(PC) Doe v. Johnson

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 JANE DOE, No. 2:24-cv-1542 DJC AC P

12 Plaintiff,

13 v. ORDER

14 MARCUS JOHNSON, et al.,

15 Defendants.

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17 Plaintiff, a state prisoner proceeding through counsel, seeks relief pursuant to 42 U.S.C.

18 § 1983 and state law and has paid the filing fee.

19 I. Statutory Screening of Prisoner Complaints

20 The court is required to screen complaints brought by prisoners seeking relief against “a

21 governmental entity or officer or employee of a governmental entity,” 28 U.S.C. § 1915A(a),

22 regardless of whether plaintiff is represented by counsel, In re Prison Litig. Reform Act, 105 F.3d

23 1131, 1134 (6th Cir. 1997) (“District courts are required to screen all civil cases brought by

24 prisoners, regardless of whether the inmate paid the full filing fee, is a pauper, is pro se, or is

25 represented by counsel, as [§ 1915A] does not differentiate between civil actions brought by

26 prisoners.”). The court must dismiss a complaint or portion thereof if the prisoner has raised

27 claims that are “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,”

28 or that “seek[] monetary relief from a defendant who is immune from such relief.” 28 U.S.C.

1 § 1915A(b).

2 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

3 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

4 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

5 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

6 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief

7 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,

8 550 U.S. at 570). “Failure to state a claim under § 1915A incorporates the familiar standard

9 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”

10 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted).

11 II. First Amended Complaint

12 The first amended complaint alleges that the California Institution for Women (CIW),

13 where plaintiff has been incarcerated since 2015, has a long and well-documented history of

14 correctional officers sexually abusing prisoners with few repercussions. ECF No. 11 at 5-6.

15 Against that backdrop, plaintiff asserts twelve causes of action against defendants Johnson,

16 Montes, Gonzalez, Parker, Hickethier, Kent, Macomber, and Does 1-20 based on two separate

17 instances of sexual assault by Johnson in 2020. Id. at 5-28. Johnson and Montes are sued in their

18 individual capacities; Gonzalez is sued in his individual and official capacities; and Parker,

19 Hickethier, Kent, and Macomber are sued in their official capacities. Id. at 2-4.

20 In spring of 2020, plaintiff worked in the kitchen where Johnson was her supervisor. Id.

21 at 7. Johnson caught plaintiff taking fresh vegetables from the kitchen and told her he would

22 write her up. Id. After plaintiff expressed her concerns about getting written up and asked if she

23 could take do extra duty instead of being written up, Johnson took her to into the bathroom where

24 he forced her to perform oral sex on him before slamming her against the wall and raping her. Id.

25 at 7-8. While raping her, Johnson threatened plaintiff by telling her that if she reported him no

26 one would believe her and he would say she sexually assaulted him, subjecting her to criminal

27 charges. Id. at 8. During a second incident in June 2020, Johnson demanded that plaintiff

28 perform oral sex on him, which she did out of fear of what he would do if she did not comply. Id.

1 As a result of Johnson’s abuse, plaintiff suffered from anxiety and panic attacks and required

2 emergency mental health treatment due to extreme anxiety and suicidal ideation. Id. When

3 plaintiff requested mental health and other support services under the Prison Rape Elimination

4 Act (PREA), CIW failed to provide them in a timely and appropriate manner. Id. at 9.

5 Johnson was well-known at CIW for sexually abusing prisoners, and at least four other

6 complaints were made against Johnson in 2020 for sexual abuse. Id. Prior to his assault of

7 plaintiff, Johnson received a promotion after being accused of sexually abusing at least one other

8 prisoner. Id. at 10. Plaintiff further alleges that Gonzalez and Montes knew or should have

9 known she was at risk of being sexually abused by Johnson, and that they violated policy by

10 referring the investigation of Johnson to CIW’s Investigative Services Unit (ISU) instead of to the

11 Office of Internal Affairs (OIA). Id. at 9-10. ISU staff were not properly trained to investigate

12 allegations of staff sexual abuse and were inherently conflicted due to personal relationships

13 many had with the accused staff members. Id. at 10. During the investigation, ISU staff harassed

14 and threatened Johnson’s victims, including plaintiff, and the investigation was not referred to

15 OIA until several years after the allegations against Johnson were made. Id. Although plaintiff

16 was supposed to be informed as to whether investigators believe she had been abused and any

17 action had been taken against Johnson, she was not notified that her allegations against Johnson

18 had been sustained until four years after the abuse, and she has still not been informed by CIW

19 staff about any action taken against Johnson. Id. at 11, 14. During that time she experienced

20 severe anxiety, fear of retaliation, and other severe emotional distress. Id. at 11.

21 As Warden of CIW, Montes was required to be immediately notified about any allegations

22 of sexual misconduct and served on the Institutional PREA Review Committee, where he was

23 required to conduct an incident review, and he was responsible for overseeing matters handled by

24 the ISU. Id. at 11-12. Montes’ indifference to his responsibilities and failure to ensure

25 compliance with CDCR regulations and policies regarding the investigation into alleged sexual

26 misconduct encouraged the rampant and ongoing sexual abuse of prisoners by CIW staff. Id. at

27 11-13. He further knew or should have known that Johnson was being considered for promotion

28 despite allegations against him for sexual abuse, and the authorization of the promotion condoned

1 and encouraged Johnson’s continued abuse of prisoners. Id. at 13. Montes also failed to

2 implement adequate hiring policies to prevent the hiring of sexual predators and adequate training

3 to prevent, detect, and respond to sexual abuse by staff. Id.

4 As the CIW PREA Compliance Manager, Gonzalez had various responsibilities in relation

5 to every PREA incident, including conducting reviews for compliance and determining any

6 necessary follow up, monitoring for and addressing any retaliation following a PREA report, and

7 collecting and reporting on staff sexual misconduct investigations on a monthly basis. Id. at 13-

8 14. Gonzalez failed to carry out his responsibilities, including taking appropriate action against

9 Johnson, which led to plaintiff’s injury and created an ongoing risk of further abuse by

10 contributing to and encouraging the culture of sexual abuse at CIW. Id. at 14-15. He is named in

11 in individual capacity, as well as his official capacity for purposes of injunctive relief. Id. at 3.

12 Plaintiff remains incarcerated at CIW and has named Macomber, Parker, Kent, and

13 Hickethier in their official capacities only for the purpose of obtaining injunctive relief at CIW

14 and within the CDCR. Id. at 15-17, 29-30. Macomber is the Secretary of the CDCR, Parker is

15 the current Acting Warden at CIW, Kent is the Associate Director of Female Offender Programs

16 and Services of the Division of Adult Institutions, and Hickethier is the PREA Coordinator for the

17 CDCR. Id. 15-16.

18 III. Discussion

19 A. Claim I: Official Capacity Eighth Amendment Claims

20 Plaintiff asserts an Eighth Amendment claim for sexual abuse against defendants

21 Macomber, Kent, Hickethier, Parker, and Gonzalez in their official capacities for the purposes of

22 obtaining injunctive relief at both CIW and throughout the CDCR. ECF No. 11 at 18-19. The

23 complaint sufficiently alleged that the policies and practices at CIW and the CDCR led to the

24 violation of her constitutional rights and that Macomber, as the Secretary of the CDCR, has

25 authority over all other named defendants and the necessary authority to effect all requested

26 injunctive relief. See Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir.

27 2013) (“a plaintiff need only identify the law or policy challenged as a constitutional violation

28 and name the official within the entity who can appropriately respond to injunctive relief”

1 (citations omitted). Macomber will therefore be required to respond to the complaint. However,

2 because official-capacity claims are treated as a suit against the entity, naming multiple

3 employees of the same agency is generally redundant and unnecessary and the claims against

4 Parker, Hickethier, Kent, and Gonzalez should be dismissed. See Thomas v. Baca, 703 F. App’x

5 508, 512 (9th Cir. 2017) (district court did not err in granting judgment on the pleadings for

6 official-capacity claims against county supervisors because they were duplicative of official-

7 capacity claim against sheriff); Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles Cnty. Sheriff

8 Dep’t, 533 F.3d 780, 799 (9th Cir. 2008) (“When both a municipal officer and a local government

9 entity are named, and the officer is named only in an official capacity, the court may dismiss the

10 officer as a redundant defendant.” (citations omitted)).

11 B. Claims II, III, VII, IX: Individual Capacity Eighth Amendment Claims, Sexual

Assault and Battery, and Negligence

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13 Plaintiff alleges individual capacity Eighth Amendment claims against Johnson, Montes,

14 and Gonzales, as well as claims for negligence and sexual assault and battery based on Johnson’s

15 sexual abuse and Montes’ and Gonzales’ failure to protect her from that abuse. ECF No. 11 at

16 19-21, 24-26. The complaint sufficiently states claims for negligence and violation of plaintiff’s

17 Eighth Amendment rights against Johnson based on his sexual abuse of plaintiff and against

18 Montes and Gonzalez for their failure to protect plaintiff from that abuse.1 See Schwenk v.

19 Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (“In the simplest and most absolute of terms”

20 prisoners have a clearly established Eighth Amendment right to be free from sexual abuse.);

21 Farmer v. Brennan, 511 U.S. 825, 837 (1994) (Eighth Amendment failure to protect claim

22 requires showing that “the official [knew] of and disregard[ed] an excessive risk to inmate health

23 or safety”); Mendoza v. City of Los Angeles, 66 Cal. App. 4th 1333, 1339 (1998) (elements of

24 negligence are duty to use reasonable care, breach of duty, and breach is the proximate cause of

25 1 Plaintiff’s claim against Montes and Gonzalez is cognizable insofar as it appears to be based

26 upon defendants’ own personal involvement, despite the labeling of the claim as one under a

theory of supervisory liability. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)

27 (“Liability under § 1983 must be based on the personal involvement of the defendant.” (citing

May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980))); Taylor v. List, 880 F.2d 1040, 1045 (9th

28 Cir. 1989) (“There is no respondeat superior liability under section 1983.” (citation omitted)).

1 plaintiff’s injury); Giraldo v. Cal. Dep't of Corr. & Rehab., 168 Cal. App. 4th 231, 252 (2008)

2 (“jailers owe prisoners a duty of care to protect them from foreseeable harm”).

3 The complaint also states cognizable claims for sexual assault and battery against

4 Johnson, but it fails to state cognizable claims against Montes or Gonzalez because there are no

5 facts demonstrating that they had a sexually offensive contact with plaintiff, and they are not

6 liable for an injury caused by another person’s conduct. See Cal. Civ. Code § 1708.5 (a person

7 commits sexual battery when they act with intent to cause a harmful or offensive contact with

8 another or to cause imminent apprehension of such contact and a sexually offensive contact

9 between the person and the victim results or they cause contact with a sexual organ from which a

10 condom has been removed and the removal was without consent); Cal. Gov’t Code § 820.8

11 (“Except as otherwise provided by statute, a public employee is not liable for an injury caused by

12 the act or omission of another person.”).

13 Accordingly, Johnson will be required to respond to plaintiff’s Eighth Amendment, sexual

14 assault and battery, and negligence claims. Montes and Gonzalez will also be required to respond

15 to the Eighth Amendment and negligence claims, but the sexual assault and battery claims against

16 them should be dismissed.

17 C. Claim IV: Gender Violence (California Civil Code § 52.4)

18 Plaintiff asserts a claim for gender violence under California Civil Code § 52.4 against

19 defendants Johnson, Montes, and Gonzalez. ECF No. 11 at 22. Section 52.4 defines gender

20 violence as

21 a form of sex discrimination and means either of the following:

22 (1) One or more acts that would constitute a criminal offense under

state law that has as an element the use, attempted use, or threatened

23 use of physical force against the person or property of another,

committed at least in part based on the gender of the victim, whether

24 or not those acts have resulted in criminal complaints, charges,

prosecution, or conviction.

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(2) A physical intrusion or physical invasion of a sexual nature under

26 coercive conditions, whether or not those acts have resulted in

criminal complaints, charges, prosecution, or conviction.

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28 Cal. Civ. Code § 52.4(c). This section does not establish civil liability based on a person’s status

1 as an employer “unless the employer personally committed an act of gender violence.” Cal. Civ.

2 Code § 52.4(e).

3 Plaintiff has sufficiently pled a claim for gender violence against defendant Johnson.

4 However, there are no facts demonstrating that Montes or Gonzalez personally committed an act

5 of gender violence, and plaintiff therefore fails to state a claim against them.

6 D. Claims V and VI: Bane Civil Rights Act (California Civil Code § 52.1) and Ralph

Act (California Civil Code § 51.7)

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8 The complaint asserts that all defendants violated California Civil Code § 52.1, also

9 known as the Tom Bane Civil Rights Act (Bane Act), and California Civil Code § 51.7, also

10 known as the Ralph Civil Rights Act of 1976 (Ralph Act). ECF No. 11 at 22-23. In order to state

11 a claim under the Bane Act, “[a] plaintiff must show (1) intentional interference or attempted

12 interference with a state or federal constitutional or legal right, and (2) the interference or

13 attempted interference was by threats, intimidation or coercion.” Allen v. City of Sacramento,

14 234 Cal. App. 4th 41, 67 (2015) (citations omitted). To state a claim under the Ralph Act, a

15 plaintiff must show that (1) defendant committed or threatened to commit violent acts against

16 plaintiff; (2) defendant was motivated by his perception of plaintiff’s sex; (3) plaintiff was

17 harmed; and (4) defendant’s conduct was a substantial factor in causing plaintiff’s harm. Austin

18 B. v. Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 880-81 (2007) (quoting former

19 California Civil Jury Instruction (CACI) No. 30232); CACI No. 3063 (setting out elements of a

20 claim under § 51.7).

21 Plaintiff has sufficiently alleged claims against Johnson under the Bane Act and Ralph Act

22 and he will be required to respond to these claims. She has not, however, alleged facts showing

23 that Montes or Gonzalez interfered with her rights by way of “threats, intimidation or coercion”

24 or that they threatened to commit or committed violent acts against her. She therefore fails to

25 state claims under either Act against Montes and Gonzalez. Additionally, because plaintiff names

26 Macomber, Parker, Hickethier, and Kent in their official capacities only, her Bane Act and Ralph

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28 2 CACI 3023 has since been renumbered as CACI 3063.

1 Act claims against them are barred by sovereign immunity and should be dismissed. See Hall v.

2 Hawaii, 791 F.2d 759, 761 (9th Cir. 1986) (“Absent a state’s unequivocal consent, the Eleventh

3 Amendment bars a federal court from entertaining a suit against that state, or one of its agencies

4 or departments, based on state law.” (citation omitted)); Hartmann, 707 F.3d at 1127 (official

5 capacity suit is a suit against the state); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

6 106 (1984) (Ex parte Young exception is “inapplicable in a suit against state officials on the basis

7 of state law”).

8 E. Claim VIII: False Imprisonment

9 The complaint alleges a claim for false imprisonment against Johnson. ECF No. 11 at 24-

10 25. “[T]he tort consists of the nonconsensual, intentional confinement of a person, without lawful

11 privilege, for an appreciable length of time, however short.” Fermino v. Fedco, Inc., 7 Cal. 4th

12 701, 715 (1994) (citation and internal quotation marks omitted). Plaintiff is a convicted prisoner

13 and therefore subject to incarceration and control by the California Department of Corrections

14 and its employees. However, the allegations are sufficient to demonstrate that Johnson exceeded

15 the scope of his lawful privilege to control plaintiff and therefore state a claim for relief.

16 F. Claim X: Negligent Hiring, Training, and Supervision and Respondeat Superior

Liability (California Government Code § 815.2)

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18 Plaintiff asserts a claim of negligent hiring, training, and supervision and respondeat

19 superior liability against defendant Montes under California Government Code § 815.2. ECF No.

20 11 at 26-27. Section 815.2 provides that “[a] public entity is liable for injury proximately caused

21 by an act or omission of an employee of the public entity within the scope of his employment.”

22 However, Montes is an individual, not a public entity, making § 815.2 inapplicable to him, and

23 “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury caused by

24 the act or omission of another person.” Cal. Gov’t Code § 820.8. Therefore, to the extent this

25 claim is based upon the conduct of Montes’ staff and employees, plaintiff fails to state a claim for

26 relief. To the extent the claim is based upon Montes’ own conduct in hiring, training, and

27 supervising his subordinates, the claim may proceed. See C.A. v. William S. Hart Union High

28 Sch. Dist., 53 Cal. 4th 861, 875-77 (2012) (public school administrators may be held legally

1 responsible for negligence in hiring, retaining, and supervising staff because of special

2 relationship they had with plaintiff, a student under their supervision).

3 G. Claim XI: Negligence Per Se

4 Plaintiff asserts a claim for negligence per se against Montes, Gonzalez, and Johnson.

5 ECF No. 11 at 27-28. However, “[n]egligence per se is an evidentiary doctrine, rather than an

6 independent cause of action.” Jones v. Awad, 39 Cal. App. 5th 1200, 1210 (2019) (citation

7 omitted). “The doctrine does not provide a private right of action for violation of a statute.

8 Instead, it operates to establish a presumption of negligence for which the statute serves the

9 subsidiary function of providing evidence of an element of a preexisting common law cause of

10 action.” Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th 1256, 1285-86 (2006) (citations

11 omitted); see also Elsner v. Uveges, 34 Cal. 4th 915, 927 n.8 (2004) (negligence per se refers to

12 the concept of borrowing statutes “for one of two purposes: (1) to establish a duty of care, or (2)

13 to establish a standard of care” (citations omitted)). Therefore, while plaintiff may pursue

14 negligence per se as a theory of negligence, to the extent plaintiff attempts to state an independent

15 claim for negligence per se separate from her general negligence claim, the claim is not

16 cognizable.

17 H. Claim XII: Intentional Infliction of Emotional Distress

18 Plaintiff asserts a claim for intentional infliction of emotional distress against Montes,

19 Gonzalez, and Johnson. ECF No. 11 at 28. The elements of a prima facie claim for intentional

20 infliction of emotional distress are as follows: “(1) extreme and outrageous conduct by the

21 defendant with the intention of causing, or reckless disregard of the probability of causing,

22 emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3)

23 actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.”

24 Davidson v. City of Westminster, 32 Cal. 3d 197, 209 (1982) (citations omitted). For conduct to

25 be outrageous, it “must be so extreme as to exceed all bounds of that usually tolerated in a

26 civilized community.” Id. “It is not enough that the conduct be intentional and outrageous. It

27 must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the

28 defendant is aware.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1002 (1993)

1 (emphasis in original) (quoting Christensen v. Superior Court, 54 Cal. 3d 868, 903 (1991)). “The

2 requirement that the defendant’s conduct be directed primarily at the plaintiff is a factor which

3 distinguishes intentional infliction of emotional distress from the negligent infliction of such

4 injury.” Christensen, 54 Cal. 3d at 904.

5 Plaintiff’s allegations clearly state a claim for relief against Johnson. Additionally, at the

6 screening stage, she has also sufficiently alleged claims against Montes and Gonzalez, even if

7 they were not aware that plaintiff, specifically, was one of the prisoners under Johnson’s

8 supervision. See Potter, 6 Cal. 4th at 1002-03 (conduct could be directed at plaintiffs, even if

9 defendant “did not know the particular names of any individual” whose water was contaminated

10 if it “actually knew of these particular plaintiffs and their consumption of the water”).

11 I. Doe Defendants

12 The complaint names Doe defendants 1-20 as parties and asserts various claims against

13 them. ECF No. 11 at 4-5, 20, 22-28. Though the use of Doe defendants is generally not favored,

14 Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (citation omitted), amendment is allowed

15 to substitute true names for fictitiously named defendants, see Merritt v. County of Los Angeles,

16 875 F.2d 765, 768 (9th Cir. 1989). In this case, plaintiff makes only conclusory allegations that

17 Doe defendants have violated her rights without identifying any specific conduct by any

18 particular Doe defendant. There is nothing in the complaint that would allow the court to connect

19 any specify Doe defendant with conduct that would support a violation of plaintiff’s rights and

20 there can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or

21 connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S.

22 362, 371, 376 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). This same defect

23 applies to plaintiff’s state law claims, as the court is unable to determine whether any Doe

24 defendant engaged in conduct that would satisfy the elements of the various state law claims

25 plaintiff asserts.

26 IV. Conclusion

27 The court has screened the first amended complaint and found that plaintiff has stated the

28 following claims: (1) an official capacity Eighth Amendment claim against Macomber; (2)

1 | individual capacity Eighth Amendment, negligence, and intentional infliction of emotional

2 | distress claims against Johnson, Montes, and Gonzalez; (3) sexual assault and battery, gender

3 || violence, false imprisonment, Bane Act, and Ralph Act claims against Johnson; and (4) a claim

4 | for negligent hiring, training, and supervision against Montes as set forth above. Plaintiff may

5 || elect to either (1) proceed on the first amended complaint as screened and voluntarily dismiss the

6 || other defendants and the claims against Macomber, Johnson, Montes, and Gonzalez that were

7 || found to be non-cognizable or (2) amend the complaint.

8 In accordance with the above, IT IS HEREBY ORDERED that:

9 1. The complaint states viable claims against defendants Macomber, Johnson, Montes,

10 || and Gonzalez as set forth above.

11 2. Plaintiff has the option to proceed immediately on her cognizable claims or to amend

12 || the complaint.

13 3. Within fourteen days of service of this order, plaintiff shall notify the court how she

14 | would like to proceed.

15 | DATED: October 7, 2024 *

16 Chthwen— Clare

ALLISON CLAIRE

17 UNITED STATES MAGISTRATE JUDGE

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