1 2 ; 4 5 6 | 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || ELLIOT SCOTT GRIZZLE, Case No.: 3:17-cv-00813-JLS-RBM 12 Platt, REPORT & RECOMMENDATION 13 || Vv. OF U.S. MAGISTRATE JUDGE RE: 14 || COUNTY OF SAN DIEGO et al., DISMISS AND STRIKE PORTIONS 15 Defendants.| OF PLAINTIFF’S THIRD AMENDED 16 COMPLAINT 17 [Doc. 111] 18 19 I INTRODUCTION 20 Plaintiff Elliot Scott Grizzle (“Plaintiff”) brings an action arising under 42 U.S.C. § 21 || 1983 (“Section 1983”) related to his placement in Administrative Segregation (“Ad-Seg”) 22 || at the San Diego Central Jail (“SDCJ”) while he was a pre-trial detainee. On October 11, 23 ||2019, Defendants the County of San Diego (“the County’), Sheriff William Gore (“Sheriff 24 ||Gore”), Lieutenant Eric Froistad (“Lieutenant Froistad”),! Lieutenant Lena Lovelace 25 ||(“Lieutenant Lovelace”), and Aaron Boorman (“Sergeant Boorman”) (collectively 26 27 ———— 28 The parties stipulate to Froistad’s dismissal without prejudice. See infra pp. 11, 13.
1 ||““Defendants”) filed a Motion to Dismiss and Strike Portions of Plaintiff's Third Amended 2 ||Complaint (“Motion”). (Doc. 111.) Plaintiff filed an Opposition to the Motion on 3 || November 27, 2019 and Defendants filed a Reply on December 5, 2019. (Docs. 113-114.) 4 The matter was referred to the undersigned for Report and Recommendation. See 5 U.S.C. § 636(b)(1)(B); CivLR 72.1(c) and 72.3(a). After a thorough review of the 6 || pleadings, papers, prior orders of the Court, the facts, and applicable law, the undersigned 7 |\respectfully recommends that Defendants’ Motion to Dismiss be GRANTED, IN PART, 8 ||and the Motion to Dismiss and/or Motion to Strike the demand for punitive damages be 9 || DENIED. 10 ll. BACKGROUND 11 This case has been in the initial pleading stage since April 2017. (Doc. 1.) Plaintiff 12 initially represented himself pro se, but he is now represented by counsel. At present, this 13 the fourth attempt to plead and/or amend the Complaint (Docs. 1, 82, 88, 110), the sixth 14 || Motion to Dismiss filed by present and/or formerly-named Defendants (Docs. 55, 64, 83, 15 |/93, 98, 111), the fifth Report & Recommendation (“R&R”) issued by a magistrate judge 16 ||(Docs. 63, 74, 97, 106), and the fifth Order on an R&R and/or Motion to Dismiss by District 17 Judge Janis L. Sammartino (Docs. 73, 79, 92, 108, 115). In addition to setting out the 18 || allegations presented in the Third Amended Complaint (“TAC”), the procedural history of 19 || the pleading stage is outlined below. 20 A. Allegations in TAC 21 The following facts from Plaintiffs TAC (Doc. 110) are accepted as true for 22 || purposes of this Motion. See infra pp. 9-10. 23 i. Plaintiff's Placement in Ad-Seg 24 On August 3, 2016, the San Diego County Sheriff's Department took Plaintiff into 25 custody and immediately housed him in the Ad-Seg unit of SDCJ. (Doc. 110 9§ 17, 21.) 26 When Plaintiff inquired about his Ad-Seg placement, staff instructed him to contact 27 ||“classification.” (Jd. { 18.) Plaintiff protested the lack of due process in his Ad-Seg 28 || placement and the conditions of Ad-Seg confinement. J{ 30-42.) He submitted two
1 || grievances concerning these issues during his first week in Ad-Seg. (Ud. J] 30, 32.) He 2 sought: (1) notice of the reason for his Ad-Seg placement; (2) an opportunity to be heard 3 rebut the charges for his placement; (3) immediate release from Ad-Seg; and (4) periodic 4 ||reviews of his placement. (/d.) Plaintiff gave the form to an unnamed deputy but received 5 ||no response. Ud.) He made similar requests “on at least a weekly basis and addressed to 6 || ‘classification.’” Ud. fj 30, 34-36.) Plaintiff also protested to over fifty jail staff including 7 || Lieutenant Lovelace and Sergeant Boorman. (/d. 4 35.) 8 Plaintiff never learned the basis for his Ad-Seg placement. (Ud. J 42.) Ultimately, 9 || he remained in Ad-Seg for the entirety of his pretrial detention until August 27, 2017. (Ud. 10 1/99 3, 21, 36.) 11 ii. Ad-Seg Routine 12 Plaintiff alleges the County, through Sheriff Gore, subjected him to the following 13 || daily routine in Ad-Seg: 14 e 3:30 a.m.—7:00 a.m. Ad-Seg inmates wake up for morning count with cell lights 15 turned to “bright.” Bright lights remain illuminated until breakfast is distributed 16 around 4:30 a.m., and then lights are dimmed until 7:00 a.m. (Doc. 110 § 24.) 17 e 7:00 a.m.—-Approximately 10:45 p.m. Daily programming runs from 7:00 a.m. 18 until 9:45 p.m.—10:45 p.m. (Ud. §§ 22, 24.) Cell lights are turned to a bright 19 setting and a “dayroom” television is on with the highest volume setting. (/d. 4 20 24, 36.) The first cell is allowed fifty minutes of dayroom time. □□□□ □ 24.) 21 Hourly security walks are punctuated by the opening and closing of large fire 22 doors, which creates loud noises. (Jd. 4 25.) Televisions are off between 23 9:45p.m—11:45 p.m. Ud. § 22.) 24 e 11:00 p.m. Deputies conduct a “count,” which required Plaintiff stand up. □□□□ 25 e 12:00 a.m—1:00 a.m. Guards issue razors to inmates by opening/closing each 26 cell tray slot, creating loud noises. Ud.) Razors are retrieved at 1:00 a.m., then 27 cell lights are dimmed but still “too bright to allow a human being to sleep.” (/d.) 28
1 e Approximately 1:30 a.m.—3:30 a.m. Ad-Seg inmates are given “yard time” but 2 the yard has no direct access to the sun or outdoors. (/d. at 4 23.) 3 This daily routine resulted in Plaintiff only being able to sleep for approximately 4 || five hours. (/d. § 26.) But Plaintiff only got one hour of uninterrupted sleep due to security 5 |ichecks, yard time, and loud banging noises. (/d.) Mentally ill inmates who “constantly 6 || screamed, yelled, loudly beat and banged on the cell doors, toilets, and metal bunk beds” 7 ||exacerbated the sleep deprivation. (/d. § 27.) Plaintiff suffered various health-related 8 || ailments. (Ud. J 29.) 9 iii. Plaintiff's Written and Verbal Grievances 10 In addition to the grievances outlined supra pp. 2-3, on March 30, 2017, Plaintiff 11 submitted three additional grievances: one for his Ad-Seg placement, and two for sleep 12 || deprivation. (Id. | 38.) On this same day, Plaintiff wrote a letter to Sheriff Gore outlining 13 some of the issues set forth in Plaintiffs prior grievances (“March Letter”). Ud. □□□□□ On 14 || April 11, 2017, Plaintiff filed another grievance concerning SDCIJ’s failure to respond to 15 prior grievances. (Id. § 39.) One week later, Plaintiff received Sergeant Boorman’s 16 ||response to his March Letter. (/d. § 40; see also Ex. A, 24-25.) Boorman’s response 17 explained: (1) counts are timed in accordance with department policies and procedures; (2) 18 ||SDCJ is exploring alternate times for razor distribution; (3) SDCJ discourages excess 19 ||noisemaking by inmates, but notes it is impossible to silence inmates; (4) Ad-Seg’s yard 20 || time is scheduled due to population needs and jail procedure; and (5) teams are to complete 21 mandatory training on grievance processing. (/d. at Ex. A, 24.) 22 iv. TAC’s Causes of Action 23 The TAC alleges four causes of action against the County, Sheriff Gore, Lieutenant 24 || Lovelace, and Sergeant Boorman. The first cause of action alleges Fourteenth Amendment 25 process violations as to his Ad-Seg placement at SDCJ. (Doc. 110 §§ 43-51.) The 26 ||second, third, and fourth causes of action allege Fourteenth and Eighth Amendment 27 || violations premised on sleep deprivation, prevention from exercising, and being forced to 28
1 || choose between sleep and exercise, respectively.* (Id. 52-76.) Plaintiff seeks injunctive 2 declaratory relief, compensatory and punitive damages, costs, and fees. U/d. at 21-22.) 3 The County is sued for maintaining policies which were the moving force behind 4 ||Plaintiff’s injuries. (/d. § 4.) Sheriff Gore is sued in his individual capacity, with liability 5 ||being premised upon his notice and failure to correct the alleged constitutional injuries. 6 ||(Doc. 110 4 5); see infra p. 11 n.5. Lieutenant Lovelace and Sergeant Boorman are sued 7 their individual capacities.? (Doc. 110 §§ 8-9.) Lovelace is a supervisor of the Jail 8 ||Population Management Unit. (Ud. § 9.) Lovelace’s liability is premised upon her 9 || awareness of SDCJ’s constitutionally-deficient Ad-Seg program and her failure to provide 10 || Plaintiff due process with respect to his Ad-Seg placement. (/d.) Boorman’s liability is 11 || premised upon his receipt of the March Letter and failure to rectify the issues. (/d. □ 8.) 12 B. Second Amended Complaint & Motion Practice 13 The procedural history outlined below is limited to the pleadings, motions, and 14 ||orders immediately preceding the filing of the TAC. Plaintiff's Second Amended 15 Complaint (“SAC”), filed on November 9, 2018, alleged substantially the same causes of 16 || action and requests for relief as the TAC with two exceptions. (Compare SAC, Doc. 88 1 17 ||44-73 with TAC, Doc. 110 9] 43-76.) The SAC pleaded the second, third, and fourth 18 causes of action as only Eighth Amendment violations, not Fourteenth violations. (Doc. 19 9 53, 61, 68.) The SAC made no request for punitive damages. (/d. at 19.) 20 On November 30, 2018, the County, Sheriff Gore, Lieutenant Froistad, and 21 || Lieutenant Lovelace filed a Motion to Dismiss the SAC. (Doc. 93.) At that time, Sergeant 22 23 24 * The TAC alleges both Eighth and Fourteenth Amendment violations relating to confinement conditions, but Plaintiff's Opposition narrows it to Fourteenth Amendment violations based upon 25 || Plaintiff's status as a pretrial detainee. (Doc. 110 9] 53, 62, 70; Doc. 113 at 1.) As such, the undersigned focuses its analysis on claims under the Fourteenth Amendment. See Mendiola-Martinez v. 26 || Arpaio, 836 F.3d 1239, 1246 n.5 (9th Cir. 2016) (internal citations omitted) (stating “Eighth Amendment protections apply once a prisoner has been convicted of a crime, while pretrial detainees are 27 || entitled to the potentially more expansive [Fourteenth Amendment] protections . . .”). 28 3 In referring to Lieutenant Lovelace, the TAC uses the pronoun “he” while the instant Motion uses the pronoun “she.” (Doc. 110 § 9; Doc. 111 at 5.) Lovelace is referred to herein as “her” and “she.”
1 || Boorman had not been served, and thus, did not join in the Motion to Dismiss. (See Doc. 2 ||96 at 8 n.2.) On March 7, 2019, the undersigned issued an R&R recommending the Motion 3 granted in part, including recommending Boorman’s dismissal based upon lack of 4 |lservice. (Doc. 97 at 22-23.) During the pendency of the parties’ objection period for the 5 || March 7, 2019 R&R, Defendant Boorman accepted service of the SAC and filed a separate 6 || Motion to Dismiss the SAC on behalf of himself only. (Doc. 98.) On June 8, 2019, the 7 ||undersigned issued an R&R recommending that Boorman’s Motion be granted. (Doc. 8 ||106.) On August 26, 2019, Judge Sammartino adopted the March 7, 2019 R&R, but did 9 rule upon the June 8, 2019 R&R on Boorman’s Motion because the parties’ objection 10 || period of that R&R had yet to expire. (Doc. 108 at 2.n.1.) Plaintiff's filing of the TAC 11 ||rendered Boorman’s Motion to Dismiss the SAC as moot. (Docs. 111, 115.) 12 C. Orders on Motion to Dismiss SAC & New Allegations in TAC 13 The Court dismissed certain causes of action in the SAC as against various 14 || Defendants and also dismissed the request for declaratory and injunctive relief. (See Docs. 15 ||97, 108.) The rulings pertinent to each Defendant which remain at issue are outlined below. 16 i. First Cause of Action against Sheriff Gore 17 The Court dismissed the first cause of action (i.e., due process violation relating to 18 || Ad-Seg placement) as against Sheriff Gore. (Doc. 108 at 12-14.) The Court found Plaintiff 19 || failed to allege that Gore personally participated in, acquiesced in, or was culpably 20 || indifferent to the allegations constituting Plaintiff's first cause of action. (/d. at 13.) 21 The TAC continues to name Gore in the first cause of action, but contains no new 22 allegations relating to him. (Doc. 110 §§ 43-51.) The instant Motion seeks dismissal of 23 || the first cause of action against Gore. (Doc. 111 at 11-13.) 24 ii. Second, Third, and Fourth Causes of Action against Lt. Lovelace 25 The Court granted the Motion to Dismiss the second, third, and fourth causes of 26 || action against Lieutenant Lovelace (i.e., conditions of confinement claims). (Doc. 108 at 27 11-12.) The Court found the SAC failed to allege any causal connection or Lovelace’s 28
1 || personal participation or culpable indifference to these claims. (/d. (citing Doc. 97 at 16- 2 17).) 3 The TAC names Lieutenant Lovelace in the second, third, and fourth causes of 4 || action, and Defendants seek dismissal of these claims as to her.* (Doc. 110 4 9, 42, 46, 5 57, 66, 75; Doc. 111 at 14-15.) New allegations in the TAC against Lovelace state, in 6 || part: 7 [Parties Section] Plaintiff is informed and believes that Defendant 8 Lovelace is a supervisor... In addition, Defendant Lovelace was aware of the constitutionally deficient Ad-Seg. program at the [SDCJ], but still 9 subjected Plaintiff to the constitutional injury as described below in the Ad- 10 Seg. program through sleep deprivation, lack of outdoor exercise, and forcing inmates to choose between sleep and exercise. Defendant Lovelace 11 had a duty to conduct periodic reviews to ensure that Plaintiff was 2 comported due process in the “classification” process, but failed to provide Plaintiff adequate due process by failing to provide a reason for Ad-Seg. 13 classification and failing to classify Plaintiff outside of Ad-Seg. for over a 14 year during any kind of periodic reviews.... Ud. 4 9.) 15 [Second Cause of Action] Further, this sleep deprivation described herein 16 was caused by [D]efendant’s ... policy... Lieut. Lovelace followed the obviously constitutionally deficient policy by initially classifying Plaintiff 17 into Ad-Seg.... Ud. 457.) 18 [Third Cause of Action] This denial of Yard Time was a custom, practice, 19 policy, or long-standing procedure of San Diego County and its Sheriff 0 William Gore. Lovelace carried out the policy by failing to conduct a proper periodic review of [P]laintiff’s classification thereby subjecting him to the 21 Ad-Seg program and the denial of Yard Time.... (ld. § 66.) 22 [Fourth Cause of Action] Plaintiff]’s] placement in [Ad-Seg] by Lieut. 23 Lovelace, pursuant to San Diego County policy, was the moving force behind Plaintiff’s injuries. Ud. ¥ 75.) 25 26 27 || ——_————————“— 28 New allegations in the TAC are denoted by underlining.
1 iii. All Causes of Action against Sgt. Boorman 2 Although Judge Sammartino denied Boorman’s Motion to Dismiss as moot, the June 3 2019 R&R on the Motion is informative. (See generally Docs. 106, 115.) The 4 ||undersigned recommended all causes of action be dismissed as against Boorman. (Doc. 5 || 106 at 6-13.) As to the first cause of action (i.e., due process violation relating to Ad-Seg 6 placement), the undersigned found the SAC failed to allege that Boorman acted in a 7 ||Supervisory capacity, or personally participated, acquiesced, or showed culpable 8 || indifference to the alleged Fourteenth Amendment violation. (/d. at 8.) As to the remaining 9 || causes of action (i.e., conditions of confinement claims), the undersigned found the SAC 10 || failed to sufficiently allege facts showing that “Boorman was personally involved in 11 ||/creating the conditions of confinement . . . or that Boorman had any control over those 12 ||conditions.” (dd. at 10.) The undersigned also found the SAC failed to plausibly allege 13 || Boorman acquiesced or acted with culpable indifference to said conditions. (/d. at 11.) 14 The TAC still names Boorman in all causes of action, and Defendants seek dismissal 15 these claims. (Doc. 110 {J 8, 48, 57, 66; Doc. 111 at 15-19.) The allegations state: 16 [Parties Section] Sgt. Boorman should have recognized the constitutional 7 violation in causing an inmate to choose between sleep and recreational yard time, the lack of outdoor exercise, and the constitutionally deficient County 18 policy that was causing injury to Plaintiff and every other Ad-Seg. inmate . . 19 . Moreover, the failure to rectify the obviously constitutionally deficient policy at the [SDCJ] is a basis for liability because Boorman knew that the 20 Ad-Seg. routine resulted in the deprivation of at least one basic human need of every inmate in Ad-Seg. and he did nothing to stop the constitutional violations of which he was aware. (/d. 8.) 22 73 [First Cause of Action] Despite being aware of these issues, no Defendant, including Lovelace, Boorman, and Gore, took any action to correct these 24 constitutional violations. . . Lieut. Lovelace intentionally adhered to these 25 constitutionally deficient policies of San Diego County .. . and Boorman when he failed to take action to correct the deprivation of at least one basic 26 human need per day of the inmates in Ad-Seg. Ud.§ 48.) 27 [Second Cause of Action] Further, this sleep deprivation described herein 28 was caused by [D]efendant’s program as a policy of San Diego County and
1 its Sheriff William Gore. Lieut. Lovelace followed the obviously > constitutionally deficient policy . and later when Boorman became aware of the conditions in Ad-Seg, but did nothing to stop them. (/d. J 57.) [Third Cause of Action] This denial of Yard Time was a custom, practice, policy, or long-standing procedure of San Diego County and its Sheriff 5 William Gore . . . Boorman became aware of the fact that Plaintiff was not 6 receiving proper Yard Time when investigating and responding to Plaintiff” S letter to Sheriff Gore thereby showing Boorman’s acceptance of the policy 7 and culpable indifference. (/d. J 66.) 8 9 iv. Injunctive and Declaratory Relief 10 The Court’s August 27, 2019 Order dismissed Plaintiff's prayer for declaratory and 11 |}injunctive relief as moot in light of Plaintiff's transfer to the California Institute for Men in 12 ||Chino, California. (Doc. 108 at 14.) The Court found the “capable of repetition, yet 13 |/evading review” mootness exception inapplicable because Plaintiff failed to show a 14 || “reasonable expectation that he will be subjected to the same action again.” (/d.) 15 The TAC continues to request declaratory and injunctive relief, and Defendants seek 16 || dismissal of the same based upon the grounds argued in their Motion to Dismiss the SAC. 17 ||}(Doc. 110 at 21; Doc. 111 at 9-10; see also Doc. 93 at 11.) The TAC’s new allegations 18 ||contend such relief is appropriate because the conduct alleged in each cause of action is 19 || continuing and an ongoing government policy. (Doc. 110 at 21 (citations omitted).) 20 v. TAC’s Request for Punitive Damages 21 The TAC, for the first time, seeks punitive damages. (Doc. 110 §[ 51, 60, 68, 76.) 22 Defendants seek to dismiss and/or strike these damages. (Doc. 111 at 10-11.) 23 lil, LEGAL STANDARD 24 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 25 Procedure tests the legal sufficiency of the claims asserted in the complaint. FED. R. CIv. 26 ||P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The motion may be 27 || granted only if the complaint lacks a “cognizable legal theory” or sufficient facts to support 28 ||a cognizable legal theory. Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122
1 || (9th Cir. 2013) (internal quotations and citations omitted). Although a complaint need not 2 ||contain detailed factual allegations, it must plead “enough facts to state a claim to relief 3 ||that is plausible on its face.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007). “A 4 claim has facial plausibility when the plaintiff pleads factual content that allows the court 5 ||to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 6 || Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). 7 “[A] plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief? 8 ||requires more than labels and conclusions, and a formulaic recitation of the elements of a 9 || cause of action will not do.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 10 || U.S. 265, 286 (1986) (alteration in original)). A court need not accept “legal conclusions” 11 true. Iqbal, 556 U.S. at 678. 12 In deciding a 12(b)(6) motion, “all material allegations of the complaint are accepted 13 true, as well as all reasonable inferences to be drawn from them.” Navarro, 250 F.3d at 14 || 732 (citing Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996)). But, “to be 15 || entitled to the presumption of truth, allegations in a complaint . . . may not simply recite 16 || the elements of a cause of action, but must contain sufficient allegations of underlying facts 17 ||to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. 18 || Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 19 In reviewing the sufficiency of a complaint, the court is limited to the complaint 20 || itself and its attached exhibits, documents incorporated by reference, and matters properly 21 subject to judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd.,551 U.S. 308, 322- 22 ||23 (2007); see also Inre NVIDIA Corp. Sec. Litig., 768 F.3d 1046, 1051 (9th Cir. 2014). 23 IV. DISCUSSION 24 Defendants seek to dismiss: the first cause of action against Sheriff Gore; the second, 25 ||third, and fourth causes of action against Lieutenant Lovelace; and all causes of action 26 ||against Sergeant Boorman. (Doc. 111 at 7-13.) Plaintiff counters that viable claims exist 27 ||as against Gore and Boorman because of their awareness of the constitutionally-deficient 28 || policies for the classification and housing of Ad-Seg inmates and concomitant failure to 10
1 ||remedy the issues. (Doc. 113 at 6-9.) Plaintiff counters that the second, third, and fourth 2 ||causes of action state a claim against Lovelace because her classification decision set in 3 ||motion the series of constitutionally-deficient conditions of confinement of which she was 4 aware. (Ud. at 7-8.) The parties dispute the appropriateness of declaratory and 5 |/injunctive relief and punitive damages. (Doc. 111 at 5-6; Doc. 113 at 3-5.) Finally, 6 Plaintiff concedes to Lieutenant Froistad’s dismissal without prejudice. (Doc. 111 at 14.) 7 A. Supervisory Liability in Section 1983 Claims 8 Each Defendant at issue—Sheriff Gore, Lieutenant Lovelace, and Sergeant 9 || Boorman—is sued in his or her individual capacity.° 10 Individual capacity suits seek to impose personal liability upon a government official 11 || for actions he takes under color of state law. Kentucky, 473 U.S. at 165 (citation omitted). 12 || In general, “[g]overnment officials may not be held liable for the unconstitutional conduct 13 their subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676. 14 || However, a supervisor may be held liable under Section 1983 “if there exists either (1) his 15 her personal involvement in the constitutional deprivation, or (2) a sufficient causal 16 connection between the supervisor’s wrongful conduct and the constitutional violation.” 17 || Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (citing Thompkins v. Belt, 828 F.2d 18 303-04 (5th Cir. 1987)). 19 “The requisite causal connection can be established . . . by setting in motion a series 20 || of acts by others,” or by “knowingly refus[ing] to terminate a series of acts by others, which 21 ||{the supervisor] knew or reasonably should have known would cause others to inflict a 22 || ———_—____——_ 24 IIs The TAC also alleges Sheriff Gore is a final policymaker and his official acts “are imputed to and impose 95 || direct liability on [the County] as its official representative.” (Doc. 110 {| 6-7.) Given that the County has been sued directly as an entity, the foregoing allegations against Gore are to be treated as pleading an 26 || action against the County. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citing Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). Moreover, given that Plaintiff is seeking punitive damages 27 against Sheriff Gore, a strong presumption is created in favor of an individual-capacity suit because an 28 official-capacity suit for damages would be barred. See Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016). 11
1 ||constitutional injury.” Starr, 652 F.3d at 1207-08 (alterations in original) (internal 2 || quotations and citation omitted). A supervisor can be liable in his individual capacity for 3 ||“acquiescence or culpable indifference” in the constitutional deprivation. Jd. at 1208 4 (internal quotations and citation omitted). Supervisory liability may also exist without 5 || overt personal participation in the offensive act “if supervisory officials implement a policy 6 ||so deficient that the policy itself is a repudiation of constitutional rights and is the moving 7 || force of the constitutional violation.” Hansen, 885 F.2d at 646 (citing Thompkins, 828 F.2d 8 || at 304) (internal quotations omitted). 9 B. _ First Cause of Action against Sheriff Gore 10 The TAC states Sheriff Gore is being sued in his individual capacity. (Doc. 110 11 The issue here is whether Sheriff Gore was personally involved in the Ad-Seg 12 || classification decision or whether a sufficient causal connection exists between his conduct 13 the alleged denial of due process. 14 Due process requires that “[p]rison officials must hold an informal nonadversary 15 |/hearing within a reasonable time after the prisoner is segregated” for administrative 16 purposes. Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986), abrogated in part 17 ||on other grounds by Sandin v. Connor, 515 U.S. 492 (1995). “[P]rison officials must 18 inform the prisoner of the charges against the prisoner or their reasons for segregation” and 19 ||“allow the prisoner to present his view.” Jd. Additionally, prison officials must 20 || periodically review the initial Ad-Seg placement. /d. at 1101. 21 Notably, the Court dismissed Sheriff Gore from the first cause of action in the SAC 22 because Plaintiff failed to allege Gore’s personal participation, acquiescence, or culpable 23 ||indifference to any due process violation. (Doc. 108 at 12-13.) Yet the TAC alleges no 24 ||new facts to establish a causal connection between any individual wrongful conduct of 25 ||Gore and Plaintiff's Ad-Seg placement. Hansen, 885 F.2d at 646. 26 Plaintiff contends the TAC alleges Gore “knew about the deficient policies and 27 ||practices in the classification . . . of Ad-Seg[] inmates at... SDCJ....” (Doc. 113 at 6.) 28 || However, the TAC’s only reference to Gore’s notice of the classification issue relates to 12
1 ||the March Letter. (Doc. 110 37.) As Judge Sammartino’s Order previously stated, 2 ||“Plaintiff’s letter, although difficult to decipher, does not appear to address Plaintiff’s due 3 process cause of action.” (Doc. 108 at 13 (citing SAC, Ex. A).) The March Letter’s 4 ||substance has not changed. In any event, there is no allegation that Gore received and 5 ||reviewed the letter. (Doc. 110 9] 37, 47.) While Plaintiff generally alleges Gore is the 6 ||final policymaker who is responsible for implementing policies pertaining to inmate 7 || housing, this allegation is directed against the County. See supra p. 11 n.5. In sum, the 8 || TAC fails to allege any new allegations establishing Gore’s awareness of the violations or 9 || any causal connection between Gore’s conduct and the alleged due process violation. 10 Failure to correct previously-identified pleading deficiencies is a “strong indication 11 the plaintiff[] has no additional facts to plead.” Zucco Partners, LLC v. Digimarc 12 || Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (internal citation omitted); see also Metzler Inv. 13 ||GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1072 (9th Cir. 2008) (affirming 14 ||dismissal of a third amended complaint with prejudice when pleading deficiencies 15 “persisted in every prior iteration of the [complaint].”). For the reasons stated above, the 16 || undersigned recommends Defendants’ Motion to Dismiss the individual capacity claim 17 ||against Sheriff Gore in the first cause of action bb GRANTED. 18 C. All Causes of Action against Lt. Froistad 19 Plaintiff states he intentionally omitted Lieutenant Froistad from the TAC and 20 concedes to his dismissal without prejudice. (Doc. 113 at 7.) As such, the undersigned 21 ||recommends Defendants’ Motion to Dismiss all claims against Froistad be GRANTED. 22 D. Second, Third, and Fourth Causes of Action against Lt. Lovelace 23 The TAC asserts individual capacity claims against Lieutenant Lovelace in her 24 ||supervisor role. (Doc. 110 § 9.) Defendants argue the TAC fails to state allegations 25 || showing Lovelace personally participated in, is causally linked to, or acted with culpable 26 indifference to the unlawful Ad-Seg confinement conditions. (Doc. 111 at 15.) Plaintiff 27 ||counters that Lovelace’s classification decision set in motion the series of unlawful 28 || conditions which shows a reckless or callous indifference to his rights. (Doc. 113 at 8.) 13
l When a pretrial detainee challenges his conditions of confinement, the detainee is 2 entitled to the protections of the Fourteenth Amendment. Mendiola-Martinez, 836 F.3d at 3 see also Bell v. Wolfish, 441 U.S. 520, 533 (1979). To state a claim under the 4 ||Fourteenth Amendment, plaintiff must show the prison officials acted with “deliberate 5 || indifference” to his rights. See Castro v. City of L.A., 833 F.3d 1060, 1068 (9th Cir. 2016) 6 || (en banc) overruling Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232 (9th Cir. 2016). 7 The issue is whether the TAC asserts sufficient allegations to establish a causal 8 ||connection between Lovelace’s classification decision and the unlawful conditions of 9 ||confinement.® And it does. The TAC alleges Lovelace was “aware of the constitutionally 10 || deficient Ad-Seg[] program at... [SDCJ]” but still subjected Plaintiff to the conditions at 11 |/issue. (Doc. 110 § 9.) Plaintiff alleges he personally spoke to Lovelace concerning the 12 || unlawful conditions and she took no action to remedy the situation. (/d. J§ 35-36, 55-56, 13 || 64-65, 72-74.) Plaintiff also alleges Lovelace carried out the constitutionally-deficient 14 || policies and/or was the moving force behind the unconstitutional conditions. Ud. J§ 57, 15 ||66, 75.) These allegations plausibly establish Lovelace’s classification decision set in 16 ||motion a series of unlawful conduct of which she was aware and/or knowingly refused to 17 ||terminate. Starr, 652 F.3d at 1207-08. At a minimum, the allegations are sufficient to 18 ||show acquiescence or culpable indifference. Jd. at 1208. 19 The foregoing allegations state a claim at the pleading stage. Starr, 652 F.3d at 1208. 20 || Accordingly, the undersigned recommends Defendants’ Motion to Dismiss the second, 21 || third, and fourth causes of action against Lieutenant Lovelace be DENIED. 22 E. All Causes of Action against Set. Boorman 23 Defendants seek dismissal of all causes of action against Sergeant Boorman. As to 24 first cause of action, Defendants argue there are no allegations to show Boorman’s 25 26 || 27 Although Plaintiff alleges each condition of confinement as a separate cause of action, the plausibility 28 analysis for each cause of action is identical as to Lovelace. Accordingly, the analysis for these causes of action is combined herein. 14
1 || deliberate indifference to the due process violation because there is nothing to show his 2 ||notice of the Ad-Seg classification decision. (Doc. 111 at 16.) Defendants contend the 3 ||remaining causes of action fail because the no causal connection between Boorman’s 4 || conduct and the alleged unlawful confinement conditions has been established. (/d. at 17- 5 Plaintiff contends Boorman’s response to the March Letter, coupled with his failure 6 || to rectify the issues, state plausible claims for relief. (Doc. 113 at 8-9.) 7 i. First Cause of Action 8 As to the first cause of action, the undersigned’s July 8, 2019 R&R on the SAC is 9 || instructive because it recommended dismissal of the claim against Boorman. (Doc. 106 at 10 |/6-8.) The undersigned found the March Letter lacked information about □□□□□□□□□□□ 11 || unlawful placement in Ad-Seg and Boorman’s response does not show he had knowledge 12 |jof the same. (/d. at 8.) The undersigned reasoned, “[w]ithout knowledge of the 13 constitutional violation, Boorman could not have acquiesced in, or been culpably 14 || indifferent to, Plaintiff's Fourteenth Amendment rights.” (d.) 15 The TAC contains no new allegations to establish any awareness by Boorman as to 16 ||the classification decision or a sufficient causal connection between any individual 17 || wrongful conduct of Boorman and Plaintiffs Ad-Seg placement. See supra pp. 8-9; 18 || Hansen, 885 F.2d at 646. While the TAC contains a new allegation stating “Boorman 19 || failed to take action to correct the deprivation of at least one basic human need per day of 20 inmates in Ad-Seg,” this allegation does not plausibly suggest Boorman set in motion 21 || Lieutenant Lovelace’s classification decision or knowingly refused to terminate a series of 22 || actions relating to the classification decision. (Doc. 110 4 48); Starr, 652 F.3d at 1207-08. 23 Without sufficient allegations to support Boorman’s personal participation, 24 ||acquiescence, or culpable indifference to the classification decision, the undersigned 25 ||recommends Defendants’ Motion to Dismiss the first cause of action against Sergeant 26 || Boorman be GRANTED. 27 28 15
1 ii. Second, Third, and Fourth Causes of Action 2 As to the conditions of confinement claims, the parties dispute the sufficiency of the 3 || TAC’s allegations against Sergeant Boorman in stating claims for supervisory liability. 4 As an initial matter, Defendants seek to differentiate between the third cause of 5 j/action (i.e., denial of yard time) and second and fourth causes of action (i.e., sleep 6 ||deprivation/choice between sleep and exercise, respectively). (Doc. 111 at 15-19.) 7 || Defendants contend the third cause of action lacks allegations involving Boorman and the 8 || March Letter never addressed this issue. (/d. at 15-17.) However, Plaintiff's March Letter 9 ||complained that “[a]ccess to outdoor recreation is . . . only afforded to [inmates] upon 10 request after the 10:30pm-11:30pm count, between then [and] breakfast forcing [inmates] 11 choose between out of cell time [and] sleep.” (Doc. 110 9 63; Ex. A at 27.) As such, it 12 reasonable to infer Boorman had notice of the denial of yard time. Navarro, 250 F.3d at 13 ||732; Tellabs, 551 U.S. at 322-23; In re NVIDIA, 768 F.3d at 1051. Therefore, the 14 || plausibility analysis of the conditions of confinement claims is identical as to Boorman. 15 The TAC alleges Boorman “should have recognized the constitutional violation in 16 || causing an inmate to choose between sleep and recreational yard time, the lack of outdoor 17 ||exercise, and the constitutionally deficient County policy that was causing injury to 18 || Plaintiff...” (Doc. 11098.) It alleges Boorman’s response to the March Letter put him 19 notice of the constitutional violations. (Ud. 9] 35-37; Ex. A, 24-25.) It alleges 20 ||Boorman’s failure to rectify the conditions at SDCJ is the basis for liability as “Boorman 21 ||knew the Ad-Seg[] routine resulted in the deprivation of at lease one basic human need . . 22 ||. and he did nothing to stop the constitutional violations of which he was aware.” (Id. □□□ 23 ||This awareness, coupled with a failure to rectify the conditions, plausibly establishes a 24 ||/causal connection between Boorman’s conduct and the alleged unlawful conditions of 25 ||confinement. Starr, 652 F.3d at 1207-1208; Hansen, 885 F.2d at 646; (Doc. 110 □ 55-57, 26 || 64-66, 72-74.) 27 Accordingly, the undersigned recommends Defendants’ Motion to Dismiss the 28 ||second, third, and fourth causes of action against Sergeant Boorman be DENIED. 16
1 F, Injunctive and Declaratory Relief 2 The mootness of Plaintiff's request for injunctive and declaratory relief has been 3 |;extensively litigated. (See Doc. 93 at 11; Doc. 95 at 9-10; Doc. 96 at 9; Doc. 97 at 19-21; 4 ||Doc. 100 at 10-11; Doc. 108 at 14.) In fact, the TAC cites the same caselaw cited in 5 || Plaintiff's Objections to the March 7, 2019 R&R which was adopted in full. (Compare 6 ||Doc. 110 at 21 with Doc. 100 at 10-11.) Ultimately, the Court found that the requested 7 ||relief is moot because Plaintiff is no longer subject to the challenged conditions and 8 || policies at SDCJ due to Plaintiff's transfer to the California Institute for Men. (Doc. 108 9 14.) The Court found that the “capable of repetition, yet evading review” mootness 10 ||exception inapplicable because Plaintiff failed to show a reasonable expectation that he 11 || will be subject to the same action again. (/d.) 12 Generally, release from a facility while claims are pending will moot claims for 13 ||injunctive relief for that facility’s policies unless the suit has been certified as a class action. 14 || See Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir.1995) (citations omitted). The same is 15 for declaratory relief, because the released party is no longer subject to the conditions 16 policies he challenges. Alvarez v. Hill, 667 F.3d 1061, 1064 (9th Cir. 2012) (citing 17 || Rhodes v. Stewart, 488 U.S. 1, 2-4 (1988)). An exception to the mootness doctrine exists 18 claims that are capable of repetition, yet evade review. But, the exception “is limited 19 ||to extraordinary cases in which (1) the duration of the challenged action is too short to be 20 || fully litigated before it ceases, and (2) there is a reasonable expectation that the plaintiff 21 || will be subjected to the same action again. /d. (citation omitted). 22 Plaintiff contends a variation of the mootness exception applies because he is 23 || bringing a putative class action to challenge an uncontested ongoing government policy 24 related to pretrial detention conditions. (Doc. 113 at 3.) Plaintiff cites Gerstein v. Pugh 25 arguing claims challenging pretrial detention conditions cannot be found moot due to the 26 || inherently transitory nature of detention and the claim’s potential to evade review. (/d. at 27 (citing 420 U.S. 103 (1975).) Contrary to Gerstein, this lawsuit has not been certified as 28 ||aclass action. 420 U.S. at 106-107. Moreover, U.S. v. Sanchez-Gomez rejected the notion 17
1 Gerstein supports a freestanding exception to the mootness doctrine outside the class 2 ||}action context. 138 S.Ct. 1532, 1538 (2018). The Court rejected a “functional class action” 3 ||because the “mere presence of allegations that . . . benefit other similarly situated 4 || individuals cannot save [a plaintiff's] suit from mootness once their individual claims have 5 |/dissipated.” Jd. at 1540 (internal quotations and citations omitted). 6 Here, there is no dispute that Plaintiff has been transferred out of SDCJ. (Doc. 113 7 4; Doc. 114 at 3.) Without any reasonable expectation that Plaintiff will be subject to 8 same action again and absent any class certification, the mootness exception for claims 9 are capable of repetition yet evade review does not apply. 10 Accordingly, the undersigned recommends Defendants’ Motion to Dismiss the 11 |/requests for injunctive and declaratory relief bb GRANTED. 12 G. Punitive Damages 13 Defendants contend the punitive damages demand should be dismissed and/or 14 || stricken against the Individual Defendants.’ (Doc. 111 at 10-11.) Plaintiff counters the 15 ||demand is viable because the Individual Defendants knew the alleged constitutional 16 || violations were occurring and they failed to rectify the issues. (Doc. 113 at 5.) 17 Punitive damages are available under Section 1983. See Pac. Mut. Life Ins. Co. v. 18 || Haslip, 499 U.S. 1, 17 (1991); Graham, 473 U.S. at 167 n.13; Dang v. Cross, 422 F.3d 19 || 800, 807 (9th Cir. 2005). Punitive damages may be awarded if the defendant acted with 20 {jan evil motive or intent or demonstrated reckless or callous indifference to the 21 ||constitutional rights of the plaintiff. See Smith v. Wade, 461 U.S. 30, 56 (1983). 22 Plaintiff alleges that, despite complaining verbally and in writing concerning his Ad- 23 ||Seg confinement and the conditions of confinement, the Individual Defendants failed to 24 ||take any action to rectify the issues. See supra pp. 12-16. At the pleading stage, this 25 ||suffices to show reckless/callous indifference to Plaintiff's rights under the Fourteenth 26 27 \|-—-—-_-—- 28 Plaintiff concedes this damages demand is limited to the Individual Defendants. (Doc. 113 at 5.) 18
1 || Amendment. See Matthews v. Holland, 1:14-cv-1959-SKO-PC, 2017 WL 1093847, **6- 2 ||7 (E.D. Mar. 23, 2017) (denying motion to dismiss punitive damages demand at pleading 3 || stage in case involving Eighth Amendment violations related to Ad-Seg confinement). 4 Accordingly, the undersigned recommends Defendants’ Motion to Dismiss and/or 5 Motion to Strike the punitive damages demand be DENIED. 6 H. Leave to Amend 7 Finally, Defendants requests that the Court deny leave to amend given □□□□□□□□□□□ 8 ||ample opportunity to amend and correct the pleading deficiencies. (Doc. 111 at 19.) 9 Courts freely grant leave to amend a complaint which has been dismissed. FED. R. 10 || Civ. P. 15(a); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th 11 || Cir. 1986). “[A] district court should grant leave to amend . . . unless it determines that the 12 || pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 13 ||F.3d 1122, 1130 (9th Cir. 2000) (internal quotations and citations omitted). 14 This is the fourth attempt to plead and/or amend the complaint, and Plaintiff has 15 been represented by counsel in the two prior iterations of the amended pleadings. (Docs. 16 88, 110.) Judge Sammartino’s August 27, 2019 Order cautioned Plaintiff that he had 17 ||“one final opportunity to amend.” (Doc. 108 at 15.) As to Sheriff Gore and Sergeant 18 ||Boorman, further leave to amend would be futile. Even in the fourth iteration of the 19 || pleading, the first cause of action still fails to state an individual capacity claim against 20 ||Sheriff Gore because there are no allegations to show his personal participation, 21 || acquiescence, or culpable indifference to any due process violation. Likewise, the claims 22 ||against Boorman are predicated upon his response to the March Letter relating to 23 ||conditions of confinement and grievance handling, but there are no factual allegations to 24 ||suggest Boorman had knowledge of the lack of due process afforded to Plaintiff in the Ad- 25 classification decision. Finally, the request for declaratory and injunctive relief has 26 || been litigated extensively with no change in circumstances to warrant a different result. 27 With respect to the first cause of action as against Gore and Boorman, and the 28 ||requests for declaratory and injunctive relief, the undersigned finds further leave to amend 19
1 || would be futile. As such, the Court respectfully recommends that leave to amend be 2 || DENIED. 3 Vv. CONCLUSION 4 For the reasons set forth above, the undersigned respectfully recommends the 5 || Motion to Dismiss be GRANTED, IN PART, and the Motion to Dismiss and/or Motion 6 ||to Strike the demand for punitive damages be DENIED. The undersigned further 7 |{recommends that further leave to amend be DENIED, and that Defendants County of San 8 Diego, Sheriff Gore, Lieutenant Lovelace, and Sergeant Boorman be DIRECTED to file 9 Answer to Plaintiffs Third Amended Complaint pursuant to Federal Rule of Civil 10 || Procedure 12(a)(4)(A). 11 The Court submits this Report and Recommendation to United States District Judge 12 || Janice L. Sammartino under 28 U.S.C. § 636(b)(1)(B) and Civil Local Rules 72.1(c) and 13 || 72.3(a) of the United States District Court for the Southern District of California. 14 Any party may file written objections with the Court and serve a copy on all parties 15 or before July 24, 2020. The document should be captioned “Objections to Report and 16 ||Recommendation.” Any reply to the Objections shall be served and filed on or before 17 || August 7, 2020. The parties are advised that failure to file objections within the specified 18 || time may waive the right to appeal with District Court’s Order. See Turner v. Duncan, 158 19 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156 (9th Cir. 1991). 20 IT IS SO ORDERED. 21 ||DATE: July 10, 2020 22 ty
74 HON. RUTH BER DEZ MONTENEGRO UNITED STATES MAGISTRATE JUDGE 25 26 27 28 90