# Grizzle v. San Diego, County of

> District Court, S.D. California · August 27, 2019

URL: https://www.frixlaw.com/law-library/cases/10079451

## Case

- **Court:** District Court, S.D. California
- **Decided:** August 27, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10079451

## How later opinions describe it (automated extraction)

- reversing district court’s summary dismissal of Eighth Amendment claim 11 premised on excess noise where the plaintiff alleged “‘screaming, wailing, crying, singing 12 and yelling,’ often in groups, and that there was a ‘constant, loud banging’”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 Case No.: 17-CV-813 JLS (RBM)

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ORDER: (1) OVERRULING
13 ELLIOT SCOTT GRIZZLE, OBJECTIONS,
(2) ADOPTING REPORT AND
14 Plaintiff,
RECOMMENDATION, AND
15 v. (3) GRANTING IN PART AND
DENYING IN PART THE MOVING
16 COUNTY OF SAN DIEGO, et al.,
DEFENDANTS’
17 Defendant. MOTION TO DISMISS

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(ECF Nos. 93, 97, 99, 100)
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20 Presently before the Court is a Motion to Dismiss Plaintiff Elliot Scott Grizzle’s
21 Second Amended Complaint filed by Defendants County of San Diego (the “County”),
22 Sheriff William Gore, Lieutenant Lena Lovelace, and Lieutenant Eric Froistad (the
23 “Moving Defendants”) (“Mot.,” ECF No. 93). Also before the Court is Magistrate Judge
24 Ruth Bermudez Montenegro’s Report and Recommendation (“R&R,” ECF No. 97)
25 advising the Court to grant in part and deny in part the Moving Defendants’ Motion, as
26 well as the Moving Defendants’ (“Defs.’ Obj.,” ECF No. 99) and Plaintiff’s (“Pl.’s Obj.,”
27 ECF No. 100) Objections to Magistrate Judge Montenegro’s R&R and Plaintiff’s (“Pl.’s
28 Reply,” ECF No. 101) and the Moving Defendants (“Defs.’ Reply,” ECF No. 102)
1 Replies. Having considered the Parties’ arguments and the law, the Court OVERRULES
2 Plaintiff’s Objections, OVERRULES the Moving Defendants’ Objections, ADOPTS the
3 R&R in its entirety, and GRANTS IN PART AND DENIES IN PART the Moving
4 Defendants’ Motion.
5 BACKGROUND
6 Magistrate Judge Montenegro’s R&R contains a thorough and accurate recitation of
7 the facts and procedural history underlying the instant Motion. See R&R at 2–6. This
8 Order incorporates by reference the background as set forth therein.
9 LEGAL STANDARD
10 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district
11 court’s duties in connection with a magistrate judge’s report and recommendation. The
12 district court must “make a de novo determination of those portions of the report or
13 specified proposed findings or recommendations to which objection is made,” and “may
14 accept, reject, or modify, in whole or in part, the findings or recommendations made by the
15 magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667,
16 673–76 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). In the absence
17 of timely objection, however, the Court “need only satisfy itself that there is no clear error
18 on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72
19 advisory committee’s note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th
20 Cir. 1974)).
21 ANALYSIS
22 Plaintiff’s operative Second Amended Complaint alleges four causes of action
23 against the Moving Defendants for: (1) violation of Plaintiff’s rights under the Due Process
24

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1 Also pending before the Court is a separate motion to dismiss filed by Defendant Aaron Boorman on
26 April 5, 2019, see ECF No. 98 (the “Boorman Motion”), after Magistrate Judge Montenegro filed her
R&R on the Moving Defendants’ Motion on March 7, 2019. See ECF No. 97. Although Magistrate Judge
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Montenegro has issued a report and recommendation concerning the Boorman Motion, briefing on her
28 report and recommendation does not close until September 6, 2019. See ECF No. 106. Accordingly, the
1 Clause of the Fourteenth Amendment as to his placement in the administrative segregation
2 housing unit (“Ad-Seg”); (2) violation of Plaintiff’s Eighth Amendment rights premised
3 on sleep deprivation resulting from his confinement in Ad-Seg; (3) violation of Plaintiff’s
4 Eighth Amendment rights premised on prevention from exercising; and (4) violation of
5 Plaintiff’s Eighth Amendment Rights premised on Plaintiff being forced to choose between
6 sleep and exercise. See ECF No. 88 (“SAC”) at 15–19.
7 Magistrate Judge Montenegro recommends that the Court deny the Motion as to
8 Plaintiff’s first, see R&R at 7–11, and second, see id. at 11–14, causes of action against the
9 County. Magistrate Judge Montenegro also recommends that the Court terminate without
10 leave to amend Defendant Froistad as to all Plaintiff’s causes of action; terminate
11 Defendant Lovelace as to Plaintiff’s second, third, and fourth causes of action; and
12 terminated Sheriff Gore as to Plaintiff’s first cause of action. See id. at 14–19, 21–22.
13 Finally, Magistrate judge Montenegro recommends that the Court dismiss without
14 prejudice Plaintiff’s claims for injunctive and declaratory relief. See id. at 19–21.
15 The Moving Defendants object to Magistrate Judge Montenegro’s recommendations
16 concerning Plaintiff’s first and second causes of action and claim that Plaintiff has not
17 stated a viable claim against either the County of Sheriff Gore. See generally ECF No. 99.
18 Plaintiff separately objects to Magistrate Judge Montenegro’s recommendations
19 concerning the termination of individual defendants Froistad, Lovelace, and Gore and
20 dismissal of his claims for declaratory and injunctive relief. The Court reviews de novo
21 those portions of Magistrate Judge Montenegro’s R&R to which the Parties object and
22 reviews for clear error those portions to which the Parties do not object.
23 I. The First Cause of Action Against the County
24 Plaintiff first alleges violation of his due process rights under the Fourteenth
25 Amendment arising from his placement in solitary confinement without notice or
26 opportunity for a non-adversarial hearing. See SAC ¶¶ 44–51. The Court previously
27 denied a motion to dismiss this claim. See ECF No. 73 at 3–5. Nonetheless, the Moving
28 Defendants again argue that Plaintiff’s due process claim against the County should be
1 dismissed because “Plaintiff fails to establish the County’s liability under any of the
2 Gilette[ v. Delmore, 979 F.2d 1342 (9th Cir. 1992)] prong[s].” Mot. at 6. Magistrate Judge
3 Montenegro again recommends that the Court deny the Moving Defendants’ Motion. See
4 R&R at 7–11.
5 A. Deprivation of Plaintiff’s Right to Due Process
6 Magistrate Judge Montenegro concludes that Plaintiff’s allegations that Defendants
7 did not provide Plaintiff with an informal, nonadversary hearing within a reasonable time
8 after being placed in Ad-Seg; a written decision describing the reasons for placing him in
9 Ad-Seg; and an opportunity to present his view amount to a constitutional violation. See
10 R&R at 8–9 (citing Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986), abrogated
11 in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995)). Neither Party appears
12 to object to this portion of Magistrate Judge Montenegro’s R&R, see generally Defs.’ Obj.
13 at 1–3; Pl.’s Obj. at 2, and the Court finds no clear error in the recommendation.
14 B. Wide-Settled City Policy
15 Magistrate Judge Montenegro finds that Plaintiff has sufficiently stated a claim that
16 Plaintiff’s alleged due process violation was caused by a de facto County policy because
17 “Plaintiff has alleged a widespread practice that is so permanent and well settled as to
18 constitute a custom or usage with the force of law.” R&R at 10. The Moving Defendants
19 object that “the R&R did not point to any authority providing a clear standard in alleging
20 a viable section 1983 claim under the ‘de facto policy’ theory.” Defs.’ Obj. at 2. Further,
21 “Plaintiff did not sufficiently allege a pattern or custom of the constitutional deprivation.”
22 Id. at 3.
23 In short, the Moving Defendants attempt to distinguish Plaintiff’s situation, which
24 involves multiple alleged due process violations against Plaintiff, from cases in which
25 multiple plaintiffs alleged separate due process violations. The Moving Defendants,
26 however, cite no authority that would require the Court to conclude that Plaintiff’s
27 allegations are insufficient to establish a pattern or custom as necessary to state a claim
28 against the County. To the contrary, it would appear that other district courts have found
1 such allegations sufficient to state a claim. See, e.g., Kirk v. Foster, No. 3:13-CV-00296-
2 RCJ, 2014 WL 6792028, at *15 (D. Nev. Dec. 1, 2014) (“Plaintiff avers Plaintiff that he
3 was written up more than fifty times for more than 100 alleged rule violations, which
4 resulted in the loss of liberties, including four months in punitive segregation, for which he
5 was seldom afforded due process. He has sufficiently alleged a claim for denial of his
6 procedural due process rights under the Fourteenth Amendment against [the defendant]
7 County . . . .”). On de novo review, the Court therefore OVERRULES the Moving
8 Defendants’ objection and ADOPTS Magistrate Judge Montenegro’s recommendation
9 that Plaintiff sufficiently alleges that the County maintains a policy resulting in the
10 deprivation of Plaintiff’s due process rights in violation of the Fourteenth Amendment.
11 C. Deliberate Indifference
12 Finally, Magistrate Judge Montenegro concludes that “Plaintiff’s allegations of
13 repeated failures to respond to his grievances and the lack of process afforded him are
14 sufficient to allege that th[e County’s] de facto policy was widely adhered to with
15 deliberate indifference to Plaintiff’s Fourteenth Amendment rights.” R&R at 10–11.
16 Neither Party appears to object to this portion of Magistrate Judge Montenegro’s R&R, see
17 generally Defs.’ Obj. at 1–3; Pl.’s Obj. at 2, and the Court finds no clear error in the
18 recommendation. The Court therefore ADOPTS Magistrate Judge Montenegro’s R&R
19 and DENIES the Moving Defendants’ Motion as to Plaintiff’s first cause of action.
20 II. The Second Cause of Action Against the County
21 Plaintiff’s second cause of action against the County alleges that the County
22 maintains a policy of housing mentally ill inmates in Ad-Seg, where there is excessive
23 lighting and noise leading to chronic sleep deprivation in violation of Plaintiff’s Eighth
24 Amendment rights. See SAC ¶¶ 52–59. The Court previously dismissed this claim,
25 concluding that Plaintiff had “not presented sufficient facts to support his asserting that
26 lighting conditions and noise levels constitute punishment.” ECF No. 73 at 9. The Moving
27 Defendants contend that Plaintiff’s amended allegations still do “not allege[] sufficiently
28 serious additional facts indicating that his constitutional rights were violated due to lack of
1 sleep.” Mot. at 6. Magistrate Judge Montenegro recommends that the Court deny the
2 Moving Defendants’ Motion. See R&R at 11–14.
3 A. Constitutional Deprivation of Pretrial Rights
4 Magistrate Judge Montenegro concludes that “Plaintiff has sufficiently shown a
5 violation of his constitutional rights under the Fourteenth Amendment” because “[t]he Ad-
6 Seg daily routine alleged . . . was so regular and organized that it was clearly the result of
7 an intentional decision,” “[t]hese alleged conditions of confinement put Plaintiff at
8 substantial risk of suffering serious harm,” “[r]easonable available measures were not taken
9 to abate the risk,” and “the claimed failure to take such measures resulted in Plaintiff’s
10 injuries.” R&R at 11–12. The Moving Defendants object that “Plaintiff has not presented
11 sufficient allegations to show that the lighting situation violated his constitutional rights”
12 because “there is insufficient facts to support that a defendant intentionally or recklessly
13 kept Plaintiff awake by subjecting him []to a constant illumination environment.” Defs.’
14 Objs. at 3–4. The Moving Defendants also object that “Plaintiff fails to establish that noise
15 violated his constitutional right” because “[t]he various noises that Plaintiff complained
16 about . . . are incidental to the operation of the facility” and “cannot reflect any Defendant’s
17 intent or recklessness to keep Plaintiff awake or subject him []to a constant noisy
18 environment.” Id. at 4–5.
19 Upon de novo review, the Court disagrees with the Moving Defendants on both
20 counts. Here, Plaintiff alleges that “[t]he TVs are turned off between 9:45 PM and 10:30
21 PM Sunday through Thursday and 10:45 PM through 11:30 PM Friday through Saturday.”
22 SAC ¶ 23. An inmate count is performed at approximately 11:00 PM, which requires the
23 inmates to walk to their door. Id. Deputies then issue razors at the 12:00 AM security
24 check by “opening each inmate[’]s tray slot in their cell door and letting it fall open[,]
25 making a loud banging sound[,] and shortly thereafter the tray slot door is loudly slammed
26 shut.” Id. This process is repeated when the razors are picked up at the 1:00 AM security
27 check, at which points the cell lights are dimmed, although they remain “too bright to allow
28 a human being to sleep.” Id. The lights are then turned up and the inmates awakened at
1 3:30 AM for another count, requiring the inmates to go to their cell doors. Id. ¶ 25.
2 Breakfast is passed out between 4:00 and 4:30 AM, at which point the cell lights are
3 dimmed until 7:00 AM. Id. At 7:00 AM, the cell lights are again turned up and the TVs
4 are turned on to their highest volume. Id. During the night, there are also hourly “security
5 walks,” which entail “the opening and loud slamming of at least two heavy metal fire doors
6 between modules.” Id. ¶ 26. Because “severely mentally ill” inmates are also housed in
7 Ad-Seg, there is constant screaming; yelling; and banging on metal cell doors, toilets, and
8 bunk beds. Id. ¶ 28. As a result of these factors, Plaintiff has been “unable to sleep,” id.
9 ¶ 53, which has caused him to suffer “headaches, muscle aches, and ability to focus and
10 think clearly, feeling high levels of stress and anxiety, eye pain, high blood pressure,
11 lowered immune system functioning causing plaintiff to get sick, suffer severe lethargy
12 and fatigue, infections, impaired motor and cognitive functions, as well as a number of
13 other physical and psychological injuries.” Id. ¶ 30.
14 The Moving Defendants’ arguments that “constant lighting can serve a legitimate
15 purpose,” Defs.’ Obj. at 3, and that some noise is inherent in the operation of a facility such
16 as the SDCJ, id. at 4–5, are well taken; however, construing the facts most favorably to
17 Plaintiff, the Court determines on de novo review that Plaintiff’s allegations suffice to
18 survive a motion to dismiss. The policy implemented by the County provided—at best—
19 two two-and-a-half hour stretches in bed per evening during which the TVs were turned
20 off and the lights were turned down. During this time, however, officers continued to
21 perform hourly security checks, during which time they slammed two heavy, metal fire
22 doors, and the mentally ill inmates—who were also housed in Ad-Seg per the County’s
23 policy—were permitted to scream, yell, and bang on metal objects. Because such
24 allegations suffice to state a claim at the pleading stage, see, e.g., Matthews v. Holland, No.
25 114CV01959SKOPC, 2017 WL 1093847, at *3–5 (E.D. Cal. Mar. 23, 2017), the Court
26 OVERRULES the Moving Defendants’ objections and ADOPTS Magistrate Judge
27 Montenegro’s recommendation that Plaintiff adequately alleges a violation of his
28 / / /
1 Fourteenth Amendment rights premised on the excessive light and noise while he was
2 housed in Ad-Seg.
3 B. Official Policy or Custom Causing Injury
4 Magistrate Judge Montenegro “finds that Plaintiff has shown the existence of a
5 policy that was causally linked to the constitutional injury” because the “alleged details of
6 the Ad-Seg schedule . . . can only be the result of a policy.” R&R at 13. The Moving
7 Defendants, however, object that “Plaintiff does not allege that his sleep deprivation is due
8 to a specific County policy or widespread custom.” Defs.’ Obj. at 5.
9 On de novo review, the Court must agree with Magistrate Judge Montenegro.
10 Plaintiff’s understandable inability to point to a specific policy at the pleading stage does
11 not foreclose his claim where, as here, he has detailed a nightly routine conducted pursuant
12 to County policy. It strains credulity that the 11:00 PM and 3:30 AM counts, hourly
13 security checks, 12:00 AM razor distribution and 1:00 AM razor pick up, and 4:00 to 4:30
14 AM breakfast distribution are not conducted pursuant to a policy or policies adopted by the
15 County. The Court therefore OVERRULES the Moving Defendants’ objection and
16 ADOPTS Magistrate Judge Montenegro’s recommendation that Plaintiff sufficiently
17 alleges that the County adopted a policy causally linked to Plaintiff’s claimed sleep
18 deprivation.
19 C. Deliberate Indifference
20 Finally, Magistrate Judge Montenegro concludes that Plaintiff has alleged that “the
21 policy was adhered to with deliberate indifference to his constitutional rights” because
22 Plaintiff’s “allegation of . . . widespread adherence [by jail employees to the municipal
23 policies and practices], combined with the allegation that Plaintiff continuously and
24 vociferously objected to the conditions of his confinement, sufficiently state a claim of
25 deliberate indifference to the constitutional violation that was occurring.” R&R at 14. The
26 Moving Defendants object that “Plaintiff fails to plausibly plead that this routine is
27 deliberately indifferent to inmate[s’] constitutional right[s] as required by Canton[ v.
28 Harris, 489 U.S. 378 (1989)]” because “[i]t is unrealistic to request the County to meet
1 every inmate’s personal desires for their daily routine or change the jail’s daily schedule
2 based on one inmate’s complaint.” Obj. at 5–6. The Moving Defendants also contend that
3 “[t]he R&R confuses the alleged failure to address Plaintiff’s personal sleep deprivation
4 issue with a County policy or custom being deliberately indifferent to all inmates[’] sleep.”
5 Id. at 5.
6 The Court disagrees with the Moving Defendants. Plaintiff adequately alleges that
7 the County adopted a policy that it knew would not result in an environment reasonably
8 free of excess noise, thereby impacting the sleep of inmates housed in Ad-Seg. See, e.g.,
9 Keenan v. Hall, 83 F.3d 1083, 1090 (1996), as amended on denial of reh’g, 135 F.3d 1318
10 (9th Cir. 1998) (reversing district court’s summary dismissal of Eighth Amendment claim
11 premised on excess noise where the plaintiff alleged “‘screaming, wailing, crying, singing
12 and yelling,’ often in groups, and that there was a ‘constant, loud banging’”). On de novo
13 review, the Court therefore OVERRULES the Moving Defendants’ objection, ADOPTS
14 Magistrate Judge Montenegro’s recommendation, and DENIES the Moving Defendants’
15 Motion as to Plaintiff’s second cause of action.
16 III. Claims Against Individual Defendants
17 In addition to the claims against the County, Plaintiff also asserts each of his four
18 causes of action against Lieutenants Froistad and Lovelace and Sheriff Gore individually.
19 See SAC ¶¶ 44–73. The Moving Defendants contend that each of Plaintiff’s claims must
20 be dismissed as to Lieutenant Froistad and Sheriff Gore and that Plaintiff’s second, third,
21 and fourth causes of action should be dismissed as to Lieutenant Lovelace. See Mot. at
22 8–11.
23 A. Lieutenant Froistad
24 Magistrate Judge Montenegro concludes that Plaintiff fails to state any claim as to
25 Lieutenant Froistad because “[t]he SAC does not sufficiently allege Froistad’s personal
26 participation in, causal connection to, or culpable indifference to, Plaintiff’s constitutional
27 injuries.” R&R at 16. Plaintiff objects that “Lieutenant Froistad was the acting watch
28 commander for SDCJ” and “[h]e was put on notice of plaintiff’s grievances, verbally and
1 by virtue of his duties as watch commander to review logs for issues that a supervisor needs
2 to address.” Pl.’s Obj. at 8. Consequently, Lieutenant “Froistad was in a position at SDCJ
3 to stop the harm and constitutional injuries to plaintiff, but he did nothing.” Id.
4 It is Plaintiff’s Second Amended Complaint, however, that controls, and the Court
5 must agree with Magistrate Judge Montenegro that Plaintiff’s allegations are insufficient
6 to state any claim as to Lieutenant Froistad based on supervisory liability. Plaintiff alleges
7 only that Lieutenant Froistad “was employed as a peace officer by the County of San Diego
8 Sheriff Department” and “was employed as a Lieutenant and acting watch commander in
9 the San Diego County Central Jail.” SAC ¶ 10. Plaintiff alleges that Lieutenant Froistad
10 was aware of Plaintiff’s allegations of constitutional violations because he was aware that
11 Plaintiff was granted self-representation by the Court, id. ¶ 10, and because Plaintiff
12 personally spoke to Lieutenant Froistad about his complaints at some point between
13 August 3 and 27, 2017. Id. ¶¶ 36–37.
14 The Court agrees with Magistrate Judge Montenegro that Plaintiff “does not
15 sufficiently allege Froistad’s personal participation in, causal connection to, or culpable
16 indifference to, Plaintiff’s constitutional injuries.” See R&R at 16; see also Yasin v. Flynn,
17 No. 17-CV-01057-BAS-JLB, 2017 WL 5495097, at *4 (S.D. Cal. Nov. 16, 2017)
18 (dismissing claim premised on overcrowding against individual defendants where the
19 plaintiff alleged only that he “spoke to” them about the allegedly unconstitutional
20 conditions because “[t]he mere fact that neither [defendant] responded to Plaintiff’s
21 complaints to his satisfaction, does not, without more, rise to the level of deliberate
22 indifference”); Thompson v. Paleka, No. CV 17-00531 SOM-KJM, 2017 WL 5309608, at
23 *7 (D. Haw. Nov. 13, 2017) (dismissing cause of action for deliberate indifference
24 premised on failure to respond to grievance about unsanitary conditions of confinement
25 where the plaintiff “does not allege the[ defendants] directed . . . any prison employee to
26 ignore an extreme risk to [the plaintiff]’s or other inmates’ health posed by the [unsanitary
27 condition, n]or does he point to any policy that they implemented that resulted in such a
28 condition”). The Court therefore OVERRULES Plaintiff’s objection, ADOPTS
1 Magistrate Judge Montenegro’s recommendation, and GRANTS the Moving Defendants’
2 Motion as to Plaintiff’s first, second, third, and fourth causes of action against Lieutenant
3 Froistad.
4 B. Lieutenant Lovelace
5 Magistrate Judge Montenegro also concludes that Plaintiff’s “allegations against
6 Lovelace in her individual capacity are insufficient to support a claim of supervisory
7 liability under section 1983 as to the second, third, and fourth causes of action” because
8 “Plaintiff has failed to allege how Lovelace personally participated in, is causally linked
9 to, or acted with culpable indifference to, the constitutional deprivations alleged in the
10 second, third, and fourth causes of action.” R&R at 16–17. Plaintiff objects that Lieutenant
11 Lovelace has a “continuing duty because of the periodic reviews” given that she “made the
12 initial decision to classify Plaintiff for housing in Ad-Seg” and that “Plaintiff was actually
13 injured by Lovelace’s actions and inactions for lack of periodic reviews” “[b]ecause of the
14 excessive noise of mentally ill inmates, constant illumination, and the lack of outdoor
15 exercise.” Pl.’s Obj. at 8.
16 Again, the Court is constrained by the allegations in Plaintiff’s Second Amended
17 Complaint, in which he alleges only that Lieutenant Lovelace “was employed as a peace
18 officer by the County of San Diego Sheriff Department” and “in the ‘classification’ section
19 of the San Diego County Central Jail.” SAC ¶ 9. Plaintiff alleges that he was never served
20 a copy of a segregated housing order signed by Jail Population Management Unit staff or
21 a supervisor, as required by prison policy. Id. As with Lieutenant Froistad, Plaintiff also
22 alleges that Lieutenant Lovelace was aware of Plaintiff’s allegations of constitutional
23 violations because Plaintiff personally spoke to Lieutenant Lovelace about his complaints
24 at some point between August 3 and 27, 2017. Id. ¶¶ 36–37.
25 The Court agrees with Magistrate Judge Montenegro that “[t]he allegations support
26 Lovelace’s liability only as to the first cause of action,” see R&R at 16, but, for the same
27 reasons discuss above, see supra Section III.A, that “Plaintiff has failed to allege how
28 Lovelace personally participated in, is causally linked to, or acted with culpable
1 indifference to, the constitutional deprivations alleged in the second, third, and fourth
2 causes of action.” See id. at 16–17. The Court therefore OVERRULES Plaintiff’s
3 objection, ADOPTS Magistrate Judge Montenegro’s recommendation, and GRANTS the
4 Moving Defendants’ Motion as to Plaintiff’s second, third, and fourth causes of action
5 against Lieutenant Lovelace.
6 C. Sheriff Gore
7 Finally, Magistrate Judge Montenegro finds that Plaintiff’s “allegations against Gore
8 in his individual capacity are insufficient to state a claim of supervisory liability under
9 section 1983 as to the first cause of action, but [that] Plaintiff has stated a claim of
10 supervisory liability as to the second, third, and fourth causes of action” against Sheriff
11 Gore. R&R at 17. Plaintiff objects to Magistrate Judge Montenegro’s recommendation
12 that the Court dismiss Plaintiff’s first cause of action as to Sheriff Gore, arguing that
13 “Sheriff Gore is responsible for Plaintiff’s injuries because he implements San Diego
14 County policies such as classifying people” and “Plaintiff put Sheriff Gore on notice,
15 actually or constructively, by writing him a letter.” Pl.’s Obj. at 8. The Moving
16 Defendants, on the other hand, object to Magistrate Judge Montenegro’s recommendation
17 that the Court deny their Motion as to Plaintiff’s second, third, and fourth causes of action
18 as to Sheriff Gore, contending that Magistrate Judge Montenegro “confuses a public
19 official’s liability in his official capacity and supervisory capacity in the second, third, and
20 fourth causes of action.” Defs.’ Obj. at 6.
21 1. First Cause of Action
22 Regarding Plaintiff’s first cause of action as to Sheriff Gore, Plaintiff objects that
23 “Plaintiff put Shariff Gore on notice, actually or constructively, by writing him a letter.”
24 Pl.’s Obj. at 8. The Moving Defendants counter that “[t]he SAC does not even allege that
25 Sheriff Gore received and reviewed the letter, and in fact indicates that a different
26 individual responded to his letter.” Defs.’ Reply at 3 (emphasis in original). Further, “even
27 if Sheriff Gore did receive the letter[,] personal participation cannot be inferred through
28 the fact that Plaintiff sent an official a letter.” Id.
1 Again, the Court must agree with Magistrate Judge Montenegro. Plaintiff’s letter,
2 although difficult to decipher, does not appear to address Plaintiff’s due process cause of
3 action. See generally SAC Ex. A. Further, as Magistrate Judge Montenegro and the
4 Moving Defendants note, there is no indication—much less an allegation by Plaintiff—that
5 Sheriff Gore received and reviewed the letter. See id. ¶ 38. The Court therefore agrees
6 with Magistrate Judge Montenegro that Plaintiff has failed to allege that Sheriff Gore
7 personally participated in, acquiesced in, or was culpably indifferent to the allegations
8 constituting Plaintiff’s first cause of action. Consequently, the Court OVERRULES
9 Plaintiff’s objection, ADOPTS Magistrate Judge Montenegro’s recommendation, and
10 GRANTS the Moving Defendant’s Motion as to Plaintiff’s first cause of action as to
11 Sheriff Gore.
12 2. Second, Third, and Fourth Causes of Action
13 As for Plaintiff’s second, third, and fourth causes of action against Sheriff Gore, the
14 Moving Defendants object that “Plaintiff does not allege sufficient facts to establish
15 supervisory liability” as to Sheriff Gore because Plaintiff’s allegations “only suggest that
16 Sheriff Gore is the agent of the County, and the daily program established in the County is
17 the moving force behind his alleged constitutional rights deprivation.” Defs.’ Obj. at 7.
18 Further, “[i]mposing individual liability based on [Sheriff Gore’]s official duty as the agent
19 of the County would effectively cut the difference between the liability under individual
20 and official capacity.” Id. Plaintiff replies that “Sheriff Gore is being held responsible for
21 implementing a constitutionally deficient de facto policy.” Pl.’s Reply at 8.
22 The Court agrees with Magistrate Judge Montenegro that “Plaintiff has stated a
23 claim of supervisory liability as to Gore with respect to the second, third, and fourth causes
24 of action on the basis that Gore enacted a constitutionally deficient policy which was the
25 moving force behind the violation.” R&R at 18. Plaintiff specifically alleges that “Sheriff
26 William Gore[] established the following daily program at the downtown Central jail where
27 plaintiff was housed from August 3, 2016 through August 27, 2017.” SAC ¶ 22.
28 Consequently, “Plaintiff has sufficiently alleged that the Ad-Seg routine implemented by
1 Sheriff Gore, as it relates to the second, third and fourth causes of action, is a policy so
2 constitutionally deficient that the policy itself is a repudiation of the Constitution and the
3 moving force behind the violation.” See R&R at 18 (citing Hansen v. Black, 885 F.2d 642,
4 646 (9th Cir. 1989)). The Court therefore OVERRULES Defendants’ Objections,
5 ADOPTS Magistrate Judge Montenegro’s recommendation, and DENIES the Moving
6 Defendants’ Motion as to Plaintiff’s second, third, and fourth causes of action as to Sheriff
7 Gore.
8 IV. Injunctive and Declaratory Relief
9 Finally, Magistrate Judge Montenegro “finds Plaintiff’s claims for injunctive and
10 declaratory relief are moot because Plaintiff is no longer subject to the conditions and
11 policies challenged in the SAC.” R&R at 19. Plaintiff objects that the alleged
12 constitutional violations are capable of repetition, yet evading review because “defendants
13 do not argue that the policy has ceased and plaintiff has presented evidence that the policy
14 will continue.” Pl.’s Obj. at 11. Plaintiff adds that it is of no consequence that his action
15 is not a putative class action because “[b]y confining plaintiff’s complaint to his pretrial
16 detention plaintiff is making class like allegations.” Id. The Moving Defendants counter
17 that “Plaintiff’s constitutional claims alleging damages under Section 1983 mean that his
18 allegations regarding alleged constitutional deprivations will be fully litigated and will not
19 ‘evade review’” and that “Plaintiff has not shown a reasonable expectation that he will be
20 subjected to the same action again.” Defs.’ Reply at 5–6 (quoting City of Los Angeles v.
21 Lyons, 461 U.S. 95, 110 (1983)).
22 On de novo review, the Court agrees with Magistrate Judge Montenegro that
23 Plaintiff’s prayer for declaratory and injunctive relief is moot in light of his transfer to the
24 California Institute for Men in Chino, California, and that the mootness exception does not
25 apply because Plaintiff has not shown a reasonable expectation that he will be subjected to
26 the same action again. The Court therefore OVERRULES Plaintiff’s objection, ADOPTS
27 Magistrate Judge Montenegro’s recommendation, and GRANTS the Moving Defendants’
28 Motion as to Plaintiff’s prayer for injunctive and declaratory relief.
1 V. Leave to Amend
2 Finally, the Court must consider whether to grant Plaintiff leave to amend those
3 causes of action it has dismissed. The Ninth Circuit has long and repeatedly cautioned that
4 “a district court should grant leave to amend even if no request to amend the pleading was
5 made, unless it determines that the pleading could not possibly be cured by the allegation
6 of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United
7 States, 58 F.3d 494, 497 (9th Cir. 1995)) (citing Cook, Perkiss & Liehe, Inc. v. N. Cal.
8 Collection Serv., Inc., 911 F.2d 242 (9th Cir. 1990); Balistreri v. Pacifica Police
9 Dep’t, 901 F.2d 696 (9th Cir. 1990); Noll v. Carlson, 809 F.2d 1446 (9th Cir.
10 1987); Bonanno v. Thomas, 309 F.2d 320 (9th Cir. 1962); Sidebotham v. Robison, 216
11 F.2d 816 (9th Cir. 1954)).
12 The Court is mindful that Plaintiff has already been granted leave to amend to state
13 a claim as to Defendants Froistad and Lovelace, see ECF No. 73 at 15–16, while failure to
14 correct previously identified deficiencies “is a strong indication that the plaintiffs have no
15 additional facts to plead.” Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007
16 (9th Cir. 2009) (quoting In re Vantive Corp. Sec. Litig., 283 F.3d 1079, 1098 (9th Cir.
17 2002), abrogated on other grounds by Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
18 U.S. 308 (2007)). This is particularly troublesome given that “Plaintiff’s statement of facts
19 has generally remained unchanged,” see R&R at 21, despite Plaintiff’s retention of counsel
20 prior to the filing of his Second Amended Complaint. The Court also questions whether
21 Plaintiff can plead additional facts to cure the mootness of his claims for injunctive and
22 declaratory relief.
23 Nonetheless, the Court concludes that it is appropriate to grant Plaintiff one final
24 opportunity to amend. Accordingly, the Court GRANTS Plaintiff leave to amend.
25 CONCLUSION
26 In light of the foregoing, the Court:
27 1. OVERRULES Defendants’ Objections (ECF No. 99);
28 2. OVERRULES Plaintiff’s Objections (ECF No. 100);
1 3. ADOPTS in its entirety Magistrate Judge Montenegro’s R&R (ECF No. 97);
2 4. GRANTS IN PART AND DENIES IN PART the Moving Defendants’
3 ||Motion to Dismiss (ECF No. 93). Specifically, the Court DISMISSES WITHOUT
4 |}PREJUDICE: (1) Defendant Froistad as to Plaintiff's first, second, third, and fourth
5 causes of action; (2) Defendant Lovelace as to Plaintiff’s second, third, and fourth causes
6 || of action; (3) Defendant Gore as to Plaintiff’s first cause of action; and (4) Plaintiffs prayer
7 |\|for injunctive and declaratory relief. The Moving Defendants’ Motion is otherwise
8 || DENIED; and
9 5. GRANTS Plaintiff leave to amend. Plaintiff MAY FILE an amended
10 |}complaint to cure the specific deficiencies enumerated above within thirty (30) days of the
11 on which this Order is electronically docketed. Any amended complaint must cure
12 ||the deficiencies noted herein and must be complete in itself without reference to the
13 |/original complaint. See S.D. Cal. CivLR 15.1. Any claims not re-alleged in the amended
14 |}complaint will be considered waived. See Lacey v. Maricopa Cnty., 693 F.3d 896, 925,
15 (9th Cir. 2012). Failure to file an amended complaint by this date shall result in this
16 || action proceeding on Plaintiff's surviving claims.
17 IT IS SO ORDERED.
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19 || Dated: August 27, 2019
00 pen Janis L. Sammartino
United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10079451. Public record. Not legal advice.