1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHELLE SAXTON, et al., Case No. 21-cv-09499-SI
8 Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' 9 v. MOTION TO DISMISS FIRST AMENDED CONSOLIDATED 10 COUNTY OF SONOMA, et al., COMPLAINT 11 Defendants. Re: Dkt. No. 120
12 On September 6, 2024, the Court held a hearing on defendants’ motion to dismiss certain 13 causes of action alleged in the first amended consolidated complaint (“FACC”). For the reasons set 14 forth below, the Court GRANTS the motion as to the first cause of action and DENIES the balance 15 of the motion. 16
17 DISCUSSION 18 I. First Cause of Action 19 The first cause of action is brought by the Saxton plaintiffs pursuant to 42 U.S.C. § 1983, 20 and alleges that all defendants “failed to intervene” in various ways to prevent fentanyl from being 21 smuggled into the Main Adult Detention Facility (“MADF”) in Sonoma County, where Marcotte 22 was being housed. FACC ¶¶ 154-164. That cause of action alleges, 23 157. Though the Sheriff’s MADF staff were, like the inmates in the Jail, well aware 24 that the most common method of smuggling narcotics into the MADF was for an inmate worker in booking to receive drugs from detainees in the booking area and 25 then walk the drugs into the Modules, the Sheriff did nothing to bolster security in the booking area in the five months that there was no operational body scanner in the 26 MADF. Though the Sheriff’s staff could have suspended their use of narcotics offenders as inmate workers in booking, or implemented cavity searches or 27 mandatory strip searches of the inmate workers in booking, or instituted canine searches of the inmate workers in booking, the Sheriff instead did nothing to 158. On October 28, 2020, the MADF staff knew, at about 10:00 p.m., or 1 approximately six hours before Amber Marcotte and Tiffany Pimentel ingested the fentanyl that that caused them both to overdose, that Frankie Thompson and Bianca 2 Navarro were in possession of large amounts of fentanyl inside the booking area of the MADF since about 1:30 in the afternoon. The MADF staff also knew, or should 3 have known since it occurred directly in front of numerous staff, that over the course of the afternoon and early evening, Tiffany Pimentel had extensively interacted with 4 Thompson and Navarro, had asked to release money to Thompson’s mother, had not been subjected to a cavity search or body scan before returning to the D Module, and 5 that Pimentel, Thompson and Navarro had all exhibited objective signs of opioid intoxication in the book/wait area. 6 159. Despite these clear warning signs, once correctional officers discovered that 7 Navarro and Thompson had been holding fentanyl all afternoon in the book/wait area, the MADF correctional staff conducted no follow-up investigation. The MADF 8 staff did not review the video recordings that were readily available to them and captured the hand-to-hand drug transaction between Pimentel and Thompson. The 9 MADF staff also failed to search Pimentel’s cell, though they were well aware she had interacted with Thompson and that Thompson was in possession of fentanyl the 10 entire time he spoke with and handed items to Pimentel. 11 160. Had the MADF staff conducted even basic investigatory steps following their discovery that Thompson had possessed fentanyl in the book/wait area over the entire 12 afternoon, they could have prevented Amber Marcotte’s death. Instead, the jail staff did nothing in response to their discovery of Thompson’s possession of fentanyl. 13 FACC ¶¶ 157-160. 14 Defendants contend that the Saxton plaintiffs have failed to state a claim under this cause of 15 action because the allegations do not show that defendants violated the Eighth Amendment by acting 16 with subjective and objective deliberate indifference with regard to Marcotte and her health and 17 safety.1 Defendants argue that Marcotte should be considered a convicted prisoner subject to the 18 Eighth Amendment because the Ninth Circuit previously treated a prisoner who was convicted, but 19 not yet sentenced, as a convicted prisoner rather than a pretrial detainee. See Resnick v. Hayes, 213 20 F.3d 443, 447-48 (9th Cir. 2000).2 Plaintiffs contend that the Fourteenth Amendment’s standard of 21
22 1 The parties’ briefing does not address the difference in analysis of claims brought against entities such as the Sonoma County Sheriff’s Department versus individuals such as Sheriff Essick 23 in his individual capacity. Because the Court finds that the FACC does not state a claim for failure to intervene, the Court does not address the difference between § 1983 Monell claims against entities 24 versus § 1983 claims against individuals. However, on summary judgment the parties are directed to focus their analysis. 25
2 During the earlier motions to dismiss in the Saxton case, the parties assumed that the 26 Fourteenth Amendment standard applied, and defendants did not contend that Marcotte should be treated as a convicted prisoner. In the McGinnis case, defendants argued in a footnote that the 27 Eighth Amendment should apply, but did not cite Resnick or any authority for the proposition that 1 objective deliberate indifference applies because Marcotte should be considered a pretrial detainee 2 because she had not yet been sentenced. Plaintiffs also contend that under either standard, the new 3 allegations are sufficient to show that defendants were deliberately indifferent in their failure to take 4 reasonable measures to abate a serious risk of harm to Marcotte. 5 The Court agrees with defendants that under Resnick, because Marcotte had entered a plea 6 at the time of her death, she should be considered as a convicted inmate rather than a pretrial 7 detainee.3 In Resnick, a plaintiff who was convicted but not yet sentenced was found using narcotics 8 in the prison. Id. at 445. As punishment for the narcotics use, the inmate was placed in the prison’s 9 Special Housing Unit (SHU). Id. The inmate filed suit claiming that his placement in the SHU 10 violated his constitutional rights. The Ninth Circuit stated, “the question here is whether, for 11 purposes of analyzing whether [p]laintiff had a liberty interest in being free from confinement in the 12 SHU, he should be treated as a pretrial detainee or as a sentenced inmate.” Id. at 448. The Ninth 13 Circuit found “precedent from other circuits supports treating [p]laintiff as a sentenced inmate,” and 14 thus analyzed the case as if the plaintiff was a sentenced inmate, even though he was not formally 15 sentenced at the time of the events. See id. (citing Whitnack v. Douglas County, 16 F.3d 954, 957 16 (8th Cir. 1994), and Berry v. Muskogee, Okl., 900 F.2d 1489, 1493 (10th Cir. 1990). 17 Plaintiffs argue that Resnick should be read narrowly to apply only when an inmate 18 challenges conditions of confinement as punitive. However, they do not cite any cases interpreting 19 Resnick in that manner. Further, the Court notes that Berry v. Muskogee, one of the cases relied 20 upon by the Ninth Circuit in Resnick, involved claims similar to the first cause of action. In Berry, 21 a man who had been convicted but not yet sentenced was murdered by fellow inmates in the jail, 22 and his wife and children brought claims under the Fourteenth Amendment alleging that “city 23 officials were responsible for the conditions which permitted the murder to occur.” Berry, 900 F.2d 24 at 1494. The only case cited by plaintiffs that directly supports categorizing Marcotte as a pretrial 25 detainee is Redbird v. Las Vegas Metro Police Dep’t, Case No.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHELLE SAXTON, et al., Case No. 21-cv-09499-SI
8 Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' 9 v. MOTION TO DISMISS FIRST AMENDED CONSOLIDATED 10 COUNTY OF SONOMA, et al., COMPLAINT 11 Defendants. Re: Dkt. No. 120
12 On September 6, 2024, the Court held a hearing on defendants’ motion to dismiss certain 13 causes of action alleged in the first amended consolidated complaint (“FACC”). For the reasons set 14 forth below, the Court GRANTS the motion as to the first cause of action and DENIES the balance 15 of the motion. 16
17 DISCUSSION 18 I. First Cause of Action 19 The first cause of action is brought by the Saxton plaintiffs pursuant to 42 U.S.C. § 1983, 20 and alleges that all defendants “failed to intervene” in various ways to prevent fentanyl from being 21 smuggled into the Main Adult Detention Facility (“MADF”) in Sonoma County, where Marcotte 22 was being housed. FACC ¶¶ 154-164. That cause of action alleges, 23 157. Though the Sheriff’s MADF staff were, like the inmates in the Jail, well aware 24 that the most common method of smuggling narcotics into the MADF was for an inmate worker in booking to receive drugs from detainees in the booking area and 25 then walk the drugs into the Modules, the Sheriff did nothing to bolster security in the booking area in the five months that there was no operational body scanner in the 26 MADF. Though the Sheriff’s staff could have suspended their use of narcotics offenders as inmate workers in booking, or implemented cavity searches or 27 mandatory strip searches of the inmate workers in booking, or instituted canine searches of the inmate workers in booking, the Sheriff instead did nothing to 158. On October 28, 2020, the MADF staff knew, at about 10:00 p.m., or 1 approximately six hours before Amber Marcotte and Tiffany Pimentel ingested the fentanyl that that caused them both to overdose, that Frankie Thompson and Bianca 2 Navarro were in possession of large amounts of fentanyl inside the booking area of the MADF since about 1:30 in the afternoon. The MADF staff also knew, or should 3 have known since it occurred directly in front of numerous staff, that over the course of the afternoon and early evening, Tiffany Pimentel had extensively interacted with 4 Thompson and Navarro, had asked to release money to Thompson’s mother, had not been subjected to a cavity search or body scan before returning to the D Module, and 5 that Pimentel, Thompson and Navarro had all exhibited objective signs of opioid intoxication in the book/wait area. 6 159. Despite these clear warning signs, once correctional officers discovered that 7 Navarro and Thompson had been holding fentanyl all afternoon in the book/wait area, the MADF correctional staff conducted no follow-up investigation. The MADF 8 staff did not review the video recordings that were readily available to them and captured the hand-to-hand drug transaction between Pimentel and Thompson. The 9 MADF staff also failed to search Pimentel’s cell, though they were well aware she had interacted with Thompson and that Thompson was in possession of fentanyl the 10 entire time he spoke with and handed items to Pimentel. 11 160. Had the MADF staff conducted even basic investigatory steps following their discovery that Thompson had possessed fentanyl in the book/wait area over the entire 12 afternoon, they could have prevented Amber Marcotte’s death. Instead, the jail staff did nothing in response to their discovery of Thompson’s possession of fentanyl. 13 FACC ¶¶ 157-160. 14 Defendants contend that the Saxton plaintiffs have failed to state a claim under this cause of 15 action because the allegations do not show that defendants violated the Eighth Amendment by acting 16 with subjective and objective deliberate indifference with regard to Marcotte and her health and 17 safety.1 Defendants argue that Marcotte should be considered a convicted prisoner subject to the 18 Eighth Amendment because the Ninth Circuit previously treated a prisoner who was convicted, but 19 not yet sentenced, as a convicted prisoner rather than a pretrial detainee. See Resnick v. Hayes, 213 20 F.3d 443, 447-48 (9th Cir. 2000).2 Plaintiffs contend that the Fourteenth Amendment’s standard of 21
22 1 The parties’ briefing does not address the difference in analysis of claims brought against entities such as the Sonoma County Sheriff’s Department versus individuals such as Sheriff Essick 23 in his individual capacity. Because the Court finds that the FACC does not state a claim for failure to intervene, the Court does not address the difference between § 1983 Monell claims against entities 24 versus § 1983 claims against individuals. However, on summary judgment the parties are directed to focus their analysis. 25
2 During the earlier motions to dismiss in the Saxton case, the parties assumed that the 26 Fourteenth Amendment standard applied, and defendants did not contend that Marcotte should be treated as a convicted prisoner. In the McGinnis case, defendants argued in a footnote that the 27 Eighth Amendment should apply, but did not cite Resnick or any authority for the proposition that 1 objective deliberate indifference applies because Marcotte should be considered a pretrial detainee 2 because she had not yet been sentenced. Plaintiffs also contend that under either standard, the new 3 allegations are sufficient to show that defendants were deliberately indifferent in their failure to take 4 reasonable measures to abate a serious risk of harm to Marcotte. 5 The Court agrees with defendants that under Resnick, because Marcotte had entered a plea 6 at the time of her death, she should be considered as a convicted inmate rather than a pretrial 7 detainee.3 In Resnick, a plaintiff who was convicted but not yet sentenced was found using narcotics 8 in the prison. Id. at 445. As punishment for the narcotics use, the inmate was placed in the prison’s 9 Special Housing Unit (SHU). Id. The inmate filed suit claiming that his placement in the SHU 10 violated his constitutional rights. The Ninth Circuit stated, “the question here is whether, for 11 purposes of analyzing whether [p]laintiff had a liberty interest in being free from confinement in the 12 SHU, he should be treated as a pretrial detainee or as a sentenced inmate.” Id. at 448. The Ninth 13 Circuit found “precedent from other circuits supports treating [p]laintiff as a sentenced inmate,” and 14 thus analyzed the case as if the plaintiff was a sentenced inmate, even though he was not formally 15 sentenced at the time of the events. See id. (citing Whitnack v. Douglas County, 16 F.3d 954, 957 16 (8th Cir. 1994), and Berry v. Muskogee, Okl., 900 F.2d 1489, 1493 (10th Cir. 1990). 17 Plaintiffs argue that Resnick should be read narrowly to apply only when an inmate 18 challenges conditions of confinement as punitive. However, they do not cite any cases interpreting 19 Resnick in that manner. Further, the Court notes that Berry v. Muskogee, one of the cases relied 20 upon by the Ninth Circuit in Resnick, involved claims similar to the first cause of action. In Berry, 21 a man who had been convicted but not yet sentenced was murdered by fellow inmates in the jail, 22 and his wife and children brought claims under the Fourteenth Amendment alleging that “city 23 officials were responsible for the conditions which permitted the murder to occur.” Berry, 900 F.2d 24 at 1494. The only case cited by plaintiffs that directly supports categorizing Marcotte as a pretrial 25 detainee is Redbird v. Las Vegas Metro Police Dep’t, Case No. 2:21-cv-00500-APG-VCF, 2021 26 WL 3634663 (D. Nev. Aug. 17, 2021). However, Redbird did not cite Resnick, and in holding that 27 1 the Fourteenth Amendment, the court stated “I am not aware of any cases in which the Ninth Circuit 2 || Court of Appeals has directly addressed whether the Eighth Amendment applies to individuals who 3 have been convicted or pleaded guilty but have not yet been sentenced,” and thus it appears that the 4 || Redbird court was not aware of Resnick. Id. at *3. 5 In the absence of any Ninth Circuit authority limiting Resnick to conditions of confinement 6 || claims, the Court concludes that Marcotte should be treated as a convicted prisoner and thus that the 7 || Eighth Amendment applies. Under that standard, plaintiffs must allege that “the official knows of 8 and disregards an excessive risk to inmate health or safety; the official must both be aware of facts 9 from which the inference could be drawn that a substantial risk of serious harm exists, and he must 10 also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). The Court concludes that 11 allegations in support of the first cause of action do not meet this standard. Plaintiffs do not allege 12 || that any deputies were aware that Thompson and Navarro had given fentanyl to Pimentel, that 13 Pimentel had given fentanyl to Marcotte, or that Marcotte ingested fentanyl. Thus, there are no facts 14 || to show that any official was aware of facts from which the inference could be drawn that there was 15 a substantial risk of serious harm to Marcotte. Accordingly, the Court GRANTS defendants’ motion 16 || to dismiss the first cause of action.
S 18 II. Remaining Issues 19 Defendants assert that Sheriff Essick is entitled to qualified immunity on the third cause of 20 action alleging failure to train under § 1983, and that all defendants are entitled to dismissal of the 21 negligence and negligent hiring claims. The Court concludes that as a pleading matter, the FACC 22 || is sufficient and that defendants may raise these arguments on summary judgment.* 23 IT IS SO ORDERED. 24 25 Dated: September 12, 2024 SUSAN ILLSTON 26 United States District Judge 27 28 “The Court notes that the close of fact discovery is on September 13, 2024, and a summary judgment hearing is scheduled for December 6, 2024.