Gonzalez v. Cnty. of Merced, Case No. 1:16–cv–01682–LJO–SAB

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE
• Citation: 289 F.Supp.3d 1094
• Parties: Ashley GONZALEZ, Plaintiff, v. COUNTY OF MERCED, et al., Defendants.
• Decision Date: 07 December 2017
• Docket Number: Case No. 1:16–cv–01682–LJO–SAB

289 F.Supp.3d 1094

Ashley GONZALEZ, Plaintiff,
v.
COUNTY OF MERCED, et al., Defendants.

Case No. 1:16–cv–01682–LJO–SAB

United States District Court, E.D. California.

Signed December 7, 2017

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Sanjay Stephen Schmidt, Law Office of Sanjay S. Schmidt, San Francisco, CA, Panos Lagos, Law Offices of Panos Lagos, Oakland, CA, for Plaintiff.

James Ethan Stone, Roger S. Matzkind, Merced County Counsel, Merced, CA, Marshall E. Bluestone, Bluestone Zunino & Hamilton, LLP, Santa Rosa, CA, for Defendants.

ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART FINDINGS AND RECOMMENDATIONS

(ECF Nos. 51, 52, 60, 61, 62, 63, 64, 67, 68, 71, 75, 76, 78)

Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE

Plaintiff Ashley Gonzalez ("Plaintiff") filed the complaint in this action on November 4, 2016. (ECF No. 1.) Therein, Plaintiff asserted a claim against Defendant Gregory Rich ("Defendant Rich") and Does 1–5 for alleged violations of her civil rights under 42 U.S.C. § 1983 and a claim against Defendant County of Merced ("Defendant County") and Does 6–10 for violations of her civil rights under 42 U.S.C. § 1983 and Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). At the time of the alleged incidents, Plaintiff was a pre-trial detainee in the custody of Defendant County.

On November 29, 2016, Defendant County filed a motion to dismiss the complaint, and on December 20, 2016, Defendant Rich filed a motion to stay this action pending the resolution of the state court criminal prosecution against him. (ECF Nos. 7, 11.) On March 21, 2017, the Court adopted the Magistrate Judge's recommendation that the Court dismiss Plaintiff's Monell claim with leave to amend against Defendant County and stay the action as to Defendant Rich at that time, but not as to Defendant County unless and until an answer is filed by Defendant County. (ECF No. 29.)

On April 4, 2017, Plaintiff filed a first amended complaint, which Defendant County moved to dismiss on April 18, 2017. (ECF Nos. 30, 31.) On June 29, 2017, the Court adopted the Magistrate Judge's recommendation that the Court dismiss Plaintiff's Monell claim against Defendant County with leave to amend. (ECF No. 46.)

On July 14, 2017, Plaintiff filed a second amended complaint. (ECF No. 49.)("SAC".) On July 28, 2017, Defendant County filed a motion to dismiss which was referred to the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. (ECF Nos. 51, 53.) On August 23, 2017, Plaintiff filed a motion to

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lift the stay, which was set for hearing before the assigned Magistrate Judge. (ECF No. 62.) The Magistrate Judge also conducted a review hearing as to the stay for Defendant Rich on September 20, 2017.

On September 29, 2017, the Magistrate Judge filed findings and recommendations on the motion to dismiss and motion to lift the stay. (ECF No. 75.) The findings and recommendations recommended that the Monell claim be dismissed without leave to amend and that the stay be lifted as to Defendant Rich for any evidence of a non-testimonial nature which does not implicate Defendant Rich's Fifth Amendment rights. The Magistrate Judge also recommended that a review hearing be set for 60 days from the date that the order adopting issues.

On October 13, 2017, Plaintiff filed objections to the findings and recommendations. (ECF No. 76.) On October 26, 2017, Defendant County filed a reply to the objections. (ECF No. 78.)

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and by proper analysis in all but one respect related to Plaintiffs' policy or custom claim.

Under Monell, "a municipality cannot be held liable under § 1983 solely because it employs a tortfeasor ... in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." 436 U.S. at 691, 98 S.Ct. 2018. A municipality can only be held liable for injuries caused by the execution of its policy or custom or by those whose edicts or acts may fairly be said to represent official policy. Id. at 694, 98 S.Ct. 2018. A "policy" is a "deliberate choice to follow a course of action...made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). "In addition, a local governmental entity may be liable if it has a ‘policy of inaction and such inaction amounts to a failure to protect constitutional rights.’ " Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) ). More generally, a plaintiff must show the following: (1) the plaintiff was deprived of a constitutional right; (2) the defendant had a policy or custom; (3) the policy or custom amounted to deliberate indifference to the plaintiff's constitutional right; and (4) the policy or custom was the moving force behind the constitutional violation. Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1110–11 (9th Cir. 2001).

Municipal liability under Monell may be premised on: (1) conduct pursuant to a formal or expressly adopted official policy; (2) a longstanding practice or custom which constitutes the "standard operating procedure" of the local government entity; (3) a decision of a decision-making official who was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision; or (4) an official with final policymaking authority either delegating that authority to, or ratifying the decision of, a subordinate. See Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014) ; Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008). Plaintiff has advanced several theories of liability in her Complaint, the most viable of which is based on her assertion of a longstanding practice or custom. Such an unwritten policy or custom must be so "persistent and widespread" that it constitutes a "permanent and well settled" practice. Monell, 436 U.S. at 691, 98 S.Ct. 2018 (internal quotation marks omitted). "Liability for improper custom may not be

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predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). However, "contemporaneous or subsequent conduct cannot establish a pattern of violations that would provide ‘notice to the [municipality] and the opportunity to conform to constitutional dictates ..." Connick v. Thompson, 563 U.S. 51, 63 n.7, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011).¹ Applying Monell liability in the context of a pretrial detainee's due process rights, the Ninth Circuit has held that the objective deliberate indifference standard is met when a "plaintiff [ ] establish[es] that the facts available to [entity] policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens." Castro v. County of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (quoting City of Canton v. Harris, 489 U.S. 378, 396, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ).

It is difficult to discern from the caselaw the quantum of allegations needed to survive a motion to dismiss a pattern and practice claim. In other words, how many prior incidents are needed to allege a persistent and widespread custom? How similar must they be? Compare Mockler v. Multnomah Cty., 141 F.3d 1177 (9th Cir. 1998) (on review of motion for judgment as a matter of law, declining to find no reasonable jury could find existence of pattern and practice of sexual harassment where Sheriff admitted he knew of sexual harassment but did nothing about it and chose not to discipline harassing employees), with Motelewski v. Maui Police Dep't, No. CV 11-00778 BMK, 2012 WL 3780188, at *3 (D. Haw. Aug. 30, 2012), on reconsideration in part, No. CV 11-00778 BMK, 2013 WL 361762 (D. Haw. Jan. 28, 2013) (finding on summary judgment that two prior incidents of officers being charged with sexual assault and one prior incident of officer being convicted for trying to extort sexual favors during a traffic stop insufficient to demonstrate widespread pattern or custom of sexual abuse in department), and Wilson v. Oregon, No. 3:11-CV-01061-PK, 2013 WL 6196983, at *11 (D. Or. Nov. 27, 2013) (granting summary judgment for municipal defendant where evidence of pattern consisted of one man who allegedly sexually harassed two women and where there was no evidence that sexual harassment was otherwise tolerated by or was standard operating procedure of the municipality). Overlain on top of these examples is the principle that: "[n]ormally, the question of whether a policy or custom exists would be a jury question." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). With these standards in mind, the Court turns to the factual allegations in the Complaint.

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