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1 PORTER, SCOTT, WEIBERG & DELEHANT A Professional Corporation
2 Terence J. Cassidy, SBN 099180 Keith E. Nourot, SBN 221122
3 350 University Avenue, Suite 200 Sacramento, California 95825
4 (916) 929-1481 (916) 927-3706 (facsimile)
5 Attorneys for Defendants COUNTY OF MARIN, MARIN COUNTY SHERIFF’S DEPARTMENT
6 and SHERIFF ROBERT T. DOYLE

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 DARCELLE L. CHATOIAN, CYNTHIA Case No.: C 04-2790 MJJ

TASCA, CORIN RASMUSSEN and KORISSA

12 RUSSELL, and all others similarly situated, NOTICE OF MOTION AND MOTION FOR

SUMMARY JUDGMENT/ADJUDICATION;

13

Plaintiffs,

MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT THEREOF

14 vs.

15 COUNTY OF MARIN, MARIN COUNTY Date: February 15, 2006 SHERIFF’S DEPARTMENT, MARIN Time: 1:30 p.m.
16 COUNTY SHERIFF ROBERT T. DOYLE, Ctrm: 11 Individually and in His Official Capacity,
17 MARIN COUNTY SHERIFF’S DEPUTIES DOES 1 THROUGH 100 and ROES 1
18 THROUGH 20, INCLUSIVE

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Defendants.

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LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

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TABLE OF CONTENTS

2 NOTICE OF MOTION AND MOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

4 I. FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5
6
7
8
9
10 II.
11 III.
12
13
14
15

A. Policies of the County of Marin Regarding Strip Searches and Safety Cell Placements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Plaintiff DARCELLE CHATOIAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. Plaintiff CYNTHIA TASCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
D. Plaintiff CORIN RASMUSSEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
E. Plaintiff KORISSA RUSSELL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
LEGAL STANDARD FOR MOTION FOR SUMMARY JUDGMENT . . . . . . . . . . . . . 7
THERE IS INSUFFICIENT EVIDENCE OF A MUNICIPAL POLICY, CUSTOM OR PRACTICE TO ESTABLISH MONELL-TYPE LIABILITY AGAINST THE COUNTY OF MARIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Regarding Strip Searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. The Fourteenth Amendment Claims of Plaintiff RUSSELL Regarding the Alleged Strip Search Fail as a Matter of Law . . . . . . . . . . . 8

16

2. The Policies of the County of Marin Regarding the

Conduct of Strip Searches at the Marin County Jail

17

Do Not Violate the Fourth Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . 8

18

3. Plaintiffs Cannot Demonstrate That a Widespread

Custom and Practice Was the "Moving Force" Behind a

19

Constitutional Violation of Plaintiff KORISSA RUSSELL . . . . . . . . . . 11

20

B. Safety Cells . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

21

1. The Policies of the County of Marin Regarding the

Conduct of Safety Cell Placements at the Marin County

22

Jail Do Not Violate the Fourth or Fourteenth Amendments . . . . . . . . . . 12

23

2. Plaintiffs Cannot Demonstrate That a Widespread Custom

and Practice Was the "Moving Force" Behind a Constitutional

24

Violation of Plaintiffs DARCELLE CHATOIAN, CYNTHIA

TASCA and CORIN RASMUSSEN Regarding Their

25

Placement in Safety Cells at the Marin County Jail . . . . . . . . . . . . . . . . . 14

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LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

IV. DEFENDANT MARIN COUNTY SHERIFF'S DEPARTMENT IS AN IMPROPER PARTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
V. THERE IS INSUFFICIENT EVIDENCE TO ESTABLISH SUPERVISORY LIABILITY AGAINST SHERIFF DOYLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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1 VI. SHERIFF DOYLE IS ENTITLED TO QUALIFIED IMMUNITY . . . . . . . . . . . . . . . . . 18

2 VII. 3 4 5

PLAINTIFFS CHATOIAN, RASMUSSEN AND RUSSELL CANNOT ESTABLISH A VIOLATION OF STATE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
A. There Is No Evidence That Sheriff Doyle Enacted a Policy That Violates Penal Code Section 4030 Because the Policy Prohibits Strip Searches of Arrestees Who Are Charged with Crimes Not Involving Weapons, Controlled Substances or Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

6

B. There Is No Evidence That Sheriff Doyle Enacted a Policy That

Violates Penal Code Section 4030 for the Claims of Plaintiffs

7

CHATOIAN and RASMUSSEN That They Were Placed in a Safety Cell

Because They Were Not "Strip Searched" as Contemplated by Penal

8

Code Section 4030 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

9

C. There Is No Evidence That Sheriff Doyle Enacted Violated California

Civil Code Section 52.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

10

D. There Is No Evidence That the County of Marin Violated State Law . . . . . . . . . 24

11

VIII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

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1

TABLE OF AUTHORITIES

2 Anderson v. County of Kern,

45 F.3d 1310 (9th Cir 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 13, 15, 16, 17, 21

3

Anderson v. Liberty Lobby, Inc.,

4

477 U.S. 242, 106 S.Ct. 2505 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

5 Bell v. Wolfish,

441 U.S. 520 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 20

6

Board of the County Comm'rs v. Brown,

7

117 S.Ct. 1382, 489 US 378 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

8 Brosseau v. Haugen,

543 U.S. 194, 125 S.Ct. 596 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

9

Bull v. City and County of San Francisco,

10

ND Cal., Case No. C 03-01840 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 22

11 Canton v. Harris,

489 U.S. 378, 109 S.Ct. 1197, 1025 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

12

City of Oklahoma City v. Tuttle,

13

471 U.S. 808; 105 S.Ct. 2427 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

14 Davis v. Scherer,

468 U.S. 183, 104 S.Ct. 3012 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

15

Franklin v. Lockhart,

16

883 F.2d 654 (8th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

17 Fuller v. M.G. Jewelry,

950 F.2d 1437 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 20

18

Giles v. Ackerman,

19

746 F.2d 614 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 20

20 Hansen v. Black,

885 F. 2d 642 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

21

Harlow v. Fitzgerald,

22

457 U.S. 800, 102 S.Ct. 2727 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

23 Headwaters Forest Defense v. County of Humboldt,

276 F.3d 1125 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

24

Hicks v. Moore,

25

422 F.3d 1246, 1252 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

Hill v. McKinley, 311 F.3d 899 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15, 16, 17, 21
Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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1 Kennedy v. Los Angeles Police Dept.,

901 F.2d 702, 715 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 20

2

Malley v. Briggs,

3

475 U.S. 335, 106 S.Ct. 1092 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

4 Marquez v. Gutierrez,

322 F.3d. 689 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

5

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

6

475 U.S. 574,106 S.Ct. 1348 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

7 Mitchell v. Forsyth,

472 U.S. 511, 105 S.Ct. 2806 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

8

Monell v. Department of Social Services of New York,

9

436 U.S. 658, 985 S.Ct. 2018 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 7, 11, 12, 14, 17

10 Orozco v. County of Yolo,

814 F.Supp. 885, 890 (E.D.Cal. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

11

Oviatt v. Pearce,

12

954 F.2d 1470, 1474 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

13 Pembaur v. City of Cincinnati,

475 U.S. 469, 106 S. Ct. 1292 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

14

Redman v. County of San Diego,

15

942 F. 2d 1435 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

16 Saucier v. Katz,

533 U.S. 194, 121 S. Ct. 2151 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

17

Stump v. Gates,

18

777 F. Supp. 808 (D. Colo. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 17

19 Swain v. Spinney,

117 F.3d 1, 11 (1st Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

20

Taylor v. List,

21

880 F. 2d 1040 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

22 Thompson v. Belt,

828 F. 2d 298 (5th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

23

Thompson v. City of Los Angeles,

24

885 F.2d 1439, 1447 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

Timm v. Gunter, 917 F.2d 1093 (8th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Vance v. County of Santa Clara, 928 F.Supp. 993 (ND Cal. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 17

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1 Statutes

2 42 U.S.C. section 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 7, 17

3 California Civil Code section 52.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 21, 24

4 California Penal Code section 148 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

5 California Penal Code section 4030 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 21, 22, 23, 24

6 California Penal Code section 4030(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

7 California Penal Code section 4030(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

8 California Penal Code section 4030(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

9 Miscellaneous

10 California Code of Regulations, Title 15 section 1055 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

11 Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

12 Welfare and Institutions Code section 5150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 16

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LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

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1

NOTICE OF MOTION AND MOTION

2 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:

3

Notice is hereby given that on the above-noted date at the stated time and in the designated

4 courtroom, Defendants COUNTY OF MARIN/MARIN COUNTY SHERIFFS DEPARTMENT 5 (hereinafter collectively referred to as “COUNTY OF MARIN”)1 and SHERIFF ROBERT T.

6 DOYLE, by and through their attorneys of record, will and hereby do move this Court for Summary

7 Judgment/Summary Adjudication. The Motion for Summary Judgment/Adjudication is based upon

8 this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities in

9 support thereof and the Proposed Order filed herewith, the entire court file, and any other pleadings

10 or evidence which may be presented at the time of the hearing.

11

Defendants ROBERT T. DOYLE, and COUNTY OF MARIN hereby move for Summary

12 Judgment/Adjudication on the following grounds:

13

1. There is insufficient evidence of a municipal policy, custom or practice to establish

14 Monell-type liability against Defendant COUNTY OF MARIN and Plaintiffs’ claims under the

15 Fourth and/or Fourteenth Amendments fails as a matter of law.

16

2. Defendant MARIN COUNTY SHERIFF’S DEPARTMENT is an improper party to

17 this action.

18

3. Plaintiffs cannot establish supervisory liability because there is no causal link between

19 the actions of SHERIFF DOYLE and the constitutional violations that Plaintiffs allege herein.

20

4. Defendant DOYLE is entitled to qualified immunity.

21

5. Plaintiffs CHATOIAN, RASMUSSEN and RUSSELL cannot establish a violation

22 of California Civil Code section 52.1 and/or California Penal Code section 4030.2

23 ///

24 ///

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LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

1 "Naming a municipal department as a defendant is not an appropriate means of pleading a §1983 action against a municipality." Vance v. County of Santa Clara, 928 F.Supp. 993, 996 (ND Cal. 1996), quoting Stump v. Gates, 777 F. Supp. 808, 816 (D. Colo. 1991). Therefore, Defendants refer to the COUNTY OF MARIN and MARIN COUNTY SHERIFF’S DEPARTMENT collectively as COUNTY OF MARIN.
2
The Court already previously granted Defendants’ M otion to dismiss the state law claims of Plaintiff TASCA.

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

I.

3

FACTUAL BACKGROUND

4

This case arises out of the claims of Plaintiffs DARCELLE L. CHATOIAN (hereinafter

5 “CHATOIAN”), CYNTHIA TASCA (hereinafter “TASCA”), CORIN RASMUSSEN (hereinafter

6 “RASMUSSEN”) and KORISSA RUSSELL (hereinafter “RUSSELL”) that they were unlawfully

7 strip searched at the Marin County Jail. Plaintiffs CHATOIAN, TASCA and RASMUSSEN claim

8 that they were “strip searched” prior to placement in a safety cell. Plaintiff RUSSELL claims that

9 she was strip searched prior to placement in the general jail population. Plaintiffs assert claims

10 pursuant to 42 U.S.C. section 1983 (hereinafter “section 1983). Specifically, Plaintiffs assert claims

11 against DOYLE under the Fourth and Fourteenth Amendments to the United States Constitution and

12 a municipal Monell-type claim against COUNTY OF MARIN for relief under federal and state law.

13 Plaintiffs also assert state law claims against Defendant DOYLE for violation of California Civil

14 Code section 52.1 and California Penal section 4030.

15 A. Policies of the County of Marin Regarding Strip Searches and Safety Cell Placements

16

The COUNTY OF MARIN has a written policy that governs the conduct of strip searches

17 at the Marin County Jail. McQueeny Decl. ¶2, Ex. A. That policy was revised and distributed to all

18 personnel of the Marin County Jail in October 2003. Id. The policy regarding strip searches governs 19 the “Clothing Exchange” that occurs when an inmate3 changes from his or her street clothes into

20 institutional clothing prior to being “placed” in the general jail population. Id. Pursuant to the policy,

21 “[t]he inmate may not be viewed, observed, or monitored by any deputy or staff member during the

22 exchange and/or shower, unless there is reasonable suspicion that the inmate is concealing a weapon

23 or contraband” during the Clothing Exchange. Id. The policy also prohibits strip searching persons

24 arrested on charges involving weapons, violence and/or narcotics unless “[t]here exists specific and

25 articulable facts sufficient to induce an ordinary, prudent, cautious, and reasonable officer exposed

26 to a similar set of facts to believe the individual to be searched is in possession of a weapon,

27
LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

3Defendants reference to arrestees, detainees and inmates collectively as “inmates.”

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1 controlled substance, or other item of contraband.” Id.

2

The COUNTY OF MARIN also has a written policy that governs the conduct of placing

3 individuals who are arrested into a safety cell during their confinement at the Marin County Jail.

4 McQueeny Decl. ¶3, Ex. B. That policy requires deputies who place individuals in safety cells to

5 allow the individual to “retain sufficient clothing, or be provided with a suitably designed ‘safety

6 garment’, to provide for their personal privacy unless specific identifiably risks to the inmate’s safety

7 or to the security of the facility are documented.” Id.

8

Deputies do not require all inmates who are placed in safety cells to remove their clothing.

9 If an inmate is placed in a safety cell because he or she is damaging Jail property and/or is

10 considered to be a danger to staff or another inmate, Jail staff only require the inmate to remove

11 those items of clothing that could be used as a weapon, such as shoes. McMains Depo. 13:3-13.

12 Only those inmates that are considered to be a danger to themselves or others are required to

13 exchange their clothes for a “safety garment.” Hernandez Depo. 62:3-9.

14

For an inmate who is considered a danger to themselves, staff of the same gender will enter

15 the safety cell and request that the inmate voluntary exchange his or her clothing for a safety

16 garment. Hernandez Depo. 64:4-14. The inmate will hand over his or her clothes to the same-

17 gender jail staff and in exchange will be provided a safety smock. McQueeny Decl. ¶4, Garrett

18 Depo. 61:4-15. The deputies do not perform an inspection or strip search of any kind. McQueeny

19 Decl. ¶5; Goss Depo. 25:25-26:3 When an inmate refuses to cooperate, jail staff will place the

20 inmate in a control hold and remove the clothing from the inmate. Barry Depo. 29:15-21. In those

21 circumstances deputies of the same gender remove the clothing from the inmate and perform the

22 clothing exchange. McQueeny Decl. ¶5; Barry Depo. 29:15-21; Goss Depo. 21:1-4. If emergency

23 circumstances arise such that there are not enough deputies of the same gender as the inmate and

24 emergency circumstances arise, deputies of the opposite gender will assist in the clothing exchange

25 by holding down the inmate while deputies of the same gender remove the inmates clothing. Barry

26 Depo. 29:15-21; Hernandez Depo. 70:18-71:4. If possible, deputies also cover the inmate with a

27
LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

safety smock or blanket during the clothing exchange. McQueeny Decl. ¶6, Shelstrate Depo. 17:1018:16. They also leave the safety smock, blanket or both in the cell with the inmate. Id.

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1 B. Plaintiff DARCELLE CHATOIAN

2

Plaintiff CHATOIAN was arrested on November 2, 2003 for driving under the influence.

3 CHATOIAN Depo. 19:20-22, 43:21-25. She was arrested by the Mill Valley Police Department.

4 CHATOIAN Depo. 40:19-41:1. The officers who arrested her brought her to the Marin County Jail.

5 CHATOIAN Depo. 98:9-16.

6

When Plaintiff CHATOIAN arrived at the Marin County Jail, officers from the Mill Valley

7 Police Department reported that CHATOIAN was suicidal and that she said that she wasn’t going

8 to live and was going to die. Siegel Depo. 24:3-12. Then, Deputy Monge of the Marin County

9 Sheriff’s Department asked “Do you want to hurt yourself?” Siegel Depo. 23:6-13. Plaintiff

10 CHATOIAN replied, “Yes, I’m going to die.” Id.

11

Thereafter, female Deputies Monge and Shelstrate of the Marin County Sheriff’s Department

12 placed Plaintiff CHATOIAN into a safety cell. Shelstrate Depo. 16:11-17:7, 23:22-24:4. Deputies

13 Shelstrate and Monge were the only two female officers on duty that night. Hernandez Depo. 94:3-

14 11; Shelstrate Depo. 22:10-11. Deputies Shelstrate and Monge asked CHATOIAN to give them her

15 clothes in exchange for the safety smock several times. Id. Plaintiff CHATOIAN refused and

16 backed into the corner of the safety cell. Id. When CHATOIAN backed into the corner of the safety

17 cell she began yelling. Shelstrate Depo. 22:3-9. Then, Deputies Monge, Shelstrate and two male

18 officers, Deputy McMains and Sergeant Hernandez, grabbed her, placed her on the ground, covered

19 her with the safety smock and Deputies Shelstrate and Monge removed her clothes. Shelstrate Depo.

20 16:11-17:7, 23:22-24:4; Hernandez Depo. 91:8-22, 92:14-17. Plaintiff CHATOIAN was struggling

21 while Deputy McMains and Sergeant Hernandez were attempting to hold her as Deputies Shelstrate

22 and Monge were removing her clothes. Shelstrate Depo. 23:16-20. Once her clothes were removed,

23 the Deputies backed out of the safety cell and left Plaintiff CHATOIAN covered with the safety

24 smock. Shelstrate Depo. 17:8-15; 24:11-13.

25 C. Plaintiff CYNTHIA TASCA

26

Plaintiff TASCA was arrested by the Deputies of the Marin County Sheriff’s Department on

27
LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

July 1, 2003. She was initially taken into custody pursuant to Welfare and Institutions Code section 5150. Wofford Depo. 20:25-21:16. Then, she was arrested for kicking a deputy and kicking the

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1 window out of the patrol car that was used to transport her. Wofford Depo. 17-20. Plaintiff TASCA

2 was transported to the Marin County Jail. There, she was initially placed in a sobering cell. Wofford

3 Depo. 24:9-10. Deputies of the Marin County Sheriff’s Department determined that Plaintiff

4 TASCA was a danger to herself when she threatened to “slit her wrists” and began banging her head

5 on the window of the sobering cell hard enough to cause injury. Schemmel Depo. 14:4-15:7. After

6 deputies determined that she was a danger to herself, they placed her in the safety cell. Woffard

7 Depo. 30:16-19, 31:12-22. Deputy Wofford and Sergeant Barry were the only female deputies on

8 duty and available. Wofford Depo. 10:13-17, 22-25; Barry Depo. 30:2-6. First, Deputy Woffard,

9 a female deputy, placed her in the safety cell and asked her to voluntarily exchange her clothes for

10 a safety smock. Id. Plaintiff TASCA would not cooperate. Id. Therefore, Deputy Woffard removed

11 her clothes and handed them to Sergeant Barry (another female officer) while Deputies Jones and

12 Schemmel (both male) held her down. Id. The male deputies were being discreet and looking away.

13 Id. The deputies also gave her a safety smock and left. Schemmel Depo. 22:4-7.

14 D. Plaintiff CORIN RASMUSSEN

15

Plaintiff RASMUSSEN was arrested on July 4, 2004 for driving under the influence.

16 RASMUSSEN Depo. 16:11-13, 21:14-19. She was taken to the Marin County Jail. Id. When

17 Plaintiff RASMUSSEN was in the booking area of the jail she told the deputies that she had been

18 diagnosed with clinical depression. Garrett Depo. 59:21-24. RASMUSSEN Depo. 57:25-58:5. She

19 was also intoxicated and said “just shoot me” to jail staff. Garrett Depo. 58:11-59:9, RASMUSSEN

20 Depo. 80:19-23. Therefore, the jail staff determined that she may be suicidal. Garrett Depo. 58:6-

21 10.

22

Jail staff then placed Plaintiff RASMUSSEN into a safety cell. Garrett Depo. 58:6-10.

23 Sergeant Craig Scardina directed three female deputies to escort Plaintiff RASMUSSEN to the safety

24 cell and place here on suicide watch. Scardina Depo. 30:4-15. When an inmate is placed on suicide

25 watch he or she is escorted to the safety cell, jail staff conduct a clothing exchange and provide the

26 inmate with a safety smock or safety blanket. Scardina Depo. 30:9-15.

27
LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

Two female deputies, Monge and Goss, escorted Plaintiff RASMUSSEN to the safety cell. Garrett Depo. 60:11-18. Deputies Monge and Goss held up a blanket for her privacy and directed

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1 Plaintiff RASMUSSEN to hand over her clothing and she complied. Garrett Depo. 60:23-61:7;

2 RASMUSSEN Depo. 71:16-24. During the clothing exchange, the deputies did not inspect or

3 search Plaintiff RASMUSSEN’s body to determine if she was concealing weapons or contraband.

4 Goss Depo. 25:25-26:3; RASMUSSEN Depo. 77:19-78:1.

5 E. Plaintiff KORISSA RUSSELL

6

Plaintiff KORISSA RUSSELL was arrested on March 10, 2004 and transported to the Marin

7 County Jail. RUSSELL Depo. 41:11-14. She was charged with violating Penal Code section 148.

8 Seymour Depo. 33:3-6. Deputy Kim Seymour (female) conducted an investigation to determine

9 whether there was reasonable suspicion to strip search Plaintiff RUSSELL. Seymour Depo. 24:8-24.

10 During the booking process Deputy Seymour filled out a strip search authorization form. Seymour

11 Depo. 31:25-32:4, Ex. 21. Deputy Seymour ran Plaintiff RUSSELL’s criminal history. Seymour

12 Depo. 31:25-32:4. Plaintiff RUSSELL’s criminal history indicated that she had a prior of weapons

13 charge that involved smuggling a weapon into a courtroom. Seymour Depo. 32: 8-12. Deputy

14 Seymour also reviewed the Probable Cause Statement for the current arrest of Plaintiff RUSSELL

15 to determine if she was arrested for a charge involving violence. Seymour Depo. 33:3-10. Deputy

16 Seymour determined that the arrest charge of Penal Code section 148 was a charge involving

17 violence because Plaintiff RUSSELL fought with deputies during the arrest. Seymour Depo. 15-19.

18 Deputy Seymour presented the Strip Search Authorization Form to Sergeant Steven de la O and

19 Sergeant de la O authorized the search. de la O Depo. 21:14-22:3.

20

Then, Deputy Seymour directed Plaintiff RUSSELL to the back room and conducted a strip

21 search in a shower stall. Seymour Depo. 29:8-30:5. The back room has a hallway, door with a small

22 window and three stalls. RUSSELL Depo. 59:23-60:1; Garrett Depo. 32:10-21. Deputy Seymour

23 did not touch Plaintiff RUSSELL during the strip search. RUSSELL Depo. 71:17-18. The shower

24 stall is a private one and there were no other deputies present during the search. RUSSELL Depo.

25 71:23-25

26 ///

27
LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

/// ///

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1

II.

2

LEGAL STANDARD FOR MOTION FOR SUMMARY JUDGMENT

3

Summary judgment is appropriate when the record reveals that there are no issues as to any

4 material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.

5 P. 56(c). The standard for determining whether summary judgment is appropriate is whether “the

6 evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-

7 sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

8 251-52, 106 S.Ct. 2505 (1986). Once the movant makes an initial showing on motion for summary

9 judgment, the burden shifts to the opponent to come forward with specific facts beyond pleadings

10 showing the existence of genuine disputes of material fact. Matsushita Elec. Indus. Co. v. Zenith

11 Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56 (1986); Orozco v. County of Yolo, 814

12 F.Supp. 885, 890 (E.D.Cal. 1993). The court must consider all pleadings, depositions, affidavits,

13 and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion.

14 See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986).

15

III.

16 THERE IS INSUFFICIENT EVIDENCE OF A MUNICIPAL POLICY, CUSTOM OR

PRACTICE TO ESTABLISH MONELL-TYPE LIABILITY AGAINST THE COUNTY

17

OF MARIN

18

The COUNTY OF MARIN is not liable for actions of its agents which result in violations

19 of constitutional rights, unless the conduct is pursuant to an official government policy or custom.

20 Monell v. Department of Social Services of New York, 436 U.S. 658, 985 S.Ct. 2018 (1978); see

21 Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292 (1986). Municipal liability under 42

22 U.S.C. section 1983 can only be established where plaintiff shows that (1) he was deprived of his

23 constitutional rights; (2) the municipality has a policy; (3) the policy amounts to deliberate

24 indifference to plaintiff’s constitutional rights; and (4) the policy is the moving force behind the

25 constitutional violation. Canton v. Harris, 489 U.S. 378, 389-91, 109 S.Ct. 1197, 1025 (1989); see

26 Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting Canton and analyzing Monell

27
LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

liability). ///

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Case 3:04-cv-02790-MJJ Document 45 Filed 01/11/2006 Page 14 of 31

1 A. Regarding Strip Searches

2

1. The Fourteenth Amendment Claims of Plaintiff RUSSELL Regarding the

Alleged Strip Search Fail as a Matter of Law.

3

4

Plaintiff RUSSELL asserts claims arising under the Fourteenth Amendment for the conduct

5 arising out of her alleged strip search. Claims arising from the “reasonableness” of a search,

6 however, are analyzed under the Fourth Amendment’s “objective reasonableness” standard rather

7 than under a substantive due process standard. Grahm v. Connor, 490 U.S. 386, 388; 109 S.Ct. 1865

8 (1989). Therefore, the claims of Plaintiff RUSSELL for violation of Fourteenth Amendment in

9 Count One and Count Two of the Complaint fail as a matter of a law and should be dismissed.

10

2. The Policies of the County of Marin Regarding the Conduct of Strip Searches

11

at the Marin County Jail Do Not Violate the Fourth Amendment.

12

Plaintiff RUSSELL contends that she was strip searched in violation of the Fourth and/or

13 Fourteenth Amendments prior to placement in the general jail population of the Marin County Jail.

14 Initially, Defendants submit that Plaintiff RUSSELL cannot establish an underlying violation of the

15 Fourth and/or Fourteenth Amendments. Assuming arguendo Plaintiff RUSSELL can establish and

16 underlying violation, there is no evidence that a policy, practice and/or custom of the COUNTY OF

17 MARIN was the “moving force” behind such a violation.

18

In Bell v. Wolfish, 441 U.S. 520, 558-60 (1979), the Supreme Court considered whether

19 visual body cavity and strip searches violated the Fourth Amendment rights of pre-trial inmates. The

20 Court stated that whether such searches were reasonable under the Fourth Amendment, and thus

21 constitutional, depended on “a balancing of the need for the particular search against the invasion

22 of personal rights that the search entails.” Id. at 559. In determining whether a search is reasonable,

23 the courts must “consider the scope of the particular intrusion, the manner in which it is conducted,

24 the justification for initiating it, and the place in which it is conducted.” Id. The Bell Court then held

25 that a policy of conducting blanket strip searches of inmates after contact visits and without

26 reasonable suspicion that the particular inmate was concealing weapons or contraband does not

27
LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

violate the Fourth Amendment. Id. ///

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1

In Giles v. Ackerman, 746 F.2d 614 (1984), the Ninth Circuit created a limited exception to

2 the rule that blanket strip searches of pretrial inmates, after visiting and without individualized

3 suspicion that the inmate was secreting contraband, do not violate the Fourth Amendment. The

4 Court held that arrestees charged with only minor offenses, who were freshly arrested and brought

5 into a jail, may be subject to a strip search only if jail officials possess a reasonable suspicion that

6 the individual arrestee is carrying contraband. Giles, 746 F.2d 617. The Court reasoned that

7

Visitors to the detention facility in Bell could plan

their visits and organize their smuggling activities. In

8

contrast, arrest and confinement in the Bonneville

County Jail are unplanned events, so the policy could

9

not possibly deter arrestees from carrying contraband.

10 Id. Thus, Giles creates a limited exception to the rule enumerated in Bell for those persons who are

11 freshly arrested on minor charges and have not yet had the opportunity to plan smuggling activity.

12

Subsequently, The Ninth Circuit established a two-step analysis for determining the

13 reasonableness of a strip search of persons freshly arrested on minor charges. First, the Court must

14 consider the policy of the jail to determine whether it permits searches without reasonable suspicion

15 that the inmate is a weapon or concealing contraband. Even if a plaintiff demonstrates an

16 unconstitutional policy, the “search, although not supportable under an institutional policy, is not per

17 se unconstitutional.” Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 715 (9th Cir. 1989). If

18 the policy permits unlawful searches, then the Court proceeds to the second step. The Court “must

19 examine the particular circumstances surrounding [plaintiff’s] arrest to determine whether there was

20 reasonable suspicion [that an inmate may be concealing a weapon or contraband] to conduct a visual

21 body-cavity search.” Id. See also Fuller v. M.G. Jewelry, 950 F.2d 1437 (9th Cir. 1990).

22

In contrast to minor crimes not involving violence, drugs and weapons, the Ninth Circuit has

23 held that sometimes the charge itself is sufficiently associated with violence to establish reasonable

24 suspicion for a strip search. See Thompson v. City of Los Angeles, 885 F.2d 1439, 1447 (9th Cir.

25 1989) (Felony charge of grand theft auto sufficiently associated with violence to justify a strip

26 search). This rule is in accord with the Eleventh Circuit. See Hicks v. Moore, 422 F.3d 1246, 1252

27
LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

(11th Cir. 2005) (Strip search after arrest for family violence battery justified based on the charge alone).

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Case 3:04-cv-02790-MJJ Document 45 Filed 01/11/2006 Page 16 of 31

1

Thus, strip searching a inmate in a county jail prior to arraignment violates the Fourth

2 Amendment only if the plaintiff can establish two elements. First, the plaintiff must establish that

3 search is conducted on a inmate who is freshly arrested on a minor crime not involving violence,

4 drugs or weapon. Second, the plaintiff must also establish that the officer conducting the search did

5 not have reasonable suspicion that the inmate is concealing weapons or contraband.

6

The policy of the Marin County Jail with regard to strip searches does not violate the Fourth

7 Amendment. Specifically, the policy of the Marin County Jail precludes strip searches that would

8 violate the Fourth Amendment. First, the policy precludes strip searches of persons who are charged

9 with crimes not involving weapons, violence and/or narcotics. “CLOTHING EXCHANGE: The

10 inmate may not be viewed, observed, or monitored during the clothing exchange and/or shower,

11 unless there is reasonable suspicion that the inmate is concealing a weapon or contraband.”

12 McQueeny Decl. Ex. A., p.2. Additionally, “once any post-arrest through pre-arraignment prisoner

13 has been subjected to the appropriate level of search ...strip searching will only occur based upon

14 reasonable suspicion that the prisoner is in possession of a weapon, narcotics and/or possession of

15 any contraband which might aid escape.” Id. (emphasis added). The policy also allows strip

16 searches where “[t]here exists specific and articulable facts sufficient to induce an ordinarily prudent,

17 cautious, and reasonable officer exposed to a similar set of facts to believe the individual to be 18 searches is in possession of a weapon, controlled substance, or other item of contraband.” Id..4

19 Finally, although not mandated by the Fourth Amendment, the policy requires written authorization

20 by the Booking Sergeant before a staff member can perform a strip search. Id. Thus, this policy

21 conforms with the restrictions on strip searches imposed by the Fourth Amendment. In fact, due to

22 the requirement of supervisory review/approval and additional preclusion of strip searches after

23 arraignment, the policy precludes strip searches that are not prohibited by the Fourth Amendment.

24 For each of those reasons, , Plaintiff RUSSELL cannot demonstrate that the written municipal policy

25 of the Marin County Jail was the “moving force” behind a constitutional violation.

26

27
LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

4
The policy also allows strip searches in three “other situations” that are not applicable to the facts of this case because the named plaintiffs do not fit into these three categories. See McQueeny Decl. Ex. A, p. 2-14(C)(1), (3), (4).

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1

3. Plaintiffs Cannot Demonstrate That a Widespread Custom and Practice Was

the “Moving Force” Behind a Constitutional Violation of Plaintiff KORISSA

2

RUSSELL.

3

In order to establish Monell-type liability on a “failure to train” or “failure to supervise”

4 theory Plaintiffs must prove that the policymaker of the County enacted policies that amount to a

5 “conscious disregard” and/or “deliberate indifference” to prevention of violations of the

6 Constitution. Swain v. Spinney, 117 F.3d 1, 11 (1st Cir. 1997), citing Board of the County Comm’rs

7 v. Brown 117 S.Ct. 1382, 1390, 489 US 378 (1997). In that regard, the existence of a

8 constitutionally valid policy that is properly updated and distributed to every officer of a police

9 department, and absent any previous claims that would place the chief of police on notice of

10 violations, there is no basis for Monell liability. See Swain, 117 F.3d at 11.

11

In this case, it is undisputed that the COUNTY OF MARIN has a written policy regarding,

12 the conduct of strip searches at the Marin County Jail. Additionally, it is undisputed that the written

13 policy was properly updated and distributed to every deputy who worked at the Marin County Jail.

14 Furthermore, as demonstrated above, that policy on its face is constitutionally valid. Finally, there

15 is no evidence of a widespread custom or strip searching and/or placing pre-trial inmates in safety

16 cells in violation of the polices of the Marin County Jail. Therefore, Defendants respectfully submit

17 that Plaintiffs cannot present evidence to establish a triable issue of material fact regarding a

18 widespread custom or practice that would support Monell-type liability.

19

Here, only Plaintiff RUSSELL claims that she was strip searched pursuant to the policy of

20 the COUNTY OF MARIN regarding strip searches. It is also undisputed that Deputy Seymour

21 conducted an investigation to determine whether or not there was reasonable suspicion that would

22 support strip searching Plaintiff RUSSELL. Seymour Depo. 24:8-24, 31:25-32:4. That investigation

23 revealed a prior criminal history that included a conviction for charges of smuggling a weapon into

24 a courthouse and current charges of violence. Seymour Depo. 32:8-12, 33:3-10. Thus, personnel of

25 the Marin County Jail had a reasonable suspicion that Plaintiff RUSSELL may by concealing a

26 weapon or contraband based on the prior charge of smuggling a weapon into a courthouse and her

27
LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

current charges involving violence. Due to the fact that Deputy Seymour had reasonable suspicion to strip search Plaintiff RUSSELL, cannot establish an underlying violation of a constitutional right

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Case 3:04-cv-02790-MJJ Document 45 Filed 01/11/2006 Page 18 of 31

1 that is a prerequisite to Monell-type liability. Moreover, there is no evidence of, nor does an isolated

2 single incident involving the lawful strip search of Plaintiff RUSSELL, a widespread custom or

3 practice of unlawful strip searches in violation of the Fourth Amendment. Assuming arguendo

4 Plaintiff RUSSELL claims that Deputy Seymour violated the policy by strip searching her without

5 reasonable suspicion, the COUNTY OF MARIN is not liable for the action of its officers who

6 allegedly violated department policy. That is, if Plaintiffs seek to impose liability on the COUNTY

7 OF MARIN for violations of its policy regarding safety cell placements and/or strip searches then

8 the COUNTY OF MARIN is an improper Defendant. See Monell, 436 U.S. at 694; See also Bull

9 v. City and County of San Francisco, ND Cal., Case No. C 03-01840 CRB. Req. Jud. Not. Ex. B,

10 p. 19-20. Therefore, Plaintiff RUSSELL cannot establish a widespread custom and/or practice that

11 was the “moving force” behind a violation.

12

For all of the foregoing reasons, the COUNTY OF MARIN is entitled to summary judgment

13 for the claims of Plaintiff RUSSELL arising from Monell-type liability in Count One and Count Two

14 of the First Amended Complaint.

15 B. Safety Cells

16

1. The Policies of the County of Marin Regarding the Conduct of Safety Cell

Placements at the Marin County Jail Do Not Violate the Fourth or Fourteenth

17

Amendments.

18

Plaintiffs CHATOIAN, TASCA and RASMUSSEN claim that they were “strip searched”

19 in violation of the Fourth and/or Fourteenth Amendments when they were placed in a safety cell at

20 the Marin County Jail. Initially, Defendants submit that these three plaintiffs cannot establish that

21 they were “strip searched” in violation of the Fourth and/or Fourteenth Amendments. Assuming

22 arguendo these three Plaintiffs can establish a strip search that violates the Fourth and/or Fourteenth

23 Amendments there is no evidence that a policy, practice and/or custom of the COUNTY OF MARIN

24 was the “moving force” behind the violation.

25

“[T]he placement of pretrial detainees in safety cells is ‘punishment’ in violation of the

26 Fourteenth Amendment only if prison officials act with deliberate indifference to the inmates’

27
LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
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needs.” Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir 1996) (emphasis added), cert. denied, 516 U.S. 916. In Anderson the Ninth Circuit analyzed the placement of three separate

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1 Plaintiffs into safety cells at the Kern County Jail. Id. at 1314-1315. In addition to the placement,

2 two of the plaintiffs were shackled to the “toilet grate.” Id. One Plaintiff also complained that “he

3 was shackled all night to the toilet grate with leather restraints and was given only a paper shirt that

4 prison officials placed over his lap.” Id. (emphasis added). Based on those facts, the court held that

5 Plaintiffs failed to established the elements of a Fourteenth Amendment violation because although

6 “the safety cell is admittedly a very severe environment, but it is employed in response to very severe 7 safety concerns.” Id. at 1314.5

8

It is also not a violation of the Fourth Amendment “for a male guard to require a loud and

9 violent female prisoner [who was freshly arrested on charges of public intoxication] to disrobe in his

10 presence before placing her in a padded cell for her own safety.” Hill v. McKinley, 311 F.3d 899,

11 903 (8th Cir. 2001). Additionally, “use of male guards in an otherwise justified transfer of an unruly

12 and naked female prisoner is not a violation of the Fourth Amendment.” Id. The Hill court analyzed

13 the circumstances of placing an inmate in a safety cell under the Fourth Amendment. Id. However,

14 the court did not impose the same “reasonable suspicion” requirement that other courts (including

15 the Ninth Circuit) have imposed on “strip searches.” Rather, the court recognized that “prisoners

16 have no general right not to be seen by members of the opposite sex” and that “prisoners are entitled

17 to very narrow zones of privacy, and circumstances may warrant the most invasive of intrusions into

18 bodily privacy.” Id. At 905-906. Furthermore, the court cited Timm v. Gunter, 917 F.2d 1093,1102

19 (8th Cir. 1990) which held that opposite-sex surveillance performed on the same basis as same-sex

20 surveillance is not unreasonable where it is justified by safety and equal opportunity staffing

21 concerns. Id., citing Timm v. Gunter, 917 F.2d 1093,1102 (8th Cir. 1990). Thus, in order to prevail

22 on a Fourth and/or Fourteenth amendment claim arising out of the placement, removal of clothing

23 and other actions associated with the use of safety cells, a plaintiff must demonstrate by substantial

24 evidence that the invasion of privacy was an exaggerated response to the security needs of the

25 facility. Id. at 903, citing Franklin v. Lockhart 883 F.2d 654, 656-57 (8th Cir. 1989). Moreover,

26
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5 The plaintiffs in Anderson challenged the use of a safety cell generally. Anderson, 45 F.3d at 1312. In this case Plaintiffs CHATOIAN, TASCA and RASMUSSEN do not challenge their placement in the cell but rather only challenge the conduct of taking their clothes, allegedly strip searching them and allegedly leaving them nude in the cell. Plfs’ First Amend. Compl. ¶¶ 14, 15, 20, Req. Jud. Not. Ex. C.

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1 staffing and security concerns of a jail weigh in favor of allowing opposite-sex staff to perform

2 monitoring and security functions associated with nude or semi-nude inmates (including pre-trial

3 detainees).

4

Here, the written policy regarding placements of pre-trial inmates into a safety cell does not

5 violate the Fourth or Fourteenth Amendment. That policy only authorizes the use of a safety cell for

6 inmates who fit into the following categories: (1) Display behavior which results in the

7 damage/destruction of county jail property; (2) Presents an immediate danger to themselves or

8 others; (3) Makes verbal threats to harm themselves, and; (4) Makes overt attempts to assault staff

9 or other inmates. McQueeny Decl. Ex. B. The policy also mandates that “[i]nmates will be allowed

10 to retain sufficient clothing, or be provided with a suitably designed ‘safety garment’, to provide for

11 their personal privacy unless specific identifiable risks to the inmate’s safety or to the security of the

12 facility are documented.” Id. Furthermore, the policy does not provide that inmates placed in a

13 safety cell are to be strip searched. Thus, the policy is not “deliberately indifferent” to the needs of

14 arrestees at the Marin County Jail because it precludes placement in a safety cell unless the inmate

15 presents a security risk to him or herself and/or the security of the facility. Additionally, the policy

16 does not present an “exaggerated response” to the security needs of the facility because it does not

17 infringe on one of the “very narrow zones of privacy” that are afforded to prisoners. Rather, the

18 policy addresses those “narrow zones of privacy” by permitting inmates to retain their clothing

19 and/or be given a “safety garment.” Furthermore, the policy does not provide that inmates placed

20 in a safety cell are to be strip searched. Thus, the policy does not violate the Fourth and/or

21 Fourteenth Amendments. Therefore, there is no evidence of a policy, that would establish Monell-

22 type liability against the COUNTY OF MARIN for the claims of Plaintiffs CHATOIAN, TASCA

23 and RASMUSSEN arising out of their placement in a safety cell at the Marin County Jail.

24

2. Plaintiffs Cannot Demonstrate That a Widespread Custom and Practice Was

the “Moving Force” Behind a Constitutional Violation of Plaintiffs DARCELLE

25

CHATOIAN, CYNTHIA TASCA and CORIN RASMUSSEN Regarding Their

Placement in Safety Cells at the Marin County Jail.

26

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It is also undisputed that the Marin County Jail had a written policy regarding the placement of inmates in safety cells. Additionally, that policy conforms with Ninth Circuit and other case law

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1 regarding the placement of inmates in safety cells. See Anderson, 45 F.3d 1310; Hill, 311 F.3d 899,

2 discussed supra. Assuming arguendo that Plaintiffs CHATOIAN, TASCA and RASMUSSEN can

3 demonstrate an underlying constitutional violation, they cannot demonstrate that the violation was

4 the result of a widespread custom or practice.

5

First, there is no evidence of a widespread custom or practice of conducting strip searches

6 of inmates during the “clothing exchange” prior to placement in the safety cell. Plaintiffs claims

7 regarding safety cell placements are that they were strip searched . Plfs’ Compl. ¶¶4,5,14, 20.

8 Therefore, Plaintiffs cannot demonstrate a violation of the Fourth or Fourteenth Amendments

9 because there is no evidence of a widespread custom or practice of strip searching inmates prior to

10 placement in the safety cell.

11

Deputies of the Marin County Jail determined that Plaintiff CHATOIAN was a danger to

12 herself and therefore placed her into a safety cell. First, the officers who arrested CHATOIAN

13 reported that she was suicidal and had said she wasn’t going to live and was going to die. Siegel

14 Depo. 24:3-12. Plaintiff CHATOIAN also said. “Yes, I’m going to die” when Deputy Monge asked

15 “Do you want to hurt yourself?” Siegel Depo. 23:6-13. Therefore, deputies had reason to believe

16 that CHATOIAN was a danger to herself based on the reports of the arresting officers and her

17 comments to the jail staff about hurting herself.

18

Deputies also did not violate the rights of Plaintiff CHATOIAN when they removed her

19 clothes during the clothing exchange. Initially, two female deputies, Shelstrate and Monge, placed

20 CHATOIAN into a safety cell and requested that she voluntarily exchange her clothes for the safety

21 smock. Shelstrate Depo. 16:11-17:7, 22:10-11. Male deputies only intervened after CHATOIAN

22 refused to cooperate in the clothing exchange and exchange her clothing for a safety smock, backed

23 into a corner and began yelling and the jail did not have available other female staff to assist.

24 Schelstraete Depo. 16:11-17:7, 23:22-24:4; Hernandez Depo. 91:8-22, 92:14-17. The male deputies

25 also only held her down while female deputies removed her clothes and provided here with the safety

26 smock. Id. The Deputies also covered CHATOIAN with the smock while her clothes were removed

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and left it on her when they left the safety cell. Shelstrate Depo. 17:8-15, 24:11-13. Moreover, there is no evidence that Plaintiff CHATOIAN was the subject of an form of stip search. The conduct of

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1 the Deputies is consistent with Anderson, where the Ninth Circuit held that it was not a violation for

2 jail staff to shackle a potentially suicidal inmate to a toilet grate and given a paper shirt that jail staff

3 placed over his lap. Anderson, 45 F.3d at 1313. The use of male deputies also is consistent with Hill

4 where the Eighth Circuit held that it was not a violation for male staff to require a loud and violent

5 female prisoner to disrobe and also to participate in transferring her while she is completely naked.

6 Hill, 311 F.3d at 903.

7

Similarly, Plaintiff TASCA cannot establish that the policy of the COUNTY OF MARIN was

8 the “moving force” behind an underlying violation of a constitutional right. First, Plaintiff TASCA

9 was initially taken into custody pursuant to Welfare and Institutions Code section 5150 (“section

10 5150"). Section 5150 allows a peace officer to take a person into custody if he or she “as a result

11 of mental disorder, is a danger to others, or to himself or herself, or gravely disabled.” Cal.Welf. &

12 Inst. Code §5150. Then, Plaintiff TASCA threatened to “slit her wrists” and began banging her head

13 against the wall. Schemmel Depo. 14:4-15:7. Thus, jail staff had reason to believe that Plaintiff

14 TASCA was a danger to herself or others. Additionally, Plaintiff TASCA refused to voluntarily

15 exchange her clothes for a safety garment and began chanting and yelling at the Deputies.

16 Furthermore, TASCA was not subjected to a strip search. Thus, similar to Plaintiff CHATOIAN,

17 it was not a violation of the Fourth and Fourteenth Amendments to have male Deputies hold her

18 down while female deputies removed her clothes and provided her with a safety smock.

19

Deputes also had reason to believe that Plaintiff RASMUSSEN was a danger to herself.

20 First, she told jail staff that she was diagnosed with clinical depression. Garret Depo. 59:21-24. She

21 was also intoxicated and told the Deputies, “just shoot me.” Garrett Depo. 58:11-59:9. Based on

22 her behavior, jail staff determined that she may be suicidal. Garrett Depo. 58:6-10. Furthermore,

23 unlike Plaintiffs CHATOIAN and TASCA, Plaintiff RASMUSSEN voluntarily exchanged her

24 clothes for a safety garment. Garrett Depo. 60:23-61:7. Finally, during the clothing exchange the

25 deputies did not inspect or search Plaintiff RASMUSSEN’s body to determine if she was concealing

26 weapons or contraband. Goss Depo. 25:25-26:3. Plaintiff RASMUSSEN was not subjected to strip

27
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and/or body cavity search but instead was merely placed in a safety cell and required to exchange her clothing for a safety garment.

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1

The conduct of the Deputies of the Marin County Jail does not demonstrate a widespread

2 custom or practice of violating the Fourth and or Fourteenth Amendment rights of inmates who are

3 placed in safety cells. To the contrary, the conduct of the Deputies who placed Plaintiffs

4 CHATOIAN, TASCA and/or RASMUSSEN in a safety cell demonstrates that they followed the

5 policy of the Marin County Jail. Moreover, as demonstrated in Anderson and Hill, that policy and

6 the conduct of the Deputies conforms with the Fourth and Fourteenth Amendments. Therefore, there

7 is no evidence of a widespread custom and/or practice of violating the constitutional rights of

8 persons placed in safety cells at the Marin County Jail.

9

Based on all of the foregoing, the COUNTY OF MARIN is entitled to summary judgment

10 for the claims of Plaintiff RASMUSSEN arising from Monell-type liability in Count One and Count

11 Two of the First Amended Complaint.

12

IV.

13 DEFENDANT MARIN COUNTY SHERIFF’S DEPARTMENT IS AN IMPROPER PARTY
14

15

It is well settled that for the purposes of a section 1983 action, the term "persons" does not

16 encompass municipal departments. Vance v. County of Santa Clara, 928 F.Supp. 993, 996 (ND Cal.

17 1996). In that regard, "[n]aming a municipal department as a defendant is not an appropriate means

18 of pleading a §1983 action against a municipality." Id. quoting Stump v. Gates, 777 F. Supp. 808,

19 816 (D. Colo. 1991). Therefore, Defendant MARIN COUNTY SHERIFF’S DEPARTMENT is an

20 improper party and should be dismissed from this action on that basis as well.

21

V.

22

THERE IS INSUFFICIENT EVIDENCE TO ESTABLISH SUPERVISORY

LIABILITY AGAINST SHERIFF DOYLE

23

24

Liability may be imposed on a supervisor under §1983 only if (1) the supervisor personally

25 participated in the deprivation of constitutional rights or (2) the supervisor knew of the violations

26 and failed to act to prevent them or (3) the supervisor implemented a policy “so deficient that the

27
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policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation.” Redman v. County of San Diego, 942 F. 2d 1435, 1446 (9th Cir. 1991), cert denied, 502

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1 U.S. 1074 (1992); Hansen v. Black, 885 F. 2d 642, 646 (9th Cir. 1989) (quoting Thompson v. Belt,

2 828 F. 2d 298, 304 (5th Cir. 1987); Taylor v. List, 880 F. 2d 1040, 1045 (9th Cir. 1989). With

3 respect to the latter, an unconstitutional policy cannot be proved by proof of a single incident “unless

4 proof of the incident includes proof that it was caused by an existing, unconstitutional policy.” City

5 of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24; 105 S.Ct. 2427 (1985).

6

Here, there is no evidence that Defendant SHERIFF DOYLE personally participated in the

7 alleged wrongdoing and/or knew of the alleged violations and failed to prevent them. Additionally,

8 as demonstrated above, there is no evidence that SHERIFF DOYLE implemented a policy that was

9 “so deficient that the policy itself is a repudiation of constitutional rights...” Furthermore, assuming

10 arguendo that Plaintiffs can establish a violation of their underlying constitutional rights, there is

11 no evidence that a policy implemented by SHERIFF DOYLE was the “moving force” behind the

12 violation. Defendants incorporate by reference the arguments set forth in sections III(A)(2) and

13 III(B)(1) above. Rather, the policies regarding strip searches and safety cells are constitutional on

14 their face. There also is no evidence of a widespread custom or practice of deputies at the Marin

15 County Jail engaging in conduct that violates the constitutional rights of the inmates. Defendants

16 incorporate by reference the arguments set forth in sections III(A)(3) and III(B)(2) above Thus

17 Plaintiffs cannot demonstrate supervisory liability against SHERIFF DOYLE. Therefore, Defendant

18 SHERIFF DOYLE respectfully requests that the Court grant Defendants’ Motion for Summary

19 Judgment.

20

VI.

21

SHERIFF DOYLE IS ENTITLED TO QUALIFIED IMMUNITY

22

Qualified immunity serves to shield public officials “from undue interference with their

23 duties and from potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806,

24 102 S.Ct. 2727 (1982). The defense provides immunity from suit, not merely from liability.

25 Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806 (1985). A plaintiff has the burden of proving

26 the rights he claims are clearly established. Davis v. Scherer, 468 U.S. 183, 197, 104 S.Ct. 3012

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(1984). Qualified immunity is a far-reaching protection for government officers which safeguards all but the plainly incompetent or those who knowingly violate the law. Malley v. Briggs, 475 U.S.

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1 335, 341, 106 S.Ct. 1092 (1986). If a reasonable public officer in the position of the defendant could

2 have believed that his conduct was lawful in light of clearly established case law and the information

3 he possessed at the time of incident at issue, he is protected from liability by qualified immunity.

4 Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534 (1991); Brosseau v. Haugen, 543 U.S. 194, 125

5 S.Ct. 596, 599-600 (2004); Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125, 1129

6 (9th Cir. 2002) (citations and quotations omitted).

7

In ruling on the issue of qualified immunity, a Court must first consider the threshold

8 question: “Taken in the light most favorable to the party asserting the injury, do the facts alleged

9 show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121

10 S. Ct. 2151 (2001). Then, the Court’s next step is to “ask whether the right was clearly established.”

11 Id. At this point, the qualified immunity inquiry has two parts: (1) Was the law governing the state

12 officials’ conduct clearly established? (2) Under that law, could a reasonable state official have

13 believed his conduct was lawful? Marquez v. Gutierrez, 322 F.3d. 689, 692 (9th Cir. 2003);

14 Brosseau, 125 U.S. at 201.

15

“Because the focus is on whether the officer had fair notice that her conduct was unlawful,

16 reasonableness is judged against the backdrop of the law at the time of the conduct.” Brosseau, 125

17 U.S. at 599. Additionally, “[i]f the law at the time did not clearly establish that officer’s conduct

18 would violate the Constitution, the officer should not be subject to liability, or, indeed, even the

19 burdens of litigation.” Id. (emphasis added). Specifically, in Brosseau, the United States Supreme

20 Court determined that plaintiff failed to cite to “particularized” or specific case law because none

21 of the three cases cited by the plaintiff “squarely governs the case here; they do not suggest that

22 Brosseau’s actions fell in the ‘hazy border’ between excessive and acceptable force.” Id.

23

In this case, SHERIFF DOYLE is entitled to qualified immunity. First, there is no evidence

24 that he personally participated in the alleged violations. Second, Plaintiffs cannot establish an

25 underlying constitutional violation. Therefore, Defendant SHERIFF DOYLE is entitled to qualified

26 immunity based on the first prong..

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LAW OFFICES OF
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Additionally, assuming arguendo Plaintiffs can demonstrate an underlying violation, there was no clearly established case law that would place a reasonable officer on notice that the actions

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1 of SHERIFF DOYLE were unlawful. First, regarding the strip-search policy and practices of the

2 Marin County Jail, the United States Supreme court addressed and upheld the practice of strip

3 searching all pre-trial inmates of a jail after contact visits without reasonable suspicion that the

4 particular detainee was concealing contraband in Bell v. Wolfish, 441 U.S. 520, 558-60 (1979),

5 discussed supra. Thereafter, the Ninth Circuit enumerated a limited exception to the rule

6 enumerated in Bell that prohibited strip searches of persons who were freshly arrested for minor

7 crimes unless there was reasonable suspicion that a particular person was concealing weapons or

8 contraband. See Giles, 746 F.2d 614; Kennedy, 901 F.2d 702; Fuller, 950 F.2d 1437, discussed

9 supra.

10

None of the case law regarding strip searches would place a reasonable officer on notice that

11 the policy or practice of the Marin County Jail regarding strip searches violates the Fourth and/or

12 Fourteenth Amendments. First, the policy and practice regarding strip searches follows the

13 exception to Bell that was set forth in Giles, Kenney and Fuller that prohibits strip searches of a

14 person arrested for minor crimes not including violence, drugs or weapons prior to his or her

15 arraignment, discussed supra. Additionally, the policy and practice includes additional protections

16 for these persons in the form of a requirement for documented supervisory approval, prohibits

17 viewing an arrestee during the “clothing exchange,” and prohibits conducting strip searches of

18 individuals arrested on crimes not involving violence, drugs or weapons even after they are placed

19 in general jail population. If anything, the policy and practices implemented by the Marin County

20 Jail includes the protections set forth in the case law and additionally protections that are not

21 mandated by that same, or any other, case law. Thus, the clearly established case law would not

22 place a reasonable officer on notice that the actions of SHERIFF DOYLE were unconstitutional; if

23 anything, it would instruct a reasonable officer that the policy of the Marin County Jail not only

24 complies with existing law, but also includes additional protections that are not mandated by any

25 existing law. Therefore, SHERIFF DOYLE is entitled to qualified immunity on the issue of strip

26 searches.

27
LAW OFFICES OF
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There also is no clearly established case law that would place a reasonable officer on notice that the policy or practice regarding placement of arrestees in safety cells was unconstitutional. First,

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1 the case law regarding placement of inmates in safety cells gives wide deference to the officers

2 making such a placement. See Anderson, 45 F.3d 1310; Hill, 311 F.3d 899, discussed supra. In this

3 case, the policy of the Marin Count Jail states “[i]nmates will be allowed to retain sufficient clothing,

4 or be provided with a suitably designed ‘safety garment’, to provide for their personal privacy unless

5 specific identifiable risks to the inmate’s safety or to the security of the facility are documented.”

6 This is consistent with the case-law regarding safety cell placements. Specifically, the case law

7 permits correctional officers to remove the clothing of an inmate when he or she is placed in a safety

8 cell. Anderson 45 F.3d at 1313. The case law also permits male officers to be present where a

9 female is uncooperative and unruly. See Hill 311 F.3d 903. Thus, the practice of the Marin County

10 Jail to require clothing exchange for a safety smock with suicidal inmates, with male officers present

11 in emergent circumstances, does not violate clearly established case law. Lastly, there is no evidence

12 that inmates are strip searched in connection with placement in safety cells. There was no case law

13 that would place a reasonable officer on notice that the policy of the Marin County Jail was so

14 deficient that it violates the constitutional rights of Plaintiffs CHATOIAN, TASCA and/or

15 RASMUSSEN.

16

Defendants respectfully submit that there is no evidence that demonstrates that the policies

17 or practices of the Marin County Jail are unconstitutional. Assuming arguendo that the policies or

18 practices are unconstitutional, there is no clearly established case law that would place a reasonable

19 officer on notice that those policies are unconstitutional. Therefore, SHERIFF DOYLE is entitled

20 to qualified immunity for the claims asserted in Count One and Count Two of Plaintiffs’ First

21 Amended Complaint.

22

VII.

23 PLAINTIFFS CHATOIAN, RASMUSSEN AND RUSSELL CANNOT ESTABLISH A VIOLATION OF STATE LAW
24

25

Penal Code section 4030 prohibits strip searches of certain individuals who are brought into

26 a jail facility. In this case, Plaintiffs CHATOIAN, RASMUSSEN and RUSSELL assert claims

27
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against SHERIFF DOYLE “for enacting and implementing policies that violate Penal Codes section 4030 and Civil Code section 52.1.” December 14, 2004 Order p. 19:16-20, Req. Jud. Not. Ex. A.

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1 Plaintiffs have already conceded that they “do not seek to hold Sheriff Doyle vicariously liable for

2 the actions of his subordinates (e.g. carrying out the strip searches and holding Plaintiffs in cells

3 naked.)” Id. Therefore, the only conduct relevant to the state law claims of Plaintiffs is that of

4 SHERIFF DOYLE in revising and implementing the policy regarding the conduct of strip searches.

5 A. 6

There Is No Evidence That Sheriff Doyle Enacted a Policy That Violates Penal Code Section 4030 Because the Policy Prohibits Strip Searches of Arrestees Who Are Charged with Crimes Not Involving Weapons, Controlled Substances or Violence

7

Penal Code section 4030 was enacted to regulate booking searches – i.e., the searches to

8 which all arrestees are subjected regardless of whether they will be released after booking.

9 Specifically, Penal Code section 4030(f) prohibits strip searching an individual arrested on a

10 misdemeanor offense not involving weapons, controlled substances or violence “prior to placement

11 in the general jail population” unless a peace officer has determined that there is reasonable

12 suspicion that the individual is concealing contraband. Cal.Penal.Code §4030(f). Additionally,

13 Penal Code section 4030(g) prohibits placement of certain individuals in the general jail population 14 unless three specific provisions have been met.6 See Cal.Penal.Code § 4030 (g).

15

Here, the written policy of the Marin County Jail does not violate Penal Code section 4030.

16 First, the policy prohibits strip searches of inmates who are arrested for offenses not involving

17 weapons, violence and/or narcotics. McQueeny Decl. Ex. A, p. §(a)(1). Additionally, when jail staff

18 conduct the “clothing exchange” that occurs when an inmate is “placed” in general jail population,

19 the inmate “may not be viewed, observed or monitored by any deputy or staff member during the

20 exchange and/or shower, unless there is reasonable suspicion that the inmate is concealing a weapon

21 or contraband.” Id. at p. 2. Thus, there is nothing in the policy which is inconsistent with the

22 provision of Penal Code section 4030 that prohibits strip searching an inmate arrested on a

23 misdemeanor offense not involving weapons, controlled substances or violence “prior to placement

24 in the general jail population.” Therefore, none of the actions of SHERIFF DOYLE, in his role in

25

26
27
LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

6 Other cases involving strip searches at county jails dispute whether “prior to placement in the general jail population” includes only physical placement in general population versus some point after the inmate is “classified” for general population but before actual physical delivery. See e.g. Bull v. City and County of San Francisco, Case No. 3:03-CV-01840 (N.D.Cal. September 22, 2005); Req. Jud. Not. Ex. B. In this case, however, it does not matter which reading the Court adopts because the policy prohibits strip searches in either case.

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Case 3:04-cv-02790-MJJ Document 45 Filed 01/11/2006 Page 29 of 31

1 revising and/or implementing the policy regarding the conduct of strip searches violates Penal Code

2 section 4030.

3

Additionally, Defendants submit that there is no evidence that the written policy of the Marin

4 County Sheriff’s Department violate any other provisions of Penal Code section 4030 regarding the

5 conduct of strip searches at the Marin County Jail. Therefore, SHERIFF DOYLE is entitled to

6 judgment as a matter of law for the claims of Plaintiff KORISSA RUSSELL arising out of her

7 alleged strip search at the Marin County Jail.

8 B. 9 10

There Is No Evidence That Sheriff Doyle Enacted a Policy That Violates Penal Code Section 4030 for the Claims of Plaintiffs CHATOIAN and RASMUSSEN That They Were Placed in a Safety Cell Because They Were Not “Strip Searched” as Contemplated by Penal Code Section 4030

11

Plaintiffs CHATOIAN and RASMUSSEN do not claim that they were strip searched prior

12 to placement in the general jail population. Rather, these two Plaintiffs claim that they were “strip

13 searched” when members of the Sheriff’s Department conducted a clothing exchange upon

14 placement into a safety cell.

15

Penal Code section 4030 does not prohibit deputies from conducting a “clothing exchange”

16 during the placement of an inmate into a safety cell. First, Penal Code section 4030 defines a “strip

17 search” as “a search which requires a person to remove or arrange some or all of his or her clothing

18 so as to permit visual inspection of the underclothing, breasts, buttocks, or genitalia of such person.”

19 Cal.Penal.Code §4030(c).

20

There is nothing in the policies of the Marin County Jail that violate this provision of Penal

21 Code section 4030. First, as demonstrated above, the strip search policy conforms with Penal Code

22 section 4030. Additionally, the policy regarding safety cell placements does not authorize the

23 conduct of a “strip search” outside the scope of the policy regarding strip searches. Specifically, the

24 only reference to removal of clothing is “[i]nmates will be allowed to retain sufficient clothing, or

25 be provided with a suitably designed ‘safety garment’, to provide for their personal privacy unless

26 specific identifiable risks to the inmates safety or security are documented.” McQueeny Decl. Ex.

27
LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

B, p. 2. Furthermore, the policy is in accord with the regulation promulgated by the California Board of Corrections that states “[i]nmates shall be allowed to retain sufficient clothing, or be provided

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Case 3:04-cv-02790-MJJ Document 45 Filed 01/11/2006 Page 30 of 31

1 with a suitably designed ‘safety garment,’ to provide for their persona privacy unless specific

2 identifiably risks to the inmate’s safety or to the security of the facility are documented.” Cal. Code

3 Regs. Tit. 15, §1055. Thus, the policy regarding strip searches only authorizes removal of clothing

4 where there are documented safety or security risks. Therefore, nothing in that policy falls within

5 the ambit of protected “strip searches” that are contemplated by Penal Code section 4030 because

6 the removal of clothing is not conducted “so as to permit visual inspection”, but rather is to address

7 specific documented safety and/or security concerns as set forth in title 15, section 1055 of the

8 California Code of Regulations.

9

Based on the foregoing, Defendants submit that there is no evidence that SHERIFF DOYLE

10 revised and/or implemented policies that violate Penal Code section 4030. Therefore, Defendants

11 respectfully submit that SHERIFF DOYLE is entitled to judgment as a matter of law on Count 4 of

12 Plaintiffs’ First Amended Complaint.

13 C. 14

There Is No Evidence That Sheriff Doyle Enacted Violated California Civil Code Section 52.1

15

Plaintiffs must demonstrate an underlying violation of state or federal law in order to prevail

16 on their claims for violation of California Civil Code section 52.1. See Cal.Civ.Code §52.1. As set

17 forth in sections III(A)-(B) and VIII(A)-(B) above, Plaintiffs have failed to establish an underlying

18 violation of a constitutional right and/or Penal Code section 4030. Therefore, Defendants

19 respectfully submit that there is no evidence to establish a violation of California Civil Code section

20 52.1 and, therefore, respectfully request that the court enter judgment as a matter of law on the

21 claims arising out of California Civil Code section 52.1 in Count 3 and Count 5 of Plaintiffs’ First

22 Amended Complaint.

23 D. There Is No Evidence That the County of Marin Violated State Law

24

Plaintiffs also assert claims for declaratory and injunctive relief against the COUNTY OF

25 MARIN for violations of state law.7 Defendants respectfully submit that there is no evidence and

26 Plaintiffs cannot establish that the COUNTY OF MARIN violated any provisions of state law.

27
LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

7
The Court previously ruled that Defendant COUNTY OF MARIN is immune from liability for damages arising out of claims asserted under state law. December 14, 2004 Order. Req. Jud. Not., Ex. A.

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Case 3:04-cv-02790-MJJ Document 45 Filed 01/11/2006 Page 31 of 31

1 Therefore, Defendants are entitled to judgment as a matter of law for the claims asserted in Count

2 Three, Count Four and Count Five of the First Amended Class Action Complaint.

3

VIII.

4

CONCLUSION

5

It is undisputed that Defendants’ policies, customs and/or practices regarding strip searches

6 and/or placement of inmates in safety cells do not violate the Fourth and/or Fourteenth Amendments.

7 In fact, as demonstrated above, the policies implemented by Defendants contain all of the protections

8 enumerated in the Ninth Circuit case law and additional protections that are not mandated by any

9 case law. It also is undisputed that Defendants have not violated any provisions of state law.

10 Therefore, Defendants DOYLE and COUNTY OF MARIN and are entitled to judgment as a matter

11 of law.

12 Dated: January 11, 2006

Respectfully submitted,

13

PORTER, SCOTT, WEIBERG & DELEHANT

14

A Professional Corporation

15

By /s/ Terence J. Cassidy

16

Terence J. Cassidy

Keith E. Nourot

17

Attorney for Defendants COUNTY OF

MARIN, MARIN COUNTY SHERIFF’S

18

DEPT., and SHERIFF ROBERT T. DOYLE

19

20

21

22

23

24

25

26

27
LAW OFFICES OF
28 PORTER, SCOTT,
WEIBERG & DELEHANT
A PR O FESSIO N AL C O R PO R AT IO N 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
P .O . B O X 2 5 5 4 2 8
SACRAMENTO, CA 95865 (916) 929-1481
www.pswdlaw.com

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 Case 3:04-cv-02790-MJJ Document 1 Filed 07/12/2004 Page 1 of 14

1 LAW OFFICES OF MARK E. MERIN Mark E. Merin, SBN. 043849
2 Jeffrey I. Schwarzschild, SBN. 192086 2001 P Street, Suite 100
3 Sacramento, California 95814 Telephone: (916) 443-6911
4 Facsimile: (916) 447-8336 Email: mark@markmerin.com
5 CASPER, MEADOWS & SCHWARTZ
6 Andrew C. Schwartz, SBN 64578 2121 North California Blvd., Suite 1020
7 Walnut Creek, CA 94596 Telephone: (925) 947-1147
8 Facsimile: (925) 947-1131 Email: schwartz@cmslaw.com
9 Attorneys for Plaintiffs
10 —o0o—
11 UNITED STATES DISTRICT COURT
12 NORTHERN DISTRICT OF CALIFORNIA
13 —o0o—
14

DARCELLE L. CHATOIAN, CYNTHIA 15 TASCA, and all others similarly situated,

16

Plaintiffs,

17 vs.

CASE NO: CLASS ACTION COMPLAINT DEMAND FOR JURY TRIAL

18 COUNTY OF MARIN, MARIN COUNTY SHERIFF’S DEPARTMENT, MARIN COUNTY
19 SHERIFF ROBERT T. DOYLE, Individually and in His Official Capacity, MARIN COUNTY
20 SHERIFF’S DEPUTIES DOES 1 THROUGH 100, and ROES 1 THROUGH 20, INCLUSIVE,
21

Defendants. 22

23 24 \\\ 25 \\\ 26 \\\

DARCELLE L. CHATOIAN, et al. v. COUNTY OF MARIN, et al.

Page 1 of 14 CLASS ACTION COMPLAINT

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Case 3:04-cv-02790-MJJ Document 1 Filed 07/12/2004 Page 2 of 14

1 PLAINTIFFS ALLEGE:

2

INTRODUCTION

3

This is an action for declaratory and injunctive relief, damages, and punitive damages against

4 the COUNTY OF MARIN, MARIN COUNTY SHERIFF’S DEPARTMENT, MARIN COUNTY

5 SHERIFF ROBERT T. DOYLE, Individually and in His Official Capacity, MARINE COUNTY

6 SHERIFF’S DEPUTIES sued under their fictitious names as DOES 1 THROUGH 100, and ROES 1

7 THROUGH 20, for violations of plaintiffs’ constitutional rights resulting from application of Marin

8 County’s and the Sheriff’s policies, practices, and customs concerning the use of strip searches and

9 visual body cavity searches in Marin County Jails. Plaintiffs seek an order declaring illegal

10 defendants’ policy of subjecting detainees in their custody to strip and visual body cavity searches

11 before they are arraigned and without having any reasonable suspicion that the searches will be

12 productive of contraband.

13

Defendants’ strip search and visual body cavity search policies, practices, and customs violate

14 plaintiffs’ rights secured to them by the Fourth and Fourteenth Amendments to the United States

15 Constitution and entitle plaintiffs to recover damages under the Federal Civil Rights Act (42 U.S.C. §

16 1983).

17

Additionally, plaintiffs include supplemental claims under California state law against

18 defendants: 1) for violation of California Penal Code § 4030 which prohibits pre-arraignment strip

19 searches of most misdemeanants and provides for minimum damages of $1,000 for each illegal search;

20 and 2) for violation of the Bane Civil Rights Act (California Civil Code § 52 and § 52.1(b)) pursuant

21 to which each plaintiff denied a statutory, state, federal, or constitutional right is entitled to recover a

22 minimum of $4,000 for each violation.

23

JURISDICTION

24

1. This action is brought pursuant to 42 USC §§ 1983 and 1988, and the Fourth and

25 Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon 28 USC §§

26 1331 and 1341(3) and (4) and the aforementioned statutory and constitutional provisions.

DARCELLE L. CHATOIAN, et al. v. COUNTY OF MARIN, et al.

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1

2. The court has supplemental jurisdiction over plaintiffs’ state claims under 28 USC §

2 1367(a).

3

3. The amount in controversy exceeds $10,000, excluding interest and costs.

4

PARTIES

5

4. Plaintiff DARCELLE L. CHATOIAN, and CYNTHIA TASCA, and all those similarly

6 situated, are, and at all material times herein, were citizens of the United States and residents of the

7 state of California who were arrested within the period beginning three (3) years before June 23, 2003,

8 and continuing to this date, and who were subjected to strip and/or visual body cavity searches at a

9 Marin County Jail (hereinafter referred to as the “Marin County Jail”), prior to being arraigned and/or

10 without the defendants first having, and recording in writing, a reasonable suspicion that the searches

11 would be productive of contraband or weapons.

12

5. Some plaintiffs, including DARCELLE L. CHATOIAN and CYNTHIA TASCA, were

13 confined by defendants, after they were strip searched, in cells nude in violation of state statues and the

14 state and federal statutory and constitutions.

15

6. Defendant MARIN COUNTY SHERIFF ROBERT T. DOLYE is, and at all material

16 times referred to herein, was the duly elected Sheriff of the COUNTY OF MARIN, responsible for

17 administering the Jail facilities and for making, overseeing, and implementing the policies, practices,

18 and customs challenged herein relating to the operation of the Marin County Jail. He is sued in his

19 individual and official capacities.

20

7. Defendants MARIN COUNTY SHERIFF DEPUTIES sued herein by their fictitious

21 names (Does 1 through 100) are all deputies who, as part of their duties at the Marin County Jail,

22 subjected plaintiffs to pre-arraignment strip and/or visual body cavity searches without having, and

23 recording in writing, a reasonable suspicion that the searches would be productive of contraband or

24 weapons. Furthermore, Defendants MARIN COUNTY SHERIFF DEPUTIES sued herein by their

25 fictitious names (Does 1 through 100) are all deputies who, as part of their duties at the Marin County

26 Jail, confined plaintiffs in cells nude following strip searching said plaintiffs.

DARCELLE L. CHATOIAN, et al. v. COUNTY OF MARIN, et al.

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Case 3:04-cv-02790-MJJ Document 1 Filed 07/12/2004 Page 4 of 14

1

8. At all material times mentioned herein, each of the defendants was acting under the

2 color of law, to wit, under color of statutes, ordinances, regulations, policies, customs and usages of

3 the state of California, the COUNTY OF MARIN and/or the MARIN COUNTY SHERIFF’S

4 DEPARTMENT.

5

9. Defendants whose names are not now known and who are sued by the fictitious names

6 of ROES 1 through 20, are all agents and/or employees of one or another of the other named

7 defendants who ordered, condoned, authorized, covered up, or were otherwise associated with the

8 implementation of the illegal policy and practices relating to strip searches and nude confinement

9 complained of herein.

10

10. Defendant COUNTY OF MARIN is, and at all material times referred to herein, was a

11 division of the state of California, that maintained or permitted an official policy or custom or practice

12 causing or permitting the occurrence of the types of wrongs complained of herein, which wrongs

13 damaged plaintiffs as herein alleged. Plaintiffs’ allegations against the COUNTY are based on acts

14 and omissions of the SHERIFF and his DEPUTIES and on acts and omissions of persons who are

15 COUNTY employees, and on the COUNTY’S breach of its duty to protect plaintiffs from the

16 wrongful conduct of said persons and employees.

17

11. Defendants MARIN COUNTY SHERIFF’S DEPARTMENT and MARIN COUNTY

18 SHERIFF ROBERT T. DOYLE, in his Individual and Official Capacity, also maintained or permitted

19 an official policy or custom of causing or permitting the occurrence of the types of wrongs complained

20 of herein, which wrongs damaged plaintiffs as herein alleged.

21

12. Class action plaintiffs are those similarly situated who, during the period beginning

22 three (3) years before June 23, 2003, and continuing to this date, were subjected by defendants to pre-

23 arraignment strip and/or visual body cavity searches without defendants having, and recording in

24 writing, a reasonable suspicion that the searches would be productive of contraband or weapons.

25 Some of the similarly situated plaintiffs were confined by defendants naked in cells following their

26 having been subjected to strip and/or visual body cavity searches.

DARCELLE L. CHATOIAN, et al. v. COUNTY OF MARIN, et al.

Page 4 of 14 CLASS ACTION COMPLAINT

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Case 3:04-cv-02790-MJJ Document 1 Filed 07/12/2004 Page 5 of 14

1

FACTS

2

13. On or about November 2, 2003, plaintiff DARCELLE L. CHATOIAN (hereinafter

3 referred to as “plaintiff” or “CHATOIAN”) was arrested for allegedly driving under the influence in

4 Mill Valley, California. Plaintiff CHATOIAN was taken to the Marin County Jail in San Rafael,

5 California, where all of her clothing was forcibly removed by three (3) male officers and she was

6 subjected to a visual body cavity search then placed in a cell, nude, for six (6) hours until she was

7 removed and released from custody.

8

14. On or about late July or early August 2003, plaintiff CYNTHIA TASCA (hereinafter

9 referred to as “plaintiff” or “TASCA”) was arrested allegedly for disturbing the peace, a misdemeanor,

10 and transported to the Marin County Jail where she was directed to remove all of her clothes to be strip

11 searched. When she refused to remove her clothes she was forcibly strip searched and confined, nude,

12 in a cell, prior to her arraignment.

13

15. Within six (6) months of her arrest, plaintiff CHATOIAN filed a group Government

14 Tort Claim for herself and for all persons similarly situated (a copy of said claim is attached hereto as

15 Exhibit “A”, and incorporated herein to the extent relevant by this reference). Plaintiff CHATOIAN’s

16 group claim was denied on or about March 3, 2004, allowing the filing of this complaint or state

17 statute and constitutional violations.

18

16. Within six (6) months of her arrest, plaintiff TASCA filed a Government Tort Claim (a

19 copy of said claim is attached hereto as Exhibit “B”, and incorporated herein to the extent relevant by

20 this reference). Plaintiff TASCA’s claim was denied on or about January 13, 2004, allowing the filing

21 of this complaint or state statute and constitutional violations.

22

17. Plaintiffs are informed and therefore allege, that defendants routinely follow their

23 policy, practice, and custom of subjecting pre-arraignment detainees, including plaintiffs, to strip and

24 visual body cavity searches without having, and recording in writing, a reasonable suspicion that the

25 search will be productive of contraband or weapons.

26 \\\

DARCELLE L. CHATOIAN, et al. v. COUNTY OF MARIN, et al.

Page 5 of 14 CLASS ACTION COMPLAINT

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Case 3:04-cv-02790-MJJ Document 1 Filed 07/12/2004 Page 6 of 14

1

18. Plaintiffs are further informed and believe, and thereon allege, that defendants routinely

2 follow their policy, practice and custom of confining detainees, including plaintiffs, naked in cells

3 following subjecting them to visual body cavity searches.

4

19. Plaintiffs are informed and believe, and thereon allege, that defendants have the ability

5 to identify all such similarly situated plaintiffs, specifically those who, while in defendants’ custody, at

6 the Marin County Jail since June 23, 2000, were subjected to strip searches and/or visual body cavity

7 searches prior to arraignment without defendants having first, and recording, a reasonable suspicion

8 that the searches would be productive of contraband or weapons.

9

20. Defendant MARIN COUNTY SHERIFF ROBERT T. DOYLE is personally

10 responsible for the promulgation and continuation of the strip search policy, practice, and custom

11 pursuant to which some of the plaintiffs herein were subjected to the searches complained of herein.

12

21. As a result of being subjected to the searches complained of herein, plaintiff, and each

13 of the persons similarly situated, suffered physical, mental, and emotional distress, invasion of privacy,

14 and violation of due process of law and state and federal statutory and constitutional rights, and is

15 entitled to recover damages according to proof but, at a minimum, $1,000 as specified in California

16 Penal Code § 4030(p) and $4,000 as specified in California Civil Code § 52 and § 52.1(b).

17

22. As a result of being confined, naked, in a cell as complained of herein, following being

18 strip searched, each of the plaintiffs suffered physical, mental, and emotional distress and violation of

19 due process of law and state and federal statutory and constitutional rights, and is entitled to recover

20 damages according to proof, but a minimum of $4,000 as specified in California Civil Code § 52 and §

21 52.1(b).

22

CLASS CLAIMS

23

23. The strip and visual body cavity searches to which plaintiffs were subjected were

24 performed pursuant to policies, practices, and customs of defendants MARIN COUNTY SHERIFF

25 ROBERT T. DOYLE, MARIN COUNTY SHERIFF’S DEPARTMENT, COUNTY OF MARIN, the

26 individual SHERIFF’S DEPUTIES sued herein by the fictitious names 1 through 100, and the

DARCELLE L. CHATOIAN, et al. v. COUNTY OF MARIN, et al.

Page 6 of 14 CLASS ACTION COMPLAINT

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Case 3:04-cv-02790-MJJ Document 1 Filed 07/12/2004 Page 7 of 14

1 individuals whose names are not now known and who are sued by the fictitious names of ROES 1

2 through 20. The searches complained of herein were performed without regard to the nature of the

3 alleged offense for which plaintiffs had been arrested, without regard to whether or not plaintiffs were

4 eligible for cite and release under Penal Code § 853.6, without regard to whether or not plaintiffs were

5 eligible for and/or were released on their own recognizance. Furthermore, the searches complained of

6 herein were performed without defendants having a reasonable belief that the plaintiffs so searched

7 possessed weapons or contraband, or that there existed facts supporting a reasonable belief that the

8 searches would produce contraband, and those facts being articulated and recorded in a supervisor-

9 approved document.

10

24. Plaintiffs bring this action on their own behalf and on behalf of all persons similarly

11 situated pursuant to Rule 23, Federal Rules of Civil Procedure and California Code of Civil Procedure

12 § 382.

13

25. The class is defined to include all persons who, in the period from and including June

14 23, 2000, to the present and continuing until this matter is adjudicated and the practices complained of

15 herein cease, were arrested and subjected to a pre-arraignment strip and/or visual body cavity search at

16 the Marin County Jail without defendants having, and recording, a reasonable suspicion that the search

17 would be productive of contraband or weapons.

18

26. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the members of the

19 class are so numerous that joinder of all members is impractical. Plaintiffs do not know the exact

20 number of class members. Plaintiffs are informed and believe, and thereupon allege, that there are

21 more than 10 persons per day who are arrested by defendants and/or in the custody of defendants and

22 subjected to the searches complained of herein as a result of defendants’ policy, practice, and custom

23 relating to said searches.

24

27. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are informed

25 and believe, and thereupon allege, that there are many questions of fact common to the class including,

26 but not limited to: (1) whether defendants routinely subject all persons arrested to visual body cavity

DARCELLE L. CHATOIAN, et al. v. COUNTY OF MARIN, et al.

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Case 3:04-cv-02790-MJJ Document 1 Filed 07/12/2004 Page 8 of 14

1 searches prior to arraignment if they intend such persons to be housed in the Marin County Jail; (2)

2 whether persons are subjected to visual body cavity searches prior to arraignment without there being

3 any reasonable suspicion, based on specific or articulable facts, to believe any particular arrestee has

4 concealed drugs, weapons, and/or contraband in bodily cavities which could be detected by means of a

5 visual body cavity search; (3) whether the visual body cavity searches are conducted in an area of

6 privacy so that the searches cannot be observed by persons not participating in the searches, or whether

7 the visual body cavity searches are conducted in groups and/or in open areas where they may be

8 observed by persons not participating in the searches; and, (4) whether the visual body cavity searches

9 are reasonably related to defendants’ penological interest to maintain the security of the jail and

10 whether or not there are less intrusive methods for protecting any such interest.

11

28. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are informed

12 and believe, and thereupon allege, that there are many questions of law common to the class including,

13 but are not limited to: (1) whether defendants may perform visual body cavity searches on persons

14 prior to their arraignment without reasonable suspicion, based on specific or articulable facts, to

15 believe any particular inmate has concealed drugs, weapons and/or contraband which would likely be

16 discovered by a visual body cavity search; (2) whether defendants may perform visual body cavity

17 searches on persons without first reasonably relating the use of the visual body cavity search to

18 defendants’ penological interest to maintain the security of the jail and determining if there is a less

19 intrusive method to protect that interest; (3) whether visual body cavity searches may be conducted in

20 areas where the search can be observed by people not participating in the search without violating

21 plaintiffs’ State and Federal constitutional rights and the protections afforded to plaintiffs under

22 California Penal Code section 4030; and, (4) whether or not defendants’ strip search policy and

23 procedure is in accordance with the State and/or Federal Constitution.

24

29. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the claims of the

25 representative plaintiffs are typical of the class. Plaintiffs were searched, prior to arraignment, without

26 reasonable suspicion that a strip or visual body cavity search would produce drugs, weapons or

DARCELLE L. CHATOIAN, et al. v. COUNTY OF MARIN, et al.

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1 contraband (and without the facts supporting any such suspicion being articulated in a supervisor-

2 approved writing), and named plaintiffs were placed in cells, nude, for extended periods of time (in

3 excess of one hour). Representative plaintiffs have the same interests and suffered the same type of

4 injuries as all of the class members. Plaintiffs’ claims arose because of defendants’ policy, practice,

5 and custom of subjecting arrestees to strip and/or visual body cavity searches before arraignment

6 without having, and recording in writing, a reasonable suspicion that the search would be productive of

7 contraband or weapons. Additionally, plaintiffs, in accordance with defendants’ policy, practice, and

8 custom, were improperly and unjustifiably confined, nude, in cells for extended periods of time.

9 Plaintiffs’ claims are based upon the same legal theories as the claims of the class members. Each

10 class member suffered actual damages either as a result of being subjected to a visual body cavity

11 search and/or as a result of being improperly and unjustifiably placed and confined in a cell nude. The

12 actual damages suffered by representative plaintiffs are similar in type and amount to the actual

13 damages suffered by each class member.

14

30. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the representative

15 plaintiffs will fairly and adequately protect the class interests. Plaintiffs’ interests are consistent with

16 and not antagonistic to the interests of the class.

17

31. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(A), prosecutions of

18 separate actions by individual members of the class would create a risk that inconsistent or varying

19 adjudications with respect to individual members of the class would establish incompatible standards

20 of conduct for the parties opposing the class.

21

32. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(B), prosecutions of

22 separate actions by individual members of the class would create a risk of inconsistent adjudications

23 with respect to individual members of the class which would, as a practical matter, substantially impair

24 or impede the interests of the other members of the class to protect their interests.

25

33. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(2), plaintiffs are

26 informed and believe, and thereupon allege, that defendants have acted on grounds generally

DARCELLE L. CHATOIAN, et al. v. COUNTY OF MARIN, et al.

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1 applicable to the class, thereby making appropriate the final injunctive or declaratory relief with

2 respect to the class as a whole.

3

34. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), this class action is

4 superior to other available methods for the fair and equitable adjudication of the controversy between

5 the parties. Plaintiffs are informed and believe, and thereupon allege, that the interests of members of

6 the class in individually controlling the prosecution of a separate action is low, in that most class

7 members would be unable individually to prosecute any action at all. Plaintiffs are informed and

8 believe, and thereupon allege, that the amounts at stake for individuals are so small that separate suits

9 would be impracticable. Plaintiffs are informed and believe, and thereupon allege, that most members

10 of the class will not be able to find counsel to represent them. Plaintiffs are informed and believe, and

11 thereupon allege, that it is desirable to concentrate all litigation in one forum because all of the claims

12 arise in the same location; i.e., the MARIN COUNTY JAIL. It will promote judicial efficiency to

13 resolve the common questions of law and fact in one forum, rather than in multiple courts.

14

35. Plaintiffs do not know the identities of all of the class members. Plaintiffs are informed

15 and believe, and thereupon allege, that the identities of the class members may be ascertained from

16 records maintained by the COUNTY OF MARIN and defendant SHERIFF ROBERT T. DOYLE and

17 defendant MARIN COUNTY SHERIFF’S DEPARTMENT. Plaintiffs are informed and believe, and

18 thereupon allege, that defendants’ records reflect the identities, including addresses and telephone

19 numbers, of the persons who have been held in custody in the Marin County Jails. Plaintiffs are

20 informed and believe, and thereupon allege, that records of, and maintained by defendants reflect who

21 was subject to a strip and/or visual body cavity search, when the search occurred, where the search

22 occurred, whether any reasonable suspicion for the search existed and was recorded in a supervisor-

23 approved writing, when persons searched were arraigned, the charges on which such persons were

24 arrested, whether persons were confined in cells nude, the justification recorded for placing individuals

25 in cells nude, how long individuals remained in cells nude, and what treatment they received while so

26 confined. Plaintiffs are informed and believe, and thereupon allege, that all of the foregoing

DARCELLE L. CHATOIAN, et al. v. COUNTY OF MARIN, et al.

Page 10 of 14 CLASS ACTION COMPLAINT

USDC, Northern District, Case No. ________________

Case 3:04-cv-02790-MJJ Document 1 Filed 07/12/2004 Page 11 of 14

1 information is contained in defendants’ computer system and that the information necessary to identify

2 the class members, by last known addresses, and the dates and reasons for their arrests and/or release

3 from custody, is readily available from said computer system.

4

36. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), class members

5 must be furnished with the best notice practicable under the circumstances, including individual notice

6 to all members who can be identified through reasonable effort. Plaintiffs are informed and believe,

7 and thereupon allege, that defendants’ computer records contain a last known address for class

8 members. Plaintiffs contemplate that individual notice will be given to class members at such last

9 known address by first class mail. Plaintiffs contemplate that the notice will inform class members of

10 the following:

11

i. The pendency of the class action and the issues common to the class;

12

ii. The nature of the action;

13

iii. Their right to “opt out” of the action within a given time, in which event they

14

will not be bound by a decision rendered in the class action;

15

iv. Their right, if they do not “opt out,” to be represented by their own counsel and

16

to enter an appearance in the case; otherwise they will be represented by the

17

named class plaintiffs and their counsel; and

18

v. Their right, if they do not “opt out,” to share in any recovery in favor of the

19

class, and conversely to be bound by any judgment on the common issues

20

adverse to the class.

21

COUNT ONE

(Violation of Fourth and Fourteenth Amendments to the U.S. Constitution

22

on behalf of Plaintiffs and all persons similarly situated)

23

37. Defendants’ policies, practices, and customs regarding the strip and visual body cavity

24 searches complained of herein violated plaintiffs’ rights under the Fourth Amendment to be free from

25 unreasonable searches and seizures, violated said plaintiffs’ rights to due process and privacy under the

26

DARCELLE L. CHATOIAN, et al. v. COUNTY OF MARIN, et al.

Page 11 of 14 CLASS ACTION COMPLAINT

USDC, Northern District, Case No. ________________

Case 3:04-cv-02790-MJJ Document 1 Filed 07/12/2004 Page 12 of 14

1 Fourteenth Amendment, and directly and proximately damaged plaintiffs as herein alleged, entitling

2 plaintiffs to recover damages for said constitutional violations pursuant to 42 U.S.C. § 1983.

3

WHEREFORE, plaintiffs pray for relief as hereunder appears.

4

COUNT TWO

(Violation of the Fourth and Fourteenth Amendments to U.S. Constitution, 42 U.S.C. § 1983,

5

on behalf of Plaintiffs and all persons similarly situated)

6

38. Defendants’ policies, practices, and customs regarding confining persons in cells nude

7 as complained of herein violated plaintiffs’ Fourth Amendment right to be free from unreasonable

8 searches and seizures and plaintiffs’ rights to due process under the Fourteenth Amendment, and

9 directly and proximately damaged plaintiffs as herein alleged, entitling plaintiffs to recover damages

10 for said constitutional violations pursuant to 42 U.S.C. § 1983, in addition to other damages.

11

WHEREFORE, plaintiffs pray for relief as hereunder appears.

12

COUNT THREE

(California State Unruh Civil Rights Act, Civil Code §§ 52 and 52.1,

13

on behalf of Plaintiffs and all persons similarly situated)

14

39. Defendants’ policies, practices, and customs regarding the strip and visual body cavity

15 searches complained of herein violated plaintiffs’ rights to privacy as secured by Article I, Section 1 of

16 the California Constitution and directly and proximately damaged plaintiffs as herein alleged, entitling

17 said plaintiffs to recover a minimum of $4,000 each pursuant to California Civil Code § 52.1 and § 52,

18 in addition to other damages.

19

WHEREFORE, plaintiffs pray for relief as hereunder appears.

20

COUNT FOUR

(Violation of California Penal Code § 4030,

21

California State Unruh Civil Rights Act, Civil Code §§ 52 and 52.1,

on behalf of Plaintiffs and all persons similarly situated)

22

23

40. Defendants’ policies, practices, and customs regarding the strip and visual body cavity

24 searches complained of herein violated rights secured to plaintiffs under California Penal Code § 4030

25 and directly and proximately damaged plaintiffs as herein alleged, entitling said plaintiffs to recover a

26 minimum of $1,000 each pursuant to California Penal Code § 4030(p), and to further minimum

DARCELLE L. CHATOIAN, et al. v. COUNTY OF MARIN, et al.

Page 12 of 14 CLASS ACTION COMPLAINT

USDC, Northern District, Case No. ________________

Case 3:04-cv-02790-MJJ Document 1 Filed 07/12/2004 Page 13 of 14

1 damages of $4,000 each pursuant to California Civil Code § 52.1 and § 52, in addition to other

2 damages.

3

WHEREFORE, plaintiffs pray for relief as hereunder appears.

4

COUNT FIVE

(California State Bane Act, Civil Code §§ 52 and 52.1,

5

on behalf of all plaintiffs similarly situated)

6

41. Defendants’ policies, practices, and customs regarding their confining persons in cells

7 nude as complained of herein has violated plaintiffs’ rights to due process of law and freedom from

8 unreasonable searches and seizures as secured by the California Sate Constitution, Article I, Section

9 24, and directly and proximately damaged plaintiffs as herein alleged, entitling each said plaintiff to

10 recover a minimum of $4,000 each pursuant to California Civil Code § 52.1 and § 52, in addition to

11 other damages.

12

WHEREFORE, plaintiffs pray relief as hereunder appears.

13

PRAYER FOR RELIEF

14

WHEREFORE, plaintiffs seek judgment as follows:

15

1. For declaratory and injunctive relief declaring illegal and enjoining, preliminarily and

16 permanently, defendants’ policies, practices, and customs of subjecting pre-arraignment detainees to

17 strip and visual body cavity searches without having a reasonable suspicion that such searches would

18 be productive of contraband or weapons and of using the “cold rooms” to compel compliance or to

19 punish detainees.

20

2. Certification of the action as a class action;

21

3. For compensatory, general, and special damages for each representative and for each

22 member of the class of plaintiffs, as against all defendants;

23

4. Exemplary damages as against each of the individual defendants in an amount sufficient

24 to deter and to make an example of those defendants;

25

5. In addition to compensatory and statutory damages as allowed by law, at least $4,000

26 for each plaintiff pursuant to California Civil Code § 52.1 and § 52;

DARCELLE L. CHATOIAN, et al. v. COUNTY OF MARIN, et al.

Page 13 of 14 CLASS ACTION COMPLAINT

USDC, Northern District, Case No. ________________

Case 3:04-cv-02790-MJJ Document 1 Filed 07/12/2004 Page 14 of 14

1

6. Attorneys’ fees and costs under 42 U.S.C. § 1988, California Civil Code § 52(b)(3),

2 California Civil Code § 52.1(h), and California Code of Civil Procedure § 1021.5; and

3

7. The cost of this suit and such other relief as the court finds just and proper.

4 A JURY TRIAL IS HEREBY DEMANDED.

5 DATED: July 13, 2004

Respectfully submitted,

6

LAW OFFICE OF MARK E. MERIN and

CASPER, MEADOWS & SCHWARTZ

7

8 9 10 S:\WpWork\Strip Search Cases\Marin County\Pleadings\Complaint.wpd

BY: Mark E. Merin Attorney for Plaintiffs

11

12

13

14

15

16

17

18

19

20

21

22

23

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25

26

DARCELLE L. CHATOIAN, et al. v. COUNTY OF MARIN, et al. F:\WPWORK\MCNULTY\PLEADING\COMPLAIN.DOC

Page 14 of 14 CLASS ACTION COMPLAINT

USDC, Northern District, Case No. ________________

 
 Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 1 of 22

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3

RICHARD W. WIEKING

CLERK, U.S. DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9 DARCELLE CHATOIAN, ET AL.,
10 Plaintiffs
11 v.
12 COUNTY OF MARIN, ET AL.
13 14 _ _ _ _ _De_fen_ dan_ts _ _ _ _ _1

No. C-04-2790 MJJ
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

15

16

INTRODUCTION

17

Before the Court is a motion to dismiss brought by Defendants County of Marin and Robert

18 T. Doyle in this section 1983 case concerning intake and housing procedures at the Marin County

19 Jail. Plaintiffs oppose the motion. For the reasons set forth below, the Court GRANTS IN PART

20 and DENIES IN PART Defendants' motion.

21

FACTUAL BACKGROUND

22

Plaintiffs Darcelle Chatoian and Cynthia Tasca allege that as prearraignment detainees at

23 Marin County Jail, they were strip searched, subjected to visual body cavity searches, and placed

24 naked in cells, pursuant to the policies and practices ofthe entity Defendants, as implemented by the

25 individual Defendants. Plaintiffs claim that no reasonable suspicion existed that they possessed

26 weapons or contraband.

27

On July 12, 2004, Plaintiffs filed a Complaint against Defendants County of Marin, the

28 Marin County Sheriffs Department, Marin County Sheriff Robert T. Doyle (in both his individual

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 2 of 22

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1 and official capacities), and unnamed Marin County Sheriffs Deputies. Against all Defendants,

2 Plaintiffs allege that their treatment at the Marin County Jail violated their Fourth and Fourteenth

3 Amendment rights, recoverable under 42 U.S.C. section 1983. Plaintiffs also allege that their

4 treatment violated California Civil Code sections 52 and 52.1 and California Penal Code section

5 4030.

6

Defendants Robert T. Doyle and the County of Marin filed the instant motion to dismiss,

7 arguing, under several different theories, that said Defendants are immune from liability. Defendants

8 also contend that Plaintiffs' claims are time-barred under California Government Code section

9 335.1. Additionally, Defendants move for a more definite statement, pursuant to Federal Rule of

10 Civil Procedure 12(e), regarding Plaintiffs' allegations that the class period includes all persons

11 injured on or since June 23, 2000.

12

At the October 19, 2004 hearing on the instant motion, the Court asked the parties to submit

13 supplemental briefing on certain provisions of the California Code of Regulations, raised by defense

14 counsel at oral argument, and on whether the immunities set forth in the California Tort Claims Act

15 adhere, if at all, to public employees sued in their individual, as well as their official capacities. This

16 Order reflects the Court's careful consideration of the parties' arguments as submitted in their initial

17 briefing, at oral argument, and in their supplemental briefing.

18

LEGAL STANDARD

19

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the claims asserted in the

20 complaint. See Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337 (9th Cir. 1996). Dismissal of an

21 action pursuant to Rule 12(b)(6) is appropriate only where it "appears beyond doubt that the plaintiff

22 can prove no set of facts in support of his claim which would entitle him to relief." Levine v.

23 Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41,

24 45-6 (1957)). In reviewing such a motion, the Court must assume all factual allegations to be true

25 and must construe them in the light most favorable to the nonmoving party. See North Star v.

26 Arizona Corp. Comm., 720 F.2d 578, 580 (9th Cir. 1983). The Court will dismiss the complaint or

27 any claim in it without leave to amend only if "it is absolutely clear that the deficiencies of the

28 complaint could not be cured by amendment." Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

2

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 3 of 22

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1 In the context of a motion to dismiss, review is limited to the contents ofthe complaint. Allarcom

2 Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). However, matters

3 properly presented to the court, such as those attached to the complaint and incorporated within its

4 allegations, may be considered as part of the motion to dismiss. See Hal Roach Studios, Inc. v.

5 Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).

6

Motions to dismiss for failure to state a claim "are generally viewed with disfavor." Ramos,

7 857 F. Supp. at 704. "Each averment of a pleading shall be simple, concise, and direct." FED. R.

8 CIv. PROC. § 8(e)(I). Under this liberal pleading standard, "a complaint should not be dismissed

9 unless it appears 'beyond doubt' that plaintiff can prove no set offacts in support ofthe claim which

10 would entitle him or her to relief." Ramos, 857 F. Supp. at 704 (quoting Conley v. Gibson, 355 U.S.

11 41,45-46 (1957)). Moreover, courts must assume that all general allegations "embrace whatever

12 specific facts might be necessary to support them." Peloza v. Capistrano Unified School Dist., 37

13 F.3d 517, 521 (9th Cir. 1994).

14

If a pleading to which a responsive pleading is permitted is so vague and ambiguous that a

15 party cannot reasonably be required to frame a responsive pleading, the party may move for a more

16 definite statement before interposing a responsive pleading. FED. R. ClV. PROC. 12(e).

17

ANALYSIS

18 I.

Eleventh Amendment Immunity

19

As a threshold matter, the Court must determine whether or not Sheriff Robert T. Doyle is a

20 state actor such that he is immune, pursuant to the Eleventh Amendment, from section 1983 liability.

21

A. Sheriff Robert T. Doyle Is Not Immune From Section 1983 Liability.

22

Sovereign immunity under the Eleventh Amendment creates a subject matter jurisdictional

23 hurdle for plaintiffs suing state governments in federal court. See Pennhurst State School & Hasp. v.

24 Halderman, 465 U.S. 89, 98 (1984) (declaring that "the principle of sovereign immunity is a

25 constitutional limitation on the federal judicial power established in Art. III"). Specifically, "[t]he

26 Eleventh Amendment bars suits which seek either damages or injunctive relief against a state, an

27 'arm of the state,' its instrumentalities, or its agencies." Franceschi v. Schwartz, 57 F.3d 828, 831

28 (9thCir. 1995) (citing Durning v. Citibank, NA., 950F.2d 1419,1422-23 (9thCir. 1991)). The

3

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 4 of 22

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1 Supreme Court has held that an individual defendant acting in his official capacity receives the same

2 immunity as the government agency for which he works. Hafer v. Melo, 502 U.S. 21, 25 (1991).

3 This means that individuals acting as policymakers on behalf of a state cannot be liable under section

4 1983. McMillan v. Monroe County. Alabama, 520 U.S. 781 (1998).

5

Here, Defendants contend that Defendant Robert Doyle, the Sheriff of Marin County, is a

6 policy maker for the State of California, not for the County of Marin, and that as such, he has

7 Eleventh Amendment immunity from section 1983 liability. Defendants rely, almost exclusively, on

8 a California Supreme Court case, Venegas v. County ofLos Angeles, 32 Cal 4th 820 (2004), and

9 reject on-point Ninth Circuit precedent directing the opposite result. For the following reasons, the

10 Court disagrees with Defendants.

11

The question of a sheriffs section 1983 liability is "governed by the analytical framework set

12 out in McMillan v. Monroe County. Alabama, 520 U.S. 781." Streit v. County ofLos Angeles, 236

13 F.2d 552,559 (9th Cir. 2001). In McMillan, the plaintiff, a criminal defendant, sued an Alabama

14 county under section 1983 for constitutional violations undertaken by the county sheriff. The sheriff

15 had allegedly intimidated the plaintiffs co-defendant into making false statements and had

16 suppressed exculpatory evidence. The issue before the Supreme Court was whether, for immunity

17 purposes, the sheriff was acting on behalf of the state or the county in executing this law

18 enforcement function. If the sheriff was a state actor, he and the county were immune from suit; if

19 the sheriff was a county actor, he and the county were not immune. The court offered two principles

20 to guide the resolution of such a question. First, the court cautioned against employing a

21 "categorical, 'all or nothing' approach." McMillan, 520 U.S. at 785. Instead, courts are to determine

22 "whether governmental officials are final policymakers for the local government in a particular area,

23 or on a particular issue." Id. Second, although the question of municipal liability under section 1983

24 is one of federal law, a court's "understanding of the actual function of a governmental official, in a

25 particular area, will necessarily be dependent on the definition of the official's functions under

26 relevant state law." Id. at 786 (citation omitted). After examining Alabama's constitutional

27 provisions concerning sheriffs, the historical development ofthose provisions, the state supreme

28 court's interpretation of those provisions, and relevant portions of the state code, the Supreme Court

4

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 5 of 22

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1 found that the county sheriff, when perfonning the law enforcement functions at issue, was a State

2 officer and was immunized by the Eleventh Amendment from suit. The Court expressly held,

3 however, that it was not making a categorical "characterization of Alabama sheriffs that will hold

4 true for every type of official action they engage in" and limited its inquiry and its finding to those

5 situations in which the sheriff "acts in a law enforcement capacity."! [d. at 785-86.

6

Two Ninth Circuit cases, both of which employ the McMillan analysis, are directly on point

7 here. In Cortez v. County ofLos Angeles, 294 F.3d 1186 (9th Cir. 2002), at issue was whether the

8 county sheriff acted as a county policymaker or a state policymaker when he established and

9 implemented policies and procedures for the safekeeping of inmates in the county jail. Similarly, in

10 Streit v. County ofLos Angeles, 236 F.3d 552, the issue before the Ninth Circuit was whether the Los

11 Angeles County sheriff acted on behalf of the County or the State of California when he adopted and

12 administered a county jail policy which required a records check on prisoners before their release.

13 Streit and Cortez are controlling precedent on this Court. Defendants urge the Court to ignore Ninth

14 Circuit case law that speaks directly to the issue of whether a sheriff is a county actor or a state actor

15 when administering county jails, and to, instead, rely nearly exclusively on California state court case

16 law. As the Ninth Circuit held in Streit, "[a]lthough we must consider the state's legal

17 characterization of the government entities which are parties to these actions, federal law provides

18 the rule of decision in section 1983 actions." [d. at 560 (citation omitted). "[W]hile we must

19 conduct an independent examination of California's Constitution, codes, and caselaw with respect to

20 each 'particular area' or each 'particular issue,' our circuit caselaw 'provides the starting point for

21 own analysis.'" Cortez, 294 F.3d at 1190 (citation omitted). The Court declines to assign greater

22 weight to California state court decisions than to on-point decisions out ofthe Ninth Circuit.'

23

To detennine whether Sheriff Doyle is immune from 1983 liability here, the Court first

24

25

1 The McMillan Court also rej ected a "unifonn, national characterization ofall sheriffs" as "such

a blunderbuss approach would ignore a crucial axiom ofour government: the States have wide authority 26 to set up their state and local governments as they wish." 520 U.S. at 795.

27

2 Moreover, as discussed below, Venegas and other state court cases relied on by Defendants,

such as County ofLos Angeles v. Superior Court ofLos Angeles (Peters), 68 Cal. App. 4th 1166 (1998),

28 are factually distinguishable from the case at bar and therefore would not control the Court's decision

in any event.

5

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 6 of 22

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I examines the nature of his conduct, then looks at state law to detennine whether that type of conduct

2 was executed on behalf of the County of Marin, or the State of California.

3

1. The Enactment and Implementation ofIntake and Confinement Policies

at the County Jail Are Administrative Functions Concerning County Jail

4

Management, Not Law Enforcement Functions.

5

In Cortez and Streit, the Ninth Circuit found that the conduct at issue looked more like

6 administrative oversight and management of the county jail than like law enforcement. In Cortez,

7 the county sheriff enacted and implemented policies regarding the safekeeping ofjail inmates.

8 Specifically, in accordance with the sheriffs policies, an inmate was placed the gang section of the

9 county jail where he was subsequently beaten to death. The court first examined state statutes

10 providing sheriffs with broad statutory authority to manage county jails. 294 F.3d at 1190 (citing

11 CAL. GOV'T CODE § 26605 ("sheriff shall take charge of and be the sole and exclusive authority to

12 keep the county jail and the prisoners in it"); CAL. PEN. CODE § 400 (providing that the county

13 sheriff operates the county jail)). The court held that as administrator of the county jail, a sheriff is

14 "responsible for developing and implementing policies pertaining to inmate housing" and is the final

15 policymaker on such issues. 294 F.3d at 1190 (citation omitted). The court then found that policies

16 regarding the housing ofjail inmates were made by sheriffs "not as law enforcement officials, but as

17 administrators wielding control over persons entrusted to their custody." 294 F.3d at 1191 (citation

18 omitted). In Streit, the policy at issue, less similar to the one in the case at bar, concerned

19 administrative searches for outstanding warrants, wants, or holds on inmates to be conducted before

20 pennitting inmates' release. The Ninth Circuit found that this conduct, although quite similar to

21 conduct found to constitute law enforcement function in County ofLos Angeles v. Superior Court of

22 Los Angeles (Peters), 68 Cal. App. 4th 1166 (1998), see discussion infra, constituted an

23 administrative function ofjail operation.

24

The policies alleged to have violated Plaintiffs' constitutional rights in the case at bar relate

25 to the intake procedures and housing of county jail inmates - jail administration, not law

26 enforcement. If the conduct at issue in Streit is a function ofjail administration, certainly strip

27 searching detainees and housing them nude are. Such policies are enacted and implemented not to

28 prevent crime, but to ensure safety and security within jail walls. The Court finds that these are

6

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1 policies enacted and implemented in furtherance of the oversight and administration of the county

2 jail, not to enforce the law.

3

2. According to California Law, a County Sheriff is a County Policymaker

4

When Engaged in Jail Administration

5

Having found that the conduct at issue concerned jail administration rather than law

6 enforcement, the Court must now engage, as the Ninth Circuit in both Streit and Cortez did, in a

7 McMillan-type analysis to determine whether such duties are executed on the county's behalf or the

8 state's behalf. In those cases, the court reviewed relevant portions ofthe California Constitution, the

9 California Code, and relevant case law, and concluded that when acting as the administrator of the

10 county jail, a county sheriff in California is a policymaker for the county, not the state, and is

11 therefore not immune from section 1983 liability under the Eleventh Amendment.3

12

a. California Constitution

13

In contrast to the Alabama Constitution, the Streit court found, California's Constitution does

14 not list county sheriffs as part of the state executive department (deemed by the McMillan court as

15 "especially important" for determining liability). 236 F.3d at 561. Indeed, Article XI, section l(b) of

16 the California Constitution designates sheriffs as county officers. Even more critically, the Ninth

17 Circuit held, the California Constitution nowhere states that a county sheriffs department acts for

18 the State when managing its local jails. !d. '" [N]ot only does the California Constitution lack the

19 provisions most important to the Supreme Court's decision in McMillan, its provisions read much

20 like those of the Alabama Constitution prior to that State's determined effort to clarify that sheriffs

21 were acting for the State when exercising their law enforcement functions.'" Id. (quoting Roe v.

22 County a/Lake, 107 F. Supp. 2d 1146,1149 (N.D. Cal. 2000)). Therefore, as the Ninth Circuit

23 found in Streit, a county sheriffs department is generally a county agency under the state

24 Constitution. 236 F.3d at 561.

25 III

26
l It is worth noting that the Ninth Circuit does not necessarily rely on the distinction between the 27 sheriffs function as j ail administrator and the sheriffs duties regarding law enforcement to determine
whether or not the sheriffis a county or a state actor. Indeed, the Circuit has found that some of a county 28 sheriffs law enforcement activities are made on behalf ofthe county, not the state. See. e.g. Brewster
v. Shasta County, 275 F.3d 803 (9th Cir. 2001).

7

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 8 of 22

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b. California Statutes and Regulations

2

Defendants point to sections of the California Code that suggest sheriffs are state actors when

3 engaged in their law enforcement duties, but ignore those portions ofthe Code that speak to jail

4 policy and administration. While California Government Code section 12560 grants the California

5 Attorney General statutory control over sheriffs acting in their law enforcement capacity, California

6 Government Code section 25303 grants counties the ultimate power over county jails. Other statutes

7 cited by Defendants, such as Government Code sections 26605 and 26610 and Penal Code sections

8 4000 and 4015, confer upon the sheriff responsibility for jail administration, but do not establish the

9 sheriff as an actor on behalf of the state when he takes on that statutorily prescribed role. Moreover,

10 as the Ninth Circuit noted in Streit, section 23013 grants counties the power to transfer control of

11 jails from the sheriffto a county corrections department, which "suggest[s] that counties actually

12 control and operate the jails, and not the state via sheriffs." 236 F.3d at 561. The Court therefore

13 finds, as the Ninth Circuit in Streit found, that these Code sections "weigh heavily in favor of [the]

14 conclusion that the [county's] jail ... policies are a county function and a county concern," "the

15 [c]ounty, not the state, oversees the local jails, and the [county sheriffs department], as the

16 administrator of those jails, acts for the [c]ounty." [d. at 562.

17

Defendants additionally contend that Title 15 of the California Code of Regulations ("CCR"),

18 pertaining to Crime Prevention and Corrections, demonstrates that a sheriff acts on behalf of the

19 State when overseeing a county jail. The Court finds, however, that the CCR sections cited by

20 Defendants do not dictate that result. Specifically, Defendants contend that section 1005 of Title 15

21 of the CCR permits a county jail to adopt its own standards for employees and facilities. While that

22 code section, in conjunction with Penal Code section 6030 et seq., explains that county jail standards

23 must meet or exceed, and may not conflict with, the standards imposed by the State of California

24 Board of Corrections and that the State's Board of Corrections reviews the standards established for

25 the county jails, this does not render county jail supervision a state action. As Plaintiffs point out in

26 their supplemental brief, California's codes and regulations are replete with directives to local

27 governmental agencies and their employees but those statutes and regulations do not cloak the local

28 governmental entities with Eleventh Amendment immunity. See, e.g., Beentjes v. Placer County Air

8

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 9 of 22

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I Pollution Control Dist., 254 F. Supp. 2d 1159, 1171 (E.D. Cal. 2003) (local air pollution control

2 districts, which derive their authority from the State and are granted wide latitude to conduct their

3 affairs as they see fit so long as they maintain standards at least as stringent as those adopted by the

4 State, are not local agencies and are not entitled to Eleventh Amendment immunity.) Moreover, the

5 Ninth Circuit in Cortez acknowledged those provisions of Title 15 that assign broad authority to

6 sheriffs for county jail management, but still held that when a sheriff acts as administrator of the

7 county jail, he acts on behalf of the county, not the state. 294 F.3d at 1190. Defendants' argument

8 that Title 15 of the CCR dictates that a sheriff acts on behalf of the State of California when

9 administering a county j ail fails.

10

c. California Case Law

11

As noted supra, Defendants urge the Court to rely on and extend the California Supreme

12 Court's holding in Venegas, 32 Cal. 4th 820. Notwithstanding the Court's conclusion that it is not

13 bound by a California state court decision when determining issues of section 1983 liability, see

14 discussion supra, the Court finds that even if Venegas were binding precedent, it would not compel a

15 different result.

16

In that case, the plaintiffs sued, inter alia, the county and its sheriffs department, under

17 section 1983, for violations of their constitutional rights during the sheriffs department's

18 investigation of criminal activity. As part of a task force operated by the sheriff, a police officer

19 stopped the plaintiffs (husband and wife) while investigating the husband's brother for car theft. The

20 husband was arrested and detained but no charges were filed. There, unlike in the case at bar, the

21 sheriff and his task force were engaged in a criminal investigation. The Venegas court repeatedly

22 characterized the sheriffs department's actions as law enforcement activities or functions. See, e.g.,

23 32 Cal. 4th at 826,828,829,834,838,839,852. The conditions ofjail detention were not at issue;

24 intake procedures were not raised. The question at bar, here, is on which entity's behalf a sheriff acts

25 when engaging in county jail administration duties. Venegas simply does not speak to that question.

26

Defendants contend that Venegas is instructive here because of its approval of a more on-

27 point California appellate court decision in Peters, 68 Cal. App. 4th 1166. In Peters, a sheriff was

28 accused of violating the plaintiffs' constitutional rights by detaining them beyond their release date

9

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 10 of 22

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I in order to comply with an outstanding warrant. The Peters case is equally unavailing for

2 Defendants. First, again, California state case law on this issue is not binding on this Court, as

3 discussed supra. Moreover, however, Peters, like Venegas, is distinguishable on its facts from the

4 case at bar. The court in Peters expressly held that determining whether to release someone subject

5 to arrest on an outstanding warrant was "a law enforcement function" that could not be

6 "characterize[dJ ... as merely operational or administrative." 68 Cal. App. 4th at 1177; see also

7 Streit, 236 F.3d 552 (concluding that the Peters sheriffs conduct - complying with a warrant-

8 constituted law enforcement, and was distinguishable from the administrative jail policy of checking

9 to see if any warrants existed). Defendants additionally cite to the California Supreme Court's

10 holding in Pitts v. County ofKern, 17 Cal. 4th 340 (1998). Again, reliance on this state court case is

II misplaced. First, even if Pitts were on point, it would not be binding on the Court. Second, the issue

12 in Pitts concerned whether district attorneys were state actors or county actors when bringing and

13 dismissing criminal charges. The court found that district attorneys acted on the state's behalf in

14 preparing and prosecuting crimes. This case is wholly uninstructive on whether a sheriff, engaged in

15 j ail oversight and management as opposed to law enforcement, acts on behalf of the county or the

16 state.

17

There is a clearly-established distinction between overseeing and managing a county jail on

18 the one hand, and engaging in law enforcement functions on the other, for purposes of assessing a

19 sheriffs immunity from section 1983 liability. Having examined the California Constitution and

20 relevant state statutes and regulations, and in accordance with the Ninth Circuit's holdings in Streit

21 and Cortez, the Court finds that a county sheriff, purely engaged in j ail oversight and administration,

22 acts on behalf of the county, not the State. The California state court cases cited by Defendants do

23 nothing to alter the Court's conclusion. Because the Court finds that strip searching detainees and

24 confining them, naked, in cells, are intake and housing policies and procedures that fall into the

25 category ofjail oversight and administration, the Court concludes that Sheriff Robert T. Doyle was

26 acting on behalf of the County of Marin in enacting and implementing those alleged policies. As

27 such, the Court finds that Sheriff Doyle is not immune, pursuant to the Eleventh Amendment, from

28 section 1983 liability. Defendants' motion to dismiss on this ground is therefore DENIED.

10

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 11 of 22

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B. The County of Marin Is Thereby Also Not Immune

2

Under Monell v. New York City Dep 't ofSoc. Servs., 436 U.S. 658 (1978), a county is subject

3 to section 1983 liability for unconstitutional actions taken by the county's sheriffifthe county's

4 "policies, whether set by the government's lawmakers 'or by those whose edicts or acts that may

5 fairly be said to represent official policy' caused the particular constitutional violation at issue."

6 Streit, 236 F.3d 552, 559 (citing Monell, 436 U.S. at 694). If the sheriff is a policymaker for the

7 state, no liability lies against the county under Monell. However, where, as here, the sheriff was

8 acting on behalf of the County in instituting the policies that are the subject of the constitutional

9 violation in question, the County is subject to section 1983 liability. Having concluded that Sheriff

10 Doyle was acting in his capacity as a policymaker for the County in implementing the jail policies

11 and procedures at issue, and that as such, Sheriff Doyle is not immune from section 1983 liability,

12 the Court finds that Defendant County of Marin is also not immune. Defendants' motion to dismiss

13 on that ground is therefore DENIED:

14 II, Statute of Limitations

15

Defendants contend that the statute oflimitations has run as to any claims that accrued before

16 January 1,2003. California's statute oflimitations for personal injury claims governs both the state

17 law and federal causes of action in this case. See, e.g., Johnson v. State ofCalifornia, 207 F.3d 650,

18 653 (9th Cir. 2000) ("Because § 1983 does not contain a statute oflimitations, federal courts apply

19 the forum state's statute of limitations for personal injury claims"). This means that Defendants'

20 statute oflimitations argument pertains to all of Plaintiffs' claims.

21

On January I, 2003, California Government Code section 335.1 was enacted, extending the

22 limitations period on personal injury actions (and correspondingly, to federal civil rights claims, see

23 Wilson v. Garcia, 471 U.S. 261,271-72 (1985)) from one year, under former section 340(3), to two

24 years. Defendants contend that the amendment to the operative statute oflimitations does not work

25

26
4 Defendants argue next that Plaintiffs' pendant state law claims against Defendant County of 27 Marin should be dismissed for lack of jurisdiction. This argument is expressly conditioned on the
Court's dismissal ofPlaintiffs' federal claims. (Motion at 12-13.) As the Court has denied Defendants' 28 motion to dismiss Plaintiffs' federal claims, the Court views Defendants' jurisdictional argument as
moot and declines to reach it.

11

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 12 of 22

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1 to extend the limitations period for claims accrued before the date of amendment.' In other words,

2 for any alleged conduct that accrued before January I, 2003, Defendants suggest that no claim may

3 be filed more than one year afterwards. Defendants contend that because the Complaint in this

4 action was not filed until July 12, 2004, any claims based on pre-January I, 2003 conduct are time-

5 barred. The Court disagrees.

6

It is settled that the section 335.1 amendment does not apply retroactively to revive expired

7 claims. See, e.g. Krupnickv. Duke Energy MORRO Bay, 115 Cal. App. 4th 1026, 1029 (2004). It is

8 also settled that generally, "an amendment which enlarges a period of limitation applies to pending

9 matters where not otherwise expressly excepted." Mudd v. McColgan, 30 Cal. 2d 463, 468 (1947).

10 However, in the context of section 335.1, there is a divergence of opinion among federal district

11 courts in California as to whether the extended limitations period is applicable to claims accrued, but

12 not expired, before January I, 2003, when the amendment took effect. Compare Abreu v. Ramirez,

13 284 F. Supp. 2d 1250 (C.D. Cal. 2003), with Kiss v. City o/Santa Clara, 2004 U.S. Dist. LEXIS

14 19470 (N.D. Cal. September 15, 2004), and Jordan v. Herrera, 2003 U.S. Dist. LEXIS 25537 (C.D.

15 Cal. Nov. 7,2003). In Jordan, a federal district court found that section 335.1, in accordance with

16 the rule set forth in Mudd, applies retrospectively to pending claims. 2003 U.S. Dist. LEXIS 25537,

17 at *9-13; accord Kiss, 2004 U.S. Dist. LEXIS 19470, at *7-8. In contrast, the district court in Abreu

18 held that "unless otherwise specified, the statute oflimitations in effect at the time a claim accrues is

19 the limitation applicable to that claim for all time." 284 F. Supp. 2d at 1256. The court there found

20 that "[n]othing in the legislation extending California's personal-injury limitations period suggests

21 that the California Legislature intended section 335.1 to apply retroactively, except to claims made

22 by victims of terrorist actions on September II, 2001." Abreu, 284 F. Supp. 2d at 1256 (citing S.B.

23 688, Ch. 448, Stats. of2002, §§ (c) & (d)). The court explained that it was most persuaded by the

24 legislature's express carve-out language for September II, 2001 victims. Ifthe legislature had

25 otherwise intended section 335.1 to apply to pending claims, the court reasoned, the carve out would

26 not have been necessary. [d. at 1256.

27
5 Federal law controls the question of when a claim accrues. Johnson, 207 F.3d at 653 (citation 28 omitted). Under federal law, a claim accrues when a plaintiff knows, or should know, of the factual
predicate underlying the potential cause of action. [d. (citation omitted).

12

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 13 of 22

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The Court respectfully disagrees with the result in Abreu. The California Legislature need

2 not have affirmatively stated that the extended limitations period was to apply to pending claims

3 because, according to Mudd and its progeny, the rule is that it would so apply unless otherwise

4 specified. Defendants contend that Section 335.I's express application to claims arising out of the

5 September II, 2001 terrorist attacks constitutes such an express exception to the rule in favor of

6 retrospective application under Mudd. In essence, expressio unius est exclusio alterius. But

7 Defendants have it wrong. The carve-out language in section 335.1 directed toward September 11,

8 200 I victims creates an exception, not to some non-existent rule against its application to pending

9 claims, but to the well-established rule against reviving expired claims. As of January I, 2003, when

10 the new limitations statute was enacted, claims arising out of the September 11, 2001 attacks were

11 long-expired under the old one-year statute of limitations. The legislature expressly carved out an

12 exception to the anti-revival rule so that terrorism victims might have a remedy for their injuries.

13 The carve-out exception does not, however, speak to pending claims. Therefore, in accordance with

14 Jordan, Kiss, and Mudd, the Court finds that for any unexpired personal injury claims that accrued

15 before January 1, 2003, the applicable statute oflimitations is the newly enacted California

16 Government Code section 335.1 - a two-year limitations statute - because those claims were

17 pending when the new limitations statute was enacted.

18

Here, Plaintiffs filed their class action on July 12, 2004. This means that any claims that

19 accrued on or after July 12, 2002 are properly before the Court. Defendants' motion to dismiss all

20 claims that accrued before January 1, 2003 as time-barred is therefore DENIED.

21

The Court must address, however, the claims raised by Plaintiffs' Complaint that accrued

22 before July 12, 2002. In paragraph 12 of the Complaint, Plaintiffs raise claims on behalf of unnamed

23 plaintiffs who, at any time after June 23, 2000, were subjected to the same jail treatment that

24 Plaintiffs Chatoian and Tasca allege. Pursuant to Federal Rule of Civil Procedure I2(e), Defendants

25 move for a more definite statement regarding this portion of Plaintiffs' complaint. In their

26 Opposition to the instant motion, Plaintiffs appear to have offered a clarification and now contend

27 that for the state law claims only, Plaintiffs raise claims on behalf of unnamed plaintiffs that accrued

28

13

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 14 of 22

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1 no later than July 23,2003, six months prior to the filing oftheir class claim.6 (Opposition at 24-25.)

2 The Court assumes that this clarification is made in light of the California Tort Claims Act

3 ("CTCA") requirement, specifically California Government Code section 911.2, that a claim against

4 a public entity must be presented in writing to the entity no later than six months after the accrual of

5 the claim.' Because the class claim was presented to the appropriate government entity" on January

6 23,2004, only claims that accrued on or after July 23,2003 are at issue. The Court accepts

7 Plaintiffs' more definitive statement and finds that in light of that clarification, no claims raised by

8 Plaintiffs are time-barred.

9 III. State Law Claims

10

Plaintiffs bring three state law claims against Defendants. Plaintiffs' third and fourth causes

11 of action allege that Defendants violated California Civil Code sections 52 and 52.1 and California

12 Penal Code section 4030, respectively, for subjecting Plaintiffs to strip searches. Plaintiffs' fifth

13 cause of action alleges that Defendants violated sections 52 and 52.1 for confining Plaintiffs in cells

14 naked. In addition to the nnavailing statute oflimitations argument addressed supra, Defendants

15 move to dismiss Plaintiffs' state law claims on the several bases discussed more fully below.

16

A. Plaintiff Tasca's State Law Claims Are Dismissed

17

Defendants contend that Plaintiff Cynthia Tasca's Government Tort Claim (attached to the

18 Complaint as Exhibit B) does not comply with the CTCA requirements. Plaintiff Tasca concedes

19 that her claim was insufficiently specific. The Court, therefore, GRANTS Defendants' motion on

20 this ground and dismisses Plaintiff Tasca's state law claims (the Third, Fourth, and Fifth Counts of

21 the Complaint).

22

23

6 Plaintiffs clarify that as to the federal claims, they raise claims on behalf of nnnamed plaintiffs

who were subjected to strip search and nude cell placement on or before July 12, 2002. This is

24 appropriate as the California Tort Claims Act ("CTCA") requirement that a claim be presented to the

governmental entity before filing a lawsuit applies only to state law claims and not to actions brought

25 nnder section 1983. Williams v. Horvath, 16 Cal. 3d 834, 842 (1976).

26

7 The CTCA further requires ajudicial claim to be filed no more than six months after the claim

is presented to the government entity. Plaintiffs complied with this requirement.

27

S With the exception of Plaintiff Tasca's state law claims, compliance with the California Tort 28 Claims Act is not disputed here. The Court therefore assumes that Plaintiffs filed their class claim with

the appropriate governmental entity.

14

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 15 of 22

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B. Immunity Under the California Tort Claims Act

2

Defendants move for dismissal of Plaintiffs' state law claims on the grounds that the County

3 of Marin and Sheriff Doyle are entitled to immunity under various provisions of the CTCA

4 (California Government Code sections 810, et seq.). Defendants argue, inter alia, that Sheriff Doyle

5 is entitled to discretionary immunity pursuant to section 820.2, that in the alternative, he is entitled to

6 immunity under section 820.8, and that the County of Marin is immune under sections 815.2 and

7 844.6. Preliminarily, the Court notes that these governmental tort liability provisions do not apply to

8 claims for declaratory and injunctive relief. Rodriguez v. Cal. Highway Patrol, 89 F. Supp. 2d 1131,

9 1138 (N.D. Cal. 2000) (citing CAL. GOy'T CODE § 814). The CTCA's immunity provisions apply

10 only to claims for damages. [d. Here, Plaintiffs have prayed for declaratory and injunctive relief,

II and for money damages. (Complaint at l3-14.) Thus, the Court's consideration of Defendants'

12 immunity arguments apply only to Plaintiffs' state law claims for damages. All of Plaintiffs' state

13 law claims for declaratory and injunctive relief against Defendants Doyle and the County of Marin

14 remain intact.

IS

1. Sheriff Doyle's Immunity Under Section 820.2

16

California Government Code section 820.2 provides immunity to public employees for

17 injuries resulting from their discretionary acts or omissions, except as otherwise provided by statute.

18 Defendants contend that Sheriff Doyle's alleged acts were discretionary and that under section 820.2,

19 he is immune from suit on Plaintiffs' state law claims. There is no doubt that the alleged policy

20 enacted and implemented by Sheriff Doyle regarding intake and housing procedures for

21 prearraigrunentjail detainees constitntes a discretionary act within the meaning of section 820.2.

22 See, e.g., Johnson v. State o/California, 69 Cal. 2d 782,793 (1968) (discretionary actions are those

23 involving basic policy decisions).9 Plaintiffs do not suggest otherwise. Instead, Plaintiffs posit the

24 theory that section 820.2 does not apply to, or is abrogated by, the statutes under which Plaintiffs

25 bring their state law claims. Specifically, Plaintiffs claim that to find that the CTCA immunizes

26 Sheriff Doyle and the County of Marin would effectively emasculate sections 4030, 52, and 52.1.

27
9 Were Plaintiffs seeking to hold SheriffDoyle liable for personally carrying out the strip search 28 and naked cell placement policies, however, those ministerial acts might not be considered discretionary
under 820.2. See, e.g. Johnson, 69 Cal. 2d at 793.

15

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 16 of 22

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The California Supreme Court has held that the discretionary immunity set forth in section

2 820.2 "cannot be abrogated by a statute which simply imposes a general duty or liability on persons

3 including public employees." Caldwell v. Montoya, lOCal. 4th 972, 986 (1995). Where immunity

4 exists, it is only withdrawn "by a clear indication of legislative intent that statutory immunity is

5 withheld or withdrawn in the particular case." [d. (italics omitted).

6

In Caldwell, the court held that under section 820.2, a school board was immune from

7 California's Fair Housing and Employment Act ("FEHA") liability for its refusal to renew a

8 superintendent's contract. The court reasoned that the board's decision was discretionary and that

9 FEHA, which created a general statutory duty and liability for violation of its provisions, did not

10 abrogate section 820.2 immunity because it did not expressly withdraw immunity.

II

The question here, as in Caldwell, is whether the statutes pursuant to which Plaintiffs bring

12 their state law claims contain an express legislative intent to withdraw otherwise applicable

13 immunity under the CTCA. The Court examines Penal Code section 4030 and Civil Code sections

14 52 and 52.1 separately.

15

a. No Immunity From Penal Code Section 4030 Liability

16

Penal Code section 4030 was expressly enacted to remedy the legislature'S concern that law

17 enforcement policies and practices for conducting strip and body cavity searches vary widely in

18 California. CAL. PEN. CODE § 4030(a). The statute is aimed expressly at "protect[ing] the state and

19 federal constitutional rights of the people of California by establishing a statewide policy strictly

20 limiting strip and body cavity searches." People v. Wade, 208 Cal. App. 3d 304, 308 (1989) (citing

21 CAL. PEN. CODE, § 4030(a)). Subsection (b) declares that the statute applies to prearraignment

22 detainees arrested for infraction or misdemeanor offenses. According to the statute, it is a

23 misdemeanor to "knowingly and willfully authorize[] or conduct[] a body cavity search in violation

24 of this section." PEN. CODE § 4030(n). Subsection (p) affords a person so searched statutory civil

25 remedies including recovery of actual damages.

26

Defendants argue that the language of section 4030 does not reflect a clear indication of

27 legislative intent to withdraw or withhold immunity as to county sheriffs or any individual actors

28 accused of enacting unlawful strip searching policies or conducting such searches, as is required

16

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1 under Caldwell. Defendants acknowledge that the statute imposes a legal duty to abstain from

2 engaging in or authorizing such searches and it provides civil remedies when its provisions are

3 violated. But, Defendants argue that as the court found in Caldwell as to FEHA, Penal Code section

4 4030 "contains no indicia of an additional intent that individual public officials or employees may be

5 sued despite a specific statutory immunity that would otherwise apply in a particular case." lOCal.

64th at 986.

7

Plaintiffs urge the Court to find that section 820.2 is overridden by Penal Code section 4030

8 because, Plaintiffs contend, section 4030 is a narrowly-drawn statute aimed at law enforcement

9 officials who conduct unlawful strip searches and at law enforcement officials who enact and

10 implement policies for conducting such strip searches. To find that Sheriff Doyle, who is alleged to

11 have enacted, overseen, and implemented the policies and procedures at issue in this lawsuit,

12 immune from section 4030 liability, Plaintiffs argue, would render section 4030 a nullity. The Court

13 agrees.

14

Plaintiffs argue that this case is more like Shoemaker v. Myers, 2 Cal. App. 4th 1407 (1992),

15 than like Caldwell. In Shoemaker, a California appellate court found Government Code section

16 19683, a whistle-blowing statute, to abrogate CTCA governmental tort immunity. Section 19683

17 "subjected 'any' state 'officer or employee' to direct civil liability for using official power against

18 the efforts of another state officer or employee to report job-related violations oflaw to appropriate

19 agencies." [d. at 1424-25. The appellate court found that because section 19683 was primarily, if

20 not exclusively, aimed at public actors and because it created direct civil liability for any violation of

21 the law, to find that the CTCA provision at issue immunized public employees from liability from

22 the whistle-blowing statute "would largely emasculate the latter section and thereby frustrate the

23 legislative purpose behind its enactment." [d. at 1425. The court went on to hold that to grant

24 CTCA immunity to a party violating section 19683 is "totally inconsistent with the design of section

25 19683." !d.

26

In Caldwell, on the other hand, the California Supreme Court considered the analysis in

27 Shoemaker and determined that the statute at issue, FEHA, unlike section 19638, did not abrogate

28 CTCA immunity. 10 Cal. 4th 972. The court held that while section 19638's "specific nature and

17

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1 purpose ... providers] a 'clear indication of ... intent' [such that] the personal immunities of public

2 employees are abrogated," by contrast, "FEHA promotes much more general policies throughout the

3 public and private sectors and advances no specifically governmental interest that would support a

4 finding of intent to abrogate any immunity of public employees." Id. at 986 n.7 (emphasis in

5 original).

6

The statute at issue in this case is analogous to the one at issue in Shoemaker. There is no

7 doubt that like section 19638, section 4030 is "directed chiefly, if not exclusively, against state

8 employees otherwise protected by [CTCA] immunity," rather than at private actors. Shoemaker, 2

9 Cal. App. 4th at 1425. The very text of section 4030 expresses the legislature'S intent that the statute

10 apply to law enforcement policies and procedures with respect to prearraigmnent detainees. CAL.

11 PEN. CODE § 4030(a). Whereas the statute at issue in Caldwell, FEHA, is directed at both public and

12 private discrimination, section 4030 is not aimed at the conduct of private citizens and can only be

l3 understood as an effort by the legislature to streamline the strip-searching policies employed by

14 public law enforcement officials. See CAL. PEN. CODE § 4030(a)-(b). Under no interpretation could

15 this statute apply to anyone but a goverrunent employee. Moreover, like section 19683, subsection

16 (p) of section 4030 creates direct civil liability for violations of the strip-searching statute.

17 Therefore, the Court finds that like the statute at issue in Shoemaker, and unlike the one at issue in

18 Caldwell, section 4030 expresses the legislature's intent to withdraw otherwise applicable immunity

19 under the CTCA. To find law enforcement policymakers immune from section 4030 liability would

20 frustrate the legislature's purpose in enacting section 4030 in the first place. Thus, the Court finds

21 that section 820.2 does not immunize Defendant Doyle from liability on Plaintiffs' section 4030

22 claim for damages. Defendants' motion to dismiss Plaintiffs' Penal Code section 4030 claim against

23 Defendant Sheriff Doyle is DENIED.

24

b. Immunity From Civil Code Section 52 Liability

25

Unlike Penal Code section 4030, Civil Code section 52 cannot be read to withdraw CTCA

26 immunity. Indeed, California state and federal courts have held that California Tort Claims Act

27 immunities apply to claims brought under the Unruh Civil Rights Act. See, e.g., Gates v. Superior

28 Court, 32 Cal. App. 4th 481,494 (1995); Gibson v. County ofRiverside, 181 F. SUpp. 2d 1057,1086

18

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I (C.D. Cal. 2002). The Court declines to find otherwise. Therefore, the Court GRANTS

2 Defendants' motion on this ground and dismisses Plaintiffs' section 52 claims for damages against

3 Sheriff Robert T. Doyle. Plaintiffs' section 52 claims for declaratory and injunctive relief against

4 Sheriff Doyle remain in play. 10

5

c. No Immunity From Civil Code Section 52.1 Liability

6

Civil Code section 52.1 contains a liability provision that has been interpreted as an express

7 intention to withdraw immunity. In Doe v. Petaluma City Sch. Dist., 830 F. Supp. 1560 (N.D. Cal.

8 1993), the court found that governmental tort "immunity is not available for a violation of Civil

9 Code § 52.1 since ... section 52.1 specifically provides liability for individuals 'whether or not

10 acting under color of law.'" Therefore, the Court DENIES Defendants' motion to dismiss Plaintiffs'

11 section 52.1 claims against Sheriff Doyle. Those claims remain in play.

12

2. Sheriff Doyle's Immunity Under Section 820.8.

13

California Government Code section 820.8 provides immunity to public employees for

14 injuries caused by the act or omission of another person. Defendants contend that Sheriff Doyle is

15 immune from suit under section 820.8 because Plaintiffs have failed to allege a causal link between

16 any act of Sheriff Doyle and the injuries allegedly sustained by PlaintiffsY As Plaintiffs point out,

17 however, Plaintiffs do not seek to hold Sheriff Doyle vicariously liable for the actions of his

18 subordinates (e.g. carrying out the strip searches and holding Plaintiffs in cells naked). Instead,

19 Plaintiffs seek to hold Sheriff liable for his own conduct - for enacting and implementing policies

20 that violate Penal Code section 4030 and Civil Code section 52.1. Therefore, the Court finds that

21 Defendants' 820.8 immunity argument is without merit and DENIES this aspect of Defendants'

22 motion.

23
\0 At oral argument, the Court asked Defendants to provide additional briefing on whether the 24 immunities set forth in the CTCA apply to public employees sued in their individual capacities as well
as in their official capacities. Defendants report finding no authority suggesting any distinction in how 25 the CTCA immunities are applied based on the capacity in which a public employee is sued. The
Court's exhaustive search rendered the same result. Moreover, the CTCA itself makes no such 26 distinction. The Court finds, then, that Sheriff Doyle's immunity from Plaintiffs' section 52 claim
renders him immune from suit in both his individual and his official capacity on that claim. 27
11 Having already determined that Sheriff Doyle is immune from Civil Code section 52 liability 28 pursuant to section 820.2, the Court only considers Defendants' section 820.8 immunity argument with
respect to Plaintiffs' Penal Code section 4030 and Civil Code section 52.1 claims.

19

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 20 of 22

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1

3. County of Marin's Immunity

2

a. Pursuant To Section 815.2, the County of Marin Is Immune From

3

Liability on Civil Code Section 52 Claims For Damages.

4

According to California Government Code section 815.2(b), "a public entity is not liable for

5 an injury resulting from an act or omission of an employee of the public entity where the employee is

6 immune from liability." Because the Court finds that Sheriff Doyle is immune, under section 820.2,

7 from liability on Plaintiffs' section 52 claim for damages, the Court finds that under section 815.2,

8 Defendant County of Marin is also immune on that claim. Therefore, Defendants' motion to dismiss

9 Plaintiffs' section 52 claim for damages against County of Marin on derivative immunity grounds is

10 GRANTED. Plaintiffs' section 52 claim against the County of Marin for declaratory and injunctive

11 relief remains in play.

12

b. Pursuant to Government Code Section 844.6, the County of Marin

13

is Immune From Liability on Penal Code Section 4030 and Civil Code Section 52.1 Claims For Damages

14

According to California Government Code section 844.6, a public entity is not liable for

15 injury to a prisoner "except as provided in this section and in Sections 814, 814.2, 845.4 and 845.6,

16 or in Title 2.1 (commencing with Section 3500) or part 3 of the Penal Code." The parties agree that

17 none of those exceptions apply here. The question, then, is whether the CTCA immunizes the

18 County from liability for claims made pursuant to California Penal Code section 4030 and California

19 Civil Code section 52.1.12

20

The Court is guided by the expressio unius est exclusio alterius canon. Section 844.6 sets

21 forth specific exceptions to a government entity's immunity and does not enumerate Penal Code

22 section 4030 or Civil Code section 52.1 among those exceptions. The legislature'S expression of

23 certain exceptions suggests that omitting others was intentional and that a government entity is

24 immune from liability for Plaintiffs' section 4030 and 52.1 claims. The Court is also guided by the

25 California Supreme Court's holding in Caldwell that where immunity exists, it is only withdrawn

26

27

12 Whether section 844.6 immunizes the County from liability on the Civil Code section 52

claims for damages was also briefed by the parties. However, because the Court has already determined

28 that section 815.2 provides derivative immunity to the County on this claim, the Court declines to

address whether section 844.6's immunity applies to that claim.

20

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 21 of 22

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1 "by a clear indication of legislative intent that statutory immunity is withheld or withdrawn in the

2 particular case." 10 Cal. 4th at 986. Nothing in Penal Code section 4030 indicates that the

3 legislature intended to withdraw immunity as to government entities sued pursuant to that statute.

4 As discussed supra, section 4030 is specifically directed at those law enforcement officials who

5 create and implement violative strip search policies. Nothing in section 52.1 indicates that statutory

6 immunity is to be withheld or withdrawn. Therefore, Defendants' motion to dismiss Plaintiffs'

7 claims against Defendant County of Marin for violations of California Penal Code section 4030 and

8 Civil Code section 52.1 for damages is hereby GRANTED. Plaintiffs section 4030 and section 52.1

9 claims against the County of Marin for declaratory and injunctive relief remain in play.

10

CONCLUSION

11

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART

12 Defendants' motion to dismiss as follows:

Defendants' motion to dismiss Sheriff Doyle from the entire action on the ground that he is a policy maker for the State, not the County, and as such, is immune from section 1983 liability under the Eleventh Amendment is DENIED.

Defendants' motion to dismiss Plaintiffs' federal claims against Defendant County of Marin on Eleventh Amendment immunity grounds is DENIED.

Defendants' motion to dismiss Plaintiffs' pendant state law claims against Defendant County of Marin on jurisdictional grounds is moot as it was conditioned upon the dismissal of the federal claims which the Court has not done.

Defendants' motion to dismiss all claims by class members that accrued before January 1, 2003 as barred by the statute oflimitations is DENIED.

Defendants' motion to dismiss Plaintiff Tasca's state law claims for failure to comply with the California Tort Claims Act is GRANTED. Those claims are dismissed with prejUdice.

Defendants' motion to dismiss Plaintiffs' Penal Code section 4030 claim against Defendant Sheriff Robert T. Doyle, on the ground that Defendant Doyle is immune under the CTCA, is DENIED. Plaintiffs' 4030 claim against Defendant Doyle remains in tact.

Defendants' motion to dismiss Plaintiffs' Civil Code section 52 claim for damages against Defendant Sheriff Robert T. Doyle, on the ground that he is immune under the CTCA, is GRANTED. That claim is dismissed with prejudice. Plaintiffs' section 52 claim for declaratory or injunctive relief against Defendant Doyle is still in play.

21

Case 3:04-cv-02790-MJJ Document 27 Filed 12/14/2004 Page 22 of 22

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1 8.
2
3

Defendants' motion dismiss Plaintiffs' Civil Code section 52.1 claim for damages against Defendant Sheriff Robert T. Doyle on the ground that he is immune under the CTCA is DENIED. Plaintiffs' section 52.1 claim against Defendant Doyle remains in tact.

4 9. 5 6

Defendants' motion to dismiss Plaintiffs' state law claims for damages against Defendant County of Marin on immunity grounds is GRANTED. Those claims are dismissed with prejudice. Plaintiffs' state law claims for declaratory or injunctive relief against Defendant County of Marin are still in play.

7

IT IS SO ORDERED.

8

9 Dated: December~ 2004
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

22

 
 Case 3:04-cv-02790-MJJ Document 33 Filed 02/01/2005 Page 1 of 16

1 Andrew C. Schwartz (State Bar No. 64578) Thom Seaton (State Bar No. 62713)
2 CASPER, MEADOWS & SCHWARTZ A Professional Corporation
3 California Plaza 2121 North California Blvd., Suite 1020
4 Walnut Creek, California 94596 Telephone: (925) 947-1147
5 Facsimile: (925) 947-1131 Email: Schwartz@cmslaw.com
6

7 Mark E. Merin (State Bar No. 043849) Jeffrey I. Schwarzschild (State Bar No. 192086)
8 LAW OFFICES OF MARK E. MERIN 2001 P Street, Suite 100
9 Sacramento, CA 95814 Telephone: (916) 443-6911
10 Facsimile: (916) 447-8336 Email: mark@markmerin.com
11 Attorneys for Plaintiffs
12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15 DARCELLE L. CHATOIAN, CYNTHIA
16 TASCA, KORISSA RUSSELL, CORIN RASMUSSEN and all others similarly
17 situated,

Case No. C04-2790 MJJ
FIRST AMENDED CLASS ACTION COMPLAINT

18

Plaintiffs

DEMAND FOR JURY TRIAL

19

vs.

20 COUNTY OF MARIN, MARIN COUNTY SHERIFF’S DEPARTMENT, MARIN
21 COUNTY SHERIFF ROBERT T. DOYLE, Individually and in His Official Capacity,
22 MARIN COUNTY SHERIFF’S DEPUTIES DOES 1 THROUGH 100, and ROES 1
23 THROUGH 20, INCLUSIVE,

24

Defendants.

25

26

INTRODUCTION

27

This is an action for declaratory and injunctive relief, damages, and punitive

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

damages against the COUNTY OF MARIN, MARIN COUNTY SHERIFF’S

FIRST AMENDED CLASS ACTION COMPLAINT

1

Chatoian v. County of Marin, et al. Case No. C04-02790 MJJ

Case 3:04-cv-02790-MJJ Document 33 Filed 02/01/2005 Page 2 of 16

1 DEPARTMENT, MARIN COUNTY SHERIFF ROBERT T. DOYLE, Individually and in

2 His Official Capacity, MARIN COUNTY SHERIFF’S DEPUTIES sued under their

3 fictitious names as DOES 1 THROUGH 100, and ROES 1 THROUGH 20, for

4 violations of plaintiffs’ constitutional rights resulting from application of Marin County’s

5 and the Sheriff’s policies, practices, and customs concerning the use of strip searches

6 and visual body cavity searches in Marin County Jails. Plaintiffs seek an order

7 declaring illegal defendants’ policy of subjecting detainees in their custody to strip and

8 visual body cavity searches before they are arraigned and without having any

9 reasonable suspicion that the searches will be productive of contraband.

10

Defendants’ strip search and visual body cavity search policies, practices, and

11 customs violate plaintiffs’ rights secured to them by the Fourth and Fourteenth

12 Amendments to the United States Constitution and entitle plaintiffs to recover

13 damages under the Federal Civil Rights Act (42 U.S.C. § 1983).

14

Additionally, plaintiffs include supplemental claims under California state law

15 against defendants: 1) for violation of California Penal Code § 4030 which prohibits

16 pre-arraignment strip searches of most misdemeanants and provides for minimum

17 damages of $1,000 for each illegal search; and 2) for violation of the Bane Civil Rights

18 Act (California Civil Code § 52 and § 52.1(b)) pursuant to which each plaintiff denied a

19 statutory, state, federal, or constitutional right is entitled to recover a minimum of

20 $4,000 for each violation.

21

JURISDICTION

22

1. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988, and the

23 Fourth and Fourteenth Amendments to the United States Constitution. Jurisdiction is

24 founded upon 28 U.S.C. § 1331 and 1341(3) and (4) and the aforementioned statutory

25 and constitutional provisions.

26

2. The court has supplemental jurisdiction over plaintiffs’ state claims under

27 28 U.S.C. § 1367(a).

28

CASPER, MEADOWS

& SCHWARTZ

2121 N. California Blvd.,

Suite 1020

Walnut Creek, CA 94596 TEL: (925) 947-1147

FIRST AMENDED CLASS ACTION COMPLAINT

2

FAX (925) 947-1131

Chatoian v. County of Marin, et al. Case No. C04-02790 MJJ

Case 3:04-cv-02790-MJJ Document 33 Filed 02/01/2005 Page 3 of 16

1

3. The amount in controversy exceeds $10,000, excluding interest and

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

costs. 4.

PARTIES Plaintiff DARCELLE L. CHATOIAN, CYNTHIA TASCA, KORISSA

RUSSELL, CORIN RASMUSSEN and all those similarly situated, are, and at all

material times herein, were citizens of the United States and residents of the state of

California who were arrested within the period beginning on July 12, 2002, and

continuing to this date, and who were subjected to strip and/or visual body cavity

searches at a Marin County Jail (hereinafter referred to as the “Marin County Jail”),

prior to being arraigned and/or without the defendants first having, and recording in

writing, a reasonable suspicion that the searches would be productive of contraband or

weapons.

5. Some plaintiffs, including DARCELLE L. CHATOIAN, CYNTHIA TASCA,

and CORIN RASMUSSEN were confined by defendants, after they were strip

searched, in cells while they were nude in violation of state statues and the state and

federal statutory and constitutions.

6. Defendant MARIN COUNTY SHERIFF ROBERT T. DOLYE is, and at all

material times referred to herein, was the duly elected Sheriff of the COUNTY OF

MARIN, responsible for administering the Jail facilities and for making, overseeing, and

implementing the policies, practices, and customs challenged herein relating to the

operation of the Marin County Jail. He is sued in his individual and official capacities.

7. Defendants MARIN COUNTY SHERIFF DEPUTIES sued herein by their

fictitious names (Does 1 through 100) are all deputies who, as part of their duties at

the Marin County Jail, subjected plaintiffs to pre-arraignment strip and/or visual body

cavity searches without having, and recording in writing, a reasonable suspicion that

the searches would be productive of contraband or weapons. Furthermore,

Defendants MARIN COUNTY SHERIFF DEPUTIES sued herein by their fictitious

names (Does 1 through 100) are all deputies who, as part of their duties at the Marin

FIRST AMENDED CLASS ACTION COMPLAINT

3

Chatoian v. County of Marin, et al. Case No. C04-02790 MJJ

Case 3:04-cv-02790-MJJ Document 33 Filed 02/01/2005 Page 4 of 16

1 County Jail, confined plaintiffs in cells nude following strip searching said plaintiffs.

2

8. At all material times mentioned herein, each of the defendants was

3 acting under the color of law, to wit, under color of statutes, ordinances, regulations,

4 policies, customs and usages of the state of California, the COUNTY OF MARIN

5 and/or the MARIN COUNTY SHERIFF’S DEPARTMENT.

6

9. Defendants whose names are not now known and who are sued by the

7 fictitious names of ROES 1 through 20, are all agents and/or employees of one or

8 another of the other named defendants who ordered, condoned, authorized, covered

9 up, or were otherwise associated with the implementation of the illegal policy and

10 practices relating to strip searches and nude confinement complained of herein.

11

10. Defendant COUNTY OF MARIN is, and at all material times referred to

12 herein, was a division of the state of California, that maintained or permitted an official

13 policy or custom or practice causing or permitting the occurrence of the types of

14 wrongs complained of herein, which wrongs damaged plaintiffs as herein alleged.

15 Plaintiffs’ allegations against the COUNTY are based on acts and omissions of the

16 SHERIFF and his DEPUTIES and on acts and omissions of persons who are

17 COUNTY employees, and on the COUNTY’S breach of its duty to protect plaintiffs

18 from the wrongful conduct of said persons and employees.

19

11. Defendants MARIN COUNTY SHERIFF’S DEPARTMENT and MARIN

20 COUNTY SHERIFF ROBERT T. DOYLE, in his Individual and Official Capacity, also

21 maintained or permitted an official policy or custom of causing or permitting the

22 occurrence of the types of wrongs complained of herein, which wrongs damaged

23 plaintiffs as herein alleged.

24

12. Class action plaintiffs are those similarly situated who, commencing on or

25 after July 12, 2002, and continuing to this date, were subjected by defendants to pre-

26 arraignment strip and/or visual body cavity searches without defendants having, and

27 recording in writing, a reasonable suspicion that the searches would be productive of

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

contraband or weapons. Some of the similarly situated plaintiffs were confined by

FIRST AMENDED CLASS ACTION COMPLAINT

4

Chatoian v. County of Marin, et al. Case No. C04-02790 MJJ

Case 3:04-cv-02790-MJJ Document 33 Filed 02/01/2005 Page 5 of 16

1 defendants naked in cells following their having been subjected to strip and/or visual

2 body cavity searches.

3

JURY TRIAL DEMAND

4

13. Plaintiffs demand a jury trial in this action.

5

FACTS

6

14. On or about late July or early August 2003, plaintiff CYNTHIA TASCA

7 (hereinafter referred to as “plaintiff” or “TASCA” was arrested allegedly for disturbing

8 the peace, a misdemeanor, and transported to the Marin County Jail where she was

9 directed to remove all of her clothes to be strip searched. When she refused to

10 remove her clothes she was forcibly strip searched and confined, nude, in a cell, prior

11 to her arraignment.

12

15. On or about November 2, 2003, plaintiff DARCELLE L. CHATOIAN

13 (hereinafter referred to as “plaintiff” or “CHATOIAN”) was arrested for allegedly driving

14 under the influence in Mill Valley, California. Plaintiff CHATOIAN was taken to the

15 Marin County Jail in San Rafael, California, where all of her clothing was forcibly

16 removed by three (3) male officers and she was subjected to a visual body cavity

17 search then placed in a cell, nude, for six (6) hours until she was removed and

18 released from custody.

19

16. Within six (6) months of her arrest, plaintiff CHATOIAN filed a group

20 Government Tort Claim for herself and for all persons similarly situated. Plaintiff

21 CHATOIAN’s group claim was denied on or about March 3, 2004, allowing the filing of

22 this complaint for state statute and state constitutional violations.

23

17. On or about March 10, 2004, plaintiff KORISSA RUSSELL (hereinafter

24 referred to as “plaintiff” or ‘RUSSELL”) was arrested by members of the Marin County

25 Sheriff’s Department on two misdemeanor violations. Plaintiff RUSSELL was taken to

26 the Marin County Jail in San Rafael, California where she was subjected to a visual

27 body cavity search.

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

18. On August 17 2004, plaintiff RUSSELL filed a class Government Tort

FIRST AMENDED CLASS ACTION COMPLAINT

5

Chatoian v. County of Marin, et al. Case No. C04-02790 MJJ

Case 3:04-cv-02790-MJJ Document 33 Filed 02/01/2005 Page 6 of 16

1 Claim for herself and for all persons similarly situated.

2

19. Plaintiff RUSSELL’S class claim was denied on September 13, 2004,

3 allowing the filing of this complaint for state statute and state constitutional violations.

4

20. On or about July 4, 2004, plaintiff CORIN RASMUSSEN (hereinafter

5 referred to as “plaintiff” or “RASMUSSEN”) was arrested for allegedly driving under the

6 influence on Highway 101 in Marin County, California. Plaintiff RASMUSSEN was

7 taken to the Marin County Jail in San Rafael, California, where officers placed her in a

8 “safety cell” and ordered her to remove all her clothing. While RASMUSSEN removed

9 her clothing she was observed by male deputies. She then was left alone, naked for

10 almost an hour, after which she was given something which resembled a vest which,

11 though partially covering her, left her essentially naked. She remained in the “safety

12 cell” for approximately eight hours before she was placed in a holding cell with a male

13 prisoner. During RASMUSSEN’s entire tenure in the “safety cell” she was observed

14 through a video surveillance camera.

15

21. On August 5, 2004, plaintiff RASMUSSEN filed a class Government Tort

16 Claim for herself and for all persons similarly situated.

17

22. Plaintiff RASMUSSEN’s class claim was denied on or about September

18 13, 2004, allowing the filing of this complaint for state statute and state constitutional

19 violations.

20

23. Plaintiffs are informed and therefore allege, that defendants routinely

21 follow their policy, practice, and custom of subjecting pre-arraignment detainees,

22 including plaintiffs, to strip and visual body cavity searches without having, and

23 recording in writing, a reasonable suspicion that the search will be productive of

24 contraband or weapons.

25

24. Plaintiffs are further informed and believe, and thereon allege, that

26 defendants routinely follow their policy, practice and custom of confining detainees,

27 including plaintiffs, naked in cells following subjecting them to visual body cavity

28 searches.

CASPER, MEADOWS

& SCHWARTZ

2121 N. California Blvd.,

Suite 1020

Walnut Creek, CA 94596 TEL: (925) 947-1147

FIRST AMENDED CLASS ACTION COMPLAINT

6

FAX (925) 947-1131

Chatoian v. County of Marin, et al. Case No. C04-02790 MJJ

Case 3:04-cv-02790-MJJ Document 33 Filed 02/01/2005 Page 7 of 16

1

25. Plaintiffs are informed and believe, and thereon allege, that defendants

2 have the ability to identify all such similarly situated plaintiffs, specifically those who,

3 while in defendants’ custody at the Marin County Jail since July 12, 2002, were

4 subjected to strip searches and/or visual body cavity searches prior to arraignment

5 without defendants first having and recording, a reasonable suspicion that the

6 searches would be productive of contraband or weapons.

7

26. Defendant MARIN COUNTY SHERIFF ROBERT T. DOYLE is personally

8 responsible for the promulgation and continuation of the strip search policy, practice,

9 and custom pursuant to which some of the plaintiffs herein were subjected to the

10 searches complained of herein.

11

27. As a result of being subjected to the searches complained of herein,

12 plaintiffs, and each of the persons similarly situated, suffered physical, mental, and

13 emotional distress, invasion of privacy, and violation of due process of law and state

14 and federal statutory and constitutional rights, and are entitled to recover damages

15 according to proof but, at a minimum, $1,000 as specified in California Penal Code §

16 4030(p) and $4,000 as specified in California Civil Code § 52 and § 52.1(b).

17

28. As a result of being confined, naked, in a cell as complained of herein,

18 following being strip searched, each of the plaintiffs suffered physical, mental, and

19 emotional distress and violation of due process of law and state and federal statutory

20 and constitutional rights, and is entitled to recover damages according to proof, but a

21 minimum of $4,000 as specified in California Civil Code § 52 and § 52.1(b).

22

CLASS CLAIMS

23

29. The strip and visual body cavity searches to which plaintiffs were

24 subjected were performed pursuant to policies, practices, and customs of defendants

25 MARIN COUNTY SHERIFF ROBERT T. DOYLE, MARIN COUNTY SHERIFF’S

26 DEPARTMENT, COUNTY OF MARIN, the individual SHERIFF’S DEPUTIES sued

27 herein by the fictitious names 1 through 100, and the individuals whose names are not

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

now known and who are sued by the fictitious names of ROES 1 through 20. The

FIRST AMENDED CLASS ACTION COMPLAINT

7

Chatoian v. County of Marin, et al. Case No. C04-02790 MJJ

Case 3:04-cv-02790-MJJ Document 33 Filed 02/01/2005 Page 8 of 16

1 searches complained of herein were performed without regard to the nature of the

2 alleged offenses for which plaintiffs had been arrested, without regard to whether or

3 not plaintiffs were eligible for cite and release under Penal Code § 853.6, without

4 regard to whether or not plaintiffs were eligible for and/or were released on their own

5 recognizance. Furthermore, the searches complained of herein were performed

6 without defendants having a reasonable belief that the plaintiffs so searched

7 possessed weapons or contraband, or that there existed facts supporting a reasonable

8 belief that the searches would produce contraband, and those facts being articulated

9 and recorded in a supervisor-approved document.

10

30. Plaintiffs bring this action on their own behalf and on behalf of all persons

11 similarly situated pursuant to Rule 23, Federal Rules of Civil Procedure and California

12 Code of Civil Procedure § 382.

13

31. The class is defined to include all persons who, in the period from and

14 including July 12, 2002, to the present and continuing until this matter is adjudicated

15 and the practices complained of herein cease, were arrested and subjected to a pre-

16 arraignment strip and/or visual body cavity search at the Marin County Jail without

17 defendants having, and recording, a reasonable suspicion that the search would be

18 productive of contraband or weapons.

19

32. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the

20 members of the class are so numerous that joinder of all members is impractical.

21 Plaintiffs do not know the exact number of class members. Plaintiffs are informed and

22 believe, and thereupon allege, that there are more than 10 persons per day who are

23 arrested by defendants and/or in the custody of defendants and subjected to the

24 searches complained of herein as a result of defendants’ policy, practice, and custom

25 relating to said searches.

26

33. In accordance with Federal Rules of Civil Procedure, Rule 23(a),

27 plaintiffs are informed and believe, and thereupon allege, that there are many

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

questions of fact common to the class including, but not limited to: (1) whether

FIRST AMENDED CLASS ACTION COMPLAINT

8

Chatoian v. County of Marin, et al. Case No. C04-02790 MJJ

Case 3:04-cv-02790-MJJ Document 33 Filed 02/01/2005 Page 9 of 16

1 defendants routinely subject all persons arrested to visual body cavity searches prior

2 to arraignment if they intend such persons to be housed in the Marin County Jail; (2)

3 whether persons are subjected to visual body cavity searches prior to arraignment

4 without there being any reasonable suspicion, based on specific or articulable facts, to

5 believe any particular arrestee has concealed drugs, weapons, and/or contraband in

6 bodily cavities which could be detected by means of a visual body cavity search; (3)

7 whether the visual body cavity searches are conducted in an area of privacy so that

8 the searches cannot be observed by persons not participating in the searches, or

9 whether the visual body cavity searches are conducted in groups and/or in open areas

10 where they may be observed by persons not participating in the searches; and, (4)

11 whether the visual body cavity searches are reasonably related to defendants’

12 penological interest to maintain the security of the jail and whether or not there are

13 less intrusive methods for protecting any such interest.

14

34. In accordance with Federal Rules of Civil Procedure, Rule 23(a),

15 plaintiffs are informed and believe, and thereupon allege, that there are many

16 questions of law common to the class including, but not limited to: (1) whether

17 defendants may perform visual body cavity searches on persons prior to their

18 arraignment without reasonable suspicion, based on specific or articulable facts, to

19 believe any particular inmate has concealed drugs, weapons and/or contraband which

20 would likely be discovered by a visual body cavity search; (2) whether defendants may

21 perform visual body cavity searches on persons without first reasonably relating the

22 use of the visual body cavity search to defendants’ penological interest to maintain the

23 security of the jail and determining if there is a less intrusive method to protect that

24 interest; (3) whether visual body cavity searches may be conducted in areas where the

25 search can be observed by people not participating in the search without violating

26 plaintiffs’ State and Federal constitutional rights and the protections afforded to

27 plaintiffs under California Penal Code section 4030; and, (4) whether or not

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

defendants’ strip search policy and procedure is in accordance with the State and/or

FIRST AMENDED CLASS ACTION COMPLAINT

9

Chatoian v. County of Marin, et al. Case No. C04-02790 MJJ

Case 3:04-cv-02790-MJJ Document 33 Filed 02/01/2005 Page 10 of 16

1 Federal Constitution.

2

35. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the

3 claims of the representative plaintiffs are typical of the class. Plaintiffs were searched,

4 prior to arraignment, without reasonable suspicion that a strip or visual body cavity

5 search would produce drugs, weapons or contraband (and without the facts supporting

6 any such suspicion being articulated in a supervisor-approved writing), and named

7 plaintiffs were placed in cells, nude, for extended periods of time (in excess of one

8 hour). Representative plaintiffs have the same interests and suffered the same type of

9 injuries as all of the class members. Plaintiffs’ claims arose because of defendants’

10 policy, practice, and custom of subjecting arrestees to strip and/or visual body cavity

11 searches before arraignment without having, and recording in writing, a reasonable

12 suspicion that the search would be productive of contraband or weapons. Additionally,

13 plaintiffs, in accordance with defendants’ policy, practice, and custom, were improperly

14 and unjustifiably confined, nude, in cells for extended periods of time. Plaintiffs’

15 claims are based upon the same legal theories as the claims of the class members.

16 Each class member suffered actual damages either as a result of being subjected to a

17 visual body cavity search and/or as a result of being improperly and unjustifiably

18 placed and confined in a cell nude. The actual damages suffered by representative

19 plaintiffs are similar in type and amount to the actual damages suffered by each class

20 member.

21

36. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the

22 representative plaintiffs will fairly and adequately protect the class interests. Plaintiffs’

23 interests are consistent with and not antagonistic to the interests of the class.

24

37. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(A),

25 prosecutions of separate actions by individual members of the class would create a

26 risk that inconsistent or varying adjudications with respect to individual members of the

27 class would establish incompatible standards of conduct for the parties opposing the

28 class.

CASPER, MEADOWS

& SCHWARTZ

2121 N. California Blvd.,

Suite 1020

Walnut Creek, CA 94596 TEL: (925) 947-1147

FIRST AMENDED CLASS ACTION COMPLAINT

10

FAX (925) 947-1131

Chatoian v. County of Marin, et al. Case No. C04-02790 MJJ

Case 3:04-cv-02790-MJJ Document 33 Filed 02/01/2005 Page 11 of 16

1

38. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(B),

2 prosecutions of separate actions by individual members of the class would create a

3 risk of inconsistent adjudications with respect to individual members of the class which

4 would, as a practical matter, substantially impair or impede the interests of the other

5 members of the class to protect their interests.

6

39. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(2),

7 plaintiffs are informed and believe, and thereupon allege, that defendants have acted

8 on grounds generally applicable to the class, thereby making appropriate the final

9 injunctive or declaratory relief with respect to the class as a whole.

10

40. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), this

11 class action is superior to other available methods for the fair and equitable

12 adjudication of the controversy between the parties. Plaintiffs are informed and

13 believe, and thereupon allege, that the interests of members of the class in individually

14 controlling the prosecution of a separate action is low, in that most class members

15 would be unable individually to prosecute any action at all. Plaintiffs are informed and

16 believe, and thereupon allege, that the amounts at stake for individuals are so small

17 that separate suits would be impracticable. Plaintiffs are informed and believe, and

18 thereupon allege, that most members of the class will not be able to find counsel to

19 represent them. Plaintiffs are informed and believe, and thereupon allege, that it is

20 desirable to concentrate all litigation in one forum because all of the claims arise in the

21 same location; i.e., the MARIN COUNTY JAIL. It will promote judicial efficiency to

22 resolve the common questions of law and fact in one forum, rather than in multiple

23 courts.

24

41. Plaintiffs do not know the identities of all of the class members. Plaintiffs

25 are informed and believe, and thereupon allege, that the identities of the class

26 members may be ascertained from records maintained by the COUNTY OF MARIN

27 and defendant SHERIFF ROBERT T. DOYLE and defendant MARIN COUNTY

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

SHERIFF’S DEPARTMENT. Plaintiffs are informed and believe, and thereupon

FIRST AMENDED CLASS ACTION COMPLAINT

11

Chatoian v. County of Marin, et al. Case No. C04-02790 MJJ

Case 3:04-cv-02790-MJJ Document 33 Filed 02/01/2005 Page 12 of 16

1 allege, that defendants’ records reflect the identities, including addresses and

2 telephone numbers, of the persons who have been held in custody in the Marin

3 County Jails. Plaintiffs are informed and believe, and thereupon allege, that records

4 of, and maintained by defendants reflect who was subject to a strip and/or visual body

5 cavity search, when the search occurred, where the search occurred, whether any

6 reasonable suspicion for the search existed and was recorded in a supervisor-

7 approved writing, when persons searched were arraigned, the charges on which such

8 persons were arrested, whether persons were confined in cells nude, the justification

9 recorded for placing individuals in cells nude, how long individuals remained in cells

10 nude, and what treatment they received while so confined. Plaintiffs are informed and

11 believe, and thereupon allege, that all of the foregoing information is contained in

12 defendants’ computer system and that the information necessary to identify the class

13 members, by last known addresses, and the dates and reasons for their arrests and/or

14 release from custody, is readily available from said computer system.

15

42. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), class

16 members must be furnished with the best notice practicable under the circumstances,

17 including individual notice to all members who can be identified through reasonable

18 effort. Plaintiffs are informed and believe, and thereupon allege, that defendants’

19 computer records contain a last known address for class members. Plaintiffs

20 contemplate that individual notice will be given to class members at such last known

21 address by first class mail. Plaintiffs contemplate that the notice will inform class

22 members of the following:

23

1. The pendency of the class action and the issues common to the class;

24

2. The nature of the action;

25

3. Their right to "opt out" of the action within a given time, in which event

26 they will not be bound by a decision rendered in the class action;

27

4. Their right, if they do not "opt out," to be represented by their own

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

counsel and to enter an appearance in the case; otherwise they will be represented by

FIRST AMENDED CLASS ACTION COMPLAINT

12

Chatoian v. County of Marin, et al. Case No. C04-02790 MJJ

Case 3:04-cv-02790-MJJ Document 33 Filed 02/01/2005 Page 13 of 16

1 the named class plaintiffs and their counsel; and

2

5. Their right, if they do not "opt out," to share in any recovery in favor of

3 the class, and conversely to be bound by any judgment on the common issues

4 adverse to the class.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

COUNT ONE Violation of Fourth and Fourteenth Amendments to the U.S. Constitution
(On Behalf Of Plaintiffs And All Persons Similarly Situated) 43. Defendants’ policies, practices, and customs regarding the strip and visual body cavity searches complained of herein violated plaintiffs’ rights under the Fourth Amendment to be free from unreasonable searches and seizures, violated said plaintiffs’ rights to due process and privacy under the Fourteenth Amendment, and directly and proximately damaged plaintiffs as herein alleged, entitling plaintiffs to recover damages for said constitutional violations pursuant to 42 U.S.C. § 1983. WHEREFORE, plaintiffs pray for relief as hereunder appears.
COUNT TWO
Violation Of The Fourth And Fourteenth Amendments To U.S. Constitution, 42 U.S.C. §1983
(On Behalf Of Plaintiffs And All Persons Similarly Situated) 44. Defendants’ policies, practices, and customs regarding confining persons in cells nude as complained of herein violated plaintiffs’ Fourth Amendment right to be free from unreasonable searches and seizures and plaintiffs’ rights to due process under the Fourteenth Amendment, and directly and proximately damaged plaintiffs as herein alleged, entitling plaintiffs to recover damages for said constitutional violations pursuant to 42 U.S.C. § 1983, in addition to other damages.
WHEREFORE, plaintiffs pray for relief as hereunder appears. ///// ///// /////
COUNT THREE

FIRST AMENDED CLASS ACTION COMPLAINT

13

Chatoian v. County of Marin, et al. Case No. C04-02790 MJJ

Case 3:04-cv-02790-MJJ Document 33 Filed 02/01/2005 Page 14 of 16

1

California State Unruh Civil Rights Act, Civil Code §§ 52 and 52.1

2

(On Behalf Of Plaintiffs [Except Tasca] And All Persons Similarly Situated)

3

45. Defendants’ policies, practices, and customs regarding the strip and

4 visual body cavity searches complained of herein violated plaintiffs’ rights to privacy as

5 secured by Article I, Section 1 of the California Constitution and directly and

6 proximately damaged plaintiffs as herein alleged, entitling said plaintiffs to recover a

7 minimum of $4,000 each pursuant to California Civil Code § 52.1 and § 52, in addition

8 to other damages.

9

WHEREFORE, plaintiffs pray for relief as hereunder appears.

10

COUNT FOUR

11 Violation of California Penal Code § 4030,

12

California State Unruh Civil Rights Act, Civil Code §§ 52 and 52.1,

(On Behalf Of Plaintiffs [Except Tasca] And All Persons Similarly Situated) 13
46. Defendants’ policies, practices, and customs regarding the strip and

14 visual body cavity searches complained of herein violated rights secured to plaintiffs

15 under California Penal Code § 4030 and directly and proximately damaged plaintiffs as

16 herein alleged, entitling said plaintiffs to recover a minimum of $1,000 each pursuant

17 to California Penal Code § 4030(p), and to further minimum damages of $4,000 each

18 pursuant to California Civil Code § 52.1 and § 52, in addition to other damages.

19 WHEREFORE, plaintiffs pray for relief as hereunder appears.

20 COUNT FIVE

21 (California State Bane Act, Civil Code §§ 52 and 52.1,

22

(On Behalf Of Plaintiffs [Except Tasca] And All Persons Similarly Situated)

23

47. Defendants’ policies, practices, and customs regarding their confining

24 persons in cells nude as complained of herein has violated plaintiffs’ rights to due

25 process of law and freedom from unreasonable searches and seizures as secured by

26 the California Sate Constitution, Article I, Section 24, and directly and proximately

27 damaged plaintiffs as herein alleged, entitling each said plaintiff to recover a minimum

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

of $4,000 each pursuant to California Civil Code § 52.1 and § 52, in addition to other

FIRST AMENDED CLASS ACTION COMPLAINT

14

Chatoian v. County of Marin, et al. Case No. C04-02790 MJJ

Case 3:04-cv-02790-MJJ Document 33 Filed 02/01/2005 Page 15 of 16

1 damages.

2 WHEREFORE, plaintiffs pray relief as hereunder appears.

3

PRAYER FOR RELIEF

4

WHEREFORE, plaintiffs seek judgment as follows:

5

1. For declaratory and injunctive relief declaring illegal and enjoining,

6 preliminarily and permanently, defendants’ policies, practices, and customs of

7 subjecting pre-arraignment detainees to strip and visual body cavity searches without

8 having a reasonable suspicion that such searches would be productive of contraband

9 or weapons and of using the “safety cells” to compel compliance or to punish

10 detainees.

11

2. Certification of the action as a class action;

12

3. For compensatory, general, and special damages for each

13 representative and for each member of the class of plaintiffs, as against all

14 defendants, except that plaintiffs seek no damages against the County of Marin or the

15 Marin County Sheriff’s Department for violations of State law and seek no damages

16 against Sheriff Robert T. Doyle for violations of California Civil Code § 52.

17

4. Exemplary damages as against each of the individual defendants in an

18 amount sufficient to deter and to make an example of those defendants;

19

5. In addition to compensatory and statutory damages as allowed by law, at

20 least $4,000 for each plaintiff pursuant to California Civil Code §§ 52 and 52.1, except

21 that plaintiffs seek no damages against Sheriff Robert T. Doyle for violations of

22 California Civil Code § 52, or against the County of Marin or Marin County Sheriff’s

23 Department for violations of § 52.1.

24

6. Attorneys’ fees and costs under 42 U.S.C. § 1988, California Civil Code §

25 52(b)(3), California Civil Code § 52.1(h), and California Code of Civil Procedure §

26 1021.5; and

27

7. The cost of this suit and such other relief as the court finds just and

28 proper.

CASPER, MEADOWS

& SCHWARTZ

2121 N. California Blvd.,

Suite 1020

Walnut Creek, CA 94596 TEL: (925) 947-1147

FIRST AMENDED CLASS ACTION COMPLAINT

15

FAX (925) 947-1131

Chatoian v. County of Marin, et al. Case No. C04-02790 MJJ

Case 3:04-cv-02790-MJJ Document 33 Filed 02/01/2005 Page 16 of 16

1 DATED: February 1, 2005
2 Respectfully submitted,
3
4

LAW OFFICE OF MARK E. MERIN and CASPER, MEADOWS & SCHWARTZ

5

/s/

6

BY:

Mark E. Merin

7

Attorney for Plaintiffs

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CASPER, MEADOWS

& SCHWARTZ

2121 N. California Blvd.,

Suite 1020

Walnut Creek, CA 94596 TEL: (925) 947-1147

FIRST AMENDED CLASS ACTION COMPLAINT

16

FAX (925) 947-1131

Chatoian v. County of Marin, et al. Case No. C04-02790 MJJ

 
 Chatoian v. County of Marin, Not Reported in F.Supp.2d (2006)

2006 WL 568312 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
CHATOIAN et al., Plaintiffs, v.
COUNTY OF MARIN et al., Defendants.
No. C04-02790 MJJ. | March 3, 2006.
Attorneys and Law Firms
Andrew C. Schwartz, Casper Meadows & Schwartz, Walnut Creek, CA, Mark E. Merin, Esq., Jeffrey I. Schwarzschild, Law Office of Mark E. Merin, Sacramento, CA, for Plaintiffs.
Terence J. Cassidy, Porter, Scott, Weiberg & Delehant, Sacramento, CA, for Defendants.
Opinion
ORDER RE SUPPLEMENTAL BRIEFING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
MARTIN J. JENKINS, J.
*1 Pending before the Court is Defendants’ Motion for Summary Judgment (Doc. # 45). Plaintiffs have filed an Opposition (Doc. # 51), and Defendants have filed a Reply (Doc. # 54). After reviewing the parties’ briefs, the Court has identified certain critical deficiencies in the parties’ arguments which necessitate additional briefing before the Court can resolve the pending Motion.
As an initial matter, both parties agree that Plaintiffs’ federal 1983 claims hinge on Plaintiffs’ ability to establish municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Particularly, Plaintiffs must demonstrate: (1) that Plaintiffs possessed a constitutional right of which they were deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to Plaintiffs’ constitutional right; and (4) that the policy is the moving force behind the constitutional violation. Id. at 694. While the parties recognize this as the controlling framework, their discussions diverge as to exactly what policies, practices, or customs form the basis of Plaintiffs’ claims.
Specifically, Defendants’ Motion is premised on the

constitutionality of the Marin County Jail’s written policies concerning strip searches and safety cell placement. Briefly stated, Defendants contend that neither of the written policies violates the Fourth and Fourteenth Amendments. Interestingly, notwithstanding the existence of these two written policies, Defendants further argue that Plaintiffs’ cannot establish municipal liability under Monell because Plaintiffs have failed to produce evidence of a policy, practice, or custom or that such policy, practice or custom was the “moving force” behind the County deputies’ alleged unconstitutional conduct. Given the fact that Defendants’ appear to be arguing that the County Jail staff acted pursuant to, and in accordance with, the written policies regarding strip searches and safety cell placement, it is difficult to square these two components of Defendants’ Motion.
In their Opposition, Plaintiffs wholly ignore the written policies, and instead identify three informal policies, customs, and practices that they claim led to the purported constitutional violations. Namely, Plaintiffs proffer the following: (1) suicidal detainees must remove their clothes after being placed in the safety cells; (2) deputies will forcibly remove the clothes of suicidal detainees who fail to remove their clothes; and (3) male deputies will assist in the removal of clothes of suicidal detainees who do not voluntarily disrobe. According to Plaintiffs, these practices violate their Fourth and Fourteenth Amendment rights.
Lining up Defendants’ Motion and Plaintiffs’ Opposition, it appears that there is a disconnect between the parties as to the basis of Plaintiffs’ federal claims. Specifically, Defendants are moving for summary judgment based on their written policies, and Plaintiffs are defending (and presumably seek to proceed with their claims) based on informal, unwritten policies relating to strip searches and safety cell placement of suicidal and/or violent detainees. Based on this divergence, the Court Orders as follows:
*2 Within 10 days of the filing date of this Order, Defendants and Plaintiffs shall each file a Supplemental Brief, not exceeding 10 pages, responding to the opposing party’s arguments concerning Plaintiffs’ federal claims. Specifically, Defendants shall address Plaintiffs’ claims based on the policies, practices, and customs as identified in Plaintiff’s Opposition in light of the Monell factors and pertinent Fourth and Fourteenth Amendment precedent. Likewise, Plaintiffs shall address Defendants’ arguments regarding the County Jail’s written policies regarding strip searches and safety cell placement. If Plaintiffs do not seek to rely on the written policies as the basis of their federal claims, Plaintiff shall so indicate. Any discussion in the briefs exceeding the scope of the issues identified above will be stricken. Further, the Court VACATES the hearing current set for March 7, 2006, and sets a
1

Chatoian v. County of Marin, Not Reported in F.Supp.2d (2006)

telephonic status conference for March 7, 2006 at 2:00 p.m.1

1

Plaintiffs shall initiate the conference call with

Defendants and call into chambers at (415) 522-4141 at

the stated time.

IT IS SO ORDERED.
	  

2

 
 Chatoian v. County of Marin, Not Reported in F.Supp.2d (2007)

2007 WL 4557792 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
CHATOIAN et al, Plaintiff, v.
COUNTY OF MARIN et al, Defendant.
No. C04-02790 MJJ. | Dec. 21, 2007.
Attorneys and Law Firms
Mark E. Merin, Esq., Law Office of Mark E. Merin, Sacramento, CA, Andrew Charles Schwartz, Casper, Meadows, Schwartz & Cook, Walnut Creek, CA, for Plaintiff.
Terence J. Cassidy, Porter Scott, Sacramento, CA, for Defendant.
Opinion
ORDER DENYING PLAINTIFFS’ MOTION TO AMEND AND GRANTING DEFENDANT’S MOTION TO STRIKE/DISMISS
MARTIN J. JENKINS, District Judge.
INTRODUCTION
*1 Before the Court is Plaintiffs Darcelle Chatoian (“Chatoian”), Cynthia Tasca (“Tasca”), Corin Rasmussen (“Rasmussen”), and Korissa Russell’s (“Russell”) (collectively, “Plaintiffs”) Motion to Amend Class Action. (Docket No. 74.) Defendants County of Marin (“the County”), Marin County Sheriff’s Department (“Sheriff’s Department”), and Marin County Sheriff Robert Doyle’s (“Sheriff Doyle”) (collectively, “Defendants”) oppose Plaintiffs’ Motion. Also before the Court is Defendants’ Motion to Strike/Dismiss the Doe Defendants from the First Amended Complaint (“FAC”). (Docket No. 80.)
Coming after this Court’s grant of summary judgment in favor of all named Defendants on all counts, Plaintiffs now seek to amend their FAC to substitute previously named Does 1 through 25 with the actual names of the individual deputies involved. For the following reasons, the Court DENIES Plaintiffs’ Motion to Amend and

GRANTS Defendants’ Motion to Strike/Dismiss the Doe Defendants.
FACTUAL BACKGROUND
Plaintiffs bring this civil rights action for violations of their constitutional rights resulting from unlawful strip searches. Generally, Plaintiffs allege Marin County Sheriff’s deputies (“Deputies”) subjected Plaintiffs to “pre-arraignment strip and/or visual body cavity searches” without reasonable suspicion that the searches would produce contraband. (FAC at ¶ 7.)
Specifically, the FAC sets forth the following incidents of improper conduct by the Deputies toward Plaintiffs following their arrest and transport to Marin County Jail: (1) that, around late July or early August, 2003, Deputies forcibly stripped search Plaintiff Tasca and confined her in the nude when she refused to remove her clothes willingly (Id. at ¶ 14); (2) that, on or about November 2, 2003, three male Deputies forcibly removed Plaintiff Chatoian’s clothes and placed her nude in a cell (Id. at ¶ 15); (3) that, on or about March 10, 2004, Deputies subjected Plaintiff Russell to a visual body cavity search (Id. at ¶ 17); and (4) that, on or about July 4, 2004, several male Deputies observed Plaintiff Rasmussen undress after being ordered to removed her clothing inside her cell (Id. at ¶ 20).
Plaintiffs assert federal claims under 42 U.S.C. § 1983, as well as state-law claims under California Penal Code § 4030 and the Bane Civil Rights Act (California Civil Code § 52 and 52.1(b)). Plaintiffs currently list, however, only the County, the Sheriff’s Department, and Sheriff Doyle as named defendants. (Id. at ¶¶ 6, 10, 11.) Plaintiffs sued all Deputies involved in the alleged acts as Does 1-100, and sued unknown policymakers as Roes 1-20. (Id. at ¶¶ 7, 9.) Neither the Complaint nor First Amended Complaint declare specific ignorance as to the Deputies’ identities. (See id. at ¶ 7.)
PROCEDURAL BACKGROUND
Plaintiffs filed their Complaint and First Amended Complaint on July 12, 2004, and February 1, 2005, respectively. (Docket Nos. 1, 33.) On December 7, 2004 and February 11, 2005, the parties filed the original and amended Joint Case Management Statements, respectively, which described all parties to the action as served and foresaw only the addition of new plaintiffs. (See Cassidy Decl. at ¶¶ 7-8, Exs. E, F; Docket Nos. 25,
1

Chatoian v. County of Marin, Not Reported in F.Supp.2d (2007)

35.) On March 24, 2005, Defendants submitted, in their Rule 26(a)(1) disclosures, the names and contact information of twenty four police officers and deputies thought to be involved in the alleged incidents. (Cassidy Decl. at ¶ 3, Ex. C at 2-5.) By November 9, 2005, Plaintiffs had deposed many of the Deputies, who identified themselves and others as involved in the incidents alleged. (Cassidy Decl. at ¶ 4.)
*2 On January 1, 2006, the named Defendants filed a Motion for Summary Judgment originally set to be heard March 7, 2006. (Docket No. 45.) This Court later vacated the hearing and ordered supplemental briefing on the issues. (Docket No. 58.) After the parties argued the Motion on March 27, 2007, this Court filed an order on April 6, 2007, granting summary judgment in favor of the named Defendants on all counts. (Docket No. 73.) This Court refrained, however, from granting summary judgment as to the unnamed individual defendants. On June 5, 2007, Plaintiffs filed the current motion to amend their complaint substitute the names of individual Deputies for Does 1 through 25.
ANALYSIS

courts); Lindley v. General Electric Co., 780 F.2d 797, 800-01 (9th Cir.1986) (“we adopt Rumberg as the law of the circuit”). In particular, taken together, California Code of Civil Procedure Sections 474 and 583.210 specify “a plaintiff who names a Doe defendant in his complaint and alleges that the defendant’s true name is unknown has three years from the commencement of the action in which to discover the identity of the Doe defendant, to amend the complaint accordingly, and to effect service of the complaint.” Lindley, 780 F.2d at 799 (citing Cal.Civ.Proc.Code §§ 474, 581a).1 “There can be little doubt that §§ 474 and 583.210, taken together, are ‘integral’ to California’s statute of limitations scheme and embody state substantive policy.” Brennan, 626 F.Supp. at 929.

1

California Code of Civil Procedure Section 581 a,

discussed in Rumberg and Lindley, is the predecessor to

current California Code of Civil Procedure 583.210.

Both set a three-year cap on serving Doe defendants

from the date the original complaint is filed. See

Brennan v. Lermer Corp., 626 F.Supp. 926, 931 n. 8

(N.D.Cal.1986); Mike Silverman & Associates v. Drai,

659 F.Supp. 741, 744 n. 5 (C.D.Cal.1987); Lindley, 780

F.2d at 799 n.3 (“[Section 581a] has since been

repealed, but a virtually identical provision has been

enacted as Cal.Civ.Proc.Code § 583.210.”).

A. California Law, Rather Than The Federal Rules, Governs Plaintiffs’ Request To Substitute The Deputies For Doe Defendants. The law is clear that state statute of limitations, including relation back provisions, generally govern Section 1983 actions. See Merritt v. County of Los Angeles, 875 F.2d 765, 768 (9th Cir.1989). However, the parties dispute the applicable legal standard governing Plaintiff’s request to amend its complaint to substitute the Deputies for the Doe defendants. Defendants contend that Rule 15 governs Plaintiffs’ request to amend their First Amended Complaint, and that the request should therefore be denied because of Plaintiffs’ considerable delay in seeking leave to amend and the resulting prejudice to Defendants. Plaintiffs aver that their request for leave to amend is governed instead by California Code of Civil Procedure Section 474, and that because Plaintiffs have complied with the requirements of that statute, leave to amend should be granted.
The Court agrees with Plaintiffs that, under Ninth Circuit precedent, it is obligated to follow California law, rather than Federal Rule of Civil Procedure 15, in determining whether Plaintiff may substitute the Deputies for the Doe defendants. See Rumberg v. Weber Aircraft Corp., 424 F.Supp. 294, 297-98 (C.D.Cal.1976) (California’s “qualified four-year limitations period” governing Doe actions embodied in California Code of Civil Procedure is substantive law under Erie and can be applied by federal

B. Plaintiffs Have Complied With California Code Of Civil Procedure Section 474. *3 For purposes of Section 474, the primary focus is on Plaintiffs’ actual knowledge regarding the identity of the fictitious defendants at the time of the initial complaint, and not on the diligence of the party after the filing of the initial complaint in discovering the identities of the fictitious defendants. See Joslin v. H.A.S. Brokerage, 184 Cal.App.3d 369, 376, 228 Cal.Rptr. 878 (1986) (“There is no requirement under § 474 that a plaintiff exercise reasonable diligence in discovering either the true identity of fictitious defendants or the facts giving him a cause of action against such person.”); Balon v. Drost, 20 Cal.App.4th 483, 487, 25 Cal.Rptr.2d 12 (1993) (“Section 474 is restricted to the knowledge of the plaintiff at the time of the filing of the complaint.”) (quotation omitted). Accordingly, Defendants’ evidence that Plaintiffs learned the identities of the Deputies soon after they filed the action has little bearing on whether Section 474 has been satisfied.2

2

At least one California authority indicates that courts

can decline to let plaintiffs invoke Section 474 to

substitute named defendants for Doe defendants where

there is a showing of unreasonable delay or specific

prejudice. See Sobeck & Associates, Inc. v. B 7 R

Investments No. 24, 215 Cal.App.3d 861, 869, 264

2

Chatoian v. County of Marin, Not Reported in F.Supp.2d (2007)

Cal.Rptr. 156 (1989). Here, however, Defendants have not made a sufficient showing of undue delay or specific prejudice. Though Plaintiffs’ delay in seeking to substitute the individual Deputies was substantial, the Court does not find the delay to be unreasonable on this record, particularly given the state of the proceedings, in which discovery has not closed and a trial date has not been set. Moreover, Defendants do not make any showing of specific prejudice with respect to the interests of the individual Deputies.
Defendants contend that Section 474 should not apply because Plaintiffs are not merely substituting in named defendants, but are seeking to file a “new and different” claim that no longer proceeds on a Monell theory of liability. The relevant test under California law, however, is whether the amendment is based on the “same general set of facts” as the original and refers to the “same accident and same injuries.” Austin v. Massachusetts Bonding & Ins. Co., 56 Cal.2d 596, 600-01, 15 Cal.Rptr. 817, 364 P.2d 681 (1961); see also Fireman’s Fund Ins. Co. v. Sparks Const., Inc., 114 Cal.App.4th 1135, 1150, 8 Cal.Rptr.3d 446 (2004). Plaintiffs’ claims against the Deputies clearly meet this standard. Indeed, the specific actions of the deputies in conducting strip and body cavity searches has been the foundation of Plaintiffs’ claims from the beginning, and the question of whether an underlying constitutional violation occurred was already an element of Plaintiff’s Monell-based theory of liability.
Plaintiffs’ failure to explicitly allege that they did not know the true identity of the Does, at the time the initial complaint was filed, does not prevent them from invoking Section 474 under California law. There is no indication in the FAC, nor evidence before the Court, that Plaintiffs were aware of the identities of the Doe defendants at the time that they filed the FAC. Indeed, Defendants themselves contend that Plaintiffs learned the identities of the individual deputies “early in the case through discovery” (Opp. at 6:6-7), not prior to filing the complaint. Under such circumstances, Plaintiffs’ technical failure to allege actual ignorance of the identities of the Does will not bar further amendment to substitute named defendants. See Dieckmann v. Superior Court, 175 Cal.App.3d 345, 356-58, 220 Cal.Rptr. 602 (1985).
Accordingly, the Court finds that Plaintiffs have complied with California Code of Civil Procedure Section 474.
C. Plaintiffs Have Not Complied With California Code Of Civil Procedure Section 583.210. *4 The same authorities that establish that Section 474 governs here also make clear that Section 583.210, California’s three-year limitation on serving Doe defendants with process, is also applicable as part of

California’s substantive limitations scheme.3 Section 583.210 requires the summons and complaint to be served within 3 years of filing, and for return of summons within 60 days after the 3-year period expires. Defendants specifically move to dismiss and/or strike the claims against the Deputies on this basis.

3

See Rumberg, 424 F.Supp. at 298 (“Although CCP s

474 gives a plaintiff extra time to uncover the identity

of an unknown defendant, [Section 583.210’s

predecessor statute] CCP s 581a sets the outside time

limit at three years after the complaint is filed”);

Lindley, 780 F.2d at 799 (under Section 583.210’s

“nearly identical” predecessor statute, Section 581a, a

plaintiff who names a Doe defendant in his complaint

“has three years from the commencement of the action

... to effect service of the complaint”); Silverman, 659

F.Supp. at 744 (“under California law, a plaintiff’s

failure to identify and serve fictitious defendants within

three years of the date the complaint is filed bars any

later action against those defendants”); Brennan, 626

F.Supp. at 929-30 (Section 474 “toll[s] the statute of

limitations as of the date the original complaint is filed,

provided the defendant is identified and served within

the three years prescribed by § 583.210”).

Because Plaintiffs filed their initial complaint on July 12, 2004,4 Plaintiffs were obligated under Section 583.210 to serve the individual Deputies no later than July 12, 2007. Here, Plaintiffs filed their motion to amend the complaint on June 5, 2007, before the deadline to serve the Deputies, but noticed the hearing for August 7, 2007, a date after the service deadline. In their reply brief field July 20, 2007-after the service deadline-Plaintiffs acknowledge that this the Deputies were not served before the Section 583.210 deadline, arguing:

4

Defendants’ opposition brief inaccurately states the

date that Plaintiffs’ original complaint was filed.

(Opposition at 2:1 and 11:28-12:1.)

Plaintiffs aver that fictitious Doe Defendants are not parties to the action, as leave has not yet been granted to include them in the litigation. Plaintiffs request leave of court to substitute named Defendants, and upon the granting of leave, Defendants will be duly served as parties to the litigation. (Reply at 9:3-7.)5

5

Similarly, when the requirements of Section 583.210

were discussed at oral argument, Plaintiffs did not

contend that the individual Deputies had been served

prior to the three-year deadline.

Plaintiffs’ failure to serve the Deputies prior to July 12, 3

Chatoian v. County of Marin, Not Reported in F.Supp.2d (2007)

2007 is fatal to their attempt to assert individual claims against these Doe defendants. The three-year limit is “mandatory” and is “not subject to extension, excuse, or exception except as expressly provided by statute.” Cal.Civ.Proc.Code § 583.250(b); see also Tzolov v. International Jet Leasing, Inc., 214 Cal.App.3d 325, 327, 262 Cal.Rptr. 606 (1989). None of the enumerated bases on which the three-year time limit on service can be tolled exist in the present action. See Cal.Civ.Proc.Code §§ 583.220 (tolling where general appearance entered by defendant in question), 583.240 (tolling where defendant not amenable to process of the court, action was stayed and stay affected service, validity of service was subject of litigation, or service was impossible, impracticable or futile due to causes beyond plaintiff’s control) & 583.330 (tolling based on written stipulation or oral agreement in open court); accord Silverman, 659 F.Supp. at 745 n. 6; Tzolov, 214 Cal.App.3d at 327, 262 Cal.Rptr. 606.
Plaintiffs argue that Section 583.210 should not bar suit because Plaintiffs managed to file the instant motion for leave to amend before the three-year service deadline. Plaintiffs contend that, as a practical matter, they cannot serve the complaint on the Deputies until after leave to amend has been granted. The Court finds this argument insufficient to allow tolling under any of the statutorily-enumerated doctrines. Section 583.240(d) contains the catch-all tolling provision that governs the analysis of Plaintiffs’ argument; it allows tolling where:
*5 [s]ervice, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff’s control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control for the purpose of this subdivision.
To the extent that service upon the individual Deputies was rendered “impossible, impracticable, or futile”

because this Court had not yet ruled on Plaintiffs’ instant motion by the July 12, 2007 service deadline, the Court finds that such circumstances were not “due to causes beyond the plaintiff’s control.” To the contrary, the undisputed record establishes that Plaintiffs have been aware of the true identities of the individual Deputies since early in the litigation, yet made a tactical decision not to proceed against them individually under after this Court granted summary judgment on the Monell-liability claims on April 5, 2007. Even after the Court’s summary judgment ruling, Plaintiffs waited another two months, until June 5, 2007, to file their motion to amend. Moreover, Plaintiffs noticed the hearing more than two months out, on this Court’s August 7, 2007 motion calendar, even though this district’s local rules require only 35 days notice before hearing. Plaintiffs also made no effort to have the motion heard on shortened time.
Accordingly, the Court finds that Plaintiffs’ failure to comply with California Code Of Civil Procedure Section 583.210, which is part of California’s substantive limitations framework governing Doe actions, prevents Plaintiffs from proceeding against the individual Deputies. Plaintiffs’ claims against the individual Deputies are time-barred due to failure to serve within the statutory period. See Cal.Civ.Proc.Code § 583.210.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiffs’ Motion to Amend and GRANTS Defendants’ Motion to Strike/Dismiss the Doe Defendants. The Clerk of the Court is DIRECTED to enter final judgment in favor of Defendants.
IT IS SO ORDERED.
	  

4

 
 Case: 3:04-cv-02790-MJJ As of: 06/04/2012 11:57 AM PDT 1 of 9
ADRMOP,CLOSED,E−Filing
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:04−cv−02790−MJJ

Chatoian et al v. County of Marin et al Assigned to: Hon. Martin J. Jenkins Demand: $0 Case in other court: 08−15181 Cause: 42:1983 Civil Rights Act Plaintiff Darcelle L. Chatoian
Plaintiff Cynthia Tasca and all others similarly situated
Plaintiff Corin Rasmussen

Date Filed: 07/12/2004 Date Terminated: 12/21/2007 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Mark E. Merin , Esq. Law Office of Mark E. Merin 1010 F Street, Suite 300 Sacramento, CA 95814 916−443−6911 Fax: 916−447−8336 Email: mark@markmerin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Charles Schwartz Casper Meadows Schwartz &Cook California Plaza 2121 North California Boulevard Suite 1020 Walnut Creek, CA 94596 925−947−1147 Fax: 925−947−1131 Email: schwartz@cmslaw.com ATTORNEY TO BE NOTICED
Jeffrey I. Schwarzschild Department of Justice Office of the Attorney General Employment Regulation &Administration Section 1300 I Street Sacramento, CA 95814 916/324−8630 Email: Jeffrey.Schwarzschild@doj.ca.gov TERMINATED: 11/15/2006 ATTORNEY TO BE NOTICED
represented by Mark E. Merin , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED
Jeffrey I. Schwarzschild (See above for address) TERMINATED: 11/15/2006 ATTORNEY TO BE NOTICED
represented by

Case: 3:04-cv-02790-MJJ As of: 06/04/2012 11:57 AM PDT 2 of 9

Mark E. Merin , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Korissa Russell

represented by Mark E. Merin , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant County of Marin
Defendant Marin County Sheriff's Department
Defendant Robert T. Doyle Individually &in His Official Capacity, Marin County Sheriff

represented by Terence J. Cassidy Porter I Scott A Professional Corporation 350 University Avenue, Suite 200 Sacramento, CA 95865 (916) 929−1481 Fax: (916) 927−3706 Email: tcassidy@porterscott.com ATTORNEY TO BE NOTICED
represented by Terence J. Cassidy (See above for address) ATTORNEY TO BE NOTICED
represented by Terence J. Cassidy (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/12/2004
07/12/2004 07/12/2004
07/12/2004 08/26/2004 09/08/2004

# Docket Text
1 CLASS ACTION COMPLAINT; Demand for Jury Trial − [Summons Issued] against County of Marin, Robert T. Doyle, And Marin County Sheriff's Department, [Filing Fee: $150.00, Receipt Number 3361745]. Filed by Plaintiffs Darcelle L. Chatoian &Cynthia Tasca. (tn, COURT STAFF) (Filed on 7/12/2004) Additional attachment(s) added on 7/15/2004 (tn, COURT STAFF). Additional attachment(s) added on 7/15/2004 (tn, COURT STAFF). Additional attachment(s) added on 7/15/2004 (tn, COURT STAFF). (Entered: 07/13/2004)
Summons Issued as to County of Marin, Robert T. Doyle, Marin County Sheriff's Department. (tn, COURT STAFF) (Filed on 7/12/2004) (Entered: 07/13/2004)
2 ADR SCHEDULING ORDER: Case Management Statement due by 11/8/2004 &Initial Case Management Conference set for 4:00 p.m. on 11/15/2004. (Attachments: # 1 Standing Order).(tn, COURT STAFF) (Filed on 7/12/2004) (Entered: 07/13/2004)
CASE DESIGNATED for Electronic Filing. (tn, COURT STAFF) (Filed on 7/12/2004) (Entered: 07/13/2004)
3 Declination to Proceed Before a U.S. Magistrate Judge by County of Marin Marin County Sheriff's Dept., and Robert T. Doyle. (Cassidy, Terence) (Filed on 8/26/2004) (Entered: 08/26/2004)
4 STIPULATION to Extend Time to Respond to Complaint by County of Marin, Robert T. Doyle, Marin County Sheriff's Department. (Cassidy, Terence) (Filed on 9/8/2004) (Entered: 09/08/2004)

Case: 3:04-cv-02790-MJJ As of: 06/04/2012 11:57 AM PDT 3 of 9

09/09/2004 09/09/2004 09/10/2004 09/10/2004 09/10/2004 09/13/2004 09/28/2004 09/28/2004 10/05/2004 10/14/2004 10/14/2004 10/14/2004 10/19/2004
10/21/2004 10/27/2004 10/29/2004

5 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (ls, COURT STAFF) (Filed on 9/9/2004) (Entered: 09/09/2004)
6 ORDER REASSIGNING CASE. Case reassigned to Judge Martin J. Jenkins for all further proceedings. Judge Bernard Zimmerman no longer assigned to case. Signed by Executive Committee on 09/09/04. (mab, COURT STAFF) (Filed on 9/9/2004) (Entered: 09/09/2004)
7 ORDER granting 4 Stipulation filed by Marin County Sheriff's Department, County of Marin, Robert T. Doyle. Signed by Judge Martin J. Jenkins on 9/10/2004. (mat, COURT STAFF) (Filed on 9/10/2004) (Entered: 09/10/2004)
8 MOTION to Dismiss Notice of Motion and Motion to Dismiss; Memo of Points and Authorities in Support Thereof filed by County of Marin, Robert T. Doyle, Marin County Sheriff's Department. Motion Hearing set for 10/19/2004 09:30 AM. (Cassidy, Terence) (Filed on 9/10/2004) (Entered: 09/10/2004)
9 Proposed Order re 8 Granting Motion to Dismiss by County of Marin, Robert T. Doyle, Marin County Sheriff's Department. (Cassidy, Terence) (Filed on 9/10/2004) (Entered: 09/10/2004)
10 CLERK'S NOTICE Case Management Conference reset for 11/30/2004 02:00 PM. Case Management Statement due by 11/22/2004. (Attachments: # 1 Standing Order) (mat, COURT STAFF) (Filed on 9/13/2004) (Entered: 09/13/2004)
11 Memorandum in Opposition to Defendants Motion to Dismiss filed by Darcelle L. Chatoian. (Attachments: # 1 2 of 2)(Schwartz, Andrew) (Filed on 9/28/2004) (Entered: 09/28/2004)
12 Proposed Order Denying Defendants Motion to Dismiss by Darcelle L. Chatoian. (Schwartz, Andrew) (Filed on 9/28/2004) (Entered: 09/28/2004)
13 Reply to Opposition of Plaintiffs to Defs. Motion to Dismiss 8 filed by County of Marin, Robert T. Doyle, Marin County Sheriff's Department. (Cassidy, Terence) (Filed on 10/5/2004) Modified on 10/7/2004 (slh, COURT STAFF). (Entered: 10/05/2004)
14 MOTION for Protective Order filed by Darcelle L. Chatoian, Cynthia Tasca. Motion Hearing set for 11/23/2004 09:30 AM. (Merin, Mark) (Filed on 10/14/2004) (Entered: 10/14/2004)
15 MEMORANDUM in Support re 14 Protective Order (Points and Authorities) filed by Darcelle L. Chatoian, Cynthia Tasca. (Related document(s) 14 ) (Merin, Mark) (Filed on 10/14/2004) (Entered: 10/14/2004)
16 Declaration of MARK E. MERIN in Support of 14 Motion for Protective Order filed by Darcelle L. Chatoian, Cynthia Tasca. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Related document(s) 14 ) (Merin, Mark) (Filed on 10/14/2004) (Entered: 10/14/2004)
17 Minute Entry: Motion Hearing held on 10/19/2004 before Martin J. Jellen (Date Filed: 10/19/2004) re 8 MOTION to Dismiss Notice of Motion and Motion to Dismiss; Memo of Points and Authorities in Support Thereof filed by Marin County Sheriff's Department, County of Marin, Robert T. Doyle. (Court Reporter Debra Pas.) (mat, COURT STAFF) (Date Filed: 10/19/2004) (Entered: 10/19/2004)
18 CLERK'S NOTICE Case Management Conference reset for 12/14/2004 02:00 PM. Case Management Statement due by 12/6/2004. (Attachments: # 1 Standing Order) (mat, COURT STAFF) (Filed on 10/21/2004) (Entered: 10/21/2004)
19 Proposed Order re 14 Granting Plaintiffs' Motion for Protective Order by Darcelle L. Chatoian, Cynthia Tasca. (Merin, Mark) (Filed on 10/27/2004) (Entered: 10/27/2004)
20 Brief re 7 , 8 , 9 Suppl. Briefing re 11th Amendment &State Law Immunities filed by County of Marin, Robert T. Doyle, Marin County Sheriff's Department. (Related document(s) 7 , 8 , 9 ) (Cassidy, Terence) (Filed on 10/29/2004) (Entered: 10/29/2004)

Case: 3:04-cv-02790-MJJ As of: 06/04/2012 11:57 AM PDT 4 of 9

11/02/2004 11/02/2004 11/04/2004 11/12/2004 12/07/2004 12/10/2004 12/14/2004 01/06/2005 01/10/2005 01/13/2005 01/18/2005 02/01/2005 02/01/2005 02/02/2005 02/11/2005
02/22/2005

21 Memorandum in Opposition to Plaintiffs' Motion for Protective Order filed by County of Marin, Robert T. Doyle, Marin County Sheriff's Department. (Cassidy, Terence) (Filed on 11/2/2004) (Entered: 11/02/2004)
22 DECLARATION of Keith E. Nourot in Opposition to 21 Plaintiffs' Motion for Protective Order filed by County of Marin, Robert T. Doyle, Marin County Sheriff's Department. (Related document(s) 21 ) (Cassidy, Terence) (Filed on 11/2/2004) (Entered: 11/02/2004)
23 MOTION to Withdraw 14 MOTION for Protective Order filed by Darcelle L. Chatoian. Motion Hearing set for 11/23/2004 09:30 AM. (Merin, Mark) (Filed on 11/4/2004) (Entered: 11/04/2004)
24 Reply Memorandum to Defendants Further Briefing Re: Motion to Dismiss filed by Darcelle L. Chatoian. (Schwartz, Andrew) (Filed on 11/12/2004) (Entered: 11/12/2004)
25 JOINT CASE MANAGEMENT STATEMENT filed by Darcelle L. Chatoian. (Schwartz, Andrew) (Filed on 12/7/2004) (Entered: 12/07/2004)
26 CLERK'S NOTICE Case Management Conference reset for 2/22/2005 02:00 PM. Case Management Statement due by 2/14/2005. (mat, COURT STAFF) (Filed on 12/10/2004) (Entered: 12/10/2004)
27 ORDER by Judge Martin J. Jenkins granting in part and denying in part 8 Defendants' Motion to Dismiss (mat, COURT STAFF) (Filed on 12/14/2004) (Entered: 12/15/2004)
28 STIPULATION to Extend Time to Respond to Complaint by County of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Cassidy, Terence) (Filed on 1/6/2005) (Entered: 01/06/2005)
29 ORDER granting 28 Stipulation filed by Marin County Sheriff's Department,, County of Marin,, Robert T. Doyle,. Signed by Judge Martin J. Jenkins on 1/10/2005. (mat, COURT STAFF) (Filed on 1/10/2005) (Entered: 01/10/2005)
30 STIPULATION to Extend Time to Respond to Complaint by County of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Cassidy, Terence) (Filed on 1/13/2005) (Entered: 01/13/2005)
31 ORDER granting 30 Stipulation filed by Marin County Sheriff's Department,, County of Marin,, Robert T. Doyle,. Signed by Judge Martin J. Jenkins on 1/18/2005. (mat, COURT STAFF) (Filed on 1/18/2005) (Entered: 01/18/2005)
32 STIPULATION TO FILE FIRST AMENDED COMPLAINT; PROPOSED ORDER by County of Marin, Marin County Sheriff's Department, Robert T. Doyle, Darcelle L. Chatoian, Cynthia Tasca. (Merin, Mark) (Filed on 2/1/2005) (Entered: 02/01/2005)
33 AMENDED COMPLAINT [FIRST] against all defendants. Filed byCorin Rasmussen, Korissa Russell, Darcelle L. Chatoian, Cynthia Tasca. (Merin, Mark) (Filed on 2/1/2005) (Entered: 02/01/2005)
34 ORDER granting 32 Stipulation filed by Marin County Sheriff's Department,, County of Marin,, Robert T. Doyle,, Darcelle L. Chatoian,, Cynthia Tasca,. Signed by Judge Martin J. Jenkins on 2/2/2005. (mat, COURT STAFF) (Filed on 2/2/2005) (Entered: 02/03/2005)
35 AMENDED DOCUMENT by County of Marin, Marin County Sheriff's Department, Robert T. Doyle, County of Marin, Marin County Sheriff's Department, Robert T. Doyle. Amendment to 25 Case Management Statement (Joint) and Proposed Order. (Cassidy, Terence) (Filed on 2/11/2005) (Entered: 02/11/2005)
36 ANSWER to Amended Complaint (First Amended Class Action) byCounty of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Cassidy, Terence) (Filed on 2/22/2005) (Entered: 02/22/2005)

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02/22/2005 02/22/2005 07/01/2005 07/12/2005 11/07/2005 11/10/2005 01/04/2006 01/09/2006 01/11/2006
01/11/2006
01/11/2006
01/11/2006
01/11/2006 01/13/2006
02/07/2006

37 Minute Entry: Initial Case Management Conference held on 2/22/2005 before Martin J. Jenkins (Date Filed: 2/22/2005). Further Case Management Conference set for 7/12/2005 02:00 PM. (Court Reporter Not reported.) (mat, COURT STAFF) (Date Filed: 2/22/2005) (Entered: 02/24/2005)
38 PRETRIAL ORDER. Signed by Judge Martin J. Jenkins on 2/22/2005. (mat, COURT STAFF) (Filed on 2/22/2005) (Entered: 02/24/2005)
39 JOINT CASE MANAGEMENT STATEMENT filed by Darcelle L. Chatoian. (Schwartz, Andrew) (Filed on 7/1/2005) (Entered: 07/01/2005)
40 Minute Entry: Status Conference held 7/12/2005 before Martin J. Jenkins. Further Status Conference set for 11/15/2005 02:00 PM. (Court Reporter Not Reported.) (kcw, COURT STAFF) (Date Filed: 7/12/2005) (Entered: 07/12/2005)
41 JOINT CASE MANAGEMENT STATEMENT filed by County of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Cassidy, Terence) (Filed on 11/7/2005) (Entered: 11/07/2005)
42 CLERK'S NOTICE. Telephone Case Management Conference set for 11/15/2005 01:55 PM. (mat, COURT STAFF) (Filed on 11/10/2005) (Entered: 11/10/2005)
43 Letter from Andrew Schwartz. (Schwartz, Andrew) (Filed on 1/4/2006) (Entered: 01/04/2006)
44 ORDER Amending Scheduling Order. Signed by Judge Martin J. Jenkins on 1/9/2006. (mat, COURT STAFF) (Filed on 1/9/2006) (Entered: 01/10/2006)
45 MOTION for Summary Judgment /Adjudication; Memorandum of Points and Authorities in Support Thereof and Notice of Motion filed by County of Marin, Marin County Sheriff's Department, Robert T. Doyle. Motion Hearing set for 2/15/2006 01:30 PM in Courtroom 11, 19th Floor, San Francisco. (Cassidy, Terence) (Filed on 1/11/2006) (Entered: 01/11/2006)
46 Declaration of Dennis McQueeny in Support of 45 MOTION for Summary Judgment /Adjudication; Memorandum of Points and Authorities in Support Thereof and Notice of Motion filed byCounty of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Related document(s) 45 ) (Cassidy, Terence) (Filed on 1/11/2006) (Entered: 01/11/2006)
47 Declaration of Keith E. Nourot in Support of 45 MOTION for Summary Judgment /Adjudication; Memorandum of Points and Authorities in Support Thereof and Notice of Motion filed byCounty of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Attachments: # 1 Exhibit D−I# 2 Exhibit J−O)(Related document(s) 45 ) (Cassidy, Terence) (Filed on 1/11/2006) (Entered: 01/11/2006)
48 Request for Judicial Notice re 45 MOTION for Summary Judgment /Adjudication; Memorandum of Points and Authorities in Support Thereof and Notice of Motion filed byCounty of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Related document(s) 45 ) (Cassidy, Terence) (Filed on 1/11/2006) (Entered: 01/11/2006)
49 Proposed Order re 45 MOTION for Summary Judgment /Adjudication; Memorandum of Points and Authorities in Support Thereof and Notice of Motion by County of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Cassidy, Terence) (Filed on 1/11/2006) (Entered: 01/11/2006)
50 Renotice motion hearing re 45 MOTION for Summary Judgment /Adjudication; Memorandum of Points and Authorities in Support Thereof and Notice of Motion Amended Notice of Motio for Summary Judgment filed byCounty of Marin, Marin County Sheriff's Department, Robert T. Doyle. Motion Hearing set for 3/7/2006 09:30 AM in Courtroom 11, 19th Floor, San Francisco. (Cassidy, Terence) (Filed on 1/13/2006) (Entered: 01/13/2006)
51 Memorandum in Opposition to Defendants' Motion for Summary Judgment filed byDarcelle L. Chatoian. (Schwartz, Andrew) (Filed on 2/7/2006) (Entered: 02/07/2006)

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02/07/2006 02/07/2006 02/21/2006 02/21/2006 02/21/2006 02/21/2006 03/03/2006 03/07/2006 03/24/2006 03/24/2006 04/05/2006 05/17/2006 05/26/2006 05/26/2006 05/30/2006
07/13/2006

52 AFFIDAVIT in Opposition OF RUSSELL DAVIS to Defendants Motion for Summary Judgment filed byDarcelle L. Chatoian. (Schwartz, Andrew) (Filed on 2/7/2006) (Entered: 02/07/2006)
53 DECLARATION of Thom Seaton in Opposition to Defendants Motion for Summary Judgment filed byDarcelle L. Chatoian. (Attachments: # 1 Exhibit)(Schwartz, Andrew) (Filed on 2/7/2006) (Entered: 02/07/2006)
54 Reply to Opposition to Defendants' Motion for Summary Judgment filed byCounty of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Cassidy, Terence) (Filed on 2/21/2006) (Entered: 02/21/2006)
55 Declaration of Terence J. Cassidy in Support of 54 Reply to Opposition to Defendants' Motion for Summary Judgment filed byCounty of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Related document(s) 54 ) (Cassidy, Terence) (Filed on 2/21/2006) (Entered: 02/21/2006)
56 Declaration of Dennis McQueeny in Support of 54 Reply to Opposition to Defendants' Motion for Summary Judgment filed byCounty of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Related document(s) 54 ) (Cassidy, Terence) (Filed on 2/21/2006) (Entered: 02/21/2006)
57 Statement of Facts /Joint Statement of Undisputed Material Facts filed byCounty of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Cassidy, Terence) (Filed on 2/21/2006) (Entered: 02/21/2006)
58 ORDER RE SUPPLEMENTAL BRIEFING; VACATING HEARING; SETTING STATUS CONFERENCE. Signed by Judge Martin J. Jenkins on 3/3/2006. (mjjlc2, COURT STAFF) (Filed on 3/3/2006) (Entered: 03/03/2006)
59 Minute Entry: Telephone Conference (Date Filed: 3/7/2006). (Court Reporter Not reported.) (mat, COURT STAFF) (Date Filed: 3/7/2006) (Entered: 03/08/2006)
60 Memorandum in Opposition (Supplemental) to Summary Judgment filed byDarcelle L. Chatoian. (Schwartz, Andrew) (Filed on 3/24/2006) (Entered: 03/24/2006)
61 MEMORANDUM in Support Supplemental Briefing Regarding Motion for Summary Judgment filed byCounty of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Cassidy, Terence) (Filed on 3/24/2006) (Entered: 03/24/2006)
62 CLERK'S NOTICE Continuing Motion Hearing. Motion for Summary Judgment hearing reset for 5/23/2006 09:30 AM in Courtroom 11, 19th Floor, San Francisco. (mat, COURT STAFF) (Filed on 4/5/2006) (Entered: 04/05/2006)
63 CLERK'S NOTICE Continuing Defendants' Motion for Summary Judgment hearing. Motion hearing reset for 6/13/2006 09:30 AM in Courtroom 11, 19th Floor, San Francisco. (mat, COURT STAFF) (Filed on 5/17/2006) (Entered: 05/17/2006)
64 STIPULATION to Continue Hearing on Defendants' Motion for Summary Judgment by County of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Cassidy, Terence) (Filed on 5/26/2006) (Entered: 05/26/2006)
65 Proposed Order re 64 Stipulation to Continue Hearing on Defendants' Motion for Summary Judgment by County of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Cassidy, Terence) (Filed on 5/26/2006) (Entered: 05/26/2006)
66 ORDER granting 64 Stipulation filed by Marin County Sheriff's Department,, County of Marin,, Robert T. Doyle,, Set/Reset Deadlines as to re: 45 MOTION for Summary Judgment /Adjudication; Memorandum of Points and Authorities in Support Thereof and Notice of Motion. Motion Hearing reset for 7/18/2006 09:30 AM in Courtroom 11, 19th Floor, San Francisco.. Signed by Judge Martin J. Jenkins on 5/30/2006. (mat, COURT STAFF) (Filed on 5/30/2006) (Entered: 05/31/2006)
67 CLERK'S NOTICE Continuing Defendants' Motion for Summary Judgmenthearing. Motion Hearing reset for 8/29/2006 09:30 AM in Courtroom 11, 19th Floor, San Francisco. (mat, COURT STAFF) (Filed on 7/13/2006) (Entered:

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11/15/2006 02/26/2007 02/27/2007
03/27/2007
03/28/2007
04/05/2007 04/05/2007 06/05/2007
06/05/2007 06/05/2007
06/06/2007 06/11/2007 06/12/2007 07/13/2007

07/13/2006)
68 NOTICE of Change In Counsel by Mark E. Merin, Esq (Merin, Mark) (Filed on 11/15/2006) (Entered: 11/15/2006)
69 CLERK'S NOTICE Continuing Motion Hearing to 3/27/2007 at 09:30 AM in Courtroom 11, 19th Floor, San Francisco. (rbe, COURT STAFF) (Filed on 2/26/2007) (Entered: 02/26/2007)
70 STIPULATION : Stipulated Request to Reset Hearing on Motion for Summary Judgment; [Proposed] Order by Corin Rasmussen, Korissa Russell, County of Marin, Marin County Sheriff's Department, Robert T. Doyle, Darcelle L. Chatoian, Cynthia Tasca. (Merin, Mark) (Filed on 2/27/2007) (Entered: 02/27/2007)
71 Minute Entry: Motion Hearing re: Defendant's Motion for Summary Judgment held on 3/27/2007 before Judge Martin J. Jenkins (Date Filed: 3/27/2007). Matter deemed submitted. (Court Reporter Sahar McVickar.) (epb, COURT STAFF) (Date Filed: 3/27/2007) (Entered: 03/27/2007)
72 ERRATA for Declaration of Dennis McQueeny in Support of Defendants' Reply to Plaintiffs' Opposition to Motion for Summary Judgment by County of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Cassidy, Terence) (Filed on 3/28/2007) (Entered: 03/28/2007)
73 ORDER by Judge Martin J. Jenkins granting 45 Motion for Summary Judgment. (rbe, COURT STAFF) (Filed on 4/5/2007) (Entered: 04/05/2007)
Set/Reset Hearings: Status Conference set for 6/12/2007 02:00 PM. (slh, COURT STAFF) (Filed on 4/5/2007) (Entered: 04/10/2007)
74 MOTION to Amend/Correct First Amended Class Action Complaint filed by Darcelle L. Chatoian. Motion Hearing set for 8/7/2007 09:30 AM in Courtroom 11, 19th Floor, San Francisco. (Attachments: # 1 Exhibit Proposed second amended complaint)(Schwartz, Andrew) (Filed on 6/5/2007) (Entered: 06/05/2007)
75 Declaration of Andrew C. Schwartz in Support of 74 MOTION to Amend/Correct First Amended Class Action Complaint filed byDarcelle L. Chatoian. (Related document(s) 74 ) (Schwartz, Andrew) (Filed on 6/5/2007) (Entered: 06/05/2007)
76 Proposed Order re 75 Declaration in Support, 74 MOTION to Amend/Correct First Amended Class Action Complaint Granting Plaintiffs' Motion to File Second Amended Complaint by Darcelle L. Chatoian. (Schwartz, Andrew) (Filed on 6/5/2007) (Entered: 06/05/2007)
77 JOINT CASE MANAGEMENT STATEMENT filed by Darcelle L. Chatoian. (Schwartz, Andrew) (Filed on 6/6/2007) (Entered: 06/06/2007)
78 NOTICE by County of Marin, Marin County Sheriff's Department, Robert T. Doyle of Change of Firm Name (Cassidy, Terence) (Filed on 6/11/2007) (Entered: 06/11/2007)
79 Minute Entry: Status Conference − Held (Date Filed: 6/12/2007). (Court Reporter Not Reported.) (tdm, COURT STAFF) (Date Filed: 6/12/2007) (Entered: 06/13/2007)
80 Memorandum in Opposition / OPPOSITION TO PLAINTIFFS' 74 MOTION TO AMEND CLASS ACTION COMPLAINT, RELATED COUNTER MOTION TO STRIKE AND/OR DISMISS DOE DEFENDANTS, AND REQUEST TO ENTER JUDGMENT IN FAVOR OF DEFENDANTS filed by County of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Attachments: # 1 Notice of Motion and Motion to Strike/Dismiss Doe Defendants# 2 Declaration of Terence J. Cassidy In Support of Defs Opp to Plfs' Motion to Amend First Amended Class Complaint# 3 Exhibits A and B to Decl of TJC# 4 Exhibit C (Part 1) to Decl of TJC# 5 Exhibit C (Part 2) to Decl of TJC# 6 Exhibits D−H to Decl of TJC# 7 Proposed Order)(Cassidy, Terence) (Filed on 7/13/2007) Modified on 7/16/2007 (slh, COURT STAFF). (Entered: 07/13/2007)

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07/20/2007 08/08/2007 12/05/2007 12/14/2007 12/21/2007 12/21/2007 01/03/2008 01/18/2008
01/18/2008 01/18/2008 01/18/2008 02/01/2008 02/19/2008 03/20/2008 05/01/2008 05/13/2008 08/28/2008 09/05/2008 10/14/2008

81 Reply to Opposition re 74 MOTION to Amend/Correct First Amended Class Action Complaint filed byCorin Rasmussen, Korissa Russell, Darcelle L. Chatoian, Cynthia Tasca. (Merin, Mark) (Filed on 7/20/2007) (Entered: 07/20/2007)
82 Minute Entry: Motion Hearing held on 8/7/2007 before Judge Martin J. Jenkins. Matter deemed submitted. (Court Reporter Starr Wilson.) (epb, COURT STAFF) (Date Filed: 8/8/2007) (Entered: 08/08/2007)
83 ORDER to pro tem reporter to produce transcript. Signed by Judge Martin J. Jenkins on 12/04/07. (rbe, COURT STAFF) (Filed on 12/5/2007) Modified on 12/5/2007 (rbe, COURT STAFF). (Entered: 12/05/2007)
84 TRANSCRIPT of Proceedings held on 8/7/07 before Judge Jenkins. Court Reporter: Starr Wilson. (slh, COURT STAFF) (Filed on 12/14/2007) (Entered: 12/19/2007)
85 ORDER DENYING PLAINTIFFS' MOTION TO AMEND AND GRANTING DEFENDANTS' MOTION TO STRIKE/DISMISS by Judge Martin J. Jenkins. (mjjlc2, COURT STAFF) (Filed on 12/21/2007) (Entered: 12/21/2007)
86 JUDGMENT IN CIVIL CASE. Signed by Judge Martin J. Jenkins on 12/21/2007. (ls, COURT STAFF) (Filed on 12/21/2007) (Entered: 12/21/2007)
87 BILL OF COSTS by County of Marin, Marin County Sheriff's Department, Robert T. Doyle. (Cassidy, Terence) (Filed on 1/3/2008) (Entered: 01/03/2008)
88 NOTICE OF APPEAL as to 86 Judgment, 85 Order by Corin Rasmussen, Korissa Russell, Darcelle L. Chatoian, Cynthia Tasca. Filing fee $ 455, receipt number 34611014778. (slh, COURT STAFF) (Filed on 1/18/2008) (USCA Case No. 08−15181) (Entered: 01/25/2008)
89 STATEMENT OF REPRESENTATION by Corin Rasmussen, Korissa Russell, Darcelle L. Chatoian, Cynthia Tasca re 88 Notice of Appeal. (slh, COURT STAFF) (Filed on 1/18/2008) (Entered: 01/25/2008)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 88 Notice of Appeal. (slh, COURT STAFF) (Filed on 1/18/2008) (Entered: 01/25/2008)
Copy of Notice of Appeal and Docket sheet mailed to all counsel. (slh, COURT STAFF) (Filed on 1/18/2008) (Entered: 01/25/2008)
90 USCA Case Number 08−15181 for 88 Notice of Appeal. (slh, COURT STAFF) (Filed on 2/1/2008) (Entered: 02/08/2008)
91 TRANSCRIPT DESIGNATION by Corin Rasmussen, Korissa Russell, Darcelle L. Chatoian, Cynthia Tasca for proceedings held on 8/7/07; 3/27/07; 10/19/04. (slh, COURT STAFF) (Filed on 2/19/2008) (Entered: 02/21/2008)
92 TRANSCRIPT of Proceedings held on 3/27/07 before Judge Jenkins. Court Reporter: Sahar McVickar. (slh, COURT STAFF) (Filed on 3/20/2008) (Entered: 03/25/2008)
93 Transcript of Proceedings held on 10/19/04, before Judge Jenkins. (Court Reporter/Transcriber Debra Pas) (slh, COURT STAFF) (Filed on 5/1/2008) (Entered: 05/06/2008)
94 Costs Taxed in amount of $ 4,710.90 against Plaintiffs. (cgk, COURT STAFF) (Filed on 5/13/2008) (Entered: 05/13/2008)
95 Certificate of Record Mailed to USCA re 88 Notice of Appeal. (slh, COURT STAFF) (Filed on 8/28/2008) (Entered: 08/28/2008)
96 Receipt for Certificate of Record re 88 Notice of Appeal. (slh, COURT STAFF) (Filed on 9/5/2008) (Entered: 09/05/2008)
97 ORDER of USCA dismissing appeal as to 88 Notice of Appeal filed by Cynthia Tasca, Darcelle L. Chatoian, Korissa Russell, Corin Rasmussen (slh, COURT STAFF) (Filed on 10/14/2008) (Entered: 10/14/2008)

Case: 3:04-cv-02790-MJJ As of: 06/04/2012 11:57 AM PDT 9 of 9

10/14/2008

98 CLERKS Letter Spreading Mandate to Counsel (slh, COURT STAFF) (Filed on 10/14/2008) (Entered: 10/14/2008)