# Gustine v. County of San Diego

> District Court, S.D. California · November 21, 2019

URL: https://www.frixlaw.com/law-library/cases/10080014

## Case

- **Court:** District Court, S.D. California
- **Decided:** November 21, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 BRENT EDWARD GUSTINE, Case No. 3:19-cv-00903-LAB-NLS

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ORDER: (1) GRANTING
13 Plaintiff, DEFENDANT COUNTY OF SAN
DIEGO’S MOTION TO DISMISS
14 vs. PLAINTIFF’S FIRST AMENDED
15 COMPLAINT; AND (2) ISSUING
ORDER TO SHOW CAUSE
16 COUNTY OF SAN DIEGO;
17 DOES 1 THROUGH 10, [ECF No. 11]
Defendants.
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21 Plaintiff has brought this action under 42 U.S.C. Section 1983 alleging that his
22 constitutional rights were violated when he was housed at the San Diego Central Jail
23 (“SDCJ”) in November of 2018. (See First Am. Compl., ECF No. 10.) Defendant County
24 of San Diego moves to dismiss all the claims in Plaintiff’s First Amended Complaint1
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27 1 Plaintiff requested and was granted leave to amend his original Complaint in response
to Defendants’ initial motion to dismiss on August 1, 2019. (See ECF No. 9.)
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1 (“FAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6). (Def.’s Mot., ECF No.
2 11.) Plaintiff filed an Opposition to Defendants’ Motion to which Defendants filed a
3 Reply. (See ECF Nos. 13, 14.)
4 While the Motion was initially calendared before Magistrate Judge Nita L.
5 Stormes, the Court has determined that this Motion is suitable for disposition upon the
6 papers without oral argument and that no Report and Recommendation from Magistrate
7 Judge Stormes is necessary.
8 For the reasons set forth more fully below Defendant’s Motion is GRANTED.
9 I. Factual allegations2
10 On July 25, 2018, Plaintiff was arrested and housed in the SDCJ. See FAC at 4.
11 Plaintiff was placed in “Intake Holding #1” and “went to sleep.” Id. One day later,
12 Inmate George Julius (“Julius”) “was arrested by El Centro Police Department for
13 violating a protective order to prevent domestic violence.” Id. Plaintiff claims “Doe
14 Officers” examined Julius and “knew of his propensity of violence.” Id. Defendant Doe
15 Deputy #1 purportedly told Defendant Doe Deputy #2 that Julius “should not be placed
16 with other inmates.” Id.
17 Plaintiff claims that Defendants, “despite … knowing [Julius’] propensity of
18 violence,” placed Julius in the same cell as Plaintiff. Id. As a result, Julius purportedly
19 “walk[ed] up to Plaintiff and began punching Plaintiff’s face and body.” Id. Plaintiff
20 “fell off the bench” as Julius continued to punch and kick Plaintiff “several times.” Id.
21 Plaintiff claims to have lost “consciousness” during the encounter. Id.
22 After Plaintiff “regained consciousness, he heard deputies telling him to get out of
23 the cell.” Id. As he was escorted out of the cell, he “overheard Doe Deputy #1tell Doe
24 Deputy, ‘I told you [Julius] shouldn’t have been placed in a cell with anyone’.” Id.
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27 2 Page numbers for all documents filed in the Court’s Case Management/Electronic Case File
(“CM/ECF”) will refer to the pagination generated by CM/ECF as indicated on the top right-hand corner
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1 “As a result of Plaintiff being attacked, he suffered a broken nose, contusion to his lip,
2 fractured back, shoulder injury, concussions, brain trauma, headaches, memory loss,
3 anxiety, depression and lack of focus.” Id. at 5.
4 II. Defendant’s Motion to Strike
5 In Defendant’s Motion they request that the “Court strike the references to ‘all
6 Defendants’,” or in the alternative, dismiss them as a named Defendant from Plaintiff’s
7 first, second, and fourth claims. (Def.’s Mot. at 9.)
8 In Plaintiff’s response, he indicates that the first and second claims in his FAC “are
9 not alleged against the County.” (Pl.’s Reply at 4.) Therefore, Plaintiff “accepts
10 Defendant County’s request to strike reference to ‘all Defendants’ made in Plaintiff’s first
11 and second claims, as said claims are only alleged against Defendants DOE Deputies 1-
12 10, individually.” (Id.) Plaintiff further states he “never intended to seek liability against
13 the County based on the first two claims.” (Id.)
14 Based on these representations, the Court strikes Defendant County of San Diego
15 from Plaintiff’s first and second claims.
16 Plaintiff does not address Defendant’s request to strike his fourth claim which is a
17 state law negligence claim. In the Court’s August 1, 2019, it was made clear that
18 Plaintiff’s state law negligence claim was dismissed with prejudice. (Aug. 1, 2019 Order
19 at 2.) Plaintiff was not given permission by the Court to re-allege this claim in his FAC.
20 Thus, the Court GRANTS Defendant’s Motion to Strike Plaintiff’s state law
21 negligence claim found in count 4 pursuant to Federal Rule of Civil Procedure 12(f)(2).
22 III. Defendant’s Motion to Dismiss
23 A. Standard of Review
24 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to
25 dismiss on the grounds that a complaint “fail[s] to state a claim upon which relief can be
26 granted.” A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the
27 legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Bryan
28 v. City of Carlsbad, 207 F. Supp. 3d 1107, 1114 (S.D. Cal. Mar. 20, 2018).
1 Because Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than the
2 claim’s substantive merits, “a court may [ordinarily] look only at the face of the
3 complaint to decide a motion to dismiss,” Van Buskirk v. Cable News Network, Inc., 284
4 F.3d 977, 980 (9th Cir. 2002).
5 “To survive a motion to dismiss, a complaint must contain sufficient factual
6 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
7 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
8 544, 570 (2007)); Villa v. Maricopa Cty., 865 F.3d 1224, 1228-29 (9th Cir. 2017). A
9 claim is facially plausible “when the plaintiff pleads factual content that allows the court
10 to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
11 Iqbal, 556 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory
12 allegations or the “formulaic recitation of the elements of a cause of action,” Twombly,
13 550 U.S. at 555, which rise above the mere conceivability or possibility of unlawful
14 conduct. Iqbal, 556 U.S. at 678-79; Somers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir.
15 2013). “Threadbare recitals of the elements of a cause of action, supported by mere
16 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. While a pleading “does
17 not require ‘detailed factual allegations,’” Rule 8 nevertheless “demands more than an
18 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678
19 (quoting Twombly, 550 U.S. at 555).
20 B. Monell liability
21 Defendant argues that Plaintiff’s FAC “still does not allege sufficient facts to
22 allege a constitutional claim against the County.” (Def.’s Mot. at 9.) In his FAC,
23 Plaintiff claims that the Defendant’s failure to train individual employees resulted in
24 violations of his constitutional rights. (See FAC at 7-10.) A municipal entity is liable
25 under section 1983 only if Plaintiff alleges his constitutional injury was caused by
26 employees acting pursuant to the municipality’s policy or custom. Mt. Healthy City Sch.
27 Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977); Monell, 436 U.S. at 691; Villegas v.
28 Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008). The County of San
1 Diego may not be held vicariously liable under section 1983 simply based on allegedly
2 unconstitutional acts of its employees. See Board of Cty. Comm’rs. v. Brown, 520 U.S.
3 397, 403 (1997); Monell, 436 U.S. at 691 (“[A] a municipality cannot be held liable
4 solely because it employs a tortfeasor.”); Jackson v. Barnes, 749 F.3d 755, 762 (9th Cir.
5 2014). Instead, the municipality may be held liable “when execution of a government’s
6 policy or custom ... inflicts the injury.” Monell, 436 U.S. at 694; Los Angeles Cty., Cal. v.
7 Humphries, 562 U.S. 29, 36 (2010).
8 In seeking relief against a municipality, “the inadequacy of the police training may
9 serve as the basis for § 1983 liability only where the failure to train amounts to deliberate
10 indifference to the rights of persons with whom the police come into contact.” City of
11 Canton v. Harris, 489 U.S. 378, 389 (1989). Plaintiff “must demonstrate a ‘conscious’
12 or ‘deliberate’ choice on the part of a municipality in order to prevail on a failure to train
13 claim.” Price v. Sery, 513 F.3d 962, 972 (9th Cir. 2008). “When city policymakers are
14 on actual or constructive notice that a particular omission in their training program causes
15 city employees to violate citizens’ constitutional rights, the city may be deemed
16 deliberately indifference if the policymakers choose to retain that program.” Connick v.
17 Thompson, 562 U.S. 51, 61 (2011).
18 In addition, in order to state a “failure to train” claim, Plaintiff must demonstrate
19 that “(1) he was deprived of a constitutional right, (2) the [County] had a training policy
20 that ‘amounts to deliberate indifference to the [constitutional] rights of the persons’ with
21 whom [its police officers] are likely to come into contact,’ and (3) his constitutional
22 injury would be have avoided had the [County] properly trained those officers.”
23 Blankenhorm v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007).
24 Defendant argues that the “FAC does not adequately identify any San Diego
25 Sheriff policy that instructs the entity’s employees to take an unconstitutional action.”
26 (Def.’s Mot. at 11.) They argue “Plaintiff appears to allege that the County had a policy
27 of requiring ‘violent’ inmates to be housed together without appropriate supervision.”
28 (Id.) However, Plaintiff argues that he has identified that a lack of a policy to screen
1 inmates “with a propensity for violence” is a “policy of inaction” which is “obviously
2 deficient and likely to cause constitutional injury.” (Pl.’s Opp’n at 5-6.)
3 A Plaintiff may demonstrate that “the need for more or different training is so
4 obvious, and the inadequacy so likely to result in the violation of constitutional rights,
5 that the policymakers . . . can reasonably be said to have been deliberately indifferent to
6 the need.” Kirkpatrick v County of Washoe, 843 F.3d 784, 793-94 (9th Cir. 2016) (citing
7 Canton, 489 U.S. at 389).
8 In his FAC, Plaintiff sets forth a “list of incidents exemplifying the aforementioned
9 policies, customs,” and practices of the Defendant. (FAC at 8.) Specifically, Plaintiff
10 identifies reports that from 2015-2018 that “the San Diego County jail system struggled
11 with an over-incarceration of people with mental disabilities, which resulted in excessive
12 force, inmate suicide.” (Id.) In addition, Plaintiff alleges that according to “media
13 reports,” SDCJ “inmate suicides have escalated 3-fold since 2011,” the San Diego
14 Sheriff’s Department “admitted” that the “number of high-risk inside since 2001” has
15 “led to violence in the facilities,” and in 2018 the “San Diego County Citizen Review”
16 determined that the SDCJ “wrongfully placed a jail inmate into general which resulted in
17 a general population detainee to be assaulted.” (Id.)
18 “A ‘pattern of similar constitutional violations by untrained employees is
19 ordinarily necessary to demonstrate deliberate indifference for purposes of failure to
20 train.’” Flores v. Cnty of Los Angeles, 759 F.3d 1154, 1159 (9th Cir. 2014) (quoting
21 Connick, 563 U.S. at 62. Here, Plaintiff’s FAC points to a high rate of inmate suicides in
22 support of his claim that there is a lack of training. That may or may not be true but
23 inmate suicides are not at issue in this matter. He also points to just one incident in
24 which an inmate was “wrongfully placed” with another inmate causing an assault to
25 occur. There is no allegation as to why this particular inmate was “wrongfully placed”
26 and more importantly, one incident cannot establish a “pattern” of constitutional
27 violations.
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1 Taking true Plaintiff’s allegations as true, the Court finds that he has failed to
2 allege facts sufficient to show that there was a pattern of constitutional violations by
3 employees sufficient to state a “failure to train claim” against the County of San Diego.
4 See Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for
5 relief will . . . be a context-specific task that requires the reviewing court to draw on its
6 judicial experience and common sense.”).
7 Thus, Defendant County of San Diego’s Motion to Dismiss the claims against
8 them is GRANTED for failing to state a claim upon which relief may be granted pursuant
9 to Federal Rule of Civil Procedure 12(b)(6).
10 C. Unserved Defendants
11 Defendant also seeks to dismiss the claims against the Doe Defendants on the
12 grounds that Plaintiff “has not named, nor served any” of the Doe Defendants. (Def.’s
13 Mot. at 17.) Plaintiff must show cause no later than sixty (60) days from the date this
14 Order is filed why the claims against the Doe Defendants should not be dismissed for
15 want of prosecution pursuant to Fed.R.Civ.P. 4(m). If Plaintiff fails to provide the Court
16 with documentation demonstrating identification and proper service on these Defendants
17 within sixty (60) days from the date this Order is filed, the claims against them in this
18 action will be dismissed without prejudice.
19 III. Conclusion and Order
20 For all the reasons discussed, the Court:
21 1) GRANTS Defendant County of San Diego’s Motion to Strike as to
22 Plaintiff’s First and Second claims pursuant to Fed.R.Civ.P. 12(f);
23 2) GRANTS Defendant County of San Diego’s Motion to Strike Plaintiff’s
24 Fourth claim in its entirety with prejudice pursuant to Fed.R.Civ.P. 12(f);
25 3) GRANTS Defendant County of San Diego’s Motion to Dismiss Plaintiff’s
26 Fourteenth Amendment claims based on a failure to train pursuant to Fed.R.Civ.P.
27 12(b)(6);
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1 4) GRANTS Plaintiff sixty (60) days leave from the date of this Order in
2 || which to file an Amended Complaint which cures all the deficiencies of pleading noted.
3 || Plaintiff's Amended Complaint must be complete by itself without reference to his
4 || original pleading.
5 It is further ordered that:
6 5) Plaintiff must show cause no later than sixty (60) days from the date this
7 || Order is filed to identify and serve the Doe Defendants. If Plaintiff fails to comply with
8 ||this Court order, he must show cause in sixty (60) days why the claims against the Doe
9 || Defendants should not be dismissed for want of prosecution pursuant to Fed.R.Civ.P.
10 4m). If Plaintiff fails to provide the Court with documentation demonstrating proper
11 |/identification and service on these Defendants within sixty (60 days from the date this
12 || Order is filed, the claims against them in this action will be dismissed without prejudice.
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14 || IT ISSO ORDERED.
15 |}Date: November 20, 2019 ( Ab Af “4 Zu)
16 Hon. Larry Alan Burns
7 Chief United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10080014. Public record. Not legal advice.