Caroline Gibson v. County of Orange

Opinion

O CAROLINE GIBSON, Case No. 8:20-cv-01232-JWH-DFMx ANTHONY POWELL, JAMES KILROY, and EDWARD BARELA, MEMORANDUM OPINION Plaintiffs, MOTION TO DISMISS (ECF No. 16) v. COUNTY OF ORANGE, a Governmental Entity; SHERIFF DON BARNES, Individually; DEPUTY THOMAS, Individually; DEPUTY ROBINSON, Individually; DEPUTY T. CARILLO, Individually; and DOES 1-50, Defendants. Before the Court is the Motion to Dismiss of Defendants County of Orange, Sheriff Don Barnes, Deputy Thomas, Deputy Robinson, and Deputy T. Carillo.1 The Court finds that the Motion is appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the papers filed in support and in opposition, the Court will GRANT the Motion with leave to amend. Plaintiffs Caroline Gibson, Anthony Powell, James Kilroy, and Edward Barela filed a Complaint2 against Defendants on July 10, 2020, alleging the following 12 claims for relief: Claim 1: Violation of Gibson’s Eighth and Fourteenth Amendment rights, brought under 42 U.S.C. § 1983 and the Bane Act (Cal. Civ. Code § 52.1(b)), against the Barnes, Robinson, Orange County, and the Doe Defendants; Claim 2: Lack of a grievance system, in violation of Gibson’s unspecified rights, against Barnes, Orange County, and the Doe Defendants; Claim 3: Violation of Gibson’s Bane Act rights, against Orange County and the Doe Defendants; Claim 4: Violation of Kilroy and Powell’s First, Fourth, and Fourteenth Amendment rights, brought under 42 U.S.C. § 1983 and the Bane Act, and tortious conduct, brought under the California Tort Claims Act (Cal. Gov’t Code §§ 900 et seq.3) (the “CTCA”), against Barnes, Carillo, Orange County, and the Doe Defendants; 1 Defs.’ Mot. to Dismiss [ECF No. 16] and Mem. in Supp. (the “Motion”) [ECF No. 16-1]. 2 See Pls.’ Compl. (the “Complaint”) [ECF No. 1]. 3 Plaintiffs have pleaded this claim in this manner, see Complaint ¶ 40; Claim 5: Violation of Kilroy’s Bane Act Rights, against Barnes, Carillo, and the Doe Defendants; Claim 6: Violation of the expectation of privacy of Kilroy and a class of persons, brought under the CTCA, against Orange County Sheriffs [sic] and the Doe Defendants; Claim 7: Sexual assault and battery of Kilroy, brought under the CTCA, against Carillo; Claim 8: Violation of Powell’s Fourteenth Amendment rights, brought under 42 U.S.C. § 1983, and tortious conduct, brought under the CTCA, against Barnes, Thomas, Orange County, the Doe Defendants, and a Sheriff Hutchens;4 Claim 9: Violation of Barela’s Fourteenth Amendment rights, brought under 42 U.S.C. § 1983, and tortious conduct, brought under the CTCA, against Barnes, Orange County, and the Doe Defendants; Claim 10: Violation of Barela’s First, Eighth, and Fourteenth Amendment rights, against Barnes and Orange County; Claim 11: Denial of medical care to Barela, against Barnes, Orange County, and the Doe Defendants; and Claim 12: Violation of Barela’s Bane Act rights, against Barnes, Orange County, and the Doe Defendants. On September 2, 2020, Defendants filed this Motion under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.5 Defendants included with their moving papers a Request for Judicial Notice.6 Plaintiffs opposed the Motion on September 14, 2020,7 and Defendants filed their reply on 4 Sheriff Hutchens is not properly a party in this case, as discussed in more detail in Part IV.E.1, infra. 5 See Motion. 6 Defs. Req. for Judicial Notice (the “RJN”) [ECF No. 16-2]. September 21, 2020.8 On September 25, 2020, this case was transferred to this Court.9 Plaintiffs allege the following facts, which the Court assumes to be true for the purposes of this Motion. See, e.g., Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996) (on motion to dismiss for failure to state a claim, “[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party”): A. Plaintiff Caroline Gibson On August 2 or 3, 2019, three inmates attacked Orange County Jail prisoner Gibson while she protected another prisoner.10 Defendant Robinson was aware of the attack, but Robinson did not protect Gibson or grant her transfer request.11 On August 19 or 20, 2019, three inmates attacked Gibson, causing her injuries including lacerations, bruising, a concussion, and brain damage.12 Gibson was taken to the infirmary, but she not given x-rays or an MRI, despite her history of neck surgery.13 There is no operative grievance system to protect Gibson, and she continues to fear assault and lack of protection from prisoners and guards.14 B. Plaintiff James Kilroy On November 16, 2019, Defendant Carillo assaulted Kilroy, a prisoner in the Theo Lacy Facility of the Orange County jail system, by squeezing Kilroy’s 8 Defs.’ Reply in Supp. of Motion (the “Reply”) [ECF No. 18]. 9 See Order of the Chief Judge (#20-123) [ECF No. 23]. 10 Complaint ¶ 15. 11 Id. ¶¶ 15 & 16. 12 Id. ¶ 17. 13 Id. ¶ 18. testicles and inserting a finger into his anus.15 Kilroy fears assault and lack of protection from prisoners and guards.16 The Orange County Sheriffs record and listen to Kilroy’s private telephone calls to attorneys, family, and friends.17 C. Plaintiff Anthony Powell On March 28, 2019, Defendant Thomas assaulted Powell, a prisoner at the Main Men’s Jail of the Orange County Jail System, by squeezing Powell’s testicles and inserting a finger in his anus, causing him pain.18 When Powell protested, he was placed in solitary confinement.19 Powell filed a grievance and a personnel complaint, which yielded no results.20 D. Plaintiff Edward Barela Barela, an Orange County jail prisoner, sought treatment for dental pain.21 Defendant Orange County denied Barela pain medication and delayed his treatment until his teeth had to be pulled.22 Barela suffers from pain and mental anguish because his two front teeth are gone.23 A. Request for Judicial Notice Pursuant to the Federal Rules of Evidence, “[a] court shall take judicial notice if requested by a party and supplied with the necessary information.” Fed. R. Evid. 201(d). An adjudicative fact may be judicially noticed if it is “not subject to reasonable dispute in that it is either (1) generally known within the

15 Id. ¶ 27. 16 Id. ¶ 32. 17 Id. ¶ 34. 18 Id. ¶¶ 38 & 39. 19 Id. ¶ 39. 20 Id. ¶ 40. 21 Id. ¶ 45. 22 Id. ¶ 45 & 46. territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Documents referenced in a complaint may be incorporated by reference, even if not provided by the plaintiff. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim.”). B. Rule 12(b)(1) Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Rule 12(b)(1) of the Federal Rules of Civil Procedure allows parties to move to dismiss a complaint for lack of subject matter jurisdiction. When a defendant makes a Rule 12(b)(1) motion, the burden of establishing subject matter jurisdiction rests upon the party asserting jurisdiction. Kokkonen, 511 U.S. at 377. “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. 506, 514 (1868). Thus, the Court must address any questions regarding its jurisdiction before reaching the merits of the Motion. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). C. Rule 12(b)(6) Under Rule 12(b)(6), a party may make a motion to dismiss for failure to state a claim upon which relief can be granted. Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires a “short and plain statement of the “fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Horosny v. Burlington Coat Factory, Inc., No. CV 15-05005 SJO (MRWx), 2015 WL 12532178, at *3 (C.D. Cal. Oct. 26, 2015). When evaluating a Rule 12(b)(6) motion, a court must accept all material allegations in the complaint—as well as any reasonable inferences to be drawn from them—as true and must construe them in the light most favorable to the non-moving party. See, e.g., Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations omitted). Rather, the allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Id. Generally, “a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks and citation omitted). A. Request for Judicial Notice Defendants request judicial notice24 of the following documents from the docket of another case that was pending in this district, Moon v. County of Orange, Case No. 8:19-CV-00258-JVS (DFMx) (“Moon”):  Pl.’s Compl. against Barnes and Orange County (the “Moon Complaint”) [RJN, Ex. 1];  Order Striking Pls.’ First Am. Compl. [RJN, Ex. 2];  Pls.’ First Am. Compl. (the “Moon FAC”) [RJN, Ex. 3];  Defs.’ Mot. to Dismiss the FAC under Rule 12(b)(6) the FAC [RJN, Ex. 4];  Defs.’ Mot. to Dismiss the FAC for Misjoinder [RJN, Ex. 5];  Order Granting Defs.’ Mots. to Dismiss (the “Moon FAC Dismissal Order”) [RJN, Ex. 6];  Pls.’ Second Am. Compl. (the “Moon SAC”) [RJN, Ex. 7];  Defs.’ Mot. to Dismiss the SAC [RJN, Ex. 8];  Order Granting Defs.’ Mot. to Dismiss (the “Moon SAC Dismissal Order”) [RJN, Ex. 9];  Pls.’ Third Am. Compl. (the “Moon TAC”) [RJN, Ex. 10];  Defs.’ Mot. to Dismiss the TAC (the “Moon TAC MTD”) [RJN, Ex. 11]; and  Order Granting Defs.’ Mot. to Dismiss (the “Moon TAC Dismissal Order”) [RJN, Ex. 12]. Docket entries from related cases are proper subjects for judicial notice. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). Plaintiffs do not oppose the RJN. The Court therefore will GRANT the RJN and will take notice of the documents referenced above. B. Res Judicata “The doctrine of res judicata provides that a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.” Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 (9th Cir. 2005). “The elements necessary to establish res judicata are: ‘(1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties.’” Id. at 1052 (quoting Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 Defendants argue that the doctrine of res judicata bars all claims in the Complaint because the Moon litigation contained claims identical to those alleged in the Complaint; the Moon dismissal with prejudice acted as a final decision on the merits; and there was privity between parties.25 Plaintiffs respond that a dismissal for misjoinder is not a dismissal on the merits sufficient to trigger res judicata.26 Plaintiffs do not oppose Defendants’ contentions that privity of parties and identity of claims exist sufficient for res judicata potentially to apply. 1. The Moon Litigation On February 8, 2019, Orange County Jail prisoner Mark Moon filed a complaint in the Central District of California against Barnes and Orange County for mistreatment while Moon was incarcerated.27 Moon amended his pleading on September 9, 2019, adding as plaintiffs Barela, Powell, and Gibson, among others, and as defendants Thomas and Robinson, among others.28 On November 4, 2019, the court—Judge James V. Selna, presiding—dismissed Barnes as a defendant, dismissed Gibson as a plaintiff, and dismissed most claims for relief.29 On December 16, 2019, plaintiffs including Moon, Barela, Powell, Gibson, and Kilroy filed the Moon SAC against Orange County, Barnes, Thomas, and Robinson.30 (The only party to the current action missing from the Moon SAC 25 Motion at 10-17. 26 Opposition at 2. Plaintiffs’ arguments are at times difficult to comprehend because counsel has declined to use quotation marks to denote direct citation to authorities or to include all case citations. Plaintiffs’ counsel is admonished to comply with all rules of punctuation and citation in all of their future submissions to the Court. 27 See Moon Complaint. 28 See Moon FAC. 29 Moon FAC Dismissal Order at 5 & 13. was Carillo.) On March 18, 2020, the Moon court dismissed Barnes as a defendant and dismissed plaintiffs Powell, Kilroy, Barela, and Gibson for improper joinder.31 On March 31, 2020, plaintiffs including Moon, Barela, Powell, Gibson, and Kilroy filed a Third Amended Complaint against Orange County and GTL Holdings, Inc.32 On June 10, 2020, the Moon court dismissed Barela, Powell, Kilroy, and Gibson with prejudice.33 2. Finality of Claims The Moon court first dismissed Plaintiffs from the Moon SAC without prejudice “pursuant to FRCP 20 and 21.”34 Rule 20(a)(1) of the Federal Rules of Civil Procedure defines who may be joined as plaintiffs in an action. Rule 21, which governs dismissal for misjoinder, provides: “Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.” In the Moon case, when plaintiffs’ counsel failed to remove plaintiffs from the Moon TAC, defendants urged that court to dismiss plaintiffs under Rule 41(b).35 Rule 41(b) allows a court to dismiss a plaintiff from a case with prejudice for violating a court order: (b) If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this

31 Moon SAC Dismissal Order at 5 & 10. 32 See Moon TAC. 33 Moon TAC Dismissal Order at 9. 34 Moon SAC Dismissal Order at 10. rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits. The Moon court dismissed plaintiffs from that action “with prejudice,” but it did not specify the Rule under which it did so.36 In summary: the Moon court dismissed the instant Plaintiffs from that action with prejudice for violating its earlier order dismissing them without prejudice. This Court’s job is to determine whether that second dismissal operates as an adjudication on the merits for the purposes of res judicata. No party has cited any authority on this precise issue, and the Court could find none.37 It is therefore a question of first impression before this Court. Defendants’ argument—that the Moon court’s dismissal with prejudice is a final judgment on the merits—is strong. The Court’s analysis begins with the legal definition of “dismissed with prejudice:” “removed from the court’s docket in such a way that the plaintiff is foreclosed from filing a suit again on the same claim or claims.” Dismissed with Prejudice, BLACK’S LAW DICTIONARY (11th ed. 2019). Additionally, the Supreme Court has held that a dismissal with prejudice under Rule 41(b) bars a plaintiff from refiling in the same court. Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505–06 (2001). Under this authority, the Moon court permanently ended its plaintiffs’ day in court when it dismissed their claims with prejudice for failure to follow its order on misjoinder. However, upon closer inspection, Defendants’ contention that the Moon court intended to prevent its plaintiffs’ claims from ever being heard crumbles. The Moon court dismissed plaintiffs from the Moon case because their counsel

36 Moon TAC Dismissal Order at 9. 37 Most of the parties’ cited cases were inapposite; the Court discusses only violated its order that they had been misjoined. In other words, the Moon court never considered the merits of its plaintiffs’ claims, beyond finding that they were dissimilar to the claims of the main plaintiffs. That is not a judgment on the merits. See Judgment on the Merits, BLACK’S LAW DICTIONARY (11th ed. 2019): “A judgment based on the evidence rather than on technical or procedural grounds.” Under English common law, a dismissal for misjoinder could not become a dismissal with prejudice. 7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1681 (3d ed. 2020) (outlining history of misjoinder under English common law). Rule 21 codifies this history by allowing a court to dismiss parties for misjoinder only “on just terms.” The Ninth Circuit has interpreted this “just terms” standard by holding that a court may dismiss or sever claims under Rule 21 “as long as no substantial right will be prejudiced by the severance or dismissal.” Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997). Thus, these authorities agree: misjoinder ought not permanently bar a plaintiff’s claims. Defendants remind the Court that the operative dismissal in the instant case is a Rule 41(b) dismissal, not a Rule 21 dismissal.38 Therefore, Defendants’ argument goes, the requirement that a misjoinder dismissal be on “just terms” matters not; Plaintiffs are being punished not for misjoinder, but for their counsel’s failure to follow a court order. But it turns out that the underlying violation that motivates a court to dismiss a case under Rule 41(b) does matter. Rule 41(b)’s instruction that a dismissal is on the merits unless otherwise stated has three explicit exceptions: dismissals for “lack of jurisdiction, improper venue, or failure to join a party under Rule 19” are not considered to be dismissals on the merits. Fed. R. Civ. P. 41(b). The Supreme Court has explained, however, that this category is not limited to those three exceptions, but, rather, that it should be read “as encompassing those dismissals which are based on a plaintiff’s failure to comply with a precondition requisite to the Court’s going forward to determine the merits of his substantive claim.” Costello v. United States, 365 U.S. 265, 285 (1961). Costello held that Rule 41(b) dismissals operate as adjudications on the merits only where “the defendant has been put to the trouble of preparing his defense because there was no initial bar to the Court’s reaching the merits.” Id. at 287. This holding counsels against construing the Moon court’s dismissal with prejudice as an adjudication on the merits, because at no point did the court require Defendants to litigate the merits of Plaintiffs’ claims.39 A closer reading of Semtek supports this understanding. Semtek held that a dismissal with prejudice under Rule 41(b) operated as a dismissal on the merits for the purposes of res judicata in the same federal court when a claim was dismissed as untimely. Semtek, 531 U.S. at 505. Additionally, Semtek reads Rule 41(b) in conjunction with the Rules Enabling Act’s requirement that the Rules “shall not abridge, enlarge or modify any substantive right.” Id. at 503 (citing 28 U.S.C. § 2072(b)). This admonition is logical: a determination that a claim lies outside the statute of limitations does consider the merits of a case— or, at least, it considers whether that court will ever be able to hear the merits. It should prevent a plaintiff from asking the same court the same question a second time. Such an outcome does not abridge any substantive right; the statute of limitations itself abridges a plaintiff’s right to recovery. By contrast, a dismissal for a failure to follow a court’s ruling on joinder does not determine whether another court will be able to reach the merits of the underlying claim if properly 39 See Moon SAC Dismissal Order at 10 (dismissing Plaintiffs for improper joinder without reference to the merits of their underlying claims); Moon TAC Dismissal Order at 9 (dismissing Plaintiffs with prejudice without reference to presented in a separate case. Allowing Plaintiffs to proceed with their claims here, therefore, follows the spirit of Semtek’s narrow holding. Furthermore, the Moon court could not have intended its dismissal with prejudice to have claim-preclusive effects under Rule 41(b) because it did not conduct the prejudice analysis that the Ninth Circuit requires. The Ninth Circuit instructs that “[b]efore imposing dismissal as a sanction, the district court must weigh several factors: the public’s interest in expeditious resolution of litigation; the court’s need to manage its docket; the risk of prejudice to the defendants; the public policy favoring disposition of cases on their merits; and the availability of less drastic sanctions . . . . Dismissal, however, is so harsh a penalty it should be imposed as a sanction only in extreme circumstances.” Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir. 1996) (citations omitted). Dahl is perhaps the closest of any cited case to the instant situation: there the district court dismissed a plaintiff’s claims with prejudice for repeated attorney misconduct, and the Ninth Circuit reversed. Similarly, the Moon court dismissed its plaintiffs’ claims because of their counsel’s errors. However, because the Moon court did not conduct the prejudice analysis that the Ninth Circuit requires, the Court declines to interpret the Moon dismissal as forever barring Plaintiffs here from asserting their claims in any court. It seems far more likely that the Moon court wanted to prevent Plaintiffs from attempting to join the Moon litigation yet again. The Court therefore declines to find that the Moon court’s dismissal of Plaintiffs’ claims with prejudice in the Moon TAC Dismissal Order was a final judgment on the merits sufficient for res judicata to apply. C. CTCA Claims The California Tort Claims Act, Cal. Gov’t Code §§ 810 et seq., authorizes limited governmental liability for injuries suffered as a result of the Justice Department of Corrections & Rehabilitation, 135 Cal. App. 4th 903, 908 (2006). Under the CTCA, a plaintiff may not maintain a personal injury action for damages against a municipality unless (1) the plaintiff files a written claim with the appropriate public entity within six months of the accrual of the alleged cause of action; and (2) that claim has been rejected. See Cal. Gov’t. Code §§ 911.2 & 945.4; Ovando v. City of Los Angeles, 92 F. Supp. 2d 1011, 1021 (2000). “The purpose of the CTCA is to provide the public entity with notice of the claim and sufficient information to allow it to investigate and settle the matter, if possible, without litigation.” Id. Compliance with the CTCA’s procedural requirements is therefore “a necessary prerequisite to suing a public agency.” Id.; see Cal. Gov’t Code §§ 815 & 945.4. Defendants argue that Plaintiffs have not alleged facts sufficient to show that Plaintiffs complied with the CTCA’s exhaustion requirement.40 Plaintiffs insist that they have met California’s pleading requirements.41 Determining whether Plaintiffs have successfully alleged a CTCA claim requires the Court first to divine which claims are CTCA claims. Presenting a CTCA claim requires an allegation of tortious action. The following claims allege tortious action on the part of Defendants:42 Claim 4 (sexual assault, battery, right to privacy, and infliction of emotional distress); Claim 6 (invasion of privacy);43 Claim 7 (sexual assault and battery); Claim 8 (sexual assault and

40 Motion at 17. 41 Opposition at 6-7. 42 Although Claim 1 contains an allegation that Gibson filed administrative CTCA claims, it avers no tortious action on the part of any Defendant, and, therefore, the Court does not construe Claim 1 as encompassing a CTCA claim. 43 The Court notes that the California constitution also creates a right to privacy. See Cal. Const. art. I, § 1. However, the Court cannot determine whether Plaintiffs intended to assert tort claims, state constitutional claims, or both, because Plaintiffs cite no law whatsoever in Claim 6. Plaintiffs must battery and infliction of emotional distress); and Claim 9 (infliction of emotional distress).44 Federal courts generally require a plaintiff to plead the dates on which her administrative complaint was submitted and rejected, so that the Court can adjudicate the CTCA’s presentment requirement at the Motion to Dismiss stage. See, e.g., Bremer v. Cty. of Contra Costa, No. 15-CV-01895-JSC, 2015 WL 5158488, at *4 (N.D. Cal. Sept. 2, 2015) (collecting cases); Macias v. City of Clovis, No. 1:13-CV-01819-BAM, 2014 WL 3895061, at *8 (E.D. Cal. Aug. 4, 2014) (collecting cases); Santa Ana Police Officers Ass'n v. City of Santa Ana, No. SACV 15-1280 DOC (DFMx), 2015 WL 13757346, at *5 (C.D. Cal. Dec. 2, 2015) (collecting cases). Plaintiffs’ single citation in opposition to this caselaw is a 1931 California Court of Appeals case—Ley v. Babcock, 118 Cal. App. 525, 527 (1931)—that does not change this analysis.45 Plaintiffs’ boilerplate allegations that they have complied with the CTCA’s administrative exhaustion requirements include no dates, and they so do not meet this standard.46 The Court therefore will GRANT the Motion with respect to its California Tort Claims Act argument and will DISMISS the following Claims with leave to amend: Claim 4 as to CTCA claims; Claim 6 in its entirety; Claim 7 in its entirety; Claim 8 as to CTCA claims; and Claim 9 as to CTCA claims. D. Bane Act Claims The Bane Act, Cal. Civ. Code § 52.1, authorizes a claim for relief “against anyone who interferes, or tries to do so, by threats, intimidation, or coercion, with an individual’s exercise or enjoyment of rights secured by federal or state law.” Sahymus v. Tulare Cty., No. 1:14–cv–01633–MCE–GSA, 2015 WL 44 Complaint ¶¶ 15-18, 24, 36, & 41. 45 Opposition at 6-7. 3466942, at *6 (E.D. Cal. June 1, 2015) (quoting Jones v. Kmart Corp., 17 Cal. 4th 329, 331 (1998)). A plaintiff who alleges a Bane Act claim “must show (1) intentional interference or attempted interference with a state or federal constitutional or legal right, and (2) the interference or attempted interference was by threats, intimidation or coercion.” Allen v. City of Sacramento, 234 Cal. App. 4th 41, 67 (2015), as modified on denial of reh’g (Mar. 6, 2015). “Speech alone is not sufficient to support [a Bane Act violation], except upon a showing that the speech itself threatens violence.” Cal. Civ. Code § 52.1(j). “The Bane Act’s requirement that interference with rights must be accomplished by threats, intimidation or coercion has been the source of much debate and confusion.” Cornell v. City & Cty. of San Francisco, 17 Cal. App. 5th 766, 801 (2017), as modified (Nov. 17, 2017), review denied (Feb. 28, 2018) (alterations and quotation marks omitted); see also K.T. v. Pittsburg Unified Sch. Dist., 219 F. Supp. 3d 970, 982 (N.D. Cal. 2016) (“Courts deciding whether the ‘threat, intimidation or coercion’ must be distinct from the alleged underlying constitutional or statutory violation have come out all over the map.”). A series of recent Ninth Circuit cases clarifies the applicable standard. A plaintiff need not allege threats or coercion apart from the conduct that violates one’s constitutional rights. Sandoval v. Cty. of Sonoma, 912 F.3d 509, 519–20 (9th Cir. 2018). In other words, “the use of excessive force can be enough to satisfy the Bane Act’s ‘threat, intimidation or coercion’ element.” Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 801–02 (9th Cir. 2018) (citing Cornell, 17 Cal. App. 5th at 799). However, a plaintiff must allege specific intent on the part of the defendants to violate the plaintiff’s constitutional rights. That is, “the Bane Act requires a specific intent to violate the arrestee’s right to freedom from unreasonable seizure . . . But it is not necessary for the defendants to have been reckless disregard for a person’s constitutional rights is evidence of a specific intent to deprive that person of those rights.” Reese v. Cty. of Sacramento, 888 F.3d 1030, 1043-1045 (9th Cir. 2018) (emphasis in original) (citations omitted). Defendants aver that the County is immune from liability under the Bane Act pursuant to Cal. Gov’t Code § 844.6(a): “Notwithstanding any other provision of this part, . . . a public entity is not liable for: (1) An injury proximately caused by any prisoner. (2) An injury to any prisoner.”47 Plaintiffs do not oppose this argument. Multiple state and federal courts agree. See, e.g., Cabral v. Cty. of Glenn, 624 F. Supp. 2d 1184, 1193 (E.D. Cal. 2009) (dismissing Bane Act claim against municipality); Quinones v. Cty. of Orange, No. SACV 20-666 JVS (KESx), 2020 WL 5289923, at *4 (C.D. Cal. July 15, 2020) (similar); Warren v. Cty. of Riverside, No. ED CV 18-1280-DMG (SPx), 2019 WL 994021, at *5 (C.D. Cal. Jan. 4, 2019) (similar). There is, however, “a narrow exception to that immunity.” Castaneda v. Dep’t of Corr. & Rehab., 212 Cal. App. 4th 1051, 1070 (2013). California law provides that public entities and employees are “liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care.” Cal. Gov’t Code § 845.6. Public entities’ liability is therefore restricted “to serious and obvious medical conditions requiring immediate care” where the public entity “intentionally or unjustifiably fails to furnish immediate medical care.” Germaine-McIver v. Cty. of Orange, No. SACV 16-01201-CJC (GJSx), 2018 WL 6258896, at *17 (C.D. Cal. Oct. 31, 2018). See Valerie Arismendez v. Deputy Velasquez, No. Cv 19-08767-Cjc (Skx), 2020 WL 6162819, at *10 (C.D. Cal. Aug. 28, 2020) (municipality is not immune under Cal. Gov’t Code § 844.6(a) from Bane Act claim alleging deliberate indifference to prisoner’s serious medical needs). With this legal framework in mind, the Court analyzes each of Plaintiffs’ four Bane Act claims in turn: Claim 1: Gibson alleges that Robinson’s failure to protect her from attack and Robinson’s refusal to transfer her violated the Bane Act.48 The Court will DISMISS the County from the Bane Act portion of this claim without leave to amend. Furthermore, Gibson nowhere alleges that Robinson or Barnes threatened, intimidated, or coerced her. The Court need not delve into the intricacies of the Bane Act in the absence of any allegations whatsoever of threats, intimidation, or coercion. Gibson’s argument that Robinson violated Gibson’s Bane Act rights because “Robinson intended that Caroline Gibson be punished for standing up to the other prisoners who were abusing a vulnerable prisoner” does not create allegations of threats, intimidation, or coercion where there are simply none in the Complaint.49 The Court therefore will DISMISS the Bane Act portion of Claim 1 with respect to Barnes and Robinson with leave to amend. Claim 3: Gibson alleges that she “lived in fear of assault and violence from prisoners and guards and of threats of lack of protection from violence by prisoners or guards in violation of the Bane Act.”50 This claim seems to rely on the same factual predicate as Claim 1. The Court will DISMISS Claim 3 with respect to the County without leave to amend. For the reasons stated above, the Court will DISMISS Claim 3 with respect to the Doe Defendants with leave to amend. 48 Complaint ¶ 19. 49 Opposition at 14:12-13. Claim 5: Kilroy alleges that he “lived in fear of assault from prisoners and guards and of threats of lack of protection from violence by prisoners or guards in violation of the Bane Act.”51 The Court finds that Kilroy has plausibly stated a claim that Defendants used excessive force in his alleged sexual assault in violation of the Bane Act. The Court further finds that Kilroy has plausibly alleged specific intent to do so by alleging that Defendants commented on his genitals.52 However, Claim 5 does not identify the federal or state statutory or constitutional right with which Barnes, Carillo, and/or the Doe Defendants attempted to interfere. The Court will GRANT the Motion and will DISMISS Claim 5 with leave to amend. Claim 12: Barela alleges that he “lived in fear of assault and violence from prisoners and guards and of threats of lack of protection from violence by prisoners or guards in violation of the Bane Act.”53 The Court finds that Barela’s allegations of denial of medical care do not contain any threats, coercion, or intimidation in violation of the Bane Act. However, because counties can be liable for Bane Act violations that involve denial of medical care, the Court will DISMISS Claim 12 with leave to amend with respect to all Defendants. E. Section 1983 Claims So far, the Court has dismissed Claims 1, 4, 8, and 9 in part and Claims 3, 5, 6, 7, and 12 in their entirety. The only claims and sub-claims left for discussion are the § 1983 claims in Claims 1, 2, 4, 8, 9, 10, and 11. 42 U.S.C. § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of 51 Id. ¶ 32. 52 Id. ¶ 27. Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . “Section 1983 does not create any substantive rights, but is instead a vehicle by which plaintiffs can bring federal constitutional and statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law.” Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). 1. Monell Liability “[U]nder § 1983, local governments are responsible only for their own illegal acts.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (citing Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)). Under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), § 1983 liability attaches to a municipality or other local government only where “the governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such deprivation.” Connick, 563 U.S. at 60 (quoting Monell, 436 U.S. at 692). Thus, “[r]espondeat superior or vicarious liability will not attach under § 1983.” City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Monell, 436 U.S. at 694-695). Rather, municipalities may be liable under § 1983 in three situations: when the plaintiff was injured pursuant to (1) an expressly adopted official policy; (2) a long- standing practice or custom; or (3) the decision of a final policymaker. See Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013) (citation omitted). Defendants argue that Plaintiffs have not adequately alleged a policy or practice by Orange County sufficient to establish Monell liability. The pleading standard for Monell liability is currently the subject of debate among district courts in the Ninth Circuit. The Ninth Circuit has long held that “[i]t is improper to dismiss on the pleadings alone a section 1983 complaint alleging municipal liability even if the claim is based on nothing more than a bare allegation that the individual officers’ conduct conformed to official policy, custom, or practice.” Shah v. Cty. of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986). Defendants, however, argue that in the face of the Supreme Court’s holding that “a formulaic recitation of the elements of a cause of action will not do” under Rule 12(b)(6), Twombly, 550 U.S. at 555, Shah no longer applies. Defendants argue that instead the Court ought to apply a pleading test for Monell liability fashioned by a another court in this district—Johnson v. Baca, No. CV 13-04496 MMM (AJWx), 2013 WL 12131358, at *13 (C.D. Cal. Sept. 24, 2013).54 However, the Ninth Circuit has never ratified, cited, or used this test; moreover, only a minority of district courts within the Ninth Circuit use this test. The Ninth Circuit has expressly declined to find that Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), overrule Shah. See AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012). The Ninth Circuit has instead described the requirements for stating a Monell claim under Iqbal and Twombly as follows: First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. This standard applies to Monell claims. AE, 666 F.3d at 637 (citing Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). The Court applies this standard to each claim against the County in turn. Claim 1: Gibson brings Claim 1 under § 1983 against Deputy Robinson, Sheriff Barnes, and Orange County for allegedly failing to protect her from violence from other inmates and for failing to respond to her grievances concerning this attack.55 Gibson argues that her allegations that Defendants failed to respond to her grievances, and that Defendants have allowed other non- party inmates to die, suffice to aver a policy or custom of failing to respond to grievances.56 The Court disagrees. Plaintiffs’ broad assertion that Defendants created official policies that violate Plaintiffs’ rights does not include specific allegations that Defendants have an official policy or longstanding practice of failing to respond to grievances or of failing to protect inmates from violence.57 Claim 2: Gibson brings Claim 2 against Orange County and Sheriff Barnes for allegedly failing to operate a grievance system. Gibson does not specifically identify this claim as a § 1983 claim; however, because she cites no law in this claim and asserts broadly in the Complaint that Defendants have violated the Constitution,58 the Court construes Claim 2 as a § 1983 claim.59 55 Complaint ¶¶ 16 & 20. 56 Opposition at 9:17-19 (citing Complaint ¶¶ 4, 10, & 56). 57 See Complaint ¶ 10 (alleging Defendants’ official policies). 58 See id. ¶ 4. 59 “Judges are not like pigs, hunting for truffles buried” in pleadings. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). The Court will not search for the truffles of Plaintiffs’ claims that may be buried in future pleadings. See supra Defendants’ alleged failure to provide a facility-wide grievance system is not an isolated act, but rather a policy or long-standing custom. The Court therefore finds that Gibson has sufficiently alleged Monell liability in Claim 2. Claim 4: Kilroy and Powell bring Claim 4 against Orange County, Barnes, and Carillo under § 1983 for an alleged sexual assault that violated Kilroy’s First Amendment right to privacy and Fourth Amendment right to freedom from excessive force.60 First, as a housekeeping matter, Claim 4 does not mention Powell anywhere other than the heading; Claim 8 concerns Powell’s alleged sexual assault. “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own . . . .” Fed. R. Civ. P. 12. The Court will do so here. On its own motion, the Court will STRIKE Powell from Claim 4. Additionally, Plaintiffs’ Opposition cites Eighth Amendment caselaw in support of Claim 4, but Claim 4 does not plead a violation of the Eighth Amendment.61 If Defendants violated Kilroy’s Eighth Amendment rights, then Kilroy’s counsel must allege that violation in the body of the Complaint. The Court finds that Kilroy has sufficiently pleaded the existence of an official policy or longstanding practice of sexual assault. First, Plaintiffs allege a longstanding practice of excessive force.62 Second, Plaintiffs have alleged a second similar sexual assault of Powell. The Court therefore finds that Kilroy has sufficiently pleaded Monell liability with respect to Claim 4. Claim 8: Powell brings Claim 8 against Orange County, Barnes, a Sheriff Hutchens, and Thomas under § 1983 for an alleged sexual assault that violated 60 Id. ¶ 28. 61 See Opposition at 10:5-22. his unspecified Fourteenth Amendment rights. As discussed above, Plaintiffs have pleaded a pattern of sexual assault sufficient to allege Monell liability. Sheriff Hutchens is not listed as a Defendant in the caption of the Complaint, as the Federal Rules require. See Fed. R. Civ. P. 10(a). Additionally, Plaintiffs do not dispute Defendants’ assertion that Sheriff Hutchens has not been served.63 The Court therefore will STRIKE Sheriff Hutchens from Claim 8. Claims 9, 10, and 11: Barela brings Claim 9 against Orange County and Barnes for an alleged denial of medical care in violation of his Fourteenth Amendment right to medical care; Claim 10 against Orange County and Barnes for alleged imposition of pain in violation of his First, Eighth, and Fourteenth Amendment rights; and Claim 11 against Orange County and Barnes for their alleged failure to provide immediately necessary medical care, in violation of unspecified rights.64 Claim 9 names § 1983 as the cause of action; Claims 10 and 11 do not. However, because Barela cites the First, Eighth, and Fourteenth Amendments in Claim 10, cites no law in Claim 11, and asserts a general § 1983 claim,65 the Court construes Claims 10 and 11 as § 1983 claims. Barela expressly alleges that denial of inadequate medical care is a County policy.66 However, unlike the sexual assault claims discussed above, Barela offers no second victim to suggest that this infringement is a policy or pattern. Additionally, unlike Gibson’s allegations that the County has not implemented a grievance system, the denial of medical care is not the type of claim that is intrinsically systemic. The Court therefore finds that Barela has not alleged a policy or practice sufficient for Monell liability.

63 Motion at 23:6-8. 64 Complaint ¶ 48, 52, 55. 65 See Id. ¶ 12. The Court therefore will GRANT-IN-PART and DENY-IN-PART the Motion with respect to Monell liability and will dismiss Claims 1, 9, 10, and 11 with respect to Orange County with leave to amend. 2. Rule 12(b)(6) Sufficiency The Court must now consider the sufficiency of the § 1983 allegations in Claims 1, 2, 4, 8, 9, 10, and 11 against Orange County; Sheriff Barnes; Deputies Thomas, Robinson, and Carillo; and the Doe Defendants. Claim 1: Remaining in Claim 1 are Gibson’s claims against Barnes, Robinson, and the Doe Defendants for violation of the Eighth and Fourteenth Amendments. Plaintiffs make a blanket allegation that all Doe Defendants acted under color of state law for the purposes of every claim alleged.67 However, nowhere in the Complaint do Plaintiffs allege that Barnes or Robinson acted under color of state law. Certainly, such allegations are not in Claim 1, where they belong. Without an allegation that a defendant acted under the color of state law, the Court cannot sustain a § 1983 claim. The Court therefore will DISMISS Claim 1 with respect to Barnes and Robinson with leave to amend. Plaintiffs bring Claim 1 against the Doe Defendants, but Plaintiffs do not allege that the Doe Defendants had any part in the events underlying Claim 1. The Court therefore will DISMISS Claim 1 with respect to the Doe Defendants with leave to amend. Claim 2: Remaining in Claim 2 are Gibson’s claims against Barnes, Orange County, and the Doe Defendants. Nowhere do Plaintiffs allege that Barnes or Orange County acted under color of state law. The Court therefore will DISMISS Claim 2 with respect to Barnes and Orange County with leave to amend. For the Court to sustain Plaintiffs’ § 1983 claim, Plaintiffs must allege that “a right secured by the Constitution or laws of the United States was violated.” Long, 442 F.3d at 1185. Plaintiffs do not identify in Claim 2 any federal law or constitutional right that requires a grievance system. The Court therefore will DISMISS Claim 2 with respect to the Doe Defendants with leave to amend. Claim 4: Remaining in Claim 4 are Kilroy’s claims against Orange County, Barnes, Carillo, and the Doe Defendants. Nowhere do Plaintiffs allege that Barnes, Carillo, or Orange County acted under color of state law. The Court therefore will DISMISS Claim 4 with respect to Barnes, Carillo, and Orange County with leave to amend. Claim 4 does not identify any actions that the Doe Defendants took. The Court therefore will DISMISS Claim 4 with respect to the Doe Defendants with leave to amend. Claim 8: Remaining in Claim 8 are Powell’s claims against Barnes, Orange County, Thomas, and the Doe Defendants. Nowhere do Plaintiffs allege that Barnes, Thomas, or Orange County acted under color of state law.68 The Court therefore will DISMISS Claim 8 with respect to Barnes, Thomas, and Orange County with leave to amend. Claim 8 does not identify any actions taken by the Doe Defendants. The Court therefore will DISMISS Claim 8 with respect to the Doe Defendants with leave to amend. Claim 9: Remaining in Claim 9 are Barela’s claims against Barnes and the Doe Defendants. Nowhere do Plaintiffs allege that Barnes acted under color of state law. The Court therefore will DISMISS Claim 9 with respect to Barnes with leave to amend. Claim 9 does not identify any actions taken by the Doe Defendants. The Court therefore will DISMISS Claim 9 with respect to the Doe Defendants with leave to amend.

68 Plaintiffs allege that Thomas sexually assaulted Powell “[u]nder the guise of a ‘strip search.’” Complaint ¶ 39. Plaintiffs do not explain whether this was Claim 10: Remaining in Claim 10 is Barela’s claim against Barnes. Nowhere do Plaintiffs allege that Barnes acted under color of state law. The Court therefore will DISMISS Claim 10 with respect to Barnes with leave to amend. Claim 11: Remaining in Claim 11 are Barela’s claims against Barnes and the Doe Defendants. Nowhere do Plaintiffs allege that Barnes acted under color 7\| of state law. The Court therefore will DISMISS Claim 11 with respect to Barnes with leave to amend. Plaintiffs do not identify in Claim 11 any federal law or constitutional right that the Doe Defendants violated. The Court therefore will DISMISS Claim 11 with respect to the Doe Defendants with leave to amend. For the reasons discussed above, the Court will enter an Order GRANTING the Motion and DISMISSING the entirety of the Complaint, with leave to amend in part. In view of that ruling, the Court need not reach Defendants’ arguments regarding joinder. MUM Dated: March 8, 2021 ° GNITED STATES DISTRICT JUDGE