1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 17-CV-813 JLS (RBM)
12 ORDER: (1) OVERRULING 13 ELLIOT SCOTT GRIZZLE, OBJECTIONS, (2) ADOPTING REPORT AND 14 Plaintiff, RECOMMENDATION, AND 15 v. (3) GRANTING IN PART AND DENYING IN PART THE MOVING 16 COUNTY OF SAN DIEGO, et al., DEFENDANTS’ 17 Defendant. MOTION TO DISMISS
18 (ECF Nos. 93, 97, 99, 100) 19 20 Presently before the Court is a Motion to Dismiss Plaintiff Elliot Scott Grizzle’s 21 Second Amended Complaint filed by Defendants County of San Diego (the “County”), 22 Sheriff William Gore, Lieutenant Lena Lovelace, and Lieutenant Eric Froistad (the 23 “Moving Defendants”) (“Mot.,” ECF No. 93). Also before the Court is Magistrate Judge 24 Ruth Bermudez Montenegro’s Report and Recommendation (“R&R,” ECF No. 97) 25 advising the Court to grant in part and deny in part the Moving Defendants’ Motion, as 26 well as the Moving Defendants’ (“Defs.’ Obj.,” ECF No. 99) and Plaintiff’s (“Pl.’s Obj.,” 27 ECF No. 100) Objections to Magistrate Judge Montenegro’s R&R and Plaintiff’s (“Pl.’s 28 Reply,” ECF No. 101) and the Moving Defendants (“Defs.’ Reply,” ECF No. 102) 1 Replies. Having considered the Parties’ arguments and the law, the Court OVERRULES 2 Plaintiff’s Objections, OVERRULES the Moving Defendants’ Objections, ADOPTS the 3 R&R in its entirety, and GRANTS IN PART AND DENIES IN PART the Moving 4 Defendants’ Motion. 5 BACKGROUND 6 Magistrate Judge Montenegro’s R&R contains a thorough and accurate recitation of 7 the facts and procedural history underlying the instant Motion. See R&R at 2–6. This 8 Order incorporates by reference the background as set forth therein. 9 LEGAL STANDARD 10 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 11 court’s duties in connection with a magistrate judge’s report and recommendation. The 12 district court must “make a de novo determination of those portions of the report or 13 specified proposed findings or recommendations to which objection is made,” and “may 14 accept, reject, or modify, in whole or in part, the findings or recommendations made by the 15 magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 16 673–76 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). In the absence 17 of timely objection, however, the Court “need only satisfy itself that there is no clear error 18 on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72 19 advisory committee’s note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th 20 Cir. 1974)). 21 ANALYSIS 22 Plaintiff’s operative Second Amended Complaint alleges four causes of action 23 against the Moving Defendants for: (1) violation of Plaintiff’s rights under the Due Process 24
25 1 Also pending before the Court is a separate motion to dismiss filed by Defendant Aaron Boorman on 26 April 5, 2019, see ECF No. 98 (the “Boorman Motion”), after Magistrate Judge Montenegro filed her R&R on the Moving Defendants’ Motion on March 7, 2019. See ECF No. 97. Although Magistrate Judge 27 Montenegro has issued a report and recommendation concerning the Boorman Motion, briefing on her 28 report and recommendation does not close until September 6, 2019. See ECF No. 106. Accordingly, the 1 Clause of the Fourteenth Amendment as to his placement in the administrative segregation 2 housing unit (“Ad-Seg”); (2) violation of Plaintiff’s Eighth Amendment rights premised 3 on sleep deprivation resulting from his confinement in Ad-Seg; (3) violation of Plaintiff’s 4 Eighth Amendment rights premised on prevention from exercising; and (4) violation of 5 Plaintiff’s Eighth Amendment Rights premised on Plaintiff being forced to choose between 6 sleep and exercise. See ECF No. 88 (“SAC”) at 15–19. 7 Magistrate Judge Montenegro recommends that the Court deny the Motion as to 8 Plaintiff’s first, see R&R at 7–11, and second, see id. at 11–14, causes of action against the 9 County. Magistrate Judge Montenegro also recommends that the Court terminate without 10 leave to amend Defendant Froistad as to all Plaintiff’s causes of action; terminate 11 Defendant Lovelace as to Plaintiff’s second, third, and fourth causes of action; and 12 terminated Sheriff Gore as to Plaintiff’s first cause of action. See id. at 14–19, 21–22. 13 Finally, Magistrate judge Montenegro recommends that the Court dismiss without 14 prejudice Plaintiff’s claims for injunctive and declaratory relief. See id. at 19–21. 15 The Moving Defendants object to Magistrate Judge Montenegro’s recommendations 16 concerning Plaintiff’s first and second causes of action and claim that Plaintiff has not 17 stated a viable claim against either the County of Sheriff Gore. See generally ECF No. 99. 18 Plaintiff separately objects to Magistrate Judge Montenegro’s recommendations 19 concerning the termination of individual defendants Froistad, Lovelace, and Gore and 20 dismissal of his claims for declaratory and injunctive relief. The Court reviews de novo 21 those portions of Magistrate Judge Montenegro’s R&R to which the Parties object and 22 reviews for clear error those portions to which the Parties do not object. 23 I. The First Cause of Action Against the County 24 Plaintiff first alleges violation of his due process rights under the Fourteenth 25 Amendment arising from his placement in solitary confinement without notice or 26 opportunity for a non-adversarial hearing. See SAC ¶¶ 44–51. The Court previously 27 denied a motion to dismiss this claim. See ECF No. 73 at 3–5. Nonetheless, the Moving 28 Defendants again argue that Plaintiff’s due process claim against the County should be 1 dismissed because “Plaintiff fails to establish the County’s liability under any of the 2 Gilette[ v. Delmore, 979 F.2d 1342 (9th Cir. 1992)] prong[s].” Mot. at 6. Magistrate Judge 3 Montenegro again recommends that the Court deny the Moving Defendants’ Motion. See 4 R&R at 7–11. 5 A. Deprivation of Plaintiff’s Right to Due Process 6 Magistrate Judge Montenegro concludes that Plaintiff’s allegations that Defendants 7 did not provide Plaintiff with an informal, nonadversary hearing within a reasonable time 8 after being placed in Ad-Seg; a written decision describing the reasons for placing him in 9 Ad-Seg; and an opportunity to present his view amount to a constitutional violation. See 10 R&R at 8–9 (citing Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986), abrogated 11 in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995)). Neither Party appears 12 to object to this portion of Magistrate Judge Montenegro’s R&R, see generally Defs.’ Obj. 13 at 1–3; Pl.’s Obj. at 2, and the Court finds no clear error in the recommendation. 14 B. Wide-Settled City Policy 15 Magistrate Judge Montenegro finds that Plaintiff has sufficiently stated a claim that 16 Plaintiff’s alleged due process violation was caused by a de facto County policy because 17 “Plaintiff has alleged a widespread practice that is so permanent and well settled as to 18 constitute a custom or usage with the force of law.” R&R at 10. The Moving Defendants 19 object that “the R&R did not point to any authority providing a clear standard in alleging 20 a viable section 1983 claim under the ‘de facto policy’ theory.” Defs.’ Obj. at 2. Further, 21 “Plaintiff did not sufficiently allege a pattern or custom of the constitutional deprivation.” 22 Id. at 3. 23 In short, the Moving Defendants attempt to distinguish Plaintiff’s situation, which 24 involves multiple alleged due process violations against Plaintiff, from cases in which 25 multiple plaintiffs alleged separate due process violations. The Moving Defendants, 26 however, cite no authority that would require the Court to conclude that Plaintiff’s 27 allegations are insufficient to establish a pattern or custom as necessary to state a claim 28 against the County. To the contrary, it would appear that other district courts have found 1 such allegations sufficient to state a claim. See, e.g., Kirk v. Foster, No. 3:13-CV-00296- 2 RCJ, 2014 WL 6792028, at *15 (D. Nev. Dec. 1, 2014) (“Plaintiff avers Plaintiff that he 3 was written up more than fifty times for more than 100 alleged rule violations, which 4 resulted in the loss of liberties, including four months in punitive segregation, for which he 5 was seldom afforded due process. He has sufficiently alleged a claim for denial of his 6 procedural due process rights under the Fourteenth Amendment against [the defendant] 7 County . . . .”). On de novo review, the Court therefore OVERRULES the Moving 8 Defendants’ objection and ADOPTS Magistrate Judge Montenegro’s recommendation 9 that Plaintiff sufficiently alleges that the County maintains a policy resulting in the 10 deprivation of Plaintiff’s due process rights in violation of the Fourteenth Amendment. 11 C. Deliberate Indifference 12 Finally, Magistrate Judge Montenegro concludes that “Plaintiff’s allegations of 13 repeated failures to respond to his grievances and the lack of process afforded him are 14 sufficient to allege that th[e County’s] de facto policy was widely adhered to with 15 deliberate indifference to Plaintiff’s Fourteenth Amendment rights.” R&R at 10–11. 16 Neither Party appears to object to this portion of Magistrate Judge Montenegro’s R&R, see 17 generally Defs.’ Obj. at 1–3; Pl.’s Obj. at 2, and the Court finds no clear error in the 18 recommendation. The Court therefore ADOPTS Magistrate Judge Montenegro’s R&R 19 and DENIES the Moving Defendants’ Motion as to Plaintiff’s first cause of action. 20 II. The Second Cause of Action Against the County 21 Plaintiff’s second cause of action against the County alleges that the County 22 maintains a policy of housing mentally ill inmates in Ad-Seg, where there is excessive 23 lighting and noise leading to chronic sleep deprivation in violation of Plaintiff’s Eighth 24 Amendment rights. See SAC ¶¶ 52–59. The Court previously dismissed this claim, 25 concluding that Plaintiff had “not presented sufficient facts to support his asserting that 26 lighting conditions and noise levels constitute punishment.” ECF No. 73 at 9. The Moving 27 Defendants contend that Plaintiff’s amended allegations still do “not allege[] sufficiently 28 serious additional facts indicating that his constitutional rights were violated due to lack of 1 sleep.” Mot. at 6. Magistrate Judge Montenegro recommends that the Court deny the 2 Moving Defendants’ Motion. See R&R at 11–14. 3 A. Constitutional Deprivation of Pretrial Rights 4 Magistrate Judge Montenegro concludes that “Plaintiff has sufficiently shown a 5 violation of his constitutional rights under the Fourteenth Amendment” because “[t]he Ad- 6 Seg daily routine alleged . . . was so regular and organized that it was clearly the result of 7 an intentional decision,” “[t]hese alleged conditions of confinement put Plaintiff at 8 substantial risk of suffering serious harm,” “[r]easonable available measures were not taken 9 to abate the risk,” and “the claimed failure to take such measures resulted in Plaintiff’s 10 injuries.” R&R at 11–12. The Moving Defendants object that “Plaintiff has not presented 11 sufficient allegations to show that the lighting situation violated his constitutional rights” 12 because “there is insufficient facts to support that a defendant intentionally or recklessly 13 kept Plaintiff awake by subjecting him []to a constant illumination environment.” Defs.’ 14 Objs. at 3–4. The Moving Defendants also object that “Plaintiff fails to establish that noise 15 violated his constitutional right” because “[t]he various noises that Plaintiff complained 16 about . . . are incidental to the operation of the facility” and “cannot reflect any Defendant’s 17 intent or recklessness to keep Plaintiff awake or subject him []to a constant noisy 18 environment.” Id. at 4–5. 19 Upon de novo review, the Court disagrees with the Moving Defendants on both 20 counts. Here, Plaintiff alleges that “[t]he TVs are turned off between 9:45 PM and 10:30 21 PM Sunday through Thursday and 10:45 PM through 11:30 PM Friday through Saturday.” 22 SAC ¶ 23. An inmate count is performed at approximately 11:00 PM, which requires the 23 inmates to walk to their door. Id. Deputies then issue razors at the 12:00 AM security 24 check by “opening each inmate[’]s tray slot in their cell door and letting it fall open[,] 25 making a loud banging sound[,] and shortly thereafter the tray slot door is loudly slammed 26 shut.” Id. This process is repeated when the razors are picked up at the 1:00 AM security 27 check, at which points the cell lights are dimmed, although they remain “too bright to allow 28 a human being to sleep.” Id. The lights are then turned up and the inmates awakened at 1 3:30 AM for another count, requiring the inmates to go to their cell doors. Id. ¶ 25. 2 Breakfast is passed out between 4:00 and 4:30 AM, at which point the cell lights are 3 dimmed until 7:00 AM. Id. At 7:00 AM, the cell lights are again turned up and the TVs 4 are turned on to their highest volume. Id. During the night, there are also hourly “security 5 walks,” which entail “the opening and loud slamming of at least two heavy metal fire doors 6 between modules.” Id. ¶ 26. Because “severely mentally ill” inmates are also housed in 7 Ad-Seg, there is constant screaming; yelling; and banging on metal cell doors, toilets, and 8 bunk beds. Id. ¶ 28. As a result of these factors, Plaintiff has been “unable to sleep,” id. 9 ¶ 53, which has caused him to suffer “headaches, muscle aches, and ability to focus and 10 think clearly, feeling high levels of stress and anxiety, eye pain, high blood pressure, 11 lowered immune system functioning causing plaintiff to get sick, suffer severe lethargy 12 and fatigue, infections, impaired motor and cognitive functions, as well as a number of 13 other physical and psychological injuries.” Id. ¶ 30. 14 The Moving Defendants’ arguments that “constant lighting can serve a legitimate 15 purpose,” Defs.’ Obj. at 3, and that some noise is inherent in the operation of a facility such 16 as the SDCJ, id. at 4–5, are well taken; however, construing the facts most favorably to 17 Plaintiff, the Court determines on de novo review that Plaintiff’s allegations suffice to 18 survive a motion to dismiss. The policy implemented by the County provided—at best— 19 two two-and-a-half hour stretches in bed per evening during which the TVs were turned 20 off and the lights were turned down. During this time, however, officers continued to 21 perform hourly security checks, during which time they slammed two heavy, metal fire 22 doors, and the mentally ill inmates—who were also housed in Ad-Seg per the County’s 23 policy—were permitted to scream, yell, and bang on metal objects. Because such 24 allegations suffice to state a claim at the pleading stage, see, e.g., Matthews v. Holland, No. 25 114CV01959SKOPC, 2017 WL 1093847, at *3–5 (E.D. Cal. Mar. 23, 2017), the Court 26 OVERRULES the Moving Defendants’ objections and ADOPTS Magistrate Judge 27 Montenegro’s recommendation that Plaintiff adequately alleges a violation of his 28 / / / 1 Fourteenth Amendment rights premised on the excessive light and noise while he was 2 housed in Ad-Seg. 3 B. Official Policy or Custom Causing Injury 4 Magistrate Judge Montenegro “finds that Plaintiff has shown the existence of a 5 policy that was causally linked to the constitutional injury” because the “alleged details of 6 the Ad-Seg schedule . . . can only be the result of a policy.” R&R at 13. The Moving 7 Defendants, however, object that “Plaintiff does not allege that his sleep deprivation is due 8 to a specific County policy or widespread custom.” Defs.’ Obj. at 5. 9 On de novo review, the Court must agree with Magistrate Judge Montenegro. 10 Plaintiff’s understandable inability to point to a specific policy at the pleading stage does 11 not foreclose his claim where, as here, he has detailed a nightly routine conducted pursuant 12 to County policy. It strains credulity that the 11:00 PM and 3:30 AM counts, hourly 13 security checks, 12:00 AM razor distribution and 1:00 AM razor pick up, and 4:00 to 4:30 14 AM breakfast distribution are not conducted pursuant to a policy or policies adopted by the 15 County. The Court therefore OVERRULES the Moving Defendants’ objection and 16 ADOPTS Magistrate Judge Montenegro’s recommendation that Plaintiff sufficiently 17 alleges that the County adopted a policy causally linked to Plaintiff’s claimed sleep 18 deprivation. 19 C. Deliberate Indifference 20 Finally, Magistrate Judge Montenegro concludes that Plaintiff has alleged that “the 21 policy was adhered to with deliberate indifference to his constitutional rights” because 22 Plaintiff’s “allegation of . . . widespread adherence [by jail employees to the municipal 23 policies and practices], combined with the allegation that Plaintiff continuously and 24 vociferously objected to the conditions of his confinement, sufficiently state a claim of 25 deliberate indifference to the constitutional violation that was occurring.” R&R at 14. The 26 Moving Defendants object that “Plaintiff fails to plausibly plead that this routine is 27 deliberately indifferent to inmate[s’] constitutional right[s] as required by Canton[ v. 28 Harris, 489 U.S. 378 (1989)]” because “[i]t is unrealistic to request the County to meet 1 every inmate’s personal desires for their daily routine or change the jail’s daily schedule 2 based on one inmate’s complaint.” Obj. at 5–6. The Moving Defendants also contend that 3 “[t]he R&R confuses the alleged failure to address Plaintiff’s personal sleep deprivation 4 issue with a County policy or custom being deliberately indifferent to all inmates[’] sleep.” 5 Id. at 5. 6 The Court disagrees with the Moving Defendants. Plaintiff adequately alleges that 7 the County adopted a policy that it knew would not result in an environment reasonably 8 free of excess noise, thereby impacting the sleep of inmates housed in Ad-Seg. See, e.g., 9 Keenan v. Hall, 83 F.3d 1083, 1090 (1996), as amended on denial of reh’g, 135 F.3d 1318 10 (9th Cir. 1998) (reversing district court’s summary dismissal of Eighth Amendment claim 11 premised on excess noise where the plaintiff alleged “‘screaming, wailing, crying, singing 12 and yelling,’ often in groups, and that there was a ‘constant, loud banging’”). On de novo 13 review, the Court therefore OVERRULES the Moving Defendants’ objection, ADOPTS 14 Magistrate Judge Montenegro’s recommendation, and DENIES the Moving Defendants’ 15 Motion as to Plaintiff’s second cause of action. 16 III. Claims Against Individual Defendants 17 In addition to the claims against the County, Plaintiff also asserts each of his four 18 causes of action against Lieutenants Froistad and Lovelace and Sheriff Gore individually. 19 See SAC ¶¶ 44–73. The Moving Defendants contend that each of Plaintiff’s claims must 20 be dismissed as to Lieutenant Froistad and Sheriff Gore and that Plaintiff’s second, third, 21 and fourth causes of action should be dismissed as to Lieutenant Lovelace. See Mot. at 22 8–11. 23 A. Lieutenant Froistad 24 Magistrate Judge Montenegro concludes that Plaintiff fails to state any claim as to 25 Lieutenant Froistad because “[t]he SAC does not sufficiently allege Froistad’s personal 26 participation in, causal connection to, or culpable indifference to, Plaintiff’s constitutional 27 injuries.” R&R at 16. Plaintiff objects that “Lieutenant Froistad was the acting watch 28 commander for SDCJ” and “[h]e was put on notice of plaintiff’s grievances, verbally and 1 by virtue of his duties as watch commander to review logs for issues that a supervisor needs 2 to address.” Pl.’s Obj. at 8. Consequently, Lieutenant “Froistad was in a position at SDCJ 3 to stop the harm and constitutional injuries to plaintiff, but he did nothing.” Id. 4 It is Plaintiff’s Second Amended Complaint, however, that controls, and the Court 5 must agree with Magistrate Judge Montenegro that Plaintiff’s allegations are insufficient 6 to state any claim as to Lieutenant Froistad based on supervisory liability. Plaintiff alleges 7 only that Lieutenant Froistad “was employed as a peace officer by the County of San Diego 8 Sheriff Department” and “was employed as a Lieutenant and acting watch commander in 9 the San Diego County Central Jail.” SAC ¶ 10. Plaintiff alleges that Lieutenant Froistad 10 was aware of Plaintiff’s allegations of constitutional violations because he was aware that 11 Plaintiff was granted self-representation by the Court, id. ¶ 10, and because Plaintiff 12 personally spoke to Lieutenant Froistad about his complaints at some point between 13 August 3 and 27, 2017. Id. ¶¶ 36–37. 14 The Court agrees with Magistrate Judge Montenegro that Plaintiff “does not 15 sufficiently allege Froistad’s personal participation in, causal connection to, or culpable 16 indifference to, Plaintiff’s constitutional injuries.” See R&R at 16; see also Yasin v. Flynn, 17 No. 17-CV-01057-BAS-JLB, 2017 WL 5495097, at *4 (S.D. Cal. Nov. 16, 2017) 18 (dismissing claim premised on overcrowding against individual defendants where the 19 plaintiff alleged only that he “spoke to” them about the allegedly unconstitutional 20 conditions because “[t]he mere fact that neither [defendant] responded to Plaintiff’s 21 complaints to his satisfaction, does not, without more, rise to the level of deliberate 22 indifference”); Thompson v. Paleka, No. CV 17-00531 SOM-KJM, 2017 WL 5309608, at 23 *7 (D. Haw. Nov. 13, 2017) (dismissing cause of action for deliberate indifference 24 premised on failure to respond to grievance about unsanitary conditions of confinement 25 where the plaintiff “does not allege the[ defendants] directed . . . any prison employee to 26 ignore an extreme risk to [the plaintiff]’s or other inmates’ health posed by the [unsanitary 27 condition, n]or does he point to any policy that they implemented that resulted in such a 28 condition”). The Court therefore OVERRULES Plaintiff’s objection, ADOPTS 1 Magistrate Judge Montenegro’s recommendation, and GRANTS the Moving Defendants’ 2 Motion as to Plaintiff’s first, second, third, and fourth causes of action against Lieutenant 3 Froistad. 4 B. Lieutenant Lovelace 5 Magistrate Judge Montenegro also concludes that Plaintiff’s “allegations against 6 Lovelace in her individual capacity are insufficient to support a claim of supervisory 7 liability under section 1983 as to the second, third, and fourth causes of action” because 8 “Plaintiff has failed to allege how Lovelace personally participated in, is causally linked 9 to, or acted with culpable indifference to, the constitutional deprivations alleged in the 10 second, third, and fourth causes of action.” R&R at 16–17. Plaintiff objects that Lieutenant 11 Lovelace has a “continuing duty because of the periodic reviews” given that she “made the 12 initial decision to classify Plaintiff for housing in Ad-Seg” and that “Plaintiff was actually 13 injured by Lovelace’s actions and inactions for lack of periodic reviews” “[b]ecause of the 14 excessive noise of mentally ill inmates, constant illumination, and the lack of outdoor 15 exercise.” Pl.’s Obj. at 8. 16 Again, the Court is constrained by the allegations in Plaintiff’s Second Amended 17 Complaint, in which he alleges only that Lieutenant Lovelace “was employed as a peace 18 officer by the County of San Diego Sheriff Department” and “in the ‘classification’ section 19 of the San Diego County Central Jail.” SAC ¶ 9. Plaintiff alleges that he was never served 20 a copy of a segregated housing order signed by Jail Population Management Unit staff or 21 a supervisor, as required by prison policy. Id. As with Lieutenant Froistad, Plaintiff also 22 alleges that Lieutenant Lovelace was aware of Plaintiff’s allegations of constitutional 23 violations because Plaintiff personally spoke to Lieutenant Lovelace about his complaints 24 at some point between August 3 and 27, 2017. Id. ¶¶ 36–37. 25 The Court agrees with Magistrate Judge Montenegro that “[t]he allegations support 26 Lovelace’s liability only as to the first cause of action,” see R&R at 16, but, for the same 27 reasons discuss above, see supra Section III.A, that “Plaintiff has failed to allege how 28 Lovelace personally participated in, is causally linked to, or acted with culpable 1 indifference to, the constitutional deprivations alleged in the second, third, and fourth 2 causes of action.” See id. at 16–17. The Court therefore OVERRULES Plaintiff’s 3 objection, ADOPTS Magistrate Judge Montenegro’s recommendation, and GRANTS the 4 Moving Defendants’ Motion as to Plaintiff’s second, third, and fourth causes of action 5 against Lieutenant Lovelace. 6 C. Sheriff Gore 7 Finally, Magistrate Judge Montenegro finds that Plaintiff’s “allegations against Gore 8 in his individual capacity are insufficient to state a claim of supervisory liability under 9 section 1983 as to the first cause of action, but [that] Plaintiff has stated a claim of 10 supervisory liability as to the second, third, and fourth causes of action” against Sheriff 11 Gore. R&R at 17. Plaintiff objects to Magistrate Judge Montenegro’s recommendation 12 that the Court dismiss Plaintiff’s first cause of action as to Sheriff Gore, arguing that 13 “Sheriff Gore is responsible for Plaintiff’s injuries because he implements San Diego 14 County policies such as classifying people” and “Plaintiff put Sheriff Gore on notice, 15 actually or constructively, by writing him a letter.” Pl.’s Obj. at 8. The Moving 16 Defendants, on the other hand, object to Magistrate Judge Montenegro’s recommendation 17 that the Court deny their Motion as to Plaintiff’s second, third, and fourth causes of action 18 as to Sheriff Gore, contending that Magistrate Judge Montenegro “confuses a public 19 official’s liability in his official capacity and supervisory capacity in the second, third, and 20 fourth causes of action.” Defs.’ Obj. at 6. 21 1. First Cause of Action 22 Regarding Plaintiff’s first cause of action as to Sheriff Gore, Plaintiff objects that 23 “Plaintiff put Shariff Gore on notice, actually or constructively, by writing him a letter.” 24 Pl.’s Obj. at 8. The Moving Defendants counter that “[t]he SAC does not even allege that 25 Sheriff Gore received and reviewed the letter, and in fact indicates that a different 26 individual responded to his letter.” Defs.’ Reply at 3 (emphasis in original). Further, “even 27 if Sheriff Gore did receive the letter[,] personal participation cannot be inferred through 28 the fact that Plaintiff sent an official a letter.” Id. 1 Again, the Court must agree with Magistrate Judge Montenegro. Plaintiff’s letter, 2 although difficult to decipher, does not appear to address Plaintiff’s due process cause of 3 action. See generally SAC Ex. A. Further, as Magistrate Judge Montenegro and the 4 Moving Defendants note, there is no indication—much less an allegation by Plaintiff—that 5 Sheriff Gore received and reviewed the letter. See id. ¶ 38. The Court therefore agrees 6 with Magistrate Judge Montenegro that Plaintiff has failed to allege that Sheriff Gore 7 personally participated in, acquiesced in, or was culpably indifferent to the allegations 8 constituting Plaintiff’s first cause of action. Consequently, the Court OVERRULES 9 Plaintiff’s objection, ADOPTS Magistrate Judge Montenegro’s recommendation, and 10 GRANTS the Moving Defendant’s Motion as to Plaintiff’s first cause of action as to 11 Sheriff Gore. 12 2. Second, Third, and Fourth Causes of Action 13 As for Plaintiff’s second, third, and fourth causes of action against Sheriff Gore, the 14 Moving Defendants object that “Plaintiff does not allege sufficient facts to establish 15 supervisory liability” as to Sheriff Gore because Plaintiff’s allegations “only suggest that 16 Sheriff Gore is the agent of the County, and the daily program established in the County is 17 the moving force behind his alleged constitutional rights deprivation.” Defs.’ Obj. at 7. 18 Further, “[i]mposing individual liability based on [Sheriff Gore’]s official duty as the agent 19 of the County would effectively cut the difference between the liability under individual 20 and official capacity.” Id. Plaintiff replies that “Sheriff Gore is being held responsible for 21 implementing a constitutionally deficient de facto policy.” Pl.’s Reply at 8. 22 The Court agrees with Magistrate Judge Montenegro that “Plaintiff has stated a 23 claim of supervisory liability as to Gore with respect to the second, third, and fourth causes 24 of action on the basis that Gore enacted a constitutionally deficient policy which was the 25 moving force behind the violation.” R&R at 18. Plaintiff specifically alleges that “Sheriff 26 William Gore[] established the following daily program at the downtown Central jail where 27 plaintiff was housed from August 3, 2016 through August 27, 2017.” SAC ¶ 22. 28 Consequently, “Plaintiff has sufficiently alleged that the Ad-Seg routine implemented by 1 Sheriff Gore, as it relates to the second, third and fourth causes of action, is a policy so 2 constitutionally deficient that the policy itself is a repudiation of the Constitution and the 3 moving force behind the violation.” See R&R at 18 (citing Hansen v. Black, 885 F.2d 642, 4 646 (9th Cir. 1989)). The Court therefore OVERRULES Defendants’ Objections, 5 ADOPTS Magistrate Judge Montenegro’s recommendation, and DENIES the Moving 6 Defendants’ Motion as to Plaintiff’s second, third, and fourth causes of action as to Sheriff 7 Gore. 8 IV. Injunctive and Declaratory Relief 9 Finally, Magistrate Judge Montenegro “finds Plaintiff’s claims for injunctive and 10 declaratory relief are moot because Plaintiff is no longer subject to the conditions and 11 policies challenged in the SAC.” R&R at 19. Plaintiff objects that the alleged 12 constitutional violations are capable of repetition, yet evading review because “defendants 13 do not argue that the policy has ceased and plaintiff has presented evidence that the policy 14 will continue.” Pl.’s Obj. at 11. Plaintiff adds that it is of no consequence that his action 15 is not a putative class action because “[b]y confining plaintiff’s complaint to his pretrial 16 detention plaintiff is making class like allegations.” Id. The Moving Defendants counter 17 that “Plaintiff’s constitutional claims alleging damages under Section 1983 mean that his 18 allegations regarding alleged constitutional deprivations will be fully litigated and will not 19 ‘evade review’” and that “Plaintiff has not shown a reasonable expectation that he will be 20 subjected to the same action again.” Defs.’ Reply at 5–6 (quoting City of Los Angeles v. 21 Lyons, 461 U.S. 95, 110 (1983)). 22 On de novo review, the Court agrees with Magistrate Judge Montenegro that 23 Plaintiff’s prayer for declaratory and injunctive relief is moot in light of his transfer to the 24 California Institute for Men in Chino, California, and that the mootness exception does not 25 apply because Plaintiff has not shown a reasonable expectation that he will be subjected to 26 the same action again. The Court therefore OVERRULES Plaintiff’s objection, ADOPTS 27 Magistrate Judge Montenegro’s recommendation, and GRANTS the Moving Defendants’ 28 Motion as to Plaintiff’s prayer for injunctive and declaratory relief. 1 V. Leave to Amend 2 Finally, the Court must consider whether to grant Plaintiff leave to amend those 3 causes of action it has dismissed. The Ninth Circuit has long and repeatedly cautioned that 4 “a district court should grant leave to amend even if no request to amend the pleading was 5 made, unless it determines that the pleading could not possibly be cured by the allegation 6 of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United 7 States, 58 F.3d 494, 497 (9th Cir. 1995)) (citing Cook, Perkiss & Liehe, Inc. v. N. Cal. 8 Collection Serv., Inc., 911 F.2d 242 (9th Cir. 1990); Balistreri v. Pacifica Police 9 Dep’t, 901 F.2d 696 (9th Cir. 1990); Noll v. Carlson, 809 F.2d 1446 (9th Cir. 10 1987); Bonanno v. Thomas, 309 F.2d 320 (9th Cir. 1962); Sidebotham v. Robison, 216 11 F.2d 816 (9th Cir. 1954)). 12 The Court is mindful that Plaintiff has already been granted leave to amend to state 13 a claim as to Defendants Froistad and Lovelace, see ECF No. 73 at 15–16, while failure to 14 correct previously identified deficiencies “is a strong indication that the plaintiffs have no 15 additional facts to plead.” Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 16 (9th Cir. 2009) (quoting In re Vantive Corp. Sec. Litig., 283 F.3d 1079, 1098 (9th Cir. 17 2002), abrogated on other grounds by Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 18 U.S. 308 (2007)). This is particularly troublesome given that “Plaintiff’s statement of facts 19 has generally remained unchanged,” see R&R at 21, despite Plaintiff’s retention of counsel 20 prior to the filing of his Second Amended Complaint. The Court also questions whether 21 Plaintiff can plead additional facts to cure the mootness of his claims for injunctive and 22 declaratory relief. 23 Nonetheless, the Court concludes that it is appropriate to grant Plaintiff one final 24 opportunity to amend. Accordingly, the Court GRANTS Plaintiff leave to amend. 25 CONCLUSION 26 In light of the foregoing, the Court: 27 1. OVERRULES Defendants’ Objections (ECF No. 99); 28 2. OVERRULES Plaintiff’s Objections (ECF No. 100); 1 3. ADOPTS in its entirety Magistrate Judge Montenegro’s R&R (ECF No. 97); 2 4. GRANTS IN PART AND DENIES IN PART the Moving Defendants’ 3 ||Motion to Dismiss (ECF No. 93). Specifically, the Court DISMISSES WITHOUT 4 |}PREJUDICE: (1) Defendant Froistad as to Plaintiff's first, second, third, and fourth 5 causes of action; (2) Defendant Lovelace as to Plaintiff’s second, third, and fourth causes 6 || of action; (3) Defendant Gore as to Plaintiff’s first cause of action; and (4) Plaintiffs prayer 7 |\|for injunctive and declaratory relief. The Moving Defendants’ Motion is otherwise 8 || DENIED; and 9 5. GRANTS Plaintiff leave to amend. Plaintiff MAY FILE an amended 10 |}complaint to cure the specific deficiencies enumerated above within thirty (30) days of the 11 on which this Order is electronically docketed. Any amended complaint must cure 12 ||the deficiencies noted herein and must be complete in itself without reference to the 13 |/original complaint. See S.D. Cal. CivLR 15.1. Any claims not re-alleged in the amended 14 |}complaint will be considered waived. See Lacey v. Maricopa Cnty., 693 F.3d 896, 925, 15 (9th Cir. 2012). Failure to file an amended complaint by this date shall result in this 16 || action proceeding on Plaintiff's surviving claims. 17 IT IS SO ORDERED. 18 19 || Dated: August 27, 2019 00 pen Janis L. Sammartino United States District Judge 21 22 23 24 25 26 27 28