Loescher v. County of Plumas

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 | Lynne Loescher, No. 2:19-CV-1984-KJM-KJIN 12 Plaintiff, ORDER 13 v. 14 County of Plumas, et al., 1S Defendants. 16 17 Plaintiff Lynne Loescher sues defendants County of Plumas, Sheriff Greg Hagwood, and 18 | Officer Macloud Luntey for alleged constitutional violations arising from Officer Luntey’s arrest 19 | of plaintiff. The County and Sheriff Hagwood move to dismiss Loescher’s second amended 20 | complaint. For the reasons below, the court grants the motion to dismiss. 21 | I. BACKGROUND 22 One night in August of 2018, Loescher was driving when she was pulled over by 23 | California Highway Patrol (CHP) Officer Macloud Luntey around midnight. Second Am. Compl. 24 | (SAC) 47, ECF No. 35. Officer Luntey asked Loescher if she “was following the vehicle in front 25 | of her.” Jd. She told Officer Luntey she was following the car in front of her, which her husband 26 | was driving. /d. Officer Luntey said he was “after” the car that was in front of Loescher but 27 | decided to pull Loescher over because she was “driving a ‘little iffy.”” Jd. Officer Luntey then 28 | ordered Loescher to blow into a Preliminary Alcohol Screening (PAS) device. /d. The test

1 resulted in a reading “below the presumptive level of intoxication.” Id. Officer Luntey took 2 Loescher into custody, and once at the police station Loescher took another breathalyzer test, 3 which resulted in an even lower reading. Id. ¶¶ 7 & 8. 4 “At the direction of Officer Luntey, plaintiff was booked on ‘open’ charges.” Id. ¶ 9. As 5 part of the booking process, Sheriff’s Department staff fingerprinted and photographed plaintiff. 6 Id. Loescher spent the night in a holding cell at Plumas County Jail. Id. ¶ 12. The cell “was 7 covered with urine and feces,” it “contained unusable facilities” and “lacked toilet paper.” Id. 8 ¶ 10. A “disgusting odor of urine and feces” emanated from the floor. Id. Despite her demands, 9 plaintiff was not brought before a magistrate judge, notified of the charges against her or allowed 10 to post bail. Id. Loescher was released after eight hours with an order to appear in court. Id. 11 ¶ 11. She was never charged. Id. ¶ 12. 12 Loescher filed this suit on September 30, 2019. Compl., ECF No. 1. She amended her 13 complaint following a stipulation with the defendants. Stip., ECF No. 10; First Am. Compl. 14 (FAC), ECF No. 13. The court dismissed the complaint as to the County and Sheriff Hagwood. 15 Prev. Mot. to Dismiss (Jan. 31, 2020), ECF No. 16; Prev. Order (Sept. 21, 2020), ECF No. 32. In 16 her second amended complaint, Loescher names as defendants the County of Plumas, Sheriff 17 Hagwood, Officer Luntey, and Does 1–50.1 Loescher sues under 42 U.S.C. § 1983. In her first 18 claim, Loescher alleges that, as relevant here, Hagwood’s actions constituted 1) unreasonable 19 search and seizure in violation of the Fourth and Fourteenth Amendments; 2) cruel and unusual 20 punishment in violation of the Eighth and Fourteenth Amendments; and 3) deprivation of due 21 process and equal protection in violation of the Fourteenth Amendment. SAC ¶ 13.2 In 22 /////

1 If defendants’ identities are unknown when the complaint is filed, plaintiff has an opportunity through discovery to identify them. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). But the court will dismiss such unnamed defendants if discovery clearly would not uncover their identities or if the complaint would clearly be dismissed on other grounds. Id. The federal rules also provide for dismissing unnamed defendants that, absent good cause, are not served within ninety days of the complaint. See Fed. R. Civ. P. 4(m). 2 To the extent Loescher submits a claim under the Sixth Amendment, see SAC ¶ A, it is dismissed, as this court previously dismissed her Sixth Amendment claim without leave to amend, Prev. Order at 10. 1 Loescher’s second claim, she alleges the County is liable for the above deprivations under 2 Monell v. Department of Social Services of New York, 436 U.S. 658 (1978). 3 The County and Sheriff Hagwood move to dismiss the instant claims against them. Mot., 4 ECF No. 39; Mem. P. & A., ECF No. 39-1. Plaintiff opposes. Opp’n, ECF No. 41. The County 5 and Sheriff Hagwood have replied, Reply, ECF No. 42, and the court submitted the matter on the 6 papers, Min. Order, ECF No. 43. 7 II. JUDICIAL NOTICE 8 In her second amended complaint, Loescher incorporates by reference a consent decree 9 and an amendment of the decree entered in the case of Pederson, et al. v. The County of Plumas, 10 et al., 2:89-1659 (E.D. Cal. filed Dec. 4, 1989).3 See Consent Decree, SAC Ex. A, ECF No. 35-1; 11 April 1, 2013 Amendment, SAC Ex. B, ECF No. 35-2. Defendants also request judicial notice of 12 two joint status reports filed in Pederson involving plaintiff’s counsel in that case inspecting the 13 jail to determine compliance with the consent decree. Request for Judicial Notice, ECF No. 42-1 14 (attaching Joint Status Reports, filed on June 19, 2015 and October 9, 2018). A court’s 15 consideration of documents attached to a complaint or incorporated by reference subject to 16 judicial notice does not convert a motion to dismiss into a motion for summary judgment. 17 United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003); Parks Sch. of Bus. v. Symington, 18 51 F.3d 1480, 1484 (9th Cir. 1995). Each of these documents is a matter of public record 19 “capable of accurate and ready determination by resort to sources whose accuracy cannot 20 reasonably be questioned.” Fed. R. Evid. 201; see Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 21 442 F.3d 741, 746 n. 6 (9th Cir. 2006) (The court “may take judicial notice of court filings and 22 other matters of public record.”). Accordingly, the court takes judicial notice of the consent 23 decree, the amendment, and both status reports.

3 Pederson, is “an action pertaining to the conditions in the Plumas County Jail.” Consent Decree at 1. Plaintiff brought the matter as a class action with a class of “all present and future prisoners incarcerated in the Plumas County Jail.” Id. The Consent Decree is still the subject of ongoing enforcement before the assigned judge. It is unlikely Loescher is part of the Pederson class as she was only a detainee, not an incarcerated prisoner. 1 III. LEGAL STANDARD 2 A party may move to dismiss for “failure to state a claim upon which relief can be 3 granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted only if the complaint lacks a 4 “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory. 5 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). The court 6 assumes all factual allegations are true and construes “them in the light most favorable to the 7 nonmoving party.” Steinle v. City & Cnty. of San Francisco, 919 F.3d 1154, 1160 (9th Cir. 8 2019). If the complaint’s allegations do not “plausibly give rise to an entitlement to relief,” the 9 motion must be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 10 A complaint need contain only a “short and plain statement of the claim showing that the 11 pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed factual allegations,” Bell Atl. 12 Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than unadorned 13 accusations; “sufficient factual matter” must make the claim at least plausible. Iqbal, 556 U.S. at 14 678. In the same vein, conclusory or formulaic recitations elements do not alone suffice. Id. 15 (quoting Twombly, 550 U.S. at 555). This evaluation of plausibility is a context-specific task 16 drawing on “judicial experience and common sense.” Id. at 679. 17 IV. ANALYSIS 18 A. Sheriff Hagwood (Claim 1) 19 Sheriff Hagwood is named in the operative complaint in his individual capacity.4 In 20 response to defendants’ motion, Loescher explains she “inadvertently re-introduced Sheriff Greg 21 Hagwood as a defendant” and withdraws naming him as a defendant. Opp’n at 2. The court 22 therefore dismisses the claim against Sheriff Hagwood, without leave to amend. The operative 23 complaint is once again “devoid of factual allegations that Sheriff Hagwood was personally 24 involved in, knew of or refused to interject himself in the actions of his subordinate officers in a 25 way that caused the infringement of plaintiff’s constitutional rights.” Prev. Order at 11 26 /////

4 The court previously dismissed, without leave to amend, claims against Sherriff Hagwood in his official capacity. See Prev. Order at 14. 1 (establishing standard for naming the Sheriff in his individual and supervisory capacity); see 2 generally SAC. 3 B. The County (Claim 2) 4 Municipal governments can be liable for “their own illegal acts” under § 1983 and Monell, 5 supra. Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis omitted). Ultimately, 6 to establish municipal liability under Monell, a plaintiff must prove: “(1) that [the plaintiff] 7 possessed a constitutional right of which [s]he was deprived; (2) that the municipality had a 8 policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional right; 9 and, (4) that the policy is the moving force behind the constitutional violation.” Dougherty v. 10 City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (quoting Plumeau v. Sch. Dist. No. 40 Cnty. of 11 Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). The Ninth Circuit recognizes four types of policies 12 as cognizable under Monell: (1) an express official policy; (2) ratification by a final policymaker, 13 (3) a failure to train, supervise, or discipline; or (4) a pervasive custom or practice. Horton by 14 Horton v. City of Santa Maria, 915 F.3d 592, 602–03 (9th Cir. 2019). With these standards in 15 mind, the court addresses each of plaintiff’s Monell claims against the County below. 16 1. Fourth and Fourteenth Amendment Search and Seizure 17 The court previously dismissed Loescher’s Fourth and Fourteenth Amendment claim 18 regarding search and seizure against the County noting “[h]er complaint contains a single, 19 conclusory sentence referencing the ‘unconstitutional custom, policy or practice’” she alleges 20 makes the County potentially liable. Prev. Order at 7–8. Given the chance to amend, Loescher 21 has simply included the exact same conclusory sentence. See SAC ¶ 11 (“Pursuant to the custom, 22 policy and practice of Defendant County of Plumas, Plaintiff was not released from custody once 23 it was determined she was not under the influence but was jailed for eight hours before being 24 released from custody.”); compare FAC ¶ 11 (same). Loescher has not alleged any “other 25 instances of similar unconstitutional actions, any County policies mandating unlawful searches 26 and detention, or any evidence of the County’s failure to investigate or discipline anyone in the 27 face of similar allegations.” Prev. Order at 8. “Courts may decline to grant leave to amend only 28 if there is strong evidence of ‘undue delay, bad faith or dilatory motive on the part of the movant, 1 repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the 2 opposing party by virtue of allowance of the amendment, [or] futility of amendment, etc.’” See 3 Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013) 4 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). The court dismisses the Fourth 5 Amendment claim against the County, this time without leave to amend. 6 2. Fourteenth Amendment Equal Protection5 7 The court previously dismissed Loescher’s Fourteenth Amendment claim against the 8 County because she advanced nothing but a conclusory allegation that defendants booked and 9 held Loescher for eight hours under a “custom, policy and practice of defendant County of 10 Plumas.” Prev. Order at 9 (quoting FAC ¶ 11). As with her Fourth Amendment claim, Loescher 11 does not include any factual allegations pleading that an actual custom or policy exists. See 12 generally SAC. Additionally, Loescher does not allege she was treated differently than other 13 similarly situated individuals or that “the defendants acted with an intent or purpose to 14 discriminate against the plaintiff based upon membership in a protected class,” as is necessary for 15 an equal protection claim. Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting 16 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998), cert. denied, 525 U.S. 1154 (1999)). 17 The court dismisses the equal protection claim against the County, without leave to amend. See 18 Sonoma Cnty., 708 F.3d at 1117. 19 3. Eighth and Fourteenth Amendment Due Process 20 Loescher claims the conditions of confinement amount to cruel and unusual punishment 21 under the Eighth and Fourteenth Amendment and violates her due process rights. SAC ¶ 16. 22 “Claims by pretrial detainees are analyzed under the Fourteenth Amendment Due Process Clause, 23 rather than under the Eighth Amendment.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) 24 (citing Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979)). Because Loescher was a detainee and not 25 a convicted prisoner, her claim against the County under the Eighth Amendment is dismissed 26 without leave to amend. However, “[b]ecause pretrial detainees’ rights under the Fourteenth

5 While this claim also uses the words “due process” it does not appear plaintiff is actually asserting due process in connection with the allegations addressed here. 1 Amendment are comparable to prisoners’ rights under the Eighth Amendment, [. . . the court] 2 appl[ies] the same standards.” Frost, 152 F.3d at 1128 (citation omitted). 3 In attempting to establish a policy or custom regarding the cleanliness of the county jail, 4 Loescher asserts, Sheriff “Hagwood has publicly stated the jail facility wasn’t designed for 5 women.” Additionally, Loescher relies on the consent decree from 1988 in Pederson, et al. v. 6 The County of Plumas, et al. Loescher claims the consent decree is a result of the County 7 “subjecting prisoners to inhume conditions, . . . as well as inadequate . . cleanliness.” SAC ¶ 15. 8 In pleading a Monell claim concerning the conditions of the county jail, Loescher does not 9 assert there is an express policy to keep the cells unsanitary, Monell, 436 U.S. at 690, that an 10 official with “final policymaking authority” decided the cells should be unsanitary, McMillian v. 11 Monroe Cty., Ala., 520 U.S. 781, 785 (1997) (citation omitted), or that “authorized policymakers” 12 approved or ratified a subordinate’s decision to keep the cells unsanitary, City of St. Louis v. 13 Praprotnik, 485 U.S. 112, 127 (1988). Thus, the only avenue left for her to establish a policy or 14 practice is with a “custom or practice,” which typically must be shown with more than one or just 15 a few “isolated or sporadic incidents.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). A 16 practice or custom must have “sufficient duration, frequency and consistency” that it has “become 17 a traditional method of carrying out policy.” Id. A “policy” of this type can be a “policy of 18 inaction.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citation omitted). 19 Loescher appears to rely on the consent decree in Pederson in attempting to plead a 20 practice or custom. See SAC ¶ 16. The consent decree provides that it is not an admission by 21 defendants “to any violations of or failure to comply with applicable laws, rules, or regulations, 22 nor . . . any violation of constitutional standards.” Consent Decree at 4. The consent decree 23 addresses a variety of subjects related to the conditions at the Plumas County jail. See id. at 6–10. 24 In claiming the consent decree relates to her claims, Loescher points out that the decree states 25 “[a]ll housing units shall be kept clean . . . and plumbing facilities will be maintained in working 26 order, with replacements and repairs undertaken as necessary.” Id. at 13. The County argues 27 “[t]he existence of the consent decree, however, does not support Monell liability against the 28 County.” Reply at 3. The County also points out that the Joint Status Reports contain “no 1 mention of any existing sanitation/cleanliness issues at the Plumas County Jail.” Id. at 3–4. The 2 County claims the Joint Status Reports show the consent decree did not address any sanitation 3 issue because when the jail was inspected by the Pederson plaintiff’s counsel just a few days 4 before Loescher’s arrest, counsel did not note any sanitation issues. See Joint Status Report 5 (October 15, 2018) at 1, Req. for Judicial Notice, ECF No. 42-1 (“Plaintiffs’ Counsel Lori Rifkin 6 and Paul Comiskey conducted an in-person inspection of the Plumas County Jail (“Jail”) on 7 August 27, 2018. Plaintiff’s Counsel observed progress by the Jail and did not observe violations 8 of the Consent Decree during this inspection, though Plaintiffs’ Counsel did note several 9 concerns” unrelated to sanitation.). 10 The court finds Loescher has not sufficiently plead a Monell claim as the operative 11 complaint does not include plausible allegations showing the state of the jail on the night of her 12 arrest represented more than an isolated incident. Although the report of the August 2018 13 inspection may establish the County’s compliance on that day, the court is not convinced the 14 report forecloses the possibility of Loescher’s ability to plead a Monell claim, whether or not she 15 is expressly covered by the Consent Decree. See note 3 supra. As evident from the County’s 16 own filing, it may not have always been in perfect compliance in recent years. See Joint Status 17 Report (June 25, 2015) at 2, Req. for Judicial Notice, ECF No. 42-1 (noting “the County [was] 18 out of compliance with the Decree on at least five of its requirements: inmate population levels, 19 staffing, access to a law library, the provision of mental healthcare, and allotments for exercise.”). 20 Because Loescher may yet be able to plead a custom or practice exists, the court 21 dismisses her Fourteenth Amendment due process claim against the County with leave to amend. 22 V. CONCLUSION 23 The court grants the motion to dismiss (ECF No. 39). 24 The court dismisses without leave to amend all claims against Sheriff Hagwood, as well 25 as the unreasonable search and seizure, equal protection, and cruel and unusual punishment 26 claims against the County. 27 The court dismisses with leave to amend the due process claim against the County. 28 ///// ] Any amended complaint shall be filed within 21 days and may include the claims against 2 | Luntey in the second amended complaint as those are not the subject of the motion to dismiss. 3 | Should plaintiff not file an amended complaint, the case will proceed on the operative complaint 4 | against Luntey only. 5 This order resolves ECF No. 39. 6 IT IS SO ORDERED. 7 | DATED: January 13, 2022. [\ (] 8 ( ti / { q_/ CHIEF NT] ED STATES DISTRICT JUDGE

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