1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SEAN MICHAEL PELTON, No. 2:21-CV-1968-TLN-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 AMADOR COUNTY, CALIFORNIA, 15 Defendant. 16 17 Plaintiff, who is proceeding pro se, brings this civil rights action pursuant to 42 18 U.S.C. § 1983. Pending before the Court is Defendant’s motion to dismiss. See ECF No. 14. 19 Plaintiff has filed an opposition. See ECF No. 15. Defendant has filed a reply. See ECF No. 16. 20 In considering a motion to dismiss, the Court must accept all allegations of 21 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The 22 Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer 23 v.Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 24 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All 25 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 26 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual 27 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). 28 In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. 1 See Haines v. Kerner, 404 U.S. 519, 520 (1972). 2 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 3 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 4 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 5 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 6 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 7 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 8 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 9 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 10 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 11 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 12 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 13 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 14 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 15 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 16 to relief.” Id. (quoting Twombly, 550 U.S. at 557). 17 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials 18 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 19 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1) 20 documents whose contents are alleged in or attached to the complaint and whose authenticity no 21 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 22 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 23 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 24 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 25 1994). 26 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 27 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 28 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 1 I. PLAINTIFF’S ALLEGATIONS 2 This action proceeds on Plaintiff’s original complaint. Plaintiff names Amador 3 County as the only defendant. Plaintiff is a 50-year-old pre-trial inmate housed in the Amador 4 County Jail. See ECF No. 1. Since his incarceration, Plaintiff has been unable to exercise because 5 the jail has not made any meaningful recreational space available. Id. As a result of being unable 6 to exercise, Plaintiff suffers from an increase in blood pressure, depression, loss of appetite, 7 lethargy, anxiety, and stiffening of the legs and back. Id. Plaintiff alleges the County of Amador 8 and the Amador County Jail staff, through its Covid-19 polices, have shown deliberate 9 indifference to his Eighth and Fourteenth amendment rights. Id. at 5. 10 At the time of his complaint, Plaintiff was 60 pounds overweight. Id. at 6. While 11 incarcerated, Plaintiff lost 20 pounds due to loss of appetite. Id. Additionally, Plaintiff has a 12 previous shoulder injury and increasing stiffness in his back and legs, which prevents Plaintiff 13 from performing strenuous exercises, such as pushups. Id. Because of this, Plaintiff alleges he 14 cannot exercise in his cell. Id. 15 According to Plaintiff, the Amador County Jail is a small facility with only a 16 single outdoor exercise yard. Id. at 3. For approximately 18 months, the outdoor exercise yard 17 has been closed to all inmates because jail staff placed a Covid-19 tent in the yard. Id. The 18 Covid-19 tent on the outdoor exercise yard is relatively small. Id. at 5. The tent can hold 19 approximately six people and could be set up in a matter of hours. Id. Since the tent was put up, 20 no inmate has been housed or quarantined in it, even after two Covid-19 outbreaks occurred at the 21 Amador County Jail. Id. at 3. 22 One of the outbreaks occurred on September 23, 2021, when five inmates tested 23 positive for Covid-19. Id. at 3. Instead of housing the infected inmates in the Covid-19 tent, jail 24 staff placed all inmates who were housed in cells in the pod. Id. Three inmates who had 25 cellmates that tested positive for Covid-19 were not quarantined but instead left in their cells. Id. 26 / / / 27 / / / 28 / / / 1 The jail offers 5.5 hours of dayroom each day. Id. at 4. The dayroom is 2 rectangular in shape and is approximately 16 feet by 20 feet large. Id. Within the dayroom there 3 are 4 tables, two three-tiered bunk beds, two single person shower stalls, and a stairway which 4 occupies one wall. Id. The day room houses seven inmates. Id. at 3. Generally, there are 12 to 20 5 inmates in the dayroom at any time leaving no room to exercise. Id. at 5. Additionally, there is no 6 clear path along the dayroom’s perimeter that would allow inmates to walk laps around the room. 7 Id. 8 Plaintiff alleges there is no internal option to address his exercise issue within the 9 jail. Id. at 4-5. Plaintiff alleges jail staff will not provide administrative remedies for Covid-19 10 related issues, including his exercise claim. Id. Plaintiff alleges it is not jail policy to accept 11 grievances regarding anything which has to do with Covid-19 issues. Plaintiff alleges the exercise 12 yard falls in this category due to the Covid-19 tent. Id. 13 Based on these allegations, Plaintiff contends that jail staff violated his Eighth 14 and Fourteenth Amendment rights by denying him access to exercise. Id. at 5. Further, Plaintiff 15 contends Amador County is liable for the violation of his rights by jail staff. Id. Plaintiff seeks 16 injunctive relief from the court ordering Amador County to remove the Covid-19 tent, $1,000,000 17 in actual damages, and $10,000,000 in punitive damages. Id. at 6. 18 19 II. DISCUSSION 20 In its motion to dismiss, Defendant argues the action should be dismissed because: 21 (1) Plaintiff has failed to exhaust administrative remedies prior to filing suit; (2) Plaintiff’s claim 22 fails because he has not alleged a physical injury; (3) Plaintiff cannot sustain a claim against 23 Amador County because he does not allege facts to show an underlying violation of his rights; 24 and (4) Plaintiff fails to allege facts showing jail staff acted pursuant to a policy or custom of the 25 county. 26 / / / 27 / / / 28 / / / 1 A. Exhaustion 2 Defendant argues the Court should grant its motion to dismiss because the Prison 3 Litigation Reform Act (“PLRA”) requires inmates, including pretrial detainees, to exhaust 4 available administrative remedies before filing civil actions in federal court and Plaintiff failed to 5 do so in this case. 6 Prisoners seeking relief under § 1983 must exhaust all available administrative 7 remedies prior to bringing suit. See 42 U.S.C. § 1997e(a). This requirement is mandatory 8 regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001) (overruling 9 Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999)). Because exhaustion must precede the filing of 10 the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative remedies 11 while the lawsuit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The 12 Supreme Court addressed the exhaustion requirement in Jones v. Bock, 549 U.S. 199 (2007), and 13 held: (1) prisoners are not required to specially plead or demonstrate exhaustion in the complaint 14 because lack of exhaustion is an affirmative defense which must be pleaded and proved by the 15 defendants; (2) an individual named as a defendant does not necessarily need to be named in the 16 grievance process for exhaustion to be considered adequate because the applicable procedural 17 rules that a prisoner must follow are defined by the particular grievance process, not by the 18 PLRA; and (3) the PLRA does not require dismissal of the entire complaint if only some, but not 19 all, claims are unexhausted. The defendant bears burden of showing non-exhaustion in the first 20 instance. See Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). If met, the plaintiff bears the 21 burden of showing that the grievance process was not available, for example because it was 22 thwarted, prolonged, or inadequate. See id. 23 The Supreme Court held in Woodford v. Ngo that, in order to exhaust 24 administrative remedies, the prisoner must comply with all of the prison system’s procedural 25 rules so that the agency addresses the issues on the merits. See 548 U.S. 81, 89-96 (2006). Thus, 26 exhaustion requires compliance with “deadlines and other critical procedural rules.” Id. at 90. 27 Partial compliance is not enough. See id. Substantively, the prisoner must submit a grievance 28 which affords prison officials a full and fair opportunity to address the prisoner’s claims. See id. 1 at 90, 93. The Supreme Court noted that one of the results of proper exhaustion is to reduce the 2 quantity of prisoner suits “because some prisoners are successful in the administrative process, 3 and others are persuaded by the proceedings not to file an action in federal court.” Id. at 94. 4 When reviewing exhaustion under California prison regulations which have since been amended, 5 the Ninth Circuit observed that, substantively, a grievance is sufficient if it “puts the prison on 6 adequate notice of the problem for which the prisoner seeks redress. . . .” Griffin v. Arpaio, 557 7 F.3d 1117, 1120 (9th Cir. 2009); see also Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) 8 (reviewing exhaustion under prior California regulations). 9 In Ross v. Blake, 578 U.S. 632 (2016), the Supreme Court [held] that § 1997e(a) 10 requires an inmate to exhaust only those grievance procedures “that are capable of use to obtain 11 some relief for the action complained of.” By way of a non-exhaustive list, the Court recognized 12 three circumstances in which an administrative remedy was not capable of use to obtain relief 13 despite being officially available to the inmate: (1) when the administrative procedure “operates 14 as a simple dead end” because officers are “unable or consistently unwilling to provide any relief 15 to aggrieved inmates”; (2) when the administrative scheme is “so opaque that it becomes, 16 practically speaking, incapable of use” because “no ordinary prisoner can discern or navigate it”; 17 and (3) when prison administrators “thwart inmates from taking advantage of a grievance process 18 through machination, misrepresentation, or intimidation.” Id. at 1859–60. 19 Defendant argues the Court should grant its motion to dismiss because the facts 20 alleged in the complaint make clear that Plaintiff failed to exhaust his administrative remedies 21 prior to filing suit. Defendant argues that, within his Complaint, Plaintiff affirmatively states that 22 he did not submit a request for administrative relief. Defendant also asserts that, even if jail staff 23 did not accept Defendant’s grievance because the jail did not accept Covid-19 related grievances, 24 Plaintiff could have filed a grievance violation for his right to exercise. According to Defendant:
25 Here, on the face of the Complaint it is evident that Plaintiff has not exhausted his administrative remedies. Plaintiff alleges he did not 26 submit a request for administrative relief on his claim. Complaint at p. 3. He may argue that grievances procedures are not available because the jail 27 is not accepting Covid-19 related grievances. However, Plaintiff’s claim is for violation of his right to exercise, which is much broader than his 28 specific issue with the placement of the Covid-19 tent on the yard. 1 Plaintiff’s right to have access to exercise may be fulfilled outdoors or indoors. Even if the jail will not allow him to file a grievance on the 2 narrow issue of the placement of the Covid-19 tent on the yard, as alleged, he can still file a grievance regarding his right to exercise. In other words, 3 he has plead no facts to establish that he cannot file a grievance requesting access to meaningful exercise in general, and thus this claim should be 4 dismissed for failure to exhaust administrative remedies.
5 ECF No. 14, pg. 5 6 Defendant’s argument is not persuasive. At this stage of the proceedings, the 7 Court must accept all of the allegations in the complaint as true. Here, Plaintiff states in his 8 complaint that “[a]dministrative remedies are not accepted for Covid-19 related issues, including 9 the yard.” ECF No. 1, pg. 3. Construed in Plaintiff’s favor, the Court finds this allegation broad 10 enough to encompass a grievance relating to the exercise yard. Thus, on the face of the 11 complaint, Plaintiff has alleged that there is no available grievance process concerning the issue 12 raised in the complaint – availability of an exercise yard. This interpretation is confirmed by 13 Plaintiff’s opposition to Defendant’s motion in which he more clearly states that the jail does not 14 provide any sort of grievance process whatsoever. See ECF No. 15. 15 As the Ninth Circuit has observed, exhaustion is best considered in the context of a 16 motion for summary judgment unless the failure to exhaust is clear on the face of the complaint. 17 See Albino v. Baca 747 F.3d 1162 (9th Cir. 2014). In this case, the face of the complaint does not 18 make clear a failure to exhaust. Instead, Plaintiff alleges, albeit not as clearly as might be 19 preferred, that there is no available grievance process. The Court will recommend denial of 20 Defendant’s motion to dismiss on the issue of exhaustion, without prejudice to renewal on 21 summary judgment. 22 B. Failure to Allege Physical Injury 23 The PLRA states that “[n]o Federal civil action may be brought by a prisoner 24 confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered 25 while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e); see also 28 26 U.S.C. § 1346(b)(2) (similar provision added to the Federal Tort Claims Act). This provision 27 “requires a prior showing of physical injury that need not be significant but must be more than de 28 minimis.” Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002); see also Grenning v. Miller-Stout, 1 739 F.3d 1235, 1238 (9th Cir. 2014); Pierce v. Cnty. of Orange, 526 F.3d 1190, 1223–24 (9th Cir. 2 2008); Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003). The provision does not apply to 3 allegations of constitutional violations not premised on mental or emotional injury. See Oliver, 4 289 F.3d at 630 (Fourteenth Amendment claims); Canell v. Lightner, 143 F.3d 1210, 1213 (9th 5 Cir. 1998) (First Amendment claims). 6 According to Defendant:
7 Here, Plaintiff’s injuries are purely mental or emotional. Plaintiff alleges that he has suffered from stiffness in his back and legs, rising 8 blood pressure, depression, loss of appetite, lethargy, and anxiety. Complaint at p. 3. Accepting these allegations as true, all of these injuries 9 are physical manifestations of the mental or emotional anxiety, and are exactly the kinds of de minimis mental or emotional injuries that the 10 PLRA is designed to protect against. As such, this action should be dismissed. 11 ECF No. 14, pgs. 5-6. 12 13 Defendant’s argument is not persuasive. In the complaint, Plaintiff alleges a 14 violation of his constitutional right to access to exercise while in jail. For damages resulting from 15 this violation, Plaintiff alleges: “My back and legs are becoming stiff, my blood pressure has risen 16 by more than 20 points, depression, loss of appetite, I’m becoming lethargic and anxiety that I 17 will be held in these conditions for a full county jail prison term.” ECF No. 1, pg. 3. While 18 Plaintiff has alleged some type of mental or emotional damage, Plaintiff’s claim is not premised 19 on a mental or emotional injury. Instead, the claim is premised on the alleged denial of exercise 20 opportunities. The Court simply does not agree with Defendant that “all of” the damages listed 21 are “physical manifestations of” mental or emotional injury. To the contrary, Plaintiff very 22 clearly alleges non-emotional damages, such as increased blood pressure as well as back and leg 23 stiffness. 24 C. Liability of Amador County 25 Defendant argues Plaintiff cannot sustain a claim against Amador County because 26 Plaintiff does not allege facts to show an underlying violation of his constitutional rights. 27 Defendant also argues that the complaint is insufficient to establish municipal liability because 28 Plaintiff has not alleged that jail staff acted pursuant to an official custom or policy of Amador 1 County. 2 1. Underlying Constitutional Violation 3 Exercise has been recognized as “one of the basic human necessities protected by 4 the Eighth Amendment” and the same is true under the Fourteenth Amendment. Norbert v. City 5 and County of San Francisco, 10 F.4th 918, 928 (citing May v. Baldwin, 109 F.3d 557, 565 (9th 6 Cir. 1997). “Deprivation of outdoor exercise violates the Eighth Amendment rights of inmates 7 confined to continuous and long-term segregation.” Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 8 1996) (citing Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979)), amended by 135 F.3d 1318 9 (9th Cir. 1998); see also Thomas v. Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010); Richardson 10 v.Runnels, 594 F.3d 666, 672 (9th Cir. 2010); Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 11 2005); Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir. 2000) (en banc); Allen v. Sakai, 48 F.3d 12 1082, 1087 (9th Cir. 1995); Allen v. City of Honolulu, 39 F.3d 936, 938-39 (9th Cir. 1994); 13 LeMaire v. Maass, 12 F.3d 1444, 1457-58 (9th Cir. 1993); Toussaint v. Yockey, 722 F.2d 1490, 14 1492-93 (9th Cir. 1984). “[A] temporary denial of outdoor exercise with no medical effects is not 15 a substantial deprivation.” May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997); see also Noble v. 16 Adams, 636 F.3d 525, 531 (9th Cir. 2011) (concluding prison officials were entitled to qualified 17 immunity from § 1983 claim that post-riot lockdown of prison resulted in denial of Eighth 18 Amendment right to exercise); Norwood v. Vance, 591 F.3d 1062, 1070 (9th Cir. 2010) 19 (recognizing that temporary denial of outdoor exercise with no medical effects is not a substantial 20 deprivation); Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998). 21 Relying on Norbert, Defendant argues: (1) Plaintiff does not plead facts to 22 establish deprivation of meaningful exercise opportunities; and (2) Plaintiff fails to allege he 23 suffered injury beyond the inherent discomforts of confinement. Defendant also argues that, even 24 if Plaintiff has alleged sufficient facts to show a denial of meaningful exercise opportunities, the 25 tent placement served a legitimate penological purpose and was not punishment. For the reasons 26 discussed below, these arguments are not persuasive. 27 / / / 28 / / / 1 i. Meaningful Exercise Opportunities 2 Defendant argues Plaintiff’s allegation that he has “been given no opportunity for 3 exercise” is conclusory and fails to show an underlying rights violation. According to Defendant:
4 . . . Even if the outdoor exercise yard has been closed due to the placement of a Covid-19 tent, as he alleges, he has not demonstrated that 5 he is without other opportunities for meaningful recreation. He claims that he cannot exercise in his cell because he is unable to do pushups. 6 However, he has not provided any other details regarding the size of his cell, and has provided no facts to show that he cannot perform other means 7 of exercise besides pushups in his cell. Additionally, the pleadings concede that he has 5.5 hours per day in a day room, which is similar to 8 the constitutional exercise opportunities in Norbert. While Plaintiff makes a conclusory allegation that there is no room to perform exercise in the 9 day room, he provides no reason he cannot perform some sort of exercise. He merely states that it is crowded due to people, tables, and bunk beds. 10 However, just because there is no clear path around the perimeter does not mean he cannot walk around in another path or do other light exercise. 11 Here, Plaintiff has access to a day room 5.5 hours a day and thus is not unconstitutionally restrained. 12 ECF No. 14, pg. 7. 13 14 The Court is unpersuaded by this argument. Plaintiff has sufficiently alleged in his 15 complaint that he is unable to exercise in his cell and is unable to exercise in the dayroom due to 16 overcrowding. Additionally, unlike Norbert where the dayroom was large enough to allow for 17 some space for limited exercise and there was access to an exercise yard, the dayroom at the 18 Amador County Jail is alleged to be so overcrowded with persons and objects that there is no 19 space available for limited exercises such as walking the perimeter of the room. The Court must 20 assume the allegations in the complaint are true. Doing so, the Court finds that the current 21 allegations are sufficient to establish a prima facie case of denial of access to meaningful exercise 22 opportunities at the Amador County Jail. 23 ii. Injury Beyond Inherent Discomforts of Confinement 24 Defendant also argues Plaintiff fails to allege an injury beyond the inherent 25 discomforts of confinement. Without citation to any authority, Defendant asks the Court to find 26 that the injuries and damages alleged by Plaintiff as a result of lack of exercise do not 27 significantly exceed the ordinary discomforts of incarceration. See ECF No. 14, pg. 8. The Court 28 cannot do so. Indeed, Plaintiff’s allegations of increased blood pressure, back and leg problems, 1 depression, and anxiety all stem from the alleged lack of exercise, which itself is not a permitted 2 discomfort of confinement. This is not, as Defendant argues, akin to finding that incarceration 3 itself is unconstitutional. Rather, the Court finds that Plaintiff’s allegations, which are accepted 4 as true, show injury beyond the ordinary discomforts of Plaintiff’s confinement. To this point, 5 the complaint indicates that the alleged damages and injuries would not be present but for the lack 6 of exercise and, thus, are not merely the ordinary discomforts of confinement. 7 iii. Penological Interest in Placement of Covid-19 Tent 8 Defendant argues even if Plaintiff’s ability to exercise was affected, the placement 9 of the Covid-19 tent was part of a legitimate penological purpose to protect inmate health. This 10 argument would be persuasive if the placement of the Covid-19 tent in the exercise yard was the 11 only concern. In his complaint, however, Plaintiff alleges denial of exercise opportunities 12 stemming from lack of adequate indoor space as well as placement of the Covid-19 tent in the 13 available outdoor yard. In essence, the reasons for placement of the Covid-19 tent are immaterial. 14 2. Municipal Policy or Custom 15 A local governmental unit may not be held responsible for the acts of its 16 employees under a respondeat superior theory of liability. See Bd. of Cty. Comm’rs v. Brown, 17 520 U.S. 397, 403 (1997); Collins v. City of Harker Heights, 503 U.S. 115, 121 (1992); City of 18 Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 19 691 (1978); Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008); Webb v. Sloan, 330 F.3d 1158, 20 1163-64 (9th Cir. 2003); Gibson v. Cty. of Washoe, 290 F.3d 1175, 1185 (9th Cir. 2002); Hopper 21 v.City of Pasco, 241 F.3d 1067, 1082 (9th Cir. 2001). “Because vicarious liability is inapplicable 22 to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, 23 through the official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 24 556 U.S. 662, 676 (2009); see also Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (discussing 25 Iqbal and explaining that “when a supervisor is found liable based on deliberate indifference, the 26 supervisor is being held liable for his or her own culpable action or inaction, not held vicariously 27 liable for the culpable action or inaction of his or her subordinates.”). 28 / / / 1 Therefore, a plaintiff must go beyond the respondeat superior theory of liability 2 and demonstrate that the alleged constitutional deprivation was the product of a policy or custom 3 of the local governmental unit, because municipal liability must rest on the actions of the 4 municipality, and not the actions of the employees of the municipality. See Brown, 520 U.S. at 5 403; City of Canton, 489 U.S. at 385; Monell, 436 U.S. at 690-91; Fogel, 531 F.3d at 834; Webb, 6 330 F.3d at 1164; Gibson, 290 F.3d at 1187; Hopper, 241 F.3d at 1082; Blair v. City of Pomona, 7 223 F.3d 1074, 1079 (9th Cir. 2000); Oviatt v. Pearce, 954 F.2d 1470, 1473-74 (9th Cir. 1992). 8 See also Connick v. Thompson, 563 U.S. 51, 60 (2011) (explaining that to impose liability on a 9 local government under § 1983 the plaintiffs must prove that an “action pursuant to official 10 municipal policy” caused their injury); Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d 11 1154, 1167-68 (9th Cir. 2014) (same). The Supreme Court has emphasized that “[w]here a 12 plaintiff claims that the municipality . . . has caused an employee to [violate plaintiff’s 13 constitutional rights], rigorous standards of culpability and causation must be applied to ensure 14 that the municipality is not held liable solely for the actions of its employee.” Brown, 520 U.S. at 15 405. The “policy or custom” requirement applies irrespective of whether the remedy sought is 16 money damages or prospective relief. Los Angeles Cty., Cal. v. Humphries, 562 U.S. 29, 34 17 (2010). 18 Even if there is not an explicit policy, a plaintiff may establish municipal liability 19 upon a showing that there is a permanent and well-settled practice by the municipality which gave 20 rise to the alleged constitutional violation. See City of St. Louis v. Praprotnik, 485 U.S. 112, 127 21 (1988); Navarro v. Block, 72 F.3d 712, 714-15 (9th Cir. 1996); Thompson v. City of Los 22 Angeles, 885 F.2d 1439, 1444 (9th Cir. 1989), overruled on other grounds by Bull v. City & Cty. 23 of San Francisco, 595 F.3d 964 (9th Cir. 2010). Allegations of random acts, or single instances of 24 misconduct, however, are insufficient to establish a municipal custom. See Navarro, 72 F.3d at 25 714; Thompson, 885 F.2d at 1444. Once the plaintiff has demonstrated that a custom existed, the 26 plaintiff need not also demonstrate that “official policy-makers had actual knowledge of the 27 practice at issue.” Navarro, 72 F.3d at 714-15; Thompson, 885 F.2d at 1444. But see Blair v. City 28 of Pomona, 223 F.3d 1074, 1080 (9th Cir. 2000) (“open to the [municipality] to show that the 1 custom was not known to the policy-makers”). 2 A plaintiff may establish municipal liability by pleading facts showing conduct 3 consistent with a formal government policy or longstanding practice or custom; conduct by an 4 official with final policy-making authority; or ratification of another official’s conduct by 5 someone with final policy-making authority. See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 6 1996). In addition, the plaintiff must show that the policy or custom was implemented or ratified 7 with deliberate indifference to the likelihood that it would violate constitutional rights. See Oviatt 8 By and Through Waugh v. Pearce, 954 F.2d 1470 (9th Cir. 1992). 9 Defendant argues that Plaintiff fails to sufficiently allege facts to implicate 10 Amador County. Defendant asserts Plaintiff fails to show: (1) Jail staff acted pursuant to a county 11 policy or custom; (2) an unconstitutional act by a policy-making official; (3) ratification of a 12 constitutional violation by policy makers; or (4) Plaintiff fails to show deliberate indifference by 13 Amador County. These arguments are well-taken and the Court agrees that Plaintiff’s complaint 14 does not contain sufficient allegations regarding an official policy or custom to establish the 15 liability of Amador County. Defendant’s motion to dismiss should be granted on the basis of 16 failure to allege sufficient facts to establish municipal liability. Plaintiff should be provided leave 17 to amend. 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IH. CONCLUSION 2 Based on the foregoing, the undersigned recommends that Defendants’ motion to 3 || dismiss, ECF No. 14, be granted and that Plaintiff be provided leave to file a second amended 4 || complaint. 5 These findings and recommendations are submitted to the United States District 6 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 7 || after being served with these findings and recommendations, any party may file written objections 8 | with the Court. Responses to objections shall be filed within 14 days after service of objections. 9 || Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 10 | Yist, 951 F.2d 1153 (9th Cir. 1991). 1] 12 || Dated: February 8, 2023 Ss..c0_, 13 DENNIS M. COTA 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14