Luttrell v. Hart

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION [7] TYLER LUTTRELL, Case No. 5:19-cv-07300-EJD [8] Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY 10 JAMES HART, et al., JUDGMENT; DENYING PLAINTIFF’S CROSS-MOTION FOR PARTIAL 11 Defendants. SUMMARY ADJUDICATION 12 Re: Dkt. Nos. 91, 99 13 Plaintiff Tyler Luttrell was physically and sexually assaulted by two inmates while 14 incarcerated at the Santa Cruz County Jail. Plaintiff asserts claims for violations of 42 U.S.C. 15 section 1983 and California law. Defendants County of Santa Cruz, Sheriff James Hart, and 16 Correctional Officers Victor Mora and Eduardo Moya (collectively referred to as “Defendants”) 17 move for summary judgment (Dkt. No. 99), and Plaintiff cross-moves for partial summary 18 judgment. Dkt. No. 91. The motions are fully briefed. The Court finds the motions suitable for 19 disposition without oral argument pursuant to Civil Local Rule 7-1(b). For the reasons stated 20 below, Defendants’ motion for summary judgment is granted in part and denied in part, and 21 Plaintiff’s cross-motion for partial summary judgment is denied. 22 I. BACKGROUND 23 Officers Mora and Moya are employed as Correctional Officers for the County of Santa 24 Cruz. During the time at issue, Officer Mora was a classification officer at the Santa Cruz County 25 Jail, and acted as a housing officer when needed. Officer Moya was a housing officer at Santa 26 Cruz County Jail. 27 Case No.: 5:19-cv-07300-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR 1 On September 29, 2018, Plaintiff was arrested for probation violations and possession of 2 weapons and drugs. On October 2, 2018, the Santa Cruz County Sheriff’s Office classified 3 Plaintiff as a “minimum” security inmate and initially housed him in the Jail’s C Unit. On 4 October 5, 2018, Plaintiff reported to Jail staff that he felt unsafe in C Unit and asked to be moved 5 to a different unit. Jail staff granted his request and moved him from C Unit into the open bunk 6 area in the F Unit. When the opportunity arose, Plaintiff elected to move from the open bunk area 7 to a cell because the cell provided more privacy. On October 10, 2018, the Jail moved him into a 8 two-bunk cell, F22, which was already occupied by one of the assailants, Brandon Love (“Love”). 9 The intercom in F22 was inoperable. In March of 2018, Love was classified as a “maximum” 10 security inmate; however, on October 7, 2018, Love was reclassified to a “minimum” security 11 inmate.1 Plaintiff and Love were not acquainted prior to sharing F22. 12 On or about October 10, 2018, the second assailant, Sean Oliver (“Oliver”), was 13 transferred from Santa Cruz’s Rountree facility to the County Jail and placed in F22. A 14 classification assessment dated August 3, 2018 indicated Oliver was a “minimum” security 15 inmate. Just before the transfer, Oliver was involved in a fight at Rountree and identified as 16 “restricted to cell” (“RTC”) status.2 17 During the early morning hours of October 12, 2018, Oliver and Love “popped” open their 18 locked cell door. They then “popped” open the locked cell door of Ivan Etell and assaulted him.3 19 After reviewing a video of the incident, corrections officers locked Love, Oliver and Plaintiff back 20 in their cell and told them they were RTC’d pending a review. Later that morning, Plaintiff left [21] 22 1 Plaintiff contends that the “minimum” security classification was incorrect. Plaintiff reasons that the assessment form indicates Love was assessed with seven points, which should have resulted in 23 a “medium” security classification. Pl.’s Opp’n at 13, Dkt. No. 103. Plaintiff separately contends that the Jail’s computer classification inaccurately classified inmates. Id. [24] 2 It is unclear whether the classification of “minimum” security should have been increased 25 because of his involvement in the fight at Rountree. 26 3 Plaintiff contends that he had no choice but to participate in the assault. 27 Case No.: 5:19-cv-07300-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR 1 the cell for a scheduled dental appointment. Jail staff inadvertently returned him to open housing 2 in the F Unit. At approximately 11:00 p.m., Plaintiff physically assaulted another inmate.4 3 Officer Moya came on-duty and returned Plaintiff to F22. 4 The next day, on October 13, 2018, from 2:00 p.m. to 11:00 p.m., Love and Oliver 5 physically and sexually abused Plaintiff. According to the Supplemental Incident Report prepared 6 by Christopher Shearer, Love and Oliver pulled Plaintiff’s pants down, pinned him on the floor 7 with his knees pulled to his chest, and tried to penetrate his exposed anus with their ointment8 covered fingers. Love rubbed his facial hair along Plaintiff’s face and kissed him. They tried to 9 have Plaintiff give them oral sex by putting their penises in his face. Hours later, they inserted a 10 plastic spoon in Plaintiff’s rectum several times. They played the prison rape elimination video on 11 their jail issued electronic tablet over and over to taunt Plaintiff. Love and Oliver also tattooed 12 Plaintiff’s face against his will. Later in the evening, a corrections officer delivered dinner to F22 13 through a food slot. Love and Oliver warned Plaintiff that if he reported anything to staff, they 14 would beat him with a piece of copper hidden in the cell. 15 A couple of hours after dinner, Plaintiff told Officer Moya he wanted to get out of the cell 16 and take a shower. Officer Moya told him he could take a shower after “lights out.” After “lights 17 out,” Officer Moya returned to F22, and removed each of the three inmates from the cell so that 18 they could take showers. On the walk back to his cell, Plaintiff asked Officer Moya about 19 transferring to the lower security Rountree facility. Officer Moya told him he would likely be 20 transferred in the morning. Plaintiff did not report the assault to Moya at this time. 21 When Plaintiff returned to F22, Oliver and Love accused him of stealing food and began 22 physically assaulting him. The assault continued until he saw Officer Moya approach the cell 23 window; the two made eye contact and Plaintiff mouthed the words, “get me out of here.” Dkt. 24 No. 91-2 at 88. Officer Moya separated Plaintiff from Love and Oliver. Plaintiff told Officer [26] 4 Plaintiff again contends that he had no choice but to initiate the assault. 27 Case No.: 5:19-cv-07300-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR 1 Moya about the assaults. Plaintiff requested and was given a Sexual Assault Response Team 2 exam at Valley Medical. The examining nurse documented injuries to Plaintiff’s anal area, 3 bruising on his head, neck, back and left buttock, tattoo needle sticks on his shoulder and left arm, 4 and a tattoo of “WFO” on his face. 5 Plaintiff asserts seven causes of action: (1) cruel and unusual punishment in violation of 6 the Eighth and Fourteenth Amendment under 42 U.S.C. Section 1983 against Officers Moya and 7 Mora; (2) Monell liability under Section 1983; (3) violation of California Civil Code Section 52.1 8 (the “Bane Act”) against Officers Moya and Mora; (4) negligence against Officers Moya and 9 Mora; and (5) intentional infliction of emotional distress against Officers Moya and Mora. Second 10 Am. Compl. (“SAC”), Dkt. No. 46. 11 II. STANDARDS 12 A court must grant summary judgment if the movant shows “that there is no genuine 13 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 14 Civ. P. 56(a). In order to satisfy this burden, “the moving party must either produce evidence 15 negating an essential element of the nonmoving party’s claim or defense or show that the 16 nonmoving party does not have enough evidence of an essential element to carry its ultimate 17 burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 18 1099, 1102 (9th Cir. 2000). “In order to carry its ultimate burden of persuasion on the motion, the 19 moving party must persuade the court that there is no genuine issue of material fact.” Id. A 20 genuine factual issue exists if, considering the burdens of production and proof that would be 21 required at trial, sufficient evidence favors the non-movant such that a reasonable jury could return 22 a verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). 23 Once the moving party has met its burden, the nonmoving party may not simply rely on the 24 pleadings, but must produce significant probative evidence, by affidavit or as otherwise provided 25 by Federal Rule of Civil Procedure 56, supporting the claim that a genuine issue of material fact 26 exists. TW Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). In 27 Case No.: 5:19-cv-07300-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR 1 other words, there must exist more than “a scintilla of evidence” to support the non-moving 2 party’s claims, and conclusory assertions will not suffice. See Anderson, 477 U.S. at 252 ; 3 Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 730 , 738 (9th Cir. 1979). When reviewing the 4 evidentiary record, the court must draw all reasonable inferences in favor of the non-moving party. 5 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, [i]t is not 6 the task of the Court to scour the record in search of a genuine issue of triable fact.” Keenan v. 7 Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). 8 Where, as here, the parties have filed cross-motions for summary judgment, “[e]ach 9 motion must be considered on its own merits.” Fair Hous. Council of Riverside Cty., Inc. v. 10 Riverside Two, 249 F.3d 1132 , 1136 (9th Cir. 2001). “In fulfilling its duty to review each cross11 motion separately, the court must review the evidence submitted in support of each cross-motion.” 12 Id. 13 III. DISCUSSION 14 A. First Cause of Action: Section 1983 15 In the first cause of action, Plaintiff alleges that Officers Moya and Mora subjected him to 16 cruel and unusual punishment in violation of the Eighth and Fourteenth Amendment. SAC ¶ 71. 17 Plaintiff alleges that Officers Moya and Mora knew, or should have known, of Plaintiff’s serious 18 risks of physical harm and were deliberately indifferent to those risks. Id. ¶ 72. 19 To state a claim under Section 1983, a plaintiff must allege that a defendant, while acting 20 under color of state law, caused a deprivation of the plaintiff’s federal rights. West v. Atkins, 487 21 U.S. 42, 48 (1988) (citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation 22 omitted). A government official, whether subordinate or supervisor, may be held liable under 23 Section 1983 only when his or her own actions have caused a constitutional deprivation. OSU 24 Student All. v. Ray, 699 F.3d 1053, 1069 (9th Cir. 2012). Allegations regarding causation “must 25 be individualized and focus on the duties and responsibilities of each individual defendant whose 26 acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 27 Case No.: 5:19-cv-07300-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR 1 F.2d 628, 633 (9th Cir. 1988) (citations omitted). An individual “causes” a constitutional 2 deprivation when he or she (1) “does an affirmative act, participates in another’s affirmative acts, 3 or omits to perform an act which he [or she] is legally required to do that causes the deprivation” 4 or (2) “set[s] in motion a series of acts by others which the [defendant] knows or reasonably 5 should know would cause others to inflict the constitutional injury.” Lacey v. Maricopa Cty., 693 6 F.3d 896, 915 (9th Cir. 2012) (en banc) (citation and quotation marks omitted). 7 1. Officer Moya 8 “Inmates who sue prison officials for injuries suffered while in custody may do so under 9 the Eighth Amendment’s Cruel and Unusual Punishment Clause or, if not yet convicted, under the 10 Fourteenth Amendment’s Due Process Clause.” Castro v. Cnty. of Los Angeles, 833 F.3d 1060 , 11 1067-68 (9th Cir. 2016) (citing Bell v. Wolfish, 441 U.S. 520, 535 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 12 (1979)). At the time of the events at issue, Plaintiff was serving a 90-day sentence for a probation 13 violation (SAC ¶ 19); therefore, his section 1983 claim arises under the Eighth Amendment. The 14 Eighth Amendment requires that prison officials take reasonable measures to guarantee the safety 15 of prisoners, including protecting prisoners from violence at the hands of other prisoners. Farmer 16 v. Brennan, 511 U.S. 825, 832-33 (1994). The failure of prison officials to protect inmates from 17 attacks by other inmates or from dangerous conditions at the prison violates the Eighth 18 Amendment when two requirements are met: (1) the deprivation alleged is, objectively, 19 sufficiently serious; and (2) the prison official is, subjectively, deliberately indifferent to inmate 20 health or safety. Id. at 834 . A prison official is deliberately indifferent if he knows of and 21 disregards an excessive risk to inmate health or safety by failing to take reasonable steps to abate 22 it. Id. at 837 ; see also Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (plaintiff was entitled 23 to a “failure to act” jury instruction where evidence showed prison officer heard plaintiff’s call for 24 help immediately prior to his beating and the officer took no steps to abate any risk to him). 25 “Deliberate indifference entails something more than mere negligence but is satisfied by 26 something less than acts or omissions for the very purpose of causing harm or with knowledge that 27 Case No.: 5:19-cv-07300-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR 1 harm will result.” Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005) (internal quotations 2 omitted) (citing Farmer, 511 U.S. at 835 ). “A prison official cannot be held liable under the 3 Eighth Amendment for denying an inmate humane conditions of confinement unless the standard 4 for criminal recklessness is met, i.e., the official knows of and disregards an excessive risk to 5 inmate health or safety.” Williams v. Kernan, No. 18-5787 WHA, 2021 WL 391327 , at *4 (N.D. 6 Cal. Feb. 4, 2021) (citing Farmer, 511 U.S. at 837 .). 7 a. Defendants’ Motion for Summary Judgment as to Officer Moya 8 Here, there is evidence from which a trier of fact could reasonably infer that Officer Moya 9 knew of an excessive risk to Plaintiff’s safety and disregarded that risk by failing to take 10 reasonable steps to abate it. Among other things, Officer Moya knew there were regular fights in 11 the F Unit; knew it was not consistent with Santa Cruz Sheriff’s Policy to house three inmates who 12 had just been involved in a fight in a two-person cell and on RTC status; knew there was a 13 reasonable possibility that three inmates who had just been involved in a fight and housed in a 14 two-person cell on RTC status might turn their frustration and anger towards each other; and knew 15 that Plaintiff was in greater danger of assault because he was the third person in a two-person cell. 16 In addition, other inmates told Officer Moya that Love and Oliver did not belong in F Unit 17 because they were causing fights and were dangerous. Officer Moya also admitted that he was 18 concerned Oliver and Love would commit another assault; that he had a duty to report his 19 concerns to a sergeant or watch commander; and that he failed to do so. It is also undisputed that 20 Officer Moya did not let the three inmates out of their cell on October 12 and 13. The evidence 21 summarized above forecloses granting Defendants’ motion for summary judgment. See Fargo v. 22 City of San Juan Bautista, 857 F.2d 638, 641 (9th Cir. 1988) (“When reasonable persons may 23 disagree as to whether particular conduct constitutes negligence, gross negligence or recklessness, 24 the question is one of fact to be decided by a jury.” (footnote omitted)). Plaintiff need not show 25 that Officer Moya acted or failed to act believing that Plaintiff would be assaulted by Oliver and 26 Love. See Farmer, 511 U.S. at 844 (“Nor may a prison official escape liability for deliberate 27 Case No.: 5:19-cv-07300-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR 1 indifference by showing that, while he was aware of an obvious, substantial risk to inmate safety, 2 he did not know that the complainant was especially likely to be assaulted by the specific prisoner 3 who eventually committed the assault.”); see also Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 4 1986) (holding that a prison official need not “believe to a moral certainty that one inmate intends 5 to attack another at a given place at a time certain before that officer is obligated to take steps to 6 prevent such an assault.”). 7 Despite the evidence summarized above, Defendants argue that summary judgment is 8 appropriate because Plaintiff never told Officer Moya that he felt unsafe being housed with Oliver 9 and Love. However, the failure to give advance notice is not dispositive. Farmer, 511 U.S. at 10 848; see also Hooker v. Gomez, No. 16-7019 HSG, 2019 WL 3973750 , at *7 (N.D. Cal. Aug. 22, 11 2019) (“a prisoner’s failure to give prison officials advance notice of a specific threat is not 12 dispositive with respect to whether prison officials acted with deliberate indifference to the 13 prisoner’s safety needs.”); Fanaro v. Cnty. of Contra Costa, No. 19-3247 WHO, 2021 WL 14 2207363, at * 7 (N.D. Cal. June 1, 2021) (defendants’ contention that neither of them “refused to 15 respond to [plaintiff’s] requests for a transfer or otherwise address his concerns” is a “red herring: 16 the law has no such requirement.”); but see Thomas v. Hernandez, No. 01-4685 TEH, 2003 WL 17 21518750, at *5 (N.D. Cal. June 30, 2003) (granting defendant summary judgment because among 18 other things, plaintiff had not presented any evidence that he alerted defendants on the day of the 19 incident that they were members of rival gangs and were a danger to each other). 20 Defendants next contend Officer Moya is not liable under § 1983 because Plaintiff chose 21 to be housed with Love and Oliver in a two-person cell. It is questionable whether assumption of 22 the risk could ever be a defense to a constitutional violation. See Ganley v. Cnty. of San Mateo, 23 No. 06-3923 TEH, 2007 WL 902551 , at *9 (N.D. Cal. Mar 22, 2007) (“assumption of the risk is 24 not applicable to § 1983 claims”). In any event, the facts do not support such a defense. There is 25 no evidence to suggest Plaintiff agreed to be housed with Love and Oliver knowing that they 26 would physically and sexually assault him. 27 Case No.: 5:19-cv-07300-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR 1 Defendants further contend that Officer Moya is not liable under § 1983 for placing 2 Plaintiff, Love and Oliver on RTC status because the denial of out-of-cell time for disciplinary 3 reasons is constitutional, even if for extended periods of time based on new infractions. See, e.g., 4 Noble v. Adams, 646 F.3d 1138, 1148 (9th Cir. 2011) (finding qualified immunity appropriate 5 because “in 2002 it would not have been clear to a reasonable officer that his or her conduct vis à 6 vis the declaration of an emergency, the lockdown, or the curtailment of use of the exercise yard 7 was unlawful in the situation he or she confronted.”); May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 8 1997) (deprivation of outdoor exercise for 21 days while in disciplinary segregation unit did not 9 constitute violation of Eighth Amendment). Defendants’ argument is misplaced because 10 Plaintiff’s claim against Officer Moya is not just based on placing the three inmates on RTC 11 status. Instead, the three inmates’ RTC status is only one of several facts which he relies on to 12 establish that Officer Moya knew of and disregarded an excessive risk to Plaintiff’s safety. 13 It is not lost on the Court that prisons are dangerous places, that the threat of violence is 14 common, and that prison guards cannot realistically monitor every inmate at every moment. 15 Further, factors that may increase or decrease the risk of inmate violence may be out of the prison 16 officials’ control. For example, the size of a prison, the configuration of the prison, and prison 17 overpopulation are beyond the control of any one prison guard. Nevertheless, the Eighth 18 Amendment imposes duties on prison officials to take “reasonable measures to guarantee the 19 safety of the inmates.” Chisman v. Cnty. of Del Norte, Calif., No. 08-4793 MMC, 2010 WL 20 11635992, at * 5 (N.D. Cal. Mar. 24, 2010) (quoting Hudson v. Palmer, 468 U.S. 517 , 526-27 21 (1984)). Here, the evidentiary record, although thin, may lead a reasonable trier of fact to 22 conclude that Officer Moya violated Plaintiff’s constitutional rights. Defendants’ motion for 23 summary judgment on the section 1983 claim against Officer Moya is denied. 24 b. Plaintiff’s Cross-Motion for Summary Judgment as to Officer Moya [25] The evidentiary record is insufficient to grant Plaintiff’s motion for summary judgment. [26] 27 Case No.: 5:19-cv-07300-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR 1 This is because the evidence, when viewed in the light most favorable to Defendants, could lead a 2 trier of fact to conclude that Officer Moya was unaware of an excessive risk to Plaintiff’s safety. 3 Further, as Defendants’ point out, Plaintiff had numerous opportunities to inform Officer Moya 4 that he felt unsafe, but did not so. Plaintiff knew how to request a transfer to another cell, but did 5 not do so. 6 Plaintiff’s cross-motions for summary judgment on the section 1983 against Officer Moya 7 is denied. 8 2. Officer Mora 9 a. Defendants’ Motion for Summary Judgment as to Officer Mora 10 Housing classification is one of the most critical jobs at the Jail to prevent inmate assaults. 11 It is undisputed that Officer Mora was the only classification officer on duty at the time of the 12 incident and that he understood that the risk of harm to inmates is increased when they are not 13 properly housed. It is also undisputed that Officer Mora knew it was against Jail policy to house 14 inmates on RTC status in F unit. Officer Mora also acknowledged during his deposition that it 15 would be contrary to RTC and Ad Seg policy to place three inmates in one cell when they had just 16 been accused of being in a fight. He also acknowledged that he was responsible for classifying 17 Plaintiff, Love and Oliver after they assaulted an inmate, but failed to do so. Officer Mora told 18 Officer Moya that he intended to transfer Plaintiff to P Unit on October 13, 2018.5 However, he 19 failed to follow through with the transfer because he was given another assignment. Officer Mora 20 also knew that Love and Oliver were not supposed to be housed in F unit. Viewing this evidence 21 in the light most favorable to Plaintiff, a trier of fact could conclude that Officer Moya knew of 22 and disregarded an excessive risk to Plaintiff’s safety. 23 Defendants contend that summary judgment is appropriate because Officer Mora did not [25] 5 For purposes of ruling on the parties’ cross-motions, Defendants’ hearsay objection to Officer 26 Moya’s testimony regarding his conversation with Officer Mora is overruled. Officer Moya’s testimony is not hearsay under Federal Rule of Evidence 801(d)(2). 27 Case No.: 5:19-cv-07300-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR 1 have any interaction with Plaintiff. This overstates the evidence. Officer Mora only stated that he 2 did not recall having any interaction with Plaintiff. Moreover, there is contradictory evidence on 3 this issue: Plaintiff testified he told Officer Mora he needed to be moved out of F22 because Love 4 and Oliver were violent. 5 Defendants next contend that Officer Mora was unaware of the assault of inmate Ivan Etell 6 and unaware that Plaintiff was RTC’d with Love and Oliver. Defendants also contend that Officer 7 Mora was not asked to reclassify Plaintiff or the others. Again, Defendants overstate the evidence. 8 Officer Mora only stated that he did not recall being notified of the assault or the RTC status of 9 the three inmates. Likewise, he did not recall being asked by anyone to reclassify Plaintiff, Love 10 or Oliver. 11 Defendants further contend that even if Officer Mora knew he needed to reclassify Plaintiff 12 and his cell mates, it would likely have made no difference in Plaintiff’s housing. The evidence is 13 to the contrary: Officer Mora told Officer Moya that he intended to transfer Plaintiff to P Unit. 14 Defendants’ motion for summary judgment as to Officer Mora is denied. 15 b. Plaintiff’s Motion for Summary Judgment as to Officer Mora 16 Although the evidence regarding Officer Mora’s conduct is largely undisputed, 17 reasonable persons may disagree as to whether his particular conduct constituted negligence or 18 gross negligence, or recklessness. Only reckless conduct violates section 1938. Williams, 2021 19 WL 391327 , at *4. Whether Officer Mora’s conduct rises to the level of reckless is a question of 20 fact to be decided by a jury. Fargo, 857 F.2d at 641 . 21 B. Second Cause of Action: Monell Liability 22 Plaintiff’s second cause of action alleges a Section 1983 claim against Defendant County 23 of Santa Cruz pursuant to Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 , 24 691 (1978). Local governments “can be sued directly under [section] 1983 for monetary, 25 declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional 26 implements or executes a policy statement, ordinance, regulation, or decision officially adopted 27 Case No.: 5:19-cv-07300-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR 1 and promulgated by that body’s officers.” Id. at 690 . Plaintiff must plead and prove the following 2 elements to establish his Monell claim: “(1) that [he] possessed a constitutional right of which he 3 was deprived; (2) that the municipality had a policy, custom or practice; (3) that the policy, custom 4 or practice amounted to deliberate indifference to [his] constitutional rights; and (4) that the 5 policy, custom or practice was the moving force behind the constitutional violation.” Torres v. 6 Saba, No. 17-06587 SI, 2019 WL 111039 , at *6 (N.D. Cal. Jan. 4, 2019) (citing Plumeau v. 7 School Dist. #40 Cnty. of Yamhill, 130 F.3d 432 , 438 (9th Cir. 1997) and AE ex rel. Hernandez v. 8 Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012)). For purposes of Monell liability, “policies 9 can include written policies, unwritten customs and practices, [or] failure to train municipal 10 employees on avoiding certain obvious constitutional violations.” Benavidez v. Cty. of San Diego, [11] 993 F.3d 1134, 1153 (9th Cir. 2021). 12 1. Defendants’ Motion for Summary Judgment on the Monell Claim 13 Defendants argue that they are entitled to summary judgment because the County does not 14 have a policy, custom, rule, long standing practice, or regulation that allows for officers or others 15 to violate an inmate’s constitutional rights. Plaintiff is not alleging the County had a policy of 16 violating the Eighth Amendment. Instead, Plaintiff’s theory is that the County is liable for its 17 failure to act. Under an omission theory of liability, “a plaintiff can allege that through its 18 omissions the municipality is responsible for a constitutional violation committed by one of its 19 employees, even though the municipality’s policies were facially constitutional, [and] the 20 municipality did not direct the employee to take the unconstitutional action.” Gibson v. Cnty. 21 Washoe, 290 F.3d 1175, 1186 (9th Cir. 2002). “A policy of inaction or omission may be based on 22 failure to implement procedural safeguards to prevent constitutional violations.” Tsao v. Desert 23 Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012). 24 Plaintiff’s Monell claim is based on a failure to engage procedural safeguards to prevent 25 constitutional violations. Plaintiff contends that due to overpopulation, the Jail routinely 26 disregarded its housing plan by mixing minimum, medium, and maximum-security inmates in the 27 Case No.: 5:19-cv-07300-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR 1 same units and cells. Second, Plaintiff contends that the Jail routinely disregarded its housing plan 2 by housing maximum security inmates in the F Unit, even though F Unit was the lowest security 3 general population unit in the Jail. Third, Plaintiff contends that Defendants routinely disregarded 4 the housing plan’s express prohibition against RTC’ing any inmates in the F Unit. Defendants do 5 not deny that the Jail mixed minimum, medium, and maximum-security inmates in the same units 6 and cells; that the Jail housed maximum security inmates in the F Unit; and that the Jail RTC’d 7 inmates in the F Unit. Nor do they challenge Plaintiff’s contention that the Jail was not operating 8 in compliance with California Code of Regulations Title 15. There is also evidence from which to 9 infer that the failure to comply with the Jail’s housing plan was a routine and longstanding 10 practice. Viewing this evidence in the light most favorable to Plaintiff, a reasonable jury could 11 find Defendants’ de facto practice, custom or policy of failing to follow the housing plan 12 constituted deliberate indifference. Constitutional deprivations may occur not just as a result of 13 the actions of individual officers, but “as a result of the collective inaction of the municipal 14 defendant.” Horton by Horton v. City of Santa Maria, 915 F.3d 592, 604 (9th Cir. 2019) (quoting 15 Fairley v. Luman, 281 F.3d 913 (9th Cir. 2002)). 16 Defendants argue housing decisions were the result of overcrowding. Defendants are 17 correct that overcrowding is not a per se violation of the Eighth Amendment. Ramirez v. City, 18 Cnty. of San Francisco, No. 89-4528 FMS, 1997 WL 33013 , at *5 (N.D. Cal. Jan. 23, 1997). 19 Nevertheless, overcrowding “can form the basis for an Eighth Amendment claim when it causes 20 certain negative effects, such as . . . a disproportionate increase in violence.” Id.; see also Akao v. 21 Shimoda, 832 F.2d 119, 120 (9th Cir. 1987) (allegations of increase in stress, tension, 22 communicable diseases, and confrontations between inmates due to overcrowding states Eighth 23 Amendment claim). Plaintiff’s Monell claim is based on more than just overcrowding; he 24 contends that the failure to comply with housing policies resulted in inmate violence. A 25 reasonable jury could find that the systemic jail mismanagement was the moving force behind the 26 alleged constitutional violation. Furthermore, Defendants are not relieved of liability just because 27 Case No.: 5:19-cv-07300-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR 1 inmates caused Plaintiff’s injuries. See Fanaro, 2021 WL 2207363 , at * 7 (rejecting defendants’ 2 contention that they were relieved of liability because the injuries were caused by Norteño inmates 3 because “[i]f that argument were accepted, no inmate violence claim under the Eighth Amendment 4 could ever succeed because the other inmate is always responsible for it.”). The Jail’s own 5 housing plan was designed to prevent the very type of inmate assault that occurred here. 6 Defendants’ motion for summary judgment on the Monell claim is denied. 7 2. Plaintiff’s Motion for Summary Judgment on Monell Claim 8 Plaintiff’s cross-motion for summary judgment on the Monell claim is denied because 9 although the evidence is largely undisputed, the Court finds that there are genuine issues of fact 10 for trial, including but not limited to whether the County was on actual or constructive notice that 11 its de facto practice, custom or policy of failing to follow the housing plan would likely result in a 12 constitutional violation. Tsao, 698 F.3d at 1145 . There is also a genuine issue as to whether the de 13 facto practice, custom, or policy “caused the violation in the sense that the municipality could 14 have prevented the violation with an appropriate policy.” Id. at 1143 (citations omitted) (internal 15 quotation marks omitted). 16 C. Third, Fourth and Fifth Causes of Action 17 Plaintiff did not address any of County Defendants’ challenges to the claims for violation 18 of the Bane Act, negligence, and intentional infliction of emotional distress. The Court considers 19 these claims abandoned. Ramirez v. City of Buena Park, 560 F.3d 1012, 1026 (9th Cir. 2009); 20 Jenkins v. Cty. of Riverside, 398 F.3d 1093 , 1095 n.4 (9th Cir. 2005). Accordingly, Defendants’ 21 motion for summary judgment is granted as to the three state law claims. 22 // 23 // 24 // 25 // [26] 27 Case No.: 5:19-cv-07300-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR 1 || IV. CONCLUSION 2 Plaintiff’s motion for summary judgment is DENIED. Defendants’ motion for summary 3 || judgment is GRANTED as to the claims for violation of the Bane Act, negligence and intentional 4 || infliction of emotional distress, and DENIED in all other respects. [5] 6 IT ISSO ORDERED. 7 || Dated: July 19, 2022 [9] EDWARD J. DAVILA 10 United States District Judge [16] 4 18 [26] 27 Case No.: 5:19-cv-07300-EJD ORDER GRANTING IN PART AND DENYINGIN PART DEFENDANTS’ MOTION FOR 283 || SUMMARY JUDGMENT; DENYING PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT