1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSE POOT, Case No. 24-cv-03618-DMR

8 Plaintiff,

ORDER SCREENING COMPLAINT

9 v. PURSUANT TO 28 U.S.C. § 1915A

10 CITY AND COUNTY OF SAN FRANCISCO, et al., 11 Defendants. 12

13 Plaintiff Jose Poot, who is a pretrial detainee currently incarcerated at the San Francisco 14 County Jail (“SF Jail”), filed this civil rights complaint under 42 U.S.C. § 1983. Plaintiff’s 15 application to proceed in forma pauperis will be granted in a separate order. The court now 16 screens Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A. 17

I. STANDARD OF REVIEW

18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 20 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of 21 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 22 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 23 § 1915A(b). 24 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 25 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 26 statement need only give the defendant fair notice of what the . . . claim is and the grounds upon 27 which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although to state 1 a claim a complaint “does not need detailed factual allegations . . . a plaintiff’s obligation to 2 provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a 3 formulaic recitation of the elements of a cause of action will not do . . . [f]actual allegations must 4 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 5 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a 6 claim for relief that is plausible on its face.” Id. at 570. 7 II. DISCUSSION 8 Plaintiff sues the City and County of San Francisco (“CCSF”), Sergeant Espinoza (first 9 name unknown) in his individual and official capacity, and Does 1-25. Comp. ¶¶ 5, 6. Plaintiff 10 seeks declaratory and injunctive relief, monetary damages, punitive damages, and attorneys’ fees 11 and costs. Id. at 9-10. 12 Plaintiff alleges that on June 23, 2022, CCSF employees took Plaintiff and other pretrial 13 detainees to the “bullpen” in preparation for transport to the courthouse and announced that they 14 would be pat-searched. Compl. ¶¶ 12, 13. Sergeant Espinoza “walked directly” to Plaintiff, 15 “pretended to pat search” him, and then “cup[ed] [Plaintiff’s] penis and squeez[ed] it.” Id. at ¶ 15. 16 Plaintiff alleges that he “immediately pushed Sergeant Espinoza’s hand away and asked him what 17 he was doing,” to which Espinoza replied, “haven’t you ever been searched?” Plaintiff responded 18 that “he had been in jail for over six years and was never searched in the manner Sergeant 19 Espinoza searched him.” Id. at ¶ 16. Plaintiff then “verbally complained that Sergeant Espinoza 20 sexually assaulted him.” Id. at ¶ 17. 21 Plaintiff alleges that after the June 23, 2022 incident, Sergeant Espinoza “began targeting 22 and harassing” Plaintiff. On October 6, 2022, Plaintiff was back in the bullpen prior to being 23 transferred to court and his hair was pulled back in a ponytail. Sergeant Espinoza told Plaintiff 24 that he could not go to court with the hair tie and “then snatched the hair tie off” Plaintiff’s head. 25 Id. at ¶¶ 18-20. Espinoza then “battered [Plaintiff] by twisting his free hand behind his back and 26 lifting it,” and in so doing, tore the tendon in Plaintiff’s right hand. Id. at ¶ 21. Plaintiff alleges 27 that “Espinoza took adverse action against [Plaintiff] by tearing his tendon because of his 1 First Amendment rights and did not reasonably advance a legitimate correctional goal.” Id. at ¶¶ 2 42, 43. 3 Finally, Plaintiff alleges that he submitted grievances regarding Sergeant Espinoza’s 4 alleged sexual assault and use of excessive force. Id. at ¶ 24. He also submitted grievances “and 5 medical requests slips complaining that he could not move his thumb and was experiencing pain,” 6 but alleges that CCSF employees “were deliberately indifferent to his medical needs and did 7 nothing, allowing [him] to experience excruciating nerve pain for at least two months without 8 treatment.” They “finally performed an X-ray two months later,” confirming a torn tendon in 9 Plaintiff’s hand. Since then, CCSF employees have administered three steroid shots into his hand 10 in the span of two years. Plaintiff continues to “experience nerve pain and other pain in his hand 11 and must wear a brace,” and his injury “has substantially limited his ability to use his hand.” Id. at 12 ¶¶ 28-29. He alleges that unnamed Defendants “made an intentional decision to deny [him] 13 medical care after he complained and submitted grievances regarding pain in his hand,” and that 14 the denial of necessary medical care put him “at substantial risk of suffering serious harm 15 including permanent damage to his tendon and hand.” Id. at ¶¶ 45, 46. 16 As an initial matter, Plaintiff has sued Sergeant Espinoza individually and in his official 17 capacity seeking monetary relief. “[A]n official-capacity suit is, in all respects other than name, to 18 be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). Unless 19 waived, the Eleventh Amendment bars a federal court award of damages against a state, state 20 agency, or state official sued in an official capacity. Id. at 169. As there has been no waiver here, 21 Plaintiff’s claim against Espinoza in his official capacity for monetary damages is dismissed, and 22 Plaintiff shall be granted leave to amend, provided he can do so in good faith. 23 Each of Plaintiff’s claims are brought pursuant to 42 U.S.C. § 1983. To state a claim under 24 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution 25 or laws of the United States was violated, and (2) that the alleged violation was committed by a 26 person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). The court 27 concludes that the allegations in the complaint are sufficient to state cognizable claims under the 1 to serious medical needs, and a cognizable claim for First Amendment retaliation against Sergeant 2 Espinoza. 3 The final claim is for municipal liability under Monell v. Department of Social Services of 4 City of New York, 436 U.S. 658 (1978). The complaint alleges CCSF is liable for Plaintiff’s 5 injuries under all three theories of Monell liability recognized in the Ninth Circuit: policy, custom, 6 or practice; ratification; and failure to train. See Compl. ¶¶ 51-54; Rodriguez v. Cnty. of Los 7 Angeles, 891 F.3d 776, 80203 (9th Cir. 2018). 8 The complaint fails to state a claim for municipal liability under a theory of policy, custom, 9 or practice. Plaintiff alleges “the acts of the individual defendants deprived [him] of his particular 10 rights under the United States Constitutional and its laws and were pursuant to an expressly 11 adopted policy or a widespread longstanding practice or custom of CCSF, and was the moving 12 force that caused [Plaintiff’s] ultimate injury.” Compl. ¶ 51. However, the only policy, practice, 13 or custom identified in the complaint is CCSC’s regular failure to perform its obligations under 14 PREA, which “direct[s] jail commanders to take all allegations of sexual harassment and sexual 15 assault or abuse seriously and to thoroughly and neutrally investigate allegations.” Id. at ¶ 31. 16 According to Plaintiff, “Captain Stephen Tilton has stated that he does not believe that he can run 17 his facility and meet these requirements,” and Plaintiff alleges that Tilton’s “failure to take such 18 allegations seriously reflects the official policy or widespread and/or longstanding practice or 19 custom of CCSF’s response to such allegations.” Id. at ¶ 31. These allegations are entirely 20 conclusory. Other than asserting Plaintiff’s own circumstances, the complaint does not contain 21 specific factual allegations supporting the existence of a policy, custom, or practice, much less 22 how they were the “moving force” behind the alleged constitutional violation. See Dougherty v. 23 City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (a government entity may not be liable under 24 Section 1983 “unless a policy, practice, or custom of the entity can be shown to be a moving force 25 behind a violation of constitutional rights.”). Plaintiff’s complaint also fails to allege facts to 26 support an inference that that the practices were “widespread” and so “well settled as to constitute 27 a custom or usage.” See City of St. Louis, 485 U.S. at 127 (quotation omitted); see Navarro v. 1 establish custom.”); Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), holding modified by 2 Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) (“Liability for improper custom may not be 3 predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient 4 duration, frequency and consistency that the conduct has become a traditional method of carrying 5 out policy.”). 6 The complaint also fails to state a municipal liability claim based on ratification. The 7 complaint contains the following allegations supporting ratification: Captain Tilton’s “failure to 8 take all allegations seriously and to investigate allegations of sexual harassment, assault, and/or 9 abuse ratifies perpetrators’ conduct at the highest level in the facility.” Compl. ¶ 31. Further, 10 “Captain Tilton had final policymaking authority from CCSF concerning the acts of his 11 subordinates, and he ratified their acts and/or specifically made a deliberate choice to approve 12 their acts and the basis for it.” Id. at ¶ 52. These allegations are conclusory, and the complaint 13 contains no specific factual allegations to support the claim that Tilton made a deliberate choice to 14 approve Espinoza’s conduct. Moreover, the complaint fails to allege that any “authorized 15 policymakers” knew of and approved the officers’ actions “before the alleged constitutional 16 violations ceased.” See Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999). Accordingly, the 17 Monell claim based on a ratification theory is dismissed with leave to amend. 18 Finally, the complaint fails to state a municipal liability claim based on failure to train. In 19 order to establish section 1983 municipal liability based on a failure to train, a plaintiff must show: 20 1) deprivation of a constitutional right; 2) a training policy that “amounts to deliberate indifference 21 to the [constitutional] rights of the persons with whom [the police] are likely to come into 22 contact”; and 3) that his constitutional injury would have been avoided had the municipality 23 properly trained the officers. Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007) 24 (quoting Canton, 489 U.S. at 388-89) (first alteration in original). 25 Plaintiff alleges that “CCSF routinely fails to adequately train its deputized staff on the 26 requirements of PREA, despite sexual harassment and sexual assaults regularly occurring at” the 27 SF Jail,” and that “[d]eputized staff are not adequately trained on what constitutes sexual assault or 1 protections, if at all, to allegations of rape by penetrative sex.” Compl. § 32. He further alleges 2 || that “CCSF’s trainings were not adequate to prevent sexual harassment, sexual assault, and 3 retaliation, and CCSF was deliberately indifferent to the substantial risk of their failure to train its 4 || employees on preventing such violations of law.” Jd. at 53. As with the other theories of Monell 5 liability, these allegations are conclusory and unsupported by any facts. The complaint contains 6 || no allegations about the specific training that was deficient or how it was deficient and does not 7 allege how the training deficiencies resulted in the alleged constitutional violations at issue. 8 Accordingly, the complaint fails to state a Monell claim. It is therefore dismissed. As 9 || amendment may fix the deficiencies, dismissal is with leave to amend. If Plaintiff chooses to 10 amend the complaint, he may do so by no later than November 18, 2024. If Plaintiff does not 11 file an amended complaint by that date, the court will order service of the summons and remaining 12 || claims on Sergeant Espinoza, the sole remaining defendant, and set an initial case management

13 conference. If Plaintiff files an amended complaint, the court will review any new claims under

v 14 || 28 U.S.C. § 1915A.

15 || I. CONCLUSION 16 For the foregoing reasons, the Monell claim against CCSF and Plaintiffs claims against

= 17 Espinoza in his official capacity are dismissed with leave to amend by no later than November 18,

Z 18 2024. Plaintiff shall plead his best case. o7

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20 IT IS SO ORDERED. KS) □

SY ORDERED |

21 || Dated: October 28, 2024 2[Nyr 18 8© ~ < 22 Ly A Gf a= Z\ \ POA MERIC. Ry □□ 23 O\ Wifeliwen dt aad © AY! Ks 24 wy er © 25 Uy D Os

ISTRICS

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