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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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9 10 LECIA L. SHORTER, Case No. CV 21-3347-CJC (KK) 11 Plaintiff, 12 v. FINAL REPORT AND

RECOMMENDATION OF UNITED

13 COUNTY OF LOS ANGELES, ET AL., STATES MAGISTRATE JUDGE 14 Defendants.

15 16 17 This Final Report and Recommendation is submitted to the Honorable 18 Cormac J. Carney, United States District Judge, pursuant to 28 U.S.C. § 636 and 19 General Order 05-07 of the United States District Court for the Central District of 20 California. 21 I. 22 SUMMARY OF RECOMMENDATION 23 Plaintiff Lecia L. Shorter (“Plaintiff”), proceeding pro se, filed a Complaint 24 pursuant to 42 U.S.C. § 1983 (“Section 1983”) alleging violations of her Fourth and 25 Fourteenth Amendment rights and various state law claims. Defendants County of 26 Los Angeles and Los Angeles County Sheriff’s Department (collectively, “Moving 27 Defendants”) have now filed a Motion for Judgment on the Pleadings (“Motion”) 1 arguing Plaintiff’s claims are barred by res judicata and the applicable statute of 2 limitations. For the reasons below, the Court recommends DENYING the Motion. 3 II. 4 RELEVANT BACKGROUND1 5 A. AMADOR V. BACA, CV 10-1649-SVW (JEMx) (“AMADOR”) 6 On March 5, 2010, plaintiffs Mary Amador and Lorna Mallyon filed a putative 7 class action complaint against defendants County of Los Angeles; Los Angeles 8 County Sheriff Leroy Baca; deputy sheriffs Jones, Cornell, and Clark; and Doe 9 defendants 1 through 10. Amador, dkt. 1. Plaintiffs Amador and Mallyon alleged the 10 defendants implemented unconstitutional strip search policies at Century Regional 11 Detention Facility (“CRDF”) in Lynwood, California. Id. 12 On November 18, 2016, the court certified two distinct classes: (1) women who 13 were searched simultaneously in two lines directly facing each other from March 2008 14 to July 2011 at a CRDF bus bay and (2) women who were searched in two lines facing 15 opposite walls from July 2011 to January 1, 2015 at a CRDF bus bay. Id., dkt. 327; 16 see also id., dkts. 321, 323. 17 On December 19, 2016, plaintiffs Amador, Alisa Battiste, Felice Cholewiak, 18 Evangelina Madrid, Myeshia Williams, and Nancy Briseño (collectively, “class 19 plaintiffs”) filed a Fourth Amended Complaint pursuant to Section 1983 against 20 1 A court “may take judicial notice of matters of public record,” including 21 “proceedings and filings” in other cases and “in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at 22 issue.” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (citations and internal quotation marks omitted); United States ex rel. Robinson Rancheria Citizens 23 Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (citations and internal quotation marks omitted). The Court, therefore, takes sua sponte notice of the 24 documents in Amador v. Baca, CV 10-1649-SVW (JEMx) and Shorter v. Baca, CV 12-7337-DOC (GJS). 25 In addition to select documents in Amador v. Baca, CV 10-1649-SVW (JEMx) 26 and Shorter v. Baca, CV 12-7337-DOC (GJS), the Moving Defendants request the Court take judicial notice of documents in other unrelated cases. Dkts. 16, 27. While 27 the Court may take judicial notice of the existence of these unrelated court documents, the Court will not take judicial notice of such documents for the truth of 1 defendants County of Los Angeles; Los Angeles County Sheriff Baca; deputy sheriffs 2 Jones, Burns, Cornell, Cooper, Clark, Cruz, and Lee; and Doe defendants 1 through 3 10 (collectively, “Amador Defendants”). Id., dkt. 334. The class plaintiffs alleged 4 degrading strip and body cavity searches violated their Fourth, Eighth, and 5 Fourteenth Amendment rights and their corollaries under the California Constitution. 6 Id. The class plaintiffs further alleged the searches took place in group settings and in 7 an outdoor area used to park buses at CRDF. Id. at 5-17. 8 On June 7, 2017, the court granted summary judgment in the class plaintiffs’ 9 favor on their Fourth Amendment claim against defendant County of Los Angeles. 10 Id., dkt. 361. The court reached this conclusion “based on the invasiveness of the 11 search (i.e., use of the ‘labia lift’ despite less intrusive alternatives) . . . , the group 12 setting of the search, in which inmates could not avoid viewing each other, the lack of 13 privacy within that group setting, and—most importantly—the lack of a penological 14 purpose or informed justification for not providing individualized privacy.” Id. 15 On March 6, 2020, Plaintiff filed a notice of her intent to opt-out of settlement 16 proceeds but not class membership status. Id., dkt. 429. 17 On August 11, 2020, the court approved the class plaintiffs’ motion for final 18 approval of a class action settlement and identified Plaintiff as both an “opt-out” and 19 an objector. Id., dkt. 463; see also id., dkt. 465. 20 B. SHORTER V. BACA, CV 12-7337-DOC (GJS) (“SHORTER I”) 21 On August 27, 2012, Plaintiff filed a civil rights complaint arising out of her 22 alleged mistreatment while she was incarcerated as a pre-trial detainee from 23 November 15, 2011 to December 17, 2011 at CRDF. Shorter I, dkt. 3. 24 On November 1, 2012, Plaintiff filed a First Amended Complaint (“FAC”) 25 against defendants County of Los Angeles, Los Angeles County Sheriff Baca, and 26 deputy sheriffs Jacqueline Ortiz and Alejandra Avalos (collectively, “Shorter I 27 1 Defendants”).2 Id., dkt. 8. Among other things, Plaintiff alleged during a thirty-two- 2 day period at CRDF, the Shorter I Defendants conducted invasive searches. Id. at 16- 3 18. Specifically, Plaintiff alleged on multiple occasions, deputies had taken Plaintiff to 4 a cell, conducted a strip search, and subsequently chained Plaintiff to the door of her 5 cell without providing Plaintiff’s clothes. Id. Plaintiff alleged violations of her First, 6 Fourth, Eighth, and Fourteenth Amendment rights and state law claims for negligent 7 and intentional infliction of emotional distress, defamation, assault and battery, 8 negligent hiring and supervision, and negligence. Id. at 7-31. 9 On April 10, 2019, following a jury trial, the jury issued a verdict in favor of the 10 Shorter I Defendants. Id., dkts. 336, 338. With respect to Plaintiff’s unlawful search 11 claim, the jury found the Shorter I Defendants did not violate Plaintiff’s constitutional 12 rights. Id., dkt. 338. The court, therefore, entered Judgment dismissing the action on 13 the merits. Id., dkt. 345. 14 On May 8, 2019, Plaintiff filed a Renewed Motion for Judgment as a Matter of 15 Law, or in the Alternative, for a New Trial (“JMOL Motion”). Id., dkt. 350. On 16 September 13, 2019, the court granted in part and denied in part Plaintiff’s JMOL 17 Motion. Id., dkt. 369. With respect to Plaintiff’s unlawful search claim, the court 18 denied the JMOL Motion and, thus, upheld the jury’s verdict in favor of the Shorter I 19 Defendants.3 Id. 20 On October 8, 2019, Plaintiff filed a notice of appeal. Id., dkt. 374. On 21 October 26, 2021, the Ninth Circuit reversed in part and affirmed in part Plaintiff’s 22

23 2 Plaintiff also named defendants Los Angeles County Board of Supervisors Gloria Molina, Mark Ridley-Thomas, Zev Yaroslavsky, Don Knabe, and Michael 24 Antonovich in their official capacity. Shorter I, dkt. 8. 25 3 The court also (a) denied Plaintiff’s JMOL Motion with respect to her claims for improper classification without due process, inadequate medical care, and 26 conditions of confinement claim regarding meals and shower, and (b) granted Plaintiff’s JMOL Motion with respect to her conditions of confinement claim 27 regarding recreation. Shorter I, dkt. 369 at 27-28. The court further denied in part Plaintiff’s request for a new trial “due to clear weight of the evidence, defense counsel 1 JMOL Motion. Id., dkt. 408. With respect to the denial of Plaintiff’s JMOL Motion 2 on her unlawful search claim, the Ninth Circuit reversed under de novo review, held 3 Plaintiff was entitled to judgment as a matter of law, and remanded to the district 4 court for adjudication of damages.4 Id. at 2-3, 6-7. The Ninth Circuit reasoned, 5 “CRDF failed to provide any penological justification for leaving inmates unclothed 6 and unchained for any period of time after their clothes had already been searched” 7 and “the jail had an alternative, less abusive means of obtaining contraband from 8 inmates[.]” Id. at 2-3. 9 C. SHORTER V. COUNTY OF LOS ANGELES, CV 21-3347-CJC (KK) 10 (“INSTANT ACTION”) 11 On April 17, 2021, Plaintiff filed the instant Complaint pursuant to Section 12 1983 against defendants County of Los Angeles, Los Angeles County Sheriff’s 13 Department, and Does 1 through 10. Dkt. 1. Plaintiff states the action is “brought in 14 direct relation to Amador,” a class action “wherein a summary judgment Monell 15 liability determination under the Fourth Amendment as to [] Plaintiff class was 16 entered on June 6, 2017.” Id. at 3. Plaintiff explains she opted out of the Amador 17 class plaintiffs’ settlement agreement and filed the Instant Action “solely on the issue 18 of damages.” Id. at 4. 19 Plaintiff alleges while she was a pre-trial detainee at CRDF, she was “repeatedly 20 subjected to extremely humiliating and degrading group and individual strip and body 21 cavity searches in 2010, 2011, and 2013[.]” Id. at 2. Plaintiff alleges she was searched 22 alongside other women in groups as large as fifty inmates and in an outdoor area used 23 to park buses. Id. Plaintiff alleges the searches violated her Fourth, Eighth, and 24

25 4 With regard to Plaintiff’s inadequate sanitation claim, the Ninth Circuit also found the district court erred in denying Plaintiff’s JMOL Motion, Plaintiff was 26 entitled to judgment as a matter of law, and remanded to the district court for adjudication of damages. Dkt. 408 at 3, 6. The Ninth Circuit affirmed the denial of 27 Plaintiff’s JMOL Motion as to her deprivation of meals, inadequate medical care, and improper classification claims. Id. at 4-5. Finally, the Ninth Circuit found the district 1 Fourteenth Amendment rights and state law claims pursuant to the Unruh Civil 2 Rights Act, Cal. Civ. Code § 52.1, and Article 1, §§ 1, 7, and 13 of the California 3 Constitution. Id. at 10-15. 4 On June 7, 2021, Moving Defendants filed an Answer to the Complaint. Dkt. 5 11. 6 On September 14, 2021, Moving Defendants filed the instant Motion on the 7 grounds Plaintiff’s claims are barred by res judicata and the applicable statute of 8 limitations. Dkt. 15. On September 23, 2021, Plaintiff filed an Opposition to the 9 Motion. Dkt. 25. On September 30, 2021, Moving Defendants filed a Reply. Dkt. 10 26. 11 On October 27, 2021, the Court issued a Report and Recommendation 12 recommending the instant Motion be denied. Dkt. 30. On November 24, 2021, 13 Moving Defendants filed Objections to the Report and Recommendation. Dkt. 34. 14 On December 8, 2021, Plaintiff filed a Response. Dkt. 35. 15 The Court issues the instant Final Report and Recommendation addressing 16 Moving Defendants’ Objections in Section IV.A.2. and footnotes 5 and 8 below. 17 III. 18 LEGAL STANDARD 19 Under Rule 12(c) of the Federal Rules of Civil Procedure (“Rule 12(c)”), a party 20 may move for judgment on the pleadings. Hishon v. King & Spalding, 467 U.S. 69, 21 73 (1984); Dworkin v. Hustler Mag., 867 F.2d 1188, 1192 (9th Cir 1989). A Rule 22 12(c) motion is properly brought “after the pleadings are closed—but early enough 23 not to delay trial.” FED. R. CIV. P. 12(c); Dworkin, 867 F.2d at 1192. 24 A court may grant judgment on the pleadings “when, taking all allegations in 25 the pleading as true, the moving party is entitled to judgment as a matter of law.” 26 McGann v. Ernst & Young, 102 F.3d 390, 392 (9th Cir. 1996). A court must assume 27 the truthfulness of all material facts alleged and construe all inferences reasonably to 1 Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 2 228, 230 (9th Cir. 1989). “It is well-settled that materials properly attached as exhibits 3 to the complaint and matters that are subject to judicial notice may . . . be considered 4 in evaluating a motion for judgment on the pleadings.” Shame On You Prod., Inc. v. 5 Elizabeth Banks, 120 F. Supp. 3d 1123, 1144 (C.D. Cal. 2015) (citations omitted). 6 IV. 7 DISCUSSION 8 A. MOVING DEFENDANTS FAIL TO DEMONSTRATE RES 9 JUDICATA BARS THE INSTANT ACTION 10 1. Applicable Law 11 “Res judicata, also known as claim preclusion, bars litigation in a subsequent 12 action of any claims that were raised or could have been raised in the prior action.” 13 Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (quoting 14 W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997)). Res judicata 15 applies to bar an action when there is: (1) “identity or privity between parties”; (2) “an 16 identity of claims”; and (3) “a final judgment on the merits.” Stewart v. U.S. Bancorp, 17 297 F.3d 953, 956 (9th Cir. 2002). The Supreme Court has made clear there is no 18 “principle of law or equity which sanctions the rejection by a federal court of the 19 salutary principle of res judicata.” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 20 394, 401 (1981). The party asserting res judicata “must carry the burden of 21 establishing all necessary elements.” Taylor v. Sturgell, 553 U.S. 880, 907 (2008) 22 (quoting 18 C. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 4405, at 83 23 (2d ed. 2002)). 24 2. Analysis 25 Here, neither party disputes the first element of res judicata – identity or privity 26 between parties – has been satisfied because there is identity or privity between the 27 parties in the Instant Action and those in Shorter I. In both actions, Plaintiff sues 1 is, however, unclear whether the third element of res judicata – a final judgment on 2 the merits – has been satisfied in light of the Ninth Circuit decision reversing the 3 denial of Plaintiff’s JMOL Motion on her unlawful search claim in Shorter I. See 4 Shorter I, dkt. 408. Nonetheless, as discussed below, because it is clear the second 5 element of res judicata – an identity of claims – has not been met, res judicata does 6 not preclude the Instant Action.5 7 The second element of res judicata is whether there is an “identity of claims” 8 between the present dispute and the prior case. Stewart, 297 F.3d at 956. In 9 considering whether a present dispute concerns the same claims as a prior case, the 10 Ninth Circuit considers: 11 (1) Whether rights or interests established in the prior judgment would 12 be destroyed or impaired by prosecution of the second action; (2) 13 whether substantially the same evidence is presented in the two actions; 14 (3) whether the two suits involve infringement of the same right; and (4) 15 whether the two suits arise out of the same transactional nucleus of 16 facts. The last of these criteria is the most important. 17 Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1052 (9th Cir. 2005) (quoting 18 Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir. 1982)). 19 “Whether two suits arise out of the ‘same transactional nucleus’ depends upon 20 ‘whether they are related to the same set of facts and whether they could conveniently 21 be tried together.’” ProShipLine Inc. v. Aspen Infrastructures Ltd., 609 F.3d 960, 968 22 (9th Cir. 2010) (quoting W. Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 1992), as 23 amended (June 23, 1992)). “In most cases, ‘the inquiry into the “same transactional 24 5 In their Objections, Moving Defendants argue “[Plaintiff] cannot offensively 25 use collateral estoppel after opting out of the class.” Dkt. 34 at 10. The issue of whether Plaintiff can offensively use collateral estoppel, however, is immaterial at this 26 stage of the proceedings and does not dispose of Plaintiff’s claims. See generally Grisham v. Philip Morris, Inc., 670 F. Supp. 2d 1014, 1028-29 (C.D. Cal. 2009) 27 (stating the legal standard for non-mutual offensive issue preclusion); Premier Elec. Const. Co. v. Nat’l Elec. Contractors Ass’n, Inc., 814 F.2d 358, 362 (7th Cir. 1987) 1 nucleus of facts” is essentially the same as whether the claim could have been brought 2 in the first action.’” Turtle Island Restoration Network v. U.S. Dep’t of State, 673 3 F.3d 914, 918 (9th Cir. 2012) (quoting United States v. Liquidators of Eur. Fed. Credit 4 Bank, 630 F.3d 1139, 1151 (9th Cir. 2011)). “[W]here claims arise from the same 5 factual circumstances, a plaintiff must bring all related claims together or forfeit the 6 opportunity to bring any omitted claim in a subsequent proceeding.” Id. 7 Here, the complaints in Shorter I and the Instant Action both involve Plaintiff 8 and allege violations of Plaintiff’s constitutional rights arising from strip and visual 9 body cavity searches. However, an identity of claims does not exist because although 10 the searches alleged in Shorter I and the Instant Action took place at CRDF, the strip 11 searches in the Instant Action were conducted in a different time, place, and manner. 12 In Shorter I, Plaintiff alleged on multiple occasions during a thirty-two-day period in 13 2011, the deputies had conducted a strip search of Plaintiff in a cell and chained 14 Plaintiff’s right hand to the door of her cell without providing her clothes. Shorter I, 15 dkt. 8. In contrast, in the Instant Action, Plaintiff alleges on multiple occasions in 16 2010, 2011, and 2013, she was searched alongside other women in groups as large as 17 fifty inmates and in an outdoor area used to park buses, as alleged in Amador. Dkt. 1. 18 The difference in the time, place, and manner in which the strip and visual body 19 searches were conducted in Shorter I and the Instant Action shows the two suits arise 20 out of a different transactional nucleus of facts. See Fund for Animals, Inc. v. Lujan, 21 962 F.2d 1391, 1399 (9th Cir.1992) (holding the defense of res judicata did not apply 22 because the present action challenged conduct that was different in substance from 23 the conduct challenged in the previous action). 24 The Court, thus, finds an identity of claims does not exist between Shorter I 25 and the Instant Action. Accordingly, Moving Defendants fail to demonstrate res 26 judicata bars the Instant Action. 27 /// 1 B. MOVING DEFENDANTS FAIL TO SHOW THE STATUTE OF 2 LIMITATIONS BARS THE INSTANT ACTION 3 1. Applicable Law 4 The applicable statute of limitations for Section 1983 claims brought in 5 California is two years. See Wallace v. Kato, 549 U.S. 384, 387 (2007) (holding the 6 state personal injury limitation statute governs Section 1983 claims); Cal. Code Civ. 7 Proc. § 335.1 (noting a two-year personal injury statute of limitation). A Section 1983 8 “cause of action accrues when the plaintiff knows or has reason to know of the injury 9 that is the basis of the action. Thus, ‘[a]n action ordinarily accrues on the date of the 10 injury.’” Belanus v. Clark, 796 F.3d 1021, 1025 (9th Cir. 2015), cert. denied, 137 S. Ct. 11 109, reh’g denied, 137 S. Ct. 489 (2016) (citing Kimes v. Stone, 84 F.3d 1121, 1128 12 (9th Cir. 1996)); see also Wallace, 549 U.S. at 388 (holding federal law determines 13 when a cause of action accrues and when the statute of limitations begins to run for a 14 Section 1983 claim). “In a traditional Fourth Amendment case, the plaintiff is placed 15 on constructive notice of the illegal conduct when the search and seizure takes place.” 16 Klein v. City of Beverly Hills, 865 F.3d 1276, 1279 (9th Cir. 2017). 17 The commencement of a class action, however, tolls the applicable statute of 18 limitations as to all members of the class. Tosti v. City of Los Angeles, 754 F.2d 19 1485, 1488 (9th Cir. 1985) (citation omitted). “When certification has been granted, 20 the statute begins running anew from the date when the class member exercises the 21 right to opt out because before this time, the class member is deemed to be actively 22 prosecuting her rights.” Id. 23 2. Analysis 24 Plaintiff’s Section 1983 causes of action arise from the “humiliating and 25 degrading group and individual strip and body cavity searches” she experienced in 26 2010, 2011, and 2013. Dkt. 1 at 2. Assuming Plaintiff’s claims accrued on the date of 27 the strip and body cavity searches in 2010, 2011, and 2013, the statute of limitations as 1 after each search. See Lopez v. City of Santa Ana, No. CV 14-01369 SVW (RAO), 2 2015 WL 9918408, at *3 (C.D. Cal. Dec. 21, 2015), report and recommendation 3 adopted, No. CV 14-01369-SVW (RAO), 2016 WL 344501 (C.D. Cal. Jan. 26, 2016), 4 aff’d, 698 F. App’x 401 (9th Cir. 2017) (“[E]ach discrete act gives rise to a separate 5 constitutional claim for purposes of the statute of limitations.” (citing Carpinteria 6 Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 829 (9th Cir. 2003)). 7 The commencement of the Amador class action,6 however, tolled the statute of 8 limitations from the date the action was filed, March 5, 2010, until the date Plaintiff 9 opted out, March 6, 2020.7 See Tosti, 754 F.2d at 1488. Plaintiff subsequently filed 10 the Instant Action on April 17, 2021, approximately a year after she opted out of 11 Amador. The Instant Action was, thus, filed within the two-year statute of 12 limitations. See dkt. 1. 13 Accordingly, Moving Defendants fail to show the statute of limitations bars the 14 Instant Action.8 15 /// 16 /// 17 /// 18 6 Notably, Moving Defendants fail to address the impact a class action has on 19 the applicable statute of limitations. To the extent Moving Defendants might seek to challenge whether the claims in the Instant Action were addressed in Amador, 20 Plaintiff specifically states the action is “brought in direct relation to Amador,” dkt. 1 at 3. Moreover, both cases are premised on claims that inmates at CRDF were 21 subjected to unlawful group searches in outdoor areas used to park buses. See id. at 2-3 (“The unconstitutional group searches occurred in an outdoor area used to park 22 buses.”); Amador, dkt. 334 at 5-11 (alleging searches took place in group settings and in an outdoor area used to park buses at CRDF). 23 7 Moving Defendants incorrectly state Plaintiff opted out on March 6, 2019, dkt. 26 at 2. 24 8 While it is not entirely clear from the Complaint whether the Amador class 25 action involved every search alleged in the Instant Action, Moving Defendants have not differentiated the searches alleged in the Instant Action. To the extent Moving 26 Defendants now argue the reference in the Complaint to a 2013 individual search was not part of the Amador class action, dkt. 34 at 20, Plaintiff clarifies in her Response 27 that the Instant Action is solely to pursue the group claims from Amador, dkt. 35 at 2. Moreover, the Court declines to consider new arguments raised for the first time in 1 V. 2 RECOMMENDATION 3 IT IS THEREFORE RECOMMENDED that the Court issue an Order: (1) 4 | accepting this Final Report and Recommendation; and (2) DENYING defendants 5 | County of Los Angeles and Los Angeles County Sheriffs Department’s Motion for 6 | Judgment on the Pleadings. 7 We 8 | Dated: December 20, 2021 9 HONORABLE KENLY KIYA KATO 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28