Turner Jr. v. County of San Diego

Filing 9

REPORT AND RECOMMENDATION re 4 MOTION to Dismiss. Objections to R&R due by 7/24/2017. Replies due by 7/31/2017. Signed by Magistrate Judge Mitchell D. Dembin on 7/07/2017.(All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17cv285-WQH-MDD

DAVID B. TURNER,
Plaintiff,

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v.

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COUNTY OF SAN DIEGO,
Defendant.

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REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
RE: DEFENDANT’S MOTION TO
DISMISS
[ECF No. 4]

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This Report and Recommendation is submitted to United States

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District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b)(1) and Local

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Civil Rule 72.1(c) of the United States District Court for the Southern

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District of California. For the reasons set forth herein, the Court

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RECOMMENDS that Defendant’s Motion to Dismiss be GRANTED.

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I.

PROCEDURAL HISTORY

Plaintiff David B. Turner, who is proceeding without the assistance of

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counsel, brings this action against the County of San Diego, California. (ECF

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No. 1). On February 13, 2017, Plaintiff filed his Complaint pursuant to 42

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U.S.C. § 1983. It sets forth four claims alleging violations of his civil rights
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by the County of San Diego. (Id.). Specifically, Plaintiff alleges Fourth,

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Eighth and Fourteenth Amendment violations stemming from various

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altercations which took place from December 2015 to February 2016.1 On

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April 3, 2017, Defendant, County of San Diego, filed this motion to dismiss all

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counts. (ECF No. 4-1).
Defendant contends that: (1) Plaintiff’s claims are insufficient to impute

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liability against a municipality per the requirements set forth in Monell v.

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New York City Dept. of Social Serv., 436 U.S. 658 (1978) or City of Canton v.

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Harris, 489 U.S. 378 (1989); (2) Plaintiff’s first claim is time barred; and (3)

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Plaintiff’s second claim fails to state a claim under the Eighth Amendment

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because he does not allege facts sufficient to support the objective

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requirement for a civil rights claim for cruel and unusual punishment. (ECF

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No. 4-1 at 2).

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Plaintiff opposes the motion to dismiss on the grounds that: (1) the

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statute of limitations has not run on Claim 1, and the claim was not properly

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answered as required by Rule 55 of the Federal Rules of Civil Procedure; (2)

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the allegations in Claim 2 are predicated on the “policies on sexual

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harassment, and policies on human dignity and respect during visual cavity

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searches conducted by County of San Diego employees that showed deliberate

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indifference to [Plaintiff’s] constitutional, and ‘personal rights;’” (3) Claim 3

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was not properly answered pursuant to Rule 55, and “deal[s] with policies on

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sexual harassment, human dignity and respect during service of the morning

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meal by County of San Diego employees. . .that policy was the moving force

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Plaintiff’s complaint numbers his claims as follows: 1 (pg. 3), 1A (pg. 4), 2 (pg.17), and 3
(pgs. 17 and 87). For the purposes of this Report and Recommendation the claims shall be
numbered 1, 2, 3, and 4, respectively.

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behind the constitutional violations in [the] count;” and (4) “the County of

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San Diego’s policies. . .[are] the mov[ing] force behind the civil rights

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violations that cause[d] Turners [sic] injury.” (ECF No. 7 at 4).
Defendant replies that Plaintiff fails to allege facts sufficient to support

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his claims against the County by failing to identify a policy or pattern as

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required to impute liability to a municipality. (ECF No. 8).
II.

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The facts are taken from Plaintiff’s Complaint and are not to be

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BACKGROUND FACTS

construed as findings of fact by the Court.
The Complaint alleges the County violated Plaintiff’s constitutional

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rights on four separate occasions while he was in custody. (ECF No. 1). The

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only named defendant is the County. There are no individually named

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defendants in this action.2 The first incident took place on December 12,

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2015, when Plaintiff was placed in “overly tight hand-cuffs” and attacked by a

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“crazy inmate,” whom the deputies mistakenly allowed to be placed in the

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same holding cell as Plaintiff. (ECF No. 1 at 3).3 The second incident

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occurred on January 22, 2016, when Plaintiff asked another inmate for a

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“hot-tray,” to which Deputy Tillman replied, “You can get a peace [sic] of this

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dick.” (ECF No. 1 at 17).4 The third incident happened on February 12,

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2016, when, “in the scope of his employment deputy Johnson unreasonab[ly]

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perform[ed] a[n] unreasonably [sic] cavity search on [the Plaintiff] by jaming

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[sic] his thumb or finger into [Plaintiff’s] rectal cavity, and sqeezing [sic]

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“As a general rule, the use of "John Doe" to identify a defendant is not favored.” Gillespie
v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (citing Wiltsie v. Cal. Dep’t of Corr., 406 F.2d
515, 518 (9th Cir. 1968)).
3 Claim 1
4 Claim 3
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[Plaintiff’s] genitals.” (ECF No. 1 at 47).5 The final incident occurred on

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February 21, 2016, when Plaintiff, while nude, was cavity searched in the

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outside yard at night. (ECF No. 1 at 4). Plaintiff alleges a deputy taking

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part in the search remarked, “I seen a lot of ass tonight” and told Plaintiff to

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“open up wider.” (ECF No. 1 at 4).6
During this time Plaintiff filed a number of Prisoner Grievance Reports

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regarding each incident, all of which appear to have been acknowledged by

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prison officials. (ECF No. 1). Plaintiff included the Prisoner Grievance

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Reports and subsequent replies in the Complaint presumably to show he

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exhausted his administrative remedies.
III. LEGAL STANDARD

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“A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” Navarro

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v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “Under Federal Rule of Civil

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Procedure 8(a)(2), a pleading must contain a short and plain statement of the

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claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556

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U.S. 662, 677-78 (2009) (internal quotations omitted). The pleader must

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provide the Court with “more than an un-adorned, the-defendant-unlawfully

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harmed-me accusation.” Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements will not suffice.” Id.

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“Although for the purposes of a motion to dismiss [a court] must take all of

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the factual allegations in the complaint as true, [a court is] not bound to

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accept as true a legal conclusion couched as a factual allegation.” Id.

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(internal quotations omitted).

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Claim 4
Claim 2
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A pro se pleading is construed liberally on a defendant’s motion to

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dismiss for failure to state a claim. Thompson v. Davis, 295 F.3d 890, 895

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(9th Cir. 2002) (citing Ortez v. Washington Cnty., 88 F.3d 804, 807 (9th Cir.

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1996)). The pro se pleader must still set out facts in his complaint that bring

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his claims “across the line from conceivable to plausible.” Twombly, 550 U.S.

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at 570.

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A pro se litigant is entitled to notice of deficiencies in the complaint and

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an opportunity to amend, unless the complaint’s deficiencies cannot be cured

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by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
IV.

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A.

DISCUSSION

Municipal Liability under Monell
"To state a claim under § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United

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States was violated, and (2) that the alleged violation was committed by a

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person acting under the color of State law." Long v. County of Los Angeles,

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442 F.3d 1178, 1185 (9th Cir. 2006).

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The Supreme Court held in Monell, that "municipalities are not

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completely immune from suit under § 1983." 436 U.S. 658 at 701.

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Nevertheless, “a municipality cannot be held liable solely because it employs

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a tortfeasor—or, in other words, a municipality cannot be held liable under

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§1983 on a respondeat superior theory." Id. at 691 (emphasis in original); see

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also Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997).

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Consequently, “[a] municipality is responsible for a constitutional

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violation, … , only when an ‘action [taken] pursuant to [an] official municipal

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policy of some nature’ caused the violation.” Castro v. Cty. of Los Angeles,

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797 F.3d 654, 670 (9th Cir. 2015) (quoting Monell, 436 U.S. at 691). “Official

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municipal policy includes the decisions of a government’s lawmakers, the acts
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of its policymaking officials, and practices so persistent and widespread as to

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practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61

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(2011). A policy “promulgated, adopted, or ratified by a local governmental

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entity’s legislative body unquestionably satisfies Monell’s policy

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requirement.” Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir.

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1989), overruled on other grounds by Bull v. City & Cty. of San Francisco,

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595 F.3d 964 (9th Cir. 2010) (en banc).

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In the absence of an explicit policy, a plaintiff may establish a

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municipal liability claim by showing the existence of a permanent and well-

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settled practice or custom of the municipality which gave rise to the alleged

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constitutional violation. See City of St. Louis v. Praprotnik, 485 U.S. 112, 127

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(1988); Navarro v. Block, 72 F.3d 712, 6 714-15 (9th Cir. 1996); Thompson,

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885 F.2d at 1444 (9th Cir. 1989). Allegations of random acts, or single

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instances of misconduct, however, are insufficient to establish a municipal

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custom. See Navarro, 72 F.3d at 714; Thompson, 885 F.2d at 1444. But, once

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the plaintiff has demonstrated that a custom existed, the plaintiff need not

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also demonstrate that “official policy-makers had actual knowledge of the

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practice at issue.” Navarro, 72 F.3d at 714-15; see Thompson, 885 F.2d at

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1444. But see Blair v. City of Pomona, 223 F.3d 1074, 1080 (9th Cir. 2000)

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(Municipalities attempting to defeat a Monell claim bear the burden of

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showing “that the custom was not known to the policy-makers.”).

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Lastly, the plaintiff may establish a municipal liability claim by

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alleging constitutional violations caused by a failure to train municipal

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employees adequately. See City of Canton, 489 U.S. at 388-91; Price v. Sery,

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513 F.3d 962, 973 (9th Cir. 2008).

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Such a showing requires three elements: (1) the training program must

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be inadequate “‘in relation to the tasks the particular officers must perform;’”
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(2) the city officials must have been deliberately indifferent “‘to the rights of

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persons with whom the [local officials] come into contact;’” and (3) the

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inadequacy of the training “must be shown to have ‘actually caused’ the

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constitutional deprivation at issue.” Merritt v. Cty. of Los Angeles, 875 F.2d

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765, 770 (9th Cir. 1989) (internal citations omitted).

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B.

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Pleading Standard under Monell
To state a claim for municipal liability against an entity defendant, a

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plaintiff must allege that the entity itself caused the violation through a

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constitutionally deficient policy, practice or custom. Monell, 436 U.S. at 694.

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The Supreme Court held in Twombly and Iqbal that conclusory statements

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that merely recite the elements of a claim are insufficient for the purpose of

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Federal Rule of Civil Procedure 12(b)(6). See Iqbal, 556 U.S. at 678

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

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conclusory statements, do not suffice.”); Twombly, 550 U.S. at 555 (“a

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plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

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requires more than labels and conclusions, and a formulaic recitation of the

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elements of a cause of action will not do”). “A plaintiff must identify the . . .

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policies [or customs] . . . , explain how such policy [or custom] was deficient,

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and explain how such a deficiency caused harm to the plaintiff. Young v. City

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of Visalia, 687 F. Supp. 2d 1141, 1149-50 (E.D. Cal. 2009). “In other words, a

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plaintiff must allege ‘specific facts giving rise to a plausible Monell claim’

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instead of ‘formulaic recitations of the existence of unlawful policies, customs,

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or habits.’” Austen v. Cty. of Los Angeles, Case No. 15cv7372-DDP-FFM, 2017

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WL 1364579, at *2 (C.D. Cal. Apr. 13, 2017) (quoting Warner v. Cty. of San

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Diego, Case No. 3:10cv1057 BTM (BLM,) 2011 WL 662993, at *3 (S.D. Cal.

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Feb. 14, 2011)). Accordingly, a conclusory allegation regarding the existence

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of a policy or custom unsupported by factual allegations is insufficient.
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C.

Plaintiff’s Monell Claims
Plaintiff fails to explicitly allege a policy or custom in his complaint.

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(ECF No. 1 at 3, 4, 47). He also fails to allege any relationship between the

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alleged violations and a policy or custom. (ECF No. 1 at 3, 4, 47). The only

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allegation containing any suggestion of a pattern is found in Claim 3, when it

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states Plaintiff was an “ongoing target of sexual abuse, harassment and

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intimidation by San Diego County and there [sic] employee’s [sic].” (ECF No.

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1 at 17) (emphasis added). The mere use of the word “ongoing” is insufficient

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to allege an express policy, a widespread practice, or involvement by a final

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policymaker. See Ayla v. KC Envtl. Health, 426 F. Supp. 2d 1070, 1095 (E.D.

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Cal. 2006), aff’d, 262 Fed. Appx. 27 (9th Cir. 2007) (“A plaintiff can establish

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a ‘policy or custom’ by showing: (1) an express policy that, when enforced,

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causes a constitutional deprivation; (2) a widespread practice that, although

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not authorized by written law or express municipal policy, is so permanent

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and well settled as to constitute a custom or usage with force of law; or (3) an

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allegation that the constitutional injury was caused by a person with final

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policymaking authority.”). Further, an "improper custom may not be

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predicated on isolated or sporadic incidents; it must be founded upon

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practices of sufficient duration, frequency and consistency that the conduct

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has become a traditional method for carrying out policy." Trevino v. Gates, 99

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F.3d 911, 918 (9th Cir.1996). Here, Plaintiff’s Monell claim hinges on one

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word in one count in the complaint, which alone is too distended to support

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extrapolation of a policy or custom. A court may not “supply essential

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elements of the claim that were not initially pled.” Ivey v. Bd. of Regents, 673

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F.2d 266, 268 (9th Cir. 1982). Finally, a court cannot consider as allegations

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facts Plaintiff asserts for the first time in his opposition. See Schneider v.

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Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“In determining
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the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the

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complaint to a plaintiff’s moving papers, such as a memorandum in

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opposition to a defendant’s motion to dismiss.”) (emphasis in original)).

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Accordingly, the Court RECOMMENDS that Defendants’ Motion to

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Dismiss all of Plaintiff’s claims be GRANTED and all counts as to Defendant

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County of San Diego be DISMISSED WITHOUT PREJUDICE.

V.

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CONCLUSION

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For the reasons set forth herein, it is RECOMMENDED that:

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1) Defendant’s Motion be GRANTED as to all of the claims set forth in

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his complaint.
This Report and Recommendation will be submitted to the United

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States District Judge assigned to this case, pursuant to the provisions of 28

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U.S.C. § 636(b)(1). Any party may file written objections with the court and

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serve a copy on all parties by July 24, 2017. The document shall be

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captioned “Objections to Report and Recommendation.” Any reply to the

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objections shall be served and filed by July 31, 2017.

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The parties are advised that failure to file objections within the

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specified time may waive the right to raise those objections on appeal of the

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court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated: July 7, 2017

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