Trejo v. County of Imperial

• Court: District Court, S.D. California
• Decided: June 26, 2023
• Docket: 3:20-cv-01465
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE TREJO, individually and as Case No.: 20-cv-1465-LAB-DDL successor in interest to JOSE 12 BANDA PICHARDO, et al., ORDER: 13 Plaintiffs, 1) GRANTING IN PART AND 14 v. DENYING IN PART MOTION 15 TO DISMISS THIRD COUNTY OF IMPERIAL, et al., AMENDED COMPLAINT, 16 Defendants. [Dkt. 112]; and 17 2) DENYING MOTION TO 18 STRIKE PORTIONS OF 19 THIRD AMENDED COMPLAINT, [Dkt. 110] 20

21 Plaintiffs Jose Trejo and Susan Banda (collectively, “Plaintiffs”) commenced 22 this action individually and as successors in interest to their deceased son, Jose 23 Banda Pichardo. In their Third Amended Complaint (“TAC”), they bring claims 24 against Defendants County of Imperial (the “County”), Sheriff Raymond Loera, 25 and California Forensic Medical Group (“CFMG”) (collectively, “Defendants”), 26 alleging that, as a result of Defendants’ negligence and deliberate indifference to 27 Pichardo’s mental health needs, Defendants are responsible for Pichardo’s death 28 while he was in custody at the Imperial County Regional Adult Detention Facility 1 (“ICRADF”). The TAC asserts claims for violations of Pichardo’s and their own 2 Fourteenth Amendment rights, negligence under common law and California 3 Government Code § 845.6, and wrongful death. 4 CFMG now moves to strike portions of the TAC. (Dkt. 110). For their part, 5 the County and Loera (collectively, “County Defendants”) separately move to 6 dismiss portions of the TAC, specifically the single claim brought against Loera 7 and the Monell claim brought against the County. (Dkt. 112). Having considered 8 the parties’ submissions and the relevant law, the Court DENIES CFMG’s motion 9 to strike, (Dkt. 110), and GRANTS IN PART and DENIES IN PART County 10 Defendants’ motion to dismiss, (Dkt. 112). The Court DISMISSES WITH 11 PREJUDICE all claims as against Loera. 12 I. BACKGROUND 13 The TAC’s relevant factual allegations and the reasonable inferences that 14 can be drawn in Plaintiffs’ favor are as follows. Pichardo suffered from, and had 15 been diagnosed with, depression, bipolar disorder, anxiety, and schizophrenia. 16 (Dkt. 107, TAC ¶ 16). He was on a regimen of various prescription medications 17 for these conditions when he was arrested on October 27, 2018. (Id. ¶¶ 17). 18 Pichardo was booked into ICRADF on the day he was arrested. (Id. ¶ 14). 19 At ICRADF, Pichardo was in the County’s custody and subject to policies issued 20 by Loera, the Sheriff of Imperial County. (See id. ¶ 8). As part of the booking 21 process, Pichardo underwent a preliminary medical and psychological screening. 22 (Id. ¶ 15). The TAC doesn’t expressly state whether Pichardo disclosed his mental 23 illnesses during this screening, but it’s reasonable to infer that he did. After 24 booking, Pichardo “was refused his medication and was placed in the general 25 population without any designation regarding his medical condition that would 26 alert those in charge of his care that he required monitoring, medical treatment, 27 psychological treatment, and follow-up care.” (Id. ¶ 18). 28 At some point after entering the County’s custody, Pichardo noticed his 1 mental health was deteriorating and asked Trejo to bring his medications to 2 ICRADF. (Id. ¶ 19). On November 8, 2018, deputies at ICRADF refused Trejo’s 3 request to bring Pichardo his medications. (Id. ¶ 20). On November 30, 2018, after 4 his father was turned away, Pichardo submitted a request to be seen by ICRADF 5 medical staff. (Id. ¶ 22). In his request, Pichardo complained that “I can’t sleep 6 and my anxiety is getting worse . . . I find myself talking to myself a lot.” (Id.). 7 Pichardo was scheduled for an appointment with a medical staff on December 3, 8 2018, but that appointment was rescheduled. (Id.). Pichardo eventually was seen 9 by ICRADF medical staff, (see id. ¶¶ 23, 37–38), but six subsequent appointments 10 were rescheduled between December 5, 2018 and January 29, 2019 due to time 11 constraints, (see id. ¶¶ 24, 30, 35, 36, 41), or staffing issues, (id. ¶ 29). 12 From the date of his arrest to his death, Pichardo reported worsening 13 symptoms, including hearing voices in his head that interfered with his sleep and 14 eating. (See id. ¶¶ 25, 28, 34). Other inmates reported that Pichardo started to 15 engage in concerning behaviors, including: “doing weird shit like wiping his ass 16 with his own hand,” (id. ¶ 54); “‘palming’ his medication (i.e., placing it in his hand 17 and not swallowing it),” (id. ¶ 55); “walk[ing] naked to a pay phone, pick[ing] up 18 the receiver and . . . speaking gibberish into the phone, having a conversation with 19 himself for hours,” (id. ¶ 56); getting “butt-naked and get[ting] on his knees and 20 pray[ing] and then go[ing to] look over the balcony like he was about to jump over,” 21 (id. ¶¶ 58, 59); and making a noose out of his bedsheets, (id. ¶ 61). By January 22 25, 2019, Pichardo’s condition had lost so much weight that other inmates were 23 attempting to feed him. (See id. ¶ 40). These inmates reported their observations 24 to correctional officers. (Id. ¶ 62). On or about February 23, 2019, Pichardo died 25 of suicide by hanging himself in his cell. (Id. ¶¶ 50–51). 26 Plaintiffs commenced this action on July 29, 2020. (Dkt. 1). On February 15, 27 2023, the Court granted in part and denied in part County Defendants’ motion for 28 judgment on the pleadings, and dismissed all claims against Loera and the Monell 1 claims against the County. (Dkt. 106). The Court gave Plaintiffs leave to to file a 2 TAC to address the deficiencies identified in the Second Amended Complaint, (id. 3 at 15), which Plaintiffs filed on February 28, 2023. (See Dkt. 107 (TAC), 108 4 (redlined TAC)). CFMG moves to strike portions of the TAC, (Dkt. 110), and 5 County Defendants move to dismiss portions of the TAC. (Dkt. 112). 6 II. RULE 12(f) MOTION TO STRIKE 7 Under Rule 12(f), a court may strike “any redundant, immaterial, impertinent 8 or scandalous matter.” Fed. R. Civ. P. 12(f). Motions to strike are generally 9 disfavored. RDF Media Ltd. v. Fox Broadcasting Co., 372 F. Supp. 2d 556, 561 10 (C.D. Cal. 2005). However, “[a] motion to strike should be granted if it will eliminate 11 serious risks of prejudice to the moving party, delay, or confusion of issues.” Lee 12 v. Hertz Corp., 330 F.R.D. 557, 560 (N.D. Cal. 2019) (citing Fantasy, Inc. v. 13 Fogerty, 984 F.2d 1524, 1528 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 14 517 (1994)). When ruling on a motion to strike, the court must accept all of the 15 non-moving party’s allegations as true and construe the pleading in the light most 16 favorable to the non-movant. Stearns v. Select Comfort Retail Corp., 763 F. Supp. 17 2d 1128, 1140 (N.D. Cal. 2010). 18 CFMG moves to dismiss the following ninety-two paragraphs and 19 subparagraphs of the TAC (as listed in Dkt. 108): 11 at lines 21–27; 21–27; 29; 20 30; 31; 33; 34 at lines 15–17; 35–39; 41; 42; 44–49; 52–55; 58; 59; 63–65; 67–71; 21 78; 81–87; 89–91(e); 94–100; 101 to the extent it includes by reference the prior 22 enumerated paragraphs; 102 to the extent it includes by reference the prior 23 enumerated paragraphs at line 25; 120–20(b); 120(e)–(h); 120(i)(ii)–(i)(iii); 120(j); 24 120(k) to the extent it includes by reference prior enumerated paragraphs at line 7; 25 121; 122; and 125, 131, and 138 to the extent they include by reference prior 26 enumerated paragraphs. (Dkt. 110 at 5–6). CFMG argues these new or revised 27 allegations should be stricken because they exceed the scope of leave to amend 28 and unfairly prejudice CFMG by allowing new allegations that, in CFMG’s view, 1 amount to new claims of relief for alleged constitutional violations. (Id. at 8). 2 The Court’s February 15 Order granted Plaintiffs leave to amend their 3 complaint to address the deficiencies identified in the SAC’s claims against Loera 4 and the Monell claims against the County. (Dkt. 106 at 15). CFMG asserts that 5 “[n]owhere in the Court’s Order does it give permission to Plaintiffs to amend their 6 Complaint to allege additional facts or make additional claims against or involving 7 CFMG.” (Dkt. 110 at 5 (citations omitted)). This characterization misunderstands 8 how Plaintiffs’ new allegations about CFMG’s conduct might help establish a 9 Monell claim. The County has a constitutional duty to provide adequate medical 10 and psychiatric care to individuals in its custody. See Gibson v. County of 11 Washoe, 290 F.3d 1175, 1187–88 & n.9 (9th Cir. 2002), overruled on other 12 grounds by Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) 13 (en banc). And the County remains liable for violations of that duty even if the 14 medical services in its jails are provided by a contractor like CFMG. See West v. 15 Atkins, 487 U.S. 42, 56 (1988) (“Contracting out prison medical care does not 16 relieve the [County] of its constitutional duty to provide adequate medical 17 treatment to those in its custody.”). The TAC’s new allegations related to CFMG’s 18 provision of medical care at ICRADF might help Plaintiffs make out a Monell claim 19 against the County and, therefore, are permissible amendments to the complaint. 20 Additionally, contrary to CFMG’s assertions, the TAC only asserts state law 21 causes of action of negligence and wrongful death against CFMG—the same two 22 state law causes of action brought against CFMG in the Second Amended 23 Complaint. (See TAC ¶¶ 125–30 (negligence), 138–44 (wrongful death)). Having 24 reviewed the paragraphs of the TAC CFMG objects to, the Court finds that they 25 are all within the scope of leave to amend. 26 Even if the Court accepts CFMG’s argument that Plaintiffs exceeded the 27 scope of leave to amend, “[e]xceeding the scope of a court’s leave to amend is 28 not necessarily sufficient grounds for striking a pleading or portions thereof.” 1 Walsh v. SL One Glob., Inc., No. 2:22-cv-583-WBS-DB, 2022 WL 17722964, at *1 2 (E.D. Cal. Dec. 15, 2022) (quoting Beavers v. New Penn Fin. LLC, No. 1:17-cv- 3 747 JLT, 2018 WL 385421, at *3 (E.D. Cal. Jan. 11, 2018)) (collecting cases); see 4 also Vahora v. Valley Diagnostics Lab’y Inc., No. 1:16-CV-01624-SKO, 2017 WL 5 2572440, at *4 (E.D. Cal. June 14, 2017) (quoting Manzano v. Metlife Bank N.A., 6 No. CIV. 2:11-651 WBS DAD, 2011 WL 2080249, at *3 (E.D. Cal. May 25, 2011)) 7 (“‘[T]he court may choose not to strike the pleading in the interests of judicial 8 economy’ even ‘when a pleading is improperly filed.’”). But see Marcus & Millichap 9 Real Est. Inv. Servs. of Nev., Inc. v. Decker, 400 F. Supp. 3d 1074, 1085 (D. Nev. 10 2019), rev’d and remanded on other grounds sub nom. Marcus & Millichap Real 11 Est. Inv. Servs. of Nev., Inc. v. Chandra, 822 F. App’x 597 (9th Cir. 2020) (striking 12 unrelated facts and a previously dismissed cause of action for exceeding the 13 scope of leave to amend). 14 CFMG also contends the Court should strike the objected to paragraphs 15 because they “impose[] an undue burden, and unfair prejudice [on] CFMG and 16 would consume a substantial expenditure of both the parties’ and judicial time and 17 resources.” (Dkt. 110 at 8). These arguments are unpersuasive. First, fact and 18 expert discovery has already been completed in the case, and CFMG had a full 19 and fair opportunity to litigate the newly added allegations, especially those 20 discovered through depositions, all of which were attended or defended by 21 CFMG’s counsel. (See Dkt. 117 at 25). Second, as discussed above, the TAC 22 doesn’t allege any new claims against CFMG. Third, CFMG has the opportunity 23 to continue to defend itself, including by moving to exclude evidence at the 24 summary judgment phase or before a trial. Based on these considerations, the 25 Court finds CFMG isn’t prejudiced by the TAC’s newly added allegations. While it 26 might preserve judicial time and resources to strike the objected to paragraphs, 27 those interests don’t justify striking new allegations which are within the scope of 28 leave to amend. See, e.g., Manzano, 2011 WL 2080249, at *3 (“[T]he court may 1 choose not to strike the pleading in the interests of judicial economy.”). 2 For the foregoing reasons, CFMG’s motion to strike is DENIED. 3 III. RULE 12(b)(6) MOTION TO DISMISS 4 A. Legal Standard 5 A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. 6 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive a motion to 7 dismiss, a complaint must contain sufficient factual matter, accepted as true, to 8 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 9 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim 10 is plausible if the factual allegations supporting it permit “the court to draw the 11 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 12 The factual allegations need not be detailed; instead, the plaintiff must plead 13 sufficient facts that, if true, “raise a right to relief above the speculative level.” 14 Twombly, 550 U.S. at 545. The plausibility standard isn’t a “‘probability 15 requirement,’ but it asks for more than a sheer possibility that a defendant has 16 acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). 17 Courts aren’t required to accept legal conclusions couched as factual allegations 18 and “formulaic recitation[s] of the elements of a cause of action” aren’t sufficient. 19 Twombly, 550 U.S. at 555. The Court accepts as true all facts alleged in the 20 complaint and draws all reasonable inferences in favor of the plaintiff. Davis v. 21 HSBC Bank Nev., N.A., 691 F.3d 1152, 1159 (9th Cir. 2012). Ultimately, a court 22 must determine whether the plaintiff’s alleged facts, if proven, permit the court to 23 grant the requested relief. See Iqbal, 556 U.S. at 666; Fed. R. Civ. P. 8(a)(2). 24 B. Supervisory Liability (Claim 1) 25 The TAC’s first claim asserts a supervisory liability claim against Loera in 26 his individual capacity, alleging he failed to adequately train employees. County 27 Defendants argue Loera is entitled to qualified immunity and that the TAC fails to 28 state a claim against Loera. The Court first considers whether Loera is entitled to 1 qualified immunity. 2 County Defendants argue that because the TAC fails to make specific 3 allegations regarding Loera’s personal conduct, he is entitled qualified immunity. 4 “The doctrine of qualified immunity protects government officials ‘from liability for 5 civil damages insofar as their conduct does not violate clearly established 6 statutory or constitutional rights of which a reasonable person would have 7 known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. 8 Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity “protects ‘all but the 9 plainly incompetent or those who knowingly violate the law.’” District of Columbia 10 v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 11 (1986)). On a motion to dismiss, officers are entitled to qualified immunity under 12 § 1983 unless the complaint sufficiently alleges that “(1) they violated a federal 13 statutory or constitutional right, and (2) the unlawfulness of their conduct was 14 ‘clearly established at the time.’” Id. (quoting Reichle v. Howards, 566 U.S. 658, 15 664 (2012)); see also Keates v. Koile, 883 F.3d 1228, 1235 (9th Cir. 2018) 16 (“[W]hen a district court dismisses a complaint for failure to state a claim based 17 on a qualified immunity defense, we consider whether the complaint alleges 18 sufficient facts, taken as true, to support the claim that the officials’ conduct 19 violated clearly established constitutional rights of which a reasonable officer 20 would be aware.”). Courts may choose which prong to address first. Pearson, 555 21 U.S. at 236. 22 “Once the official pleads qualified immunity, the burden is on the plaintiff to 23 prove two elements: (1) that the right was violated; and (2) that the right was 24 clearly established at the time of the alleged misconduct.” Isayeva v. Sacramento 25 Sheriff’s Dep’t, 872 F.3d 938, 946 (9th Cir. 2017). “A clearly established right is 26 one that is ‘sufficiently clear that every reasonable official would have understood 27 that what he is doing violates that right.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) 28 (quoting Reichle, 566 U.S. at 664). To determine whether an officer is entitled to 1 qualified immunity, courts must look to the particular circumstances of the case 2 and “not . . . define clearly established law at a high level of generality.” City & 3 County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015). 4 In its February 15 Order, the Court found that Loera was entitled to qualified 5 immunity on claims against him because Plaintiffs didn’t meet their burden of 6 showing that he violated a right that was clearly established. (See Dkt. 106 7 at 4–7). Having reviewed the TAC, the same result must follow here. The TAC’s 8 newly added factual allegations continue to group Loera with the other Defendants 9 and don’t specifically identify Loera’s personal conduct. (See TAC at 13, 18, 10 ¶¶ 86, 89, 100). Similarly, the revised allegations in the TAC’s first claim are 11 generalized and conclusory. (See id. ¶¶ 102–04, 106, 108). For example, the TAC 12 alleges Loera “acted with deliberate indifference to his responsibili[ties] and 13 dut[ies]” to Pichardo by: (1) “failing to supervise his subordinates”; (2) failing “to 14 take adequate measure [sic] to protect inmates”; (3) failing to “implement[ and 15 enforce] policies and procedures” which would ensure supervision and protection 16 of inmates; (4) failing to “train and ensure that deputies, employees and medical 17 care providers provide reasonable security and monitoring of inmates”; and 18 (5) failing to “provide prompt and competent access and delivery of mental health 19 attention and intervention when inmates, such as PICHARDO, were having a 20 mental health crisis requiring prompt intervention.” (Id. ¶ 102). These allegations 21 fail to identify any circumstance in which Loera acted individually or failed to act. 22 As in with the SAC, such generalized allegations aren’t sufficient to plausibly 23 allege that Loera’s conduct violated Pichardo or Plaintiffs’ rights. Cf. Keates, 883 24 F.3d at 1238–39 (holding an officer wasn’t entitled to qualified immunity on a 25 motion to dismiss when the complaint contained allegations about the officer’s 26 individual actions). Because the TAC doesn’t allege conduct specific to Loera, the 27 Court doesn’t need to consider whether Pichardo or Plaintiffs’ rights were clearly 28 established. See Isayeva, 872 F.3d at 946. 1 The Court finds Loera is entitled to qualified immunity. County Defendants’ 2 motion is GRANTED as to the claim against Loera, and that claim is DISMISSED 3 WITH PREJUDICE. Because it is clear that any further amendment here would 4 be futile, the claim is DISMISSED WITHOUT LEAVE TO AMEND. See DeSoto v. 5 Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 6 C. Monell Liability (Claim 2) 7 The TAC’s second claim asserts Monell liability against the County under 8 § 1983. (TAC ¶¶ 109–124); see Monell v. Dep’t of Soc. Servs., 436 U.S. 658 9 (1978). Municipalities and local governments may not be held liable under § 1983 10 unless a policy, practice, or custom of the government is the moving force behind 11 a violation of constitutional rights. Monell, 436 U.S at 694. To establish liability for 12 a local government under Monell, a plaintiff must show: (1) he was deprived of a 13 constitutional right; (2) the government had a policy or custom; (3) the policy or 14 custom amounts to deliberate indifference to the plaintiff’s constitutional right; and 15 (4) “the policy [was] the moving force behind the constitutional violation.” Gordon 16 v. County of Orange, 6 F.4th 961, 973 (9th Cir. 2021) (quoting Dougherty v. City 17 of Covina, 654 F.3d 892, 900 (9th Cir. 2011)). A plaintiff can satisfy Monell’s policy 18 requirement in one of three ways. First, a local government can be held liable 19 when it acts pursuant to an official policy. Id. Second, a local government can be 20 “held liable for a ‘longstanding practice or custom.’” Id. (quoting Thomas v. County 21 of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014)). Third, a local government can 22 be held liable when “‘the individual who committed the constitutional tort was an 23 official with final policy-making authority’ or such an official ‘ratified a subordinate’s 24 unconstitutional decision or action and the basis for it.’” Id. at 974 (quoting 25 Clouthier v. County of Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010), 26 overruled on other grounds by Castro, 833 F.3d at 1070)). 27 A government policy is “a deliberate choice to follow a course of action . . . 28 by the official or officials responsible for establishing final policy with respect to 1 the subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 2 (1986). A local government “may [also] be liable if it has a ‘policy of inaction and 3 such inaction amounts to a failure to protect constitutional rights.’” Lee v. City of 4 Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (quoting Oviatt v. Pearce, 954 5 F.2d 1470, 1474 (9th Cir. 1992)). However, “[l]iability for improper custom may not 6 be predicated on isolated or sporadic incidents; it must be founded upon practices 7 of sufficient duration, frequency and consistency that the conduct has become a 8 traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 9 (9th Cir. 1996); see also Oyenik v. Corizon Health Inc., 696 F. App’x 792, 794 10 (9th Cir. 2017) (“While one or two incidents are insufficient to establish a custom 11 or policy, we have not established what number of similar incidents would be 12 sufficient to constitute a custom or policy.”) (internal citations omitted). 13 A local government’s failure to train its employees may also create § 1983 14 liability when the “failure to train amounts to deliberate indifference to the rights of 15 persons with whom the [employees] come into contact.” City of Canton v. Harris, 16 489 U.S. 378, 388 (1989). “The issue is whether the training program is adequate 17 and, if it is not, whether such inadequate training can justifiably be said to 18 represent municipal policy.” Long v. County of Los Angeles, 442 F.3d 1178, 1186 19 (9th Cir. 2006). “To allege a failure to train, a plaintiff must include sufficient facts 20 to support a reasonable inference (1) of a constitutional violation; (2) of a 21 municipal training policy that amounts to a deliberate indifference to constitutional 22 rights; and (3) that the constitutional injury would not have resulted if the 23 municipality properly trained their [sic] employees.” Benavidez v. County of San 24 Diego, 993 F.3d 1134, 1153–54 (9th Cir. 2021) (citing Blankenhorn v. City of 25 Orange, 485 F.3d 463, 484 (9th Cir. 2007)). “A pattern of similar constitutional 26 violations by untrained employees is ‘ordinarily necessary’ to demonstrate 27 deliberate indifference for purposes of failure to train.” Connick v. Thompson, 563 28 U.S. 51, 62 (2011) (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 409 1 (1997)). However, a plaintiff can “prov[e] a failure-to-train claim without showing a 2 pattern of constitutional violations where ‘a violation of federal rights may be a 3 highly predictable consequence of a failure to equip law enforcement officers with 4 specific tools to handle recurring situations.’” Long, 442 F.3d at 1186 (quoting 5 Brown, 520 U.S. at 409); see also Brown, 520 U.S. at 409 (“The likelihood that 6 the situation will recur and the predictability that an officer lacking specific tools to 7 handle that situation will violate citizens’ rights could justify a finding that 8 policymakers’ decision not to train the officer reflected ‘deliberate indifference’ to 9 the obvious consequence of the policymakers’ choice—namely, a violation of a 10 specific constitutional or statutory right.”). 11 To adequately plead a Monell claim, the allegations in the complaint “may 12 not simply recite the elements of a cause of action, but must contain sufficient 13 allegations of underlying facts to give fair notice and to enable the opposing party 14 to defend itself effectively.” AE ex rel. Hernandez v. County of Tulare, 666 F.3d 15 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 16 2011)) (holding the Iqbal/Twombly pleading standard applies to Monell claims). A 17 Monell claim survives a motion to dismiss only when the complaint “put[s] forth 18 additional facts regarding the specific nature of [the] alleged ‘policy, custom or 19 practice.’” Id. 20 County Defendants argue the TAC fails to identify a County policy, a 21 longstanding County practice or custom, or a pattern of constitutional violations 22 related to untrained employees. (Dkt. 112-1 at 12–13). Plaintiffs argue the TAC’s 23 allegations satisfy Monell’s policy requirement by identifying the County’s: 24 (1) practice or custom of providing inadequate custody and medical staffing at 25 ICRADF, (Dkt. 116 at 19–21); (2) practice or custom of providing constitutionally 26 inadequate direct-view safety checks, (id. at 22–23); and (3) failure to train its 27 custodial staff in suicide prevention and constitutionally adequate safety check 28 procedures, (id. at 21–22). The Court addresses the arguments in turn. 1 1. Inadequate Staffing 2 Plaintiffs first argue the County is liable under Monell for constitutionally 3 inadequate staffing, including inadequate medical staffing attributable to CFMG, 4 its contracted healthcare provider. (Dkt. 116 at 19–21). Specifically, Plaintiffs 5 argue there was custom or practice of providing inadequate custody and medical 6 staffing that amounted to a deliberate indifference to Pichardo’s serious mental 7 health needs. (Id. at 20–21). State and local governments have duty to provide 8 convicted inmates and pretrial detainees adequate medical care while in custody. 9 Gibson, 290 F.3d at 1187–88 & n.9, overruled on other grounds by Castro, 833 10 F.3d at 1070. This includes a duty to provide adequate psychiatric care. Gibson, 11 290 F.3d at 1187. “Contracting out prison medical care does not relieve the State 12 [or local government] of its constitutional duty to provide adequate medical 13 treatment to those in its custody.” West, 487 U.S. at 56. A custom or practice of 14 delaying medical care can constitute deliberate indifference to a prisoner’s 15 constitutional rights. See Oyenik, 696 F. App’x at 794–95. 16 The TAC identifies, for the first time, seven instances when Pichardo’s 17 medical appointments were rescheduled over the course of more than eight 18 weeks, from December 3, 2018 to January 29, 2019. (See, e.g., TAC ¶¶ 22, 24, 19 30, 35, 36, 41 (appointments rescheduled due to time constraints); id. ¶ 29 20 (appointment rescheduled due to nurse calling out sick). The TAC also specifically 21 alleges that: (1) ICRADF Watch Commander Colby Stewart and Imperial County 22 Sheriff’s Office Deputy Chief Jamie Clayton believed ICRADF had inadequate 23 custody personnel staffing due to decisions by the County’s Chief Executive 24 Officer, (id. ¶ 66), and (2) CFMG Health Services Administrator Linda Corfman 25 believed ICRADF had inadequate medical personnel staffing due to limitations in 26 the contract negotiated by the County, (id. ¶ 67). 27 County Defendants, citing Trevino v. Gates, argue these allegations are 28 “isolated and sporadic,” and of insufficient “duration, frequency and consistency” 1 to constitute a “longstanding practice or custom” under Monell. (Dkt. 121 at 6 2 (quoting Trevino, 99 F.3d at 918)). However, the TAC doesn’t simply identify a 3 single instance of a delayed appointment—it identifies seven over an eight week 4 period, and “[t]here is no case law indicating that a custom cannot be inferred from 5 a pattern of behavior toward a single individual.” Oyenik, 696 F. App’x at 794. The 6 TAC also alleges that Pichardo’s access to adequate psychiatric care was 7 substantially delayed and that, but for the inadequate staffing, Pichardo would 8 have received necessary care sooner. (See TAC ¶¶ 22–49 (describing Pichardo’s 9 requests for psychiatric care and deterioration over time)). As discussed above, a 10 practice or custom of delaying access to medical care can constitute deliberate 11 indifference. See Oyenik, 696 F. App’x at 794–95. These allegations are sufficient 12 to plausibly allege a Monell violation based on inadequate staffing. 13 2. Inadequate Safety Checks 14 Plaintiffs next argue that the County is liable for under Monell for violating 15 Pichardo’s right to direct-view safety checks. (Dkt. 116 at 22–23); see Gordon, 6 16 F.4th at 966–67 (recognizing pre-trial detainees “have a right to direct-view safety 17 checks sufficient to determine whether their presentation indicates the need for 18 medical treatment”). Specifically, they argue the County had a practice or custom 19 of failing to conduct safety checks every 60 minutes as required by Title 15 of the 20 California Code of Regulations, and that this practice or custom of 21 non-compliance was a moving force in denying Pichardo’s right to direct-view 22 safety checks. (Dkt. 116 at 22–23); Cal. Code Regs. tit. 15, § 1027.5 (requiring 23 safety checks every 60 minutes). 24 The TAC’s new allegations identify ten safety checks that exceeded 25 Title 15’s 60-minute window during the eleven hours leading up to Pichardo’s 26 suicide. (See TAC ¶ 73). The TAC also alleges that a Board of State and 27 Community Corrections audit conducted on April 28, 2019—two months after 28 Pichardo’s death—revealed that safety checks at ICRADF were “still not being 1 routinely completed within the required 60-minute time frame.” (Id. ¶ 76). County 2 Defendants argue that alleged violations of Title 15 are “isolated and sporadic,” 3 and of insufficient “duration, frequency and consistency” to constitute a 4 “longstanding practice or custom” under Monell. (Dkt. 121 at 6 (quoting Trevino, 5 99 F.3d at 918)). This argument fails in the face of the TAC’s detailed allegations 6 regarding the County’s failure to comply with Title 15’s requirements, especially 7 the allegation that the April 28 audit found a continuing failure to comply with 8 Title 15 for the two months following Pichardo’s death. 9 The TAC’s allegations strongly support the inference that the County had a 10 practice or custom of failing to conduct Title 15-compliant safety checks that was 11 “of sufficient duration, frequency and consistency that the conduct has become a 12 traditional method of carrying out policy,” Trevino, 99 F.3d at 918; that the 13 non-compliance was deliberately indifferent to Pichardo’s rights; and that the 14 non-compliance was a moving force behind the violation of Pichardo’s rights. See 15 also Oyenik, 696 F. App’x at 794 (“While one or two incidents are insufficient to 16 establish a custom or policy, we have not established what number of similar 17 incidents would be sufficient to constitute a custom or policy.”) (internal citations 18 omitted). These allegations are sufficient to plausibly allege a Monell violation due 19 to a practice or custom of failing to provide constitutionally adequate direct-view 20 safety checks. 21 3. Failure to Train 22 Plaintiffs also argue that the County is liable for under Monell for failing to 23 adequately train its custodial staff, and that this failure resulted in a violation of 24 Pichardo’s constitutional rights. (Dkt. 116 at 21–22). The TAC alleges, among 25 other training failures, that the County didn’t train its custodial staff on suicide 26 prevention, (TAC ¶¶ 77–79), or how to properly conduct Title 15 safety checks, 27 (id. ¶¶ 72–76). County Defendants argue that Plaintiffs haven’t alleged sufficient 28 facts to demonstrate that the alleged training failures constitute deliberate 1 indifference as required by Monell. (Dkt. 121 at 6–7). However, while “[a] pattern 2 of similar constitutional violations by untrained employees is ‘ordinarily necessary’ 3 to demonstrate deliberate indifference for purposes of failure to train,” Connick, 4 563 U.S. at 62 (quoting Brown, 520 U.S. at 409), a plaintiff can “prov[e] a 5 failure-to-train claim without showing a pattern of constitutional violations where 6 ‘a violation of federal rights may be a highly predictable consequence of a failure 7 to equip law enforcement officers with specific tools to handle recurring 8 situations.’” Long, 442 F.3d at 1186 (quoting Brown, 520 U.S. at 409). 9 As the TAC points out, “[s]uicide prevention training is critical in the 10 correctional profession.” (TAC ¶ 77). More importantly, the TAC also alleges that 11 other inmate suicides and suicide attempts occurred in County jails, (see id. 12 ¶¶ 90–93), and that the County was aware of inmate suicides in jails in other 13 counties where CFMG provided medical care, (id. ¶¶ 94–99). These allegations 14 strongly support the inference that inmate suicides were a “highly predictable 15 consequence of a failure to equip [correctional] officers with specific tools to 16 handle” suicide risk in a correctional facility. Brown, 520 U.S. at 409. The TAC’s 17 allegations that the County failed to provide any suicide prevention training 18 sufficiently state a failure to train claim “without a showing of a pattern of 19 constitutional violations.” See Long, 442 F.3d at 118. 20 * * * 21 In sum, the TAC adequately states a claim for Monell liability against the 22 County.1 County Defendants’ motion is DENIED as to the TAC’s Monell claim. 23 // 24 // 25

26 1 Plaintiffs also argue that the County is liable under Monell for failing to conduct 27 an adequate investigation into Pichardo’s death. (See Dkt. 116 at 23–24). Because the TAC contains sufficient allegations to support a Monell claim, the 28 1 CONCLUSION 2 The Court DENIES CFMG’s motion to strike portions of the TAC, and 3 GRANTS IN PART and DENIES IN PART County Defendants’ motion to dismiss 4 TAC. All claims against Loera are DISMISSED WITH PREJUDICE. The 5 || County shall answer the TAC by July 3, 2023. Any renewed motions for summary 6 ||judgment shall be filed by July 10, 2023. 7 IT IS SO ORDERED. 8 ||Dated: June 26, 2023

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