# Frost v. County of San Diego

> District Court, S.D. California · September 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10086459

## Case

- **Court:** District Court, S.D. California
- **Decided:** September 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- stating that the holding of Farmer v. Brennan is “not in 2 controversy” when considering qualified immunity

## Opinion text

1 UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF CALIFORNIA
3
4 KRISTINA FROST, Case No.: 21cv01903-L-AGS

5 Plaintiff,
ORDER DENYING IN PART AND
6 v. GRANTING IN PART
DEFENDANTS’ MOTION TO
7 COUNTY OF SAN DIEGO, WILLIAM
DISMISS AND DENYING
GORE, MASON CASSIDY, UNKNOWN
8 DEFENDANTS’ MOTION TO
SAN DIEGO SHERIFF’S
STRIKE PLAINTIFF’S COMPLAINT
9 DEPARTMENT PERSONNEL,

10 Defendants. [ECF No. 11]
11

12 Pending before the Court are Defendants’ motion to dismiss and motion to strike
13 Plaintiff’s Complaint. (ECF No. 11.) Plaintiff opposed the motion, (ECF No. 12), and
14 Defendants replied, (ECF No. 13). The Court decides the matter on the papers submitted
15 and without oral argument. See Civ. L. R. 7.1(d.1). For the reasons stated below,
16 Defendants’ motion to dismiss is denied in part and granted in part with leave to amend.
17 Defendants’ motion to strike is denied.
18 I. BACKGROUND
19 According to the allegations in the Complaint (ECF No. 1), on November 25,
20 2020, Plaintiff Kristina Frost was taken into custody at the San Diego Central Jail on an
21 unidentified book-and-release charge. (ECF No. 1, at 3.) Plaintiff informed the jail staff
22 upon arrival that she is a trans woman. (Id.) Plaintiff’s DMV records and driver’s
23 license state her gender is female, and Plaintiff was wearing high-cut shorts and a bra at
24 the time of booking. (Id.) Plaintiff alleges that despite this, deputies repeatedly
25 misgendered her, both in person and in official reports documenting the assault giving
26 rise to this case. (Id.)
27 At first, Plaintiff was placed in a holding cell by herself. (Id.) Eventually,
28 Unknown Department Personnel, which Plaintiff believes includes Deputy Mason
1 Cassidy (“Deputy Cassidy”), moved her into a holding cell with three men. (Id.)
2 Plaintiff claims that it was clear she did not want to go into the cell and that she was
3 confused as to why she was being moved, but she was forced to move anyway. (Id.)
4 Once inside the cell Plaintiff sat on a bench, buried her head in her shirt, and fell asleep.
5 (Id. at 3–4.)
6 Plaintiff was awakened by blows to her head. (Id. at 4.) One of the men in the cell
7 had begun punching Plaintiff in the head with closed fists. (Id.) Plaintiff claims that
8 once deputies were alerted of the assault, one or more of them paused outside the cell
9 before entering to intervene. (Id.) Deputies eventually removed the assailant and put him
10 alone in another holding cell. (Id.)
11 Plaintiff was then forced to wait upwards of twelve hours in excruciating pain
12 without medical care before she was released. (Id.) Plaintiff could not eat or drink
13 during this time due to the injuries to her jaw. (Id.) After being released, Plaintiff
14 immediately went to a hospital where she was diagnosed with two jaw fractures. (Id.)
15 Her injuries have so far required two operations and a long period of having her mouth
16 wired shut. (Id.) Plaintiff continues to suffer from these injuries and must now wear
17 dentures. (Id.)
18 A. Legal Claims
19 Plaintiff voluntarily dismissed, without prejudice, her third and fourth causes of
20 action against the County of San Diego (“County”) and her fifth cause of action. (ECF
21 No. 12, at 10–11.) Pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) Defendants
22 move to dismiss the remaining claims of: (1) deliberate indifference to safety risks and
23 needs under 42 U.S.C. § 1983 against Deputy Cassidy and Unknown Department
24 Personnel; (2) municipal liability for unconstitutional custom, practice, or policy and
25 failure to properly train under Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978),
26 against the County; (3) violations of the Tom Bane Civil Rights Act, Cal. Civ. Code §
27 52.1 (“Bane Act”) against Deputy Cassidy and Unknown Department Personnel; and (4)
28 negligence against Deputy Cassidy and Unknown Department Personnel. (ECF No. 1).
1 In the event any of her claims are dismissed, Plaintiff requests leave to amend her
2 Complaint to cure any deficiencies. (ECF No. 1, at 20.)
3 The Court has federal question jurisdiction over the federal constitutional claims and
4 supplemental jurisdiction over the state law claims. 28 U.S.C. §§ 1331, 1367(a).
5 II. LEGAL STANDARD
6 A. Motion to Dismiss
7 A 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v.
8 Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain, in part, “a short and
9 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
10 8(a)(2). But plaintiffs must also plead “enough facts to state a claim to relief that is
11 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also
12 Fed. R. Civ. P. 12(b)(6). The plausibility standard demands more than “a formulaic
13 recitation of the elements of a cause of action,” or “‘naked assertions’ devoid of ‘further
14 factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
15 550 U.S. at 557). Instead, the complaint “must contain allegations of underlying facts
16 sufficient to give fair notice and to enable the opposing party to defend itself effectively.”
17 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
18 In reviewing a 12(b)(6) motion to dismiss, “[a]ll allegations of material fact are
19 taken as true and construed in the light most favorable to the nonmoving party.” Cahill v.
20 Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). However, a court need not
21 take legal conclusions as true merely because they are cast in the form of factual
22 allegations. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Similarly,
23 “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a
24 motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).
25 “Generally, district courts may not consider material outside the pleadings when
26 assessing the sufficiency of a complaint under Rule 12(b)(6).” Khoja v. Orexigen
27 Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). When “matters outside the
28 pleading are presented to and not excluded by the court,” the 12(b)(6) motion converts
1 into a motion for summary judgment. Fed. R. Civ. P. 12(d). “A court may, however,
2 consider certain materials—documents attached to the complaint, documents
3 incorporated by reference in the complaint, or matters of judicial notice—without
4 converting the motion to dismiss into a motion for summary judgment.” United States v.
5 Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Types of materials which are suitable for
6 judicial notice include facts that are readily capable of accurate determination by “sources
7 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1).
8 Plaintiff did not attach to the Complaint any additional facts that do not appear on
9 the face of the Complaint, nor are any additional facts incorporated therein. (See ECF
10 No. 1.) Further, facts discussed in the parties’ briefs but not in the Complaint fall outside
11 the scope of judicial noticeability. See Fed. R. Civ. P. 201. Accordingly, the Court
12 declines to consider facts not alleged in the Complaint in deciding the present motion.
13 III. FEDERAL CONSTITUTIONAL CLAIMS
14 To state a claim under 42 U.S.C. § 1983 for violation of federal constitutional
15 rights, a plaintiff must allege: (1) that the conduct complained of was committed by a
16 person acting under color of state law, and (2) that such conduct deprived the plaintiff of
17 a federal constitutional or statutory right. Jensen v. Lane County, 222 F.3d 570, 574 (9th
18 Cir. 2000). A public employee acts under color of state law within the meaning of
19 § 1983 while acting in his or her “official capacity or while exercising . . . responsibilities
20 pursuant to state law.” West v. Atkins, 487 U.S. 42, 50 (1988).
21 State officials may be sued under § 1983 in their individual capacities for damages.
22 Kentucky v. Graham, 473 U.S. 159, 165 (1985). To be liable under § 1983, an individual
23 must personally participate in the alleged deprivation of rights. Avalos v. Baca, 596 F.3d
24 583, 587 (9th Cir.2010). Plaintiffs must then establish causation to “demonstrate that the
25 defendant’s conduct was the actionable cause of the claimed injury.” Harper v. City of
26 Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).
27 Where, as here, a plaintiff seeks damages against state officials, a strong
28 presumption is created in favor of an individual capacity suit because an official capacity
1 suit for damages would be barred. See Mitchell v. Washington, 818 F.3d 436, 442 (9th
2 Cir. 2016). Accordingly, the Court applies an individual capacity analysis in its
3 evaluation of claims relating to non-municipal parties.
4 For purposes of the present motion, the Court construes “Unknown Department
5 Personnel” as doe defendants. See Palacios v. County of San Diego, No. 20-CV-450-
6 MMA-DEB, 2020 WL 4201686, at *4 (S.D. Cal. July 22, 2020) (interpreting “Currently
7 Unknown San Diego County Sheriff's Department Personnel” as doe defendants). Doe
8 pleading is generally disfavored due to the impracticality of serving anonymous
9 defendants. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Finefeuiaki v.
10 Maui Cmty. Corr. Ctr. Staff & Affiliates, No. CV 18-00249 DKW-KJM, 2018 WL
11 3580764, at *6 (D. Haw. July 25, 2018). However, in certain circumstances such as the
12 present, “where the identity of alleged defendants will not be known prior to the filing of
13 a complaint, . . . the plaintiff should be given an opportunity through discovery to identify
14 the unknown defendants.” Gillespie, 629 F.2d at 642. As such, dismissal of claims
15 against the Unknown Department Personnel would only be warranted if (1) discovery
16 would not uncover their identities, or (2) dismissal is warranted on other grounds.
17 Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999).1
18 Here, the Court finds that discovery could uncover the identities of the Unknown
19 Department Personnel because such information likely lies with Defendants. It must then
20 be determined whether Plaintiff’s claims against Unknown Department Personnel should
21 be dismissed on other grounds. That is, Plaintiff’s claims against Unknown Department
22 Personnel must survive the same 12(b)(6) analysis as the claims against Deputy Cassidy.
23 For the reasons discussed infra, the Court finds that they do.
24

25
26 1 Notably, Plaintiff does not need to show that the Unknown Department Personnel personally
participated in the alleged conduct. Compare Keates v. Koile, 883 F.3d 1228, 1241 (9th Cir. 2018)
27 (holding that named defendants “cannot be held liable for a constitutional violation under 42 U.S.C. §
1983 unless they were integral participants in the unlawful conduct”), with Wakefield, 177 F.3d at 1163
28
1 A local governing body is not liable under § 1983 unless action pursuant to official
2 municipal policy of some nature caused a constitutional violation. Monell v. Dep’t of
3 Social Servs. of City of N.Y., 436 U.S. 658, 691 (1978). Plaintiffs must establish that the
4 conditions were part of a policy, custom or practice officially adopted by defendants and
5 that the policy or custom amounts to “deliberate indifference” to the constitutional right
6 and is “the moving force” behind the violation. Long v. County of Los Angeles, 442 F.3d
7 1178, 1186 (9th Cir. 2006).
8 A. First Cause of Action – Failure to Protect/Deliberate Indifference to Safety
9 Risks and Needs (42 U.S.C. § 1983)
10 Defendants move to dismiss Plaintiff’s § 1983 claim for deliberate indifference to
11 safety risks and needs against Deputy Cassidy and Unknown Department Personnel.
12 (ECF No. 11-1, at 11.)
13 Pretrial detainees have a due process right under the Fourteenth Amendment to be
14 free from violence at the hands of other inmates.2 Castro v. County of Los Angeles, 833
15 F.3d 1060, 1067 (9th Cir. 2016); see also Bell v. Wolfish, 441 U.S. 520, 535 (1979)
16 (“[U]nder the Due Process Clause, a detainee may not be punished prior to an
17 adjudication of guilt.”). The Supreme Court held that “[p]rison officials have a duty to
18 protect prisoners from violence at the hands of other prisoners” because corrections
19 officers have “stripped [inmates] of virtually every means of self-protection and
20 foreclosed their access to outside aid.” Farmer v. Brennan, 511 U.S. 825, 833 (1994).
21 Plaintiff must show that the actions of the prison officials rise to the level of “deliberate
22 indifference.” Castro, 833 F.3d at 1068.
23
24

25
26 2 Throughout its analysis, the Court refers to cases that discuss deliberate indifference claims arising
under both the Eighth and Fourteenth Amendments because the Supreme Court has held that the due
27 process rights of a pretrial detainee, secured via the Fourteenth Amendment, “are at least as great as the
Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Mass. Gen. Hosp.,
28
1 To find deliberate indifference by an individual under the Fourteenth Amendment
2 a pretrial detainee must show:
3 (1) the defendant made an intentional decision with respect to the conditions
4 under which the plaintiff was confined;
5 (2) those conditions put the plaintiff at substantial risk of suffering serious
6 harm;
7 (3) the defendant did not take reasonable available measures to abate that
8 risk, even though a reasonable officer in the circumstances would have
9 appreciated the high degree of risk involved—making the consequences of
10 the defendant’s conduct obvious; and
11 (4) by not taking such measures, the defendant caused the plaintiff’s injuries.
12 Id. at 1071.
13 Plaintiff alleges that Deputy Cassidy and Unknown Department Personnel violated
14 her Fourteenth Amendment rights by placing Plaintiff, an obviously transgender woman,
15 in a minimally monitored cell with three men, then waiting to intervene when she was
16 attacked. (ECF No. 1, at 7.) Specifically, Plaintiff claims that her safety risks and needs
17 were obvious, and Defendants were actually aware of the risks because transgender
18 women are particularly vulnerable to violence and sexual assault in male correctional
19 settings. (Id. at 8.) Plaintiff claims that despite their knowledge, Deputy Cassidy and
20 Unknown Department Personnel failed to take reasonable steps to safeguard Plaintiff and
21 she suffered injuries as a result. (Id.)
22 Defendants first argue that Plaintiff only “believes” that Deputy Cassidy placed her
23 in the holding cell but has not provided any facts to support this belief. (ECF No. 11-1, at
24 13.) Thus, Defendants reason Plaintiff has failed to allege that Deputy Cassidy made an
25 intentional decision to move Plaintiff. (Id.) However, “[t]he Twombly plausibility
26 standard does not prevent a plaintiff from pleading facts alleged upon information and
27 belief where the facts are peculiarly within the possession and control of the defendant or
28 where the belief is based on factual information that makes the inference of culpability
1 plausible.” Soo Park v. Thompson, 851 F.3d 910, 928 (9th Cir. 2017) (internal quotations
2 omitted). The Court finds that Plaintiff has plausibly alleged, upon her belief, that
3 Deputy Cassidy along with Unknown Department Personnel, decided to move Plaintiff to
4 the holding cell intentionally within the meaning set out in Castro.
5 Defendants further attack Plaintiff’s failure-to-protect claim by arguing that there
6 are “no facts supporting that the conditions of the cell put Plaintiff at a substantial risk of
7 suffering harm.” (ECF No. 11-1, at 13.) Defendants explain that “[w]hile Plaintiff
8 identifies as a transgender woman, placing her in a cell with men would not, without
9 additional information and allegations regarding the other detainees in the cell,
10 necessarily place her in a position where she was at a substantial risk of suffering harm.”
11 (Id.) Defendants reason that Plaintiff was not put at risk because she was not “in a
12 housing area where she would have had to undress or change into jail attire.” (Id.)
13 Defendants thus conclude that there was no need for Deputy Cassidy to “take additional
14 unspecified measures to reduce any speculative risk.” (Id.)
15 Additionally, Defendants claim that “it would not be obvious to Deputy Cassidy or
16 any other jail deputy that placing a transgender woman in a cell with males, without more
17 information, would be a high-risk situation.” (Id. at 14.) According to Defendants, “just
18 because Plaintiff identifies as female does not mean she cannot interact with men,
19 especially in a temporary situation.” (Id.) Moreover, Defendants argue that there were
20 no facts alleged that any of the men in the cell “harbored any prejudices against
21 transgender women,” or that Plaintiff was assaulted because she identifies as transgender.
22 (Id.) Defendants maintain that without prior notice of any prejudice or susceptibility to
23 violence, due in part to the absence of any expressed discomfort by Plaintiff, it was not
24 obvious that placing Plaintiff in the cell would have resulted in Plaintiff being battered.
25 (Id.)
26 The first prong under Castro provides a subjective test that evaluates “the officer’s
27 state of mind with respect to his physical acts.” Castro, 833 F.3d at 1070. Where the
28 claim, similar to the one at present, “relates to housing two individuals together, the
1 inquiry . . . would be whether the placement decision was intentional.” Id. Plaintiff has
2 plausibly stated a claim for violation of her Fourteenth Amendment right to be protected
3 from violence at the hands of other inmates. Plaintiff alleges that despite her clear and
4 known identity as a transgender woman, Deputy Cassidy and Unknown Department
5 Personnel made an intentional decision to place Plaintiff in a holding cell with three men.
6 As a result, Plaintiff was put at a substantial risk of suffering harm—which she did in fact
7 suffer.
8 “With respect to the third element, the defendant’s conduct must be objectively
9 unreasonable, a test that will necessarily ‘turn on the facts and circumstances of each
10 particular case.’” Castro, 833 F.3d at 1071 (quoting Kingsley v. Hendrickson, 576 U.S.
11 389, 397 (2015)). The “‘mere lack of due care by a state official’ does not ‘deprive an
12 individual of life, liberty, or property under the Fourteenth Amendment.’” Id. (quoting
13 Daniels v. Williams, 474 U.S. 327, 330–31 (1986)). Therefore, the plaintiff must show
14 “more than negligence but less than subjective intent—something akin to reckless
15 disregard.” Id. Plaintiff has shown sufficient facts to demonstrate that a reasonable
16 officer in the circumstances would have appreciated the risk of placing a transgender
17 woman in a holding cell with men absent additional information. See Farmer, 511 U.S.
18 at 826 (“[A] factfinder may conclude that the official knew of a substantial risk from the
19 very fact that it was obvious.”). There is no requirement that Plaintiff show that she
20 would be specifically targeted by the man that attacked her or that Defendants knew the
21 man would be likely to attack. See Farmer, 511 U.S. at 826 (holding that an official may
22 not “escape liability by showing that he knew of the risk but did not think that the
23 complainant was especially likely to be assaulted by the prisoner who committed the
24 act”). It follows that Defendants’ failure to mitigate the risk to Plaintiff was objectively
25 unreasonable.
26 Accordingly, the Court finds Plaintiff has sufficiently alleged a § 1983 claim
27 against Deputy Cassidy and Unknown Department Personnel for failure to protect her
28 from violence while in custody.
1 B. Second Cause of Action – Monell Liability (42 U.S.C. § 1983)
2 Defendants move to dismiss Plaintiff’s Monell claims against the County. (ECF
3 No. 11-1, at 15–19.) Plaintiff asserts claims of Monell liability against the County under
4 two theories. First, Plaintiff asserts that her injuries were actually and proximately
5 caused by an unconstitutional County policy, custom, or practice. (ECF No. 1, at 8.)
6 Second, Plaintiff claims that her rights were violated as a result of deficient training,
7 discipline, and supervision of County jail personnel. (Id. at 9.)
8 “[A] municipality cannot be held liable solely because it employs a tortfeasor—or,
9 in other words, a municipality cannot be held liable under § 1983 on a respondeat
10 superior theory.” Monell, 436 U.S. at 691. “Instead, it is when execution of a
11 government's policy or custom . . . inflicts the injury that the government as an entity is
12 responsible under § 1983.” Id. at 694.
13 To establish municipal liability, Plaintiff must show “(1) that [s]he possessed a
14 constitutional right of which [s]he was deprived; (2) that the municipality had a policy;
15 (3) that this policy ‘amounts to deliberate indifference’ to the plaintiff's constitutional
16 right; and (4) that the policy is the ‘moving force behind the constitutional violation.’”
17 Oviatt By & Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting
18 City of Canton v. Harris, 489 U.S. 378, 388–89 (1989)).
19 Absent a formally adopted policy, municipal liability can be premised on a
20 “longstanding practice or custom which constitutes the standard operating procedure of
21 the local governmental entity.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)
22 (quoting Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992)). The custom must
23 be “so widespread as to have the force of law.” Bd. of Cnty. Comm'rs v. Brown, 520 U.S.
24 397, 404 (1997) (citing Monell, 436 U.S. at 690–91). Similarly, a policy of inaction may
25 subject a municipal to liability under Monell. See Jackson v. Barnes, 749 F.3d 755 (9th
26 Cir. 2014). In cases of inaction, the plaintiff must show that the defendant “was on actual
27 or constructive notice that its omission would likely result in a constitutional violation,”
28
1 and that “the municipality could have prevented the violation with an appropriate policy.”
2 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143, 1145 (9th Cir. 2012).
3 A municipality’s failure to properly train its employees may amount to a policy of
4 “deliberate indifference” if the need for more or different training is obvious and the
5 inadequacy is likely to result in the violation of constitutional rights. City of Canton, 489
6 U.S. at 390. “That a particular officer may be unsatisfactorily trained will not alone
7 suffice to fasten liability on the city.” Id. At 390. “A pattern of similar constitutional
8 violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate
9 indifference for purposes of failure to train.” Connick v. Thompson, 563 U.S. 51, 62
10 (2011) (quoting Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 409
11 (1997)). Thus, “[a] municipality's culpability for a deprivation of rights is at its most
12 tenuous where a claim turns on a failure to train.” Id. at 61.
13 1. Unconstitutional Policy, Custom, or Practice
14 Plaintiff claims that her constitutional rights were violated as an actual and
15 proximate result of a County policy “consisting of a pattern among Department Personnel
16 of failing to protect people in the County’s care and custody.” (ECF No. 1, at 8.)
17 Plaintiff states that this policy “include[es] ignoring and failing to communicate critical
18 information and failing to adequately monitor those in the County’s care and custody.”
19 (Id.) According to Plaintiff it was pursuant to this policy that jail staff ignored critical
20 information, notably her gender, and failed to monitor Plaintiff which resulted in her
21 injuries. (Id. at 8–9.) In her Complaint, Plaintiff lists a series of incidents that took place
22 in San Diego County jails to illustrate a pattern that supports her assertion of an
23 inadequate policy. (See id. at 4–7.) While the factual circumstances surrounding the
24 incidents vary, each event Plaintiff describes suggests a failure of jail staff to protect
25 inmates while in County custody. (See id.)
26 Defendants contend that Plaintiff does not make the initial showing that there
27 exists an underlying constitutional violation, but as discussed above Plaintiff sufficiently
28 alleged a Fourteenth Amendment violation. (ECF No. 11-1, at 16.) Defendants also
1 argue that Plaintiff has failed to establish a custom or policy because the San Diego
2 County jail events Plaintiff recounts involve drugs, suicide, or severe mental illness
3 which are lacking from the present case and are thus “wholly unrelated.” (Id. at 17.)
4 Defendants characterize the issue in those cases as whether the County adequately
5 protected those individuals from themselves, whereas the case at hand deals with whether
6 the County had a policy or practice of failing to protect transgender inmates from others.
7 (Id. at 17–18.) Defendants also dispute the causal connection between any policy or
8 practice and Plaintiff’s alleged constitutional violation. (Id. at 19.)
9 Plaintiff has sufficiently alleged that the County has an inadequate policy
10 concerning the protection and monitoring of inmates, and that the inadequacy of that
11 policy resulted in Plaintiff being placed at a substantial risk of suffering serious harm.
12 Specifically, Plaintiff alleges that prison officials, pursuant to the inadequate policy,
13 ignored her gender and vulnerability as a transgender woman which resulted in Plaintiff
14 being placed in a holding cell with men and ultimately led to her assault. (ECF No. 1, at
15 8–9.) Further, Plaintiff establishes deliberate indifference by citing to the instances of
16 inmates suffering injuries or death after jail officials were apparently aware of threatening
17 situations yet failed to take measures to protect the inmates. (See id. at 4–7.) These
18 events placed the County on notice of the inadequacy of their policy as they reveal a
19 pattern of personnel failing to protect and monitor inmates in their care and custody. (Id.
20 at 7.) Accordingly, Plaintiff has stated a Monell claim against the County of San Diego
21 based on an unconstitutional policy, practice, or custom.
22 2. Failure to Train
23 Plaintiff asserts that her rights were also violated as an actual and proximate result
24 of a County policy consisting of “deliberate indifference to the training, supervision, and
25 disciplinary needs of Department personnel working in the County jails.” (ECF No. 1, at
26 9.) Plaintiff insists that the “consistent misgendering of Plaintiff by multiple Department
27 personnel, as well as the malice and recklessness with which Plaintiff was placed in
28 danger, make the failure to adequately train and supervise Department personnel
1 obvious.” (Id.) Plaintiff states “[n]o well-trained corrections staff would have allowed
2 this incident to happen.” (Id.)
3 Defendant points out that Plaintiff provides “no facts regarding how the County
4 failed to train, supervise, or discipline its deputies, over what period of time the allegedly
5 inadequate training, supervision, or discipline occurred, and how the inadequate training
6 or discipline directly influenced the specific conduct of deputies on the date of the
7 incident.” (ECF No. 11-1, at 18.) Therefore, Defendants claim, Plaintiff has not alleged
8 facts supporting a Monell claim based on a theory of failure to properly train. The Court
9 agrees.
10 Plaintiff does not point to prior allegations that put Defendants on actual or
11 constructive notice of the County’s failure to train its prison officials on the placement or
12 protection of transgender or particularly vulnerable inmates like herself. As such,
13 Plaintiff fails to plead sufficient factual content that would allow the Court to “draw the
14 reasonable inference” that the County had a custom or policy of failing to train its prison
15 officials. Iqbal, 556 U.S. at 678. The standard set forth in City of Canton allows a
16 Monell claim to move forward without alleging multiple instances of violations if the
17 need for further training is “so obvious, and the inadequacy so likely to result in the
18 violation of constitutional rights, that the policymakers of the city can reasonably be said
19 to have been deliberately indifferent to the need.” But the Court does not find this case to
20 be an “obvious” case as contemplated by the Supreme Court such as arming police
21 officers without training them on the use of deadly force. City of Canton, 489 U.S. at 390
22 & n.10.
23 Accordingly, Defendants’ motion to dismiss the second cause of action based on
24 deliberate indifference to the training, supervision, and disciplinary needs of Department
25 personnel is granted. Because it may be possible for Plaintiff to allege facts in support of
26 her Monell claim for failure to properly train, leave to amend is granted. See Fed. R. Civ.
27 P. 15(a)(2); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th
28 Cir. 1986) (“[L]eave to amend should be granted unless the court determines that the
1 allegation of other facts consistent with the challenged pleading could not possibly cure
2 the deficiency.”)
3 IV. QUALIFIED IMMUNITY
4 Defendants argue that Deputy Cassidy, along with any Unknown Department
5 Personnel involved in the present case, are immune from liability under to § 1983 based
6 on the defense of qualified immunity. (ECF No. 11-1, at 10–15.)
7 A. Legal Standard
8 “Government officials enjoy qualified immunity from civil damages unless their
9 conduct violates ‘clearly established statutory or constitutional rights of which a
10 reasonable person would have known.’” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir.
11 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To determine whether
12 an officer is entitled to qualified immunity, a court must evaluate two independent
13 questions: (1) whether the officer's conduct violated a constitutional right, and (2)
14 whether that right was clearly established at the time of the incident.” Castro, 933 F.3d
15 at 1066–67 (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). As previously noted,
16 the Complaint meets the first prong of this inquiry. The Court next turns to the second
17 prong: whether the constitutional rights at issue were “clearly established” so as to put the
18 individual defendants on notice that their conduct would violate the Constitution. See
19 Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (holding that the clearly established
20 inquiry looks to whether the defendant was “on notice that his specific conduct was
21 unlawful”). “The plaintiff bears the burden of showing that the rights allegedly violated
22 were ‘clearly established.’” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000).
23 A right is clearly established when the “contours of the right [are] sufficiently clear
24 that a reasonable official would understand that what he is doing violates that right.”
25 Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (quoting Anderson v. Creighton,
26 483 U.S. 635, 640 (1987)). “‘[C]learly established law’ should not be defined ‘at a high
27 level of generality.’” White v. Pauly, 580 U.S. 73, 79 (2017) (quoting Ashcroft v. al-
28 Kidd, 563 U. S. 731, 742 (2011)). However, there does not need to be “a case directly on
1 point, but existing precedent must have placed the statutory or constitutional question
2 beyond debate.” al-Kidd, 563 U.S. at 740. The Supreme Court has made “clear that
3 officials can still be on notice that their conduct violates established law even in novel
4 factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 731 (2002).
5 B. Discussion
6 To lay the foundation for clearly established law, Plaintiff relies on Farmer v.
7 Brennan, 511 U.S. 825 (1994), where the Supreme Court set out the standard for failure-
8 to-protect claims in a case about a transsexual woman who was attacked by a male
9 inmate after being transferred into the general population of a male prison. (ECF No. 12
10 at 14.) Plaintiff also relies on Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir.
11 2016), where the Ninth Circuit recognized the right established in Farmer and applied it
12 to a case involving an intoxicated inmate who was attacked after being placed in a cell
13 with a combative detainee. (Id.) Plaintiff argues that together, these cases “place this
14 constitutional question beyond debate.” (Id.)
15 Defendants frame the present issue narrowly, charging Plaintiff with identifying a
16 “specific case on point” that would have put Deputy Cassidy on notice that placing
17 Plaintiff, “a transgender woman, in a holding cell with men of an unspecified gender”
18 violated her constitutional rights. (ECF No. 11-1, at 15.) Defendants support this
19 argument by scrutinizing the factual circumstances of the present case, pointing out that
20 Farmer dealt with “a transgender inmate’s housing as opposed to temporary placement in
21 a holding cell.” (ECF No. 13, at 5 (emphasis added).) Similarly, Defendants argue that
22 “Castro involved a minimally monitored sobering cell where the plaintiff was severely
23 beaten” after attempting to get the attention of prison officials, while here “there are no
24 facts that Plaintiff alerted Deputy Cassidy that she felt unsafe after being placed in the
25 cell.” (Id.)
26 “[A] prisoner’s right to be protected from violence at the hands of other inmates . .
27 . has been clearly established since the Supreme Court’s decision in Farmer v. Brennan
28 in 1994.” Wilk v. Neven, 956 F.3d 1143, 1150 (9th Cir. 2020); see also Ortiz v. Jordan,
1 562 U.S. 180, 190 (2011) (stating that the holding of Farmer v. Brennan is “not in
2 controversy” when considering qualified immunity). Indeed, the Ninth Circuit recently
3 recognized various failure-to-protect inmate cases in which Farmer provided the basis for
4 “clearly established” law. See Wilk, 956 F.3d at 1147–48.
5 The level of specificity contemplated by Defendants i s unwarranted. Plaintiff is
6 not required to identify a case with identical or even “materially similar” facts to
7 demonstrate that the law was clearly established. See Hope, 536 U.S. at 739–41; see also
8 Castro, 833 F.3d at 1067 (“The Supreme Court need not catalogue every way in which
9 one inmate can harm another for us to conclude that a reasonable official would
10 understand that his actions violated [the plaintiff’s] right.”). In light of this Circuit’s
11 established precedent, Plaintiff has plausibly shown that a reasonable official would be
12 on notice that placing Plaintiff, a transgender woman, in a holding cell with three men
13 violated a clearly established right to protection from violence at the hands of other
14 inmates. Accordingly, the Court denies the motion to dismiss the claims against Deputy
15 Cassidy and Unknown Department Personnel based on qualified immunity at this stage in
16 the proceedings.
17 V. STATE LAW CLAIMS
18 A. Third Cause of Action – Violation of California’s Bane Act
19 (Cal. Civ. Code § 52.1(b))
20 Defendants move to dismiss Plaintiff’s claims against Deputy Cassidy and
21 Unknown Department Personnel pursuant to California’s Bane Act on the basis that
22 Plaintiff fails to allege threats, intimidation, or coercion. (ECF No. 11-1, at 23.)
23 The Bane Act provides a private cause of action against anyone who “interferes by
24 threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or
25 coercion, with the exercise or enjoyment by an individual or individuals of rights secured
26 by the Constitution or laws of the United States, or laws and rights secured by the
27 Constitution or laws of California.” Cal. Civ. Code § 52.1(b). The Bane Act does not
28 require a showing of “threats, intimidation and coercion” separate from the underlying
1 constitutional violation. Cornell v. City of San Francisco, 225 Cal. Rptr. 3d 356, 382–83
2 (2017); Reese v. County of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018). However,
3 the plaintiff must make an additional showing of “specific intent” to violate the arrestee’s
4 right. Reese, 888 F.3d at 1043.
5 An adequately pled claim for deliberate indifference satisfies the specific intent
6 requirement under the Bane Act. See Reese, 888 F.3d at 1045 (“[A] reckless disregard
7 for a person's constitutional rights is evidence of a specific intent to deprive that person of
8 those rights.”); Greer v. County of San Diego, No. 3:19-CV-0378-GPC-AGS, 2021 WL
9 615046, at *9 (S.D. Cal. Feb. 17, 2021) (“[A]n allegation of a defendant's deliberate
10 indifference to a plaintiff's serious medical needs suffices to state a claim under the Bane
11 Act because of the coercion, or specific intent, inherent in the deliberate indifference
12 standard.”); Scalia v. County of Kern, 308 F. Supp. 3d 1064, 1084 (E.D. Cal. 2018)
13 (finding under Cornell that “a prison official's deliberate indifference to serious medical
14 needs is a coercive act that rises above mere negligence”); M.H. v. County of Alameda,
15 90 F. Supp. 3d 889, 89 (N.D. Cal. 2013) (“Because deliberate indifference claims
16 necessarily require more than ‘mere negligence,’ a prisoner who successfully proves that
17 prison officials acted or failed to act with deliberate indifference to his medical needs . . .
18 adequately states a claim for relief under the Bane Act.”).3
19 It has already been established that Plaintiff has sufficiently alleged deliberate
20 indifference against Deputy Cassidy and Unknown Department Personnel. Because
21 Plaintiff is not required to make a separate showing of threats, intimidation, or coercion,
22 or demonstrate specific intent, the Court finds that Plaintiff has plausibly alleged a claim
23

24
25 3 The standard for deliberate indifference to a plaintiff’s serious medical needs is identical to the
standard for showing deliberate indifference to safety in a failure-to-protect context. Gordon v. County
26 of Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018) (“[C]laims for violations of the right to adequate
medical care . . . must be evaluated under [the] objective deliberate indifference standard” articulated in
27 Castro.); see also id. at 1125 (listing the same elements for deliberate indifference to medical needs as
deliberate indifference to safety).
28
1 under California’s Bane Act against Deputy Cassidy and Unknown Department
2 Personnel.
3 B. Fourth Cause of Action – Negligence
4 Defendants move to dismiss Plaintiff’s negligence cause of action against Deputy
5 Cassidy and Unknown Department Personnel. (ECF No. 11-1, at 8.)
6 To state a claim for negligence under California law, plaintiffs must allege (1) a
7 legal duty to use due care; (2) a breach of such legal duty; and (3) the breach was the
8 legal cause of the resulting harm. Corales v. Bennett, 567 F.3d 554, 572 (9th Cir. 2009).
9 Plaintiff claims that Deputy Cassidy and Unknown department personnel had a
10 duty to act with ordinary care in carrying out their duties as corrections officers, which
11 included reasonable care in jailing individuals with heightened safety risks and needs.
12 (ECF No. 1, at 10.) Plaintiff asserts that this duty also included reasonable care with
13 regard to communicating critical information, making cell placements, monitoring
14 inmates, and intervening in inmate assaults. (Id.) Plaintiff alleges that Deputy Cassidy
15 and Unknown Department Personnel breached this duty when they placed Plaintiff in
16 substantial danger and failed to promptly intervene. (Id.) Plaintiff claims her injuries are
17 a direct and proximate result of this breach. (Id.)
18 Plaintiff’s negligence claim is based on the same allegations as the claims for
19 deliberate indifference against Deputy Cassidy and Unknown Department Personnel. As
20 discussed above, Plaintiff adequately alleged those claims. For the same reasons the
21 Court finds the allegations provide Defendants with sufficient notice of the basis for a
22 negligence claim. See Lemire v. California Dep't of Corr. & Rehab., 726 F.3d 1062,
23 1081–82 (9th Cir. 2013).
24 VI. MOTION TO STRIKE
25 Defendants move to strike Plaintiff’s Complaint paragraphs 24, 25(a)–(g), and
26 26(a)–(g). (ECF No. 11-1, at 24.) Paragraph 24 of the Complaint states: “As a topline
27 matter, for example, the mortality rate in San Diego County jails is the highest among
28 California’s largest counties. At least 140 people died in County custody from 2009 to
1 2019.” (ECF No. 1, at 4.) Paragraphs 25 and 26 consist of the lists of incidents that took
2 place in County jails that were previously discussed. (Id. at 4–7.)
3 A. Legal Standard
4 A Rule 12(f) motion to strike allows a court to “strike from a pleading an
5 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
6 Fed. R. Civ. P. 12(f). “Motions to strike are ‘generally disfavored . . . because of the
7 limited importance of pleadings in federal practice.’” Cortina v. Goya Foods, Inc., 94 F.
8 Supp. 3d 1174, 1182 (S.D. Cal. 2015) (quoting Rosales v. Citibank, 133 F. Supp. 2d
9 1177, 1180 (N.D. Cal. 2001)). Consequently, “[m]otions to strike are generally not
10 granted unless it is clear that the matter sought to be stricken could have no possible
11 bearing on the subject matter of the litigation.” Alegre v. United States, No. 16-CV-
12 02442-AJB-KSC, 2021 WL 5750859, at *2 (S.D. Cal. Dec. 2, 2021). “Any doubt
13 concerning the import of the allegations to be stricken weighs in favor of denying the
14 motion to strike.” Rivera v. Jeld-Wen, Inc., No. 21-CV-01816-AJB-AHG, 2022 WL
15 3219411, at *8 (S.D. Cal. Aug. 9, 2022). “With a motion to strike, just as with a motion
16 to dismiss, the court should view the pleading in the light most favorable to the
17 nonmoving party.” Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057
18 (N.D. Cal. 2004) (citing In re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d 955, 965
19 (C.D. Cal. 2000)).
20 B. Discussion
21 Defendants move to strike the aforementioned sections of the Complaint on the
22 basis that the case at hand “has nothing to do with in-custody deaths, suicides, drug
23 overdoses, or severe psychiatric disabilities” and the inclusion of such allegations are
24 impertinent and scandalous. (ECF No. 11-1, at 24.) Defendants add that these
25 allegations are not only irrelevant but confuse the actual issues before the Court. (Id.)
26 Although this case does not involve a drug overdose, suicide, or severe mental
27 illness, the list of prior incidents bears directly on Plaintiff’s ability to sufficiently allege
28 a pattern of Department personnel failing to protect people in its custody. Thus, because
1 prior incidents relate to Plaintiff's Monell claim for an unconstitutional policy,
2 || custom, or practice, the Court denies Defendants’ motion to strike paragraphs 24, 25(a)—
3 and 26(a)(g) of the Complaint.
4 || VU. CONCLUSION
5 For the reasons stated above, Defendants’ motion to strike (ECF No. 11) is
6 || DENIED. Defendants’ motion to dismiss (ECF No. 11) is GRANTED as to the second
7 || cause of action insofar as the claim is premised on a failure to properly train. The motion
8 dismiss is DENIED in all other respects. Plaintiff is granted leave to amend. Should
9 || Plaintiff choose to amend, she must file and serve the amended complaint, if any, no later
10 October 28, 2022. Defendants shall file and serve a response, if any, no later than
11 || the time provided in Federal Rule of Civil Procedure 15(a)(3).
12 IT IS SO ORDERED.
13
14 || Dated: September 29, 2022 1 owe plete
15 H . James Lorenz,
6 United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10086459. Public record. Not legal advice.