Alonso v. Imperial County Sheriff Office

• Court: District Court, S.D. California
• Decided: May 30, 2024
• Docket: 3:23-cv-00005
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER K. ALONSO, Case No.: 23cv5-LR

12 Plaintiff, ORDER GRANTING DEFENDANTS’ 13 v. MOTION TO DISMISS PLAINTIFF’S AMENDED 14 IMPERIAL COUNTY SHERIFF COMPLAINT DEPARTMENT, et al., 15 Defendants. [ECF NO. 32] 16 17 18 19 Pending before the Court is Defendants’ “Motion to Dismiss Plaintiff’s Amended 20 Complaint” [ECF No. 32, ECF No. 32-1 (“Mot. Dismiss”)], Plaintiff’s Opposition [ECF 21 No. 34 (“Opp’n”)1], and Defendants’ Reply [ECF No. 36 (“Reply”)]. After careful 22 review and consideration of the allegations in Plaintiff’s Amended Complaint, and for the 23 reasons discussed in this order, the Court GRANTS Defendants’ Motion to Dismiss. 24 25 26 1 Plaintiff labeled this document as “Amended Reply.” (ECF No. 34 at 1.) To the extent Plaintiff 27 intended this document to serve as his opposition to Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint, the Court will construe the filing as Plaintiff’s Opposition. 28 1 I. PROCEDURAL BACKGROUND 2 On January 3, 2023, Plaintiff Christopher Alonso, proceeding pro se, filed a 3 Complaint against the Imperial County Sheriff’s Office and Sheriff Deputies J. Mendoza, 4 Soto, R. Lizzarga, J. Guzman, Soria, Castro, M. Muniga, and Torres, alleging violations 5 of his civil rights under 42 U.S.C. § 1983. (ECF No. 1.) On January 26, 2023, 6 Defendants named in Plaintiff’s Complaint “by and through their attorneys” filed a 7 Motion to Dismiss the Complaint (“First Motion to Dismiss”) pursuant to Federal Rule of 8 Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. 9 (See ECF No. 5.) Plaintiff did not oppose the First Motion to Dismiss, and Defendants 10 filed a Reply in support of their motion on February 23, 2023. (ECF No. 7.) 11 On March 6, 2023, District Judge Bencivengo dismissed Plaintiff’s Complaint 12 without prejudice. (ECF No. 8.) Judge Bencivengo’s order stated that if Plaintiff’s 13 failure to oppose the First Motion to Dismiss was inadvertent, Plaintiff was to file a 14 motion for relief from the order pursuant to Federal Rule of Civil Procedure 60, and an 15 opposition to the Motion to Dismiss by April 3, 2023. (Id. at 2 n.1.) 16 On March 15, 2023, Plaintiff filed a “Motion to Reinstate Dismissed Case” stating 17 that he was not abandoning his Complaint, but did not submit an opposition as directed 18 by the District Judge’s March 6, 2023 Order. (See ECF No. 9; see also ECF No. 8.) On 19 March 20, 2023, District Judge Bencivengo issued an order requiring Plaintiff to respond 20 to Defendants’ First Motion to Dismiss by April 10, 2023. (ECF No. 10.) The order 21 further stated that if Plaintiff did not file an opposition by April 10, 2023, his motion to 22 reopen the case would be denied, and the case would remain dismissed. (Id. at 2.) 23 On April 3, 2023, the case was transferred from Magistrate Judge Bernard G. 24 Skomal to Magistrate Judge Lupe Rodriguez, Jr. (ECF No. 11.) Plaintiff did not file an 25 opposition to Defendants’ First Motion to Dismiss, and on April 18, 2023, District Judge 26 Bencivengo denied Plaintiff’s motion to reopen the case. (ECF No. 12 at 2.) 27 On April 26, 2023, Plaintiff filed a document, which District Judge Bencivengo 28 construed as a Response in Opposition to Defendants’ First Motion to Dismiss. (See 1 ECF Nos. 13 & 14.) District Judge Bencivengo accepted Plaintiff’s filing and allowed 2 Defendants to file a reply in support of their First Motion to Dismiss by May 5, 2023. 3 (ECF No. 14 at 2.) On May 1, 2023, District Judge Bencivengo referred the First Motion 4 to Dismiss to this Court for a Report and Recommendation. (See Docket.) On May 5, 5 2023, Defendants timely filed a Reply in support of their First Motion to Dismiss. (See 6 ECF No. 17.) 7 On June 7, 2023, this Court held a hearing on Defendants’ First Motion to Dismiss, 8 during which pro se Plaintiff and defense counsel on behalf of his clients consented to 9 this Court’s jurisdiction. (See ECF No. 19.) On June 13, 2023, Plaintiff filed a 10 “Revise[d] Response” to the First Motion to Dismiss, which the Court construed as 11 Plaintiff’s Sur-Reply. (See ECF No. 20.) On June 26, 2023, District Judge Bencivengo 12 signed the “Consent to Jurisdiction by a United States Magistrate Judge” form, and the 13 case was transferred to this Court. (See ECF No. 21; see also ECF No. 22 (containing 14 executed “Consent to Jurisdiction by a United States Magistrate Judge” forms).) On 15 August 9, 2023, this Court issued an Order Granting Defendants’ First Motion to Dismiss 16 Plaintiff’s Complaint and Dismissing Complaint Without Prejudice and With Leave to 17 Amend. (ECF No. 25.) 18 On October 12, 2023, Plaintiff filed an Amended Complaint against the Imperial 19 County Sheriff’s Department and Sheriff Deputies R. Lizzarga, J. Guzman, Soto/Joto,2 20 Torres, R. Alvarez, Soria, Mendoza, Gutierrez,3 Muniga,4 and Castro (“Defendants”), 21

22 2 The Court notes that Plaintiff’s Amended Complaint references Soto/Joto as a singular “Defendant.” (See ECF No. 29 (“Am. Compl.”) at 3.) Defendants’ Motion to Dismiss indicates that the correct 23 spelling of this Defendant’s last name is “Soto.” (See Mot. Dismiss (emphasis added).)

24 3 Plaintiff’s Amended Complaint spells Defendant’s last name as “Guiterrez.” (See Am. Compl. at 1–2, 25 5–6.) Defendants’ Motion to Dismiss indicates that the correct spelling of this Defendant’s last name is “Gutierrez.” (See Mot. Dismiss (emphasis added).) 26 4 Plaintiff’s Amended Complaint spells Defendant’s last name as “Mungia.” (See Am. Compl. at 1, 3, 27 7.) Defendants’ Motion to Dismiss indicates that the correct spelling of this Defendant’s last name is “Muniga.” (See Mot. Dismiss (emphasis added).) 28 1 alleging violations of his civil rights under 42 U.S.C. § 1983. (ECF No. 29 (“Am. 2 Compl.”).) On October 26, 2023, Defendants Imperial County Sheriff’s Office, and 3 Sheriff Deputies R. Lizzarga, J. Guzman, Soto, Torres, R. Alvarez, Soria, J. Mendoza, 4 Gutierrez, M. Muniga, Mendoza Jr., Hernandez and Castro “by and through their 5 attorneys” filed the instant Motion to Dismiss Plaintiff’s Amended Complaint pursuant to 6 Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can 7 be granted. (See Mot. Dismiss.) 8 On October 27, 2023, Plaintiff filed a document captioned “Amended reply.” 9 (ECF No. 34.) On January 8, 2024, Defendants timely filed a Reply in support of their 10 Motion to Dismiss. (See Reply; see also ECF No. 35.) 11 On February 28, 2024, the Court held a hearing on Defendants’ Motion to Dismiss. 12 (See ECF No. 41.) Pro se Plaintiff did not appear at the hearing. (See id.) During the 13 hearing, the Court asked defense counsel whether all named Defendants, including new 14 Defendants Plaintiff named in his Amended Complaint, have consented to this Court’s 15 jurisdiction, and defense counsel stated on the record that all Defendants named in 16 Plaintiff’s Amended Complaint have consented to this Court’s jurisdiction. 17 II. ALLEGATIONS IN PLAINTIFF’S AMENDED COMPLAINT 18 Plaintiff’s Amended Complaint names the Imperial County Sheriff’s Department 19 and Sheriff Deputies R. Lizzarga, J. Guzman, Soto, Torres, R. Alvarez, Soria, Mendoza, 20 Gutierrez, Muniga, and Castro as Defendants. (Am. Compl. at 1.) Plaintiff alleges that 21 the events giving rise to his claims occurred at the Imperial Valley Jail in El Centro, CA, 22 and Brawley Superior Court in Brawley, CA, between October 1, 2022, and November 2, 23 2022. (See id.) The Amended Complaint alleges violations of Plaintiff’s Fourth, 24 Eighth,5 and Fourteenth Amendment rights, as well as retaliation. (See id.) 25

26 5 The Court notes that Plaintiff’s Amended Complaint alleges violations of his Eighth Amendment rights. (Am. Compl. at 3–4, 6.) However, during the events at issue in this action, Plaintiff was 27 awaiting trial in his state court proceedings. (See Am. Compl.) Because Plaintiff was a pretrial detainee, and not a convicted inmate, the Fourteenth Amendment governs his claims. See Castro v. 28 1 Plaintiff alleges that numerous Defendants violated his Fourth Amendment rights. 2 (See id. at 2–3, 5.) Specifically, Plaintiff states that Defendant Torres woke him up while 3 he was “half dressed” to “intimidate” him, and Plaintiff told Torres that he was 4 uncomfortable because Torres was a female officer. (Id. at 5.) Plaintiff further alleges 5 that Torres unlocked Plaintiff’s cell and “acted as if she was going to enter” Plaintiff’s 6 “private protected living area,” but then Torres stepped aside and Alvarez entered the 7 cell. (Id.) Plaintiff alleges that he “was in fear of his life.” (Id.) He further claims that 8 Defendants Torres and Alvarez violated his privacy rights by entering his cell without 9 probable cause and coming within “close contact of [him]” while he was undressed. (Id. 10 at 2.) Plaintiff also states that if Defendant Alvarez needed to communicate with 11 Plaintiff, Alvarez could have done it through the door. (Id.) 12 Further, Plaintiff alleges that Defendant Gutierrez entered his cell without probable 13 cause despite Plaintiff’s request that Gutierrez “keep his distance” and step out. (Id. at 2, 14 5.) Plaintiff states that Gutierrez delivered a meal to his cell, despite Plaintiff’s request 15 that Gutierrez “stop communicating or [m]aking contact [with] [P]laintiff.” (Id. at 5.) 16 Plaintiff alleges that Gutierrez entered his cell and “invad[ed] [P]laintiff’s personal 17 space,” and contends that he was “concerned” and “intimidated.” (Id.) 18 Plaintiff also alleges that Defendant Soto conducted unwarranted searches to 19 “intimidate” Plaintiff and “look[ed] to fight Plaintiff” by opening his cell door after 20 Plaintiff exercised his First Amendment right. (Id. at 3.) Additionally, Plaintiff alleges 21 that when he was held at the Brawley Superior Court awaiting his court appearance, 22

23 suffered while in custody may do so under the Eighth Amendment’s Cruel and Unusual Punishment Clause or, if not yet convicted, under the Fourteenth Amendment’s Due Process Clause.”); Mendiola- 24 Martinez v. Arpaio, 836 F.3d 1239, 1246 n.5 (9th Cir. 2016) (“Eighth Amendment protections apply 25 only once a prisoner has been convicted of a crime, while pretrial detainees are entitled to the potentially more expansive protections of the Due Process Clause of the Fourteenth Amendment.”); Pierce v. Cnty. 26 of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008) (providing that pretrial detainees are protected against jail conditions or restrictions that “amount to punishment” by the Fourteenth Amendment’s Due Process 27 Clause).

28 1 Defendants Castro and Soria wrongfully touched him for a dress code violation. (Id. at 2 2.) 3 With respect to the Fourteenth Amendment, Plaintiff alleges violations by multiple 4 Defendants. He states that he “had done nothing wrong,” but Defendants Mendoza and 5 Gutierrez grabbed him, and “forcefully pushed pinched” him and “force[d]” him to 6 another pod cell. (Id. at 6.) Plaintiff further claims that Defendant Mendoza used 7 excessive force by “pulling and yanking” Plaintiff’s chain shackles, and “[u]ntrained/ 8 unsafe handcuffing techniques.” (Id. at 2.) Plaintiff states that he suffered head trauma 9 and lesions on his wrist because of excessive force employed by Defendants Mendoza 10 and Gutierrez. (Id. at 2, 6.) Additionally, Plaintiff alleges that during the meal hour, 11 Defendant Mendoza Jr. used excessive force by throwing a lunch bag at Plaintiff, while 12 he was asleep in his cell. (Id. at 3.) 13 Plaintiff also claims that Defendants failed to protect him. (See id. at 2, 4.) 14 Specifically, Plaintiff contends that he was handcuffed and shackled while waiting for his 15 court appearance at the Brawley Superior Court when three other unrestrained inmates in 16 his cell assaulted him. (See id. at 4, 6.) Plaintiff alleges that although Defendant 17 Hernandez could see the incident through the cell door’s window slot, he failed to protect 18 Plaintiff. (Id. at 6.) Additionally, Plaintiff claims that Defendants Soria and Castro failed 19 to protect him from other inmates. (See id. at 2, 4.) 20 Further, Plaintiff claims that Defendant Lizzarga deprived him of a meal when he 21 placed the meal on the outside of Plaintiff’s cell door’s window slot, but closed the slot. 22 (Id. at 3.) Plaintiff also alleges that an unknown and unnamed officer forced him to 23 undress while other female officers were present in the pod area. (Id. at 6.) Additionally, 24 Plaintiff states that the officers refused to give him clean clothing until he was fully 25 undressed. (Id.) Plaintiff claims that he was “body shamed” by the unnamed officers 26 when he undressed in front of them. (Id.) 27 Additionally, Plaintiff alleges that Defendants harassed him and discriminated 28 against him. (See id. at 3.) Plaintiff asserts that Defendant Guzman was “rude, 1 unpleasant, and unprofessional” by “vulgarly discriminating” and insulting Plaintiff’s 2 gender. (Id.) Plaintiff also claims that Defendant Soto “harass[ed]” and “taunt[ed]” 3 Plaintiff with unprofessional remarks and statements. (Id.) Additionally, Plaintiff alleges 4 that Defendant Gutierrez harassed Plaintiff by stepping into his cell after Plaintiff 5 requested no more contact or communication with Gutierrez. (Id. at 5.) Plaintiff states 6 that after he asked Gutierrez to exit his cell, Gutierrez stated “it was his cell,” “it was his 7 jail,” and that he “ran the jail.” (Id.) Plaintiff further alleges that Gutierrez did not leave 8 his cell until Plaintiff called for other guards. (Id.) 9 Plaintiff also alleges that during his pretrial detention, he was provided “inadequate 10 healthcare” and his medical needs were neglected. (See id. at 3, 7.) Plaintiff claims that 11 he submitted several health requests because of his digestive system issues, but his needs 12 were “disregarded.” (Id. at 7.) Plaintiff states that, on one occasion, he experienced 13 serious pain and requested to go to “911 emergency services,” but his request was denied 14 because the jail medical room was understaffed. (Id.) Plaintiff further claims that 15 Defendant Muniga was “the officer present at the time,” but “refused to contact medical 16 services.” (Id. at 3, 7.) 17 Further, Plaintiff alleges that the overall conditions of the Imperial County Jail 18 were unsanitary and inhumane because of feces and dried urine covering the cells, 19 ventilation problems that caused heat exhaustion, and fruit flies and mosquitoes. (Id. at 20 7.) Plaintiff also claims that he did not receive a set of clean orange apparel for seventeen 21 days after his incarceration, and that he received clean clothes every three days. (Id.) 22 Plaintiff further states that he was not able to shower every day despite the jail’s mandate 23 that inmates exercise on a daily basis. (Id.) 24 Additionally, Plaintiff alleges that officers impersonated other officers. (See id. at 25 3.) Specifically, Plaintiff claims that Defendants Guzman and Soto impersonated other 26 officers by changing their uniform name plaques. (Id.) 27 Plaintiff also alleges violations of his equal protection rights. (Id. at 7.) Plaintiff 28 states that his equal protection rights were violated because his “booking reports consist 1 of errors,” his “report location of arrest is incorrect,” and his “government identification 2 code is incorrect.” (Id.) 3 Plaintiff further alleges that Defendant Lizzarga “depriv[ed]” him of a meal in 4 retaliation. (See id. at 3, 6.) Plaintiff states that he requested a supervisor after 5 questioning Lizzarga “regarding inmate neglect,” and that later, during the meal hour, 6 Lizzarga took Plaintiff’s meal and closed his cell door’s window slot to prevent Plaintiff 7 from eating. (See id. at 6.) Plaintiff alleges that “every inmate” received their meal, but 8 he had to wait for Lizzarga “to come back around” to give Plaintiff his meal, and claims 9 that Lizzarga acted in retaliation. (See id. at 3, 6.) 10 III. LEGAL STANDARD 11 A. Motion to Dismiss for Failure to State a Claim 12 Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint 13 for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A 14 court evaluates whether a complaint states a cognizable legal theory and sufficient facts 15 in light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain 16 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 17 8(a)(2). To survive a motion to dismiss, a “complaint must contain sufficient factual 18 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 19 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 20 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that 21 allows the court to draw the reasonable inference that the defendant is liable for the 22 misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). A 23 complaint “must contain sufficient allegations of underlying facts to give fair notice and 24 to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 25 1216 (9th Cir. 2011). 26 A court accepts as true a plaintiff’s well-pleaded factual allegations and construes 27 all factual inferences in the light most favorable to the plaintiff. See Manzarek v. St. Paul 28 Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). A court, however, is not 1 required to accept as true legal conclusions couched as factual allegations. Iqbal, 556 2 U.S. at 678. When resolving a motion to dismiss for failure to state a claim, a court 3 considers the contents of the complaint and material properly submitted with it. Van 4 Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Schneider v. 5 Cal. Dep’t of Corr., 151 F.3d 1194, 1197 (9th Cir. 1998) (internal citations and internal 6 quotation marks omitted) (“Ordinarily, the face of the . . . complaint, and the exhibits 7 attached thereto, would control the Rule 12(b)(6) inquiry.”). 8 B. Standards Applicable to Pro Se Litigants 9 When a plaintiff appears pro se, a court must liberally construe the pleadings. See 10 Erickson v. Pardus, 551 U.S. 89, 94 (2007); Thompson v. Davis, 295 F.3d 890, 895 (9th 11 Cir. 2002). The rule of liberal construction is “particularly important” in civil rights 12 cases. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); Ferdik v. Bonzelet, 963 13 F.2d 1258, 1261 (9th Cir. 1992). When liberally construing a pro se civil rights 14 complaint, a court is not permitted to “supply essential elements of the claim that were 15 not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th 16 Cir. 1982). “The plaintiff must allege with at least some degree of particularity overt acts 17 which defendants engaged in that support the plaintiff’s claim.” Jones v. Cmty. Redev. 18 Agency, 733 F.2d 646, 649 (9th Cir. 1984) (citations and internal quotation marks 19 omitted). 20 A court should allow a pro se litigant to amend his complaint, “unless the pleading 21 ‘could not possibly be cured by the allegation of other facts.’” Ramirez v. Galaza, 334 22 F.3d 850, 861 (9th Cir. 2003) (quoting Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 23 2000)). “[B]efore dismissing a pro se complaint the district court must provide the 24 litigant with notice of the deficiencies in his complaint in order to ensure that the litigant 25 uses the opportunity to amend effectively.” Ferdik, 963 F.2d at 1261. A court “should 26 not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that 27 the deficiencies of the complaint could not be cured by amendment.’” Rosati v. Igbinoso, 28 791 F.3d 1037, 1039 (9th Cir. 2015) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th 1 Cir. 2012)). However, where an amendment of a pro se litigant’s complaint would be 2 futile, denial of leave to amend is appropriate. See James v. Giles, 221 F.3d 1074, 1077 3 (9th Cir. 2000). 4 C. Stating a Claim Under 42 U.S.C. § 1983 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must plausibly allege that 6 (1) the acts of defendants (2) taken under color of state law (3) deprived him of his 7 federal rights, privileges, or immunities and (4) caused him damage. 42 U.S.C. § 1983; 8 Thornton v. City of St. Helens, 425 F.3d 1158, 1163–64 (9th Cir. 2005). To prevail on a 9 § 1983 claim, “a plaintiff must demonstrate that he suffered a specific injury as a result of 10 specific conduct of a defendant and show an affirmative link between the injury and the 11 conduct of the defendant.” Harris v. Schriro, 652 F. Supp. 2d 1024, 1034 (D. Ariz. 2009) 12 (citing Rizzo v. Goode, 423 U.S. 362, 371–72 (1976)). 13 IV. DISCUSSION 14 Defendants move the Court to dismiss Plaintiff’s Amended Complaint without 15 leave to amend. (See Mot. Dismiss.) They argue that Plaintiff fails to establish liability 16 under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). (Id. at 8–10.) 17 Defendants further contend that Plaintiff’s Amended Complaint fails to adequately plead 18 a Fourth Amendment claim, as well as his claim for violations under the Fourteenth 19 Amendment. (Id. at 10–17.) Additionally, Defendants assert that Plaintiff cannot show 20 that the deficiencies in his Amended Complaint “can be cured by amendment.” (Id. at 7.) 21 Finally, Defendants state that Plaintiff’s Opposition fails to address any of the legal 22 arguments in Defendants’ Motion to Dismiss and contains facts not pled in Plaintiff’s 23 Amended Complaint, and ask the Court to disregard those facts. (Reply at 2–3.) 24 A. Facts Raised in Plaintiff’s Opposition 25 The Court initially addresses Defendants’ argument that because Plaintiff’s 26 Opposition adds new facts that Plaintiff did not plead in his Amended Complaint, the 27 Court should disregard those facts. (See id. at 2; see also ECF No. 17.) Having reviewed 28 Plaintiff’s Opposition, the Court notes that it generally restates facts from Plaintiff’s 1 Amended Complaint, but also contains additional facts that were not alleged in the 2 Amended Complaint. (See Opp’n at 1–5.) 3 “In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look 4 beyond the complaint to a plaintiff’s moving papers, such as a memorandum in 5 opposition to a defendant’s motion to dismiss.” Broam v. Bogan, 320 F.3d 1023, 1026 6 n.2 (9th Cir. 2003) (quoting Schneider, 151 F.3d at 1197 (9th Cir. 1998)); see also Turner 7 v. Cnty. of San Diego, Case No.: 17cv285-WQH-MDD, 2017 WL 2908807, at *3 (S.D. 8 Cal. July 7, 2017) (“[A] court cannot consider as allegations facts [p]laintiff asserts for 9 the first time in his opposition.”). However, a court may consider “[f]acts raised for the 10 first time in plaintiff’s opposition papers . . . in determining whether to grant leave to 11 amend or to dismiss the complaint with or without prejudice.” Broam, 320 F.3d at 1026 12 n.2 (quoting Orion Tire Corp. v. Goodyear Tire & Rubber Co., 268 F.3d 1133, 1137–38 13 (9th Cir. 2001)). As a result, although the Court cannot consider new facts listed in 14 Plaintiff’s Opposition in determining whether Plaintiff’s Amended Complaint states a 15 claim against Defendants, the Court will consider those facts in determining whether to 16 grant leave to amend or to dismiss the Amended Complaint with or without prejudice. 17 See id. 18 B. Monell Municipal Liability 19 Defendants argue that if Plaintiff is attempting to establish municipal liability 20 under Monell, 436 U.S. at 690, his Amended Complaint fails to allege an official policy 21 that amounted to a deliberate indifference of Plaintiff’s rights. (Mot. Dismiss at 8–10.) 22 Defendants contend that Plaintiff fails to mention any official policy that amounted to a 23 deliberate indifference of his rights, and merely references mandated inmate workouts 24 without the ability to shower. (Id. at 8–9.) Defendants further argue that even if Plaintiff 25 references a policy, he fails to establish how that policy is deficient, how it caused him 26 harm, or that it amounted to a deliberate indifference. (Id. at 9–10.) Defendants also 27 assert that Plaintiff fails to establish Monell liability related to his other causes of action 28 1 for the same reasons. (Id. at 10.) Plaintiff does not make any arguments regarding 2 municipal liability in his Opposition. (See Opp’n.) 3 Plaintiff’s Amended Complaint names the Imperial County Sheriff’s Department. 4 (See Am. Compl.) The Ninth Circuit has recently clarified that municipal police 5 departments and sheriff’s departments are “persons” within the meaning of 42 U.S.C. 6 §1983, and are therefore proper defendants. See Duarte v. City of Stockton, 60 F.4th 7 566, 574 (9th Cir. 2023); see also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th 8 Cir. 2012) (“To establish § 1983 liability, a plaintiff must show both (1) deprivation of a 9 right secured by the Constitution and laws of the United States, and (2) that the 10 deprivation was committed by a person acting under color of state law.”). Therefore, the 11 Imperial County Sheriff’s Department is a “person” within the meaning of 42 U.S.C. 12 § 1983, and a proper Defendant in this action. See id.; see also Crossley v. Tulare Cnty. 13 Sheriff, 1:21-cv-01758-GSA-PC, 2023 WL 3794868, at *4 (E.D. Cal. June 2, 2023) 14 (citing Duarte, 60 F.4th at 574, and concluding that Tulare County Sheriff’s Department 15 was a proper defendant); Johnson v. Solano Cnty. Sherriff, No. 2:22-cv-02061-DAD- 16 CKD PS, 2023 WL 2278409, at *4 (E.D. Cal. Feb. 28, 2023) (citing Duarte, 60 F.4th at 17 574, and concluding that Solano County Sheriff’s Department was proper defendant). 18 A municipality or local government unit can be held liable under 42 U.S.C. § 1983 19 if the allegedly unconstitutional actions of its employees were taken pursuant to a “policy 20 statement, ordinance, regulation, or decision officially adopted and promulgated by that 21 body’s officers.” Monell, 436 U.S. at 690. A municipality can also be liable for adopting 22 an unconstitutional custom, even if such custom has not received formal approval 23 through the “body’s official decision-making channels.” Id. at 690–91. However, a 24 municipal entity cannot be held liable under 42 U.S.C. § 1983 simply because it employs 25 someone who has allegedly acted unlawfully. Id. at 691, 694. A plaintiff must show 26 that: (1) he was deprived of a constitutional right; (2) the municipality has a policy, 27 custom or practice which amounted to deliberate indifference to that constitutional right; 28 and (3) the policy, custom, or practice was the moving force behind the constitutional 1 violation. Dougherty v. City of Covina, 654 F.3d 892, 900–01 (9th Cir. 2011) (citing 2 Monell, 436 U.S. at 694). A “policy” is a “deliberate choice to follow a course of 3 action . . . made from among various alternatives by the official or officials responsible 4 for establishing final policy with respect to the subject matter in question.” Fogel v. 5 Collins, 531 F.3d 824, 834 (9th Cir. 2008). A “custom” for purposes of municipal 6 liability is a “widespread practice that, although not authorized by written law or express 7 municipal policy, is so permanent and well-settled as to constitute a custom or usage with 8 the force of law.” St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (citation and internal 9 quotation marks omitted). “[P]roof of a single incident of unconstitutional activity” or 10 even a series of “isolated or sporadic incidents” will not give rise to § 1983 municipal 11 liability. Grant v. Cnty. of Los Angeles, 772 F.3d 608, 618 (9th Cir. 2014). 12 In his Amended Complaint, Plaintiff appears to allege that the Imperial County 13 Sheriff’s Department mandates exercise, but does not allow inmates to shower every day. 14 (See Am. Compl. at 7.) Plaintiff’s Amended Complaint, however, does not allege that 15 inmate exercise is part of any policy, custom, or practice by the Imperial County Sheriff’s 16 Department, or that it amounted to deliberate indifference to his constitutional rights. See 17 Dougherty, 654 F.3d at 900–01; Monell, 436 U.S. at 694. Plaintiff also has not alleged 18 that any policy, custom, or practice was the “moving force” behind the constitutional 19 violation. See id. Plaintiff therefore has failed to allege a Monell claim against the 20 Imperial County Sheriff’s Department. 21 C. Fourth Amendment Claims 22 Plaintiff appears to allege in his Amended Complaint that Defendants violated his 23 privacy rights. (Am. Compl. at 2, 5.) He also appears to assert that Defendants entered 24 his cell without probable cause to conduct unwarranted searches. (Id. at 3, 5.) 25 To the extent Plaintiff alleges that Defendants violated his privacy rights under the 26 Fourth Amendment, “while persons imprisoned for crime enjoy many protections of the 27 Constitution, it is also clear that imprisonment carries with it the circumscription or loss 28 of many significant rights.” Hudson v. Palmer, 468 U.S. 517, 524 (1984) (citing Bell v. 1 Wolfish, 441 U.S. 520, 545 (1979)). A prisoner has no reasonable expectation of privacy 2 in his prison cell. See Hudson, 468 U.S. at 527–28; see also Seaton v. Mayberg, 610 F.3d 3 530, 534 (9th Cir. 2010) (quoting Bell, 441 U.S. at 537) (“Loss of privacy is an ‘inherent 4 incident[] of confinement.’”); Mitchell v. Dupnik, 75 F.3d 517, 522 (9th Cir. 1996) (“An 5 inmate ordinarily has no reasonable expectation of privacy as to his jail cell or his 6 possessions within it.”). “A right of privacy in traditional Fourth Amendment terms is 7 fundamentally incompatible with the close and continual surveillance of inmates and 8 their cells required to ensure institutional security and internal order.” Hudson, 468 U.S. 9 at 527–28; see also Bell, 441 U.S. at 546 (emphasis added) (“[M]aintaining institutional 10 security and preserving internal order and discipline are essential goals that may require 11 limitation or retraction of the retained constitutional rights of both convicted prisoners 12 and pretrial detainees.”). Further, prisoners retain a very limited Fourth Amendment 13 right to shield themselves from being observed nude. See Michenfelder v. Sumner, 860 14 F.2d 328, 333–34 (9th Cir. 1988). This right is not violated if guards only make casual 15 observations of the prisoner or if the observations are made from a distance. See id. at 16 334. 17 In this case, Plaintiff alleges that Defendant Torres, a female correctional officer, 18 “acted as if she was going to enter” Plaintiff’s cell while he was “half dressed,” but then 19 Torres stepped aside and Defendant Alvarez entered the cell. (Am. Compl. at 5.) 20 Plaintiff claims that Defendants Torres and Alvarez violated his privacy rights by coming 21 within “close contact of [him]” while he was undressed. (Id. at 2.) Plaintiff’s Amended 22 Complaint allegations describe an isolated occurrence, during which Plaintiff was “half 23 dressed,” and a female officer Torres approached, but did not enter his cell. (See id.) 24 The Amended Complaint also alleges that Torres was accompanied by a male officer 25 Alvarez, who entered Plaintiff’s cell. (See id.) Plaintiff has not alleged that Torres’s or 26 Alvarez’s actions were unreasonable or unprofessional, and, as currently pled, Plaintiff’s 27 Amended Complaint does not allege a Fourth Amendment violation of his privacy rights 28 against Defendants Torres and Alvarez. See Michenfelder, 860 F.2d at 334 (“We 1 recognize as legitimate both the interest in providing equal employment opportunities and 2 the security interest in deploying available staff effectively”; also stating that “assigned 3 positions of female guards that require only infrequent and casual observation, or 4 observation at distance, and that are reasonably related to prison needs are not so 5 degrading as to warrant court interference.”); see also Kamali v. Stevens, 1:19-cv-01432- 6 NONE-GSA-PC, 2021 WL 3140479, at *6 (E.D. Cal. July 26, 2021) (finding that 7 plaintiff failed to state a cognizable claim for invasion of bodily privacy in violation of 8 the Fourth Amendment, where the plaintiff alleged that by having to walk naked roughly 9 40–50 feet to the C-yard patio to wash himself with a garden hose he was forced to 10 expose himself to females and other inmates; reasoning, in relevant part, that that 11 plaintiff’s “allegations [we]re limited to a single incident”). 12 Additionally, Plaintiff alleges that Defendants Castro and Soria “wrongfully 13 touched” him for a “dress code violat[ion]” when he was held at the Brawley Superior 14 Court, in violation of his Fourth Amendment rights. (See Am. Compl. at 2.) Plaintiff’s 15 Amended Complaint also contains allegations that Defendant Gutierrez violated his 16 privacy rights, when Gutierrez entered Plaintiff’s cell to deliver a meal, despite Plaintiff’s 17 request that Gutierrez “keep his distance,” step out, and “stop communicating or 18 [m]aking contact [with] [P]laintiff.” (See id. at 2, 5.) Plaintiff’s Amended Complaint 19 does not provide any further facts to support his claims that Defendants Castro, Soria, and 20 Gutierrez violated his Fourth Amendment rights. Plaintiff’s vague and conclusory 21 allegations in the Amended Complaint are not sufficient to state a plausible Fourth 22 Amendment claim. See Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the 23 framework of a complaint, they must be supported by factual allegations.”); United States 24 v. Van Poyck, 77 F.3d 285, 290 (9th Cir. 1996) (quoting New York v. Class, 475 U.S. 25 106, 112 (1986)) (“The Fourth Amendment is not triggered unless the state intrudes into 26 an area ‘in which there is a constitutionally protected reasonable expectation of 27 privacy.’”); see also Haraszewski v. Brannan, No. 10cv0546–LAB (PCL), 2011 WL 28 1 4569075, at *2 (S.D. Cal. Sept. 30, 2011) (concluding that a pretrial detainee “could not 2 reasonably have expected his cell and its contents to remain private.”). 3 Further, to the extent Plaintiff alleges that Defendants searched his cell without 4 probable cause, “the Fourth Amendment proscription against unreasonable searches does 5 not apply within the confines of the prison cell.” Hudson, 468 U.S. at 526. “Random 6 searches of inmates, individually or collectively, and their cells” are “necessary to ensure 7 the security of the institution and the safety of inmates and all others within its 8 boundaries.” Id. at 529. To the extent that pretrial detainees retain Fourth Amendment 9 rights upon incarceration, those constitutional rights prohibit “only unreasonable 10 searches.” Id. at 558. In determining the reasonableness of a search, courts consider the 11 following factors: (1) the scope of the particular intrusion, (2) the manner in which the 12 search is conducted, (3) the justification for initiating the search, and (4) the place in 13 which the search is conducted. Byrd v. Maricopa Cnty. Sheriff’s Dep’t, 629 F.3d 1135, 14 1141 (9th Cir. 2011). Whether a “search is reasonable under the Fourth Amendment 15 requires a case-by-case ‘balancing of the need for the particular search against the 16 invasion of personal rights that the search entails.’” Id. (quoting Bell, 441 U.S. at 559). 17 In this case, Plaintiff alleges that Defendant Soto conducted unwarranted searches 18 to intimidate Plaintiff, and “look[ed] to fight” Plaintiff by opening his cell door. (Am. 19 Compl. at 3.) Plaintiff’s Amended Complaint is devoid of any additional factual 20 allegations regarding the search. See Byrd, 629 F.3d at 1141 (providing that the 21 following factors are considered in assessing the reasonableness of a search: (1) the scope 22 of the particular intrusion, (2) the manner in which the search is conducted, (3) the 23 justification for initiating the search, and (4) the place in which the search is conducted). 24 Under these facts, Plaintiff has not alleged that Defendant Soto violated his Fourth 25 Amendment rights. See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570 (“[t]o 26 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted 27 as true, to ‘state a claim to relief that is plausible on its face.’”); see also United States v. 28 Brice, 584 F. App’x 753 (9th Cir. 2014) (finding that an inmate did not have reasonable 1 expectation of privacy in his cell, and that a warrantless search of the inmate’s cell did 2 not violate his Fourth Amendment rights); Myron v. Terhune, 225 F. App’x 434, 438 (9th 3 Cir. 2007) (quoting Hudson, 468 U.S. at 537) (finding that plaintiff’s claim that his cell 4 was searched without a warrant was “frivolous,” because “the Fourth Amendment is not 5 applicable to a prison cell”). 6 D. Fourteenth Amendment Claims 7 Plaintiff’s Amended Complaint appears to allege that Defendants violated his 8 Fourteenth Amendment rights by (1) failing to protect him from violence and using 9 excessive force, (2) providing inadequate medical care, (3) providing inadequate 10 conditions of confinement, (4) violating his bodily privacy rights, and (5) violating his 11 equal protection rights. (See Am. Compl. at 2–7.) The Fourteenth Amendment 12 “prohibits all punishment of pretrial detainees.” Norbert v. City & Cnty. of S.F., 10 13 F.4th 918, 928 (9th Cir. 2021) (quoting Vazquez v. Cnty. of Kern, 949 F.3d 1153, 1163– 14 64 (9th Cir. 2020)). For a “particular governmental action to constitute punishment, 15 (1) that action must cause the detainee to suffer some harm or ‘disability,’ and (2) the 16 purpose of the governmental action must be to punish the detainee.” Id. (quoting Demery 17 v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004)). “Harm” under the first prong must 18 “significantly exceed, or be independent of, the inherent discomforts of confinement.” 19 Demery, 378 F.3d at 1030 (citing Bell, 441 U.S. at 537). 20 1. Failure to protect/excessive force 21 To the extent Plaintiff is alleging in his Amended Complaint that Defendants failed 22 to protect him from violence during his pretrial detention, the elements of a Fourteenth 23 Amendment failure-to-protect claim against an individual officer are: 24 (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 25

26 (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; 27

28 1 (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have 2 appreciated the high degree of risk involved—making the consequences of 3 the defendant’s conduct obvious; and

4 (4) By not taking such measures, the defendant caused the plaintiff’s 5 injuries.

7 Castro, 833 F.3d at 1071. To satisfy the third element, “defendant’s conduct must be 8 objectively unreasonable.” Id. (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 9 (2015)). 10 Plaintiff alleges in his Amended Complaint that he was assaulted by three 11 unrestrained inmates while he was handcuffed at the Brawley Superior Court, and that 12 Defendant Hernandez “failed to act” or contain the inmates, even though he could see the 13 incident. (See Am Compl. at 6.) Plaintiff also claims that Defendants Soria and Castro 14 “failed to protect” him. (See id. at 2.) Although Plaintiff’s Amended Complaint alleges 15 that Defendants Hernandez, Soria and Castro failed to protect him from inmate attack 16 while Plaintiff was awaiting a court appearance at the Brawley Superior Court, (see id. at 17 2, 6), the Amended Complaint does not allege that those Defendants were aware that the 18 unrestrained inmates might attack Plaintiff, yet made an intentional decision to place 19 Plaintiff in the cell with those inmates. See Castro, 833 F.3d at 1071. Further, the 20 Amended Complaint fails to sufficiently allege facts showing that by being temporarily 21 placed in the cell with other inmates at the Brawley Superior Court, Plaintiff was 22 subjected to a substantial risk of suffering serious harm, that Defendants Hernandez, 23 Soria and Castro failed to take reasonable steps to abate that risk, that a reasonable deputy 24 in Defendants’ position would have appreciated a high risk of harm under the 25 circumstances, and that by not taking such measures, Defendants caused Plaintiff’s 26 injuries. See id.; see also Iqbal, 556 U.S. at 679 (“While legal conclusions can provide 27 the framework for a complaint, they must be supported by factual allegations.”); M.D. v. 28 Cnty. of San Bernardino, Case No. 5:22-cv-1357-SP, 2023 WL 2342338, at *5 (C.D. Cal. 1 Feb. 27, 2023) (dismissing plaintiffs’ claim that defendants failed to protect a deceased 2 inmate from his cell-mate, where plaintiffs claimed that “defendants knew or should have 3 known that decedent’s cell-mate would attack him, but allege[d] no facts to support that 4 claim.”). Accordingly, Plaintiff’s conclusory allegations in his Amended Complaint fail 5 to state a cognizable Fourteenth Amendment claim against Defendants Hernandez, Soria 6 and Castro for failure to protect Plaintiff. 7 To the extent Plaintiff alleges that Defendants violated his Fourteenth Amendment 8 rights by using excessive force, “the Due Process Clause protects a pretrial detainee from 9 the use of excessive force that amounts to punishment.” Kingsley, 576 U.S. at 397–98 10 (quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). To state an excessive force 11 claim, “a pretrial detainee must show only that the force purposely or knowingly used 12 against him was objectively unreasonable.” Id. at 396–97. Objective reasonableness 13 turns on the “facts and circumstances of the particular case.” See id. at 397 (quoting 14 Graham, 490 U.S. at 396). A court must consider “legitimate interests that stem from 15 [the government’s] need to manage the facility in which the individual is detained, 16 appropriately deferring to policies and practices that in th[e] judgment of jail officials are 17 needed to preserve internal order and discipline and to maintain institutional security.” 18 Id. (quoting Bell, 441 U.S. at 540, 547 (internal quotation marks omitted)). Relevant 19 considerations also include “the relationship between the need for the use of force and the 20 amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to 21 temper or to limit the amount of force; the severity of the security problem at issue; the 22 threat reasonably perceived by the officer; and whether the plaintiff was actively 23 resisting.” Id. at 397. 24 In this case, Plaintiff alleges that after he had been assaulted at the Brawley 25 Superior Court, Defendants Mendoza and Gutierrez grabbed him, forcefully “pushed 26 pinched” him, and “force[d]” him into another pod cell. (See Am. Compl. at 6.) Plaintiff 27 further claims that Defendant Mendoza “pull[ed] and yank[ed]” Plaintiff’s chain 28 shackles, and used “untrained” and “unsafe handcuffing techniques.” (See id.) Plaintiff 1 also alleges that he suffered head trauma and lesions on his wrist. (See id. at 2, 6.) 2 Although Plaintiff alleges, in a conclusory manner, that Defendants Mendoza and 3 Gutierrez used excessive force, he also alleges that there had been a fight with several 4 inmates, which had preceded Defendants’ alleged use of force. (See id. at 6.) Plaintiff’s 5 Amended Complaint does not allege whether Defendants provided any reasons for their 6 actions and whether they engaged in other conduct to defuse the use of force. Most 7 importantly, the Amended Complaint also does not state that Defendants’ actions were 8 objectively unreasonable in light of the surrounding facts and circumstances. See 9 Kingsley, 576 U.S. 396–97 (providing that to state a claim, a pretrial detainee is required 10 to show that “the force purposely or knowingly used against him was objectively 11 unreasonable”); id. at 398 (stating that a pretrial detainee can prevail on an excessive 12 force claim by providing “objective evidence that the challenged governmental action is 13 not rationally related to a legitimate governmental objective or that is excessive in 14 relation to that purpose”); see also Plunk v. Tulare Cnty., Case No.: 1:15-cv-01820- 15 SAB(PC), 2016 WL 8731360, at *3 (E.D. Cal. Feb. 5, 2016) (dismissing plaintiff’s 16 excessive force claim under the Fourteenth Amendment where plaintiff’s complaint 17 “d[id] not explain what led to the incident [at issue], where the incident took place, what 18 if any reasons were given by defendants for their actions, whether defendants engaged in 19 other conduct to defuse the use of force, or why [p]laintiff believe[d] the use of force was 20 objectively unreasonable.”). For the foregoing reasons, Plaintiff’s allegations in the 21 Amended Complaint are not sufficient to state a cognizable claim against Defendants 22 Mendoza and Gutierrez for excessive force. 23 2. Inadequate medical care 24 To the extent Plaintiff is alleging that Defendants failed to provide adequate 25 medical care, “claims for violations of the right to adequate medical care ‘brought by 26 pretrial detainees against individual defendants under the Fourteenth Amendment’ must 27 be evaluated under an objective deliberate indifference standard.” Gordon v. Cnty. of 28 Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018) (emphasis added) (quoting Castro, 1 833F.3d at 1070)). In Gordon, the Ninth Circuit identified the following elements of a 2 pretrial detainee’s medical care claim against an individual defendant under the Due 3 Process Clause of the Fourteenth Amendment: 4 (i) the defendant made an intentional decision with respect to the conditions under which [plaintiff] was confined; (ii) those conditions put [plaintiff] at 5 substantial risk of suffering serious harm; (iii) [each] defendant did not take 6 reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk 7 involved—making the consequences of the defendant’s conduct obvious; 8 and (iv) by not taking such measures, [each] defendant caused [plaintiff’s] injuries. 9

10 Id. at 1125. 11 Plaintiff alleges in his Amended Complaint that during his pretrial detention, he 12 was provided “inadequate healthcare.” (See Am. Compl. at 7.) He claims that he 13 suffered from a history of “bad bowel movement w/ internal black discharge” and 14 experienced “digestive system issues,” and that he “submitted several health request 15 reports” because of his digestive issues, but his “medical needs were disregarded.” (See 16 id.) Plaintiff also alleges that, on one occasion, he experienced serious pain and 17 “requested to go to 911 emergency services,” but was refused. (Id.) Additionally, 18 Plaintiff generally claims that the jail’s medical room was understaffed and that 19 Defendant Muniga “was the officer present at the time who refused to contact medical 20 services” to “provide [Plaintiff] with emergency medical care.” (See id. at 3, 7.) 21 Although Plaintiff alleges that he experienced “digestive system issues,” (see id. at 7), he 22 doesn’t claim that Defendant Muniga knew of those issues, yet “made an intentional 23 decision” to expose Plaintiff to a “substantial risk of suffering serious harm.” See 24 Gordon, 888 F.3d at 1125. Further, Plaintiff does not allege that a reasonable officer in 25 Muniga’s position “would have appreciated [a] high degree of risk involved.” See 26 id. Plaintiff also does not allege any facts to plausibly suggest that Muniga’s actions or 27 refusal to act caused Plaintiff to be injured. See id. Notably, the Amended Complaint 28 does not specify what injury Plaintiff suffered. (See Am. Compl.) 1 Additionally, although Plaintiff generally alleges that on unspecified dates, he 2 “submitted several health request reports” regarding his “digestive issues,” (see id. at 7), 3 there are no factual allegations in his Amended Complaint identifying who those requests 4 were directed to or any other facts plausibly alleging that any individual Defendant was 5 aware of his medical needs. See Gordon, 888 F.3d at 1125; see also Mayfield v. Craven, 6 433 F.2d 873, 874 (9th Cir. 1970) (“[A] difference of opinion between a prisoner patient 7 and prison medical authorities as to what treatment is proper and necessary does not give 8 rise to a claim under [§ 1983].”); Burns v. San Diego Cnty. Sheriff’s Dep’t, Case No.: 22- 9 CV-372 JLS (MDD), 2022 WL 1570999, at *5 (S.D. Cal. May 18, 2022) (“Allegations of 10 differences of opinion over proper medical care, inadequate medical treatment, medical 11 malpractice, or even gross negligence by themselves do not rise to the level of . . . 12 Fourteenth Amendment violation.”); Swanson v. Cnty. of Contra Costa, Case No. 21-cv- 13 06419-JST, 2023 WL 6391472, at *6 (N.D. Cal. Sept. 29, 2023) (finding that pretrial 14 detainee’s claims that jail officials “fail[ed] to check [his] vitals or offer him fluids,” were 15 insufficient to “put medical staff on notice of [p]laintiff’s ulcerative colitis,” and granting 16 defendants’ motion to dismiss plaintiff’s Fourteenth Amendment claim for inadequate 17 medical care). Plaintiff’s assertions in the Amended Complaint are too vague and 18 conclusory to state a claim for a constitutional violation against Defendant Muniga for 19 failure to provide adequate medical care. Based on these facts, the Court finds that the 20 Amended Complaint does not state a claim for denial of medical care in violation of 21 Plaintiff’s Fourteenth Amendment Due Process rights. 22 3. Conditions of confinement 23 To the extent Plaintiff is attempting to allege that Defendants violated his 24 Fourteenth Amendment rights by providing inadequate conditions of confinement, to 25 state a claim for unconstitutional conditions of confinement, a pre-trial detainee must 26 plausibly allege that: 27 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff 28 1 at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable 2 official in the circumstances would have appreciated the high degree of risk 3 involved—making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s 4 injuries. 5 6 Gordon, 888 F.3d at 1125 (quoting Castro, 833 F.3d at 1071); see also Carroll v. San 7 Diego Cnty. Jail Sheriff, Case No.: 3:19-cv-02073-AJB-NLS, 2020 WL 4336091, at *6–7 8 (S.D. Cal. July 28, 2020) (stating that the Ninth Circuit’s reasoning in Gordon applies to 9 conditions of confinement claims). 10 “The Constitution ‘does not mandate comfortable prisons.’” Farmer v. Brennan, 11 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). 12 “Conditions of confinement may, consistent with the Constitution, be restrictive and 13 harsh.” Uhuru v. Benavidez, Case No. 2:22-CV-0784-TLN-DMC-P, 2023 WL 5280132, 14 at *7 (E.D. Cal. Aug. 16, 2023) (citing Rhodes, 452 U.S. at 347; Morgan v. Morgensen, 15 465 F.3d 1041, 1045 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 16 1996); Jordan v. Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc)). However, 17 some conditions of confinement may establish a constitutional violation “when they have 18 a mutually enforcing effect that produces the deprivation of a single, identifiable human 19 need such as food, warmth, or exercise—for example, a low cell temperature at night 20 combined with a failure to issue blankets.” Wilson v. Seiter, 501 U.S. 294, 304 (1991). 21 In this case, Plaintiff’s Amended Complaint alleges that the conditions of the 22 Imperial County Jail, where Plaintiff was housed during his pretrial detention, were 23 unsanitary and inhumane, because the cells contained feces and dried urine, fruit flies, 24 and mosquitoes, and there was inadequate ventilation and poor air quality. (See Am. 25 Compl. at 7.) Plaintiff also claims that he experienced delays in receiving clean clothing, 26 could not shower regularly, and was “told to wear his orange jail apparel on top of his 27 undershirt,” which he alleges was “unsanit[a]ry.” (Id.) Additionally, Plaintiff claims that 28 Defendants Guzman and Soto impersonated other officers by changing their uniform 1 name plaques; and Defendant Guzman insulted, taunted, and made “unprofessional 2 remarks/statements” toward Plaintiff. (See id. at 3, 7.) 3 The Amended Complaint does not plausibly allege that any named Defendant was 4 responsible for, or aware of, the conditions in the cells where Plaintiff was housed, or that 5 he was receiving clean clothing with delays. Further, the allegations in the Amended 6 Complaint lack detail regarding their duration and severity, or how those conditions 7 affected Plaintiff. Additionally, Plaintiff does not allege that any named Defendant made 8 an intentional decision to place him in a cell with the alleged conditions or to delay his 9 access to clean clothing, nor explains how Defendants subjected him to a substantial risk 10 of serious harm. See Gordon, 888 F.3d at 1125. The Amended Complaint also does not 11 allege that any Defendant failed to take reasonable available measures to abate any 12 alleged risk to Plaintiff, and that by not taking such measures, each Defendant caused 13 Plaintiff’s injuries. See id. Likewise, Plaintiff’s Amended Complaint does not allege 14 facts sufficient to describe how Defendants’ Guzman’s and Soto’s “impersonation” and 15 “insults” violated his constitutional rights. See Somers v. Thurman, 109 F.3d 614, 622 16 (9th Cir. 1997) (“We are mindful of the realities of prison life, and while we do not 17 approve, we are ‘fully aware that the exchange of verbal insults between inmates and 18 guards is a constant, daily ritual observed in this nation’s prisons’”; finding that plaintiff 19 did not allege a constitutional violation where he did not allege that guards intended to 20 humiliate him). 21 Plaintiff’s Amended Complaint therefore fails to allege sufficient facts to establish 22 that he was subjected to conditions of confinement that rise to the level of a constitutional 23 violation. See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (“The circumstances, 24 nature, and duration of a deprivation of these necessities must be considered in 25 determining whether a constitutional violation has occurred.”); see also Iqbal, 556 U.S. at 26 678 (quoting Twombly, 550 U.S. at 570 (“[t]o survive a motion to dismiss, a complaint 27 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 28 plausible on its face.’”). Accordingly, the Court finds that Plaintiff’s Amended 1 Complaint does not state a claim that Defendants violated his Fourteenth Amendment 2 right by providing inadequate conditions of confinement. 3 4. Bodily privacy 4 Plaintiff may also be attempting to allege a violation of his Fourteenth Amendment 5 bodily privacy rights by alleging that an unknown and unnamed officer forced him to 6 undress while other female officers were present in the pod area. (See Am. Compl. at 6.) 7 “[T]he Fourteenth Amendment protects a sphere of privacy, and the most ‘basic subject 8 of privacy . . . the naked body.’” Vazquez, 949 F.3d at 1165 (citation omitted). 9 “Generally, the right does not apply where observation of a pretrial detainee’s naked 10 body is ‘only infrequent and casual’ or ‘at [a] distance,’ and it is ‘reasonably related to 11 prison needs.’” James v. Lee, 485 F. Supp. 3d 1241, 1258 (S.D. Cal. 2020) (quoting 12 Michenfelder, 860 F.2d at 334). 13 Plaintiff’s Amended Complaint neither identifies any specific Defendant nor 14 alleges any additional facts surrounding the circumstances of the incident. As currently 15 pled, such vague and conclusory allegations are not sufficient to allege Fourteenth 16 Amendment violations of bodily privacy rights. See id. 17 5. Equal protection 18 The Amended Complaint may also be attempting to allege violations of Plaintiff’s 19 rights to equal protection. (See Am. Compl. at 7.) The Equal Protection Clause of the 20 Fourteenth Amendment “commands that no State shall ‘deny to any person within its 21 jurisdiction the equal protection of the laws,’ which is essentially a direction that all 22 persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living 23 Ctr., 473 U.S. 432, 439 (1985). “To state a claim under 42 U.S.C. § 1983 for a violation 24 of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that 25 the defendants acted with an intent or purpose to discriminate against the plaintiff based 26 upon membership in a protected class.” Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th 27 Cir. 2013). Further, an equal protection claim may be established by showing that 28 similarly situated individuals were intentionally treated differently without a rational 1 basis for the difference in treatment. Engquist v. Oregon Dept. of Agriculture, 553 U.S. 2 591, 601–02 (2008); see also SmileDirectClub, LLC v. Tippins, 31 F.4th 1110, 1122–23 3 (9th Cir. 2022) (citation omitted) (“To plead a class-of-one equal protection claim, 4 [plaintiffs] must allege facts showing that they have been “[1] intentionally [2] treated 5 differently from others similarly situated and that [3] there is no rational basis for the 6 difference in treatment.”). 7 In his Amended Complaint, Plaintiff states that his equal protection rights were 8 violated because his “booking reports consist of errors,” his “report location of arrest is 9 incorrect,” and his “government identification code is incorrect.” (Am. Compl. at 7.) 10 Other than generally alleging that his booking report contained errors, Plaintiff’s 11 Amended Complaint does not allege any facts that Plaintiff is included in any identifiable 12 group or “suspect class,” or that he is being intentionally discriminated against on the 13 basis of his membership in a protected class. See Furnace, 705 F.3d at 1030; see also 14 United States v. Whitlock, 639 F.3d 935, 941 (9th Cir. 2011) (quoting Glauner v. Miller, 15 184 F.3d 1053, 1054 (9th Cir. 1999) (stating that “neither prisoners nor ‘persons 16 convicted of crimes’ constitute a suspect class for equal protection purposes”). The 17 Amended Complaint also does not allege that Plaintiff is being intentionally treated 18 differently than other similarly situated inmates or individuals without a rational basis for 19 the difference in treatment. See Engquist, 553 U.S. at 601–02; SmileDirectClub, 31 F.4th 20 at 1122–23. Plaintiff’s allegations in the Amended Complaint are too speculative and 21 conclusory to satisfy the pleading requirements. (See Am Compl. at 7); see also 22 Ashcroft, 556 U.S. at 679 (holding that conclusions must be supported by factual 23 allegations); Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994) 24 (“[T]he court is not required to accept legal conclusions cast in the form of factual 25 allegations if those conclusions cannot reasonably be drawn from the facts alleged.”). 26 Accordingly, to the extent Plaintiff is attempting to allege violations of his Fourteenth 27 Amendment right to equal protection, the Amended Complaint fails to state a claim. See 28 id.; see also Mascorro v. City of San Diego, Case No.: 21-cv-1427-RSH-DDL, 2023 WL 1 8115528, at *13 (S.D. Cal. Nov. 22, 2023) (dismissing plaintiff’s equal protection claim, 2 where the plaintiff alleged that defendants “intentionally misinterpret[ed] and arbitrarily 3 enforc[ed] laws for a malicious purpose”; reasoning that “[t]hese bare allegations [we]re 4 insufficient to plausibly state an equal protection claim.”); Adams v. Arab, Case No. 5 10cv706-MMA (BLM), 2011 WL 13100736, at *9 (S.D. Cal. Oct. 24, 2011) 6 (recommending that plaintiff’s equal protection claims be dismissed, where the plaintiff 7 did not allege that he was included in an identifiable group or “suspect class,” or that he 8 was he was treated differently than any other similarly-situated prisoners or individuals), 9 report and recommendation adopted, 2012 WL 12845612, at *1 (S.D. Cal. Jan. 23, 2012). 10 E. First Amendment Retaliation Claim 11 Plaintiff’s Amended Complaint also appears to allege that Defendant Lizzarga 12 delayed providing a meal to Plaintiff in retaliation. (See Am. Compl. at 3, 6.) Pretrial 13 detainees have a constitutional right to file grievances against prison officials and to be 14 free from retaliation for doing so. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 15 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison 16 context, a viable claim of First Amendment retaliation entails five basic elements: (1) An 17 assertion that a state actor took some adverse action against an inmate (2) because of 18 (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 19 exercise of his First Amendment rights, and (5) the action did not reasonably advance a 20 legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (2005). “The 21 adverse action need not be an independent constitutional violation.” Id. (citing Pratt v. 22 Rowland, 65 F.3d 802, 806 (9th Cir. 1995)); see also Gomez v. Vernon, 255 F.3d 1118, 23 1127 (9th Cir. 2001) (“[A] retaliation claim may assert an injury no more tangible than a 24 chilling effect on First Amendment rights.”). A plaintiff, however, must allege a 25 retaliatory motive—that is, a causal connection between the adverse action and his 26 protected conduct. Watison, 668 F.3d at 1114. 27 Plaintiff alleges in his Amended Complaint that Defendant Lizzarga retaliated by 28 “depriving” Plaintiff of a meal after Plaintiff questioned Lizzarga “regarding inmate 1 neglect” and “requested a supervisor.” (Am. Compl. at 3, 6.) Plaintiff states that 2 Lizzarga placed the meal on the outside of Plaintiff’s cell door’s window slot, but closed 3 the slot, and Plaintiff had to wait for Lizzarga “to come back around” after he served 4 meals to other inmates to give Plaintiff his meal. (See id.) Although Plaintiff alleges that 5 he was “deprived” of a meal, he also alleges that the meal at issue was eventually 6 delivered to him, although with some delay. (See id.) Further, the Amended Complaint 7 does not allege that Plaintiff’s First Amendment rights were chilled or that Defendant 8 Lizzarga’s actions did not reasonably advance a legitimate correctional goal. (See Am. 9 Compl.) Accordingly, Plaintiff fails to allege the elements of a First Amendment 10 retaliation claim and fails to state a retaliation claim against Defendant Lizzarga. See 11 Rhodes, 408 F.3d at 567–68; see also Hentz v. Ceniga, 402 F. App’x 214, 215 (9th Cir. 12 2010) (holding that conclusory allegations of retaliation are insufficient to state a claim). 13 F. Leave to Amend 14 Plaintiff’s claims of Monell municipal liability, Fourteenth Amendment violations 15 for failing to protect Plaintiff from violence, using excessive force, providing inadequate 16 medical care, providing inadequate conditions of confinement, and First Amendment 17 retaliation are DISMISSED with prejudice, because Plaintiff has previously been 18 granted leave to amend these claims, but has not been able to correct the deficiencies. 19 See Fed. R. Civ. P. 8(a) (A pleading must contain: “(1) a short and plain statement of the 20 grounds upon which the court’s jurisdiction depends,” and “(2) a short and plain 21 statement of the claim showing that the pleader is entitled to relief.”); Foman v. Davis, 22 371 U.S. 178, 182 (1962) (noting that a court may deny leave to amend upon “repeated 23 failure to cure deficiencies by amendments previously allowed”); Nevijel v. North Coast 24 Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981) (providing that a complaint that fails to 25 comply with Federal Rule of Civil procedure 8(a) after plaintiff has been given an 26 opportunity to amend, may be dismissed with prejudice pursuant to Federal Rule of Civil 27 Procedure 41(b)). 28 1 However, because it is not clear that Plaintiff cannot allege facts to support his 2 Fourth Amendment claim, as well as Fourteenth Amendment claim for violations of his 3 bodily privacy rights and equal protection, the Court DISMISSES those claims without 4 prejudice and GRANTS Plaintiff leave to amend his pleading. See Ramirez, 334 F.3d at 5 861 (court must grant a pro se plaintiff leave to amend his complaint “unless the pleading 6 ‘could not possibly be cured by the allegation of other facts’”) (quoting Lopez, 203 F.3d 7 at 1130); Ferdik, 963 F.2d at 1261 (“[B]efore dismissing a pro se complaint the district 8 court must provide the litigant with notice of the deficiencies in his complaint in order to 9 ensure that the litigant uses the opportunity to amend effectively.”). 10 V. CONCLUSION 11 For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss 12 and DISMISSES Plaintiff’s Amended Complaint for failing to state a claim upon which 13 relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court 14 DISMISSES with prejudice Plaintiff’s claims of Monell municipal liability, Fourteenth 15 Amendment violations for failing to protect Plaintiff from violence, using excessive 16 force, providing inadequate medical care, providing inadequate conditions of 17 confinement, and First Amendment retaliation. The Court DISMISSES without 18 prejudice Plaintiff’s claims of Fourth Amendment violations and Fourteenth 19 Amendment claim for violations of his bodily privacy rights and equal protection. The 20 Court GRANTS Plaintiff leave to file a Second Amended Complaint limited to curing 21 the noted deficiencies concerning Plaintiff’s allegations of: (1) Fourth Amendment 22 violations, (2) Fourteenth Amendment claim for violations of his bodily privacy rights, 23 and (3) Fourteenth Amendment claim for violations of his equal protection rights. 24 If Plaintiff chooses to file a Second Amended Complaint, the Second Amended 25 complaint must be complete by itself without reference to Plaintiff’s Amended 26 Complaint. The Second Amended Complaint must include the caption and civil case 27 number used in this order, Case No. 23cv5-LR and the words “SECOND AMENDED 28 1 COMPLAINT” on the first page. If using the court form complaint, Plaintiff must 2 answer all the questions on the form in order for the action to proceed. 3 In the Second Amended Complaint, Plaintiff must describe the constitutional right 4 he believes was violated, name the person who violated the right, state exactly what that 5 individual did or failed to do, state how the action or inaction of that person is connected 6 to the violation of Plaintiff’s constitutional rights, as well as what specific injury Plaintiff 7 suffered because of that person’s conduct. See Hinkley v. Vail, No. C12–5969 RBL/ 8 KLS, 2012 WL 6012800, at *2 (W.D. Wash. Dec. 3, 2012); see also Harris, 652 F. Supp. 9 2d at 1034 (to prevail on a § 1983 claim, “a plaintiff must demonstrate that he suffered a 10 specific injury as a result of specific conduct of a defendant and show an affirmative link 11 between the injury and the conduct of the defendant.”). Plaintiff must repeat this process 12 for each person he names as a defendant. Plaintiff should carefully review the standards 13 set forth in this order and amend only those claims that he believes, in good faith, are 14 cognizable. 15 Any defendants not named and claims not re-alleged in Plaintiff’s Second 16 Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach 17 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 18 (providing that “an amended pleading supersedes the original”); Lacey v. Maricopa 19 Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to 20 amend which are not re-alleged in an amended pleading may be considered “waived if 21 not repled”). Plaintiff may not re-allege the claims or re-name the defendants that the 22 Court has dismissed with prejudice. 23 The Second Amended Complaint must be filed on or before July 12, 2024. If 24 Plaintiff fails to file a Second Amended Complaint within the time provided, the Court 25 will enter a final order dismissing this civil action based both on Plaintiff’s failure to state 26 a claim upon which relief can be granted and his failure to prosecute in compliance with a 27 court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 28 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a 1 || district court may convert the dismissal of the complaint into dismissal of the entire 2 action.”). 3 Additionally, the parties are reminded that they should not write letters to the 4 || judges assigned to the case, or otherwise communicate with the judges assigned to 5 || the case unless opposing counsel is notified of such communications. All matters to 6 || be called to a judge’s attention should either be mailed or hand delivered to the 7 || Clerk’s Office in San Diego or El Centro, and must be sent to the opposing side. See 8 || Civil Local Rule 83.9. E-mail communication with a judge’s chambers to submit a 9 || filing is not permitted under any circumstance. 10 IT IS SO ORDERED. 11 ||Dated: May 30, 2024 12 13 / L 14 Honorable Lupe Rodriguez, Jr. 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28