Citations
- 289 F. Supp. 3d 1094
Full opinion text
Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE
Plaintiff Ashley Gonzalez ("Plaintiff") filed the complaint in this action on November 4, 2016. (ECF No. 1.) Therein, Plaintiff asserted a claim against Defendant Gregory Rich ("Defendant Rich") and Does 1-5 for alleged violations of her civil rights under 42 U.S.C. § 1983 and a claim against Defendant County of Merced ("Defendant County") and Does 6-10 for violations of her civil rights under 42 U.S.C. § 1983 and Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). At the time of the alleged incidents, Plaintiff was a pre-trial detainee in the custody of Defendant County.
On November 29, 2016, Defendant County filed a motion to dismiss the complaint, and on December 20, 2016, Defendant Rich filed a motion to stay this action pending the resolution of the state court criminal prosecution against him. (ECF Nos. 7, 11.) On March 21, 2017, the Court adopted the Magistrate Judge's recommendation that the Court dismiss Plaintiff's Monell claim with leave to amend against Defendant County and stay the action as to Defendant Rich at that time, but not as to Defendant County unless and until an answer is filed by Defendant County. (ECF No. 29.)
On April 4, 2017, Plaintiff filed a first amended complaint, which Defendant County moved to dismiss on April 18, 2017. (ECF Nos. 30, 31.) On June 29, 2017, the Court adopted the Magistrate Judge's recommendation that the Court dismiss Plaintiff's Monell claim against Defendant County with leave to amend. (ECF No. 46.)
On July 14, 2017, Plaintiff filed a second amended complaint. (ECF No. 49.)("SAC".) On July 28, 2017, Defendant County filed a motion to dismiss which was referred to the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. (ECF Nos. 51, 53.) On August 23, 2017, Plaintiff filed a motion to lift the stay, which was set for hearing before the assigned Magistrate Judge. (ECF No. 62.) The Magistrate Judge also conducted a review hearing as to the stay for Defendant Rich on September 20, 2017.
On September 29, 2017, the Magistrate Judge filed findings and recommendations on the motion to dismiss and motion to lift the stay. (ECF No. 75.) The findings and recommendations recommended that the Monell claim be dismissed without leave to amend and that the stay be lifted as to Defendant Rich for any evidence of a non-testimonial nature which does not implicate Defendant Rich's Fifth Amendment rights. The Magistrate Judge also recommended that a review hearing be set for 60 days from the date that the order adopting issues.
On October 13, 2017, Plaintiff filed objections to the findings and recommendations. (ECF No. 76.) On October 26, 2017, Defendant County filed a reply to the objections. (ECF No. 78.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and by proper analysis in all but one respect related to Plaintiffs' policy or custom claim.
Under Monell, "a municipality cannot be held liable under § 1983 solely because it employs a tortfeasor ... in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." 436 U.S. at 691, 98 S.Ct. 2018. A municipality can only be held liable for injuries caused by the execution of its policy or custom or by those whose edicts or acts may fairly be said to represent official policy. Id. at 694, 98 S.Ct. 2018. A "policy" is a "deliberate choice to follow a course of action...made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). "In addition, a local governmental entity may be liable if it has a 'policy of inaction and such inaction amounts to a failure to protect constitutional rights.' " Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) ). More generally, a plaintiff must show the following: (1) the plaintiff was deprived of a constitutional right; (2) the defendant had a policy or custom; (3) the policy or custom amounted to deliberate indifference to the plaintiff's constitutional right; and (4) the policy or custom was the moving force behind the constitutional violation. Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1110-11 (9th Cir. 2001).
Municipal liability under Monell may be premised on: (1) conduct pursuant to a formal or expressly adopted official policy; (2) a longstanding practice or custom which constitutes the "standard operating procedure" of the local government entity; (3) a decision of a decision-making official who was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision; or (4) an official with final policymaking authority either delegating that authority to, or ratifying the decision of, a subordinate. See Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014) ; Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008). Plaintiff has advanced several theories of liability in her Complaint, the most viable of which is based on her assertion of a longstanding practice or custom. Such an unwritten policy or custom must be so "persistent and widespread" that it constitutes a "permanent and well settled" practice. Monell, 436 U.S. at 691, 98 S.Ct. 2018 (internal quotation marks omitted). "Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). However, "contemporaneous or subsequent conduct cannot establish a pattern of violations that would provide 'notice to the [municipality] and the opportunity to conform to constitutional dictates ..." Connick v. Thompson, 563 U.S. 51, 63 n.7, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011). Applying Monell liability in the context of a pretrial detainee's due process rights, the Ninth Circuit has held that the objective deliberate indifference standard is met when a "plaintiff [ ] establish[es] that the facts available to [entity] policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens." Castro v. County of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (quoting City of Canton v. Harris, 489 U.S. 378, 396, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ).
It is difficult to discern from the caselaw the quantum of allegations needed to survive a motion to dismiss a pattern and practice claim. In other words, how many prior incidents are needed to allege a persistent and widespread custom? How similar must they be? Compare Mockler v. Multnomah Cty., 141 F.3d 1177 (9th Cir. 1998) (on review of motion for judgment as a matter of law, declining to find no reasonable jury could find existence of pattern and practice of sexual harassment where Sheriff admitted he knew of sexual harassment but did nothing about it and chose not to discipline harassing employees), with Motelewski v. Maui Police Dep't, No. CV 11-00778 BMK, 2012 WL 3780188, at *3 (D. Haw. Aug. 30, 2012), on reconsideration in part, No. CV 11-00778 BMK, 2013 WL 361762 (D. Haw. Jan. 28, 2013) (finding on summary judgment that two prior incidents of officers being charged with sexual assault and one prior incident of officer being convicted for trying to extort sexual favors during a traffic stop insufficient to demonstrate widespread pattern or custom of sexual abuse in department), and Wilson v. Oregon, No. 3:11-CV-01061-PK, 2013 WL 6196983, at *11 (D. Or. Nov. 27, 2013) (granting summary judgment for municipal defendant where evidence of pattern consisted of one man who allegedly sexually harassed two women and where there was no evidence that sexual harassment was otherwise tolerated by or was standard operating procedure of the municipality). Overlain on top of these examples is the principle that: "[n]ormally, the question of whether a policy or custom exists would be a jury question." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). With these standards in mind, the Court turns to the factual allegations in the Complaint.
On or about January 27, 2015 at 9:40pm, Plaintiff, a pretrial detainee, was being taken from the Merced County courthouse back to the John Latorraca Correctional Facility ("JLCF"). (SAC ¶ 12.) Plaintiff alleges that Defendant Rich, a Correctional Officer that was driving the County vehicle, grabbed and groped her genital area more than once while transporting her back to JLCF (SAC ¶¶ 17-19.) Defendant Rich was terminated and is now facing criminal prosecution for the incident. (ECF No. 75 at 18.)
The Complaint alleges that on that same day (January 27, 2015), Rich also groped two of his co-workers, (SAC ¶¶ 25-26), who are referred to herein as Coworker 1 and Coworker 2. Specifically, Rich allegedly and without consent groped Coworker 1's breast. (Id.) Coworker 1 reported the incident to her supervisor who later reported it to others up the chain of command. (Id. ) Also on that same day, Defendant Rich grabbed Coworker 2's left buttocks and made sexually inappropriate comments to her. (Id. ) Because both of these events are contemporaneous conduct, the Court does not consider them as contributing toward any pattern/custom allegation.
However, certain evidence related to the day-of conduct is relevant. First, the Complaint alleges that Coworker 2 had been "subjected to previous sexual harassment by defendant Rich, including requests to touch her butt," but she did not report those incidents because she feared retaliation by Rich or others because she "heard RICH state several times that he had been through many internal affairs investigations ("IAs"), and had gotten out of every single one of them." (SAC ¶ 28.) This is an allegation of first person knowledge of sexually inappropriate behavior workplace by Rich prior to January 27, 2015.
It is also alleged that Coworker 2 told another female correctional officer (Coworker 3) about the incident on January 27, 2015. (SAC ¶¶ 26-27.) Coworker 3 responded in a manner that indicated she was aware of Defendant Rich's propensity to engage in such behavior (i.e., inappropriate sexual touching). (Id. ) Specifically, it is alleged that Coworker 2 told Coworker 3 that Rich "had done something highly inappropriate to her," and asked "please don't leave me alone with him again[,]" to which Coworker 3 replied: "Oh, I figured. That's why I came back." (Id. ) The Complaint goes into further detail about Coworker 3's experience with Defendant Rich. It is alleged that at some point prior to (perhaps by several weeks) the January 27, 2015 incident, Coworker 3 made a formal written complaint to a supervisor, Sgt. Tilley, that Defendant Rich engaged in "sexually abusive and harassing behavior at JLCF" by masturbating in front of her in an isolated area of the facility, despite her protests. Sgt. Tilley reported this to Lt. Jason Goins who later became the Undersheriff for the County. (SAC ¶ 21.) "[Coworker 3] testified that this had happened several times at work, in the control room at JLCF, which is a secluded area..." (Id. ). Furthermore, Plaintiff alle ges that after conferring with Lt. Goins, Sgt. Tilley decided not to investigate Coworker 3's complaint. (Id. ) The timing of this incident and Coworker 3's reporting of it to her supervisors vis-à-vis the January 27, 2015 incident is somewhat unclear. The Complaint alleges that the incident occurred in "early 2015." (Id. ) It is less clear, and the F & Rs discuss at length, when it was reported to supervisory staff. (See ECF No. 75 at 19-20.) However, the Court finds that because the applicable "constructive notice" standard does not require direct notice, the timing of the reporting is not dispositive of the materiality of this incident to the present inquiry. It represents an example of Defendant Rich engaging in serious, inappropriate sexual behavior in at JLCF.
Finally, Sgt. Tilley testified at Defendant Rich's state criminal preliminary hearing that "he had received complaints about RICH before the subject incident , but which he interpreted as personality conflicts he hears on a daily basis as a supervisor." (SAC ¶ 22) (emphasis added.) Sgt. Tilley also admitted personally overhearing Rich "make sexually inappropriate comments about other female correctional officers, but he dismissed them as 'shop talk.' " (Id. ) Sgt. Tilley confirmed, under oath, that such shop talk "was a common occurrence at JLCF..." (Id. ). Viewing the allegations in the light most favorable to Plaintiff, as this Court must at this stage, this testimony, coupled with the fact that Sgt. Tilley decided to take no action on Coworker 3's complaint, plausibly suggests the existence of an environment at JLCF that encouraged and emboldened individuals to act in sexually inappropriate ways.
Viewing the allegations in the light most favorable to Plaintiff, the SAC suggests the existence of a custom of sexually inappropriate touching at JLCF and that the County was on constructive notice of the existence of such a custom. Assuming such a custom did exist, that custom could plausibly amount to deliberate indifference to Plaintiff's rights and be the driving force behind the violation of her rights. As a pretrial detainee, Plaintiff was in a position of less power than the various corrections officers involved in the prior incidents discussed above. It is plausible to infer from the circumstances alleged that if JLCF employees experienced sexually inappropriate conduct of the nature alleged, detainees would be subject to similar (if not worse) conduct. Accordingly, the Court declines to adopt the findings and recommendations with regard to Plaintiff's policy/custom allegation. Defendant's motion to dismiss is DENIED as to this form of Monell liability.
The Court adopts the findings and recommendations ("F & Rs") as to the failure to train, inadequacies in hiring, and ratification theories of Monell liability (ECF No. 75 at 15-18). As the F & Rs discuss, Plaintiff acknowledges a failure to train employees not to commit sexual assault is not a plausible claim since there is no patently obvious need to train officers not to sexually assault women. (ECF No. 75 at 16.) Similarly, an inadequate hiring claim is not applicable in this case since there are no facts alleged concerning hiring practices, generally or specifically. (Id. at 17.) Nor are there allegations that support a ratification theory of Monell liability since the County did not affirm Defendant Rich's sexual assault of Plaintiff after the fact. (Id. at 17-18.)
With respect to any "deficient policies" claim under Monell (ECF No. 75 at 23-29), the relevant standard comes from Castro v. County of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016). Castro was arrested for public drunkenness and placed in a "sobering cell" along with another individual who was acting in a bizarre and combative manner. Id. at 1064-65. At some point during his detention, his cellmate severely beat Castro, causing Castro catastrophic injuries. Id. at 1065. Castro contended that the County of Los Angeles was liable under Monell for the way it designed and operated its sobering cell. Id. A municipality may be liable for a policy deficiency if "facts available to city policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens." Id. at 1076. The Ninth Circuit then defined as the relevant "custom or policy" the use of "a sobering cell that lacked adequate audio surveillance to detain more than one belligerent drunk person while checking the cell visually only once every half hour." Id. at 1075. Applying the relevant standard to the policy as identified, the Ninth Circuit found the jury reasonably could have found municipal liability based on evidence that building codes and internal police manuals required certain physical safety measures in such sobering cells-measures that were not in place in Castro's cell, but which likely would have prevented Castro's injuries. See id. at 1076-77.
Here, the question then becomes whether the SAC alleges plausibly that the facts put the County on notice that the "particular" policy deficiency was substantially certain to result in the violation of Plaintiff's constitutional rights. Plaintiff alleges in the SAC that the problematic policy was allowing individual male officers to transport female detainees, and that, either a video surveillance system should be used, a female officer should be present when female detainees are being transported, or some other system of documentation should be used to prevent misconduct (such as a log of miles travelled). (SAC ¶¶ 15, 56.) The Court agrees with the F &
Rs that, unlike in Castro, here there were no closely analogous written regulations, rules, or policies that would have put the County on notice that its policy to permit individual male officers to transport female detainees was deficient. Rather, the only evidence that supports a finding of constructive notice is the evidence discussed above involving the existence of a widespread custom of sexual misconduct by Defendant Rich (and other JLCF employees). However, because the allegations of prior sexual misconduct do not point toward a "particular" policy change that would be needed, the Court does not believe a policy deficiency claim has been stated under the Castro standard. In other words, while the past pattern of sexual misconduct plausibly put the County on notice that JLCF employees could sexually touch inmates in an inappropriate manner, nothing in the allegations of past misconduct suggest the sexual touching would be any more likely to occur during transport than in other situations. Why wouldn't the pattern evidence just as easily put the County on notice that male officers should never be permitted to be alone with female inmates in any situation? Deliberate indifference under Castro requires a much more precise link between the conduct that put the municipality on notice and the alleged policy deficiency. As such, the Court finds there is not a sufficient link between the allegations of past sexual misconduct and the deliberate indifference required to establish a deficient policy claim. Accordingly, the Court adopts the F & Rs conclusion as to any Monell claim based on deficient policy.
Accordingly, Plaintiff's Monell claim is DISMISSED WITHOUT LEAVE TO AMEND as to the failure to train, inadequacies in hiring, ratification and deficient policy theories of Monell liability.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations, filed September 29, 2017, are adopted in part;
2. Defendant County's motion to dismiss Plaintiff's Monell claim is DENIED as to any pattern/custom claim and GRANTED WITHOUT LEAVE TO AMEND as to all other forms of Monell liability;
5. Plaintiff's motion to lift the stay is granted in part;
6. The stay is lifted as to Defendant Rich for any evidence of a non-testimonial nature which does not implicate Defendant Rich's Fifth Amendment rights; and
7. A review hearing is set as to Defendant Rich for January 11, 2018, at 3:15 p.m. before United States Magistrate Judge Stanley A. Boone in Courtroom 9 and Defendant Rich shall file a status report at least 7 days prior to the review hearing.
IT IS SO ORDERED.
FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANT COUNTY OF MERCED'S MOTION TO DISMISS PLAINTIFF'S MONELL CLAIM AND GRANTING IN PART PLAINTIFF'S MOTION TO LIFT THE STAY
(ECF Nos. 51, 52, 60, 61, 62, 63, 64, 67, 68, 71)
OBJECTIONS DUE WITHIN FOURTEEN DAYS
Stanley A. Boone, UNITED STATES MAGISTRATE JUDGE
On July 28, 2017, Defendant County of Merced ("Defendant County") filed a motion to dismiss Plaintiff's Monell claim in the second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The matter was referred to the undersigned for issuance of findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. (ECF No. 53.)
On August 23, 2017, Plaintiff filed a motion to lift the stay as to Defendant Gregory Rich ("Defendant Rich") and permit discovery. (ECF No. 62.) On March 21, 2017, the Court had granted Defendant Rich's motion to stay this action as to Defendant Rich, but not as to Defendant County of Merced unless and until an answer is filed by Defendant County. (ECF No. 29.) The Court had also ordered a review hearing as to Defendant Rich, which has been continued several times.
On September 20, 2017, the Court held a hearing on the motion to dismiss and motion to lift the stay and also conducted a review hearing as to Defendant Rich for the motion to stay. Panos Lagos appeared for Plaintiff, Sanjay Schmidt appeared telephonically for Plaintiff, James Stone appeared for Defendant County, and Marshall Bluestone appeared for Defendant Rich. Having considered the moving, opposition and reply papers for the motions, the declarations and exhibits attached thereto, except as excluded below, arguments presented at the September 20, 2017 hearing, as well as the Court's file, the Court recommends that Defendant County's motion to dismiss be granted, Plaintiff's motion to lift the stay be granted in part, and a review hearing be scheduled in 60 days.
I.
BACKGROUND
On November 4, 2016, Plaintiff filed this action against Defendant County and Defendant Rich. (ECF No. 1.) On November 29, 2016, Defendant County filed a motion to dismiss. (ECF No. 7.) On December 20, 2016, Defendant Rich filed a motion to stay this action pending the resolution of the state criminal action against him. (ECF No. 11.) On February 1, 2017, the undersigned filed findings and recommendations recommending that Defendant County's motion to dismiss be granted with leave to amend and that Defendant Rich's motion to stay the action be granted as to Defendant Rich at this time. The Court recommended the action not be stayed as to Defendant County until an answer is filed by Defendant County. (ECF No. 25.) On March 21, 2017, Chief Judge Lawrence J. O'Neill adopted the findings and recommendations. (ECF No. 29.) The Court also set a review hearing as to Defendant Rich before the undersigned for May 24, 2017, which has been continued several times. (ECF Nos. 29, 38, 48, 59, 65.)
On April 4, 2017, Plaintiff filed her first amended complaint. (ECF No. 30.) On April 18, 2017, Defendant County filed a motion to dismiss the first amended complaint. (ECF No. 31.) On May 30, 2017, the undersigned filed findings and recommendations recommending that Defendant County's motion to dismiss be granted with leave to amend, which was adopted on June 29, 2017. (ECF Nos. 43, 46.)
On July 28, 2017, Defendant County filed a motion to dismiss the first amended complaint and a request for judicial notice. (ECF Nos. 51, 52.) On August 16, 2017, Plaintiff filed her opposition to the motion to dismiss and a request for judicial notice. (ECF Nos. 60, 61.) On August 23, 2017, Defendant County filed its reply in support of the motion to dismiss and objections to Plaintiff's request for judicial notice. (ECF Nos. 63, 64.)
On August 23, 2017, Plaintiff filed a motion to lift the stay and permit discovery. (ECF No. 62.) On September 6, 2017, Defendant Rich and Defendant County filed oppositions to the motion to lift the stay and permit discovery. (ECF Nos. 67, 68.) On September 13, 2017, Plaintiff filed her reply. (ECF No. 71.)
II.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on the grounds that a complaint "fail[s] to state a claim upon which relief can be granted." A motion under Rule 12(b)(6) tests the legal sufficiency of a claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In deciding a motion to dismiss, the court is to accept as true "all material allegations of the complaint,...as well as all reasonable inferences to be drawn from them." Navarro, 250 F.3d at 732. "[T]o be entitled to the presumption of truth, allegations in a complaint...may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). While detailed factual allegations are not required, the factual allegations of the complaint must plausibly suggest an entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Starr, 652 F.3d at 1216. Dismissal of the complaint is appropriate where the complaint fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
III.
ALLEGATIONS IN SECOND AMENDED COMPLAINT
On or about January 27, 2015, at about 9:40 p.m., Plaintiff was a pretrial detainee in the custody of Defendant County, and was being transported from the Merced County Courthouse to John Latorraca Correctional Facility ("JLCF") in a Defendant County vehicle driven by Defendant Rich. (SAC at ¶ 12, ECF No. 49.) One of Defendant Rich's responsibilities granted by Defendant County was driving inmates to and from their court appearances. (Id. )
Plaintiff was seated on one side of the vehicle with another female inmate. (Id. at ¶ 14.) A cage separated the female inmates' side from the male inmates' side. (Id. ) After the male inmates were unloaded and gone from the vehicle, Defendant Rich directed Plaintiff to exit the vehicle. (Id. at ¶ 15.) There was no second correctional officer present and there was no video surveillance system or other system of documentation to document incidents or deter misconduct by correctional officers. (Id. ) Plaintiff asked "[f]or what?" and then proceeded to get up from her seat to go to the other side of the vehicle. (Id. at ¶ 16-17.) In order to move to the other side of the vehicle, Plaintiff had to turn her back to Defendant Rich as she utilized the vehicle's built in step-stool to help her get down to the ground. (Id. at ¶ 17.) There were no other correctional Officers around, and specifically, there were no female correctional officers around. (Id. ) Defendant County failed to require that Defendant Rich be equipped with a body camera or that there be some other camera or observation of his one-one-one, unsupervised contact with a female inmate. (Id. )
As she was on the step-stool part of the vehicle with her back to Defendant Rich, Defendant Rich deliberately, without consent, and in a constitutionally violative fashion reached his arm through her legs and grabbed her vaginal area. (Id. ) Plaintiff responded with an emphatic question along the lines of, "what the ...?" in an immediate, vigorous, loud, and protesting manner as she sat down where she was ordered to sit by Defendant Rich. (Id. at ¶ 18.) Defendant Rich remained silent. (Id. )
After Plaintiff seated herself, Defendant Rich, who was facing Plaintiff, groped Plaintiff again in her genital area. (Id. ) Plaintiff was helpless and unable to defend herself because she was in full body shackles. (Id. )
Defendant Rich then drove Plaintiff to the female entrance to the JLCF. (Id. at ¶ 19.) Defendant Rich groped Plaintiff in the vaginal area as she was stepping out of the van. (Id. ) Plaintiff did not physically resist, insult, threaten, touch, batter, or assault Defendant or fail to promptly obey any order prior to or after the alleged batteries. (Id. at ¶ 20.) Plaintiff felt helpless, violated, humiliated, and dehumanized by Defendant Rich's alleged batteries. (Id. )
Plaintiff alleges that when she first reported the incident to officials of Defendant County, she was told to keep quiet about the matter and not to discuss it with anyone. (Id. at ¶ 51.) She alleges that the instruction to Plaintiff by officials not to disclose the matter was pursuant to a custom, policy, or practice of Defendant County to intentionally minimize, conceal, prevent, or otherwise avoid the dissemination throughout Defendant County of information of such incidents and to attempt to avoid or limit documentation of any instances of guard-on-inmate sexual abuse. (Id. )
Plaintiff alleges that Merced County is a rural county, where distances between destinations are longer and there are a lot of secluded areas, which enables a male officer to take a detour or pull over in order to achieve a sexual assault on an inmate, so policymakers must be extra vigilant. (Id. at ¶ 13.)
Plaintiff alleges that prior to the instant incident, Defendant Rich had committed nonconsensual sexual batteries and engaged in sexually abusive and harassing behavior in the course and scope of his employment with Defendant County and that Defendant County knew, should have known, had constructive knowledge, or had reason to know of such conduct by Defendant Rich prior to the instant incident. (Id. at ¶¶ 21-22, 25-30.) The prior incidents were accomplished using the opportunities created to commit sexual batteries by the policies, or lack or inadequacy thereof, created, executed, perpetuated, and/or facilitated by Defendant County. (Id. )
Plaintiff provides specific allegations for two incidents of alleged sexual batteries by Defendant Rich. (Id. at ¶¶ 25-26.) Plaintiff alleges that at, before, or around 10:00 a.m. on January 27, 2015, Defendant Rich unlawfully touched a female (coworker 1). (Id. at 25.) This individual was an assistant/medical clerk at JLCF in the jail medical division who worked pursuant to a contract between Defendant County and the California Forensic Medical Group, Inc. ("CFMG"). (Id. ) Plaintiff alleges that Defendant Rich unlawfully and without consent groped coworker 1 in the left breast area and accomplished this by utilizing his position to gain private access to coworker 1 in circumstances that provided seclusion. (Id. ) This incident was reported shortly thereafter to coworker 1's supervisor, who later reported it to others, including officials of Defendant County. (Id. ) Plaintiff alleges that Defendant Rich had also previously engaged in inappropriate verbal conduct with coworker 1 on a repeated basis. (Id. )
Plaintiff also alleges that during the same day of the instant incident, but prior to the instant incident, Defendant Rich committed a sexual battery against a female correctional officer at JLCF employed by Defendant County ("coworker 2"). (Id. at ¶ 26.) Just as he waited until he had an opportunity to commit the sexual battery against Plaintiff, Defendant Rich waited until he was alone with coworker 2 in a room at JLCF. (Id. ) Defendant Rich asked coworker 2, "Let me touch your butt, let me touch your butt," and then after being refused, asked her, "Let me lick your clit." (Id. ) After sexually harassing coworker 2 and being refused, Defendant Rich grabbed her in the left buttocks area. (Id. ) Plaintiff contends this incident was due to Defendant County's failure-and Defendant Rich's knowledge of such failure-to protect female employees and female inmates from him and others. (Id. ) Defendant Rich utilized his position of authority and the access to areas where he would be alone with female coworkers and female inmates to sexually harass and unlawfully and without consent grab the left buttocks of coworker 2. (Id. ) After the incident with coworker 2, but before the instant incident, coworker 2 told another employee of Defendant County at JLCF ("coworker 3") that Defendant Rich had done something highly inappropriate to her, pleading, "Please don't leave me alone with him again." (Id. ) Coworker 3 responded, "…That's why I came back," which coworker 2 believed indicated that coworker 3 knew of other sexually inappropriate contact by Defendant Rich against others and Defendant Rich's propensities to engage in sexually inappropriate conduct. (Id. at ¶¶ 26-27.) Plaintiff alleges that coworker 3's response implied and suggests that Defendant Rich's propensities were known within JLCF, and suggests that other correctional officers and "likely supervisors" had actual and constructive knowledge of Defendant Rich's "propensities to commit such sexual batteries, and to touch women inappropriately or otherwise sexually harass them." (Id. at 27.) On the same day as the instant incident, coworker 2 also said to coworker 3, "what's wrong with him, he's gross." (Id. at 26.)
Plaintiff alleges that at some time coworker 3 made a formal written complaint to a supervisor, Sgt. Tilley, regarding Defendant Rich engaging in sexually abusive and harassing behavior at JLCF, such as going through repeated masturbation motions in front of her despite her protests. (Id. at 21.) Sgt. Tilley related this information to Lt. Jason Goins, who later became the Undersheriff for Defendant County. (Id. ) According to coworker 3, there were several times where Defendant Rich groped himself in front of her in the control room, which is a secluded area, by placing his hand on his private area and thrusting his pelvis around. (Id. ) After conferring with Lt. Goins, Sgt. Tilley chose not to investigate coworker 3's complaint further, even though there was a mandatory duty to investigate. (Id. )
Sgt. Tilley received complaints about Defendant Rich before the instant incident, but Sgt. Tilley interpreted them as personality conflicts he hears on a daily basis as a supervisor. (Id. at 22.) Sgt. Tilley personally overheard Defendant Rich make sexually inappropriate comments about other female correctional officers, but dismissed them as "shop talk." (Id. ) Sgt. Tilley testified under oath that, "We sit around and talk about other officers or-or other women in particular, yes. It's-it's a common occurrence." (Id. ) Plaintiff alleges that the "shop talk" coupled with the failure to take action in response to coworker 3's report suggests that Defendant County, including supervisors at JLCF, permitted, encouraged, and ratified a sexually charged environment, emboldening Defendant Rich and others to act on their sexual urges. (Id. )
At the time of the instant incident, Defendant County failed to staff its jails at levels that Sgt. Tilley thought they should be at, which was a problem during the 12 years that Sgt. Tilley was there. (Id. at 23.)
At the time of the instant incident, Defendant County was experiencing "extreme" problems with its video surveillance system, which supervisors, including Sgt. Tilley were aware of, and correctional officers, including Defendant Rich, would have also been aware of. (Id. at 24.) The DVR surveillance system at JLCF was not recording to Defendant County's DVR system. (Id.) "Inferably, an Officer [sic] that wished to engage in sexual misconduct with a female transport inmate, such as RICH, would be able to do so with the knowledge of where there were, and were not, cameras, and with the knowledge that it would be not be recorded to the COUNTY's DVR system." (Id. )
Defendant Rich had previously requested to touch coworker 2's butt, but she was placed in fear of retaliation by Defendant Rich and others because she heard Defendant Rich state several times that he had been through many internal affair investigations ("IAs"), and had "gotten out of every single one of them." (Id. at ¶ 28.) Plaintiff also alleges that Defendant Rich's previous conduct in the presence of coworker 2 and others was physically intimidating to coworker 2. (Id. )
After coworker 2 reported the alleged sexual assault by Defendant Rich, her work environment at Defendant County became worse because she was subjected to hostility by employees and correctional officers of Defendant County, which potentially included supervisors, who were supporters of Defendant Rich and/or his conduct, and subjected to intimidation by other employees of Defendant County. (Id. at ¶ 29.)
Female correctional officers told coworker 2 that they were aware of other similar incidents of female deputies being sexually touched by Defendant Rich. (Id. at ¶ 30.) Plaintiff alleges that these reports by other females, the report by coworker 3, and the other information in the second amended complaint plausibly suggests that Defendant County knew, should have known, had constructive knowledge by virtue of the knowledge of its employees, or had reason to know of such conduct by Defendant Rich prior to the instant incident. (Id. )
Coworker 2 testified that Defendant Rich made statements that Defendant Rich was the subject of a number of internal affair ("IA") investigations by Defendant County prior to the instant incident and incidents involving coworker 1 and coworker 2, but was exonerated by Defendant County in all of them. (Id. at ¶ 31.) Plaintiff alleges that coworker 3's report of the incident between she and Defendant Rich, which was not investigated and for which Defendant Rich was not disciplined or terminated, the accepted and ratified practice of engaging in sexually charged "shop talk" on a daily basis, reports by other female correctional officers being victimized by Defendant Rich, Defendant Rich stating that he had beat his IAs to coworker 2, and the sexual touching of coworker 1, coworker 2, and Plaintiff by Defendant Rich "taken cumulatively plausibly suggests that at least some of such prior IA incidents/investigations concerning Defendant Rich involved sexual misconduct, including, but not limited to sexual harassment, sexual batteries of female inmates or co-workers, or other inappropriate sexual behavior." (Id. ) Plaintiff alleges that it is plausible based on Defendant Rich's comment to coworker 2 to infer that he communicated Defendant County's acquiescence in his misconduct in order to generate fear and potentially limit reporting of his misconduct. (Id. ) Plaintiff alleges that Defendant County's acquiescence and failure to discipline Defendant Rich for the incident with coworker 3 even though Sgt. Tilley and Lt. Goins were informed about it encouraged and emboldened Defendant Rich to engage in sexual misconduct because it signaled to him that he would not be disciplined by Defendant County. (Id. )
Plaintiff alleges based on the information stated above and because it would seem highly unlikely that Defendant Rich would decide one day out of the blue to start committing sexual batteries that it is plausible to infer that Defendant Rich had previously engaged in other sexually inappropriate or harassing conduct, and had previously committed nonconsensual sexual batteries in the course and scope of his employment with Defendant County and/or there were facts available to put Defendant County on notice of this. (Id. at ¶ 32.) Plaintiff alleges that if Defendant County had put proper policies in place and had not encouraged or permitted a "code of silence" among correctional staff, a culture that retaliated against or shunned correctional officers that reported misconduct, and a sexually charged culture that engaged in sexual "shop talk" daily, Defendant County would have known of at least some of such previous incidents by Defendant Rich. (Id. ) Plaintiff also alleges that Defendant County's policies, customs, practices, or lack thereof coupled with information about Defendant Rich posed a substantial risk of serious harm to Plaintiff. (Id. )
Plaintiff alleges that the information stated above plausibly suggests that supervisors at JLCF, coworkers of Defendant Rich, and officials of Defendant County had actual or constructive knowledge or reason to know of Defendant Rich's propensities and conduct, including inappropriate sexual behavior, sexual misconduct, and/or prior sexual batteries, and the fact that Defendant Rich utilized secluded settings to accomplish sexual harassment, sexual misconduct, indecent acts, and sexual batteries. (Id. at ¶ 33.) However, they failed to protect female inmates, including Plaintiff, and female coworkers from Defendant Rich, instead continuing to permit Defendant Rich to have unrestricted and secluded access to female inmates and female coworkers. (Id. )
Defendant Rich's unlawful touching of coworker 1, coworker 2, and Plaintiff was part of a pattern of conduct by Defendant Rich to use his position of authority, power, and seclusion granted to him by Defendant County to commit sexual batteries against female coworkers and female inmates. (Id. at ¶ 34.) Plaintiff alleges that Defendant Rich and other male employees of Defendant County unlawfully touched female coworkers, inmates, and others by exerting the authority and access granted to them by Defendant County and by virtue of Defendant County's failure to properly monitor their movements and activities and failure to implement policies that would prevent individuals like Defendant Rich from having secluded and prolonged contact with female inmates. (Id. )
Plaintiff alleges that Defendant County was on both actual and constructive notice based on an abundance of evidence regarding the prevalence of officer-on-inmate sexual assault in correctional facilities and cites to four articles. (Id. at ¶ 35.) Plaintiff also alleges that the widespread knowledge within the corrections and justice systems, and of Defendant County in particular, of officer-on-female inmate assaults, Defendant County's policy failures evidence deliberate indifference to the reasonably foreseeable risk of sexual assault against female inmates by opportunistic male correctional officers, such as Defendant Rich. (Id. at ¶ 36.) Plaintiff alleges that the risks are recognized and codified in the Department of Justice's "Standards to Prevent, Detect, and Respond to Prison Rape," promulgated pursuant to the Prison Rape Elimination Act ("PREA"), and she cites to 42 U.S.C. 15601 as a congressional finding in the PREA that "experts have conservatively estimated that at least 13 percent of the inmates in the United States have been sexually assaulted in prison." (Id. at ¶¶ 48-49.) Plaintiff alleges that Defendant County had actual knowledge, reason to know of, or should have known of the risk of the type of harm that befell Plaintiff and cites to several performance modules and policies of Defendant County. (Id. at ¶ 55.) Plaintiff alleges that Defendant County had specific reporting requirements for a deputy transporting an inmate for a medical emergency, but no such requirements were provided to deputies with respect to transportation of opposite sex inmates to and from the jail facility and the court. (Id. at ¶ 59.) Plaintiff alleges that based on 15 C.C.R. § 1027, Defendant County should have required that a female correctional officer be present with Defendant Rich and other male correctional officers during opposite-sex transports, and that there is a recognition that it is important to not leave female inmates solely in the care of male correctional officers in secluded circumstances such as transport vans where they are vulnerable to sexual assault. (Id. at ¶ 56.)
Plaintiff alleges that Defendant County failed to require proper activity logs, or if such logs were required, by failing to properly review, audit, and/or oversee them and enforce the policy requiring them, providing a second officer, providing video coverage, or providing procedures minimizing the risk such as unloading the female inmates first. (Id. at 37.)
On or about April 21, 2015, Defendant Rich was charged with a felony violation of California Penal Code § 149 (assault by officer under color of authority) and a misdemeanor violation of Penal Code § 243.4(e)(1) (sexual battery) for the instant incident, and two additional misdemeanor violations of Penal Code § 243.4(e)(1) (sexual battery) for the incidents involving coworker 1 and coworker 2. (Id. at ¶ 38.)
Plaintiff's first cause of action is against Defendant Rich for violation of 42 U.S.C. § 1983 for depriving Plaintiff of the right to privacy, right to be free from the unreasonable search and seizure of one's person, right to the equal protection of the laws, and right to one's liberty in bodily integrity. (Id. at ¶¶ 41-46.) Plaintiff's second cause of action is against Defendant County for a violation of 42 U.S.C. § 1983 based on the customs, policies, practices, and/or procedures or lack thereof of Defendant County based on Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). (Id. at ¶¶ 47-62.)
IV.
DISCUSSION
A. Defendant County's Motion to Dismiss the Monell Claim Should be Granted
Defendant County argues that the Monell claim should be dismissed because the Monell claim is devoid of non-conclusory facts to set forth the deliberate indifference element. Plaintiff counters that Defendant County is ignoring Plaintiff's more than sufficient allegations which make the Monell claim plausible.
1. Legal Standard for Monell Claim Against Defendant County
" Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States." Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988). " Section 1983 'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.' " Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Section 1983 and other federal civil rights statutes address liability "in favor of persons who are deprived of 'rights, privileges, or immunities secured' to them by the Constitution." Carey v. Piphus, 435 U.S. 247, 253, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (quoting Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) ). "The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived of a right 'secured by the Constitution and laws.' " Baker, 443 U.S. at 140, 99 S.Ct. 2689. Stated differently, the first step in a section 1983 claim is to identify the specific constitutional right allegedly infringed. Albright, 510 U.S. at 271, 114 S.Ct. 807. " Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law." Baker, 443 U.S. at 146, 99 S.Ct. 2689.
Plaintiff's theory of liability against Defendant County is based upon municipal liability under Monell, 436 U.S. at 691, 98 S.Ct. 2018. Under Monell, 436 U.S. at 691, 98 S.Ct. 2018, "a municipality cannot be held liable under § 1983 solely because it employs a tortfeasor...in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." A municipality can only be held liable for injuries caused by the execution of its policy or custom or by those whose edicts or acts may fairly be said to represent official policy. Id. at 694, 98 S.Ct. 2018. A "policy" is a "deliberate choice to follow a course of action... made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). "In addition, a local governmental entity may be liable if it has a 'policy of inaction and such inaction amounts to a failure to protect constitutional rights.' " Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) ).
Municipal liability may be premised on: (1) conduct pursuant to a formal or expressly adopted official policy; (2) a longstanding practice or custom which constitutes the "standard operating procedure" of the local government entity; (3) a decision of a decision-making official who was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision; or (4) an official with final policymaking authority either delegating that authority to, or ratifying the decision of, a subordinate. See Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014) ; Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008).
To impose liability against Defendant County here, Plaintiff must establish: (1) that she possessed a constitutional right of which she was deprived; (2) that the municipality had a policy or custom; (3) that this policy or custom "amounts to deliberate indifference" to the plaintiff's constitutional right; and (4) that the policy or custom is the "moving force behind the constitutional violation." City of Canton v. Harris, 489 U.S. 378, 389-91, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
A plaintiff who sets forth a Monell claim against an entity defendant must show that the entity acted with deliberate indifference to the constitutional rights of the plaintiff in adhering to a policy or custom or by acts of omission. See Castro v. County of Los Angeles, 833 F.3d 1060, 1068-69 (9th Cir. 2016) (quoting Canton, 489 U.S. at 392, 109 S.Ct. 1197 ); Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 2010). The Ninth Circuit has held that an objective standard of notice applies to Monell claims. See Castro, 833 F.3d at 1076. The objective deliberate indifference standard is met when a "plaintiff [ ] establish[es] that the facts available to [entity] policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens." Id. (quoting Canton, 489 U.S. at 396, 109 S.Ct. 1197 ) (emphasis added). Municipal liability cannot be premised on respondeat superior and it is not sufficient for a plaintiff to merely point to something that the city could have done to prevent the incident. Clouthier, 591 F.3d at 1250 (citing Canton, 489 U.S. at 392, 109 S.Ct. 1197 ). A municipality is deliberately indifferent when the need for more or different action is "so obvious, and the inadequacy [of the current procedure] so likely to result in the violation of constitutional rights, that the policymakers... can reasonably be said to have been deliberately indifferent to the need."
Canton, 489 U.S. at 390, 109 S.Ct. 1197 ; Mortimer v. Baca, 594 F.3d 714, 723 (9th Cir. 2010).
Since Iqbal, courts have rejected conclusory Monell allegations that lack factual content from which one could plausibly infer Monell liability. See e.g., Rodriguez v. City of Modesto, 535 Fed.Appx. 643, 646 (9th Cir. 2013) (unpublished) (affirming district court's dismissal of Monell claim based only on conclusory allegations and lacking factual support); Via v. City of Fairfield, 833 F.Supp.2d 1189, 1196 (E.D. Cal. 2011) (collecting cases). In AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012), the Ninth Circuit held that pleadings in a case involving Monell claims are subject to the standard set forth in Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011). In Starr, the Ninth Circuit held that allegations in a complaint cannot simply recite the elements of a cause of action, "but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr, 652 F.3d at 1216. The allegations must also plausibly suggest an entitlement to relief, "such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Id.
2. Analysis of Monell Claims
The Court has twice allowed Plaintiff to amend her complaint to attempt to sufficiently plead a Monell claim against Defendant County. While Plaintiff has included more factual allegations to support her Monell claim, it has become unclear what theories Plaintiff bases her claim on. The Court does its best to set forth and address the theories of Plaintiff's Monell claim.
It appears that Plaintiff is alleging five theories for her Monell claim: 1) Failure to Train; 2) Inadequacies in Hiring; 3) Ratification of Defendant Rich's conduct in the instant incident by a final policymaking official; 4) A custom or practice; and 5) Inadequacies in the transportation policies. First, the Court discusses the failure to train, which is a theory that the Court has discussed at length with the prior motions to dismiss.
a. Failure to Train
Plaintiff's second amended complaint alleges a failure to train theory. Defendant County argues that this case is similar to Flores v. County of Los Angeles, 758 F.3d 1154 (9th Cir. 2014). In Flores, the Ninth Circuit upheld a district court's dismissal for Plaintiff's failure to state a Monell claim for failure to train. In Flores, the plaintiff "alleged that defendants 'failed to implement proper training to protect women to ensure that Sheriff's [d]eputies do not sexually assault women that ... [they] come into contact with at the Vehicle Inspection Area.' " Flores, 758 F.3d at 1157. The plaintiff "proposed additions to the Sheriff's Department Manual that would instruct deputies that they 'shall not sexually harass or sexually attack women with whom they come into contact.' " Id. The Ninth Circuit found that "[t]he isolated incidents of criminal wrongdoing by one deputy other than Deputy Doe 1 do not suffice to put the County or Baca on 'notice that a course of training is deficient in a particular respect,' nor that the absence of such a course 'will cause violations of constitutional rights.' " Id. at 1159 (quoting Connick v. Thompson, 563 U.S. 51, 62, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011). There was not a "pattern of similar constitutional violations by untrained employees." Flores, 758 F.3d at 1159 (citing Connick, 563 U.S. at 63, 131 S.Ct. 1350.) Although there is a "narrow range of circumstances [in which] a pattern of similar violations might not be necessary to show deliberate indifference," the Ninth Circuit found that the failure to train police officers not to commit sexual assault did not have patently obvious unconstitutional consequences. Flores, 758 F.3d at 1159-1160 (quoting Connick, 563 U.S. at 63, 131 S.Ct. 1350 ).
In this action, the alleged constitutional violation is similar to Flores. In both cases, a plaintiff was allegedly sexually assaulted by an employee of the defendant entity. While the sole claim in Flores was based on a failure to train officers not to commit sexual assaults, here, Plaintiff alleges other theories of Monell liability in addition to a failure to train theory. In her opposition to the motion to dismiss, Plaintiff states that the issue in this matter is one of failed supervision, and policies that created the opportunity for the assault. Plaintiff states that the " Monell allegations at issue (in Flores ) failed with or without a pattern because the problem was not training ; training to prevent sexual assaults is not required." (ECF No. 60 at 5.) Plaintiff concedes that this claim is not being brought based on an inadequate training theory and that an inadequate training to prevent sexual assault claim is not plausible. To the extent that Plaintiff's second amended complaint alleges a Monell claim based on an inadequate training theory, the inadequate training theory claim should be dismissed. The Court next discusses Plaintiff's theory that Defendant County inadequately hired Defendant Rich, Doe Defendants, and other personnel under each supervisory defendant.
b. Inadequacies in Hiring
The Court has previously found that Plaintiff has failed to allege a Monell claim based on the hiring of Defendant Rich. In Plaintiff's second amended complaint, she alleges that Defendant County failed to properly and adequately hire Defendant Rich, Doe Defendants, and any other personnel under each supervisory defendant's supervision. (SAC at ¶¶ 60-61.) Plaintiff fails to allege any facts supporting her claim that Defendant County inadequately hired Defendant Rich, any Doe Defendants, and any other personnel under each supervisory defendant's supervision. The Supreme Court found that in claims based on deficiencies related to hiring, "[o]nly where inadequate scrutiny of an applicant's background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party's federally protected right can the official's failure to adequately scrutinize the applicant's background constitute 'deliberate indifference.' " Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 411, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). The second amended complaint does not allege any facts describing how Defendant County was deficient in the hiring of Defendant Rich, any doe Defendants, and any other personnel under each supervisory defendant's supervision. Therefore, the Court finds that Plaintiff has failed to allege a Monell claim based on the hiring of Defendant Rich or other personnel as she has not alleged any facts to support this claim. Thus, the deficiencies in hiring claim should be dismissed. The Court next addresses a ratification theory.
c. Ratification
It is unclear from Plaintiff's second amended complaint whether she is alleging a Monell claim based on a theory that the authorized policymakers ratified Defendant Rich's conduct in the instant incident. To the extent that Plaintiff is alleging a Monell claim based on ratification by the authorized policymakers of Defendant Rich's conduct in the instant incident, Plaintiff has not sufficiently alleged a ratification theory. Plaintiff alleges that no procedure or prophylactic steps were taken by Defendant County after the instant incident to assure that on-duty transporting deputies did not violate Defendant County's legal duty to keep its prisoners free from sexual abuse.
To show ratification, a plaintiff must prove that an official with final policy-making authority approved a subordinate's decision or action and the basis for it. Sheehan v. City and County of San Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014). Stated differently, a final policymaker must make a deliberate choice to endorse the subordinate's actions in order for the municipality to be liable. Id."The policymaker must have knowledge of the constitutional violation and actually approve of it," and a "mere failure to overrule a subordinate's actions, without more, is insufficient to support a § 1983 claim." Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004). Similarly, the "mere failure to discipline [a subordinate] does not amount to ratification of [the subordinate's] allegedly unconstitutional actions." Sheehan, 743 F.3d at 1231.
Here, Defendant Rich was terminated and is now facing criminal prosecution for the instant incident. Plaintiff does not allege that Defendant Rich was allowed to continue working after the instant incident. The fact that Defendant County did not change its policies regarding opposite sex transports from court to JLCF after the instant incident is not sufficient to state a claim on a ratification theory. There are no facts alleged by which the Court can reasonably infer that Defendant County ratified the conduct of Defendant Rich. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Therefore, the Court finds that Plaintiff has failed to allege a ratification theory, and to the extent that she alleges a ratification theory claim, it should be dismissed. The Court next discusses whether Plaintiff has sufficiently pled a Monell claim based on an unconstitutional cust