Grizzle v. San Diego, County of et al

Filing 120

ORDER: (1) Overruling Objections, (2) Adopting Report and Recommendation, and (3) Granting in part and denying in part Defendants' motion to dismiss and strike Plaintiff's Third Amended Complaint (ECF Nos. 111 , 116 , 117 , 118 . Signed by Judge Janis L. Sammartino on 8/17/2020. (jpp)

Case 3:17-cv-00813-JLS-RBM Document 120 Filed 08/17/20 PageID.720 Page 1 of 9

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

Case No.: 17-CV-813 JLS (RBM)

12
13

ORDER: (1) OVERRULING
OBJECTIONS,
(2) ADOPTING REPORT AND
RECOMMENDATION, AND
(3) GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS AND STRIKE
PLAINTIFF’S THIRD AMENDED
COMPLAINT

ELLIOT SCOTT GRIZZLE,
Plaintiff,

14
15

v.

16

COUNTY OF SAN DIEGO, et al.,

17

Defendant.

18
19

(ECF Nos. 111, 116, 117, 118)

20
21

Presently before the Court is Defendants County of San Diego, Sheriff William

22

Gore, Lieutenant Froistad, Lieutenant Lovelace, and Aaron Boorman’s Motion to Dismiss

23

and Strike Plaintiff’s Third Amended Complaint (“Mot.,” ECF No. 111). Also before the

24

Court is Magistrate Judge Ruth Bermudez Montenegro’s Report and Recommendation

25

(“R&R,” ECF No. 116) advising the Court to grant in part and deny in part the Motion to

26

Dismiss and to deny the Motion to Strike, as well as Plaintiff Elliot Scott Grizzle’s (“Pl.’s

27

Obj.,” ECF No. 117) and Defendants’ (“Defs.’ Obj.,” ECF No. 118) Objections to

28

Magistrate Judge Montenegro’s R&R and Defendants’ Reply to Plaintiff’s Objections
1
17-CV-813 JLS (RBM)

Case 3:17-cv-00813-JLS-RBM Document 120 Filed 08/17/20 PageID.721 Page 2 of 9

1

(“Reply,” ECF No. 119).

2

Complaint (“TAC,” ECF No. 110), Magistrate Judge Montenego’s R&R, the Parties’

3

arguments, and the law, the Court OVERRULES Plaintiff’s and Defendants’ Objections,

4

ADOPTS the R&R in its entirety, and GRANTS IN PART AND DENIES IN PART the

5

Defendants’ Motion.

6

Having carefully considered Plaintiff’s Third Amended

BACKGROUND

7

Magistrate Judge Montenegro’s R&R contains a thorough and accurate recitation of

8

the facts and procedural history underlying the instant Motion. See R&R at 2–9. This

9

Order incorporates by reference the background as set forth therein.

10

LEGAL STANDARD

11

Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

12

court’s duties in connection with a magistrate judge’s report and recommendation. The

13

district court must “make a de novo determination of those portions of the report or

14

specified proposed findings or recommendations to which objection is made,” and “may

15

accept, reject, or modify, in whole or in part, the findings or recommendations made by the

16

magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667,

17

673–76 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). In the absence

18

of timely objection, however, the Court “need only satisfy itself that there is no clear error

19

on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72

20

advisory committee’s note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th

21

Cir. 1974)).

22

ANALYSIS

23

Plaintiff’s operative Third Amended Complaint alleges four causes of action against

24

Defendants for: (1) violation of Plaintiff’s rights under the Due Process Clause of the

25

Fourteenth Amendment as to his placement in the administrative segregation housing unit

26

(“Ad-Seg”); (2) violation of Plaintiff’s Eighth and Fourteenth Amendment rights premised

27

on sleep deprivation resulting from his confinement in Ad-Seg; (3) violation of Plaintiff’s

28

Eighth and Fourteenth Amendment rights premised on prevention from exercising; and
2
17-CV-813 JLS (RBM)

Case 3:17-cv-00813-JLS-RBM Document 120 Filed 08/17/20 PageID.722 Page 3 of 9

1

(4) violation of Plaintiff’s Eighth and Fourteenth Amendment Rights premised on Plaintiff

2

being forced to choose between sleep and exercise. See TAC ¶¶ 43–76.

3

Magistrate Judge Montenegro recommends that the Court dismiss with prejudice

4

Plaintiff’s first cause of action against Sheriff Gore and Sergeant Boorman, dismiss without

5

prejudice all causes of action against Lieutenant Froistad, and dismiss with prejudice

6

Plaintiff’s requests for injunctive and declaratory relief. See R&R at 12–20. Magistrate

7

Judge Montenegro otherwise recommends that the Motion be denied and that Defendants

8

County of San Diego, Sheriff Gore, Lieutenant Lovelace, and Sergeant Boorman be

9

directed to file an Answer to Plaintiff’s Third Amended Complaint. See id.

10

Plaintiff “reiterates and reasserts all prior arguments in Plaintiff’s objections and

11

oppositions to the defendant[]s.” 1 Pl.’s Obj. at 1. Defendants separately object to

12

Magistrate Judge Montenegro’s recommendations that the Court deny the Motion as to

13

(1) Plaintiff’s second, third, and fourth causes of action against Lieutenant Lovelace and

14

Sergeant Boorman; and (2) Plaintiff’s request for punitive damages. See generally Defs.’

15

Obj. The Court reviews de novo those portions of Magistrate Judge Montenegro’s R&R

16

to which the Parties object and reviews for clear error the remainder of Magistrate Judge

17

Montenegro’s R&R.

18

I.

Plaintiff’s Objections

19

Plaintiff “reiterates and reasserts all prior arguments in Plaintiff’s objections and

20

oppositions to the defendant[]s.” Pl.’s Obj. at 1. Defendants urge the Court not to consider

21

Plaintiff’s objections on the grounds that Plaintiff has failed to “file specific written

22

objections” as required under Federal Rule of Civil Procedure 72(b)(2). See Reply at 1

23
24
25
26
27
28

1

Plaintiff previously objected to Magistrate Judge Montenegro’s recommendations that the Court dismiss
(1) Plaintiff’s first cause of action as to Sheriff Gore and Sergeant Boorman, see ECF No. 100 at 8; see
generally ECF No. 107; and (2) Plaintiff’s requests for injunctive and declaratory relief. See ECF No.
100 at 10–11. On de novo review, the Court explicitly overruled Plaintiff’s objections as to his first cause
of action as to Sheriff Gore and Plaintiff’s requests for injunctive and declaratory relief. See ECF No. 108
at 12–13, 14. The Court has not addressed Plaintiff’s objection as to the dismissal of his first cause of
action against Sergeant Boorman because Sergeant Boorman’s motion to dismiss was denied as moot
following the filing of Plaintiff’s operative Third Amended Complaint. See ECF No. 115.
3
17-CV-813 JLS (RBM)

Case 3:17-cv-00813-JLS-RBM Document 120 Filed 08/17/20 PageID.723 Page 4 of 9

1

(quoting Fed. R. Civ. P. 72(b)(2)) (emphasis in original). The Court agrees that this attempt

2

to incorporate by reference prior arguments is not proper; accordingly, the Court would be

3

well within its discretion to decline to address Plaintiff’s “Objection.” See, e.g., H. v. Dep’t

4

of Educ., No. CV 14-00143 ACK-KSC, 2016 WL 4522177, at *4 n.2 (D. Haw. Aug. 29,

5

2016) (declining to incorporate by reference into objection to findings and recommendation

6

arguments raised in prior filings); Roth v. Meridian Fin. Network, Inc., No. CIV.07-00045

7

JMS/BMK, 2008 WL 3850478, at *2–3 (D. Haw. Aug. 19, 2008) (declining to incorporate

8

by reference into objection to findings and recommendation arguments raised in opposition

9

to motion); see also Swanson v. U.S. Forest Serv., 87 F.3d 339, 345 (9th Cir. 1996) (“[T]he

10

incorporation of substantive material by reference is not sanctioned by the federal rules.”);

11

McCracken v. Thor Motor Coach Inc., No. CV-15-00029-PHX-ROS, 2015 WL 13566918,

12

at *2 (D. Ariz. Dec. 3, 2015) (“Courts ‘are not like pigs, hunting for truffles buried in

13

briefs,’ . . . and it would not be fair to require opposing counsel to engage in hunting

14

expeditions either.

15

generally ignored by the Court.”) (quoting Indep. Towers of Wash. v. Washington, 350 F.3d

16

925, 929 (9th Cir. 2003)).

Incorporating prior arguments by reference in motion papers is

17

In any event, Plaintiff’s “Objection” does not change the Court’s conclusion. Judge

18

Montenegro recommends that the Court dismiss with prejudice Plaintiff’s first cause of

19

action against Sheriff Gore and Sergeant Boorman and Plaintiff’s requests for injunctive

20

and declaratory relief. See R&R at 12–13, 15, 17–18. As indicated above, see supra note

21

1, the Court previously overruled Plaintiff’s objections to the dismissal of his first cause of

22

action against Sheriff Gore and requests for injunctive and declaratory relief, see ECF No.

23

108 at 12–13, 14, and Plaintiff has not alleged new facts supporting his first cause of action

24

against Sheriff Gore or that there is any reasonable expectation that he will again be

25

subjected to the Ad-Seg conditions at SDCJ. Compare ECF No. 88, with TAC; see also

26

R&R at 6, 12, 17–18. On de novo review, the Court therefore agrees with Magistrate Judge

27

Montenegro’s recommendations that the Court dismiss with prejudice Plaintiff’s first cause

28

of action against Sheriff Gore and Plaintiff’s requests for injunctive and declaratory relief.
4
17-CV-813 JLS (RBM)

Case 3:17-cv-00813-JLS-RBM Document 120 Filed 08/17/20 PageID.724 Page 5 of 9

1

As for Plaintiff’s first cause of action against Sergeant Boorman, the Court

2

previously concluded that the March 30, 2017 letter “does not appear to address Plaintiff’s

3

due process cause of action,” see ECF No. 108 at 13 (citing SAC Ex. A), meaning Plaintiff

4

has failed to allege that Sergeant Boorman was on notice of Plaintiff’s allegedly

5

unconstitutional placement and continued detention in Ad-Seg. The Court therefore

6

concludes on de novo review that the Third Amended Complaint’s allegations concerning

7

Sergeant Boorman fail plausibly to allege that Sergeant Boorman had knowledge of

8

Plaintiff’s placement in Ad-Seg, that Sergeant Boorman personally participated in

9

Plaintiff’s placement in Ad-Seg, or that there exists a sufficient causal connection between

10

Sergeant Boorman’s actions and Plaintiff’s placement in Ad-Seg. See R&R at 15. The

11

Court therefore OVERRULES Plaintiff’s objections, ADOPTS Magistrate Judge

12

Montenegro’s recommendations, and DISMISSES WITH PREJUDICE Plaintiff’s first

13

cause of action against Sheriff Gore and Sergeant Boorman and Plaintiff’s requests for

14

injunctive and declaratory relief.

15

II.

Defendants’ Objections

16

A.

17

Magistrate Judge Montenegro concludes that Plaintiff’s Third Amended Complaint

18

“asserts sufficient allegations to establish a causal connection between Lovelace’s

19

classification decision and the unlawful conditions of confinement” and, consequently,

20

“recommends Defendants’ Motion to Dismiss the second, third, and fourth causes of action

21

against Lieutenant Lovelace be DENIED.” R&R at 14 (emphasis in original). Defendants

22

object on the grounds that the Third Amended Complaint’s allegations concerning

23

Lieutenant Lovelace’s “aware[ness]” of conditions of confinement within Ad-Seg “does

24

not include facts that show Lieutenant Lovelace knew of the type of constitutional

25

violations allegedly occurring in the unit,” meaning “[f]acts supporting Lieutenant

26

Lovelace’s alleged indifference are absent from the TAC.” Defs.’ Obj. at 6 (emphasis in

27

original).

28

///

Second, Third, and Fourth Causes of Action Against Lieutenant Lovelace

5
17-CV-813 JLS (RBM)

Case 3:17-cv-00813-JLS-RBM Document 120 Filed 08/17/20 PageID.725 Page 6 of 9

1

Plaintiff alleges that Lieutenant Lovelace “was employed as a peace officer by the

2

County of San Diego Sheriff Department . . . in the ‘classification’ section of the San Diego

3

County Central Jail.” TAC ¶ 9. Plaintiff further alleges that “Defendant Lovelace is a

4

supervisor” who “was aware of the constitutionally deficient Ad-Seg. program at the San

5

Diego County Central Jail, but still subjected Plaintiff to the constitutional injury as

6

described below in the Ad-Seg. program through sleep deprivation, lack of outdoor

7

exercise, and forcing inmates to choose between sleep and exercise.” Id.; see also id. ¶¶ 42,

8

57, 66, 73, 75. Plaintiff adds that he “personally spoke to” Lieutenant Lovelace about these

9

issues. See id. ¶¶ 34–35; see also id. ¶¶ 55–56, 64–65, 72.

10

Although Defendants urge that “the TAC is silent on any connection that Lieutenant

11

Lovelace is supposed to have had with the ad-seg housing unit,” Defs.’ Objs. at 6, Plaintiff

12

alleges that Lieutenant Lovelace worked in the “classification” section, see TAC ¶ 9, which

13

was responsible for placing inmates in Ad-Seg. See id. ¶ 18. To the extent Defendants

14

contend that Lieutenant Lovelace was unaware of the conditions of confinement of the

15

wards to which she assigned inmates, that argument strains credulity, particularly when

16

coupled with Plaintiff’s allegations that he personally spoke with Lieutenant Lovelace

17

about the conditions of his confinement in that unit. Accordingly, the Court concludes on

18

de novo review that Plaintiff adequately states a claim against Lieutenant Lovelace for

19

deliberate indifference to the allegedly unconstitutional conditions of his confinement in

20

Ad-Seg, including sleep deprivation, denial of yard time, and choice between sleep and

21

exercise.

22

Magistrate Judge Montenegro’s recommendation, and DENIES Defendants’ Motion as to

23

Plaintiff’s second, third, and fourth causes of action against Lieutenant Lovelace.

The Court therefore OVERRULES Defendants’ objection, ADOPTS

24

B.

25

Magistrate Judge Montenegro similarly recommends that the Court deny

26

Defendants’ Motion as to Plaintiff’s second, third, and fourth causes of action against

27

Sergeant Boorman. See R&R at 16. Again, Defendants contend that “the TAC is silent on

28

any connection that Sergeant Boorman is supposed to have had with [the ad-seg] unit.”

Second, Third, and Fourth Causes of Action Against Sergeant Boorman

6
17-CV-813 JLS (RBM)

Case 3:17-cv-00813-JLS-RBM Document 120 Filed 08/17/20 PageID.726 Page 7 of 9

1

Defs.’ Obj. at 2. Specifically, Defendants argue that “there are no facts to support any

2

deliberate indifference by Sergeant Boorman before Plaintiff’s March 30, 2017 letter,” id.,

3

and “the letter does not contain adequate facts that would lead an ‘objectively reasonable

4

officer’ in the same position as Sergeant Boorman to conclude a constitutional violation

5

was occurring” or “overcome the absence facts supporting of causation necessary for

6

individual liability.” Id. at 2–3. Defendant also argue that the “TAC also does not allege

7

any facts necessary to show that Sergeant Boorman had the authority or ability to correct

8

the alleged deprivations as required for causation under supervisory liability.” Id. at 5.

9

As for Defendant’s first argument, the Court concludes on de novo review that the

10

March 30, 2017 letter to which Sergeant Boorman replied contained sufficient facts to put

11

an objectively reasonable officer on notice that a constitutional violation was occurring.

12

Plaintiff’s letter goes into considerable detail about the Ad-Seg schedule, see TAC Ex. A,

13

which the Court previously concluded was adequate to state a claim against the County for

14

violation of Plaintiff’s Fourteenth Amendment rights. See ECF No. 108 at 6–8. Further,

15

the March 30, 2017 letter is not the sole extent of Plaintiff’s allegations against Sergeant

16

Boorman. As with Lieutenant Lovelace, Plaintiff alleges that he personally spoke with

17

Sergeant Boorman about the conditions of his confinement in Ad-Seg.

18

¶¶ 34–35, 55–56, 64–65, 72–73. At this stage, the Court therefore concludes on de novo

19

review that Plaintiff alleges sufficient facts to support his allegation that Sergeant Boorman

20

was aware of the alleged constitutional violations caused by Plaintiff’s continued detention

21

in Ad-Seg.

See TAC

22

Regarding Defendants’ second argument, the Court concludes on de novo review

23

that, “[b]ased on the allegations of the [Third Amended] Complaint, it is reasonable to infer

24

that . . . Sergeant [Boorman] w[as a] supervisor[] within the department.” See Avalos v.

25

Hutchinson, No. 219CV00049RGKRAOX, 2019 WL 6721620, at *4 (C.D. Cal. July 19,

26

2019). “Whether [Plaintiff] ultimately will be able to establish the claimed knowledge or

27

‘blind eye’ acquiescence in the alleged [constitutional violations] is uncertain, but given

28

the liberal requirements of notice pleading, no further specificity is expected of the
7
17-CV-813 JLS (RBM)

Case 3:17-cv-00813-JLS-RBM Document 120 Filed 08/17/20 PageID.727 Page 8 of 9

1

complaint.” See Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th

2

Cir. 2007).

3

Magistrate Judge Montenegro’s recommendation, and DENIES Defendants’ Motion as to

4

Plaintiff’s second, third, and fourth causes of action against Sergeant Boorman.

The Court therefore OVERRULES Defendants’ objection, ADOPTS

5

C.

6

Finally, Magistrate Judge Montenegro recommends that Defendant’s Motion to

7

strike Plaintiff’s demand for punitive damages be denied because Plaintiff allegations “that,

8

despite complaining verbally and in writing concerning his Ad-Seg confinement and the

9

conditions of confinement, the Individual Defendants failed to take any action to rectify

10

the issues,” which “suffices to show reckless/callous indifference to Plaintiffs rights under

11

the Fourteenth Amendment.” R&R at 18–19 (citing Matthews v. Holland, No. 1:14-cv-

12

1959-SKO-PC, 2017 WL 1093847, at *6–7 (E.D. Mar. 23, 2017); R&R at 12–16).

13

Defendants object that the “punitive damages allegations against objecting Defendants in

14

the TAC based on deficient causes of action are inappropriate and should be stricken.”

15

Defs.’ Obj. at 2. Because the Court concludes on de novo review that Plaintiff’s second,

16

third, and fourth causes of action against Lieutenant Lovelace and Sergeant Boorman are

17

sufficient to survive dismissal, see supra Sections II.A–B, the Court OVERRULES

18

Defendants’ objection, ADOPTS Magistrate Judge Montenegro’s recommendation, and

19

DENIES Defendants’ Motion to strike Plaintiff’s request for punitive damages against

20

Lieutenant Lovelace and Sergeant Boorman.

21

III.

Plaintiff’s Request for Punitive Damages

Remainder of the R&R

22

The Parties do not object to the remainder of Magistrate Judge Montenegro’s

23

recommendations, including that the Court dismiss without prejudice all causes of action

24

against Lieutenant Froistad.

25

remainder of Magistrate Judge Montenegro’s R&R.

26

///

27

///

28

///

Having found no clear error, the Court ADOPTS the

8
17-CV-813 JLS (RBM)

Case 3:17-cv-00813-JLS-RBM Document 120 Filed 08/17/20 PageID.728 Page 9 of 9

1

CONCLUSION

2

In light of the foregoing, the Court:

3

1.

OVERRULES Plaintiff’s Objections (ECF No. 117);

4

2.

OVERRULES Defendants’ Objections (ECF No. 118);

5

3.

ADOPTS in its entirety Magistrate Judge Montenegro’s R&R (ECF No. 116);

6

4.

GRANTS IN PART AND DENIES IN PART Defendants’ Motion (ECF

7

No. 111). Specifically, the Court DISMISSES WITHOUT PREJUDICE all causes of

8

action against Defendant Froistad and DISMISSES WITH PREJUDICE Plaintiff’s first

9

cause of action against Sheriff Gore and Sergeant Boorman and Plaintiff’s requests for

10
11

injunctive and declaratory relief. Defendants’ Motion is otherwise DENIED; and
5.

ORDERS Defendants County of San Diego, Sheriff Gore, Lieutenant

12

Lovelace, and Sergeant Boorman to file an Answer to Plaintiffs Third Amended Complaint

13

pursuant to Federal Rule of Civil Procedure 12(a)(4)(A).

14

IT IS SO ORDERED.

15
16

Dated: August 17, 2020

17
18
19
20
21
22
23
24
25
26
27
28
9
17-CV-813 JLS (RBM)