Eric Jerome Phillips Jr. v. County of Riverside

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ERIC JEROME PHILLIPS, JR., Case No. 5:19-cv-01518-VAP (MAA) 12 Plaintiff,

13 v. MEMORANDUM DECISION AND 14 ORDER REGARDING THIRD COUNTY OF RIVERSIDE et al., 15 AMENDED COMPLAINT Defendants. 16 17

18 I. INTRODUCTION 19 On August 14, 2019, Plaintiff Eric Jerome Phillips, Jr. (“Plaintiff”), a state 20 inmate proceeding pro se, filed a Complaint alleging violations of his civil rights 21 pursuant to 42 U.S.C. § 1983 (“Section 1983”). (Compl., ECF No. 1.) That same 22 day, Plaintiff also filed a Request to Proceed In Forma Pauperis (ECF No. 2), which 23 the Court granted on August 15, 2019 (ECF No. 4). On August 20, 2019, the Court 24 dismissed the Complaint for failure to comply with Federal Rule of Civil Procedure 25 8 (“Rule 8”), with leave to amend. (ECF No. 7.) 26 On September 23, 2019, Plaintiff submitted a First Amended Complaint 27 (“FAC”). (FAC, ECF No. 8.) On November 15, 2019, Plaintiff submitted a Request 28 to Submit Second Amended Complaint (“SAC”). (ECF No. 9.) The Court denied 1 this request as unnecessary per Federal Rule of Civil Procedure 15 and ordered 2 Plaintiff to file a SAC no later than December 23, 2019. (ECF No. 10). On 3 December 4, 2019, Plaintiff filed a Motion to Submit Supplemental Complaint (ECF 4 No. 12), which the Court also denied as unnecessary (ECF No. 13). On December 5 23, 2019, Plaintiff filed a letter to the Clerk of Court requesting the Court’s 6 assistance. (ECF No. 14.) On January 9, 2020, the Court issued a notice to the 7 warden and extended Plaintiff’s SAC deadline to February 10, 2020. (ECF No. 16.) 8 On February 25, 2020, the Court issued an order requiring Plaintiff to show cause by 9 March 26, 2020 why the Court should not recommend that the case be dismissed for 10 want of prosecution (“OSC”). (OSC, ECF No. 27.) On March 25, 2020, Plaintiff 11 submitted a response to the OSC, stating, inter alia, that Plaintiff believed a SAC 12 was optional. (ECF No. 33.) On March 30, 2020, the Court discharged the OSC 13 and deemed the FAC as the operative complaint. (ECF No. 34.) On April 2, 2020, 14 the Court dismissed Plaintiff’s FAC (ECF No. 8) for failure to comply with Rule 8, 15 with leave to amend. (ECF No. 35.) 16 On April 2, 2020, the Court received a complaint, which was docketed as a 17 SAC. (ECF No. 38.) On April 16, 2020, the Court dismissed the SAC with leave to 18 amend. (ECF No. 42.) The Court subsequently received Plaintiff’s Motion/Request 19 to Submit a SAC, which stated that Plaintiff had not yet filed a SAC in this lawsuit, 20 and Plaintiff’s recent complaint was intended as a separate class action lawsuit. 21 (ECF No. 43.) On April 20, 2020, the Court ordered ECF Nos. 38 and 42 stricken 22 from the docket and ordered Plaintiff to file a SAC no later than June 19, 2020. 23 (ECF No. 44.) On June 8, 2020, Plaintiff filed a SAC (SAC, ECF No. 48), which 24 the Court screened and dismissed with leave to amend on July 24, 2020 (“Order 25 Dismissing SAC”) (Order Dismiss. SAC, ECF No. 58). 26 On August 26, 2020, Plaintiff filed a Third Amended Complaint (“TAC”). 27 (TAC, ECF No. 59.) The Court has screened the TAC as prescribed by 28 U.S.C. 28 § 1915A and § 1915(e)(2)(B). For the reasons stated below, the TAC is 1 DISMISSED WITH LEAVE TO AMEND. Plaintiff is ORDERED to, within 2 thirty days after the date of this Order, either: (1) file a Fourth Amended Complaint 3 (“4AC”); or (2) advise the Court that Plaintiff does not intend to pursue this lawsuit 4 further and will not file a 4AC. 5 6 II. SUMMARY OF ALLEGATIONS AND CLAIMS1 7 A. Defendants 8 The TAC is filed against: (1) Riverside County; (2) Riverside County 9 Sheriff’s Department (“RCSD”); and (3) Deputy Senior Landry (individual capacity) 10 (each, a “Defendant,” and collectively, “Defendants”). (TAC 4.)2 11 12 B. Claims 1–3 - Religious Claims 13 Claims 1–3 asserts violations of the following rights: (1) Claim 1: First 14 Amendment Free Exercise Clause; (2) Claim 2: Fourteenth Amendment Equal 15 Protection Clause; and (3) Claim 3: Religious Land Use and Institutionalized 16 Persons Act (“RLUIPA”). (Id. at 6.) 17 Practices and policies throughout Defendant RCSD’s jail facilities—which 18 have been in practice since Plaintiff entered Defendant RCSD’s custody on July 13, 19 2016—prohibit Plaintiff from exercising his Islamic religion: (1) Muslim detainees 20 are not allowed to congregate together, (2) Muslim detainees are not permitted to 21 receive religious materials due to posing a security threat, (3) Muslim detainees must 22 pass a series of tests and inquiries to receive an Arabic Quran, (4) it is not the 23 responsibility of Defendants RCSD and Riverside County to provide congregation 24

25 1 The Court summarizes the allegations and claims in the TAC. In doing so, the Court does not opine on the veracity or merit of Plaintiff’s allegations and claims, 26 nor does the Court make any findings of fact. 27 2 Pinpoint citations of docketed documents refer to the page numbers in the ECF- 28 generated headers. 1 services with an Islamic religious advisor, and (5) Muslim detainees may have a 2 phone call with an Islamic religious advisor only once a year. (Id. at 6–7.) 3 Plaintiff has submitted multiple requests, slips, and grievances, and spoken to 4 multiple deputies regarding his needs to exercise Islam and requesting the following 5 religious items and services: (1) khuffi, (2) Islamic prayer rug, (3) Arabic Quaran, 6 (4) sunnah, (5) hadith, and (6) the ability to congregate with other Muslims and an 7 Islamic religious advisor in private. (Id. at 7.) Such requests were denied pursuant 8 to the policies and practices of Defendants Riverside County and RCSD because 9 they either posed a security threat, or due to refusal to provide and allow such 10 requests. (Id. at 8.) Plaintiff has addressed the foregoing requests with four 11 chaplains employed by Defendants Riverside County and RCSD, who have denied 12 Plaintiff’s requests. (Id.) The chaplains told Plaintiff: “You should of [sic] chose to 13 be a Christian instead of Muslim”; “Now you know you better not come to jail a 14 Muslim”; “Be grateful we are letting you practice Allah”; and “Muslims are not 15 really accepted here.” (Id.) 16 Defendants Riverside County and RCSD gave Plaintiff a used towel covered 17 in blood, urine, and feces in lieu of a prayer rug to conduct his prayers. (Id. at 9.) 18 Defendants Riverside County and RCSD forced Plaintiff to read a full page of 19 Arabic Quran, which Plaintiff refused due to feeling harassed. (Id.) Plaintiff’s 20 religious reading materials were confiscated on three occasions, due to Defendants 21 Riverside County and RCSD’s policy allowing only one religious book to be in a 22 detainee’s possession. (Id. at 9–10.) 23 Defendants Riverside County and RCSD provide private Christian and 24 Catholic congregation services for detainees who choose to participate 25 approximately one to two times a month. (Id. at 8.) Defendants Riverside County 26 and RCSD provide Christian and Catholic detainees with religious materials, such as 27 different versions of the Bible and other reading materials, and they are allowed to 28 /// 1 possess as many religious books as desired. (Id. at 9.) Jewish detainees are allowed 2 to wear Yarmulkes. (Id.) 3 In its entirety, Defendants Riverside County and RCSD’s policies deny 4 Plaintiff an equal opportunity to pursue his faith as other detainees of different 5 religious faiths, and caused severe psychological injuries to Plaintiff. (Id. at 10, 13.) 6 7 C. Claim 4 - Fourteenth Amendment Substantive Due Process 8 During all day room and cell extractions, all detainees are considered highly 9 dangerous and it is the policy and practice that deputies may use as much force as 10 wanted to extract a detainee. (Id. at 15.) In the “mental health/ad seg unit,” deputies 11 will use explosives (tear gas) and however much force wanted on a detainee who 12 does not respond to a question or order fast enough, and will “beat on” mentally 13 unstable detainees. (Id.) 14 On approximately May 14, 2019, at RPDC Jail3 in the “mental health/ad seg 15 unit,” two classification unit deputies came to Plaintiff’s cell and ordered Plaintiff to 16 come out of the cell to be re-housed in the general population. (Id.) Plaintiff refused 17 the order out of fear for his life and due to exercising a court order. (Id. at 15–16.) 18 Plaintiff told both deputies that he was in fear for his life and could not function in 19 that environment, and begged them for help. (Id. at 16.) 20 Both deputies disregarded Plaintiff’s statements and concerns and left to 21 summon the “goon squad”—ten to fifteen deputies dressed in all black with riot gear 22 and weapons. (Id.) Once the “goon squad” arrived, they threw two canisters of 23 military grade tear gas—which emitted tear gas for two minutes each—and three 24 military concussion grenades—two of which exploded in Plaintiff’s cell. (Id.) 25 Approximately ten deputies then entered Plaintiff’s cell with a riot shield, shoved the 26 riot shield on top of Plaintiff in a corner of the cell, and punched him repeatedly in 27

28 3 Presumably, this refers to Robert Presley Detention Center. 1 the face for approximately forty-five seconds. (Id.) They threw Plaintiff to the 2 ground to cuff his hands and feet together as a “hog tie.” (Id.) Plaintiff vomited, 3 urinated and defecated on himself, and lost consciousness due to the explosives and 4 tear gas used on him. (Id. at 17.) 5 The “goon squad” carried Plaintiff into a safety cell by his hands, feet, and 6 clothes. (Id.) During the transfer, multiple deputies verbally berated Plaintiff. (Id.) 7 One deputy rapidly pulled on Plaintiff’s left distal phalange of his first toe so that it 8 could break. (Id.) Plaintiff was screaming and asked the deputy to stop. (Id.) The 9 deputy ignored this request and continued to pull Plaintiff’s toe back and verbally 10 berated him. (Id.) Once Plaintiff was in the safety cell, a sergeant overseeing the 11 event told Plaintiff that next time they would kill him and if he submitted any 12 grievances, they would make sure “you end up dead.” (Id.) Plaintiff remained in the 13 safety cell for approximately two days, where he laid on feces, blood, urine, and spit; 14 and was deprived of sleep the entire time due to excessive lights and freezing cold 15 temperatures. (Id.) Multiple deputies overseeing Plaintiff humiliated and degraded 16 him about the situation and defecating on himself. (Id. at 18.) From the safety cell, 17 Plaintiff returned back to the same housing unit—“mental health/ad seg”—where he 18 remained for approximately one year. (Id.) 19 As a result of the incident, Plaintiff suffered the following physical and 20 psychological injuries: (1) multiple blood vessels exploded in the left eye, 21 preventing Plaintiff from seeing out such eye for approximately four days; (2) legs 22 and feet were swollen for approximately three months; (3) fractures in left toe; 23 (4) daily self-urination; (5) daily nightmares and sleep deprivation; (6) daily panic 24 attacks; and (7) chains cut into wrists and ankles. (Id.) 25 Plaintiff made no threats and showed no aggression before or during the 26 assault. (Id.) Before the incident, Plaintiff received a superior court order to remain 27 housed in the “mental health/ad seg unit” on April 2, 2019. (Id.) Plaintiff addressed 28 his order and need to stay in the “mental health/ad seg unit” for his safety with two 1 high-ranking classification unit deputies approximately one-a-half weeks before the 2 assault. (Id. at 19.) Both deputies told Plaintiff that they did not have to follow the 3 court order. (Id.) Before the event, Plaintiff submitted multiple grievances and 4 talked with multiple deputies about being housed in ad seg for his safety, but his 5 concerns were disregarded. (Id.) 6 Defendants RCSD and Riverside County were negligent to Plaintiff’s safety 7 and concerns by exercising this custom on Plaintiff and placing him in “reckless 8 endangerment.” (Id.) 9 10 D. Claim 5 - Fourteenth Amendment Rights to Privacy and Bodily 11 Integrity 12 Defendants RCSD and Riverside County have practices of sexually harassing 13 and assaulting detainees. (Id. at 20.) As a practice: (1) deputies sexually harass and 14 humiliate detainees; (2) deputies choose detainees they want to strip naked and 15 sexually degrade; (3) deputies monitor detainees on camera naked and sexually 16 humiliate them; (4) female deputies sexually harass and humiliate male detainees in 17 safety cells; (5) deputies will use as much force as necessary to strip a detainee 18 naked; and (6) deputies will force mentally unstable detainees to strip naked and 19 sexually degrade themselves. (Id. at 20–21.) 20 While Plaintiff was housed at RPDC Jail, on approximately July 25, 2017, 21 Defendant Landry conducted a random cell search on Plaintiff’s cell. (Id. at 21.) 22 Before he conducted the search, Defendant Landry forced Plaintiff to strip naked and 23 proceeded to sexually assault Plaintiff. (Id.) Defendant Landry ordered Plaintiff to 24 masturbate in front of him and forced Plaintiff to stick his hands inside his anus, to 25 which Plaintiff complied for fear of his life. (Id.) For approximately two minutes, 26 Plaintiff was naked and performed Defendant Landry’s orders. (Id.) Defendant 27 Landry laughed at Plaintiff while sexually degrading him. (Id.) Defendant Landry 28 called Plaintiff “sexy” multiple times and made sexual comments about Plaintiff’s 1 body. (Id.) Defendant Landry said to Plaintiff that he could have sex with him, and 2 then sexually assaulted Plaintiff. (Id. at 22.) 3 On approximately January 18, 2019 at CBDC Jail; 4 January 25, 2019 at SCF 4 Jail; 5 and February 19, 2020 at RPDC Jail, Defendants RCSD and Riverside County 5 exercised policies and practices where Plaintiff was forced naked into a safety cell 6 for approximately three days on each occasion. (Id.) Each time, female and male 7 deputies sexually humiliated and degraded Plaintiff due to his nakedness. (Id.) 8 Deputies made sexual comments to Plaintiff while Plaintiff was using the restroom 9 and eating his food naked. (Id.) 10 11 E. Request for Relief 12 For the foregoing violations, Plaintiff requests: 13 (1) Declaratory relief declaring the First and Fourteenth Amendment rights 14 of Plaintiff against Defendant RCSD; 15 (2) Permanent injunctions against Defendants Riverside County and 16 RCSD: 17 (a) directing Defendants to provide to Plaintiff: (i) two hadiths, 18 (ii) two sunnahs, (iii) kufi, (iv) Islamic prayer rug, and 19 (v) Arabic/English Quran; 20 (b) ordering Defendant RCSD to cease: (i) unnecessary bodily 21 invasions, (ii) sexual harassment, and (iii) forcing detainees to 22 strip naked in safety cells; 23 (3) Damages in the following amounts: (a) $750,000 in punitive, 24 compensatory, and nominal damages from Defendants Riverside 25 26 27 4 Presumably, this refers to the Cois M. Byrd Detention Center.

28 5 Presumably, this refers to the Larry Smith Correctional Facility. 1 County and RCSD; and (b) $250,000 in punitive and compensatory 2 damages against Defendant Landry; 3 (4) A jury trial; and 4 (5) Any further relief in the interests of justice. (Id. at 24.) 5 6 III. STANDARD OF REVIEW 7 Federal courts must conduct a preliminary screening of any case in which a 8 prisoner seeks redress from a governmental entity or officer or employee of a 9 governmental entity (28 U.S.C. § 1915A), or in which a plaintiff proceeds in forma 10 pauperis (28 U.S.C. § Section 1915(e)(2)(B)). The court must identify cognizable 11 claims and dismiss any complaint, or any portion thereof, that is: (1) frivolous or 12 malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks 13 monetary relief from a defendant who is immune from such relief. 28 U.S.C. 14 §§ 1915(e)(2)(B), 1915A(b). 15 When screening a complaint to determine whether it fails to state a claim 16 upon which relief can be granted, courts apply the Federal Rule of Civil Procedure 17 12(b)(6) (“Rule 12(b)(6)”) standard. See Wilhelm v. Rotman, 680 F.3d 1113, 1121 18 (9th Cir. 2012) (applying the Rule 12(b)(6) standard to 28 U.S.C. § Section 1915A); 19 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (applying the Rule 12(b)(6) 20 standard to 28 U.S.C. § 1915(e)(2)(B)(ii)). To survive a Rule 12(b)(6) dismissal, “a 21 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 22 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 23 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has 24 facial plausibility when the plaintiff pleads factual content that allows the court to 25 draw the reasonable inference that the defendant is liable for the misconduct 26 alleged.” Iqbal, 556 U.S. at 678. Although “detailed factual allegations” are not 27 required, “an unadorned, the-defendant-unlawfully-harmed-me accusation”; “labels 28 and conclusions”; “naked assertion[s] devoid of further factual enhancement”; and 1 “[t]hreadbare recitals of the elements of a cause of action, supported by mere 2 conclusory statements” are insufficient to defeat a motion to dismiss. Id. 3 (quotations omitted). “Dismissal under Rule 12(b)(6) is appropriate only where the 4 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable 5 legal theory.” Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 6 (9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 7 1104 (9th Cir. 2008)). 8 In reviewing a Rule 12(b)(6) motion to dismiss, courts will accept factual 9 allegations as true and view them in the light most favorable to the plaintiff. Park 10 v. Thompson, 851 F.3d 910, 918 (9th Cir. 2017). Moreover, where a plaintiff is 11 appearing pro se, particularly in civil rights cases, courts construe pleadings 12 liberally and afford the plaintiff any benefit of the doubt. Wilhelm, 680 F.3d at 13 1121. “If there are two alternative explanations, one advanced by defendant and the 14 other advanced by plaintiff, both of which are plausible, plaintiff’s complaint 15 survives a motion to dismiss under Rule 12(b)(6).” Starr v. Baca, 652 F.3d 1202, 16 1216 (9th Cir. 2011). However, the liberal pleading standard “applies only to a 17 plaintiff’s factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989), 18 superseded by statute on other grounds, 28 U.S.C. § 1915. Courts will not “accept 19 any unreasonable inferences or assume the truth of legal conclusions cast in the 20 form of factual allegations.” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 21 2003). In giving liberal interpretations to complaints, courts “may not supply 22 essential elements of the claim that were not initially pled.” Chapman v. Pier 1 23 Imps. (U.S.), Inc., 631 F.3d 939, 954 (9th Cir. 2011) (quoting Pena v. Gardner, 976 24 F.2d 469, 471 (9th Cir. 1992)). 25 /// 26 /// 27 /// 28 /// 1 IV. DISCUSSION 2 A. Section 1983 3 Section 1983 provides a cause of action against “every person who, under 4 color of any statute . . . of any State . . . subjects, or causes to be subjected, any 5 citizen . . . to the deprivation of any rights, privileges, or immunities secured by the 6 Constitution and laws . . . .” Wyatt v. Cole, 504 U.S. 158, 161 (1992) (alteration in 7 original) (quoting 42 U.S.C. § 1983). “The purpose of § 1983 is to deter state actors 8 from using the badge of their authority to deprive individuals of their federally 9 guaranteed rights and to provide relief to victims if such deterrence fails.” Id. To 10 state a claim under Section 1983, a plaintiff must allege: (1) a right secured by the 11 Constitution or laws of the United States was violated; and (2) the alleged violation 12 was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 13 42, 48 (1988). 14 Here, the TAC asserts violations of the following rights: (1) First Amendment 15 Free Exercise Clause; (2) Fourteenth Amendment Equal Protection Clause; 16 (3) RLUIPA; (4) Fourteenth Amendment substantive due process protection against 17 punishment of pretrial detainees; and (5) Fourteenth Amendment rights to privacy 18 and bodily integrity. (TAC 6, 14.) Mindful of the liberal pleading standards 19 afforded pro se civil rights plaintiffs, the Court also examines Claims 4–5 pursuant 20 to the Fourteenth Amendment protection against excessive force and Fourth 21 Amendment right to be free from unreasonable searches. See Fontana v. Haskin, 22 262 F.3d 871, 877 (9th Cir. 2001) (“Specific legal theories need not be pleaded so 23 long as sufficient factual averments show that the claimant may be entitled to some 24 relief.”); Ellis v. Brady, Case No. 16cv1419 WQH (NLS), 2017 U.S. Dist. LEXIS 25 203458, at *15–16 (S.D. Cal. Dec. 8, 2017) (concluding that court could address 26 plaintiff’s claim asserted under the wrong constitutional amendment, as “it is the 27 factual allegations, not the legal labels attached, which determine the issue”). 28 /// 1 B. Claims Against Municipalities/Local Government Entities 2 “A municipality or other local government [including counties and their 3 sheriff’s departments] may be liable under [Section 1983] if the governmental body 4 itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be 5 subjected’ to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) 6 (citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 692 (1978)). However, “a 7 municipality can be found liable under § 1983 only where the municipality itself 8 causes the constitutional violation at issue.” City of Canton v. Harris, 489 U.S. 378, 9 385 (1989). “A municipality cannot be held liable solely because it employs a 10 tortfeasor—or in other words, a municipality cannot be held liable under Section 11 1983 on a respondeat superior theory.” Monell, 436 U.S. at 690–91; accord 12 Connick, 563 U.S. at 60 (“[U]nder § 1983, local governments are responsible only 13 for their own illegal acts. They are not vicariously liable under § 1983 for their 14 employees’ actions.” (quotations and citations omitted)). 15 “In order to establish municipal liability, a plaintiff must show that a ‘policy 16 or custom’ led to the plaintiff’s injury.” Castro v. County of Los Angeles, 833 F.3d 17 1060, 1073 (9th Cir. 2016) (en banc) (quoting Monell, 436 U.S. at 694). “Official 18 municipal policy includes the decisions of a government’s lawmakers, the acts of its 19 policymaking officials, and practices so persistent and widespread as to practically 20 have the force of law.” Connick, 563 U.S. at 61. A rule or regulation “promulgated, 21 adopted, or ratified by a local governmental entity’s legislative body” constitutes a 22 municipal policy. Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 23 1989), overruled on other grounds by Bull v. City & County of San Francisco, 595 24 F.3d 964 (9th Cir. 2010) (en banc). “A policy has been defined as ‘a deliberate 25 choice to follow a course of action . . . made from among various alternatives by the 26 official or officials responsible for establishing final policy with respect to the 27 subject matter in question.’” Waggy v. Spokane County Washington, 594 F.3d 707, 28 713 (9th Cir. 2010) (alteration in original) (quoting Long v. County of Los Angeles, 1 442 F.3d 1178, 1185 (9th Cir. 2006)). “[I]n addition to an official policy, a 2 municipality may be sued for constitutional deprivations visited pursuant to 3 governmental custom even though such custom has not received formal approval 4 through the [governmental] body’s official decisionmaking channels.” Navarro v. 5 Block, 72 F.3d 712, 714 (9th Cir. 1996) (quotations omitted) (citing Monell, 436 6 U.S. at 690–91). However, liability for a custom will attach only if a plaintiff pleads 7 that his or her injury resulted from a “permanent and well-settled” practice. 8 Thompson, 885 F.2d at 1444. Allegations of random acts or isolated events are 9 insufficient to establish a municipal custom. Navarro, 72 F.3d at 714. 10 Furthermore, there must be a “direct causal link between a municipal policy or 11 custom and the alleged constitutional deprivation.” City of Canton, 489 U.S. at 385. 12 Municipal policy “‘causes’ an injury where it is the ‘moving force’ behind the 13 constitutional violation, or where ‘the [municipality] itself is the wrongdoer.’” 14 Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994) (citations omitted). The 15 municipal policy “need only cause a constitutional violation; it need not be 16 unconstitutional per se.” Jackson v. Gates, 975 F.2d 648, 654 (9th Cir. 1992). 17 Below the Court examines whether the TAC successfully states any claims 18 against Defendants Riverside County and RCSD. 19 20 C. First Amendment Right to Free Exercise of Religion 21 The First Amendment prohibits the government from making laws 22 “prohibiting the free exercise” of religion. U.S. Const. amend. I; Hartmann, 707 23 F.3d at 1122 (noting that the free exercise guarantee is applicable to state action 24 through the Fourteenth Amendment). “The right to exercise religious practices and 25 beliefs does not terminate at the prison door. The free exercise right, however, is 26 necessarily limited by the fact of incarceration, and may be curtailed in order to 27 achieve legitimate correctional goals or to maintain prison security.” McElyea v. 28 Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (per curiam) (citations omitted). 1 A religious belief must satisfy two criteria to merit protection under the Free 2 Exercise Clause of the First Amendment: (1) “the claimant’s proffered belief must 3 be sincerely held; the First Amendment does not extend to so-called religions which 4 . . . are obviously shams and absurdities and whose members are patently devoid of 5 religious sincerity”; and (2) “the claim must be rooted in religious belief, not in 6 purely secular philosophical concerns.” Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 7 1994) (alteration in original) (internal quotation marks and citations omitted). In 8 addition, “[a] person asserting a free exercise claim must show that the government 9 action in question substantially burdens the person’s practice of her religion.” Jones 10 v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015). “A substantial burden . . . place[s] 11 more than an inconvenience on religious exercise; it must have a tendency to coerce 12 individuals into acting contrary to their religious beliefs or exert substantial pressure 13 on an adherent to modify his behavior and to violate his beliefs.” Id. (alteration in 14 original) (quoting Ohno v. Yasuma, 723 F.3d 984, 1011 (9th Cir. 2013)). 15 “[A] prisoner’s Free Exercise Clause claim will fail if the State shows that the 16 challenged action is ‘reasonably related to legitimate penological interests.’” 17 Walker v. Beard, 789 F.3d 1125, 1138 (9th Cir. 2015) (quoting Turner v. Safley, 482 18 U.S. 78, 89 (1987)). Four factors are balanced in determining whether an action is 19 reasonably related to legitimate penological interests: 20 (1) whether there is a valid, rational connection between a state 21 interest and the prison regulation; (2) whether prisoners have an 22 alternative method of engaging in religious practice; (3) the impact 23 accommodation of the asserted constitutional right would have on 24 guards and other inmates; and (4) the absence of ready alternatives to 25 the challenged regulation. 26 Walker, 789 F.3d at 1138–39 (citing Turner, 482 U.S. at 89–90). 27 Taken as a whole, the TAC sufficiently alleges that Plaintiff holds a 28 sincerely-held belief in the Islamic religion. (See TAC 6–13.) The TAC alleges 1 that since July 13, 2016, Defendants Riverside County and RCSD have practices 2 that hinder and discourage Plaintiff from practicing his Islamic religion— including 3 repeated denials of Plaintiff’s requests for five Islamic religious items (kufi, Islamic 4 prayer rug, Arabic translated Quran, hadith, and sunnah), confiscation of Plaintiff’s 5 Islamic reading materials, denial of Plaintiff’s numerous requests for congregation 6 services, and denial of Plaintiff’s requests to meet with an Islamic advisor—all due 7 to Defendants RCSD and Riverside County’s stance that the Islamic religion poses 8 a security threat. (Id. at 6–10.) The TAC alleges that these denials prevent Plaintiff 9 from performing his “fundamental obligations” under Islam. (Id. at 12.) These 10 allegations potentially state a First Amendment free exercise claim against 11 Defendants RCSD and Riverside County. 12 13 D. Fourteenth Amendment Right to Equal Protection 14 “The Equal Protection Clause of the Fourteenth Amendment provides that 15 ‘[n]o State shall . . . deny to any person within its jurisdiction the equal protection of 16 the laws.’” Angelotti Chiropractic v. Baker, 791 F.3d 1075, 1085 (9th Cir. 2015) 17 (alteration in original) (quoting U.S. Const. amend. XIV, § 1). “The Equal 18 Protection Clause requires the State to treat all similarly situated people equally.” 19 Hartmann, 707 F.3d at 1123. “The Equal Protection Clause does not forbid 20 classifications. It simply keeps governmental decisionmakers from treating 21 differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 22 U.S. 1, 10 (1992). 23 “The Constitution’s equal protection guarantee ensures that prison officials 24 cannot discriminate against particular religions.” Freeman v. Arpaio, 125 F.3d 732, 25 737 (9th Cir. 1997), abrogated on other grounds by Shakur v. Schriro, 514 F.3d 878, 26 884–85 (9th Cir. 2008). “[T]he Equal Protection Clause entitles each prisoner to ‘a 27 reasonable opportunity of pursuing his faith comparable to the opportunity afforded 28 /// 1 fellow prisoners who adhere to conventional religious precepts.’” Shakur, 514 F.3d 2 at 891 (quoting Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam)). 3 A plaintiff states an equal protection claim by alleging “facts plausibly 4 showing that ‘the defendants acted with an intent or purpose to discriminate against 5 [them] based upon membership in a protected class.” Hartmann, 707 F.3d at 1123 6 (alteration in original) (quoting Thornton v. City of St. Helens, 425 F.3d 1158, 1166 7 (9th Cir. 2005)). “To succeed on an equal protection claim, a plaintiff in a section 8 1983 claim must show that officials intentionally acted in a discriminatory manner.” 9 Freeman, 125 F.3d at 737. As with First Amendment free exercise claims, courts 10 apply the Turner four-factor reasonableness test—that is, Plaintiff’s Fourteenth 11 Amendment equal protection claim will fail if the challenged action is reasonably 12 related to legitimate penological interests. See Shakur, 514 F.3d at 891. 13 The TAC alleges that Defendants Riverside County and RCSD have practices 14 that hinder and discourage Plaintiff from practicing his Islamic religion, including 15 denial of Plaintiff’s requests for five Islamic religious items (kufi, Islamic prayer 16 rug, Arabic translated Quran, hadith, and sunnah); confiscation of Plaintiff’s Islamic 17 reading materials; denial of Plaintiff’s requests for congregation services; and denial 18 of Plaintiff’s requests to meet with an Islamic advisor. (TAC 6–10.) The TAC 19 alleges that in contrast to Muslim detainees, Christian and Catholic detainees receive 20 religious and advisor congregation services approximately one to two times per 21 month, are provided the Bible and other religious reading materials, and are 22 permitted to possess as many religious books as desired. (Id. at 8–9.) The TAC also 23 alleges that Jewish detainees are permitted to wear Yarmulkes and are allowed to 24 possess as many religious books as desired. (Id. at 9.) The TAC asserts that in its 25 entirety, Defendants Riverside County and RCSD’s policies deny Plaintiff an equal 26 opportunity to pursue his faith as other detainees of different religious faiths. (Id. at 27 10.) These allegations potentially state a Fourteenth Amendment equal protection 28 claim against Defendants RCSD and Riverside County. 1 E. RLUIPA 2 “RLUIPA . . . protects institutionalized persons who are unable freely to 3 attend to their religious needs and are therefore dependent on the government’s 4 permission and accommodation for exercise of their religion.” Cutter v. Wilkinson, 5 544 U.S. 709, 721 (2005). RLUIPA provides that: “No government shall impose a 6 substantial burden on the religious exercise of a person residing in or confined to an 7 institution, . . . even if the burden results from a rule of general applicability, unless 8 the government demonstrates that imposition of the burden on that person,’ first, 9 ‘furthers a compelling governmental interest,’ and second, ‘is the least restrictive 10 means of furthering that compelling governmental interest.’” Id. at 732 (alteration in 11 original) (quoting 42 U.S.C. § 2000cc-1(a)(1)–(2)). RLUIPA provides more 12 “expansive protection” for inmates’ “religious liberty” than the First Amendment. 13 Holt v. Hobbs, 574 U.S. 352, 358 (2015); Shakur, 514 F.3d at 888 (RLUIPA 14 “mandates a stricter standard of review for prison regulations that burden the free 15 exercise of religion than the reasonableness standard under Turner.”). 16 “To state a claim under RLUIPA, a prisoner must show that: (1) he takes part 17 in a religious exercise, and (2) the State’s actions have substantially burdened that 18 exercise.” Walker, 789 F.3d at 1134 (internal quotations omitted). “RLUIPA 19 protects any exercise of religion, whether or not compelled by, or central to, a 20 system of religious belief, but, of course, a prisoner’s request for an accommodation 21 must be sincerely based on a religious belief and not some other motivation.” Holt, 22 574 U.S. at 360–61 (internal quotations and citations omitted). “To constitute a 23 substantial burden, a limitation of religious practice ‘must impose a significantly 24 great restriction or onus upon such exercise.’” Walker, 789 F.3d at 1135 (quoting 25 San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 26 2004)). “A substantial burden need not actually force a litigant to change his 27 practices; a violation may occur ‘where the state . . . denies [an important benefit] 28 because of conduct mandated by religious belief, thereby putting substantial 1 pressure on an adherent to modify his behavior and to violate his beliefs.’” Id. 2 (alteration in original) (quoting Warsoldier v. Woodford, 418, F.3d 989, 995 (9th 3 Cir. 2005)). If the inmate satisfies his initial burden, then the State must “prove its 4 actions were the least restrictive means of furthering a compelling governmental 5 interest.” Id. at 1134. 6 The TAC alleges that since July 13, 2016, Defendants Riverside County and 7 RCSD have practices that hinder and discourage Plaintiff from practicing his Islamic 8 religion— including repeated denials of Plaintiff’s requests for five Islamic religious 9 items (kufi, Islamic prayer rug, Arabic translated Quran, hadith, and sunnah), 10 confiscation of Plaintiff’s Islamic reading materials, denial of Plaintiff’s numerous 11 requests for congregation services, and denial of Plaintiff’s requests to meet with an 12 Islamic advisor—all due to Defendants RCSD and Riverside County’s position that 13 the Islamic religion poses a security threat. (Id. at 6–10.) These allegations 14 potentially state a RLUIPA claim against Defendants Riverside County and RCSD. 15 16 F. Fourteenth Amendment Protection Against Punishment 17 Pretrial detainees possess greater constitutional rights than prisoners. Stone v. 18 City & County of San Francisco, 968 F.2d 850, 857 n.10 (9th Cir. 1992); see also 19 Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1246 n.5 (9th Cir. 2016) (“Eighth 20 Amendment protections apply only once a prisoner has been convicted of a crime, 21 while pretrial detainees are entitled to the potentially more expansive protections of 22 the Due Process Clause of the Fourteenth Amendment.” ). The Due Process Clause 23 of the Fourteenth Amendment protects pretrial detainees—who have not been 24 adjudged guilty of any crime—from any conditions or restrictions that amount to 25 punishment. Bell v. Wolfish, 441 U.S. 520, 535–37 (1979); see also Valdez v. 26 Rosenbaum, 302 F.3d 1039, 1045 (9th Cir. 2002) (“Pretrial detainees have 27 a substantive due process right against restrictions that amount to punishment.”). 28 /// 1 “This right is violated if restrictions are ‘imposed for the purpose of punishment.’” 2 Valdez, 302 F.3d at 1045 (quoting Bell, 441 U.S. at 535). 3 For a particular governmental action to constitute punishment, first the “action 4 must cause the detainee to suffer some harm or ‘disability.’” Demery v. Arpaio, 378 5 F.3d 1020, 1029 (9th Cir. 2004). “[T]o constitute punishment, the harm or disability 6 caused by the government’s action must either significantly exceed, or be 7 independent of, the inherent discomforts of confinement.” Id. at 1030. Second, “the 8 purpose of the governmental action must be to punish the detainee.” Id. at 1029. To 9 determine whether a condition is unconstitutional punishment, a court asks “whether 10 there was an express intent to punish, or ‘whether an alternative purpose to which 11 [the restriction] may rationally be connected is assignable for it, and whether it 12 appears excessive in relation to the alternative purpose assigned [to it].’” Id. at 1028 13 (alteration in original) (quoting Bell, 441 U.S. at 538). “[I]f a particular condition or 14 restriction of pretrial detention is reasonably related to a legitimate governmental 15 objective, it does not, without more, amount to ‘”punishment.’” Bell, 441 U.S. at 16 539. “Conversely, if a restriction or condition is not reasonably related to a 17 legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that 18 the purpose of the governmental action is punishment that may not constitutionally 19 be inflicted upon detainees . . . .” Id. “A reasonable relationship between the 20 governmental interest and the challenged restriction does not require an exact fit, nor 21 does it require showing a least restrictive alternative.” Valdez, 302 F.3d at 1046 22 (internal quotation marks and citations omitted). 23 The TAC alleges that on July 25, 2017, Defendant Landry conducted a 24 random cell search of Plaintiff’s cell, during which Defendant Landry forced 25 Plaintiff to strip naked, forced Plaintiff to perform his orders—including to 26 masturbate and to stick his hands inside his anus—called Plaintiff “sexy” multiple 27 times, made sexual comments about Plaintiff’s body, and sexually assaulted 28 Plaintiff. (TAC 21–22.) The TAC does not provide sufficient details of Defendant 1 Landry’s actions, including in particular his “sexual assault” of Plaintiff. It is 2 unclear whether Plaintiff alleges that Defendant Landry physical assaulted him or 3 whether he is characterizing Defendant Landry’s verbal abuse as “sexual assault.” 4 “[V]erbal harassment or abuse . . . is not sufficient to state a constitutional 5 deprivation under 42 U.S.C. § 1983.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 6 (9th Cir. 1987); see also, e.g., Hill v. Chilmegan, No. CV 17-01674-PHX-GMS 7 (DKD), 2017 U.S. Dist. LEXIS 209199, at *7 (D. Ariz. Dec. 19, 2017) (dismissing 8 pretrial detainee’s Fourteenth Amendment punishments claim based solely on 9 allegations of inappropriate sexual comments where plaintiff did not allege any 10 physical contact). If Plaintiff includes Defendant Landry in any amended complaint, 11 he must provide additional factual allegations regarding Defendant Landry’s actions, 12 including any actions taken beyond verbal harassment. 13 With respect to Defendants RCSD and Riverside County, the TAC alleges 14 that Defendants have a policy and practice of allowing deputies to use as much force 15 as wanted to extract a detainee. (TAC 15.) The TAC also alleges that Defendants 16 RCSD and Riverside County have the following customs, policies, and practices: 17 (1) deputies sexually harass and humiliate detainees; (2) deputies choose the 18 detainees they want to strip naked and sexually degrade; (3) deputies monitor 19 detainees on camera naked and sexually humiliate them; (4) female deputies 20 sexually harass and humiliate male detainees in safety cells; (5) deputies will use as 21 much force as necessary to strip a detainee naked; and (6) deputies will force 22 mentally unstable detainees to strip naked and sexually degrade themselves. (Id. at 23 20–21.) 24 These allegations fail to state a Fourteenth Amendment punishments claim 25 against Defendants RCSD and Riverside County because such Defendants cannot be 26 liable for the actions of their employees under a respondeat superior theory. 27 Monell, 436 U.S. at 690–91. Rather, Defendants RCSD and Riverside County can 28 only be liable where Plaintiff’s alleged constitutional deprivations were caused by 1 such Defendants’ policy, custom, or practice. Chew, 27 F.3d at 1444. The Court 2 details the requirements to plead a policy, custom, or practice claim against local 3 government entities such as Defendants RCSD and Riverside County in Section 4 IV.B, supra. However, other than the conclusory use of the words “custom,” 5 “policy” or “practice,” there are no factual allegations that support the existence of a 6 policy, custom, or practice. See Dougherty v. City of Covina, 654 F.3d 892, 900–01 7 (9th Cir. 2011) (affirming dismissal where complaint “lacked any factual allegations 8 . . . demonstrating that [the] constitutional deprivation was the result of a custom or 9 practice . . . or that the custom or practice was the ‘moving force’ behind [the] 10 constitutional deprivation”). Rather, the TAC appears to allege discrete acts of 11 deputies, and attempts to attribute them to Defendants Riverside County and RCSD, 12 which is not permitted. 13 For these reasons, the TAC does not state a Fourteenth Amendment 14 punishments claim. If Plaintiff asserts a Fourteenth Amendment punishments claim 15 in any amended complaint, he must correct these deficiencies or risk its dismissal. 16 17 G. Fourteenth Amendment Protection From Excessive Force 18 The Fourteenth Amendment’s Due Process Clause protects a pretrial detainee 19 from the use of excessive force that amounts to punishment. Graham v. Connor, 20 490 U.S. 386, 395 n.10 (1989). To prevail on an excessive force claim, “a pretrial 21 detainee must show only that the force purposely or knowingly used against him 22 was objectively unreasonable.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 23 (2015). “[I]t does not matter whether the defendant understood that the force used 24 was excessive, or intended it to be excessive, because the standard is purely 25 objective.” Castro, 833 F.3d at 1069 (discussing Kingsley). 26 “[O]bjective reasonableness turns on the ‘facts and circumstances of each 27 particular case.’” Kingsley, 135 S. Ct. at 2473 (quoting Graham, 490 U.S. at 396). 28 “A court must make this determination from the perspective of a reasonable officer 1 on the scene, including what the officer knew at the time, not with the 20/20 vision 2 of hindsight.” Id. “A court must also account for the ‘legitimate interests that stem 3 from [the government’s] need to manage the facility in which the individual is 4 detained,’ appropriately deferring to ‘policies and practices that in th[e] judgment’ 5 of jail officials ‘are needed to preserve internal order and discipline and to maintain 6 institutional security.’” Id. (alterations in original) (quoting Bell, 441 U.S. at 540). 7 The following non-exclusive factors may bear on the reasonableness or 8 unreasonableness of the force used: “the relationship between the need for the 9 use of force and the amount of force used; the extent of the plaintiff’s injury; any 10 effort made by the officer to temper or to limit the amount of force; the severity of 11 the security problem at issue; the threat reasonably perceived by the officer; and 12 whether the plaintiff was actively resisting.” Id. 13 The TAC alleges that Defendants Riverside County and RCSD have a policy 14 and practice of allowing deputies to use as much force as desired to strip a detainee 15 naked and extract a detainee from a cell, and specifically details an incident of 16 alleged excessive force on May 14, 2019. (TAC 15.) Defendants Riverside County 17 and RCSD cannot be vicariously liable for the acts of their employees, but instead 18 can only be liable if Plaintiff’s injury is caused by their policy or custom. See 19 Castro, 833 F.3d at 1073; see also supra Section IV.B (discussing the requirements 20 to plead a Section 1983 claim against local government entities). The conclusory 21 statement that Defendants Riverside County and RCSD have a policy and practice is 22 not sufficient to plead a policy and practice. See Iqbal, 556 U.S. at 678 (explaining 23 that “labels and conclusions”; “naked assertion[s] devoid of further factual 24 enhancement”; and “[t]hreadbare recitals of the elements of a cause of action, 25 supported by mere conclusory statements” are insufficient to state a claim). 26 Furthermore, the Court previously advised Plaintiff that a single incident is not 27 sufficient to impose liability to a municipal entity such as Defendants Riverside 28 County and RCSD. (See Order Dismiss. SAC 24.) Thus, the TAC does not state a 1 Fourteenth Amendment excessive force claim against Defendants Riverside County 2 and RCSD. 3 Nonetheless, Plaintiff potentially could state a Fourteenth Amendment 4 excessive force claim against the officers involved in the May 14, 2019 incident, in 5 their individual capacities. If Plaintiff would like to do so, he should name the 6 specific individuals involved in the May 14, 2019 incident, and allege the specific 7 actions taken by each such individual. If Plaintiff does not know the officers’ 8 names, he may designate them as numbered Doe Defendants—i.e., Doe Defendant 9 1, Doe Defendant 2, etc.—until their identity is discovered. 10 For these reasons, the TAC fails to state a Fourteenth Amendment excessive 11 force claim. If Plaintiff asserts a Fourteenth Amendment excessive force claim in an 12 amended complaint, he must correct these deficiencies or risk its dismissal. 13 14 H. Fourteenth Amendment Right to Bodily Integrity 15 “Most cases that involve unwanted sexual contact or harassment by public 16 officials have been analyzed under the substantive due process right to be free from 17 violations of bodily integrity under the Fourteenth Amendment.” Vazquez v. County 18 of Kern, 949 F.3d 1153, 1162 (9th Cir. 2020) (quoting Fontana, 262 F.3d at 881–82 19 n.6). Under the Fourteenth Amendment’s substantive due process prong, allegations 20 must “shock the conscience.” Id. “The threshold question is ‘whether the behavior 21 of the governmental officer is so egregious, so outrageous, that it may fairly be said 22 to shock the contemporary conscience.’” Id. (quoting County of Sacramento v. 23 Lewis, 523 U.S. 833, 848 n.8 (1998)). Specifically, a sexual assault on an inmate by 24 a guard “is deeply offensive to human dignity” and “is simply not part of the penalty 25 that criminal offenders pay for their offenses against society.” Schwenk v. Hartford, 26 204 F.3d 1187, 1197 (9th Cir. 2000) (quotations omitted) (quoting Farmer v. 27 Brennan, 511 U.S. 825, 834 (1994)). 28 /// 1 Here, the TAC alleges that on July 25, 2017, Defendant Landry conducted a 2 random cell search of Plaintiff’s cell, during which Defendant Landry forced 3 Plaintiff to strip naked, forced Plaintiff to perform his orders—including to 4 masturbate and to stick his hands inside his anus—called Plaintiff “sexy” multiple 5 times, made sexual comments about Plaintiff’s body and Defendant Landry’s desire 6 to have sex with Plaintiff, and sexually assaulted Plaintiff. (TAC 21–22.) The TAC 7 does not detail Defendant Landry’s “sexual assault” of Plaintiff and it is unclear 8 whether Plaintiff alleges that Defendant Landry raped or otherwise physically 9 assaulted Plaintiff. (See id.) As explained in Section IV.F, supra, verbal harassment 10 or abuse is not sufficient to state a Section 1983 claim. If Plaintiff includes 11 Defendant Landry in any amended complaint, he must provide additional factual 12 allegations regarding Defendant Landry’s actions, including any actions taken 13 beyond verbal abuse. 14 With respect to Defendants Riverside County and RCSD, the TAC alleges 15 that such Defendants have the “practice” of deputies sexually harassing and 16 humiliating detainees, stripping detainees naked and degrading them, monitoring 17 detainees on camera naked and humiliating them, and sexually harassing detainees 18 in safety cells. (TAC 20.) However, Defendants Riverside County and RCSD 19 cannot be vicariously liable for their deputies’ actions, see Monell, 436 U.S. at 690– 20 91, and these allegations are not sufficient to plead the existence of a custom or 21 policy. See Iqbal, 556 U.S. at 678; see also supra Section IV.B (detailing the 22 requirements to allege a policy, custom, or practice). Moreover, even if the 23 allegations of sexual harassment and humiliation were sufficient to plead the 24 existence of a custom or policy—which they do not—they do rise to the level of 25 shocking the conscience. 26 For these reasons, the TAC does not state a Fourteenth Amendment bodily 27 integrity claim. If Plaintiff asserts a Fourteenth Amendment bodily integrity claim 28 in any amended complaint, he must correct these deficiencies or risk its dismissal. 1 I. Fourteenth Amendment Right to Bodily Privacy 2 “[T]he Fourteenth Amendment protects a sphere of privacy, and the most 3 ‘basic subject of privacy . . . the naked body.’” Vazquez, 949 F.3d at 1165 4 (alteration in original) (quoting Hydrick v. Hunter, 500 F.3d 978, 1000 (9th Cir. 5 2007)). “[P]risoners retain a limited right to bodily privacy,” and pretrial detainees 6 have “at least the same right to bodily privacy as a prisoner.” Byrd v. Maricopa 7 Cnty. Bd. of Supervisors, 845 F.3d 919, 923 (9th Cir. 2017) (citations omitted). 8 “[C]asual, restricted, and obscured viewing of a prison inmate’s naked body is 9 constitutionally permitted if it is justified by legitimate government interests such as 10 prison security needs.” Ioane v. Hodges, 939 F.3d 945, 957 (9th Cir. 2019) 11 (discussing Grummett v. Rushen, 779 F.2d 491, 492, 494–95 (9th Cir. 1985)); see 12 also Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988) (holding that right 13 to bodily privacy was not violated because female officers did not “regularly or 14 frequently observe unclothed inmates without a legitimate reason for doing so”; 15 specifically, (1) female guards observing male prisoner body cavity searches from a 16 control booth that provided limited view of the searches was reasonable because the 17 female guards were “not routinely present for strip searches” and observation from 18 video monitors “would provide at most an indistinct, limited view” and (2) female 19 guards conducting male prisoner shower duty was reasonable where evidence did 20 not establish an inappropriate amount of contact with disrobed prisoners). 21 Conversely, the right to bodily privacy may be violated if, for example, the viewing 22 of an inmate’s naked body while showering and/or using the toilet is “frequent[]” 23 and “up close” or “neither obscured nor distant.” Maricopa Cnty. Bd. of 24 Supervisors, 845 F.3d at 922–24. 25 Here, the TAC alleges that Defendants Riverside County and RCSD have the 26 following practices: (1) deputies choose the detainees they want to strip naked and 27 sexually degrade; (2) deputies monitor detainees on camera naked and sexually 28 humiliate them; (3) female deputies sexually harass and humiliate male detainees in 1 safety cells; (4) deputies will use as much force as necessary to strip a detainee 2 naked; and (5) deputies will force mentally unstable detainees to strip naked and 3 sexually degrade themselves. (TAC 20–21.) The TAC also alleges that on 4 approximately January 18, 2019 at CBDC Jail; January 25, 2019 at SCF Jail; and 5 February 19, 2020 at RPDC Jail, Defendants RCSD and Riverside County exercised 6 policies and practices where Plaintiff was forced naked into a safety cell for 7 approximately three days on each occasion. (Id. at 22.) Each time, female and male 8 deputies sexually humiliated and degraded Plaintiff due to his nakedness, and 9 deputies made sexual comments to Plaintiff while Plaintiff was using the restroom 10 and eating his food naked. (Id.) 11 These allegations fail to state a Fourteenth Amendment bodily privacy claim 12 against Defendants Riverside County and RCSD for the following reasons. First, 13 Defendants Riverside County and RCSD cannot be vicariously liable for their 14 employees’ acts. See Monell, 436 U.S. at 690–91. If Plaintiff wishes to assert a 15 Fourteenth Amendment bodily privacy claim against any of the deputies—for 16 example, the deputies who viewed his naked body while he was using the restroom, 17 or the deputies who monitored Plaintiff’s naked body—he should name the specific 18 deputies and allege the specific acts by each individual deputy. If Plaintiff does not 19 know the officers’ names, he may designate them as numbered Doe Defendants— 20 i.e., Doe Defendant 1, Doe Defendant 2, etc.—until their identity is discovered. 21 Second, the TAC does not sufficiently allege that these actions were the result of 22 policies or practices, and therefore can be attributed to Defendants Riverside County 23 and RCSD. See Connick, 563 U.S. at 61 (“Official municipal policy includes the 24 decisions of a government’s lawmakers, the acts of its policymaking officials, and 25 practices so persistent and widespread as to practically have the force of law.”); see 26 also supra Section IV.B (detailing the requirements to state a claim against local 27 government entities such as Defendants Riverside County and RCSD). Third, even 28 if the TAC properly asserted a policy, custom, or practice, the TAC does not contain 1 sufficient detail to demonstrate that the viewing of detainees’ and Plaintiff’s naked 2 body was “frequent,” “up close” and “neither obscured nor distant,” and therefore 3 potentially violated the Fourteenth Amendment. See Maricopa Cnty. Bd. of 4 Supervisors, 845 F.3d at 922–24. If the viewing of Plaintiff’s naked body was 5 “casual,” “restricted,” or “obscured,” it would not violate the Fourteenth 6 Amendment if it is justified by legitimate government interests such as prison 7 security needs. See Ioane, 939 F.3d at 957. 8 For these reasons, the TAC fails to state a Fourteenth Amendment bodily 9 privacy claim. If Plaintiff asserts a Fourteenth Amendment bodily privacy claim in 10 any amended complaint, he must correct these deficiencies or risk its dismissal. 11 12 J. Fourth Amendment Protection Against Unreasonable Searches 13 The Fourth Amendment guarantees “the right of the people to be secure . . . 14 against unreasonable searches and seizures.” U.S. Const. amend. IV. “Whether a 15 search is reasonable under the Fourth Amendment requires a case-by-case 16 ‘balancing of the need for the particular search against the invasion of personal 17 rights that the search entails . . . .’” Byrd v. Maricopa Cnty. Sheriff’s Dep’t, 629 18 F.3d 1135, 1141 (9th Cir. 2011) (quoting Bell, 441 U.S. at 559). “The required 19 factors for courts to consider include: (1) the scope of the particular intrusion, (2) the 20 manner in which it is conducted, (3) the justification for initiating it, and (4) the 21 place in which it is conducted.” Id. (internal quotation marks omitted). 22 The Supreme Court has stated that “[m]aintaining safety and order” at 23 detention centers “requires the expertise of correctional officials, who must have 24 substantial discretion to devise reasonable solutions to the problems they face.” 25 Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 326 (2012). Thus, 26 “correctional officials must be permitted to devise reasonable search policies to 27 detect and deter the possession of contraband in their facilities,” and such a policy 28 “must be upheld ‘if it is reasonably related to legitimate penological interests.’” Id. 1 at 326, 328 (quoting Turner, 482 U.S. at 89). Specifically with respect to strip 2 searches of pretrial detainees, the Supreme Court has held that “in the absence of 3 substantial evidence in the record to indicate that the officials have exaggerated their 4 response to [legitimate security interests] courts should ordinarily defer to their 5 expert judgment in such matters.” Id. at 328 (quoting Block v. Rutherford, 468 U.S. 6 576, 584–85 (1982)). However, the Ninth Circuit has concluded that deference to 7 jail officials is unwarranted where search methods are unreasonable. See Shorter v. 8 Baca, 895 F.3d 1176, 1189 (9th Cir. 2018) (concluding that search procedures— 9 which required mentally ill inmates to be shackled and unclothed, without food, 10 water, or access to a toilet for hours at a time—were not entitled to deference). The 11 Ninth Circuit also has held that strip search procedures that are “excessive, 12 vindictive, harassing, or unrelated to any legitimate penological interest” may violate 13 the Fourth Amendment. Michenfelder, 860 F.2d at 332; see also Maricopa Cnty. 14 Sheriff’s Dep’t, 629 F.3d at 1142 (holding that a cross-gender strip search was 15 unreasonable as a matter of law where there was no emergency and female officer 16 touched pretrial detainee’s inner and outer thighs, buttocks, and genitals). 17 Here, the TAC alleges that Defendants RCSD and Riverside County have the 18 practice of allowing deputies to do strip searches on pretrial detainees, that deputies 19 will use as much force as necessary to strip search detainees, and that deputies will 20 “sexually degrade” detainees during the strip searches. (TAC 20–21.) These 21 allegations fail to state a Fourth Amendment claim against Defendants RCSD and 22 Riverside County because there are no allegations by which the deputies’ actions can 23 be attributed to Defendants RCSD and Riverside County’s policies and practices. 24 See Connick, 563 U.S. at 61 (“Official municipal policy includes the decisions of a 25 government’s lawmakers, the acts of its policymaking officials, and practices so 26 persistent and widespread as to practically have the force of law.”). Further, even if 27 the TAC had sufficiently pled a policy or practice, the allegations of the strip 28 procedures are scant and do not lead to the reasonable inference that they were either 1 an exaggerated response to legitimate security needs, Florence, 566 U.S. at 328, or 2 “excessive, vindictive, harassing, or unrelated to any legitimate penological 3 interest,” Michenfelder, 860 F.2d at 332, and therefore violate the Fourth 4 Amendment. 5 For these reasons, the TAC fails to state a Fourth Amendment unreasonable 6 search claim. If Plaintiff asserts a Fourth Amendment unreasonable search claim in 7 any amended complaint, he must correct these deficiencies or risk its dismissal. 8 9 V. CONCLUSION 10 For the reasons stated above, the Court DISMISSES the TAC WITH 11 LEAVE TO AMEND. Plaintiff may have another opportunity to amend and cure 12 the deficiencies given his pro se status. Plaintiff is ORDERED to, within thirty 13 days after the date of this Order, either: (1) file a 4AC, or (2) advise the Court that 14 Plaintiff does not intend to pursue this lawsuit further and will not file a 4AC. 15 The 4AC must cure the pleading defects discussed above and shall be 16 complete in itself without reference to the TAC. See L.R. 15-2 (“Every amended 17 pleading filed as a matter of right or allowed by order of the Court shall be complete 18 including exhibits. The amended pleading shall not refer to the prior, superseding 19 pleading.”). This means that Plaintiff must allege and plead any viable claims in the 20 4AC again. Plaintiff shall not include new Defendants or new allegations that are 21 not reasonably related to the claims asserted in the TAC. If Plaintiff would like the 22 Court to order the 4AC to be served, Plaintiff may choose to limit the 4AC to 23 the allegations and claims the Court has concluded are adequately stated 24 (Plaintiff’s religion claims in Claims 1–3). 25 In any amended complaint, Plaintiff should confine his allegations to those 26 operative facts supporting each of his claims. Plaintiff is advised that pursuant to 27 Rule 8, all that is required is a “short and plain statement of the claim showing that 28 the pleader is entitled to relief.” Plaintiff strongly is encouraged to utilize the 1 standard civil rights complaint form when filing any amended complaint, a 2 copy of which is attached. In any amended complaint, Plaintiff should identify the 3 nature of each separate legal claim and make clear what specific factual allegations 4 support each of his separate claims. Plaintiff should clearly specify which claims 5 are being asserted against which specific Defendant. Plaintiff strongly is 6 encouraged to keep his statements concise and to omit irrelevant details. It is not 7 necessary for Plaintiff to cite case law, include legal argument, or attach exhibits at 8 this stage of the litigation. Plaintiff also is advised to omit any claims for which he 9 lacks a sufficient factual basis. 10 The Court explicitly cautions Plaintiff that failure to timely file a 4AC, or 11 timely advise the Court that Plaintiff does not intend to file a 4AC, will result in 12 a recommendation that this action be dismissed for failure to prosecute and/or 13 failure to comply with court orders pursuant to Federal Rule of Civil Procedure 14 41(b). 15 Plaintiff is not required to file an amended complaint. Instead, Plaintiff may 16 request voluntary dismissal of the action pursuant to Federal Rule of Civil Procedure 17 41(a). A Notice of Dismissal form is attached for Plaintiff’s convenience. 18 Plaintiff is advised that this Court’s determination herein that the allegations 19 in the TAC are insufficient to state a particular claim should not be seen as 20 dispositive of the claim. Accordingly, although the undersigned Magistrate Judge 21 believes Plaintiff has failed to plead sufficient factual matter in the pleading, 22 accepted as true, to state a claim for relief that is plausible on its face, Plaintiff is not 23 required to omit any claim or Defendant in order to pursue this action. However, if 24 Plaintiff decides to pursue a claim in an amended complaint that the undersigned 25 previously found to be insufficient, then pursuant to 28 U.S.C. § 636, the 26 undersigned ultimately may submit to the assigned District Judge a recommendation 27 that such claim may be dismissed with prejudice for failure to state a claim, subject 28 /// 1 || to Plaintiffs right at that time to file objections. See Fed. R. Civ. P. 72(b); C.D. Cal 2 || L.R. 72-3. 3 4 || DATED: October 22, 2020 yet os — 5 ARIA A. AUDERO UNITED STATES MAGISTRATE JUDGE 6 7 || Attachments 8 || Form Civil Rights Complaint (CV-66) 9 || Form Notice of Dismissal 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31