuffed, or shackled, or otherwise bound, is without any lawful justification and
done with a conscious, callous and deliberate indifference to Plaintiff and class
member’s constitutional right to due process.

2
3
4
5
6

81. Defendants’ policies, practices and customs regarding the release of pre-trial
detainees who have been ordered release by the court, either through their Own
Recognizance (OR), or dismissal of the pending charges or other basis, whereby all
pre-trial detainees, upon returning to Santa Rita jail, instead of being processed
forthwith and immediately released, are forced to undergo an unnecessary and
unreasonable strip search and/or visual body cavity search.

7
8
9
10

Id. ¶¶ 81-82.

United States District Court
Northern District of California

11

Defendants’ motion to dismiss this claim focuses solely on plaintiff’s allegations regarding

12

strip and body cavity searches. See Dkt. No. 33 at 19-20. For the reasons set forth above, the

13

Court finds that plaintiff has stated a claim with regard to the searches. As defendants do not

14

challenge the balance of this cause of action, the Court does not address those allegations.

15
16

VII.

Claim 7: Violation of California Civil Code § 52.1 (Bane Civil Rights Act)

17

Plaintiff’s seventh cause of action alleges a violation of California Civil Code § 52.1.

18

Section 52.1 provides that an injured individual may bring a claim against a person who

19

“interferes by threats, intimidation, or coercion, or attempts to interfere by threat, intimidation, or

20

coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the

21

Constitution or laws of the United States, or of the rights secured by the Constitution or laws of

22

this state.” Cal. Civ. Code § 52.1(a)-(b). Section 52.1 does not require a showing that a defendant

23

intended to discriminate, nor does it require a plaintiff to be part of a protected class. Venegas v.

24

Cnty. of Los Angeles, 32 Cal. 4th 820, 841-42 (2004). To demonstrate a violation of § 52.1, a

25

plaintiff must show: “(1) Defendants interfered with Plaintiffs’ constitutional or statutory rights;

26

and (2) that interference was accompanied by actual or attempted threats, intimidation, or

27

coercion.” Campbell v. Feld Entm't, Inc., 75 F. Supp. 3d 1193, 1211 (N.D. Cal. 2014). However,

28

a plaintiff “need not allege that defendants acted with discriminatory animus or intent, so long as
14

1

those acts were accompanied by the requisite threats, intimidation, or coercion.” Venegas, 32 Cal.

2

4th at 843. Courts have held that where a defendant’s actions are intentional, the Bane Act does

3

not require threats, coercion, or intimidation independent from those inherent in the alleged

4

constitutional or statutory violation. Cuviello v. City & Cnty. of San Francisco, 940 F. Supp. 2d

5

1071, 1102 (N.D. Cal. 2013); DV v. City of Sunnyvale, 65 F. Supp. 3d 782, 787-88 (N.D. Cal.

6

2014); Bass v. City of Fremont, No. C 12–4943 TEH, 2013 WL 891090, at *5-6 (N.D. Cal. 2013);

7

Holland v. City of San Francisco, No. C 10-2603 TEH, 2013 WL 968295, at *10 (N.D. Cal. Mar.

8

12, 2013).
Plaintiff does not specify in her complaint what conduct she alleges violated § 52.1. The

10

complaint realleges and incorporates by reference paragraphs 1 through 87, and then alleges that

11
United States District Court
Northern District of California

9

“defendants’ above-described conduct constituted interference, and attempted interference, by

12

threats, intimidation and coercion, with plaintiffs’ enjoyment of rights secured by the Constitution

13

and laws of the United States and the State of California, violating California Civil Code section

14

52.1.” Dkt. No. 25 at ¶¶ 84-85. In her opposition, plaintiff describes the basis for this claim as her

15

“wrongful” placement in solitary confinement and defendants’ “meting out the treatment she

16

received.” Dkt. No. 35 at 6:19-20.

17

Defendants contend that plaintiff cannot base the Bane Act claim on her placement in

18

administrative isolation because Judge Saunders ordered that placement. For the reasons stated

19

above, the Court cannot conclude at this stage of the litigation that plaintiff’s placement in

20

administrative segregation was legal. Plaintiff alleges that her placement was punitive, and as

21

such, the Court finds that plaintiff has stated a claim under the Bane Act. However, the Court also

22

finds that to the extent plaintiff wishes to challenge other conduct by defendants in support of her

23

Bane Act claim, plaintiff must specify that conduct and allege that that the conduct was intentional

24

or accompanied by threats, coercion or intimidation. Accordingly, the Court GRANTS in part and

25

DENIES in part defendants’ motion to dismiss the § 52.1 claim with leave to amend.

26
27

///

28
15

1

VIII. Immunities for State Law Claims

2

A.

3

Defendant County asserts it is immune from liability under plaintiff’s fifth, seventh and

4

eighth causes of action11 under Cal. Gov’t. Code § 844.6. “Government Code section 844.6(a)(2),

5

subject to stated exceptions, provides that a public entity is not liable for ‘[a]n injury to any

6

prisoner.’” Teter v. City of Newport Beach, 30 Cal. 4th 446, 448 (2003); Cal. Gov’t. Code §§

7

844.6(a)-(a)(2), § 845.4, § 845.6. For purposes of § 844.6, a “prisoner” includes a pretrial

8

detainee. Cal. Gov’t. Code § 844.

9
10

United States District Court
Northern District of California

11
12
13
14

County Immunity under California Government Code § 844.6

Plaintiff argues that her claim is covered under an exception to § 844.6, which provides:
Neither a public entity nor a public employee acting within the scope of his
employment is liable for interfering with the right of a prisoner to obtain a judicial
determination or review of the legality of his confinement; but a public employee,
and the public entity where the employee is acting within the scope of his
employment, is liable for injury proximately caused by the employee's intentional
and unjustifiable interference with such right, but no cause of action for such injury
shall be deemed to accrue until it has first been determined that the confinement
was illegal.
Cal. Gov’t. Code § 845.4 (emphasis added). However, as defendants note, plaintiff does not

15
allege that her arrest leading to her confinement was illegal, and thus this exception to § 844.6
16
immunity does not apply.

See Ortiz v. Cty. of Sonoma, No. 14-CV-00322-JSC, 2014 WL

17
1351843, at *2 (N.D. Cal. Apr. 4, 2014) (holding plaintiff must first establish that confinement
18
was illegal before § 845.4 can apply); see also Holland, No. C 10-2603 TEH, 2010 WL 5071597,
19

at *10-11 (holding § 844.6 provided immunity to City of San Francisco from the plaintiff’s state

20
law claims challenging strip search policy).
21
Accordingly, the complaint as currently framed does not establish any basis for finding
22
that an exception to § 844.6 immunity applies. As such, the Court finds that the County is entitled
23

to immunity under § 844.6 to plaintiff’s state law claims. If plaintiff is able to allege a factual

24
basis for an exception to such immunity, plaintiff may do so in the amended complaint.
25
26
27
11

28

In addition to the fifth and seventh causes of action discussed supra, the complaint
alleges an eighth cause of action for negligence.
16

1

B.

Sheriff Ahern and Defendant Deputies’ Immunity under California
Government Code § 820.2 and § 820.8

Defendants contend that Sheriff Ahern and the defendant deputies are immune from

3

liability under plaintiff’s state law claims pursuant to California Government Code §§ 820.2 and

4

820.8 because plaintiff does not allege that these individual defendants personally engaged in any

5

threats, intimidation or coercion of plaintiff, nor does plaintiff allege that these defendants were

6

personally involved in the strip searches. Government Code § 820.2 provides immunity for

7

discretionary, policymaking acts, and Government Code § 820.8 provides immunity for actions of

8

other public employees, including subordinates. See Holland, No. C 10-2603 TEH, 2010 WL

9

5071597, at *11-12 (holding defendant sheriff immune from liability under state law under section

10

820.2 where “Holland does not allege that Sheriff Hennessey had any role in Holland’s strip

11
United States District Court
Northern District of California

2

search beyond setting the policy. . . . Thus, while Holland may be correct that the deputies who

12

searched her are not immune under section 820.2, she cites no authority that would withdraw

13

immunity from the policymaker simply because his or her policy was carried out.”);

14

State of Cal., 63 Cal. App. 4th 188, 202 (1998) (“Government Code section 820.8 affords [CHP

15

Commissioner] immunity from liability based on the acts of his subordinates, Johnson and

16

Flores.”).

Weaver v.

17

Plaintiff's opposition does not specifically address most of defendants’ arguments.

18

Plaintiff argues that Cal. Penal Code § 403012 overrides § 820.2 immunity, and that the facts of the

19

complaint demonstrate that defendants violated § 4030. She is mistaken. In Caldwell, the court

20

found that “where the immunity provided by section 820.2 would otherwise apply, that immunity

21

cannot be abrogated by a statute which simply imposes a general legal duty or liability on persons

22

including public employees.” 10 Cal. 4th at 986. Furthermore, even if an employee was liable

23

under the statute for his or her actions, the immunity granted by § 820.2 does not disappear,

24

because this “effect can only be achieved by a clear indication of legislative intent that statutory

25

immunity is withheld or withdrawn in the particular case.” Id.; see Holland, No. C 10–2603 TEH,

26
27
28

12

Cal. Penal Code § 4030(l) provides that strip and body cavity searches “shall be
conducted in an area of privacy so that the search cannot be observed by persons not participating
in the search.”
17

1

2010 WL 5071597, at *11-12 (dismissing claim for violation of strip search regulations brought

2

under Cal. Penal Code § 4030(l) against city and sheriff based on immunity); see also Bull, 758 F.

3

Supp. 2d at 935 (finding public entity is immune from liability based on an illegal strip search).

4

Accordingly, the Court finds that as currently pled, the named individual defendants are

5

entitled to immunity under California Government Code §§ 820.2 and 820.8 because plaintiff does

6

not allege that these individual defendants personally engaged in any threats, intimidation or

7

coercion of plaintiff, nor does plaintiff allege that these defendants were personally involved in the

8

strip searches. If plaintiff is able to allege that any of the named individual defendants were

9

personally involved in the alleged violations, plaintiff may do so in the amended complaint. 13

10
CONCLUSION

United States District Court
Northern District of California

11
12

For the foregoing reasons and for good cause shown, the Court hereby GRANTS in part

13

and DENIES in part defendants’ motion to dismiss and GRANTS plaintiff leave to file an

14

amended complaint consistent with this order no later than April 29, 2016.

15
16

IT IS SO ORDERED.

17
18

Dated: April 20, 2016
______________________________________
SUSAN ILLSTON
United States District Judge

19
20
21
22
23
24
25
26
27
13

28

In light of this disposition, the Court finds it unnecessary to address the parties’
remaining arguments regarding immunity.
18