Opinion
3:19-cv-00240-AC
09-07-2021
JANICE EDWARDS, on behalf of Minor J.E. and CYNTHIA ECHAURI, on behalf of minor A.E., individually, and on behalf of a class of others similarly situated, Plaintiffs, v. YAMHILL COUNTY, TIM SVENSON, personally, SCOTT PAASCH, personally, and JESSICA BEACH, personally, Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA, UNITED STATES MAGISTRATE JUDGE
Plaintiffs Janice Edwards on behalf of minor child J.E. (“J.E.”), Cynthia Echauri on behalf of minor child A.E. (“A.E.”), Patricia Villareal on behalf of minor child H.B.V. (“H.B.V.”), and Ana Hernandez on behalf of minor child J.H. (“J.H.”) (collectively, “Plaintiffs”) bring this putative civil rights class action on behalf of juveniles detained or formerly detained at the Yamhill County Juvenile Detention Center (“YCJDC”) pursuant to 42 U.S.C. § 1983. Plaintiffs contend that Defendants Yamhill County (the “County”), Tim Svenson (“Svenson”), Scott Paasch (“Paasch”), and Jessica Beach (“Beach”) (collectively, “Defendants”) violated class members' First, Fourth, Eighth and Fourteenth Amendment rights by depriving them of basic needs, and by maintaining policies, customs and practices that violated their constitutional rights while in custody. Presently before the court is Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) (ECF No. 50). For the following reasons, Defendants' motion should be granted.
Patricia Villareal on behalf of H.B.V. and Ana Hernandez on behalf of J.H. have not been formally added as parties to this action. Defendants, however, have not objected to their inclusion here because their allegations closely mirror those of J.E. and A.E. and H.B.V.'s allegations were discussed in the October F&R.
The court finds this motion suitable for resolution without oral argument pursuant to Local Rule 7-1(d)(1).
Procedural Background and Preliminary Procedural Matter
Plaintiffs filed this purported class action seeking to certify a class of juveniles previously confined at YCJDC in February 2019. (Compl., ECF No. 1.) In November 2019, Plaintiffs filed an Amended Complaint alleging Defendants violated their First, Fourth, and Eighth Amendment rights by depriving them of their basic needs, and by maintaining policies, customs and practices that violated their constitutional rights. (Am. Compl., ECF No. 13.) Plaintiffs also sought declaratory and injunctive relief, and punitive damages. Defendants subsequently moved to dismiss, pursuant to Rule 12(b)(6). (Defs.' Mot. Dismiss, ECF No. 15.) In an October 15, 2020 Findings and Recommendation (“October F&R”), the court dismissed Plaintiff's first cause of action asserting constitutional violations under § 1983 and Monell without prejudice and with leave to amend, and dismissed Plaintiffs' second and third causes of action seeking declaratory and injunctive relief with prejudice. (October F&R at 19, ECF No. 35.) In a November 24, 2020 Order, U.S. District Judge Karin J. Immergut adopted the court's findings. (Order, ECF No. 44.) The court ordered an amended complaint be filed by December 7, 2020. (ECF No. 45.) Plaintiffs filed the Second Amended Complaint (“SAC”) on December 8, 2020. (SAC, ECF No. 46.)
After reviewing the SAC, Defendants' counsel conferred with Plaintiffs' counsel, Leonard Berman, about what Defendants perceived as remaining pleading deficiencies, which now are the subject of this Motion. (Defs. Mot. at 2.) Berman indicated that he would address some of their stated concerns and subsequently provided Defendants' counsel a proposed Third Amended Complaint (“proposed TAC”). (Declaration of Lauren E. Nweze (“Nweze Decl.”) Ex. 2, ECF No. 51-2.) Because the proposed TAC did not sufficiently remedy Defendants' concerns, Defendants filed the Motion on December 30, 2020. (Mot. to Dismiss, ECF No. 50.) On January 13, 2021, Plaintiffs filed their response, to which Mr. Berman attached as Exhibit A a new iteration of the proposed Third Amended Complaint (“Exhibit A”). (Pls.' Resp. in Opp'n Mot. to Dismiss (“Pls.' Resp., ECF Nos. 53, 53-1.) In their responsive briefing, Plaintiffs contend that following conferral, they amended their “claims and allegations to address counsel's stated concerns” and seek to have the court consider Exhibit A as the Third Amended Complaint. (Pls. Resp. at 1-2.) In their Reply, Defendants object to Exhibit A because it is untimely and because it was filed without conferral or permission. (Defs.' Reply at 2-3, ECF No. 54.)
The court finds Exhibit A is untimely. As noted in the court's October F&R, an earlier request by Plaintiffs to amend the complaint was denied to provide Plaintiffs with the benefit of the court's rulings. (October F&R at 19 n.3; see also Order denying Motion for Leave to File Amended Complaint (ECF No. 26) as moot, ECF No. 47.) After Judge Immergut entered an Order on November 24, 2020, adopting the October F&R, Plaintiffs were allowed until December 7, 2020 to file their amended pleading. (ECF No. 45.) Plaintiffs submitted Exhibit A on January 13, 2021, over a month after the deadline passed. Additionally, Plaintiffs made no effort to satisfy the intent of Local Rule 7-1 prior to submitting Exhibit A. See LR 7-1(a)(1) - (2) (requiring parties to make a good faith effort to resolve the dispute, and on a dispositive motion, discuss each claim that is the subject of the proposed motion).
Plaintiffs offer no explanation for failing to confer about the content of Exhibit A or for its untimeliness. Submitting yet another version of the complaint after Defendants filed their motion and failing to adhere to established court deadlines wastes precious judicial resources and opposing counsel's time. Such circumstances weigh decidedly against allowing amendment. But Exhibit A does serve a purpose in deciding the Motion: because it contains the most detailed allegations Plaintiffs have offered to date, it bears on the court's determination whether additional facts, if allowed to be pleaded, will cure the deficiencies identified below. Because Defendants had an opportunity to respond to Exhibit A, they will not suffer prejudice by the court's consideration of the allegations in Exhibit A. Therefore, because the court reaches the same conclusion whether or not leave to amend is granted, Plaintiffs' request to amend should be granted. Thus, the court considers the factual allegations in Exhibit A as the operative Third Amended Complaint.
The courts' findings and recommendation apply with equal force to Plaintiffs' SAC and proposed TAC.
Defendants alternatively request that in the event the court considers Exhibit A, they be awarded fees and costs for filing the Motion and ask that such fees be paid prior to Plaintiffs filing any further submissions with the court. See Radilla v. City of Newberg, Case No. 3:15-cv-01019-MO (Order, ECF No. 88) (requiring Berman to pay fees as sanction for failing to appear for a pretrial conference). Because the court recommends that Defendants' motion to dismiss be granted, the court denies Defendants' request for fees with leave to renew in the event this Findings and Recommendation is not adopted.
Factual Allegations
In Exhibit A, Plaintiffs allege that they were mistreated daily while confined at YCJDC. (Ex. A at 2, ECF No. 53-1.) J.E. was confined at YCJDC from July 25, 2018 to Spring 2019. (Ex. A ¶ 42.) A.E. was confined at YCJDC from September 6 to 18, 2018. (Ex. A ¶ 48.) H.B.V. and J.H. were confined at YCJDC from October 4 to 18, 2019. (Ex. A ¶¶ 53, 58.) Plaintiffs allege that on a daily basis they were denied adequate sleep, denied adequate nutrition, denied adequate hygiene, appropriate healthcare, and access to medications; and that YCJDC exhibited general indifference to their wellbeing. (Ex. A ¶¶ 46-47, 51, 56, 61.) Plaintiffs allege that every day they were not permitted to look around or gesture to others, were disciplined for making direct eye contact with staff or raising their arms above their waist, and were not permitted to choose their own words when communicating with others. (Ex. A ¶¶ 43, 49, 52, 54, 59.) Plaintiffs allege they suffered weight loss, psychological pain, humiliation, and mental anguish because of Defendants' policies, practices, and customs. (Ex. A ¶¶ 47, 52, 57, 62.) Plaintiffs allege that Defendants actions fail to serve any penological interest (Ex. A ¶¶ 43, 49, 52, 54, 59), and they now seek to represent a class of similarly situated individuals defined as:
All persons who have been or will be placed into the custody of the Yamhill County Juvenile Detention Center (YCJDC) after being charged with misdemeanors, felonies, violations, civil commitments, non-drug, non-weapon offense or other minor crimes and were or will be:
a. Denied adequate and proper nutrition to maintain weight, leading to hunger pangs and even weight loss;
b. Denied proper cell conditions including but not limited to; a pillow, sufficient blankets, proper heating/cooling, visible window to outside, right to rest on bed during day/ when ill, right to cover eye to shield light at night;
c. Denied proper hygiene (feminine and generic soap and toilet paper), medication and/or medical, dental, psychological treatment;
d. Denied First Amendment Freedom of Speech and Expression including but not limited to: the right to look at and speak to staff and fellow detainees without discipline, the right to nonthreatening bodily movements such as scratching one's head or face without discipline, and denied the right to write or journal whatever they choose, including disdain for conditions of confinement;
e. Denied the right to appropriate, safe, non-humiliating, nonthreatening, and non-intimidating treatment by staff in word and deed.
All these deprivations and indignities in YCJDC are pursuant to the policy, custom and practice of the Yamhill County Juvenile Detention Department. The class period commences for males on February 17, 2017 and November 15, 2017 for females and extends to the date on which Yamhill County is enjoined from, or otherwise ceases, enforcing their unconstitutional policies, practices and customs of conducting demeaning and dissolute conditions of confinement. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.(Ex. A ¶ 18.)
Plaintiffs allege that Defendant Yamhill County, through its Juvenile Department, operates the YCJDC, and is responsible for its policies, practices, supervision, implementation, and conduct of YCJDC personnel. (Ex. A ¶ 7.) They also allege that Svenson is the Yamhill County Sheriff; Beach is the Community Justice Director of Yamhill County's Juvenile Department; and Paasch is the Juvenile Corrections Manager. (Ex. A ¶¶ 8, 9, 10.) Plaintiffs refer to Svenson, Beach, and Paasch as the “Policy Making Defendants” and seek to hold them responsible in their individual and official capacities. (Ex. A ¶¶ 11.) In Exhibit A, Plaintiffs also seek to add two individually named defendants, Tricia Fair (“Fair”) and Mr. Stepnick (“Stepnick”). (Ex. A ¶¶ 13-14.) Plaintiffs assert that Fair and Stepnick were corrections officers who enforced the draconian county policies and that they knowingly denied Plaintiffs their basic rights by implementing these policies, and that they imposed discipline by threatening detainees with extension of corrections time, isolation, and docked privilege points. (Ex. A ¶16.) Plaintiffs assert that Defendants have a de facto policy and custom of draconian, demeaning, and unconstitutional deprivations that involve discipline and sub-standard conditions of confinement. (Ex. A ¶ 36.) Plaintiffs allege that Defendants have instituted this policy through the Yamhill County Detention Handbook (the “Handbook”), that is provided to all juveniles at YCJDC. (Id.)
Legal Standards
Under Rule 12(b)(6), a party may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A court may dismiss “‘on the lack of cognizable legal theory or the absence of sufficient facts alleged'” under a cognizable legal theory. UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also CallerID4u, Inc. v. MCI Commc'ns Servs. Inc., 880 F.3d 1048, 1061 (9th Cir. 2018). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Teixeira v. Cnty. of Alameda, 873 F.3d 670, 678 (9th Cir. 2017). The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Twombly, 550 U.S. at 556; Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017).
The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Teixeira, 873 F.3d at 678; see also Iqbal, 556 U.S. at 679; Kwan v. SanMedica Int'l, 854 F.3d 1088, 1096 (9th Cir. 2017). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678 (internal citations omitted); Kwan, 854 F.3d at 1096. To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Discussion
Defendants move to dismiss under Rule 12(b)(6) because Plaintiffs have not cured the deficiencies identified in the court's October F&R. Defendants argue that Plaintiffs' § 1983 claims under the First, Fourth, and Eighth Amendments, as well as their claims under Monell, fail under Rule 12(b)(6) and should be dismissed with prejudice. Defendants similarly move to dismiss Plaintiffs' claim for punitive damages and to strike the class allegations. Defendants also object to Plaintiffs' attempt to include Fair and Stepnick as defendants as untimely.
In Plaintiffs' responsive briefing and in their allegations in Exhibit A, they delete their Fourth Amendment claim, conceding they do not allege any facts showing excessive force. (Pls.' Resp. at 3.) Plaintiffs seek to add, however, a claim under the Fourteenth Amendment to assert violations of due process and equal protection. (Id. at 4.) They further assert that their allegations under Monell and for punitive damages are sufficient to survive Defendants' motion. Finally, Plaintiffs argue that amending the complaint to add Fair and Stepnick as defendants should be permitted because such additions Defendants will not be prejudiced.
I. Unserved Defendants
In Exhibit A, Plaintiffs identify two new defendants in the caption, Tricia Fair and Mr. Stepnick. Fair and Stepnick have not been formally served. Plaintiffs refer to Fair and Stepnick as the Correction Office Defendants (“CODs”) and allege the following:
On a daily basis, between the dates enumerated below, the COD implemented the Yamhill County policies that were developed by the PMD, which caused them to knowingly deny Plaintiffs the basic rights to sleep, nutrition, hygiene, healthcare, and general well-being while at YCJDC. More specifically, defendants denied Plaintiffs of adequate food, adequate bedding and pillows, proper climate control, adequate toilet and feminine hygiene products, the right to lay on a bed or sleep during the day when sick or tired, privacy while on the toilet, freedom to move their limbs, hands and arms, and talk to or look at fellow minors or staff. While implementing these policies, the COD routinely imposed discipline by threatening detainees with extension of corrections time, isolation and docked “privilege” points.(Ex. A ¶ 16; see also proposed TAC ¶ 4.)
Defendants opposed Plaintiffs' attempt to add Fair and Stepnick as defendants because neither of them have been served, and because the deadline for adding parties expired some time ago and Plaintiffs have not sought or obtained permission to extend that deadline pursuant to Rule 16(b)(4). See also Fed. R. Civ. P. 4(m) (providing that defendants be served within ninety days after the complaint is filed). Plaintiffs respond that Defendants did not object on timeliness grounds when Plaintiffs sought to amend the complaint in September 2020, and reiterate that Defendants will not be prejudiced by the amendment of Fair and Stepnick. (Pls.' Resp. at 2-3; Pls.' Mot. Leave Am. Compl., ECF No. 26; Defs.' Resp. Mot. for Leave, ECF No. 32.) Plaintiff's arguments are unavailing.
In the October F&R, the court identified numerous pleading deficiencies. The October F&R did not give Plaintiffs permission to add new parties. After the court has set a pretrial deadline, a request to amend that deadline is controlled by the more stringent “good cause” standard set forth in Rule 16. AmerisourceBergen Corp. v. Dialysist W. Inc., 465 F.3d 946, 952 (9th Cir. 2006); Portland Eng'g, Inc. v. ATG Pharma Inc., Case No. 3:19-cv-02010-AC, 2020 WL 5437731, at *3 (D. Or. Sept. 10, 2020); Fed.R.Civ.P. 16(b)(4) (providing a scheduling order “may be modified only for good cause and with the judge's consent.”) Determining whether good cause exists to modify a deadline relies primarily upon whether the party seeking amendment acted diligently in pursuing the amendment. Story v. Midland Funding LLC, Case No. 3:15-cv-00194-AC, 2016 WL 5868077, at *1 (D. Or. Oct. 7, 2016); Portland Eng'g, 2020 WL 5437731, at *3. If the party who seeks modification of the scheduling order did not act diligently in doing so, “the inquiry should end, ” and the motion should be denied. Story, 2016 WL 5868077, at *1 (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (1992)).
As Defendants correctly highlight, the deadline for adding parties lapsed on August 20, 2019. (See Discovery and Pretrial Scheduling Order, ECF No. 7.) Additionally, Plaintiffs' previous motion to amend the complaint sought to add H.B.V., whose factual allegations were nearly identical to those of existing Plaintiffs J.E. and A.E.; it did not seek to add Fair or Stepnick as parties. Defendants objected to Plaintiffs' earlier proposed amendment based on the procedural posture of case, and the court struck the motion to amend as improperly filed. (Defs.' Resp. Mot. for Leave, ECF No. 32; Order, ECF No. 34.)
The request to add Fair and Stepnick as parties is untimely, and Plaintiffs have failed to provide good cause - or any reason - for extending the deadline for adding them at this stage of the case, which has been pending in this court since they filed it two and one-half years ago. Further, Plaintiffs fail to explain in their response brief the diligent efforts they undertook during the preceding two and one-half years and why those efforts failed to uncover the roles of Fair and Stepnick until now. Finally, and as explained below, Plaintiffs have failed to set forth any plausible constitutional violations. Accordingly, the court recommends that Plaintiffs' request to add Fair and Stepnick as parties be denied.
In the event any of the claims survive review by Judge Immergut, the court recommends that that the allegations against Fair and Stepnick be stricken without prejudice to file a motion to amend to add Fair and Stepnick as defendants, and that Plaintiffs be prepared to satisfy the requirements of Rule 16 as a condition of granting any such motion.
II. Section 1983 Claims
A. Fourth Amendment
In their responsive briefing, Plaintiffs concede that they have no allegations of excessive force and thus fail to state a claim under the Fourth Amendment. (Pls.' Resp. at 3.) In the October F&R, the court indicated that “Plaintiffs do not detail what intimidation tactics were used or how they amounted to psychological humiliation and intimidation” necessary to state a claim under the Fourth or Fourteenth Amendment. (October F&R at 10.) The court further noted that absent such details, “Plaintiffs' bare allegations simply do not raise plausible claims of excessive force, unreasonable restraint, or psychological intimidation under the Fourth Amendment or Fourteenth Amendment.” (Id.)
Here, Plaintiffs have not included additional factual details in Exhibit A about what alleged intimidation tactics were used or how those alleged tactics constituted psychological humiliation or intimidation experienced by J.E., A.E., H.B.V., or J.H. Consequently, to the extent any of Plaintiffs allegations could be construed as relating to excessive force, unreasonable restraint, or psychological intimidation under the Fourth or Fourteenth Amendment, they should be dismissed. See Shadd v. Cnty. of Sacramento, No. 2:12-cv-02834-MCE-KJN, 2014 WL 794346, at *1 (E.D. Cal. Feb. 27, 2014) (finding that excessive force claims for juveniles are analyzed under the Fourteenth Amendment). Because Plaintiffs previously have been advised of these deficiencies and now concede they lack such factual allegations, the court recommends these allegations be dismissed with prejudice.
B. Eighth Amendment
Plaintiffs allege that as a result of the policies implemented by Defendants, they were subjected to cruel and unusual punishment in the form of inadequate sleep, nutrition, hygiene, healthcare and general well-being. (Ex. A ¶ 74.) Plaintiffs assert that Defendants deprived them of these basic needs with conscious disregard for and in deliberate indifference of their rights, and that Defendants were aware of these rights because Plaintiffs reported or appealed these violations. (Ex. A ¶ 75.) Plaintiffs assert that Defendants participated directly in the violations, created the policies or customs under which the violations occurred, were grossly negligent in supervising subordinates who committed the wrongful acts, were deliberately indifferent to their rights, and caused Plaintiffs substantial emotional, psychological, and physical damages. (Ex. A ¶¶ 75-76.)
Generally, “[t]he status of the detainee determines the appropriate constitutional standard for evaluating conditions of confinement.” Vazquez v. Cnty. of Kern, 949 F.3d 1153, 1163 (9th Cir. 2020) (citation and quotation omitted); Gary H. v. Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987) (applying due process standard of Fourteenth Amendment to conditions at an Oregon juvenile detention facility where the juvenile justice system was noncriminal and nonpenal in nature). A similar from this district recognized that claims concerning the conditions of confinement for juveniles are analyzed under the Fourteenth Amendment, not the Eighth Amendment. See Eastwood v. Yamhill Cnty., Case No. 3:18-293-YY, 2021 WL 1237111, *2 n.1 (D. Or. Apr. 2, 2021) (holding that “the Fourteenth Amendment's standard applies to minors in juvenile detention in Oregon regardless of whether they are pre- or post-adjudication because the stated purpose of juvenile detention is not punishment, but rehabilitation.”); appeal filed (9th Cir. Apr. 28, 2021). See also R.G. v. Koller, 415 F.Supp.2d 1129, 1152 (D. Haw. 2006) (applying due process standard to juveniles confined by Hawaii Family Courts where wards were adjudicated delinquent and not convicted of a crime); see generally Castro v. Cnty. of L.A., 833 F.3d 1060, 1067-1068 (9th Cir. 2016) (noting distinction between Eighth and Fourteenth Amendments); State v. J.G.G., 278 Or.App. 184, 186 (2016) (recognizing the purpose of Oregon juvenile justice system is to protect the public and reduce juvenile delinquency, citing Or. Rev. Stat. § 419C.001).
In the October F&R, the court noted that the Fourteenth Amendment's more protective due process standard applies when evaluating conditions of confinement for juveniles, and that Plaintiffs had failed to plausibly plead that the Eighth Amendment applied. (October F&R at 8-9.) Although Plaintiffs have detailed their periods of custody and whether they remained in custody pre- or post-adjudication at YCJDC, Plaintiffs' allegations fail to establish that the Eighth Amendment is applicable to their instant claims against Defendants. Eastwood, 2021 WL 1237111, at *2 n.1. Because Plaintiffs' claims are properly analyzed under the Fourteenth Amendment, their claims under the Eighth Amendment should be dismissed with prejudice.
C. First Amendment
As detailed in the October F&R, prison regulations may validly restrict an inmate's First Amendment Rights of free speech and expression if they are “reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). There are four factors the court considers to determine the constitutionality of prison regulations: (1) whether a “valid, rational connection” exists between the regulation and the legitimate governmental interest the regulation is designed to protect; (2) whether alternative means of exercising the right are available to the inmate or pretrial detainee; (3) the impact any accommodations would have on guards, other inmates, and on allocation of prison resources; and (4) whether there is an “absence of ready alternatives” for furthering the government interest, which would suggest that the regulation is an exaggerated response to the jail's concern. Id. at 89-90; Mauro v. Arpaio, 188 F.3d 1054, 1058-59 (9th Cir. 1999) (en banc) (applying Turner factors to First Amendment challenge to regulations raised by pretrial detainee).
In the October F&R, the court determined that Plaintiffs failed to state a First Amendment claim premised on “restricted journal writing” because they did not allege that either J.E. or A.E. were specifically restricted from that activity. (October F&R at 11.) The court also determined that Plaintiffs failed to allege how the restrictions imposed through the Handbook are unreasonable, because Plaintiffs failed to provide any context for the alleged restrictions on journal writing. (October F&R at 12.) To the extent Plaintiffs were bringing a facial challenge to the rules restricting juveniles' eye contact or raising their arms above the waist, the court determined that they failed to assert how the rule were unrelated to any legitimate penological interest. (Id.) And, to the extent Plaintiffs were asserting the rules were unconstitutional as applied to them, the court already has held that Plaintiffs failed to allege how the rules are not reasonably related to any legitimate penological interests. (Id.) Notably, the court specified that “Plaintiffs' Amended Class Complaint is devoid of any allegations identifying which Defendant disciplined them, what specific discipline was imposed, and how Defendants' conduct did not reasonably advance a legitimate correctional goal.” (Id.)
Defendants contend that Plaintiffs' First Amendment claim should be dismissed because Plaintiffs again fail to “set forth any facts . . . as to how the rules are unrelated to any legitimate penological interest, and, as it relates to [P]laintiffs' as applied challenge, any facts articulating how their First Amendment rights were infringed, what discipline was imposed, and, assuming discipline was imposed, how this did not reasonably advance a legitimate correctional goal. (Defs.' Mot. Dismiss at 11.) Plaintiffs respond they “have further clarified how the Policy Making Defendants (“PMD”) and Corrections Officer Defendants promulgated, enforced and then failed to revise the draconian unconstitutional policies that violated plaintiff[s'] constitutional rights without furthering a legitimate penological interest.” Even viewing these allegations in the light most favorable to Plaintiffs, their allegations remain conclusory and still leave the court guessing at what theory they intend to pursue.
In Exhibit A, Plaintiffs assert their First Amendment rights were infringed while in custody at YCJDC when they were disciplined for looking at or speaking to staff and fellow detainees; were disciplined or restrained for engaging in non-threatening bodily movements, such as scratching their heads or faces; were disciplined for expressing grievances; and were denied the right to express their disdain for their conditions of confinement by writing in a journal. (Ex. A at ¶ 66.) Plaintiffs assert that by engaging in such expressive behavior, they were threatened with extended corrections time and lost privilege points, and that Defendants' actions chilled their written, verbal, and physical communication and expression. (Id.) Plaintiffs include four pages excerpted from the Handbook and assert that they were denied the right to seek redress verbally and in writing. (Ex. A ¶ 66.) Plaintiffs J.E., A.E., H.B.V., and J.H. allege that they were denied the ability to look around and appreciate their surroundings, looking at or gesturing toward other detainee or staff, and choosing their own words in written and verbal communication. (Ex. A ¶¶ 43, 49, 54, 59.) Plaintiffs assert they were routinely subjected to demeaning and damaging discipline from Fair and Stepnick for making direct eye contact with staff and raising their arms above their waist. (Ex. A ¶¶ 47, 52, 57, 62.) Plaintiffs allege Defendants' actions serve no legitimate penological interest. (Ex. A ¶¶ 47, 52, 57, 62.) Plaintiffs further allege that the Policy Making Defendants created the unconstitutional policies, that Fair and Stepnick enforced the policies, and that they did so with conscious disregard and deliberate indifference to Plaintiffs' rights. (Ex. A. at ¶ 68.)
As to Plaintiffs' First Amendment facial challenge to the Handbook, the court again concludes that they have failed to provide any context for the alleged restrictions on looking at staff and other detainees, raising their arms above their waist, or journal writing. Plaintiffs provide no contextual details whatsoever surrounding the alleged restrictions on this activity, except to provide that they occurred “daily.” Plaintiffs continue to fail to allege any facts demonstrating how the rules are unrelated to any penological interest; simply contending the rules are unrelated to a legitimate penological interest fails to meet this burden. See Bahrmpour v. Lampert, 356 F.3d 969, 976 (9th Cir. 2004) (applying Turner factors to Oregon Department of Corrections regulations concerning mail); see also Davis v. Flores, Civ. No. 1:08cv01197-JTM(JMA), 2010 WL 2673458, at *8 (E.D. Cal. July 2, 2010) (identifying legitimate penological interests may include security, preservation of order and discipline, institutional security, and rehabilitation).
As for Plaintiffs' as-applied challenge to the Handbook, they have failed to remedy the deficiencies identified in the October F&R. Again, none of the Plaintiffs assert that they were restricted from journal writing, therefore any as-applied First Amendment claim on this basis fails. (October F&R at 11-12.) While Plaintiffs do contend that Fair and Stepnick enforced the rules and imposed discipline, they have failed to articulate how their alleged freedom of expression was restrained, and under what circumstances, and how such restrictions were not reasonably related to any penological interest. For example, Plaintiffs fail to allege how and when they were prohibited from looking around, which could have entirely different penological interests if the rule was enforced while dining or showering as opposed to being enforced while exercising. Likewise, Plaintiffs' allegations about written communications are so lacking in detail they could encompass anything from passing notes to fellow detainees to filing grievances.
Furthermore, although alleging that they were prevented from lodging a report or appeal about their conditions of confinement could theoretically form the basis of a First Amendment retaliation claim, Plaintiffs supply no details stating that they were actually disciplined for doing so. Indeed, they fail to allege at what point in time they made or attempted to make reports or appeals and to whom they made them, or any facts detailing that they were disciplined for doing so, except in the most conclusory fashion. (See Ex. A ¶ 66.) Furthermore, “a viable claim of First Amendment retaliation must demonstrate that the adverse action taken by the state did not reasonably advance a legitimate correctional goal.” Gonzalez-Aguilera v. Belleque, No. Civ. 09-579-PA, 2011 WL 690606, at *2 (D. Or. Feb. 16, 2011) (citing Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)).
See Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (providing that elements of viable First Amendment retaliation claim are (1) state actor took some adverse action; (2) because of (3) prisoner's protected conduct, and (4) that chilled his free exercise and (5) the action did advance a legitimate correctional goal); see also Shepard v. Quillen, 840 F.3d 686, 688 (9th Cir. 2016) (recognizing that “a corrections officer may not retaliate against a prisoner for exercising his First Amendment right to report staff misconduct”). Notably, Plaintiffs do not assert a First Amendment retaliation claim in Exhibit A.
Allegations of theoretical violations do not constitute plausible facts. Plaintiffs' threadbare, conclusory allegations amount to no more than the sheer possibility that Defendants have violated the First Amendment. Accordingly, the court finds that the First Amendment allegations contained in Exhibit A fail to remedy the previously identified deficiencies and that Defendants' motion to dismiss the First Amendment claims should be granted.
D. Fourteenth Amendment
1. conditions of confinement
Exhibit A presents, for the first time, allegations of unconstitutional conditions of confinement under the Fourteenth Amendment. Plaintiffs allege that on each day they were detained at YCDJC, they were deprived of basic human needs, including adequate sleep, nutrition, hygiene, healthcare, and well-being. (Ex. A ¶ 81.) Plaintiffs assert they were denied adequate food, adequate bedding and pillows, proper climate control, adequate toilet and feminine hygiene products, the right to lay on a bed or sleep during the day when tired or sick, privacy when on the toilet, freedom to move their limbs, hands and arms, and to talk to or look at fellow minors or staff. (Ex. A. ¶ 16.) Plaintiffs assert that the Policy Making Defendants created unconstitutional polices and that Fair and Stepnick implemented such policies with conscious disregard and deliberate indifference to their rights. (Ex. A ¶ 82.) Plaintiffs allege that Defendants participated directly in the unconstitutional deprivations because they were “informed of the violation through a report or appeal” and failed to remedy those wrongs. (Ex. A ¶ 82.)
To state a Fourteenth Amendment claim of unconstitutional conditions of confinement under an objective deliberate indifference standard, Plaintiffs must allege facts that show:
(1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined;
(2) Those conditions put the plaintiff at substantial risk of suffering serious harm;
(3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved - making the consequences of the defendant's conduct obvious; and
(4) By not taking such measures, the defendant caused the plaintiff's injuries.
With respect to the third element, the defendant's conduct must be objectively unreasonable, a test that will necessarily turn on the facts and circumstances of each particular case.Castro, 833 F.3d at 1071 (citations, quotations, and footnotes omitted); Smith v. Washington, 781 Fed.Appx. 595, 597-98 (9th Cir. 2019) (stating that pre-trial detainee asserting Fourteenth Amendment conditions of confinement claim must show their conditions put him at substantial risk of serious harm).
Plaintiffs' allegations do not satisfy the second, third, and fourth prongs. Concerning the second prong, Plaintiffs fail to provide any details whatsoever as to how their bedding was inadequate, why their food was inedible, or why their rest periods were inadequate. While Plaintiffs assert their conditions and treatment were “deplorable, ” they provide no contextual details of these alleged deprivations. For example, Plaintiff J.E. asserts that he was denied medications, but provides absolutely no details about which medications were withheld, for what duration, and why the lack of medications placed J.E. at substantial risk of serious harm. Ex. A ¶ 47; Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (“Claims for violations of the right to adequate medical care brought by pretrial detainees against individual defendants under the Fourteenth Amendment must be evaluated under an objective deliberate indifference standard.”); see also Pitcher v. Garrett, NO. 3:20-cv-869-SI, 2021 WL 1255179, at *3-4 (D. Or. Apr. 5, 2021) (finding pretrial detainee alleged sufficient facts that conditions created substantial risk of serious harm under Castro by asserting he was bound by belly chains, handcuffs and leg shackles, and could not safely exit van without assistance). Similar deficiencies exist with respect to Plaintiffs' references to food, water, rest periods, bedding, and temperature. Thus, they have failed to allege sufficient facts showing how their conditions of confinement put them at substantial risk of serious harm to meet the second prong under an objective standard.
Under the third prong, the court must examine whether there are factual allegations showing that defendants failed to take reasonable measures to abate the risk, “even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved - making the consequences of the defendant's conduct obvious.” Castro, 833 F.3d at 1071. The third prong requires “reckless disregard;” mere negligence will not suffice to show a Fourteenth Amendment violation. Pitcher, 2021 WL 1255179, at *4.
In Exhibit A, Plaintiffs assert that they informed Defendants “through a report or appeal” and that Defendants “failed to remedy the wrongs.” (Ex. A ¶ 82.) Plaintiffs further allege that Defendants were “grossly negligent” in supervising subordinates who committed the wrongful acts, and that “[D]efendants exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.” (Ex. A ¶ 82.)
Plaintiffs' allegations offer little more than the very type of bald assertions the Supreme Court rejected in Twombly and Iqbal. They fail to provide any detail concerning their alleged reports or appeals, such as what facts were relayed about any particular situation that placed them at risk, thus making it impossible to ascertain whether there were any available measures that could have abated any of the alleged risks. Castro, 833 F.3d at 1071. Further, absent more detailed allegations, Plaintiffs have failed to allege facts showing that any officer in such situations would have appreciated the high degree of risk involved such that the consequences of Defendants' action or inaction were obvious. Plaintiffs have failed to allege any facts showing that “the apparent degree of danger was sufficiently high that it was objectively unreasonable” and that any particular Defendant acted with reckless disregard. Pitcher, 2021 WL 1255179, at *4 (finding pretrial detainee who asserted he asked for assistance exiting van while shackled and was denied help failed to allege sufficient factual allegations to show that reasonable officer would have appreciated the risk of inaction was obvious). Plaintiffs have failed to plausibly allege sufficient facts to show that any Defendant's conduct amounted to reckless disregard, and thus fail to assert a Fourteenth Amendment violation.
Under the fourth prong, Plaintiffs have failed to allege how Defendants' inaction resulted in their injuries. Plaintiffs have failed to plead sufficient facts showing that by failing to take reasonable measures, any identified Defendant caused their injuries. Castro, 883 F.3d at 1071.
2. equal protection
Exhibit A also presents for the first time Plaintiffs' apparent equal protection claim under the Fourteenth Amendment. They allege that “[C]ompared with others similarly situated, plaintiffs were selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person(s).” (Ex. A ¶ 83.) In their responsive briefing, Plaintiffs insist that their allegations properly plead an equal protection claim. (Pls.' Resp. at 4.)
To prevail on an equal protection claim brought under § 1983, a plaintiff must allege facts plausibly showing that “‘the defendants acted with an intent or purpose to discriminate against [them] based upon membership in a protected class.'” See Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir.2005) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001)). When the challenged governmental policy is “facially neutral, ” proof of its disproportionate impact on an identifiable group satisfies the “intent requirement only if it tends to show that some invidious or discriminatory purpose underlies the policy.” Lee, 250 F.3d at 686-87 (citing Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-66, (1977)). Discriminatory purpose “implies that the decision maker . . . selected or reaffirmed a particular course of action at least in part ‘because of' not merely ‘in spite of' its adverse effects upon an identifiable group.” Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).
Presuming that Plaintiffs contend the YCDJC Handbook is the policy at issue here, it is facially neutral and Plaintiffs must show, beyond disparate impact, that it is “underlain with an invidious or discriminatory purpose” or was “instituted at least in part because of its discriminatory effect.” Canales-Robles v. Peters, Case No. 6:16-cv-01395-AC, 2018 WL 4762899, at *9 (D. Or. July 2, 2018) adopted 2018 WL 4762120 (Oct. 1, 2018) (dismissing equal protection claims against state officials).
Exhibit A is devoid of any factual allegations setting forth a plausible Fourteenth Amendment equal protection claim. Plaintiffs fail to allege any facts showing that Defendants treated them differently based on their membership in a protected class. Moreover, Plaintiffs fail to plausibly allege how Defendants acted or failed to act, with any invidious or discriminatory purpose. Plaintiffs' responsive briefing fails to shed any light on how these new allegations satisfy the pleading standards. Plaintiffs' new equal protection allegations offer merely an unadorned recitation of elements and are wholly insufficient to state an equal protection claim.
3. summary
Plaintiffs' allegations under the due process equal protection clauses of the Fourteenth Amendment amount to only labels and conclusions. Their allegations are so lacking in factual detail that they fail to “give fair notice and to enable the opposing party to defend itself effectively.” Starr, 652 F.3d at 1216. For all these reasons, Defendants' motion to dismiss should be granted.
III. Personal Participation for Supervisory Liability
In the October F&R, the court determined that “[t]o the extent that Plaintiffs bring this action against Svenson, Beach, and Paasch individually, they have failed to allege that Svenson, Beach, and Paasch personally participated in any of the alleged constitutional deprivations.” (October F&R at 13.) The court also found that Plaintiffs failed to allege Svenson, Beach, and Paasch “had a sufficient causal connection with the alleged unconstitutional conduct to warrant imposing liability, such as directing others to effect the constitutional deprivation, setting in motion the actions of others which culminated in the deprivation, or knowingly declining to prevent others from causing the deprivation. (Id.) Finally, the court found that Plaintiffs failed to allege how they made Svenson, Beach, and Paasch “aware of the alleged unconstitutional conditions of confinement, how these Defendants directed others to engage in the deprivation, or how these Defendants knowingly declined to prevent others from causing the deprivations.” (Id.)
In Exhibit A, Plaintiffs allege that Svenson, the Yamhill County Sheriff, was “acting in the course and scope of his elected position.” (Ex. A ¶ 8.) Plaintiffs allege that Beach was the Community Justice Director of Yamhill County's Juvenile Department and acted within the course and scope of her employment. (Ex. A ¶ 9.) Plaintiffs allege that Paasch was the Juvenile Corrections Manager, acting in the course and scope of his employment. (Ex. A ¶ 10.) Plaintiffs assert that Svenson, Beach and Paasch are the Policy Making Defendants and “wrote, drafted, promulgated, maintained and enforced draconian policies that serve no legitimate penological interest or objective other than to torment detainees like Plaintiffs.” (Ex. A ¶ 12, see also proposed TAC ¶ 4, ECF No. 51-2.)
Defendants argue that Plaintiffs have failed to remedy the deficiencies identified in the October F&R. Defendants highlight that Plaintiffs assertions fail to articulate a causal link between Svenson, Beach, and Paasch and the policies they allegedly promulgated, that they were aware of the alleged unconstitutional conduct, how they directed the unconstitutional conduct, or when or how they knowingly failed to prevent the alleged constitutional deprivations. (Defs.' Mot. Dismiss at 12-13.)
Plaintiffs respond that they have sufficiently alleged: (1) Svenson, Beach, and Paasch designed and crafted the policies that resulted in Yamhill County's unconstitutional mistreatment of them; and (2) Fair and Stepnick are the individuals who enforced those policies knowing that they resulted in deprivation of Plaintiffs' constitutional rights. (Pls.' Resp. at 6.) Plaintiffs assert that they have alleged sufficient allegations to support supervisory liability for Svenson, Beach, and Paasch. (Id.)
Defendants are correct. Plaintiffs have failed to remedy any of the pleading deficiencies identified in the October F&R with respect to Svenson, Beach, and Paasch. Alleging merely that Svenson, Beach, and Paasch promulgated the policies and enforced them fails to show their personal participation or a sufficient causal connection with the alleged constitutional deprivations to warrant imposing liability. See Hines v. Youseff, 914 F.3d 1218, 1228 (9th Cir. 2019), cert. denied 140 S.Ct. 159 (2019) (holding that officials are liable under § 1983 only if they “personally played a role in violating the Constitution”); Starr, 652 F.3d at 1207-08 (recognizing that causal connection for supervisory liability may be imposed where supervisor set in motion a series of acts by others or refusing to terminate a series of acts by others, or for own culpable action or inaction). Plaintiffs' allegation that Svenson, Beach, and Paasch were informed of the violations by report or appeal similarly fails to include when such a report was made, to whom Plaintiffs made it, and how it served to make any one of them aware of the alleged constitutional deprivations. Plaintiffs' threadbare assertions and conclusory allegations fail to satisfy their burden. Stratford v. Cal. Dep't Corrs. & Rehab., Case No. 1:17-cv-00766, 2020 WL 1865291, at *2 (E.D. Cal. Apr. 4, 2020) (holding that passing reference to certain defendants and they “were aware, or should have been aware” of increased risks failed to adequately allege personal participation), adopted 2020 WL 2539233 (May 19, 2020); see also Meyer-Conely v. Addiction Counseling & Ed. Servs., Inc., Case No. 6:17-cv-1719-MC, 2018 WL 2208212, at *3-4 (D. Or. May 14, 2018) (holding that plaintiff's allegations that mislabeled urinalysis and knowledge of “similar errors” failed to state a claim under § 1983 for supervisory liability); Hagen v. Williams, Case No. 6:14-cv-00165-MC, 2014 WL 6893708, at *3 (D. Or. Dec. 4, 2014) (holding that allegations the onsite prison superintendents knew or should have known that prison policies failed to ensure inmate safety failed to show knowledge, acquiescence, or deliberate indifference to events or policies leading to inmate's death necessary to state § 1983 claim of supervisory liability).
IV. Monell Claim
In the October F&R, the court determined that Plaintiffs had failed to plead a plausible Monell claim against Yamhill County, acting through policy making defendants Svenson, Beach, and Paasch. (October F&R at 14.) In the October F&R, the court detailed that Plaintiffs had failed to set forth any viable constitutional violation, which was fatal to their Monell claim. (October F&R at 16.) The court also explained how Plaintiffs' allegations or proposed amendment offered little more than unadorned elements of a Monell claim. As discussed above, because Plaintiffs have failed to plausibly plead any underlying constitutional violations in Exhibit A, their Monell claim should be dismissed. See Capp v. Cnty. of San Diego, 940 F.3d 1046, 1061 (9th Cir. 2019) (failure to plead plausible constitutional violation was fatal to Monell claim); Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (identifying deprivation of constitutional right as an element of § 1983 municipal liability claim).
Next, despite including additional allegations to support their Monell claim, Plaintiffs fail to assert how Svenson, Beach, and Paasch were deliberately indifferent to the alleged constitutional deprivations, or how the alleged unconstitutional conditions of confinement were “so obvious” that they were deliberately indifferent to those risks. In Exhibit A, Plaintiffs allege the following:
Defendants have created and imposed a written and/or defacto [sic] policy, custom of draconian, demeaning and unconstitutional deprivations that involve discipline and sub-standard conditions of confinement for all individuals who enter the custody of their YCJDC.(Ex. A ¶ 36.) Later in Exhibit A, Plaintiffs allege the following:
On each of the days Plaintiffs and similarly situated Class members were detained at YCJDC, as a result of the policies that were implemented by Yamhill County and the PMD for reasons not related to legitimate penological interests, the COD denied Plaintiffs and similarly situated Class members from expressing themselves by denying their right to look at and/or speak to staff and fellow detainees without discipline, by denying their right to engage in non-threatening bodily movements such as scratching one's head or face without discipline, by denying their right to express grievances without discipline, and by denying the right to write or journal whatever they choose, including their disdain for conditions of confinement. The policies that called for these denials, and the fact Plaintiffs and similarly situated Class members faced threats of extended corrections time, isolation and/or docked “privilege” points for violating the policies, have resulted in an unconstitutional chilling effect on written, verbal and physical communication and expression by detainees at the YCJDC, and the right to seek redress verbally and in writing, to their detriment and sanctions.
The conduct of Yamhill County and the PMD in creating the unconstitutional policies to be implemented at YCJDC, and the COD in enforcing those policies, was intentional, was done with conscious disregard and deliberate indifference to the rights of Plaintiffs and similarly situated Class members under the First Amendment, and as such constitutes a violation of 42 U.S.C. § 1983. The PMD and COD defendants participated directly in the alleged constitutional violations, the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrongs; the defendants created policies or customs under which unconstitutional practices occurred, or allowed the continuance of such policies or customs; the defendant were grossly negligent in supervising subordinates who committed the wrongful acts; the defendants exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.(Ex. A ¶¶ 66, 68.) Even accepting these allegations as true, Plaintiffs have not plausibly alleged that the County or Svenson, Beach, or Paasch had actual or constructive notice that their inaction likely would result in the deprivation of their federally protected rights. Although Plaintiffs broadly allege that Defendants were informed of violations by report or appeal, Plaintiffs have failed to allege any details about those reports or that Svenson, Beach, or Paasch personally knew of the reports, that the reports relayed information about the alleged wrongful acts, and that they knew a constitutional violation would result from their inaction. Compare Hyun Ju Park v. City and Cnty. of Honolulu, 952 F.3d 1136, 1142 (9th Cir. 2020) (dismissing Monell claim against chief of police because plaintiff failed to allege the chief had “actual or constructive notice that his inaction would likely result in the deprivation of [plaintiff's] federally protected rights”); with Starr, 652 F.3d at 1209-11 (finding allegations that Baca was personally aware of lax security at jail which led to several beatings by subordinates and personally approved settlement involving one inmate beating, which “plausibly suggest that Sheriff Baca acquiesced in the unconstitutional conduct of his subordinates” and was deliberately indifferent to danger the plaintiff faced).
Moreover, to the extent that Plaintiffs allege that Handbook's facial deficiencies were so obvious that any reasonable policymaker would have recognized the need for reform, they fail to allege the required deliberate indifference. Plaintiffs assert that they were prohibited from speaking to others in all situations, were denied the right to scratch their head or face under all circumstances, and were forbidden from writing in journal about their conditions of confinement, but the excerpted policies can just as readily be read less restrictively. For example, the policy itself provides that “I will not bring my hand above my waist without permission, ” and prohibits “nonverbal communication” such as smiling, waving, winking, and mouthing words, and provides that “[w]hen I am allowed to speak, I will keep my conversations appropriate.” (Ex. A at 12.) The Handbook clearly provides that raising arms and speaking are permitted with permission and, importantly, states it is intended to prohibit harassment, intimidation, and gang related behavior. (Ex. A at 12.) Plaintiffs also assert that they were prohibited from looking around and appreciating their surroundings and that this deprived them of their First Amendment rights. The Handbook states that they will not “look around while I am in the facility, ” that eyes are to “remain focused on the assigned task that I am given, ” and that “I will NOT look out my room or door window at any time.” (Ex. A at 13-14.)
These Handbook provisions impose some restraints but are not so restrictive as to make obvious that constitutional deprivations are likely to occur or that reform was necessary to abate a risk of serious harm. Even if Defendants interpreted the Handbook to prohibit Plaintiffs from raising their arms above their waists in all circumstances and from looking around and appreciating their surroundings in all situations, it is far from obvious that any reasonable policy maker would have interpreted the policy in the manner Plaintiffs suggest.
Therefore, Plaintiffs have not plausibly alleged that the environment at YCDJC is a situation in which “the need for more or different” action was “so obvious” that we can infer deliberate indifference from the text of the policy alone. Hyun Ju Park, 952 F.3d at 1142 (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989)). Accordingly, Plaintiffs again have failed to plead a plausible Monell claim under § 1983. See Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (dismissing “Monell and supervisory liability claims [that] lack[ed] any factual allegations that would separate them from the ‘formulaic recitation of a cause of action's elements' deemed insufficient by Twombly”) (quoting Twombly, 550 U.S. at 555).
V. Class Claims
In the October F&R, the court denied as premature Defendants' earlier motion to strike the class claims but granted leave to renew, and they again move to strike those claims. Plaintiffs assert that a determination on class certification itself is premature because they have not yet moved for class certification. Plaintiffs' counsel, Leonard Berman, offers that he has conferred with experienced West Coast class counsel who expressed interest in associating on the case, which would cure his lack of class counsel experience. (Pls.' Resp. at 2.)
Class allegations may be stricken at the pleading stage, but such motions are generally disfavored. Ott v. Mortg. Invs. Corp. of Ohio, Inc., 65 F.Supp.3d 1046, 1062 (D. Or. Dec. 3, 2014). Motions to strike the class allegations “before discovery and in advance of a motion for class certification is rare and has happened only in those limited circumstances when the class definition is obviously defective in some way.” Id. (internal citations and quotations omitted); see also Perkins v. LinkedIn Corp., 53 F.Supp.3d 1190, 1221 (N.D. Cal. June 12, 2014).
Plaintiffs' counsel's assertions about associating with counsel are completely unsupported. Berman has not provided an affidavit identifying the purported West Coast Counsel. As the court observed in the October F&R, it continues to have reservations about Berman's abilities to handle the additional organizational responsibilities associated with prosecuting a class action, reservations that other judges in this district share. See Lyons v. Peters, Case No. 3:17-cv-00730-SI (Order, ECF No. 67 Aug. 14, 2018) (denying class certification and noting “The limited work that Mr. Berman has done so far in this case, along with the Court's past experiences with Mr. Berman in other cases, however, raise questions about Mr. Berman's adequacy as class counsel in this case.”); Dillon v. Clackamas Cnty., Case No. 3:14-cv-00820-YY (F&R, ECF No. 198 Aug. 6, 2019) (granting motion to decertify class and finding “Mr. Berman's repeated failure to meet court deadlines in this case and others, the multitude of mistakes that he made in providing class notice in this case, and his history in this district demonstrate his inability to adequately represent the class in this case.”), adopted, (Order, ECF No. 217). Furthermore, in Eastwood v. Yamhill County, Plaintiffs also brought a putative class action against the identical Defendants here, Yamhill County, Beach, Paasch, Svenson, and similarly proposed adding Fair and Stepnick, while asserting very similar allegations about conditions of confinements at YHJDC, and the court awarded summary judgment to the defendants on all claims. Eastwood, 2021 WL 1237111, at *2. The ruling in Eastwood further undermines both Plaintiffs' contention here that there are potentially over 500 individuals raising concerns about their alleged unconstitutional conditions of confinement at YCJDC, as well as their contention that a class action is necessarily advantageous. Nevertheless, the court is not convinced that eliminating the class claims at this juncture is appropriate. See Ott, 65 F.Supp.3d at 1064 (declining to dismiss class claims on motion to dismiss pursuant to Rule 12(f)). Because the court recommends that Defendants' motion be dismissed on other grounds, the court declines to strike the class claims in the event this Findings and Recommendation is not adopted.
The court's review of the docket in Eastwood reveals that no motion for class certification was filed.
VI. Punitive Damages
In the October F&R, the court dismissed the punitive damages claim against Yamhill County and determined that “Plaintiffs have set forth no facts whatsoever that Defendants Svenson, Beach, and Paasch personally engaged in any of the alleged constitutional violations, let alone did so maliciously, wantonly, or with callous indifference to Plaintiff's constitutional rights.” (October F&R at 17.) Defendants again move to dismiss the punitive damages claims against Svenson, Beach, and Paasch.
In their responsive briefing, Plaintiffs allege that they have adequately pleaded entitlement to punitive damages by asserting the following:
86. The above-described policies created, maintained and enforced by the Defendants were and are outrageous, in that they propagate illegal deprivations and deplorable conditions of confinement. Defendants created, maintained and enforced the policies and conditions at issue, despite being aware that they are unconstitutional.
87. It is clear that Defendants have no respect for the civil rights of individual citizens or for the rule of law, and have demonstrated a “reckless or callous indifference” to the rights of minor detainees. None of the aforementioned-policies served a legitimate penological interest. The PMDs and COD officers acted maliciously, wantonly, and with callous indifference to the constitutional rights of Plaintiffs and similarly situated Class members when they promulgated, enforced and did not revise draconian policies in place at the YCJDC. Consequently, an award of punitive damages is necessary to punish Defendants, and to send a message that the requirements of the United States Constitution also apply to government officials in all named counties.(Ex. A ¶¶ 86-87.) In their responsive briefing, Plaintiffs offer yet another basis for their punitive damages claims, contending that Defendants have acted with “callous indifference” to the rights or minors. (Pls.' Resp. at 7-8.) Plaintiffs' arguments miss the mark.
Plaintiffs' allegations concerning punitive damages fail to include any specific factual allegations plausibly demonstrating that Defendants have engaged in the type of malicious, wanton, and willful behavior warranted for imposing punitive damages. Dang v. Cross, 422 F.3d 800, 808-09 (9th Cir. 2005). As with much of Plaintiffs' pleading described above, they offer little more than conclusory allegations. Because Plaintiffs have had ample opportunity to amend their punitive damages allegations and because their allegations continue to lack specificity, the court finds that adequate allegations could not be forthcoming and that further leave to amend would be futile. Accordingly, the court recommends that at the punitive damages claim be dismissed with prejudice.
VII. Leave to Amend
Defendants move to dismiss with prejudice because Plaintiffs have not yet alleged plausible claims for relief despite numerous opportunities and continue to include previously dismissed claims in their operative pleadings. Plaintiffs insist that they should be given yet more opportunities leave to amend.
A proposed “amendment is futile when no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense.” Missouri ex rel. Koster v. Harris, 847 F.3d 646, 655-56 (9th Cir. 2017) (internal quotation and citation omitted). When assessing futility, “the court must remain guided by the underlying purpose of Rule 15 . . . to facilitate decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted).
As discussed above, Plaintiffs have had made numerous attempts to correct the pleading deficiencies this court has identified. Exhibit A represents the most thorough recitation of facts and details to date, yet, as exhaustively explained above, Exhibit A falls far short of the pleading requirements necessary to survive Rule 12(b)(6) scrutiny. Plaintiffs' Fourth Amendment claim should be dismissed with prejudice because they concede their allegations fail to state a viable claim. Plaintiffs' Eighth Amendment claim must be dismissed as a matter of law because their claims properly lie under the Fourteenth Amendment -- an outcome Plaintiffs were informed of in the October F&R. Despite being given very clear direction by the court how to cure the previously identified deficiencies, Plaintiffs' remaining allegations remain woefully inadequate. Given their repeated failures to allege facts, as opposed to conclusory, threadbare elements of their various claims, the court concludes additional facts are not forthcoming. See Dougherty, 654 F.3d at 901 (holding leave to amend may be denied as futile where repeated failures to add factual allegations failed to cure deficiencies). Furthermore, as noted above, similar allegations against the same Defendants were defeated on summary judgment in Eastwood, 2021 WL 1237111, at *2.
Because the court's ruling in Eastwood was lodged after the briefing was filed in this case, the parties did not discuss and the court does not consider what, if any, preclusive effect may be given to the Eastwood decision here.
Accordingly, the court recommends that leave to amend be denied as futile and the complaint be dismissed with prejudice. Sylvia Landfield Trust v. City of Los Angeles, 739 F.3d 1189, 1196 (9th Cir. 2013) (holding district court did not abuse discretion in denying leave to amend where plaintiffs twice were granted leave to amend, and proposed third amended complaint did not “allege sufficient facts that amount to more than a ‘sheer possibility that [Defendants have] acted unlawfully'”) (quoting Iqbal, 556 U.S. at 678).
Conclusion
Based on the foregoing, Defendants' Motion Dismiss for Failure to State a Claim (ECF No. 50) should be GRANTED.
Scheduling Order
The Findings and Recommendation will be referred to U.S. District Judge Karin J. Immergut. Objections, if any, are due within fourteen (14) days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.