(PC) Brock v. Tuolumne County Sheriffs

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 DAVID LEE BROCK, CASE NO. 1:17-cv-01610-NONE JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS v. TO GRANT DEFENDANTS’ MOTION TO 13 DISMISS AND GRANT PLAINTIFF TUOLUMNE COUNTY SHERIFF’S LEAVE TO FILE FOURTH AMENDED 14 OFFICE, et al., COMPLAINT (Doc. 44) 15 Defendants. FOURTEEN-DAY DEADLINE [16] 17 This matter is before the Court on defendants’ motion to dismiss the complaint pursuant to 18 Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Doc. 44.) Plaintiff opposes 19 the motion. For the reasons set forth below, the Court will recommend that defendants’ motion to 20 dismiss be granted and that plaintiff be granted leave to file an amended complaint. 21 I. Plaintiff’s Allegations 22 In the Third Amended Complaint, plaintiff brings this suit against Tuolumne County Jail 23 Deputy A. Smith, Sergeant Ransom, Deputy Stallings, Deputy Hurtado, Deputy Long, Deputy 24 Richards, Deputy Lee, and Sergeant McNeil. Plaintiff’s allegations may be fairly summarized as 25 follows: 26 On September 2, 2016, at some point between 11 p.m. and 12:00 a.m., plaintiff was 27 arrested on an outstanding warrant and taken to the Tuolumne County Jail for booking. During [28] 1 the intake process at the jail, plaintiff informed the booking officer, Deputy A. Smith, that he was 2 a dropout from a Northern Mexican gang and needed to be housed in protective custody. Plaintiff 3 also informed Sergeant Ransom, who was present during the intake, of his need for protective 4 custody. Sergeants at the jail are responsible for classifying and housing the inmates 5 appropriately, and Sergeant Ransom allegedly made the decision to house plaintiff in non6 protective custody despite knowledge of a risk to plaintiff’s safety. 7 Sergeant McNeil came on duty on or around 5 a.m. the morning of the booking to relieve 8 Sergeant Ransom. He is alleged to have read the booking report, which would have noted 9 plaintiff’s need for protective custody. Nonetheless, Sergeant McNeil ratified Sergeant Ransom’s 10 decision to house plaintiff in non-protective custody. 11 Plaintiff was then placed in a holding cell where he dressed-out and waited for his housing 12 assignment. Once dressed, the escorting officer—a John Doe defendant who is either Deputy 13 Stallings, Deputy Hurtado, Deputy Long, Deputy Richards, or Deputy Lee—proceeded to escort 14 plaintiff to his housing unit. When plaintiff asked where that would be, the escorting officer told 15 him he was to be housed in the C-Tank, which is an active non-protective custody, whites-only 16 tank. Plaintiff told the escorting officer that he was a Northern gang dropout, to which this officer 17 said, “Well this isn’t right,” but he took plaintiff to C-Tank anyway. Once there, plaintiff was 18 assaulted by 3 or 4 inmates who, he alleges, knew he was a dropout. Several deputies, including 19 John Doe, broke up the attack and escorted plaintiff to medical. 20 II. Legal Standards 21 In considering a motion to dismiss, the court must accept all allegations of material fact in 22 the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also 23 construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 24 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); 25 Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must 26 also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 27 However, legally conclusory statements, not supported by actual factual allegations, need not be [28] 1 accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se pleadings 2 are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 3 519, 520 (1972). 4 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 5 claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of 6 what the...claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 7 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to 8 survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more 9 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 10 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 11 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 12 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court 13 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, [14] 129 S. Ct. at 1949 . “The plausibility standard is not akin to a ‘probability requirement,’ but it asks 15 for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, [16] 550 U.S. at 556 ). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s 17 liability, it ‘stops short of the line between possibility and plausibility for entitlement to relief.” [18] Id. (quoting Twombly, 550 U.S. at 557 ). 19 In deciding a Rule 12(b)(6) motion, the court generally may not consider materials outside 20 the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. 21 Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents 22 whose contents are alleged in or attached to the complaint and whose authenticity no party 23 questions, see Branch, 14 F.3d at 454 ; (2) documents whose authenticity is not in question, and 24 upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee 25 v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of 26 which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). 27 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no amendment [28] 1 can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see 2 also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 3 III. Discussion 4 Plaintiff proceeds on a Fourteenth Amendment failure-to-protect claim against the 5 defendants. The Ninth Circuit set forth the following criteria for a pretrial detainee’s failure-to6 protect claim: 7 (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 8 (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 9 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 10 (4) By not taking such measures, the defendant caused the plaintiff's injuries. 11 Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. Aug. 15, 2016). With respect to 12 the third factor, the defendant’s conduct must be objectively unreasonable, which “turns on the 13 ‘facts and circumstances of each particular case.”. Castro v. County of Los Angeles, 833 F.3d 14 1060, 1071 (9th Cir. 2016) (citing Kingsley v. Hendrickson, 576 U.S. 389 , 135 S. Ct. 2466 , 2473 15 (2015)); see also Restatement (Second) of Torts § 500 cmt. a (Am. Law Inst. 2016) (recognizing 16 that “reckless disregard” may be shown by an objective standard under which an individual “is 17 held to the realization of the aggravated risk which a reasonable [person] in his place would have, 18 although he does not himself have it”). 19 Defendants move to dismiss the Third Amended Complaint on the ground that plaintiff 20 fails to allege sufficient facts that would entitle him to relief against any defendant. They first 21 contend that plaintiff failed to specify which defendant (if any) was responsible for making 22 housing decisions. But plaintiff specifically alleges that the sergeants are responsible for housing 23 decisions. See Third Am. Compl. at 5 (“In Tuolumne County Jail, the SGT is responsible for 24 classifying and housing the inmates appropriately.”) He then claims that Sergeant Ransom made 25 the initial decision to house plaintiff in the C-Tank, and Sergeant McNeil, who came on duty 26 after, ratified the decision. Id. at 7. Dismissal is therefore not warranted on this ground. 27 Defendants next argue that the pleading lacks facts showing that plaintiff’s placement in [28] 1 the C-Tank put him at substantial risk of harm. They contend that the decision to place a former 2 gang member in the C-Tank is not one that, standing alone, would necessarily put him at a 3 substantial risk of suffering serious harm. Instead, there must be more than a “mere threat” of 4 possible harm. Williams v. Wood, 223 F. App’x 670, 671 (9th Cir. 2007) (“speculative and 5 generalized fears of harm … do not rise to a sufficiently substantial risk of serious harm.”). They 6 argue that plaintiff’s allegations do not rise beyond speculation and are therefore not actionable. 7 Upon further review, the Court agrees that the Third Amended Complaint fails to include 8 sufficiently specific allegations. For example, plaintiff does not allege facts to support that his 9 attacker knew he was a dropout; he merely concludes that they knew. He does not allege facts to 10 support that the attack was gang related. He fails to allege any facts to show that he informed any 11 of the defendants that specific individuals in the C-Tank posed a threat to him or facts to show 12 that the only safe placement for him was administrative segregation. In sum, there are no facts in 13 the operative pleading upon which one could infer that plaintiff’s fear was sufficiently specific as 14 opposed to merely speculative. Rather, it appears he assumes that there is no compatible cellblock 15 for a Northerner gang member dropout. For these reasons, defendants’ motion to dismiss should 16 be granted. 17 IV. Leave to Amend 18 Federal Rule of Civil Procedure 15(a)(2) provides that “a party may amend its pleading 19 only with the opposing party’s written consent or the court’s leave. The court should freely grant 20 leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). When determining whether to grant 21 leave to amend, courts weigh certain factors: “undue delay, bad faith or dilatory motive on the 22 part of [the party who wishes to amend a pleading], repeated failure to cure deficiencies by 23 amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of 24 the amendment, [and] futility of amendment[.]” See Foman v. Davis, 371 U.S. 178, 182 (1962). 25 Although prejudice to the opposing party “carries the greatest weight[,]...a strong showing of any 26 of the remaining Foman factors” can justify the denial of leave to amend. See Eminence Capital, 27 LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curiam). Furthermore, analysis of [28] 1 these factors can overlap. For instance, a party’s “repeated failure to cure deficiencies” constitutes 2 “a strong indication that the [party] has no additional facts to plead” and “that any attempt to 3 amend would be futile[.]” See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 988 , 1007 4 (9th Cir. 2009) (internal quotation marks omitted) (upholding dismissal of complaint with 5 prejudice when there were “three iterations of [the] allegations — none of which, according to 6 [the district] court, was sufficient to survive a motion to dismiss”); see also Simon v. Value 7 Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th Cir. 2000) (affirming dismissal without leave 8 to amend where plaintiff failed to correct deficiencies in complaint, where court had afforded 9 plaintiff opportunities to do so, and had discussed with plaintiff the substantive problems with his 10 claims), amended by 234 F.3d 428 , overruled on other grounds by Odom v. Microsoft Corp., 486 11 F.3d 541, 551 (9th Cir. 2007); Plumeau v. Sch. Dist. # 40 Cnty. of Yamhill, 130 F.3d 432 , 439 12 (9th Cir. 1997) (denial of leave to amend appropriate where further amendment would be futile). 13 In his opposition, plaintiff alleges new facts that suggest he may be able to meet the 14 criteria to state a Fourteenth Amendment failure-to-protect claim. He alleges, for instance, that 15 each of the defendants was aware that plaintiff was a gang dropout, the intake forms noted that 16 plaintiff could not be placed in general population, the forms further noted that plaintiff required 17 “medium and protective custody,” and that he needed to be placed in “medium and administrative 18 segregation.” In the section on the form that asked, “Is there any reason you should not be placed 19 in general population? (Enemies, gang affiliation, etc.),” the typed answer was “Northern Drop 20 Out.” As for the timing of the assault, plaintiff alleges that he was assaulted “minutes” after 21 placed in the C-Tank and that the assault “happened because of the gang issue.”1 In light of these 22 new allegations, the Court will recommend that the dismissal be without prejudice, and plaintiff 23 be granted leave to file a Fourth Amended Complaint. 24 V. Conclusion 25 Based on the foregoing, the Court RECOMMENDS that defendants’ motion to dismiss 26 be GRANTED, the Third Amended Complaint be dismissed, and plaintiff be granted leave to file [27] 1 In any amended complaint, the plaintiff must explain what makes him believe the attack “happened because of the 28 gang issue.” 1 a Fourth Amended Complaint. 2 These Findings and Recommendations will be submitted to the United States District 3 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(l). Within 4 fourteen days after being served with these Findings and Recommendations, the parties may file 5 written objections with the Court. The document should be captioned “Objections to Magistrate 6 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 7 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 8 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). [9] IT IS SO ORDERED. [10] 11 Dated: May 15, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE