Strode v. County of San Diego et al

Filing 33

ORDER Regarding Motion to Dismiss First Amended Complaint and Strike Paragraphs 40-45, 64 [Doc. No. 29 ]. Signed by Judge Cathy Ann Bencivengo on 2/11/2019. (anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSHUA STRODE,

Case No.: 18cv670-CAB-NLS
Plaintiff,

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v.

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ORDER REGARDING MOTION TO
DISMISS FIRST AMENDED
COMPLAINT AND STRIKE
PARAGRAPHS 40-45, 64 [Doc. No.
29]

COUNTY OF SAN DIEGO; NICOLAI
RAMOS; WILLIAM KEARNEY II;
TANNER SHERMAN; sheriff's Deputy
S. DE LA TORRE; Sheriff's Deputy
MORGAN; Sheriff's Deputy STEVENS;
Sheriff's Sergeant MICHAEL LAWSON;
Sheriff's Sergeant DOUTHITT; Sheriff's
Nurse CUARESMA ; Sheriff's Nurse
CABACUNGAN; CARRIE HOGAN,

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Defendants.

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This lawsuit arises out of a use-of-force incident that occurred on June 2, 2017 at

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the San Diego Central Jail. Pending before the Court is the motion to dismiss the First

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Amended Complaint (“FAC”) and motion to strike paragraphs 40-45 and 64, filed by

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Defendants County of San Diego, Christian Broussard, Brendale Cabacungan, June

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Cuaresma, Servando De La Toree, John Douthitt, William Kearney, Michael Lawson,

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David Morgan, Nicolai Ramos, Tanner Sherman and Scott Stevens (“Defendants”).

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[Doc. No. 29.]

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PROCEDURAL HISTORY

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On April 3, 2018, Plaintiff Joshua Strode (“Plaintiff”) brought suit against

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Defendants alleging seven causes of action. The case was initially assigned to District

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Judge Dana M. Sabraw. [Doc. No. 1.] Defendants moved to dismiss Plaintiff’s claims

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for Deliberate Indifference to Serious Medical Needs, his Monell1 claims, and his claim

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for Negligent Training and Supervision against Sergeant Defendants. On October 9,

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2018, District Judge Sabraw dismissed, with leave to amend, Plaintiff’s Deliberate

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Indifference to Serious Medical Needs claim and his Monell claim for Failure to Train.

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On October 19, 2018, Plaintiff filed the FAC which no longer included a Deliberate

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Indifference to Serious Medical Needs claim, but re-alleged Plaintiff’s Monell claim for

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Failure to Train.

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On November 2, 2018, Defendants filed a motion to dismiss the FAC and strike

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certain paragraphs. [Doc. No. 29.] On December 14, 2018, Plaintiff filed an opposition.

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[Doc. No. 30.] On December 21, 2018, Defendants filed a reply to the opposition. [Doc.

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No. 31.] On February 5, 2019, the case was transferred to District Judge Cathy Ann

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Bencivengo. [Doc. No. 32.]

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ALLEGATIONS OF THE FAC

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On June 2, 2017, Plaintiff was arrested by San Diego State University police

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officer Carrie Hogan for public intoxication and taken to the San Diego Central Jail.

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[Doc. No. 27 at ¶¶ 1, 26.] Plaintiff alleges that upon exiting the patrol car and entering

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the sally port at the jail, Officer Hogan briefed unspecified “jail staff” on Plaintiff’s

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condition including that he was unable to take care of himself and had a fractured

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Monell v. Dept. of Soc. Serv., 436 U.S. 658, 694 (1978).
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clavicle. [Doc. No. 27 at ¶ 27.] When Officer Hogan went to remove Plaintiff’s

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handcuffs, it was at that point that Deputy Ramos first entered the sally port. Id.

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Plaintiff further alleges that Deputy Ramos took hold of Plaintiff’s arm and when

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Plaintiff turned, Deputy Ramos “threw him” to the ground and he hit a nearby wall. [Doc.

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No. 27 at ¶ 28.] Other deputies then entered the sally port to assist Deputy Ramos

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including Deputies Kearney, Sherman, Broussard, and De La Torre. [Doc. No. 27 at ¶

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29.] Sergeants Lawson and Douthitt entered the sally port at some point after the incident

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between Plaintiff and Deputy Ramos began. [Doc. No. 27 at ¶ 33.] Deputies Ramos and

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Kearney kneed, punched, and tased him. [Doc. No. 27 at ¶ 29.] After Plaintiff was

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restrained, deputies took him to be seen by Nurses Cuaresma and Cabacungan. [Doc. No.

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27 at ¶ 30.] Once the nurses examined and cleared him, he was placed in a sobering cell

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by Deputies Ramos, Kearney, Sherman, Morgan, and Stevens. [Doc. No. 27 at ¶¶ 31, 32.]

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Deputies placed Plaintiff in the cell in a prone position with his arms behind his back and

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Deputy Kearney pressed on Plaintiff using an electric shield. [Doc. No. 27 at ¶ 32.]

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Plaintiff alleges that the incident in the sally port is similar to four other incidents.

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All four incidents are in the patrol context, not the jail context. Two of these alleged

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incidents were settled by the County of San Diego and one occurred in 2018, after the

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incident in question. [Doc. No. 27 at ¶¶ 35-39.] Plaintiff also references in-custody deaths

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and sets forth various statistics set forth in a local newspaper. [Doc. No. 27 at ¶¶ 40-45.]

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DISCUSSION

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A. Legal Standard.

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Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the

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defense that the complaint “fail[s] to state a claim upon which relief can be granted”—

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generally referred to as a motion to dismiss. The Court evaluates whether a complaint

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states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil

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Procedure 8(a)(2), which requires a “short and plain statement of the claim showing that

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the pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual

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allegations,’ . . . it [does] demand . . . more than an unadorned, the defendant-unlawfully3
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harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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“To survive a motion to dismiss, a complaint must contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.

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(quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially

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plausible when the collective facts pled “allow . . . the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Id. There must be

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“more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely

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consistent with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id.

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(quoting Twombly, 550 U.S. at 557). The Court need not accept as true “legal

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conclusions” contained in the complaint, id., or other “allegations that are merely

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conclusory, unwarranted deductions of fact, or unreasonable inferences,” Daniels-Hall v.

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Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).

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Pursuant to Federal Rule of Procedure Rule 12(f), the Court may strike “from any

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pleading any insufficient defense or any redundant, immaterial, impertinent, or

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scandalous matter.” Fed.R.Civ.P. 12(f). Motions to strike generally will not be granted

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unless it is clear that the matter to be stricken could not have any possible bearing on the

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subject matter of the litigation. See LeDuc v. Kentucky Central Life Insurance Co., 814

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F.Supp. 820, 830 (N.D.Cal.1992). Allegations “supplying background or historical

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material or other matter of an evidentiary nature will not be stricken unless unduly

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prejudicial to defendant.” Id. Moreover, allegations which contribute to a full

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understanding of the complaint as a whole need not be stricken. See id.

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B. Analysis
One of Plaintiff’s claims under Monell is that County officials were deliberately

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indifferent to the need for training, supervision and discipline of its law-enforcement

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employees and agents. [Doc. No. 27 at 61-65.]

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“[A]s to a municipality, ‘the inadequacy of police training may serve as the basis

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for § 1983 liability only where the failure to train amounts to deliberate indifference to
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the rights of persons with whom the police come into contact.’” Flores v. County of Los

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Angeles, 758 F.3d 1154, 1158 (9th Cir. 2014) (quoting City of Canton v. Harris, 489 U.S.

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378, 388 (1989)). This means Plaintiff “’must demonstrate a conscious or deliberate

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choice on the part of a municipality in order to prevail on a failure to train claim.’” Id.

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(quoting Price v. Sery, 513 F.3d 962, 973 (9th Cir. 2008)) (internal quotation marks

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omitted). “Satisfying this standard requires proof that the municipality had actual or

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constructive notice that a particular omission in their training program will cause

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municipal employees to violate citizens’ constitutional rights.” Kirkpatrick v. Cty. Of

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Washoe, 843 F.3d 784, 794 (9th Cir. 2016)(en banc)(internal quotation marks, alterations

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and citations omitted). In order “to demonstrate that the municipality was on notice of a

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constitutionally significant gap in its training, it is ordinarily necessary for a plaintiff to

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demonstrate a pattern of similar constitutional violations by untrained employees.” Id.

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(internal quotation marks omitted).

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In the original complaint, Plaintiff did not plead any additional instances of

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misconduct as a result of the County’s alleged failure to train its employees. As a result,

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District Judge Sabraw granted the motion to dismiss that claim, with leave to amend.

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Now, in the FAC, Plaintiff has alleged four additional instances of misconduct as a result

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of the County’s failure to train its employees. The question for the Court is whether

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those instances “demonstrate a pattern of similar constitutional violations by untrained

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employees.” Id.

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“A ‘pattern of similar constitutional violations by [similarly situated] employees is

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ordinarily necessary to demonstrate deliberate indifference.’ ” Flores v. Cnty. of Los

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Angeles, 759 F.3d 1154, 1159 (9th Cir. 2014) (quoting Connick, 131 S. Ct. at 1360). The

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pattern of violations must be very specific. For example, in Connick, the prosecutors

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concealed a crime lab report in violation of Brady v. Maryland, 373 U.S. 83 (1963).

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Connick, 131 S. Ct. at 1358. The state courts had overturned four other convictions from

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that prosecutor's office for Brady violations. id. at 1360. But these violations did not put

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the prosecutor's office on notice that its training was “deficient in a particular respect”
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because “[n]one of those cases involved failure to disclose blood evidence, a crime lab

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report, or physical or scientific evidence of any kind.” id. Thus, Connick indicates that the

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pattern cannot consist of generic misconduct; rather, it must be a pattern of incidents that

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closely resemble the underlying misconduct in a particular case. See also Flores, 759

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F.3d at 1159 (requiring “a pattern of sexual assaults perpetrated by Los Angeles Sheriff's

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deputies”); Walker v. City of New York, 974 F.2d 293, 299-300 (2d Cir. 1992) (requiring

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a pattern of perjury by police officers).

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Here, Plaintiff has alleged four incidents that, while they involve alleged police

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misconduct, appear to be in different situations from the one alleged here. [Doc. No. 27

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at ¶¶ 35 - 38.] First, all four incidents were in the context of officers on patrol, not in the

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jail context. [Compare ¶27 with ¶¶ 35-38.] Moreover, two of the incidents were settled

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and did not result in a determination of liability. [Doc. No. 27 at ¶¶ 36, 37.] Finally, the

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fourth incident arose after the incident in this case and, therefore, could not have provided

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the County with notice of an alleged failure to train. [Doc. No. 27 at ¶ 38.] Plaintiff has

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simply failed to show how these four incidents are “similar” to his situation, and has

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failed to allege any prior incident, in a jail setting, where Sheriff’s deputies were deemed

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liable for constitutional violations dealing with the use of force.

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In addition, Plaintiff sets forth statistics reported in a local newspaper regarding

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inmate in-custody deaths. [Doc. No. 27 at 40-45, 64.] It is not at all clear, however,

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what caused those deaths, or how in-custody deaths (including suicide-related deaths) are

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“similar” to the alleged use-of-force incident involving Plaintiff. Plaintiff has failed to tie

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those alleged statistics to his own alleged constitutional violation.

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Finally, Plaintiff alleges that because nine county employees were involved in this

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incident, that fact demonstrates the existence of a custom or policy and the need for

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adequate training. [Doc. No. 27 at ¶62.] However, the fact that multiple officers took

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part in a single incident (occurring in the same day as part of the same arrest and

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detention) cannot be considered separate incidents from which one could infer a pattern

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of violations. See Dillman v. Tuolumne County, No. 1:13cv00404 LJO SKO, 2013 WL
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3832736 (E.D. Cal., July 23, 2013), at *5 (plaintiff’s suggestion that because multiple

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officers took part in the events of that day there was a pattern of similar violations by the

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employees failed to satisfy the pattern necessary for a failure to train claim without first

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satisfying the much more stringent test for single-incident liability). Here, District Judge

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Sabraw previously ruled that this incident does not meet the standard for single-incident

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liability [see Doc. No. 26 at 7], and the allegation that nine officers were involved does

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not show a pattern of constitutional violations.

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CONCLUSION
For the reasons set forth above, the motion to dismiss the Monell claim for failure

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to train is GRANTED WITH LEAVE TO AMEND. This will be Plaintiff’s final

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opportunity to amend the claim. Should Plaintiff wish to amend the claim, he shall file a

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Second Amended Complaint (“SAC”) by March 1, 2019. The motion to strike

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Paragraphs 40-45 and 64 is GRANTED WITHOUT PREJUDICE to reasserting them

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in the SAC if Plaintiff can allege a connection between those statistics and the use-of-

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force incident involving Plaintiff. If no SAC is filed by March 1, 2019, then Defendants

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shall answer the FAC, as amended by this Order, by March 8, 2019.

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IT IS SO ORDERED.
Dated: February 11, 2019

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