1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 ROXANNE BOHREN, Case No. 20-cv-04529-BLF 8 Plaintiff,

ORDER GRANTING MOTIONS TO

9 v. DISMISS WITH LEAVE TO AMEND

IN PART AND WITHOUT LEAVE TO

10 SAN JOSE POLICE DEPARTMENT, et al., AMEND IN PART 11 Defendants. 12 13 Before the Court are Defendants’ Motions to Dismiss. ECF 13, 30. The Court has 14 determined that the motions are appropriate for decision without oral argument. See Civ. L.R. 15 7-1(b). Accordingly, the hearing on the motions scheduled for January 28, 2021, is VACATED. 16 Based on the reasons stated below, the Court GRANTS the motions WITH LEAVE TO AMEND 17 IN PART and WITHOUT LEAVE TO AMEND IN PART. 18 Plaintiff Roxanne Bohren1 filed the instant putative class action on July 8, 2020. ECF 1. 19 The next day, she filed a first amended complaint (“FAC”) against the City of San Jose, San Jose 20 Police Officer Avila, Badge #4407 (“Officer Avila”), and the County of Santa Clara alleging (1) 21 violation of 42 U.S.C. § 1983 for false arrest, (2) violation of 42 U.S.C. § 1983 for discriminatory 22 arrest, (3) a Monell2 claim against the City of San Jose, (4) a Monell claim against the County of 23 Santa Clara, (5) intentional infliction of emotional distress, and (6) negligence. FAC ¶¶ 7-9, 45-79, 24 ECF 5. The claims arise out of the San Jose Police Department’s alleged wrongful arrest of 25 Bohren and her subsequent booking at Santa Clara County’s Main Jail. Id. ¶¶ 18-43. 26 1 The Court notes Plaintiff filed this action under the name Keith Bohren, but wishes to be referred 27 to as Roxanne, which reflects her status as a transgendered person. FAC ¶ 5. The Court refers to 1 On August 6, 2020, the City of San Jose and Officer Avila (the “San Jose Defendants”) 2 filed a motion to dismiss Bohren’s first, second, and fifth causes of action for failure to state a 3 claim under Fed. R. Civ. P. Rule 12(b)(6). ECF 13. The San Jose Defendants also moved for a 4 more definite statement under Rule 12(e) and to strike certain language under Rule 12(f). See id. at 5 13-15. In particular, the San Jose Defendants argued that (1) Bohren generally failed to include 6 sufficient facts to show she has a plausible claim for relief; (2) the false arrest claim must be 7 brought under the Fourth, not the Fourteenth, Amendment; (3) the discriminatory arrest claim fails 8 to satisfy the requirements articulated in Lacey v. Maricopa County, 693 F.3d 896, 920 (9th Cir. 9 2012); (4) Bohren failed to allege “extreme or outrageous conduct” to support her intentional 10 infliction of emotional distress claim; (5) all references to Doe Defendants must be stricken; (6) 11 references to an unidentified law from 1882 should be stricken or clarified with a more definite 12 statement; and (7) references to federal claims that Bohren does not bring should be stricken. Id. at 13 8-15. 14 Bohren replied to the motion by acknowledging the need to amend the FAC. ECF 17. 15 Bohren explained that she would amend her complaint to address alleged deficiencies (2), (3), (4), 16 and (6), and provided further facts in her response to address alleged deficiency (4). Id. at 1-5. 17 Bohren did not address the San Jose Defendants’ arguments about striking references the Doe 18 Defendants or federal claims referenced but not brought by Bohren. 19 On October 23, 2020, the County of Santa Clara filed a motion to dismiss Bohren’s fourth, 20 fifth, and sixth causes of action.3 ECF 30 at 6-7. The County argued that Bohren’s fourth claim 21 fails to allege the requisite facts to show her constitutional rights were violated at the Main Jail or 22 that the County was responsible for the alleged deprivation of her rights. Id. The County argued 23 that Bohren’s fifth and sixth claims are legally barred by Cal. Gov’t Code § 844.6, which prohibits 24 public entity liability for injury to a prisoner. Id. Bohren did not respond to this motion. 25 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a 26 short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint 27 1 that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 2 12(b)(6). In other words, “[a] motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) 3 for failure to state a claim upon which relief can be granted ‘tests the legal sufficiency of a 4 claim.’” Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro 5 v.Block, 250 F.3d 729, 732 (9th Cir. 2001)). To survive a Rule 12(b)(6) motion, a complaint must 6 contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads 8 factual content that allows the court to draw the reasonable inference that the defendant is liable for the 9 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not 10 akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has 11 acted unlawfully.” Id. (internal quotation marks omitted). 12 In evaluating the complaint, the court must “accept factual allegations in the complaint as true 13 and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul 14 Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). At the same time, a court need not 15 accept as true “allegations that contradict matters properly subject to judicial notice” or “allegations 16 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead, 17 536 F.3d at 1055 (internal quotation marks and citations omitted). 18 Because there is no dispute as to the legal deficiency of claims one, two, and five against 19 the San Jose Defendants, the Court DISMISS them WITH LEAVE TO AMEND. See ECF 17 at 20 1-3 (acknowledging the need to amend). The Court further directs Bohren that additional 21 allegations about her intentional infliction of emotional distress claim must be contained within 22 the second amended complaint, not her response to the motion. See id. at 4-5. 23 The Court GRANTS the San Jose Defendants’ request to strike references to federal claims 24 that Bohren references but does not ultimately bring, specifically 42 U.S.C. § 1985, 42 U.S.C. § 25 1988, 18 U.S.C. § 1961 et seq., and the Commerce Clause. Bohren may reference these claims in 26 her amended complaint if she chooses to bring violations under these laws. 27 The Court GRANTS the San Jose Defendants’ request for a more definite statement about 1 additional information about the law in the form of a video of a “large volume in the Dr. Martin 2 Luther King, Jr. library in San Jose.” ECF 17 at 5. This does not directly address the San Jose 3 Defendants’ objection, nor is it the proper form of a citation. If Bohren would like to incorporate 4 this law into her amended complaint, she must provide a legal citation with which Defendants can 5 reference and research the relevant law. 6 The Court DENIES the San Jose Defendants’ request to strike references to the Doe 7 Defendants. Although the use of “John Doe” to identify a defendant is generally not favored, 8 “situations arise, such as the present, where the identity of alleged defendants will not be known 9 prior to the filing of a complaint.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Such is 10 the case here as Bohren has alleged facts about the conduct of Does Defendants. See, e.g., FAC §§ 11 31-32, 36, 37, 41, 47. 12 The Court DISMISSES claim four against the County of Santa Clara WITH LEAVE TO 13 AMEND. To state a claim for relief pursuant to § 1983, Bohren must “plead that (1) the 14 defendants acted under color of state law and (2) deprived plaintiff of rights secured by the 15 Constitution or federal statutes.” WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 1999) 16 (en banc) (quoting Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986)). Bohren has not 17 alleged that she has a constitutional right be housed with transgendered women, nor has she 18 pointed the Court to any authority to this end. See Beverly v. Orange Cty. Sheriff, No. SA CV 20- 19 797-JGB (PJW), 2020 WL 5834282, at *3 (C.D. Cal. Aug. 3, 2020), report and recommendation 20 adopted, No. SA CV 20-797-JGB (PJW), 2020 WL 5834280 (C.D. Cal. Aug. 26, 2020) (noting 21 there does not appear to be any authority to support the argument that a transgender woman has a 22 constitutional right to be housed in a separate jail from men). Bohren has also failed to plead a 23 claim under Monell, which requires she allege that Santa Clara County had a policy that amounts 24 to deliberate indifference to her constitutional right, and that this policy was “the moving force 25 behind the constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 26 2011) (quoting Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir.1997) 27 (internal quotation marks omitted)). 1 LEAVE TO AMEND. Under Cal. Gov’t Code § 844.6(a)(2), a public entity is generally not liable 2 || for “an injury to any prisoner.” A prisoner for purposes of section 844.6 is defined as “an inmate 3 of a prison, jail, or penal or correctional facility.” Cal. Gov’t Code § 844. “A lawfully arrested 4 || person who is brought into a law enforcement facility for the purpose of being booked . . . 5 || becomes a prisoner, as a matter of law, upon his or her initial entry into a prison, jail, or penal or 6 || correctional facility, pursuant to penal processes.” Jd. This Court has held that a “person need not 7 || be lawfully arrested to qualify as a prisoner under section 844.6.” Holland v. City of San 8 || Francisco, No. C10-2603 THE, 2010 WL 5071597, at *8-9 (N.D. Cal. Dec. 7, 2010). Courts in 9 || this district have previously found that Cal. Gov’t Code § 844.6 bars a plaintiff from bringing 10 || negligence and intentional infliction of emotional distress claims against a county government 11 based on injuries flowing from plaintiffs detention in jail. See Luttrell v. Hart, No. 5:19-CV- 12 07300-EJD, 2020 WL 5642613, at *6-7, 10 (dismissing without leave to amend). 13 Plaintiff SHALL file an amended complaint no later than January 28, 2021.

IT IS SO ORDERED.

17 Dated: December 28, 2020 han tn) 18 / ef l fr Me

BETH LABSON FREEMAN

19 United States District Judge 20 21 22 23 24 25 26 27 28