Greer v. County of San Diego

• Court: District Court, S.D. California
• Decided: October 24, 2019
• Docket: 3:19-cv-00378
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 FRANKIE GREER, Case No.: 3:19-CV-0378-GPC-AGS

11 Plaintiff, ORDER: 12 v. (1) DENYING IN PART AND GRANTING IN PART 13 COUNTY OF SAN DIEGO, WILLIAM DEFENDANTS’ MOTION TO GORE, in his individual capacity, 14 DISMISS; and ALFRED JOSHUA, in his individual

15 capacity, BARBARA LEE, in her (2) DENYING IN PART AND individual capacity, and DOES 1–100 16 GRANTING IN PART Defendants. DEFENDANTS MOTION TO 17 STRIKE 18 [ECF No. 9] 19

20 Frankie Greer (“Plaintiff”) has sued the County of San Diego (“County”), Sheriff 21 William Gore of San Diego County (“Gore”), Medical Director for the San Diego 22 Sheriff’s Department Alfred Joshua (“Joshua”), Medical Administrator for the San Diego 23 Sheriff’s Department Barbara Lee (“Lee”), and unknown Doe defendants working for the 24 San Diego County Sheriff’s Department (collectively “Defendants”) for injuries suffered 25 after falling from a top bunk onto a county jail concrete floor. Plaintiff alleges claims for 26 violations of his civil rights, common law negligence, violations of the American 27 Disabilities Act (“ADA”), and violations of 29 U.S.C. § 794(a) (“Rehabilitation Act”). 28 1 ECF No. 1. On June 10, 2019, Defendants filed a motion to dismiss and a motion to 2 strike paragraphs 56, 60–91, 94–107, 164–66, 192–193, 195, 206, 211–216, 218–226, 3 231, 250, and 251 from Plaintiff’s complaint. ECF No. 9. The parties have fully briefed 4 this motion. ECF Nos. 9-1, 13, 14. For the reasons below, Defendants’ motion to 5 dismiss is DENIED in part and GRANTED in part, ECF No. 14, and the Defendant’s 6 motion to strike is DENIED in part and GRANTED in part. Id. Plaintiff is granted 7 leave to amend his ADA and Rehabilitation Act claims. 8 I. Background 9 A. Factual Background 10 The instant litigation concerns events following the arrest and booking of Plaintiff 11 into the San Diego Central Jail (“the Jail”) on January 31, 2018. ECF No. 1 at 2. 12 Plaintiff is a U.S. Army veteran who was treated at a VA hospital for seizures and 13 prescribed Levetiracetam to prevent his seizures. Id. After his arrest, Plaintiff informed 14 the intake nurses he suffered from chronic seizures and required medicine that was in his 15 pants. Id. He also asked the jail to assign him a lower bunk, as Plaintiff feared he could 16 fall off a top bunk during a seizure. Id. at 6. The medical staff failed to provide Plaintiff 17 with his Levetiracetam, but they did notate his need for a lower bunk in his paperwork. 18 Id. However, the medical staff failed to place the order for the lower bunk in the Jail 19 Information Management System (“JIMS”), and thus the jail staff assigned Plaintiff a top 20 bunk. Id. After he was assigned a top bunk, Plaintiff asked the jail staff for a lower bed 21 and reported he had previously fallen off from a bed due to a seizure. Id. Without the 22 alert in JIMS, the deputy directed Plaintiff to the top bunk because all other beds were 23 taken. Id. 24 On February 1, 2018, Plaintiff suffered a seizure while on his top bunk and fell off 25 the bed. His head hit the concrete floor and he was rendered unconscious. Id. Cellmates 26 attempted to alert jail staff of Plaintiff’s fall through a cell intercom. Id. However, 27 because the intercom was silenced, his cellmates were unable to contact the deputies. The 28 silent intercom was against jail policy. Id. at 7. The cellmates began yelling, “man 1 down,” but the jail staff did not respond. Id. Fifteen minutes after Plaintiff’s fall, jail 2 staff conducting regular checks found Plaintiff and called for medical assistance. Id. 3 Nurse staff arrived six minutes later, and paramedics arrived approximately nine minutes 4 after the nurses. Id. Hospital records reveal Plaintiff facial fractures, brain bleed, and 5 respiratory failure. Id. at 3. 6 In addition, the jail failed to immediately alert Plaintiff’s next of kin about his 7 injury due to a failure to properly document Plaintiff’s next of kin. Id. at 7. A nurse at 8 the University of California, San Diego turned to social media to find Plaintiff’s family 9 and make contact them. For weeks, Plaintiff remained in a coma. Id. When he regained 10 consciousness, he could not recognize family and had suffered significant brain injury. 11 Id. at 7.1 12 B. Procedural Background 13 On February 25, 2019, Plaintiff filed his complaint alleging Defendants were 14 deliberately indifferent to his medical needs in violation of 42 U.S.C. § 1983, had failed 15 to train their subordinates, had failed to supervise and discipline employees, had failed to 16 investigate serious institutional failures, and had committed Monell violations. Id. at 1. 17 Plaintiff further alleged common law negligence, violations of 42 U.S.C. § 12101 18 (“ADA”) and 29 U.S.C. § 794(a) (“Rehabilitation Act”). Id. 19 On June 10, 2019, Defendants filed their motion to dismiss claiming Plaintiff 20 failed to state a claim on which relief can be granted as to the individual Defendants; 21 failed to allege sufficient facts to support any § 1983, negligence, ADA or Rehabilitation 22 Act claims; and that the County is immune to state law claims. ECF No. 9-1. In 23 addition, Defendants moved to strike allegations related to prior lawsuits and litigation 24 involving alleged failures to properly monitor and care for inmates. ECF No. 9. On July 25

26 1 The Court notes that it is unclear from the record whether Mr. Greer is alive as of July 17, 2019. The 27 complaint references Mr. Greer as to continuing to suffer from his injuries, while also calling him the “decedent” and mentioning his death. See ECF No. 1 at 21, 23. Defendants also references Plaintiff’s 28 1 5, 2019, Plaintiff filed his response to the motion to dismiss and the motion to strike. 2 ECF No. 13. On July 12, 2019, Defendants filed their reply in support of the motion to 3 dismiss. ECF No. 14. 4 II. Defendants’ Motion to Dismiss 5 A. Legal Standard for Rule 12(b)(6) 6 A complaint must contain only a “short and plain statement of the claim showing 7 that the pleader is entitled to relief,” FED. R. CIV. P. 8(a)(2), not “detailed factual 8 allegations,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule 9 demands more than unadorned accusations; “sufficient factual matter” must make a claim 10 at least plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A party may thus move to 11 dismiss for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12 12(b)(6). The motion may be granted only if the complaint lacks a “cognizable legal 13 theory” or if its factual allegations do not support a cognizable legal theory. Hartmann v. 14 Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). In making this 15 context-specific evaluation, this court “must presume all factual allegations of the 16 complaint to be true and draw all reasonable inferences in favor of the nonmoving party.” 17 Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). This rule does not apply 18 to “‘a legal conclusion couched as a factual allegation,’” Papasan v. Allain, 478 U.S. 265, 19 286 (1986), nor to “allegations that contradict matters properly subject to judicial notice” 20 or to material attached to or incorporated by reference into the complaint. Sprewell v. 21 Golden State Warriors, 266 F.3d 979, 988–89 (9th Cir. 2001). In addition, Rule 12(b)(6) 22 does not immunize from scrutiny assertions that are “merely conclusory, unwarranted 23 deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 24 F.3d 979, 988 (9th Cir.), opinion amended on denial of reh’g, 275 F.3d 1187 (9th Cir. 25 2001). 26 B. Discussion 27 Defendants have moved to dismiss the complaint in its entirety. First, Defendants 28 move to dismiss Plaintiff’s § 1983 on the basis that the Complaint fails to adequately 1 allege supervisory liability against Gore, Dr. Joshua, and Lee. Specifically, Defendants 2 argue that the § 1983 claims against Gore, Dr. Joshua, and Lee should be dismissed 3 because Plaintiff does not identify facts that suggest personal participation by the 4 individual defendants or a sufficient causal connection between Defendants’ actions and 5 Plaintiff’s injuries. Second, Defendants assert that Plaintiff’s § 1983 claims fail to confer 6 liability on the County of San Diego under Monell. Third, Defendants contend that they 7 are immune from Plaintiff’s state law claim for negligence. Fourth, the Defendants 8 allege that Plaintiff has failed to state a plausible claim for relief under the ADA and the 9 Rehabilitation Act. Fifth, Defendants argue the Plaintiff’s request for declaratory and 10 injunctive relief are moot. And finally, Defendants motion to strike portions of the 11 pleadings that they believe are immaterial, scandalous, and impertinent. The Court will 12 address each of these arguments in turn.2 13 1. Supervisory Liability in § 1983 Claims Against the Individual 14 Defendants 15 “Supervisory liability is imposed against a supervisory official in his individual 16 capacity for his own culpable action or inaction in the training, supervision, or control of 17 his subordinates, for his acquiescence in the constitutional deprivations of which the 18 complaint is made, or for conduct that showed a reckless or callous indifference to the 19 rights of others.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) 20 (internal citations omitted). A supervisor may be liable if he is either (1) personally 21 involved in the constitutional deprivation; or (2) there is a sufficient causal connection 22 between the supervisor’s wrongful conduct and the constitutional violation. Hansen v. 23 Black, 885 F.2d 642, 646 (9th Cir. 1989). For supervisory officials, liability can exist 24

25 26 2 The Court notes that the Complaint is sprawling in its scope and unnecessarily duplicative in its claims against the County. It combines supervisory official claims with Monell Claims in Counts One through 27 Four and does not provide a clear road map on how the case will proceed through trial. Plaintiff’s counsel is directed to file an amended complaint which clearly distinguishes supervisory official claims 28 1 “even without overt personal participation in the offensive act if supervisory officials 2 implement a policy so deficient that the policy itself is a repudiation of constitutional 3 rights and is the moving force of the constitutional violation.” Redman v. County of San 4 Diego, 942 F.d 1435, 1446-47 (9th Cir. 1991) (internal citations omitted). The 5 supervisor’s participation could include his “own culpable action or inaction in the 6 training, supervision, or control of his subordinates, his acquiescence in the constitutional 7 deprivations of which the complaint is made, or conduct that showed a reckless or callous 8 indifference to the rights of others.” Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 9 2011) (internal quotations omitted). To impose this type of supervisory liability, Plaintiff 10 must satisfy two conditions: (1) plead detailed factual allegations that “give fair notice” 11 to the defendant to “enable the opposing party to defend itself effectively”; and (2) plead 12 a theory of liability through these detailed allegations that “must plausibly suggest an 13 entitlement to relief such that it is not unfair to require the opposing party to be subjected 14 to the expense of discovery and continued litigation.” Id. at 1216. 15 Defendants contend that Plaintiff cannot meet these conditions. To impose 16 supervisory liability absent personal participation, Defendants assert that the supervisory 17 official must have known that the policy was so deficient as to be unconstitutional – and 18 then subsequently failed to correct it, resulting in Plaintiff’s injury. ECF No. 9 at 6; 19 Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987). According to Defendants, Plaintiff 20 fails to allege facts that reveal the personal involvement of supervisory officials, a causal 21 connection between the individual defendants’ actions and Plaintiff’s harms, or a policy 22 that constitutes a repudiation of constitutional rights. Further, the Supervisory 23 Defendants contend that the prior instances relied upon by Plaintiff as providing 24 “knowledge” are so dissimilar that they could not have provided notice to the Individual 25 Defendants of the existence of any unconstitutional policy that caused Plaintiff harm. As 26 a result, Defendants aver that Plaintiff’s § 1983 claims for deliberate indifference against 27 the Individual Defendants should be dismissed. 28 1 Plaintiff counters that he has pled ample facts to support his theory of supervisory 2 liability absent personal participation. Specifically, Plaintiff relies on Starr, where the 3 Ninth Circuit held that Los Angeles County Sheriff Baca could be held liable in his 4 individual capacity for unconstitutional conditions of confinement. In Starr, the Ninth 5 Circuit found Sheriff Baca to be on notice of the need to take steps to protect inmates 6 after multiple inmates had been killed or injured as a result of deputies’ misconduct. 652 7 F.3d 1202, 1205-06 (9th Cir. 2011). The Starr court also found plaintiff’s theory of 8 liability plausible in large part because there was “no obvious alternative explanation” for 9 Sheriff Baca’s inaction in the face of his “subordinates’ repeated violations of prisoners’ 10 constitutional rights despite being repeatedly confronted with those violations.” Id. As 11 such, plaintiff had plausibly shown that Baca was deliberately indifferent to the plaintiff’s 12 rights when he “acquiesced” through his inaction to the unconstitutional conduct of his 13 subordinates. Id. (Citations Omitted). 14 In the instant case, Plaintiff alleges § 1983 causes of action against the Individual 15 Defendants based upon their deliberate indifference in (1) failing to properly report and 16 respond to serious medical needs, (2) failing to properly train staff, (3) failing to properly 17 supervise and discipline staff; and (4) failing to properly investigate misconduct. 18 Plaintiff contends that the Supervisory Defendants acquiesced through inaction in 19 unconstitutional conduct where they had notice of (1) a CityBeat series reporting that San 20 Diego County had the highest mortality rate among California’s largest jail systems from 21 2007-2012 with deaths of sixty inmates, ECF No. 13 at 9, (2) examples of the failure to 22 coordinate and share critical medical information among personnel, and other widespread 23 problems, id. at 8-13; (3) the understaffing of the Citizen Law Enforcement Review 24 Board (CLERB) and back up in investigating in-custody deaths, id. at 14; (4) a San Diego 25 Grand Jury report which details problems with the Jail Information Management System 26 (JIMS) and its operation, id. 13-14; (5) an 2018 report from Disability Rights California 27 reviewing suicide deaths from 2014-2016, id. at 15; and (6) statistics which show that 28 falling from the top bunk is the most common injury in prisons, constituting 72% of 1 injuries. Id. In view of these repeated errors, problems and failings, Plaintiff contends 2 that Lee, Joshua, and Sheriff Gore acquiesced in constitutional violations by failing to 3 offer additional training, supervision, policies, or counseling relating to proper medical 4 care, cell checks and the use and operation of the JIMS system. 5 While there is significant factual overlap in the Plaintiff’s claims, he has alleged 6 separate causes of actions based on the failure to implement remedial measures in 7 different areas of jail operation. Accordingly, the Court will address the factual basis for 8 each area of operation. 9 a. Deliberate Indifference to Serious Medical Needs 10 Claims for violations of the right to adequate medical care “brought by pretrial 11 detainees against individual defendants under the Fourteenth Amendment” are evaluated 12 under an objective deliberate indifference standard. Castro v. County of Los Angeles, 833 13 F.3d 1060, 1070 (9th Cir. 2016).3 The elements of a pretrial detainee's medical care 14 claim against an individual defendant under the due process clause of the Fourteenth 15 Amendment are: (i) the defendant made an intentional decision with respect to the 16 conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at 17 substantial risk of suffering serious harm; (iii) the defendant did not take reasonable 18 available measures to abate that risk, even though a reasonable official in the 19 circumstances would have appreciated the high degree of risk involved—making the 20 consequences of the defendant's conduct obvious; and (iv) by not taking such measures, 21 the defendant caused the plaintiff's injuries. Gordon v. Cty. of Orange, 888 F.3d 1118, 22 1125 (9th Cir. 2018), cert. denied sub nom. Cty. of Orange, Cal. v. Gordon, 139 S. Ct. 23 794 (2019). A constitutional violation may take place when the government does not 24 respond to the legitimate medical needs of a detainee whom it has reason to believe 25

26 3 There are “no significant distinction between claims alleging inadequate medical care and those 27 alleging inadequate ‘conditions of confinement.’ Indeed, the medical care a prisoner receives is just as much a ‘condition’ of his confinement as ... the protection he is afforded against other inmates.” Wilson 28 1 suffers from a medical condition requiring medication. See Lolli v. Cty. of Orange, 351 2 F.3d 410, 420 (9th Cir. 2003) 3 Plaintiff claims that the Jail medical staff were required to obtain, input and 4 document full and accurate medical information from inmates. ECF 1 at 17. Medical 5 staff failed to do so and consequently, Mr. Greer did not receive his prescribed 6 Levetiraetam for preventing seizures and was assigned an upper bunk. Id. at 16-17. 7 When he suffered a seizure, Plaintiff fell off the top bunk but was denied timely medical 8 treatment due to a silenced intercom system and delayed cell checks. Id. at 18. Plaintiff 9 alleges that Individual Defendants were aware of numerous failures in inputting and 10 documenting inmate medical information such that remedial measures were required and 11 that the Defendants’ inaction caused Plaintiff’s injuries. 12 Individual Defendants assert that there are no facts that they “participated in or 13 directed the violations” or knew that a “policy was so deficient to be unconstitutional and 14 failed to correct it.” ECF. No. 9-1 at 13. They describe Plaintiff’s allegations regarding 15 their knowledge of injuries due to lack of communication as conclusions that are founded 16 upon prior instances that are so dissimilar that they cannot be the basis for knowledge 17 about an unconstitutional policy. Id. Finally, they argue that Plaintiff has failed to 18 establish a connection between any policy and failure to administer seizure medication. 19 Id. at 14. 20 Plaintiff counters that the facts he has alleged in his complaint plausibly show a 21 pattern of failing to communicate critical medical information regarding inmates which 22 was known by the Defendants and which went unaddressed. As to the pattern of 23 unconstitutional violations, he points to the deaths of: (1) Bernard Victorianne, who died 24 due to a drug overdose after staff failed to input information into the JIMS system; (2) 25 Ronnie Sandoval, who also died of an overdose after nurses failed to communicate his 26 medical condition after a shift change; (3) Ruben Nunez, who died after medical staff 27 failed to input critical medical information into JIMS; (4) Heron Moriarty, who 28 committed suicide after jail personnel ignored 28 phone calls from Moriarty’s wife 1 warning about his mental state; (5) Tommy Tucker, who died after jail officials said they 2 did not know how to access the JIMS system to get vital medical information. In 3 addition, he relies on a CityBeat series reporting a high mortality rate in the San Diego 4 County Jail from 2007-2012; a CLERB letter to the Sheriff’s Department expressing 5 concerns regarding breakdowns in communication during shift changes; the understaffing 6 of the CLERB and its back up in investigating in-custody deaths; and a Grand Jury report 7 identifying problems with the JIMS system. Id. at 10–11.4 8 Defendants seek to distinguish Starr by noting that the Los Angeles jail received 9 several reports, including one from the Department of Justice in 1996, about the assaults 10 that had occurred in the jail, but did nothing to rectify them. Id. at 1209. To be placed on 11 notice, Defendants assert they had to receive and ignore official reports. Under this view, 12 media reports, statistics, and Citizen Law Enforcement Review Board (“CLERB”) reports 13 cited by Plaintiff are not enough to provide adequate notice. ECF No. 14 at 3. 14 The Court rejects the view that only official internal and external reports can 15 provide notice to supervisory officials to support a constitutional violation under 16 supervisory liability. What is important is whether supervisory officials are made aware 17 of problems that require attention by supervisory officials in order to protect the lives of 18 inmates. While notice can be provided in different ways, some of the forms relied upon 19 by Plaintiff are deficient. As to the CityBeat series that reported the mortality rate at San 20 Diego county jails, it does not identify a specific problem or constitutional violation 21 relating to medical care. Meanwhile, with respect to understaffing at the CLERB, there is 22 23 24 4 Plaintiff also relies on a 2018 Disabilities Rights California (“DRC”) report which found that the jail 25 suffered many deficiencies in its clinical and referral evaluation practices. ECF No. 13 at 8. Namely, the DRC found the jails failed to properly handle the intake of inmates, address housing placements, and 26 coordinate communication between the various staffs. Id. at 13. Plaintiff has failed to allege that the 2018 DRC report existed prior to Plaintiff’s February 2018 fall or that the Individual Defendants were 27 aware of the contents of the report before Plaintiff’s fall. Plaintiff also cites CLERB reports that made multiple recommendations to Defendants to make the jail safer, but that they ignored these reports. Id. at 28 1 no indication of how this understaffing was made known to the Individual Defendants 2 and how it is related to a failure to provide medical care. However, as to the five specific 3 incidents identified above, the Grand Jury Report and CLERB letter, these materials 4 provided notice and plausibly support the conclusion that the Supervising Defendants 5 knew or should have known that jail staff did not properly enter information into the 6 JIMS system and did not properly communicate critical medical information to other jail 7 staff as to violate the constitutional rights of inmates. Because there is no obvious 8 alternative explanation for the inaction by the Supervising Defendants, Plaintiff has 9 plausibly alleged acquiescence in an unconstitutional practice, custom or pattern. 10 Plaintiff must also show that the inaction by the Supervising Defendants caused 11 Plaintiff’s injuries. Gordon v. Cty. of Orange, 888 F.3d at 1125. Here, Plaintiff has 12 alleged that jail staff repeatedly failed to input and communicate medical needs of 13 inmates, that the Supervising Defendants were aware of the problem and did nothing, and 14 that the failure to take corrective action led to the denial of adequate medical care to the 15 Plaintiff. These allegations plausibly show a causal connection between the Individual 16 Defendants’ inaction and Plaintiff’s injuries. Consequently, the Court finds Plaintiff has 17 sufficiently alleged a failure to obtain, input and document full and accurate medical 18 information of which the Individual Defendants were aware and which caused Plaintiff 19 harm. 20 b. Failure to Properly Train Under § 1983 21 In his second cause of action, Plaintiff alleges that the Individual Defendants failed 22 to provide adequate and proper training necessary to educate deputies and medical staff 23 as to the constitutional rights of inmates in order to prevent the consistent and systematic 24 failure to provide medical care. ECF 1 at 21-23. Specifically, Plaintiff claims that the 25 Defendants were aware of a widespread pattern and long history of failure to 26 communicate inmate’s critical medical history. Id. The complaint adds that staff either 27 did not know how to use the JIMS system or were failing to document critical 28 information. Id. at 23. In addition, because inmates had been sustaining serious injuries 1 from falling off the top bunk, the Defendants knew that patients suffering from seizure 2 disorders could not be placed on the top bunk for obvious medical reasons. Id. Finally, 3 Plaintiff asserts that corrections staff failed to conduct proper cell checks, lied about cell 4 checks and were unable to perform cell checks due to understaffing. 5 Individual Defendants argues that Plaintiff merely states conclusions but has failed 6 to allege sufficient facts to support a plausible claim for failure to properly train under § 7 1983. ECF 9-1 at 14. Defendants further claim that there is a dearth of specifics as to 8 how the individually named Defendants knew of a pattern and history of a failure to 9 communicate medical history, failure to conduct proper cell checks or improper 10 placement of inmates suffering from seizures on top bunks. Id. Without these details, 11 Defendants argue that Plaintiff cannot show his injuries stemmed from Defendants’ 12 failure to train which Defendants knew or should have known would result in Plaintiff’s 13 injuries from a failure to provide medical care. See Johnson v. Duffy. 588 F.2d 740, 743– 14 744 (9th Cir. 1978) (requisite causal connection established by setting in motion a series 15 of acts by others which the actor knows or reasonably should know would cause others to 16 inflict the constitutional injury). 17 This failure to train cause of action shares a number of allegations with the denial 18 of medical care claim discussed above as it relates to failures to input and communicate 19 critical medical information. Here, as there, the reports and incidents presented by 20 Plaintiff plausibly show that Individual Defendants were placed on notice that their 21 medical and reporting policies produced unconstitutional conditions of confinement 22 which required remedial measures to cure, including the proper training of jail staff on 23 the input and communication of inmate medical information. 24 As to communication of medical information, Defendants assert that Plaintiff has 25 failed to identify any deficiencies that are sufficiently related to his injuries. The Ninth 26 Circuit has observed that “[t]he requisite causal connection can be established not only by 27 some kind of direct personal participation in the deprivation, but also by setting in motion 28 a series of acts by others which the actor knows or reasonably should know would cause 1 others to inflict the constitutional injury.” Johnson v. Duffy, 588 F.2d 740, 743-44 (9th 2 Cir. 1978). Here, Plaintiff has identified repeated failures to properly communicate 3 medical information and emergencies which harmed other inmates. These deficiencies 4 were known or should have been known by the Individual Defendants and the failure to 5 remedy the constitutional violations by providing adequate training plausibly led to 6 Plaintiff’s injuries. 7 As to failures to conduct proper cell checks, Plaintiff’s complaint relies on the 8 deaths of three inmates as placing the Supervising Defendants on notice of the existence 9 of constitutional violations and the need for training: (1) Bernard Victorianne, who died 10 in 2012 due to a drug overdose when staff failed to conduct a proper cell check after an 11 inmate reported Mr. Victorianne was not breathing; (2) Daniel Sisson who died in 2011 12 from an acute asthma attack exacerbated by drug withdrawal after jail staff failed to 13 monitor him in spite of observed signs that he was experiencing withdrawals; (3) 14 Kristopher NeSmith who committed suicide in 2014 after jail staff performed a cell check 15 and observed a bedsheet fashioned into a rope and took no additional steps to protect 16 NeSmith. These three isolated instances over the course of the last eight years relate to 17 the frequency and adequacy of cell checks and are insufficiently numerous or indicative 18 of constitutional violations to provide notice of the need for further training on the 19 conducting of cell checks. 20 Likewise, with respect to the claim that inmates suffering from seizures were 21 assigned top bunks, Plaintiff has failed to provide any prior case where an inmate 22 suffering from seizures had fallen from an upper bunk. Instead, Plaintiff cites one 23 individual, George Bryan, who fell off the top bunk in December 2017 and severely 24 injured himself. The law requires more than one documented case to provide supervising 25 officers with fair notice of ongoing constitutional violations. In addition, Plaintiff cites 26 an unidentified “comprehensive study of emergency room visitors” which identifies 27 falling out of a bunk bed as the most common injury treated in emergency rooms. ECF 28 No. 1 at 7. There is no indication that the study relates to San Diego county jails or that 1 the Defendants were aware of it. Given the inadequate notice of a constitutional 2 violation, the allegations are insufficient to establish a claim for failure to train related to 3 placement of inmates in upper bunks. 4 In sum, Individual Defendants had notice of the need to train their subordinates 5 with respect to adequate medical care, communication of medical conditions and the use 6 of JIMS. Defendant’s inaction in providing training in these areas, like in Starr, 7 plausibly alleges deliberate indifference to Plaintiff’s medical needs through 8 “acquiescence in the constitutional deprivations.” Starr, 652 F.3d 1202, 1205-06 (2011). 9 c. Failure to Properly Supervise and Discipline Under § 1983 10 Plaintiff’s third cause of action alleges that Defendants failed to properly supervise 11 and discipline subordinates as to the need to communicate critical information and need 12 to provide adequate care. ECF No. 1 at 25. Further, he claims that Defendants refused to 13 investigate misconduct and took no remedial steps against deputies and medical staff. Id. 14 According to Plaintiff, Defendants were aware of a long series of wrongful deaths from 15 lack of medical care and that jail staff were improperly monitoring housing units and 16 failing to properly perform cell checks. Id. Thus, Plaintiff concludes that the various 17 named Defendants were on notice that they had failed to properly supervise, discipline, 18 and investigate. 19 Relying on Iqbal, Defendants claim that these allegations are conclusory and lack 20 the factual basis to state a claim. Iqbal, 556 U.S. at 677. In addition, Defendants claim 21 that the Plaintiff relies on examples that are dissimilar from the incident. ECF No. 9-1 at 22 15-16. Further, Defendants assert that the Plaintiff has failed to show that any actions by 23 the individually named Defendants was a “’moving force’” behind any constitutional 24 violation. ECF No. 9-1 at 16. (Internal Citations Omitted). 25 As before, the Court finds that Plaintiff has sufficiently shown that the jail staff 26 committed constitutional violations in the failure to input and communicate critical 27 medical information and that this failure was made known to the individual Defendants 28 and plausibly led to Plaintiff’s injuries. These facts would have placed a reasonable 1 person on notice that improved supervision and proper discipline were required as a 2 response to these constitutional violations. Under the standards set forth in Starr, 3 Plaintiff has successfully alleged enough to support a claim under Rule 12(b)(6) on 4 failure to supervise, and discipline. 5 d. Failure to Investigate 6 As his final § 1983 claim against the Individual Defendants, Plaintiff alleges that 7 Defendant failed to properly investigate misconduct by maintaining a policy of not 8 obtaining accurate and timely reports from witnesses and maintained a de facto policy of 9 allowing investigators to intimidate witnesses and summarize interviews of inmates in a 10 manner to distort the actual recorded statements of witnesses. ECF 1 at 26-27. Plaintiff 11 alleges in an expansive fashion that the Individual Defendants have historically and 12 systematically engaged in a pattern of failing to properly investigate misconduct. Id. at 13 27. Plaintiff points to de facto policies of failing to investigate in-custody deaths, failing 14 to notify CLERB of in-custody deaths and maintaining an ineffective system where 15 Internal Affairs and CLERB are unauthorized to investigate medical staff misconduct. 16 Defendants once again rely on Iqbal to assert that the allegations are conclusory 17 and dissimilar. The Court agrees that many of the allegations are conclusory. More 18 problematic is the failure to tie the alleged failures to investigate with the Plaintiff’s 19 injuries. As a starting point, the Court observes that Plaintiff is not alleging a failure to 20 investigate breakdowns in communicating critical medical information. Instead, Plaintiff 21 alleges in a conclusory fashion that families of inmates were provided limited 22 information regarding the deaths of their loved ones which was part of a pattern of 23 conduct to cover up their misconduct. ECF No. 1 at 27-31. Assuming this is true, any 24 failure to provide information to family members involves the failure to input critical 25 information and not a failure to investigate misconduct. Similarly, there are insufficient 26 allegations which tie the alleged failures to the Plaintiff’s injuries. 27 However, the Court finds that it is possible that Plaintiff can cure these defects so 28 the dismissal of this claim is WITHOUT PREJUDICE. 1 2. Claims Against the County Under Monell and § 1983 for Failure to 2 Train, Supervise, and Discipline 3 Defendants also move to dismiss Plaintiff’s § 1983 claims against the County of 4 San Diego. They claim that the Plaintiff’s first cause of action for indifference to medical 5 needs is duplicative of the Monell claims. In addition, Defendants contend that the other 6 claims § 1983 claims against the County for failure to train, failure to supervise, failure to 7 discipline, and failure to investigate must be dismissed because Plaintiff has not pled 8 adequate facts to demonstrate causation or a pattern of similar constitutional violations. 9 Finally, Defendants argue that the Monell claims lack a sufficient factual basis for 10 municipal liability. The Court will address each of these arguments in turn. 11 a. Duplicity of Plaintiff’s Monell Claim and the § 1983 Claim for 12 Deliberate Indifference Against the County 13 The Defendant County moves to dismiss Plaintiff’s first claim for deliberate 14 indifference to serious medical needs on the ground that it duplicates his Monell claim 15 contained in the fifth cause of action. ECF No. 9-1 at 17. The County points out that 16 both claims are based on the claim that Plaintiff’s injuries were the product of the 17 County’s de facto policies that resulted in a pattern of constitutional violations to 18 detainees which was closely related to the ultimate injuries sustained by Plaintiff. Id. 19 In his opposition papers, Plaintiff fails to address this argument. The Court 20 concurs that both causes of action are predicated upon Monell liability.5 Indeed, Monell 21 liability is the only means that the County can be held liable for the actions of its 22 employees. Count 1 alleges, among other things, a pattern of deliberate indifference to 23 inmates’ serious medical needs while Count 5 includes the same alleged pattern of 24 25 5 The County’s moves to dismiss the first cause of action because it is duplicative of his Monell cause of 26 action. The Court agrees but also observes that this argument applies equally to the second, third and fourth causes of action. These three causes of action are also duplicative of the claims contained in the 27 Monell cause of action. However, in that the County has not challenged these additional claims as duplicative, the Court will not sua sponte dismiss these claims as to the County and will address each 28 1 deliberate indifference to the constitutional rights of pretrial detainees. ECF No. 1 at 31- 2 32. Accordingly, the Court finds that Plaintiff’s first claim against the County is 3 essentially duplicative of his Monell cause of action and will DISMISS the first claim 4 against the County for deliberate indifference to serious medical needs. 5 b. Causation and Pattern of Constitutional Violations in Claims 6 Against the County 7 Next, the County argues that Plaintiff’s second, third, fourth, and fifth claims 8 against it should be dismissed because they lack factual allegations setting forth causation 9 or a pattern of similar constitutional violations. The County submit that under § 1983, a 10 municipality can only be sued directly if the alleged unconstitutional conduct is the result 11 of an official policy, the Monell model – or a pervasive practice, the Canton model – and 12 when the policy or practice was the “moving force” behind the violation. See Canton v. 13 Harris, 489 U.S. 378-390-91 (1989); Brown, 520 U.S. at 404; Trevino v. Gates, 99 F.3d 14 911, 918 (9th Cir. 1996). For cases involving a pervasive practice, the County notes that 15 a plaintiff must prove a pattern of similar constitutional violations from which it can be 16 plausibly shown that the challenged practice or custom was the moving force of the 17 constitutional violation – and that municipal decision makers were on notice. See Brown 18 at 407-08. In this case, Defendants proffer that Plaintiff has not established that the 19 constitutional violations resulted from an official policy under Monell. Defendants also 20 aver that that Plaintiff can show neither a pervasive pattern of constitutional violations 21 similar to the one Mr. Greer experienced nor that a pervasive practice caused the present 22 violations. 23 Plaintiff asserts that the County “deliberately conflates the specific medical harm 24 suffered with the Constitutional violations which caused the harm,” misrepresenting the 25 holding of Brown. ECF No. 13 at 19; see also Brown, 520 U.S. 407-08. Specifically, 26 Plaintiff argues that Brown never equates a “pattern of similar constitutional violation” 27 with “multiple instances of harm.” Id. (Emphasis in original). Rather, Brown, in 28 discussing Canton, 489 U.S. at 390, also reiterates that municipalities may be held liable 1 when “policymakers were aware of, and acquiesced in, a pattern of constitutional 2 violations.” Brown at 407. (Internal citations omitted). Moreover, Plaintiff points out 3 that “municipalities’ “continued adherence to an approach that they know or should know 4 has failed to prevent tortious conduct by employees” can establish the requisite deliberate 5 indifference for imposition of municipal liability. ECF No. 13 at 20; Brown at 407. 6 Thus, Brown “makes clear that the dispositive inquiry is the repeated derivation of a 7 federally-protected right, not the specific harm inflicted by each deprivation.” ECF No. 8 13 at 20. 9 Here, Plaintiff argues that the County violated inmates’ Fourteenth Amendment 10 rights to adequate medical care as a result of the Jail’s failure to communicate critical 11 conditions. This known pervasive practice led to a “pattern of similar constitutional 12 violation” that, although resulting in different harms to different detainees, constituted a 13 de facto policy of deliberate indifference. Plaintiff submits that a common constitutional 14 violation promulgated harms to numerous detainees, including himself. As such, Plaintiff 15 counters that he has established a pervasive pattern of common constitutional violations 16 through the County’s de facto policies and in turn, can confer municipal liability. 17 The Court agrees. To trigger municipal liability under Monell and Brown in the 18 absence of an official policy, Plaintiff must demonstrate a known pattern of similar 19 constitutional violations that resulted from a challenged custom or pervasive practice. In 20 this case, Plaintiff has pled that municipal policymakers were aware of and acquiesced in 21 a pattern of constitutional violations. His Complaint is supported by specific instances of 22 death and injury to inmates due to the denial of needed medical care. These repeated 23 incidences allegedly resulted from Jail staff’s failures to communicate medical needs and 24 coordinate care for inmates’ known medical conditions. In addition, Plaintiff has detailed 25 that injuries resulted on multiple occasions through SDCJ’s failure to train and supervise 26 subordinates with respect to the communication of critical medical information; failure to 27 train and supervise subordinates on the use of JIMS; the failure to render medical care to 28 inmates in dire medical need; and failure to discipline staff on these matters. 1 Because these detailed factual allegations offer a plausible theory of pattern and 2 causation, the Plaintiff’s claims against the County survive a 12(b)(6) motion to dismiss. 3 3. Count 4: Common Law Negligence 4 Defendants also challenge Plaintiff’s negligence cause of action, arguing that the 5 individually named Defendants had no cognizable legal duty towards the Plaintiff and 6 that the County is immune from liability due to California Government Code § 7 844.6(a)(2). 8 a. Individual Defendants’ Duty to Plaintiff 9 California law follows the common law as to the tort of negligence and requires 10 Plaintiff to allege that Defendants had a duty of care, that the duty was breached, that this 11 breach of duty was the cause in fact and the proximate cause of Plaintiff’s harm, and that 12 Plaintiff suffered resulting damages. See Ladd v. Cty. of San Mateo, 12 Cal. 4th 913, 917 13 (1996). 14 Individual Defendants claim that Plaintiff failed to allege that they owed him a 15 duty of care. Based upon their reading of the complaint, Defendants argue that the only 16 identified duty of care owed by the three individual Defendants are based upon the ADA 17 and Rehabilitation Act which only place a duty on municipalities, not on individuals. 18 ECF No. 9-1 at 24. Plaintiff does not respond to this argument and, accordingly, the 19 Court GRANTS the Individual Defendants’ motion to dismiss a negligence claim 20 premised upon a duty arising out of the ADA and Rehabilitation Act. Because it is 21 possible that Plaintiff might overcome the defects detailed herein, dismissal is 22 WITHOUT PREJUDICE. 23 However, a fair reading of the complaint discloses more than an alleged duty 24 arising out of the ADA and Rehabilitation Act. Plaintiff also claims that Defendants had 25 a duty to act with ordinary care and prudence so as not to cause harm or injury to others. 26 Because pretrial detainees are nearly completely dependent on the jail’s staff and 27 administration and have limited ability to shield themselves from harm and risk, it is 28 necessarily incumbent on jail staff to ensure proper medical care of prisoners. Plaintiff 1 alleges that Defendants negligently failed to properly document his serious medical 2 condition, failed to communicate the need to monitor, failed to provide any medical care 3 for a serious condition and failed to respond promptly to calls for medical care following 4 Plaintiff’s fall. ECF 1 at 33. Defendants do not address this duty of care in their motion 5 to dismiss. As such, the motion to dismiss is DENIED as to a duty to care owed to 6 pretrial detainees. 7 b. County’s Claim of Immunity Under Government Code § 8 844.6(a)(2) and § 845.2 9 Next, Defendants claim that under California Government Code § 844.6(a)(2) and 10 § 845.2 they are immune from liability. Government Code section 844.6(a)(2) is part of 11 the California Tort Claims Act (Gov. Code, § 810 et seq.). The Tort Claims Act provides 12 that “[e]xcept as otherwise provided by statute,” “[a] public entity is not liable for an 13 injury.” (Gov. Code, § 815.) (2) “[T]he intent of the [Tort Claims Act] is not to expand 14 the rights of plaintiffs in suits against governmental entities, but to confine potential 15 governmental liability to rigidly delineated circumstances ....” Brown v. Poway Unified 16 School Dist. (1993) 4 Cal.4th 820, 829. California Government Code § 844.6(a)(2) 17 states: “a public entity is not liable for . . . (2) An injury to any prisoner.” Citing the 18 California Supreme Court, Defendants argue that the County is immune from suit based 19 on the tort of negligence. See Teter v. City of Newport Beach, 30 Cal. 4th 446, 448–49 20 (2003) (holding that municipalities are immune from suit based on injuries done to 21 prisoners except for explicitly enumerated exceptions such as § 845.6). 22 California Government Code § 845.2 provides, “neither a public entity nor a public 23 employee is liable for . . . failure to provide sufficient equipment, personnel, or facilities.” 24 Defendants argue that to the extent that Plaintiff’s claim is based upon the inadequacy of 25 jail staffing and facilities, his claims are barred. The Court agrees that § 845.2 provides 26 immunity under the stated circumstances. However, it is plain that Plaintiff’s claims go 27 beyond the inadequacy of jail staffing and inadequate facilities. Consequently, 28 1 Defendants cannot show that they are entitled to immunity as to all of the claimed 2 negligent acts alleged. 3 As to Defendant’s § 844.6 defense, Plaintiff counters by citing California 4 Government Code § 845.6, which states that an employee and public entity “is liable if 5 the employee knows or has reason to know that the prisoner is in need of immediate 6 medical care and fails to take reasonable action to summon such medical care.” To 7 bolster his argument, Plaintiff refers to Lucas v. Cty. Of Los Angeles, where the 8 California Appellate Court found that “reason to know” is an objective standard that 9 should be left to the finder of fact to determine liability. 47 Cal. App. 4th 277, 288 10 (1996). “Section 845.6 places the burden on the governmental entity, not the individual. 11 It is as special statute which creates liability . . . a special burden to be borne by public 12 entities under limited circumstances.” Zeilman v. Cty. of Kern, 168 Cal. App. 3d 1174, 13 1186 (1985) (Citations Omitted). Thus, Plaintiff concludes that his claim falls into one of 14 the specifically enumerated exemptions put forth by the California Supreme Court, and 15 that the extent of Plaintiff’s damages that were caused by Defendants alleged delayed 16 response to his injury is a matter of fact for the jury. 17 Here, at least in part, Plaintiff’s negligence claim falls under a specifically 18 enumerated exemption that confers municipal liability. Although the County may not be 19 liable under California law for negligence as to every event or failure to act leading up to 20 Plaintiff’s seizure and fall from his bed, the County may be held liable for any harm 21 caused by their delayed response to his fall and resulting injuries. Plaintiff has alleged 22 that crucial minutes to provide aid were lost following his fall from his bed because jail 23 staff did not timely respond to his cellmates attempts to communicate with them through 24 a touch screen system where an audio alert was allegedly set to mute. The failure to 25 respond to a touchscreen alert plausibly alleges that the County had a “reason to know” 26 that medical attention was required and leave the County liable for damages under § 27 845.6. It is not for the Court to decide, as Defendants ask in their reply, whether jail staff 28 actually had “reason to know” Plaintiff had fallen from his bed and had been critically 1 injured. A motion to dismiss tests the plausibility of a claim and, here, Plaintiff has 2 sufficiently alleged a delayed response to his injury which caused him harm and 3 establishes liability under California Code § 845.6. 4 4. Merits of the ADA and Rehabilitation Act Claims 5 Defendants argue Plaintiff has failed to allege the facts necessary to state ADA or 6 Rehabilitation Act (“RA”) claims. The Ninth Circuit has found, 7 To state a claim under Title II of the ADA, the plaintiff must allege: (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive 8 the benefit of some public entity’s services, programs, or activities; (3) he was 9 either excluded from participation in or denied the benefits of the public entity’s services, programs, or activities or was otherwise discriminated against by the 10 public entity’s services; (4) such exclusion, denial of benefits, or discrimination 11 was by reason of disability. Simmons v. Navajo City, Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010). 12

13 Here, Defendants assert Plaintiff’s complaint fails to adequately allege that Plaintiff was 14 denied the benefit of government services “by reason of his disability.” Specifically, 15 Defendants challenge Plaintiff’s claims by asserting that a seizure disorder does not 16 render a person disabled under the ADA and RA. In addition, Defendants allege that Mr. 17 Greer has failed to plead facts to satisfy the third element of the ADA – that Plaintiff was 18 either excluded from participation in, or denied the benefits of, the Central Jail’s services, 19 programs, or activities, or otherwise discriminated against by the Central Jail. Without 20 such allegations of discrimination, Defendants argue Plaintiff’s claim fails. 21 Plaintiff claims that a seizure disorder qualifies as a physical impairment that 22 would render Mr. Greer disabled. It is established law that a pretrial detainee has a 23 Fourteenth Amendment right to a bed or mattress. Thompson v. Los Angeles, 885 F.2d 24 1439, 1448 (9th Cir. 1989), abrogated on other grounds by Bull v. City & County of San 25 Francisco, 595 F.3d 964, 981 (9th Cir. 2010). Due to chronic seizures, Mr. Greer 26 required a bottom bunk due to enjoy the benefit of the bed. Plaintiff surmises that the Jail 27 staff’s decision to deny him a bottom bunk was deliberate, since Mr. Greer was placed in 28 a top bunk even after he requested accommodation. As such, jail staff’s failure to 1 accommodate Plaintiff despite his request thus demonstrates the requisite discrimination 2 “by reason of disability.” 3 The Ninth Circuit has held that a plaintiff must “prove that the alleged exclusion 4 from participation . . . was ‘solely by reason of disability.’” Weinreich v. Los Angeles 5 Cty. Metro. Transp. Auth., 114 F.3d 976, 978–79 (1997). Other districts in California 6 have similarly applied the Ninth Circuit’s rule to prison ADA and Rehabilitation Act 7 cases. See e.g. Arreola v. Cal. Dep’t of Corr. & Rehab., Case No. 16-cv-03133-JD, 2017 8 WL 1196802 (N.D. Cal. Mar. 31, 2017) (granting judgment on the pleadings in favor of 9 the Defendants on a prisoners’ ADA claim when he failed to allege that the prison had 10 discriminated against him solely on the basis of disability). Moreover, courts have found 11 that a seizure disorder alone may not be enough to qualify as disability under the ADA. 12 See Ramos-Echevarria v. Plc/us, Inc., 698 F. Supp. 2d 262, 270 (D.P.R. 2010) (aff’d 659 13 8 F.3d 182 (1st Cir. 2011); see also White v. Sears, Roebuck & Co., 2009 WL 1140434 14 (E.D.N.Y. Apr. 27, 2009) (finding that an individual is not “disabled” under the ADA 15 simply upon diagnosis of a seizure disorder). Instead, “a ‘disability’ exists only when an 16 impairment ‘substantially limits’ a major life activity, not where it ‘might,’ ‘could,’ or 17 ‘would’ be substantially limiting if impairment is corrected by medication or other 18 measures does not have an impairment that presently ‘substantially limits’ a major life 19 activity. To be sure, a person whose physical or mental impairment is corrected by 20 mitigating measures still has an impairment, but if the impairment is corrected it does not 21 ‘substantially limi[t] ‘ a major life activity.” Sutton v. United Airlines, Inc., 527 U.S. 22 471, 482-83 (1999). 23 It is unclear through Plaintiff’s Complaint whether Mr. Greer is a disabled person 24 under the ADA or Rehabilitation Act. As pled, Plaintiff does not indicate that that his 25 seizure disorder “substantially limits” any major life activity. The Complaint provides 26 factual assertions that indicate Plaintiff’s seizure disorder may prevent him from certain 27 activities, such as sleeping in a top bunk without medication. But there is no suggestion 28 1 that Plaintiff was unable to physically access – or sleep in – the top bunk or that his 2 impairment could not be corrected by mitigating measures, such as his medication. 3 In addition, Plaintiff’s Complaint specifically mentions that jail staff placed him 4 into a top bunk because there were no more beds available. ECF No. 1 at 6. Plaintiff 5 notably does not offer any allegation that the decision to put him in a top bunk had 6 anything to do with any other factors other than indifference coupled with availability. 7 This allegation does not sufficiently establish that Defendants denial of Plaintiff’s request 8 was “by way of [his] disability.” Simmons at 1021. In fact, the Complaint suggests that 9 Plaintiff was not given a bottom bunk due to a disability, but rather because the 10 corrections staff did not have knowledge of his special housing requirement. As such, 11 Plaintiff has not provided sufficient facts for the claim that he was treated differently or 12 excluded from a benefit on the basis of discriminatory animus. 13 Accordingly, the Court GRANTS this portion of Defendant’s motion to dismiss 14 Plaintiff’s ADA and RA claims. Since it is possible that Plaintiff might overcome the 15 defects detailed herein, dismissal is WITHOUT PREJUDICE. 16 5. Motion to Dismiss Plaintiff’s Request of Declaratory and 17 Injunctive Relief 18 Defendants move to dismiss Plaintiff’s motion for declaratory and injunctive relief 19 because they are moot. Since Plaintiff is no longer in their custody and the damage done 20 to Plaintiff cannot be undone, Defendants argue that declaratory and injunctive relief 21 would have no impact on Plaintiff’s claims and are thus moot. Plaintiff does not offer an 22 explanation in his response as to why he requested the relief, nor how it would affect his 23 claim. Thus, the Court will GRANT Defendants’ motion to dismiss Plaintiff’s request 24 for declaratory and injunctive relief. 25 6. Motion to Strike 26 The final issue before the Court is Defendant’s motion to strike paragraphs 56, 60– 27 91, 94–107, 164–66, 192–193, 195, 206, 211–216, 218–226, 231, 250, and 251 of 28 Plaintiff’s complaint. Defendants claim that the Court should strike the material as it is 1 immaterial, scandalous, and impertinent as per the Federal Rules of Civil Procedure 2 12(f). 3 Upon motion by a party, the Court may strike “any insufficient defense or any 4 redundant, immaterial, impertinent, or scandalous matter” from any pleading. Fed. R. 5 Civ. P. 12(f). “‘Immaterial’ matter is that which has no essential or important relationship 6 to the claim for relief or the defenses being pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 7 1524, 1527 (9th Cir. 1993) (citation omitted), rev'd on other grounds, Fogerty v. Fantasy, 8 Inc., 510 U.S. 517 (1994). “Impertinent” matter includes “statements that do not pertain, 9 and are not necessary, to the issues in question.” Id. 10 “Motions to strike are generally regarded with disfavor because of the limited 11 importance of pleading in federal practice, and because they are often used as a delaying 12 tactic.” Neilson v. Union Bank of Cal., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003). 13 A Rule 12(f) motion should only be granted when it is “clear that [a matter] can have no 14 possible bearing on the subject matter of the litigation.” Ill. Nat'l Ins. Co. v. Nordic PCL 15 Constr., Inc., 870 F. Supp. 2d 1015, 1039 (D. Haw. 2012). A court may not resolve any 16 disputed or substantial factual or legal issues. Whittlestone, Inc. v. Handi-Craft Co., 618 17 F.3d 970, 973 (9th Cir. 2010). If there is any doubt whether the allegations might bear on 18 an issue in the litigation, the court should deny the motion. In re 2TheMart.com, Inc. Sec. 19 Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000). Ultimately, the decision whether to 20 grant a Rule 12(f) motion is in the district court’s discretion. Cortina v. Goya Foods, 21 Inc., 94 F. Supp. 3d 1174, 1182 (S.D. Cal. 2015). 22 Defendants argue that the other incidents at the prison, the statistics cited by 23 Plaintiff, and the various press releases are all completely unrelated to Plaintiff’s case and 24 are used to prejudice the Court against the Defendants. Plaintiff argues that these sources 25 are necessary in order to plead the facts required of a Monell claim. 26 In this case, Plaintiff substantially relies on the external sources in the Complaint 27 to demonstrate that all incidents plausibly stem from the same constitutional deprivation. 28 1 || Here, Plaintiff’s complaint hinges on showing a pattern of misconduct of which the 2 || County and individually named Defendants had notice. While a number of allegations 3 || are conclusory and are insufficient to support a number of claims at this stage, the Court 4 || does not find that it is “clear that [the allegations] can have no possible bearing on the 5 || subject matter of the litigation.” Thus, the Court DENIES Defendant’s motion to strike 6 || with one exception. The Court will STRIKE paragraphs 219 and 220 as they discuss a 7 || deputy’s domestic dispute which ultimately led to the County terminating his 8 |}employment. These paragraphs are of the scandalous and prejudicial nature that Rule 9 || 12(f) was designed to eliminate. 10 HI. Conclusion 11 For the reasons enumerated above in this order, Defendants’ motion to dismiss is: 12 ¢ GRANTED WITH PREJUDICE as to Plaintiff's First Claim for deliberate 13 indifference to serious medical needs against the County of San Diego 14 brought under 42 U.S.C. § 1983 15 ¢ GRANTED WITHOUT PREJUDICE as to the ADA claim brought under 16 42 U.S.C. § 12101 et seq. 17 e GRANTED WITHOUT PREJUDICE as to the Rehabilitation Act claim 18 brought under 29 U.S.C. § 794(a). 19 e GRANTED IN PART WITHOUT PREJUDICE and DENIED in part as 20 to Plaintiff's remaining claims brought under 42 U.S.C. § 1983 and common 21 law negligence. 22 In addition, Defendant’s motion to strike is GRANTED in part with respect to 23 Paragraphs 219 and 220 and DENIED as to the remainder. If Plaintiff wishes to file an 24 |! amended complaint, he must do so no later than within 20 days of this order. 25 IT IS SO ORDERED. 26 Dated: October 24, 2019 2 aaho Os 27 Hon. Gonzalo P. Curiel 28 United States District Judge