Lucas v. County of San Diego et al

Filing 11

ORDER RE: Defendants' Motion to Dismiss the First Amended Complaint [Doc. No. 8 ]. Signed by Judge Cathy Ann Bencivengo on 2/16/2021. (anh)

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Case 3:20-cv-01735-CAB-JLB Document 11 Filed 02/16/21 PageID.145 Page 1 of 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MIGUEL LUCAS, Case No.: 20-CV-1735-CAB-JLB Plaintiff, 12 13 v. 14 ORDER RE DEFENDANTS’ MOTION TO DISMISS THE FIRST AMENDED COMPLAINT COUNTY OF SAN DIEGO; MARK GUSTAFSON; and DOES 1-10, 15 [Doc. No. 8] Defendants. 16 17 This matter is before the Court on Defendants County of San Diego and Mark 18 19 20 21 22 Gustafson’s motion to dismiss Plaintiff’s first amended complaint. [Doc. No. 8.] The motion has been fully briefed and the Court finds it suitable for determination on the papers submitted and without oral argument. See S.D. Cal. CivLR 7.1(d)(1). For the reasons set forth below, Defendants’ motion to dismiss is DENIED. I. 23 Plaintiff Miguel Lucas filed this motion against Defendants County of San Diego, 24 25 BACKGROUND Mark Gustafson, and DOES 1 to 101 on September 3, 2020. [Doc. No. 1.] After 26 27 28 1 Pursuant to the FAC, DOES 1 to 10 refers to “the other individual Sheriff’s Deputies who are responsible for Plaintiff’s injuries.” [Doc. No. 6 ¶ 17.] Plaintiff also refers to such Defendants as “DOE Deputy/Nurse Defendants.” [Id.] 1 20-CV-1735-CAB-JLB Case 3:20-cv-01735-CAB-JLB Document 11 Filed 02/16/21 PageID.146 Page 2 of 14 1 Defendants filed a motion to dismiss Plaintiff’s original complaint on December 1, 2020, 2 Plaintiff filed the First Amended Complaint (“FAC”) on December 22, 2020, thereby 3 mooting Defendants’ motion. [Doc. Nos. 5, 6.] The FAC asserts claims for: (1) Violation 4 of the Fourteenth Amendment by Objective Indifference, brought against Defendants 5 Gustafson and DOES 1-10 under 42 U.S.C. § 1983; (2) Violation of the Fourteenth 6 Amendment by Inadequate Mental Health Program, brought against the County of San 7 Diego under 42 U.S.C. § 1983; (3) Negligence, brought against all Defendants; and (4) 8 Intentional Infliction of Emotional Distress, brought against all Defendants. [Doc. No. 6 9 ¶¶ 20–84.] 10 Plaintiff alleges in the FAC that on June 4, 2019, while detained in San Diego County 11 Central Jail’s general population module awaiting trial, he was attacked without 12 provocation by another inmate named Harmon. [Id. ¶¶ 1-3.] Harmon allegedly attacked 13 Plaintiff for at least fifteen minutes, eventually putting him in a chokehold and biting off a 14 portion of Plaintiff’s cheek. [Id. ¶ 3.] Plaintiff alleges that Harmon was a “Level 5” 15 inmate 2 who was improperly housed in the general population module of the jail because 16 the jail was understaffed and did not have enough deputies to properly monitor high-risk 17 inmates. [Id. ¶¶ 4, 8.] According to Plaintiff, Harmon was “initially flagged as a gang 18 member in the Jail Inmate Management System,” and therefore should not have been 19 housed in the general population module pursuant to jail policy. [Id. ¶ 5.] Plaintiff also 20 makes several allegations that Defendants Gustafson and DOE deputies were on notice of 21 Harmon’s declining mental health and increasing aggression prior to the attack: (1) 22 Harmon’s family contacted the jail to inform staff that Harmon was “not in his right mind 23 and had been acting violent towards his family” before his arrest [Id. ¶ 7]; (2) various 24 inmates informed DOE Deputy 1 that Harmon needed mental health treatment [Id. ¶ 2]; (3) 25 Plaintiff’s cellmate told DOE Deputy 2 that Harmon was “acting aggressive and attempting 26 27 2 28 Plaintiff alleges that “Level 5” is the highest security level at Central Jail and is reserved for the most violent inmates. [Doc. No. 6 ¶ 24.] 2 20-CV-1735-CAB-JLB Case 3:20-cv-01735-CAB-JLB Document 11 Filed 02/16/21 PageID.147 Page 3 of 14 1 to fight with other inmates” [Id.]; and (4) Harmon had been reassigned to the general 2 population module “because he was acting aggressive towards other inmates in the initial 3 housing module he was assigned to” [Id. ¶ 5]. Nevertheless, Plaintiff contends that 4 Defendants took no action to separate Harmon from other inmates or prevent any future 5 attack, instead placing him in general population housing. [Id. ¶ 32.] 6 Plaintiff claims that once the attack by Harmon began, Defendants Gustafson and 7 DOE deputies watched the attack on security monitors but did not intervene for fifteen 8 minutes, while other inmates called for the deputies and banged on the module windows. 9 [Id. ¶ 3.] After the attack, Gustafson allegedly told Plaintiff that he saw the fight on the 10 monitors and that Plaintiff “put up a nice fight.” [Id. ¶ 4.] Plaintiff also alleges that jail 11 deputies posed for photos with the portion of Plaintiff’s cheek on the floor that Harmon 12 had bit off during the attack. [Id. ¶ 10.] 13 Following the attack, Plaintiff was taken to the Tri-City emergency room where he 14 was evaluated by P.A. Jackie Luu. [Id. ¶ 9.] P.A. Luu ordered a follow-up appointment 15 for Plaintiff to meet with a plastic surgeon in one to two days and instructed jail medical 16 staff to follow a specific wound care regimen. [Id.] Plaintiff alleges that despite being 17 detained for an additional three months, jail medical staff never arranged for his surgical 18 consult and failed to follow P.A. Luu’s wound care orders. [Id.] As a result, Plaintiff 19 suffered two infections to the wound and now has a “massive keloid scar on his face.” [Id.] 20 On January 5, 2021, Defendants moved to dismiss Plaintiff’s FAC in its entirety. 21 [Doc. No. 8.] Defendants argue that the FAC should be dismissed under Federal Rule of 22 Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, and 23 that Plaintiff’s references to various suicides that allegedly occurred in San Diego County 24 jails should be stricken under Federal Rule of Civil Procedure 12(f). [Id.] 25 II. 26 The familiar standards on a motion to dismiss apply here. To survive a motion to 27 dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted 28 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. LEGAL STANDARD 3 20-CV-1735-CAB-JLB Case 3:20-cv-01735-CAB-JLB Document 11 Filed 02/16/21 PageID.148 Page 4 of 14 1 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, 2 the Court “accept[s] factual allegations in the complaint as true and construe[s] the 3 pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire 4 & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). On the other hand, the Court is 5 “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 6 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nor is the Court “required to accept as 7 true allegations that contradict exhibits attached to the Complaint or matters properly 8 subject to judicial notice, or allegations that are merely conclusory, unwarranted deductions 9 of fact, or unreasonable inferences.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 10 (9th Cir. 2010). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory 11 factual content, and reasonable inferences from that content, must be plausibly suggestive 12 of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 13 (9th Cir. 2009) (quotation marks omitted). 14 III. 15 Defendants move to dismiss Plaintiff’s FAC for the following reasons: (1) Plaintiff 16 pled inconsistent facts between his original complaint and the FAC; 3 (2) Plaintiff cannot 17 establish objective deliberate indifference to his Fourteenth Amendment rights by 18 Defendants; (3) Plaintiff cannot establish causation between Defendants’ actions and his 19 injuries; (4) Gustafson is entitled to qualified immunity from liability; and (5) Plaintiff 20 cannot establish that his injuries were caused by any unlawful County policy or custom as 21 required to sustain a derivative municipal liability claim under § 1983 (the “Monell” claim). 22 [Doc. No. 8-1.] The Court analyzes the sufficiency of each of Plaintiff’s claims in turn. 23 DISCUSSION a. 42 U.S.C. § 1983 Claim Against Gustafson and DOES 1-10 24 Plaintiff’s first claim brought under 42 U.S.C. § 1983 for violation of the Fourteenth 25 26 27 28 3 The Court disagrees with Defendants’ contention that Plaintiff’s allegations in the original complaint and the FAC are “impossible to reconcile” or “clearly contradictory.” [Doc. No. 8-1 at 13-14.] The allegations in the FAC are generally consistent with those in Plaintiff’s original complaint. 4 20-CV-1735-CAB-JLB Case 3:20-cv-01735-CAB-JLB Document 11 Filed 02/16/21 PageID.149 Page 5 of 14 1 Amendment alleges that Defendants Gustafson and DOE Deputy/Nurse Defendants 1-10 2 violated (1) his right to be protected from violence by other inmates and (2) his right to 3 receive adequate medical care while in custody. [Doc. No. 6 ¶¶ 20-42.] 4 i. Claim for Violation of Right to Protection From Other Inmates 5 Pretrial detainees who have not been convicted of any crime have a due process right 6 under the Fourteenth Amendment to be free from violence from other inmates. Castro v. 7 County of Los Angeles, 833 F.3d 1060, 1067 (9th Cir. 2016). “Prison officials have a duty 8 to protect prisoners from violence at the hands of other prisoners because corrections 9 officers have stripped the inmate of virtually every means of self-protection and foreclosed 10 their access to outside aid.” Id. (citing Farmer v. Brennan, 511 U.S. 825, 833 (1994)) 11 (internal quotations omitted). A pretrial detainee bringing a Fourteenth Amendment claim 12 against an individual officer for failing to protect him from violence while in custody must 13 establish the following elements: 14 20 “(1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (4) By not taking such measures, the defendant caused the plaintiff’s injuries. With respect to the third element, the defendant’s conduct must be objectively unreasonable.” Id. at 1071. 21 Plaintiff alleges that Defendants Gustafson and DOE deputies knew Plaintiff was at 22 a substantial risk of being assaulted by Harmon yet failed to take reasonable available 23 measures to abate the risk. [Doc. No. 6 ¶¶ 8, 24.] Plaintiff alleges that a reasonable deputy 24 would have appreciated the risk of harm that Harmon presented to other inmates if placed 25 in general population housing, but Defendants placed Harmon there anyway because “the 26 jail was understaffed and did not have sufficient deputies to monitor ad-seg 27 [administrative-segregation] inmates” like Harmon. [Id. ¶¶ 8, 24-32.] Plaintiff lists 28 reasonable measures that were available to the deputies, such as moving Harmon out of 15 16 17 18 19 5 20-CV-1735-CAB-JLB Case 3:20-cv-01735-CAB-JLB Document 11 Filed 02/16/21 PageID.150 Page 6 of 14 1 general population housing and into an isolated cell or escorting him to medical care, that 2 would have prevented Harmon’s attack. [Id. ¶ 32.] He also claims that a reasonable officer 3 would have intervened immediately once they became aware of an attack on another 4 inmate. [Id.] Plaintiff further alleges that housing Harmon in the general population 5 module violated jail policies that require “assaultive inmates to be housed in ad-seg or 6 isolated cells” and that forbid “housing gang-affiliated inmates like Inmate Harmon in 7 general population modules.” [Id. ¶ 23.] Finally, Plaintiff alleges that Gustafson failed to 8 timely intervene when he initially saw the attack occur on the security monitors, resulting 9 in Plaintiff’s permanent disfigurement and other injuries. [Id. ¶ 32.] 10 Plaintiff has plausibly stated a claim for violation of his Fourteenth Amendment right 11 to be protected from violence by other inmates while in custody. Plaintiff plausibly alleges 12 that despite various indicators that Harmon was unstable and becoming increasingly 13 aggressive toward other inmates (of which Defendants were aware), Defendants made the 14 intentional decision to place Harmon in general population housing. As a result, Plaintiff4 15 was put at substantial risk of suffering serious harm—and in fact did suffer such harm from 16 Harmon’s attack. Plaintiff also states what a reasonable officer in the circumstances would 17 have done to prevent or promptly intervene in the attack. [Id. ¶ 32.] Thus, Plaintiff alleges, 18 Defendants’ failure to take these steps was objectively unreasonable. This is further 19 established by the allegation that Defendants’ actions violated the Sheriff Department’s 20 Security and Control policies, which require deputies to prevent “foreseeable inmate-on- 21 inmate violence.” [Id. ¶ 33.] 22 23 24 25 26 27 28 4 Defendants argue that Plaintiff’s claim must be dismissed because he fails to allege that Defendants’ actions put Plaintiff specifically at risk of harm, as “there was no prior indication that Harmon intended to attack Plaintiff.” [Doc. No. 8-1 at 16.] However, there is no requirement under Castro that solely the plaintiff, and no other inmates, be placed at risk. Plaintiff has plausibly alleged that because Defendants placed Harmon in the general population module, Plaintiff was subjected to conditions of confinement that put him (and all other general population inmates) at substantial risk of harm. The inquiry under Castro focuses on the plaintiff’s conditions of confinement, which in this case would apply to all inmates housed in general population with Harmon. 6 20-CV-1735-CAB-JLB Case 3:20-cv-01735-CAB-JLB Document 11 Filed 02/16/21 PageID.151 Page 7 of 14 1 Defendants argue that Plaintiff fails to allege that Gustafson had any decision- 2 making authority over “the conditions of where Harmon or Plaintiff were housed” or that 3 Gustafson had the ability to intervene in Harmon’s attack on Plaintiff, 5 so Plaintiff cannot 4 establish causation between Gustafson’s actions and Plaintiff’s harm. [Doc. No. 8-1 at 16.] 5 However, Plaintiff alleges that DOE deputies, including Gustafson, were “in charge of 6 Module 5-B” and were “obligated to keep the module safe.” [Doc. No. 6 ¶ 6.] Plaintiff’s 7 allegations are sufficiently plausible to support a reasonable inference that as the deputies 8 “in charge” of the general population module, Defendants had authority to make decisions 9 about the conditions of confinement in that module. 10 Defendants also argue that Plaintiff cannot establish causation because Harmon’s 11 attack is an unforeseeable “superseding cause that breaks the chain of causation” between 12 Defendants’ actions and Plaintiff’s injuries. [Doc. No. 8-1 at 17.] Defendants’ argument 13 ignores twenty-seven-year-old Supreme Court precedent that prison officials have a duty 14 to protect prisoners from violence by other inmates because officials “have stripped the 15 inmate of virtually every means of self-protection and foreclosed their access to outside 16 aid.” Farmer, 511 U.S. at 833. Any risk of harm Plaintiff faced while in custody was 17 created by Defendants’ decisions as to Plaintiff’s conditions of confinement. Therefore, a 18 causal link exists between those conditions and any resulting foreseeable violence. 19 Defendants had a duty to protect Plaintiff from an attack by Harmon, and Plaintiff plausibly 20 alleges that Defendants’ failure to fulfill that duty by taking reasonable preventative 21 measures resulted in Harmon’s eventual attack. Accordingly, Plaintiff’s allegations are 22 legally sufficient to establish a § 1983 claim against Defendants for failure to protect him 23 from violence while in custody. 24 25 26 27 28 5 Defendants argue that Plaintiff’s claim fails because he has not alleged that Gustafson’s fifteen-minute delay in intervening “worsened or exacerbated any of Plaintiff’s injuries.” [Doc. No. 8-1 at 18.] Plaintiff’s factual allegations support a reasonable inference that had a guard intervened at the first possible instance, Plaintiff’s injuries would not have been as severe as they were after enduring fifteen minutes of uninterrupted physical attack by a mentally unstable, increasingly violent inmate. 7 20-CV-1735-CAB-JLB Case 3:20-cv-01735-CAB-JLB Document 11 Filed 02/16/21 PageID.152 Page 8 of 14 1 ii. Claim for Violation of Right to Adequate Medical Care 2 Plaintiff also alleges that he received inadequate medical care for his injuries 3 sustained in the attack by Harmon. “Claims for violations of the right to adequate medical 4 care brought by pretrial detainees against individual defendants under the Fourteenth 5 Amendment must be evaluated under an objective deliberate indifference standard.” 6 Gordon v. City of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018). The plaintiff must 7 establish the same four elements articulated in Castro (as stated above) and must “prove 8 something more than negligence but less than subjective intent—something akin to 9 reckless disregard.” Id. at 1125 (internal citations omitted). 10 Plaintiff’s factual allegations plausibly state all elements required by Castro. 11 Plaintiff alleges that deputies and medical staff at Central Jail were “clearly instructed” by 12 P.A. Luu that Plaintiff required surgical intervention and daily wound care in order for his 13 injuries to heal properly. [Doc. No. 6 ¶ 35.] However, Plaintiff states that he never received 14 a surgical consult as ordered by P.A. Luu. [Id. ¶ 9.] Further, Defendants allegedly failed 15 to change Plaintiff’s wound dressing daily, thereby causing two infections to the wound. 16 [Id. ¶ 38.] Plaintiff also contends that he filed three grievance forms requesting proper 17 medical care, which Defendants ignored. [Id. ¶ 30.] Plaintiff specifies that a reasonable 18 nurse in “DOE Nurse 1’s” position would have followed P.A. Luu’s orders, knowing that 19 Plaintiff was “at risk of infection and impaired skin integrity” if his wound was not properly 20 cared for. [Id. ¶¶ 38-39.] As a result of Defendants’ failure to provide adequate medical 21 care, Plaintiff claims that he suffered a “permanent disfigurement on his face,” two 22 infections to the wound site, and “emotional and mental distress resulting from the 23 incident.” [Id. ¶ 40.] Based on these allegations, Plaintiff has adequately stated a claim 24 that survives the motion to dismiss stage. 25 Accordingly, Defendants’ motion to dismiss Plaintiff’s claim brought under 42 26 U.S.C. § 1983 against Defendants Gustafson and DOES 1-10 is DENIED. 27 /// 28 /// 8 20-CV-1735-CAB-JLB Case 3:20-cv-01735-CAB-JLB Document 11 Filed 02/16/21 PageID.153 Page 9 of 14 1 b. 42 U.S.C. § 1983 Claim Against County of San Diego 2 Plaintiff’s second claim brought under 42 U.S.C. § 1983 for violation of the 3 Fourteenth Amendment alleges that Defendant County of San Diego had a custom or policy 4 of inadequate mental health programs for inmates, which ultimately led to Plaintiff’s harm. 5 [Id. ¶¶ 63-64.] In Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978), the Supreme 6 Court held that a municipality may be liable for a § 1983 violation if the plaintiff can show 7 that a “policy or custom” of the municipality led to his injury. This policy or custom must 8 be a “deliberate choice to follow a course of action . . . made from among various 9 alternatives by the official or officials responsible for establishing final policy with respect 10 to the subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) 11 (plurality opinion). The plaintiff must also demonstrate that the policy or custom was 12 adhered to with “deliberate indifference to the constitutional rights of its inhabitants.” City 13 of Canton v. Harris, 489 U.S. 378, 392 (1989). This deliberate indifference standard is 14 “always an objective inquiry.” Castro, 833 F.3d at 1076. For example, a plaintiff can 15 establish deliberate indifference by showing that “the facts available to city policymakers 16 put them on actual or constructive notice that the particular omission [of adequate training 17 or programs] is substantially certain to result in the violation of the constitutional rights of 18 their citizens.” City of Canton, 489 U.S. at 396. 19 Plaintiff alleges that the County is liable for his harm because it was “on notice that 20 its mental health policies were constitutionally inadequate, yet failed to improve” them, 21 resulting in Harmon’s improper assessment, placement, treatment, and ultimate 22 “breakdown in attacking [Plaintiff].” [Doc. No. 6 ¶¶ 46-47, 65.] As evidence of the 23 County’s alleged “policy or custom” of inadequate mental health treatment for inmates, 24 Plaintiff cites to a report published by Disability Rights California regarding San Diego 25 County jails. [Id. ¶ 45.] The report Plaintiff cites found that the County’s jail system 26 “subjects inmates with mental health needs to a grave risk of psychological and other harms 27 by failing to provide adequate mental health treatment” until their condition deteriorates 28 into “self-harm or having an acute breakdown.” [Id.] Plaintiff also cites to at least ten 9 20-CV-1735-CAB-JLB Case 3:20-cv-01735-CAB-JLB Document 11 Filed 02/16/21 PageID.154 Page 10 of 14 1 publicly reported instances of inmates committing suicide while imprisoned in San Diego 2 County jails as evidence of the County’s “well-established, and long-lasting, pattern of 3 apathy towards mental health inmates.” [Id. ¶¶ 49-62.] 4 Plaintiff has sufficiently alleged that the County of San Diego has an inadequate 5 policy concerning inmates’ mental health, and that the inadequacy of that policy resulted 6 in Harmon being placed in the general population module instead of receiving treatment 7 for his mental health issues. Plaintiff alleges that because of Defendants’ failure to 8 summon care for Harmon, Harmon’s mental condition continued to worsen, culminating 9 in his attack on Plaintiff. [Id. ¶ 46.] Further, Plaintiff plausibly establishes deliberate 10 indifference by citing to the ten instances of inmates committing suicide after jail officials 11 were made aware of the inmates’ mental health issues and failed to provide them with 12 proper treatment. [Id. ¶¶ 49-62.] Plaintiff alleges that based on these events, the County 13 was on notice of the inadequacy of their mental health policy, as it resulted in a pattern of 14 similar failures to prevent “obvious and preventable injuries” to inmates. [Id. ¶ 63.] 15 Accordingly, Plaintiff has stated a Monell claim against the County of San Diego, and 16 Defendants’ motion to dismiss Plaintiff’s § 1983 claim is DENIED. 17 c. Negligence Claim Against All Defendants 18 Plaintiff’s third cause of action alleges that Defendants were negligent in their failure 19 to protect Plaintiff from known assaultive inmates, and in their failure to summon adequate 20 medical care when on notice that an inmate needed such care. [Doc. No. 6 ¶¶ 71-72.] 21 Ordinary negligence “consists of a failure to exercise the degree of care in a given situation 22 that a reasonable person under similar circumstances would employ to protect others from 23 harm.” City of Santa Barbara v. Superior Court, 161 P.3d 1095, 1099 (Cal. 2007). To 24 establish a cause of action for negligence, a plaintiff must show (1) a legal duty to use due 25 care, (2) a breach of such legal duty, and (3) that the breach is the proximate or legal cause 26 of the resulting injury. Kesner v. Superior Court, 384 P.3d 283, 290 (Cal. 2016). 27 As discussed above, Plaintiff adequately alleges that Gustafson and DOE deputies 28 had a duty to protect him from violence at the hands of other inmates, that they failed to 10 20-CV-1735-CAB-JLB Case 3:20-cv-01735-CAB-JLB Document 11 Filed 02/16/21 PageID.155 Page 11 of 14 1 fulfill that duty despite being on notice of Harmon’s increasing aggression, and that their 2 failure to take reasonable steps to prevent or intervene in Harmon’s attack resulted in 3 Plaintiff’s injuries. Plaintiff also plausibly alleges that DOE nurses had a duty to provide 4 him with adequate medical care while he was in custody, that they failed to summon the 5 surgical intervention and daily wound care needed for Plaintiff’s wound to properly heal, 6 and that this failure to provide adequate care resulted in Plaintiff suffering two infections 7 and permanent scarring. Further, because a public entity is “liable for injury proximately 8 caused by an act or omission of an employee of the public entity within the scope of his 9 employment,” CAL. GOV’T CODE § 815.2(a), the County of San Diego is responsible for 10 the deputies’ and nurses’ negligent acts occurring within the scope of their employment at 11 the Central Jail. Accordingly, Plaintiff has plausibly stated a negligence claim against all 12 Defendants, and Defendants’ motion to dismiss the negligence claim is DENIED. 13 14 d. Intentional Infliction of Emotional Distress Claim Against All Defendants 15 Finally, Plaintiff’s fourth cause of action alleges that Defendants are liable for 16 intentional infliction of emotional distress resulting from the attack Plaintiff suffered while 17 in Defendants’ custody. [Doc. No. 6 ¶¶ 78-84.] To establish a claim for intentional 18 infliction of emotional distress, a plaintiff must show “(1) extreme and outrageous conduct 19 by the defendant with the intention of causing, or reckless disregard of the probability of 20 causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional 21 distress; and (3) actual and proximate causation of the emotional distress by the defendant's 22 outrageous conduct.” Hughes v. Pair, 209 P.3d 963, 976 (Cal. 2009) (internal quotations 23 omitted). A defendant’s conduct is “outrageous” when it is so “extreme as to exceed all 24 bounds of that usually tolerated in a civilized community.” Id. “Severe emotional distress” 25 refers to distress “of such substantial [ ] or enduring quality that no reasonable person in 26 civilized society should be expected to endure it.” Id. 27 Plaintiff alleges that Defendants’ conduct was extreme and outrageous because (1) 28 the deputies were on direct notice that Harmon was an assaultive threat to other inmates, 11 20-CV-1735-CAB-JLB Case 3:20-cv-01735-CAB-JLB Document 11 Filed 02/16/21 PageID.156 Page 12 of 14 1 yet placed him in general population housing anyway; (2) the deputies “ignored the pleas 2 and screams from other inmates during the attack, and waited fifteen minutes to interfere 3 despite Deputy Gustafson watching on the monitors”; (3) various deputies took pictures 4 posing with Plaintiff’s cheek after the incident “as if it was a trophy”; and (4) after the 5 surveillance video of the attack was circulated among deputies’ private cell phones, several 6 deputies commented to Plaintiff that the video of the attack was a “doozy” and that Plaintiff 7 could have put up a better fight. [Doc. No. 6 ¶¶ 80-81.] Plaintiff claims that due to 8 Defendants’ conduct, he suffered and sought treatment for emotional and mental distress, 9 including “intrusive thoughts, nightmares, flash backs, night sweats, loss of appetite, and 10 lethargy.” [Id. ¶ 10.] Plaintiff also claims he “reflects back on the humiliation he felt” 11 resulting from the jail deputies taunting him about the surveillance footage of the attack 12 and posing with the portion of his cheek on the floor. [Id.] Plaintiff’s allegations, taken as 13 true, are sufficient to state a plausible claim entitling him to relief for intentional infliction 14 of emotional distress. Further, the County of San Diego may be held liable for the tortious 15 acts of its employees occurring within the scope of their employment. CAL. GOV’T CODE 16 § 815.2(a). Therefore, Defendants’ motion to dismiss Plaintiff’s claim for intentional 17 infliction of emotional distress against all Defendants is DENIED. 18 e. Defendant’s Qualified Immunity Defense 19 Defendants argue that Gustafson is entitled to qualified immunity from liability 20 because his alleged conduct did not violate clearly established law. [Doc. No. 8-1 at 18.] 21 Qualified immunity shields government actors from civil liability under 42 U.S.C. § 1983 22 if “their conduct does not violate clearly established statutory or constitutional rights of 23 which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 24 (1982). “To determine whether an officer is entitled to qualified immunity, a court must 25 evaluate two independent questions: (1) whether the officer’s conduct violated a 26 constitutional right, and (2) whether that right was clearly established at the time of the 27 incident.” Castro, 833 F.3d at 1066 (citing Pearson v. Callahan, 555 U.S. 223, 232 28 (2009)). A right is clearly established when the “contours of the right [are] sufficiently 12 20-CV-1735-CAB-JLB Case 3:20-cv-01735-CAB-JLB Document 11 Filed 02/16/21 PageID.157 Page 13 of 14 1 clear that a reasonable official would understand that what he is doing violates that right.” 2 Id. at 1067 (citing Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003)). 3 The Supreme Court has long recognized that inmates have a clearly established 4 “right to be free from violence at the hands of other inmates.” Id.; see also Farmer, 511 5 U.S. at 833 (“[P]rison officials have a duty . . . to protect prisoners from violence at the 6 hands of other prisoners.”). The “contours” of that right require “only that the individual 7 defendants take reasonable measures to mitigate the substantial risk to [the inmate].” 8 Castro, 833 F.3d at 1067. Thus, a prison official violates the inmate’s right if he “knows 9 that inmates face a substantial risk of serious harm and disregards that risk by failing to 10 take reasonable measures to abate it.” Id. (quoting Clem v. Lomeli, 566 F.3d 1177, 1182 11 (9th Cir. 2009)). As discussed above, Plaintiff has plausibly alleged that Defendants 12 Gustafson and DOE Deputies were aware that Harmon posed a substantial risk of serious 13 harm to Plaintiff and all other inmates in general population housing, yet they failed to take 14 reasonable measures to mitigate that risk. Taking Plaintiff’s allegations as true, Defendants 15 violated Plaintiff’s clearly established constitutional right to protection from violence at 16 the hands of other inmates. Accordingly, Defendants’ argument that Gustafson is shielded 17 from liability by a qualified immunity defense fails at this stage of the proceedings. 18 f. Defendant’s Motion to Strike Under FRCP 12(f) 19 Federal Rule of Civil Procedure 12(f) provides that upon a party’s motion or of its 20 own accord, the Court may strike from a pleading an insufficient defense or any redundant, 21 immaterial, impertinent, or scandalous matter. FED. R. CIV. P. 12(f). Defendants argue 22 that Plaintiff’s references in the FAC to the report published by Disability Rights California 23 [Doc. No. 6 ¶¶ 44-45] and to various suicides that occurred in County jails [Id. ¶¶ 48-62] 24 should be stricken as immaterial and impertinent to the present case. [Doc. No. 8-1 at 26- 25 27.] First, the report cited by Plaintiff entitled “A System Failing People with Mental 26 Illness” directly relates to his allegation that the County has inadequate programs in place 27 to support inmates with mental illness. Second, although this case does not involve a 28 suicide, Plaintiff’s references to the publicly reported suicides support his claim that the 13 20-CV-1735-CAB-JLB Case 3:20-cv-01735-CAB-JLB Document 11 Filed 02/16/21 PageID.158 Page 14 of 14 1 County’s policy regarding inmates’ mental health issues and treatment is inadequate to 2 protect those in custody. Therefore, the Court DENIES Defendants’ motion to strike 3 paragraphs 44-45 and 48-62 of the FAC. 4 IV. 5 For the reasons set forth above, Defendants’ motion to dismiss the FAC is DENIED. 6 7 8 CONCLUSION Defendants shall file an answer to the FAC on or before March 8, 2021. It is SO ORDERED. Dated: February 16, 2021 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 20-CV-1735-CAB-JLB

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