Bell v. Williams et al

Filing 70

ORDER GRANTING DEFENDANTS' PARTIAL MOTION TO DISMISS AND GRANTING LEAVE TO AMEND granting 60 Motion to Dismiss. (Illston, Susan) (Filed on 11/16/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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VINCENT KEITH BELL,
Plaintiff,

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v.

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SGT. WILLIAMS, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 18-cv-01245-SI
ORDER GRANTING DEFENDANTS'
PARTIAL MOTION TO DISMISS AND
GRANTING LEAVE TO AMEND
Re: Dkt. No. 60

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On November 13, 2020, the Court held a hearing on defendants’ partial motion to dismiss

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the corrected fourth amended complaint (“FAC”).

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allegations contained in the third cause of action, as well as the sixth cause of action for First

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Amendment retaliation. For the reasons set forth below, the Court GRANTS the motion and

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GRANTS plaintiff leave to file an amended complaint. If plaintiff wishes to amend the complaint,

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plaintiff must do so no later than December 4, 2020. The Court advises plaintiff that if the fifth

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amended complaint does not cure the deficiencies noted in this order, the Court is not inclined to

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grant further leave to amend.

Defendants seek to dismiss the Monell

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I.

Monell Liability

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Local governments are “persons” subject to liability under 42 U.S.C. § 1983 where official

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policy or custom causes a constitutional tort, see Monell v. Dep’t of Social Servs., 436 U.S. 658, 690

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(1978); however, a city or county may not be held vicariously liable for the unconstitutional acts of

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its employees under the theory of respondeat superior. See Board of Cty. Comm’rs. of Bryan Cty.

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v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691; Fuller v. City of Oakland, 47 F.3d

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1522, 1534 (9th Cir. 1995). To establish an official policy that would give rise to Monell liability,

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a plaintiff must allege facts to support one of the following to survive dismissal of its claim: (1) an

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unconstitutional custom or policy behind the violation of rights; (2) a deliberately indifferent

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omission, such as a failure to train or failure to have a needed policy; or (3) a final policy-maker’s

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involvement in, or ratification of, the conduct underlying the violation of rights. Clouthier v. County

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of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir. 2010) (synthesizing authorities), overruled on

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other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016).
The FAC alleges that CCSF had an unconstitutional pattern and practice of misusing the

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SORT and safety cells, and that CCSF employees were not trained on the SORT and safety cells.

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The FAC alleges that “in violation of SFSD policy, members of the SORT pinned Mr. Bell against

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the ground . . . .” and that “[u]pon information and belief, Sergeant Williams, Deputy Bryant, Deputy

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United States District Court
Northern District of California

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Bui, Deputy Daly, Deputy DeJesus, Deputy Leung, Deputy Walsh and Deputy Yeung had

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constructive knowledge that this conduct [misusing the SORT] was unlawful, as Mr. Bell previously

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filed a lawsuit, which remains pending, alleging similar misconduct on behalf of deputies.” FAC

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¶ 26. With regard to the safety cells, the FAC alleges “[u]pon information and belief, CCSF has a

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custom, policy, and/or practice of misusing safety cells to discipline detainees and have previously

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placed Mr. Bell and other detainees, including pretrial detainees, in safety cells as an act of

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retaliation and/or discipline.” Id. ¶ 29. The FAC also alleges that “Defendant CCSF’s employees

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were never trained and/or were not recently retrained in some time prior to extracting Mr. Bell with

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a SORT and placing him in a safety cell.” Id. ¶ 45.

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Defendants contend that plaintiff’s allegations are conclusory. The Court agrees. Proof of

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random acts or isolated incidents of unconstitutional action by a non-policymaking employee is

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insufficient to establish the existence of a municipal policy or custom. See Rivera v. County of Los

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Angeles, 745 F.3d 384, 398 (9th Cir. 2014); McDade v. West, 223 F. 3d 1135, 1142 (9th Cir. 2000);

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Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996); Thompson v. City of Los Angeles, 885 F.2d 1439,

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1444 (9th Cir. 1989). The FAC does not provide any details regarding other alleged instances of

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CCSF employees misusing a SORT or safety cell. Plaintiff generally references his earlier lawsuit,

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filed in 2013, as support for an alleged pattern and practice. However, these conclusory and sparse

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allegations are not sufficient to show a custom or practice. See Gant v. County of Los Angeles, 772
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F.3d 608, 618 (9th Cir. 2014) (liability may not be predicated on isolated or sporadic incidents; “it

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must be founded on practices of sufficient duration, frequency and consistency that the conduct has

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become a traditional method of carrying out policy”); Bauer v. City of Pleasanton, 3:19-cv-04593-

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LB, 2020 WL 1478328, at *5 (N.D. Cal. Mar. 26, 2020) (“two prior incidents . . . do not show a

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persistent and widespread custom” (internal quotation marks omitted); see also Sweiha v. Cty. of

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Alameda, No. 19-CV-03098-LB, 2019 WL 4848227, at *4 (N.D. Cal. Oct. 1, 2019) (five incidents

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with “markedly different facts” do not show a persistent and widespread custom) (internal quotation

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marks omitted).
Similarly, plaintiff has not alleged sufficient facts in support of a failure to train theory. “A

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pattern of similar constitutional violations” by untrained employees is ordinarily necessary to

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United States District Court
Northern District of California

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establish that the failure to train or supervise is a deliberate policy. Connick v. Thompson, 563 U.S.

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51, 52 (2011). A local government’s liability under § 1983 is at “its most tenuous,” when the claim

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is based on a failure to train. Connick, 563 U.S. 51 at 61; see also Cornish v. Oakland Hous. Auth.,

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No. 18-CV-05947-LB, 2019 WL 1746070, at *5 (N.D. Cal. Apr. 18, 2019) (finding allegations from

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a prior lawsuit “are not enough to plead that the OHA should have been put on notice that different

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training was required”).

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Accordingly, the Court GRANTS defendants’ motion to dismiss the Monell allegations and

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GRANTS plaintiff leave to amend. If plaintiff wishes to pursue a Monell claim against CCSF,

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plaintiff must be able to allege more than isolated or sporadic incidents; rather, plaintiff must be

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able to allege “practices of sufficient duration, frequency and consistency that the conduct has

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become a traditional method of carrying out policy.” Trevino, 99 F.3d at 918.

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In addition, at the hearing, plaintiff informed the Court that plaintiff requests leave to allege

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Monell liability under the theory that then-Captain Fisher ratified the unconstitutional actions of the

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deputies. “To show ratification, a plaintiff must prove that the authorized policymakers approve a

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subordinate’s decision and the basis for it.” Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999)

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(citations and internal quotation marks omitted). “The policymaker must have knowledge of the

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constitutional violation and actually approve of it.” Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004).

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“[W]hether a particular official has ‘final policymaking authority’ is a question of state law. Jett v.
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Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (quoting, with original emphasis, St. Louis v.

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Praprotnik, 485 U.S. 112, 123 (1988) (plurality opinion)); see McMillian v. Monroe Cty., Ala., 520

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U.S. 781, 786 (1997) (“the actual function of a governmental official, in a particular area, will

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necessarily be dependent on the definition of the official’s functions under relevant state law”); see

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also Cal. Gov’t Code §§ 26605, 26610; Cal. Pen. Code § 4000. If plaintiff pursues a ratification

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theory, plaintiff must be able to allege that a defendant with final policymaking authority approved

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the decisions at issue.

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II.

First Amendment Retaliation
Plaintiff alleges that the individual defendants retaliated against him after he filed a written

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United States District Court
Northern District of California

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grievance against Deputy Leung for sexual harassment. The FAC alleges that Leung singled

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plaintiff out for discipline, and that the other individual defendants retaliated by carrying out and/or

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approving the discipline. FAC ¶¶ 58-60. While the FAC alleges that the written grievance is the

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protected conduct, plaintiff’s opposition suggests that that his initial verbal complaint, in addition

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to a written grievance, constitutes the protected conduct.

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“Within the prison context, a viable claim of First Amendment retaliation entails five basic

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elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because

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of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his

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First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional

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goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted).

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The Court concludes that the FAC does not sufficiently allege a causal link between

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plaintiff’s protected activity and the retaliatory discipline on the part of each individual defendant.

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The Court will GRANT plaintiff leave to amend to clarify the nature of the protected conduct (verbal

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complaint, written grievance, or both), as well as the timeline when the protected conduct and

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retaliatory actions occurred. In addition, for each individual defendant named in the retaliation

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claim, plaintiff must be able to allege that the officials intended to take the adverse action out of

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“retaliatory animus” to “silence and to punish” the inmate – and thus had knowledge of the protected

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conduct – as opposed to for some other reason. Shepard v. Quillen, 840 F.3d 686, 689-691 (9th Cir.
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2016). Mere speculation that defendants acted out of retaliation is not sufficient. Wood v. Yordy,

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753 F.3d 899, 904 (9th Cir. 2014) (citing cases).

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CONCLUSION

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For the foregoing reasons, the Court GRANTS defendants’ partial motion to dismiss and

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GRANTS plaintiff leave to amend. If plaintiff wishes to file an amended complaint, he must do so

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no later than December 4, 2020.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: November 16, 2020

______________________________________
SUSAN ILLSTON
United States District Judge

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