liability may not be predicated 8 on isolated or sporadic incidents; “it must be founded on practices of sufficient duration, frequency 9 and consistency that the conduct has become a traditional method of carrying out policy”
How later courts described this case
- liability may not be predicated 8 on isolated or sporadic incidents; “it must be founded on practices of sufficient duration, frequency 9 and consistency that the conduct has become a traditional method of carrying out policy”
- finding plaintiff adequately pled civil conspiracy 6 where she alleged that police detective colluded with Doe defendants to arrange for the filing of 7 criminal charges against a defense witness in an effort to make the witness unavailable to testify
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 MICHELLE SAXTON, et al., Case No. 21-cv-09499-SI
8 Plaintiffs,
ORDER GRANTING DEFENDANTS’
9 v. MOTION TO DISMISS FIRST
AMENDED COMPLAINT AND
10 COUNTY OF SONOMA, et al., GRANTING LEAVE TO AMEND
11 Defendants. Re: Dkt. No. 19
12
13 On February 22, 2022, defendants County of Sonoma, Sonoma County Board of
14 Supervisors, Sonoma County Sheriff’s Department, Sonoma County Sheriff Mark Essick, and
15 individual officers Does 1-50, filed the instant motion to dismiss the first amended complaint
16 (“FAC”). Dkt. No. 19 at 8.1 Having reviewed the parties’ submissions, the Court found this matter
17 appropriate for resolution without oral argument and VACATED the April 22, 2022 hearing
18 pursuant to Local Rule 7-1(b). For the reasons stated below, defendants’ motion to dismiss is
19 GRANTED. Plaintiffs may file an amended complaint by May 13, 2022.
20
21 BACKGROUND
22 Amber Marcotte was arrested for driving under the influence and was held in custody at the
23 Sonoma County Main Adult Detention Facility (“MADF”) starting on July 11, 2020. First Amended
24 Compl. ¶ 25 (“FAC”) (Dkt. No. 17). On the morning of October 29, 2020, Ms. Marcotte died of a
25 fentanyl overdose in her cell at the MADF. Id. ¶ 20. At roughly 4:30 a.m., guards found Ms.
26 Marcotte’s cellmate, Tiffany Pimentel, outside of the cell, also overdosing on fentanyl. Id. ¶ 22.
27
1 “[I]nvestigators found no drugs or drug paraphernalia in their cell or on their persons.” Id. ¶ 24.
2 Their cell “was locked at night and cannot be opened without the assistance of a guard. Security
3 cameras inside the pod would also capture anyone entering or leaving Ms. Marcotte’s cell at any
4 time.” Id. ¶ 26.
5 Just prior to her death, Ms. Marcotte was participating in the substance abuse treatment
6 programs available at the MADF. Id. ¶ 34. “Neither Ms. Marcotte nor Ms. Pimentel had significant
7 funds in their jail accounts at the time they acquired fentanyl inside the Jail.” Id. ¶ 28. On the same
8 day, October 29, 2020, the Sheriff’s Department “called and informed Ms. Marcotte’s father,
9 Michael Marcotte, that his daughter had died in the Jail. Later that day, Mr. Marcotte committed
10 suicide by jumping off the Carquinez Bridge in Vallejo, California.” Id. ¶ 52.
11 “In the several years preceding Ms. Marcotte’s death, there were numerous incidents of
12 narcotics possession inside jail facilities operated by Sonoma County and the Sonoma County
13 Sheriff’s Department.” Id. ¶ 27.
14 The Sonoma County Sheriff’s Department, responsible for the MADF, has adopted a
15 “Critical Incident Protocol” which governs the Sheriff’s Department’s response to fatal injuries. Id.
16 ¶¶ 37-38. The protocol mandates that “an independent pathologist/Coroner’s Office shall be
17 requested to conduct the Coroner’s investigation in any fatal injury occurring within the custodial
18 facilities of the Sonoma County Sheriff’s Office.” Id. ¶ 38. The protocol also mandates the “District
19 Attorney’s Investigator will determine if the District Attorney’s Office should assist with the
20 investigation.” Id. Where the incident is “Employee-Involved,” the protocol mandates “that the
21 employer agency, or the venue agency if the necessary investigative resources are not available,
22 does not lead or have overall responsibility for the criminal investigation.” Id.
23 The Sheriff’s Department “did not invoke the Critical Incident Protocol.” Id. ¶ 39. On
24 October 29, “[a]pproximately four hours after finding Ms. Marcotte in her cell, the Sonoma County
25 Sheriff’s Department requested the assistance of the Napa County Sheriff to conduct a coroner’s
26 investigation of the cause of death.” Id. ¶ 23. “On September 23, 2021, an Assistant District
27 Attorney for Sonoma County informed [plaintiff’s] counsel that the Sheriff’s Department ‘rarely’
1 County Sheriff’s Department “oversaw the investigation of the security breach perpetuated by its
2 own officers and staff.” Id.
3 On September 23, 2021, the Sonoma County District Attorney’s office informed plaintiff’s
4 counsel the Sheriff’s Department had submitted investigation reports, which the District Attorney
5 referred back to the Sheriff’s Department to conduct additional investigation. Id. ¶ 56. “On
6 September 3, 2021, the Sheriff’s Department submitted its additional investigation to the District
7 Attorney.” Id. The District Attorney did not provide details of the investigation to plaintiffs, though
8 plaintiffs “learned from third-party witnesses” three suspects were identified: Tiffany Pimentel,
9 Bianca Navarro and Frankie Thompson. Id. ¶ 41.2
10 On December 8, 2021, plaintiffs Michelle Saxton, Estate of Michael Marcotte, Estate of
11 Amber Marcotte, and James Clark, filed this action. Dkt. No. 1 (Complaint). On January 19, 2022,
12 defendants County of Sonoma, Sonoma County Board of Supervisors, Sonoma County Sheriff’s
13 Department, and Sonoma County Sheriff Mark Essick moved to dismiss the original complaint.
14 Dkt. No. 14 (first MTD). On February 8, 2022, plaintiffs filed a FAC. Dkt. No. 17 (FAC). In the
15 FAC, plaintiffs allege federal causes of action arising under 42 U.S.C. § 1983 (causes of action 1,
16 2, 3, 4, and 5) and California state law causes of action (causes of action 6, 7, and 8). Id.
17
18 LEGAL STANDARD
19 A complaint must contain “a short and plain statement of the claim showing that the pleader
20 is entitled to relief,” and a complaint that fails to do so is subject to dismissal pursuant to Rule
21 12(b)(6). Fed. R. Civ. P. 8(a)(2). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must
22 allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
23 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff to allege facts
24 that add up to “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v.
25 Iqbal, 556 U.S. 662, 678 (2009). While courts do not require “heightened fact pleading of
26
27
2 The FAC does not explicitly allege that Navarro and Thompson were also pretrial detainees
1 specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative
2 level.” Twombly, 550 U.S. at 555, 570. “A pleading that offers ‘labels and conclusions’ or ‘a
3 formulaic recitation of the elements of a cause of action will not do.’ ” Iqbal, 556 U.S. at 678
4 (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’
5 devoid of ‘further factual enhancement.’ ” Id. (quoting Twombly, 550 U.S. at 557). “While legal
6 conclusions can provide the framework of a complaint, they must be supported by factual
7 allegations.” Id. at 679.
8 In reviewing a Rule 12(b)(6) motion, courts must accept as true all facts alleged in the
9 complaint and draw all reasonable inferences in favor of the non-moving party. See Usher v. Cty
10 of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, courts are not required to accept as
11 true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable
12 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted).
13 The Ninth Circuit has repeatedly held “a district court should grant leave to amend even if no request
14 to amend the pleading was made, unless it determines that the pleading could not possibly be cured
15 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations and
16 internal quotation marks omitted).
17
18 DISCUSSION
19 The FAC alleges five causes of action under 42 U.S.C. § 1983. First, plaintiffs allege
20 defendants intentionally, recklessly, and with deliberate indifference, failed to intervene to prevent
21 narcotics trafficking within the MADF and failed to oversee proper investigation of fatal injuries in
22 the MADF. FAC ¶¶ 68-71. Second, plaintiffs allege defendants maintained unconstitutional
23 customs, practices or policies in failing to prevent narcotics trafficking in the MADF, “[f]ailing to
24 maintain monitoring/surveillance of cells, dormitories, and dayrooms, in a manner capable of
25 alerting personnel who could respond to security threats inside the Jail,” and failing to “sufficiently
26 investigate and/or supervise the Sheriff’s Department’s investigations of crimes occurring inside the
27 Jail.” Id. ¶ 76. Third, plaintiffs allege defendants failed to train their subordinates to prevent the
1 conspired with each other, Tiffany Pimentel, and Bianca Navarro to violate Ms. Marcotte’s civil
2 rights. Id. ¶¶ 89-90. Fifth, plaintiffs bring an express Monell cause of action, alleging the entity
3 defendants deliberately failed to enforce applicable policies and “encouraged a culture of
4 lawlessness” at the MADF by failing to supervise or investigate misconduct of MADF staff. Id.
5 ¶¶ 95-96.
6 Because plaintiffs have named local government defendants – the County of Sonoma,
7 Sonoma County Board of Supervisors, and the Sonoma County Sheriff’s Department – the Court
8 addresses whether the local government defendants may be held liable under Monell v. Dep’t of
9 Social Servs., 436 U.S. 658 (1978). Defendants argue all five of plaintiffs’ causes of action arising
10 under 42 U.S.C. § 1983 are appropriately classified as Monell claims whose real defendant in
11 interest is the County of Sonoma. Dkt. No. 19 at 22 (MTD). Plaintiffs assert all named defendants
12 are proper and argue “it is Defendants’ own refusal to provide relevant information concerning Ms.
13 Marcotte’s death that precludes Plaintiffs from alleging further factual detail.” Dkt. No. 24 at 6, 19
14 (Opp. to MTD).
15
16 I. Monell Liability
17 Local governments are “persons” subject to liability under 42 U.S.C. § 1983 where official
18 policy or custom causes a constitutional tort, see Monell, 436 U.S. at 690; however, a city or county
19 may not be held vicariously liable for the unconstitutional acts of its employees under the theory of
20 respondeat superior. See Board of Cty. Comm’rs. of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997);
21 Monell, 436 U.S. at 691; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). To establish
22 an official policy that would give rise to Monell liability, a plaintiff must allege facts to support one
23 of the following to survive dismissal of its claim: (1) an unconstitutional custom or policy behind
24 the violation of rights; (2) a deliberately indifferent omission, such as a failure to train or failure to
25 have a needed policy; or (3) a final policy-maker’s involvement in, or ratification of, the conduct
26 underlying the violation of rights. Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249-50
27 (9th Cir. 2010) (synthesizing authorities), overruled on other grounds by Castro v. Cty. of Los
1 Municipal liability requires a showing that the local government’s policy amounts to
2 deliberate indifference to the plaintiff’s constitutional rights. Plumeau v. School Dist. #40 County
3 of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). If the policy is not obviously, facially deficient, “a
4 plaintiff must ordinarily point to a pattern of prior, similar violations of federally protected rights,
5 of which the relevant policymakers had actual or constructive notice.” Park v. City and Cty. of
6 Honolulu, 952 F.3d 1136, 1141-43 (9th Cir. 2020) (citing Bd. of Cty. Comm'rs of Bryan Cty., Okl.
7 v. Brown, 520 U.S. 397, 409 (1997)).
8 “[W]here a government official is merely negligent in causing the injury, no procedure for
9 compensation is constitutionally required.” Davidson v. Cannon, 474 U.S. 344, 347 (1986). “That
10 injuries inflicted by governmental negligence are not addressed by the United States Constitution is
11 not to say that they may not raise significant legal concerns and lead to the creation of protectible
12 legal interests.” Daniels v. Williams, 474 U.S. 327, 333 (1986). However, “negligence on the part
13 of the municipal defendant [is] a much lower standard of fault than deliberate indifference.”
14 Blankenhorn v. City of Orange, 485 F.3d 463, 485 (9th Cir. 2007)
15 Defendants contend that plaintiffs’ allegations are conclusory. Dkt. No. 19 at 13 (Second
16 MTD). The Court agrees. Proof of isolated incidents of unconstitutional action by a non-
17 policymaking employee is insufficient to establish the existence of a municipal policy or custom.
18 See Rivera v. County of Los Angeles, 745 F.3d 384, 398 (9th Cir. 2014); McDade v. West, 223 F. 3d
19 1135, 1142 (9th Cir. 2000); Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996); Thompson v. City
20 of Los Angeles, 885 F.2d 1439, 1444 (9th Cir. 1989).
21 Concerning the first cause of action, failure to intervene, plaintiffs have not alleged facts
22 sufficient to support the conclusion that defendants unreasonably allowed or participated in putting
23 Ms. Marcotte at risk of fentanyl overdose or failed to take remedial action after being aware of the
24 overdose. Cf. Sandoval v. Cty. of San Diego, 985 F.3d 657 (9th Cir.), cert. denied sub nom. San
25 Diego Cty. v. Sandoval, 142 S. Ct. 711, 211 L. Ed. 2d 400 (2021) (reversing grant of summary
26 judgment for defendants where pretrial detainee showed obvious signs of drug overdose but jail
27 staff refused to take remedial action).
1 facilitating or allowing narcotics trafficking into the MADF sufficient to support the second cause
2 of action, unconstitutional customs, practices or policies. Plaintiffs allege “numerous incidents of
3 narcotics possession inside jail facilities operated by Sonoma County and the Sonoma County
4 Sheriff’s Department,” but do not support the conclusion with any factual allegations regarding
5 other incidents. Dkt. No 17 ¶ 27 (FAC); Dkt. No. 24 at 6 (Opposition) (“inmate overdoses regularly
6 occur”). Conclusory and sparse allegations are not sufficient to show a custom or practice. See
7 Gant v. County of Los Angeles, 772 F.3d 608, 618 (9th Cir. 2014) (liability may not be predicated
8 on isolated or sporadic incidents; “it must be founded on practices of sufficient duration, frequency
9 and consistency that the conduct has become a traditional method of carrying out policy”); Bauer v.
10 City of Pleasanton, 3:19-cv-04593-LB, 2020 WL 1478328, at *5 (N.D. Cal. Mar. 26, 2020) (“two
11 prior incidents . . . do not show a persistent and widespread custom” (internal quotation marks
12 omitted); see also Sweiha v. Cty. of Alameda, No. 19-CV-03098-LB, 2019 WL 4848227, at *4 (N.D.
13 Cal. Oct. 1, 2019) (five incidents with “markedly different facts” do not show a persistent and
14 widespread custom) (internal quotation marks omitted).
15 Similarly, plaintiffs have not alleged sufficient facts in support of the third cause of action,
16 failure to train subordinates. “A pattern of similar constitutional violations” by untrained employees
17 is ordinarily necessary to establish that the failure to train or supervise is a deliberate policy.
18 Connick v. Thompson, 563 U.S. 51, 52 (2011). A local government’s liability under 42 U.S.C.
19 § 1983 is at “its most tenuous,” when the claim is based on a failure to train. Id. at 61. Here,
20 plaintiffs pled failure to “train, supervise, and control” MADF employees “in the proper recognition
21 of narcotics trafficking activity and employment of proper security measures,” “in properly
22 monitoring, deterring, controlling and responding to trafficking of narcotics,” “in the proper
23 response to dangerous situations,” and “[f]ailing to maintain video monitoring/surveillance of
24 inmate areas . . . to ensure safety of inmates.” Dkt. No. 17 ¶ 82 (FAC). However, plaintiffs have
25 not pled factual allegations regarding other incidents supporting the conclusion that defendants’
26 pattern of similar constitutional violations is a deliberate policy. Id. ¶¶ 80-82.
27 Plaintiffs have also not alleged facts sufficient to support the fourth cause of action,
1 conspiring parties reached a unity of purpose or common design and understanding, or a meeting of
2 the minds in an unlawful agreement. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir.
3 1999). A defendant’s knowledge of and participation in a conspiracy may be inferred from
4 circumstantial evidence and from evidence of the defendant's actions. Id. at 856-57. See Park v.
5 Thompson, 851 F.3d 910 at 928-29 (9th Cir. 2017) (finding plaintiff adequately pled civil conspiracy
6 where she alleged that police detective colluded with Doe defendants to arrange for the filing of
7 criminal charges against a defense witness in an effort to make the witness unavailable to testify).
8 Here, plaintiffs have not pled facts supporting the conclusions (1) defendants conspired to put Ms.
9 Marcotte in obvious risk of a fentanyl overdose or (2) obstructed investigation of Ms. Marcotte’s
10 death. Dkt. No. 17 ¶¶ 88-90 (FAC).
11 Accordingly, the Court GRANTS defendants’ motion to dismiss the Monell allegations and
12 GRANTS plaintiffs leave to amend. If plaintiffs wish to pursue a Monell claim against Sonoma
13 County, plaintiffs must be able to allege more than isolated or sporadic incidents; rather, plaintiffs
14 must be able to allege “practices of sufficient duration, frequency and consistency that the conduct
15 has become a traditional method of carrying out policy.” Trevino, 99 F.3d at 918.
16
17 II. Supplemental Jurisdiction
18 Plaintiffs’ sixth cause of action (negligence), seventh cause of action (negligent infliction of
19 emotional distress), and eighth cause of action (intentional infliction of emotional distress) are all
20 California state law causes of action, which are only properly before the Court through supplemental
21 jurisdiction. Dkt. No. 17 ¶¶ 100-121 (FAC). A district court may decline to exercise supplemental
22 jurisdiction if: “(1) the claim raises a novel or complex issue of state law, (2) the claim substantially
23 predominates over the claim or claims over which the district court has original jurisdiction, (3) the
24 district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional
25 circumstances, there are other compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c).
26 Regarding 28 U.S.C. § 1367(c)(3), “in the usual case in which all federal-law claims are
27 eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction
1 supplemented, 121 F.3d 714 (9th Cir. 1997), as amended (Oct. 1, 1997) (quoting Carnegie-Mellon
2 University v. Cohill, 484 U.S. 343, 350 n.7 (1988)). The factors to be considered include economy,
3 convenience, fairness, and comity. Acri at 1001.
4 Here, all federal-law claims are dismissed with leave to amend. If plaintiffs are ultimately
5 unable to state a federal cause of action, the Court will decline supplemental jurisdiction over the
6 || remaining state-law claims. Until a determination is made regarding whether plaintiffs have stated
7 a federal cause of action, the Court will not address the parties’ arguments regarding the state-law
8 || claims.
9
10 CONCLUSION
11 For the foregoing reasons, the Court GRANTS defendants’ motion to dismiss and GRANTS
12 || plaintiffs leave to amend. A second amended complaint must be filed on or before May 13,
5 13 || 2022.
IT IS SO ORDERED.
Gn lee
= 17 Dated: April 26, 2022
SUSAN ILLSTON
2 18 United States District Judge
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