Cavalier v. Cnty. of San Diego

• Decision Date: 13 May 2015
• Docket Number: Civil No. 14cv1691-WQH (DHB)
• Court: U.S. District Court — Southern District of California
• Parties: MARCOS CAVALIER, Plaintiff, v. COUNTY OF SAN DIEGO; et al., Defendants.

MARCOS CAVALIER, Plaintiff,
v.
COUNTY OF SAN DIEGO; et al., Defendants.

Civil No. 14cv1691-WQH (DHB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

May 13, 2015

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE REGARDING MOTION TO DISMISS CIVIL RIGHTS COMPLAINT

[ECF No. 18]

Marcos Cavalier ("Plaintiff"), formerly incarcerated at the San Diego Central Jail and the George Bailey Detention Facility ("GBDF"), is proceeding pro se in this civil rights action filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983. Eleven of the thirteen named Defendants¹ have filed a Motion to Dismiss Plaintiff's Complaint

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pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 18.) In accordance with Civil Local Rule 72.1(d), Defendants' Motion to Dismiss is referred to the Honorable David H. Bartick for a Report and Recommendation.

After a thorough review of the pleadings, the parties' papers, and all supporting documents, the Court hereby RECOMMENDS that Defendants' Motion to Dismiss be GRANTED with leave to amend.

I. PLAINTIFF'S ALLEGATIONS

Plaintiff is a former inmate at multiple detention facilities operated by the San Diego County Sheriff's Department.² In the Complaint, Plaintiff asserts civil rights claims against Defendants based on events allegedly occurring while Plaintiff was incarcerated at the San Diego Central Jail. (ECF No. 1 at 1.) Plaintiff asserts the following claims³ against Defendants: unreasonable search and seizure, cruel and unusual punishment/excessive force, invasion of privacy, violation of Plaintiff's procedural due process rights, failure to provide medical care, illegal touching in violation of California Penal Code § 4030, battery, intentional and negligent infliction

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of emotional distress, failure to train, and municipal liability pursuant to Monell v. Dep't of Soc. Servs. of N.Y.C., 436 U.S. 658 (1978). (See generally id. at 4-14.) Plaintiff's claims are based on the following factual allegations:

A. February 2012 "Escape Risk" Classification

Plaintiff was identified as an escape risk in February 2012 for allegedly trying to bail out in another inmate's name. However, Plaintiff claims he has no knowledge of this incident, he was never questioned about an escape at any time, and he was never provided any documents regarding this incident. Rather, Plaintiff was simply provided a green jump suit⁴ one day without being given an opportunity to defend against the charge because there was no formal charge. Nevertheless, Plaintiff continues to be punished. Plaintiff alleges a violation of his due process rights because his classification as an escape risk prevents him from going to a camp and gaining additional work time/good time credits. (Id. at 11-12.)

B. February 1, 2013 Placement in Administrative Segregation

Plaintiff was placed in Administrative Segregation on February 1, 2013 for possession of razors. Subsequently, it was determined that they were not Plaintiff's razors. Nevertheless, Plaintiff remained in solitary confinement for seventeen months causing a "direct effect on [his] psych [sic]." (Id. at 11.)

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C. May 31, 2014 Pat Down and Strip Search⁵

On May 31, 2014, Plaintiff was subjected to a routine weekly pat down that was "captured on film." He was placed in handcuffs and removed from his cell. The supervising officer, Defendant Kamoss, allowed a new, unnamed cadet to conduct the pat down, which may have been the cadet's first pat down. During the pat down, the cadet discovered Plaintiff had an extra pair of socks in front of his underwear. The cadet was standing directly behind Plaintiff and pulling Plaintiff's testicles and the socks towards his rear while claiming to Defendant Kamoss, "It's in his butt." Plaintiff informed the officers it was only a pair of socks and that he could remove them himself. An unknown officer proceeded to "open [Plaintiff's] underwear and take a peek inside." Then, that officer or a different officer reached inside Plaintiff's pants and underwear to "dig around, feeling around on [Plaintiff's] privates." The officer removed one sock before proceeding to reach back inside Plaintiff's underwear to "feel[] around to retrieve [the] other." Each time the officer was "obviously stroking [Plaintiff's] penis." Plaintiff pleaded with the officers to remove the handcuff from one of his hands to let him remove the socks himself. Plaintiff alleges he should never have been placed in handcuffs because he has no history of violence with staff or inmates. Plaintiff alleges the officers involved abused their authority when they touched and groped him. Plaintiff alleges the supervising officer,

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Defendant Kamoss, failed to intervene when the officer reached inside Plaintiff's underwear, that Plaintiff "was not jerking away or being aggressive," and that the officer had absolutely no right to place his hands and feel around inside his underwear. Plaintiff alleges the officers involved "condone[d] and even encourage[d] staff misconduct, all the while, useing [sic] [Plaintiff] as a 'training device' for new cadets." (Id. at 4, 13)

Following the pat down, Defendant Kamoss ordered Plaintiff to be strip searched. Defendant Kamoss and nine other officers (Defendants Babcock, Edge, Gonzalez, Lusardi, Martinez, Navarro, Sobaszek, Spalsbury, and Talamantez) gathered in a private room. Plaintiff alleges the number of officers present was unnecessary and unreasonable given that he was not combative and he did not have a history of violence to staff or other inmates. Nevertheless, Defendant Kamoss said the number of officers was necessary "just in case." Plaintiff requested permission to enter a private, curtained off portion of the room, but the request was denied. Plaintiff was directed to face the wall and strip off all his clothing. Feeling uncomfortable becoming naked in front of ten men, Plaintiff hesitated approximately ten seconds before complying and stripping off his clothes. Plaintiff was forced to show his testicles and rectum cavity. Plaintiff alleges that although the privacy curtains were located less than five feet from him, he was forced to strip in front of all the officers in a show of "brute force" meant to scare, intimidate, humiliate, and degrade Plaintiff. Plaintiff further alleges the strip search was conducted as a means of training new cadets and that his body was used as a training "tool." (Id. at 5.)

After Plaintiff stripped off his clothes and showed ten officers his testicles and rectum cavity, Defendant Kamoss informed Plaintiff, "That's not good enough." Plaintiff was ordered to remove his clothing again, whereupon Plaintiff responded, "No." Plaintiff refused because a strip search had already taken place during which Plaintiff had demonstrated he had no hidden clothing under his testicles or inside his rectum. Thus, Defendant Kamoss' order requiring Plaintiff to remove his clothing a

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second time was done only to degrade and humiliate Plaintiff and demonstrate complete power and control over Plaintiff. Plaintiff peacefully protested by facing the wall rather than remove his clothing a second time. Plaintiff was again placed in handcuffs willingly. While facing the wall one of the officers grabbed Plaintiff's underwear and slid them off his buttocks. Fearful of the officers' intentions, Plaintiff looked over his shoulder only to be yelled at to face the wall. Plaintiff was then ordered to bend over and cough.⁶ Plaintiff refused to comply due to fear that the officer directly behind him planned to spread Plaintiff's buttocks. Defendant Kamoss then instructed the officers to just check Plaintiff's clothing and the handcuffs were removed. Plaintiff alleges this procedure was nothing more than a show of force and intimidation due to the fact that he had already submitted to a cavity search moments earlier. Plaintiff alleges the officers abused their power, neglected his rights, and entirely disregarded his well-being. Plaintiff was later told that he was not "forcefully" removed from his clothing; rather, he was "assisted." He was also told the procedure was necessary to thoroughly check his underwear. (Id. at 6.)

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After Plaintiff was allowed to dress himself, he was placed in handcuffs willingly. While being escorted out of the room by an unknown deputy, Defendant Kamoss looked Plaintiff in the eyes and called Plaintiff a "queer." Plaintiff alleges this disrespectful comment is part of an overall level of disrespect of inmates by officers, as reflected by the number of inmate suicides at the San Diego Central Jail from May 2014 to June 2014. (Id.)

Later, the investigating officer, Defendant Montgomery, informed Plaintiff that Defendant Kamoss had not called Plaintiff a "queer." Rather, Defendant Kamoss had said the word in the form of a question, "Queer?" Plaintiff alleges this fact, as informed by Defendant Montgomery, was not included in the original incident report, and that it was not until after the investigation that Plaintiff noticed the report had been altered to include this information. (Id. at 7.)

Plaintiff alleges Defendant Kamoss' use of the derogatory term was intended to humiliate Plaintiff and make him feel ashamed after having shown ten officers his naked body. Plaintiff further alleges Defendant Montgomery...