U.S. District Court Eastern District of California - Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:16-cv-00185-TLN-DB

Welchen v. Harris et al. Assigned to: District Judge Troy L. Nunley Referred to: Magistrate Judge Deborah Barnes Cause: 42:1983 Civil Rights Act

Date Filed: 01/29/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff

Gary Wayne Welchen

represented by Phil Telfeyan Equal Justice Under Law 400 7th Street NW Suite 602 Washington, DC 20004 202-505-2058 Fax: 916-568-1881 Email: ptelfeyan@equaljusticeunderlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

James P. Davy , PHV Equal Justice Under Law 400 7th Street NW Washington, DC 20004 202-505-3599 Email: jdavy@equaljusticeunderlaw.org TERMINATED: 06/19/2020 PRO HAC VICE

V. Defendant Kamala Harris

represented by Jose Alfonso Zelidon-Zepeda Department of Justice, Ofﬁce of the Attorney General 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 415-510-3879 Fax: 415-703-5843 Email: jose.zelidonzepeda@doj.ca.gov

Defendant Sacramento County
Defendant Scott Jones

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carl L. Fessenden Porter Scott, PC 350 University Ave. Suite 200 Sacramento, CA 95825 916-929-1481 x327 Fax: 916-927-3706 Email: cfessenden@porterscott.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey A. Nordlander Porter Scott, APC 350 University Ave. Suite 200 Sacramento, CA 95825 916-929-1481 Email: jnordlander@porterscott.com TERMINATED: 12/17/2018
Terence John Cassidy Porter Scott, APC 350 University Avenue Suite 200 Sacramento, CA 95825 916-929-1481 x316 Fax: 916-927-3706 Email: tjcass@comcast.net TERMINATED: 02/25/2019
represented by Carl L. Fessenden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey A. Nordlander (See above for address) TERMINATED: 12/17/2018

Defendant Kathleen A. Kenealy
Defendant Xavier Becerra

John Robert Whiteﬂeet Porter Scott, APC 350 University Ave. Suite 200 Sacramento, CA 95823 916-929-1481 Ext. 347 Fax: 916-927-3706 Email: jwhiteﬂeet@porterscott.com ATTORNEY TO BE NOTICED
represented by Jose Alfonso Zelidon-Zepeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jose Alfonso Zelidon-Zepeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/29/2016 01/29/2016
01/29/2016

# Docket Text
1 COMPLAINT against Kamala Harris, County Sacramento by Gary Wayne Welchen. Attorney Telfeyan, Phil added. (Filing fee $ 400, receipt number 0972-6292869) (Attachments: # 1 Civil Cover Sheet, # 2 Consent Form, # 3 Exhibit 1) (Telfeyan, Phil) Modiﬁed on 2/1/2016 (Jackson, T). (Entered: 01/29/2016)
2 MOTION for TEMPORARY RESTRAINING ORDER and MOTION for PRELIMINARY INJUNCTION by Gary Wayne Welchen. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Appendix Unpublished Cases, # 4 Declaration re Notice, # 5 Appendix TRO Checklist, # 6 Proposed Order)(Telfeyan, Phil) Modiﬁed on 2/1/2016 (Jackson, T). (Entered: 01/29/2016)
3 MOTION to CERTIFY CLASS by Gary Wayne Welchen. (Attachments: # 1 Exhibit 1)(Telfeyan, Phil) Modiﬁed on 2/1/2016 (Jackson, T). (Entered: 01/29/2016)

02/01/2016

4 SUMMONS ISSUED as to *Kamala Harris, County Sacramento* with answer to complaint due within *21* days. Attorney *Phil Telfeyan* *Equal Justice Under Law* *565 Pennsylvania Avenue NW, Apartment 1207* *Washington, DC 20001*. (Jackson, T) (Entered: 02/01/2016)

02/01/2016 5 CIVIL NEW CASE DOCUMENTS ISSUED; (Attachments: # 1 Consent Form, # 2 VDRP) (Jackson, T) (Entered: 02/01/2016)

02/01/2016 6 CIVIL COVER SHEET by Gary Wayne Welchen (Telfeyan, Phil) (Entered: 02/01/2016)

02/01/2016

7 SUMMONS RETURNED EXECUTED: Kamala Harris served on 2/1/2016, answer due 2/22/2016; County Sacramento served on 2/1/2016, answer due 2/22/2016. (Telfeyan, Phil) (Entered: 02/01/2016)

02/03/2016

8 NOTICE of APPEARANCE by Carl L. Fessenden on behalf of County Sacramento. Attorney Fessenden, Carl L. added. (Attachments: # 1 DECLINE JURISDICTION OF U.S. MAGISTRATE JUDGE) (Fessenden, Carl) Modiﬁed on 2/3/2016 (Benson, A). (Entered: 02/03/2016)

02/03/2016

9 NOTICE of APPEARANCE by Terence John Cassidy on behalf of County Sacramento. Attorney Cassidy, Terence John added. (Cassidy, Terence) (Entered: 02/03/2016)

02/04/2016 10 NOTICE of APPEARANCE by Jose Alfonso Zelidon-Zepeda on behalf of Kamala Harris. Attorney Zelidon-Zepeda, Jose Alfonso added. (ZelidonZepeda, Jose) (Entered: 02/04/2016)

02/04/2016 11 NOTICE of RELATED CASE 15-cv-04959-YGR by Kamala Harris. (Zelidon-Zepeda, Jose) (Entered: 02/04/2016)

02/04/2016

12 ORDER signed by District Judge Troy L. Nunley on 2/4/2016 FINDING that injunctive relief at this juncture of the litigation is not appropriate; DENYING 2 Motion for Temporary Restraining Order. (Michel, G.) (Entered: 02/04/2016)

02/05/2016

13 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 2/5/2016: On the Court's own motion, the hearing on Plaintiff's Motion to Certify Class (ECF No. 3 ) is hereby SET for 3/24/2016 at 2:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. All brieﬁng shall be ﬁled in accordance with Local Rule 230(c) and (d). (TEXT ONLY ENTRY) (Krueger, M) (Entered: 02/05/2016)

02/18/2016 14 MOTION to DISMISS by Kamala Harris. Motion Hearing set for 4/7/2016 at 02:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. (Zelidon-Zepeda, Jose) (Entered: 02/18/2016)

02/18/2016 15 REQUEST for JUDICIAL NOTICE by Kamala Harris in re 14 Motion to Dismiss. (Zelidon-Zepeda, Jose) (Entered: 02/18/2016)

02/19/2016

16 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 2/19/2016: On the Court's own motion, the Hearing on Plaintiff's Motion to Certify Class (ECF No. 3 ), is hereby RESET for 4/7/2016 at 2:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. All brieﬁng shall be ﬁled in accordance with Local Rule 230 and the new hearing date. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 02/19/2016)

02/22/2016

17 JOINDER in re 14 Motion to Dismiss and MOTION for a More Deﬁnite Statement by County Sacramento by Kamala Harris. (Attachments: # 1 Memorandum of Points and Authorities) (Fessenden, Carl) Modiﬁed on 2/23/2016 (Michel, G.). (Entered: 02/22/2016)

03/24/2016 18 OPPOSITION by County Sacramento to 3 Motion to Certify Class. (Fessenden, Carl) (Entered: 03/24/2016)

03/24/2016 19 OPPOSITION by Kamala Harris to 3 Motion to Certify Class. (ZelidonZepeda, Jose) (Entered: 03/24/2016)

03/24/2016 20 OPPOSITION to 14 Motion to Dismiss Gary Wayne Welchen. (Telfeyan, Phil) (Entered: 03/24/2016)

03/24/2016 21 OPPOSITION by Gary Wayne Welchen to 17 Motion for a More Deﬁnite Statement. (Telfeyan, Phil) Modiﬁed on 3/25/2016 (Benson, A). (Entered: 03/24/2016)

03/30/2016 22 UNOPPOSED REQUEST for LEAVE to ﬁle consolidated Reply Brief by Gary Wayne Welchen. (Telfeyan, Phil) Modiﬁed on 3/30/2016 (Marciel, M) (Entered: 03/30/2016)

03/30/2016

23 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 3/30/2016: Plaintiff's request to ﬁle a consolidated reply brief not to exceed 15 pages (ECF No. 22 ) is hereby GRANTED. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 03/30/2016)

03/31/2016 24 REPLY by County Sacramento to plaintiff's Opposition to 14 Motion for More Deﬁnite Statement. (Fessenden, Carl) Modiﬁed on 3/31/2016 (Marciel, M) (Entered: 03/31/2016)

03/31/2016 25 REPLY by Kamala Harris supporting 14 Motion to Dismiss. (ZelidonZepeda, Jose) Modiﬁed on 3/31/2016 (Marciel, M) (Entered: 03/31/2016)

03/31/2016 26 REPLY BRIEF by Gary Wayne Welchen in support of 3 Motion to Certify Class. (Telfeyan, Phil) Modiﬁed on 3/31/2016 (Marciel, M) (Entered: 03/31/2016)

03/31/2016

27 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 3/31/2016: On the Court's own motion, Plaintiff's Motion for Certify Class (ECF No. 3 ) and Defendants' Motion to Dismiss (ECF No. 14 ), are hereby SUBMITTED without oral argument. Accordingly, the hearing set for 4/7/2016 is VACATED. If the Court determines oral argument is necessary, it will be scheduled at a later date. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 03/31/2016)

04/12/2016 28 NOTICE OF UNAVAILABILITY OF COUNSEL by Kamala Harris. (Zelidon-Zepeda, Jose) Modiﬁed on 4/13/2016 (Michel, G.). (Entered: 04/12/2016)

08/03/2016

29 ORDER REASSIGNING CASE by Chief Judge Lawrence J. O'Neill: Due to the appointment of *Magistrate Judge Deborah Barnes* to the bench of the Eastern District of California, this action is reassigned from *Magistrate Judge Kendall J. Newman* to Magistrate Judge Deborah Barnes for all further proceedings. (Benson, A) (Entered: 08/03/2016)

10/11/2016

30 ORDER signed by District Judge Troy L. Nunley on 10/10/16 ORDERING that Defendants' 14 Motion to Dismiss is GRANTED IN PART and DENIED IN PART: pursuant to Eleventh Amendment immunity and the Younger doctrine, the Motion is DENIED; Defendants' Motion for a More Deﬁnite Statement per FRCP 12(e) is GRANTED as to Plaintiff's due process claim, and Defendants' Motion to Dismiss Plaintiff's equal protection claim is GRANTED. Because the operative Complaint is being dismissed, Plaintiffs' pending 3 Motion to Certify Class is DENIED as moot. Plaintiff is granted thirty (30) days leave to amend from the entry of this Order to ﬁle an amended complaint as to his due process claim. (Benson, A) (Entered: 10/11/2016)

11/09/2016

31 FIRST AMENDED COMPLAINT against Kamala Harris, Sacramento County, Scott Jones by Gary Wayne Welchen. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Civil Cover Sheet)(Telfeyan, Phil) (Entered: 11/09/2016)

11/10/2016

32 SUMMONS ISSUED as to *Scott Jones* with answer to complaint due within *21* days. Attorney *Phil Telfeyan* *601 Pennsylvania Avenue NW* *South Building, Suite 900* *Washington, DC 20004*. (Zignago, K.) (Entered: 11/10/2016)

11/22/2016

33 STIPULATION and PROPOSED ORDER for Stipulation Extending Time for Defendants to File a Responsive Pleading; Proposed Order by Kamala Harris. (Zelidon-Zepeda, Jose) (Entered: 11/22/2016)

12/01/2016

34 STIPULATION and ORDER EXTENDING TIME FOR DEFENDANTS TO FILE A RESPONSIVE PLEADING signed by District Judge Troy L. Nunley on 11/30/16. Any responsive pleading shall be ﬁled by 12/13/2016. (Mena-Sanchez, L) (Entered: 12/01/2016)

12/13/2016

35 MOTION TO DISMISS by Scott Jones, Sacramento County. Attorney Nordlander, Jeffrey A. ADDED. Motion Hearing SET for 1/12/2017 at 02:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Proposed Order) (Nordlander, Jeffrey) (Entered: 12/13/2016)

12/13/2016 36 MOTION TO DISMISS by Kamala Harris. Motion Hearing SET for 1/12/2017 at 02:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. (Zelidon-Zepeda, Jose) (Entered: 12/13/2016)

12/29/2016 37 OPPOSITION by Gary Wayne Welchen to 35 Motion to Dismiss. (Telfeyan, Phil) (Entered: 12/29/2016)

12/29/2016 38 OPPOSITION by Gary Wayne Welchen to 36 Motion to Dismiss. (Telfeyan, Phil) (Entered: 12/29/2016)

01/05/2017 39 REPLY by Scott Jones, Sacramento County to 37 Response. Attorney Fessenden, Carl L. added. (Fessenden, Carl) (Entered: 01/05/2017)

01/05/2017 40 REPLY by Kathleen A. Kenealy in support 36 Motion to Dismiss. Attorney Zelidon-Zepeda, Jose Alfonso added. (Zelidon-Zepeda, Jose) (Entered: 01/05/2017)

01/06/2017

41 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 1/6/2017: On the Court's own motion, Defendants' Motions to Dismiss (ECF Nos. 35 and 36 ) are hereby SUBMITTED without oral argument. Accordingly, the hearing set for 1/12/2017 is VACATED. If the Court determines oral argument is necessary, it will be scheduled at a later date. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 01/06/2017)

10/26/2018 42 ORDER signed by District Judge Troy L. Nunley on 10/24/2018, GRANTING IN PART and DENYING IN PART 35 and 36 Motions to Dismiss. (Huang, H) (Entered: 10/26/2018)

10/26/2018

SERVICE BY MAIL: 42 Order, served on Terence John Cassidy. (Huang, H) (Entered: 10/26/2018)

12/04/2018

43 MINUTE ORDER: issued by Relief Courtroom Deputy J. Fabillaran for District Judge Troy L. Nunley on 12/4/2018: The Court issued an 42 Order on 10/26/2018, granting in part and denying in part Defendant's Motion to Dismiss Plaintiff's First Amended Complaint. The Court did not grant Plaintiff leave to amend the First Amended Complaint. Defendant has not ﬁled an Answer to the First Amended Complaint, and the parties have not ﬁled a Joint Status Report. Should Defendant choose to answer Plaintiff's First Amended Complaint, an answer will be due by 12/26/2018. The parties are to ﬁle a joint status report by 01/02/2019. (TEXT ONLY ENTRY) (Fabillaran, J) (Entered: 12/04/2018)

12/04/2018

[DISREGARD- Mr. Cassidy served electronically] SERVICE BY MAIL: 43 Minute Order served on Terence John Cassidy. (Fabillaran, J) Modiﬁed on 12/4/2018 (Donati, J). (Entered: 12/04/2018)

12/14/2018 44 JOINT MOTION to EXTEND Deadlines by Xavier Becerra. Attorney Zelidon-Zepeda, Jose Alfonso added. (Zelidon-Zepeda, Jose) (Entered: 12/14/2018)

12/17/2018

45 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 12/17/2018 GRANTING the parties' Joint Motion to Extend Deadlines (ECF No. 44 ). Accordingly, the deadline for Defendants to ﬁle an Answer is EXTENDED to 1/31/2019, and the deadline for the parties to ﬁle a Joint Status Report is EXTENDED to 2/7/2019. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 12/17/2018)

12/17/2018 46 DESIGNATION of COUNSEL FOR SERVICE., attorney Jeffrey A. Nordlander terminated (Fessenden, Carl) (Entered: 12/17/2018)

01/16/2019 47 SECOND JOINT MOTION to EXTEND Deadlines by Xavier Becerra. (Zelidon-Zepeda, Jose) Modiﬁed on 1/16/2019 (Krueger, M). (Entered: 01/16/2019)

01/16/2019

48 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 1/16/2019 GRANTING the parties' Second Joint Motion to Extend Deadlines (ECF No. 47 ). Accordingly, the deadline for Defendants to ﬁle an Answer is EXTENDED to 2/28/2019, and the deadline for the parties to ﬁle a Joint Status Report is EXTENDED to 3/7/2019. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 01/16/2019)

02/20/2019 49 THIRD JOINT MOTION to EXTEND Deadlines by Xavier Becerra. (Zelidon-Zepeda, Jose) Modiﬁed on 2/21/2019 (Krueger, M). (Entered: 02/20/2019)

02/21/2019

50 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 2/21/2019 GRANTING the parties' Third Joint Motion to Extend Deadlines (ECF No. 49 ). Accordingly, the deadline for Defendants to ﬁle an Answer is EXTENDED to 4/15/2019, and the deadline for the parties to ﬁle a Joint Status Report is EXTENDED to 4/22/2019. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 02/21/2019)

02/25/2019 51 DESIGNATION of COUNSEL FOR SERVICE., attorney Terence John Cassidy terminated (Fessenden, Carl) (Entered: 02/25/2019)

04/10/2019 52 MOTION for EXTENSION OF TIME by Xavier Becerra. (ZelidonZepeda, Jose) Modiﬁed on 4/10/2019 (Kaminski, H). (Entered: 04/10/2019)

04/10/2019

53 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 4/10/2019 GRANTING the parties' Forth Joint Motion to Extend Deadlines (ECF No. 52 ). Accordingly, the deadline for Defendants to ﬁle an Answer is EXTENDED to 5/15/2019, and the deadline for the parties to ﬁle a Joint Status Report is EXTENDED to 5/22/2019. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 04/10/2019)

05/15/2019 54 ANSWER by Xavier Becerra to 31 Amended Complaint. (ZelidonZepeda, Jose) Modiﬁed on 5/16/2019 (Benson, A.). (Entered: 05/15/2019)

05/22/2019 55 JOINT STATUS REPORT by Xavier Becerra. (Zelidon-Zepeda, Jose) (Entered: 05/22/2019)

07/19/2019

56 PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by Gary Wayne Welchen for attorney James Davy to appear Pro Hac Vice. (Filing fee $ 225, receipt number 0972-8365371) (Attachments: # 1 Exhibit Certiﬁcate of Good Standing)(Telfeyan, Phil) (Entered: 07/19/2019)

07/19/2019 57 PRO HAC VICE ORDER signed by District Judge Troy L. Nunley on 7/19/19 GRANTING 56 Application as to Attorney James P. Davy, PHV to represent Gary Wayne Welchen. (Becknal, R) (Entered: 07/19/2019)

08/07/2019 58 ANSWER with Jury Demand by Scott Jones.(Fessenden, Carl) (Entered: 08/07/2019)

08/22/2019

59 MOTION FOR A PROTECTIVE ORDER by Xavier Becerra. Motion Hearing set for 9/19/2019 at 02:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. (Zelidon-Zepeda, Jose) Modiﬁed on 8/26/2019 (Kastilahn, A). (Entered: 08/22/2019)

08/26/2019

60 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 8/26/2019: Pursuant to Local Rule 302(c)(1) Defendant Xavier Becerra's Motion for Protective Order (ECF No. 59 ) shall be noticed before the assigned Magistrate Judge. Counsel for Defendant shall contact the Clerk for Magistrate Judge Deborah Barnes for available law and motion dates, and re-notice the motion before the Magistrate Judge with the proper time and date. Accordingly, the 9/19/2019 hearing before District Judge Troy L. Nunley is VACATED. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 08/26/2019)

09/24/2019

61 MINUTE ORDER: (TEXT ONLY) by Courtroom Deputy for Magistrate Judge Deborah Barnes on 9/24/2019. IT IS HEREBY ORDERED: Per communication with counsel, an Informal Telephonic Discovery Conference is set for 10/3/2019 at 10:00 AM in the Chambers of Magistrate Judge Deborah Barnes. FURTHERMORE: Two work days prior to the hearing, the parties shall ﬁle a joint letter, no later than 10:00 a.m., brieﬂy explaining what meet and confer efforts they have undertaken and providing a synopsis of the discovery dispute. The joint letter brief shall be no more than two (2) pages in length, including any exhibits or attachments (which are discouraged), and shall be in at least 12-point type. To access the conference call, parties are instructed to dial the following toll-free number: (877) 336-1828; and enter access code:1864917.I HEREBY CERTIFY that the foregoing is a true and correct statement of an order made in the above-captioned case.(Buzo, P) (Entered: 09/24/2019)

10/01/2019 62 INFORMAL DISCOVERY DISPUTE LETTER BRIEF on behalf of Plaintiff Welchen and Defendant Becerra. (Davy, James) Modiﬁed on 10/1/2019 (Mena-Sanchez, L). (Entered: 10/01/2019)

10/03/2019

63 MINUTES (Text Only) for proceedings before Magistrate Judge Deborah Barnes: INFORMAL TELEPHONIC DISCOVERY CONFERENCE held on 10/3/2019. Plaintiffs' Counsel Phil Telfeyan, James Davy telephonic. Defendants Counsel Jose Zelidon-Zepeda for Kamala Harris, et al., telephonic; John Whiteﬂeet for Sacramento County, et al., telephonic. (Buzo, P) (Entered: 10/03/2019)

10/11/2019

64 MOTION to COMPEL DISCOVERY by Gary Wayne Welchen. Motion Hearing set for 11/8/2019 at 10:00 AM in Courtroom 27 (DB) before Magistrate Judge Deborah Barnes. (Davy, James) Modiﬁed on 10/14/2019 (Krueger, M). Modiﬁed on 10/15/2019 (Benson, A.). (Entered: 10/11/2019)

10/15/2019

65 MINUTE ORDER: (TEXT ONLY) by Courtroom Deputy for Magistrate Judge Deborah Barnes on 10/15/2019. IT IS HEREBY ORDERED: Due to the court's unavailability, plaintiff's 64 MOTION to COMPEL scheduled for hearing on 11/8/2019, will not be heard as ﬁled. Plaintiff's counsel is directed to contact the Courtroom Deputy for Magistrate Judge Deborah Barnes to obtain available civil law and motion hearing dates and re-notice the motion. Parties may appear at the hearing telephonically. To arrange telephonic appearance, the parties shall contact the undersigned at (916) 930-4128 forty-eight (48) hours before the scheduled hearing to make arrangements. I HEREBY CERTIFY that the foregoing is a true and correct statement of an order made in the above-captioned case.(Buzo, P) (Entered: 10/15/2019)

10/15/2019 66 DESIGNATION of COUNSEL FOR SERVICE. Added attorney John Robert Whiteﬂeet for Scott Jones (Whiteﬂeet, John) (Entered: 10/15/2019)

10/15/2019

67 NOTICE to RESCHEDULE HEARING on 64 Motion to Compel : Motion Hearing RESET 11/15/2019 at 10:00 AM in Courtroom 27 (DB) before Magistrate Judge Deborah Barnes. by Gary Wayne Welchen. (Davy, James) Modiﬁed on 10/16/2019 (Benson, A.). (Entered: 10/15/2019)

11/08/2019

68 JOINT STATEMENT re Discovery Disagreement by Plaintiff Gary Wayne Welchen re 64 Motion to Compel. (Attachments: # 1 Exhibit A (Responses to Interrogatories), # 2 Exhibit B (Objections to Requests for Production), # 3 Exhibit C (Responses to notice of deposition)(Davy, James) Modiﬁed on 11/12/2019 (Kaminski, H). (Entered: 11/08/2019)

11/13/2019 69 RESPONSE by Scott Jones to 68 Statement. (Whiteﬂeet, John) Modiﬁed on 11/14/2019 (Kaminski, H). (Entered: 11/13/2019)

11/15/2019

70 MINUTES (Text Only) for proceedings before Magistrate Judge Deborah Barnes: MOTION HEARING held on 11/15/2019 re 64 Motion to Compel ﬁled by Gary Wayne Welchen. Court addressed pltf's counsel as stated on the record. Mr. Davy addressed the court. After hearing of arguments, for reasons stated on the record, pltf's motion for discovery submitted. Court to issue written order. Plaintiffs Counsel James Davy and Phil Telfeyan telephonic. Defendants Counsel Jose Zelidon-Zepeda telephonic. Court Reporter/CD Number: Jonathan Anderson/1. (Buzo, P) (Entered: 11/15/2019)

11/18/2019

71 ORDER signed by Magistrate Judge Deborah Barnes on 11/15/19 DENYING 64 Motion to Compel without prejudice to renewal. (Coll, A) (Entered: 11/18/2019)

06/18/2020 72 (DISREGARD, REFER to 73 Motion to Withdraw as Attorney) MOTION to WITHDRAW as ATTORNEY by Gary Wayne Welchen. (Davy, James) Modiﬁed on 6/19/2020 (Kastilahn, A). (Entered: 06/18/2020)

06/18/2020 73 MOTION to WITHDRAW as ATTORNEY (Corrected) by Gary Wayne Welchen. (Davy, James) (Entered: 06/18/2020)

06/19/2020

74 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 6/19/2020: Pursuant to the Motion to Withdraw as Attorney (ECF No. 73 ), Attorney James P. Davy is hereby TERMINATED. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 06/19/2020)

 
 Case 2:16-cv-00185-TLN-KJN Document 1 Filed 01/29/16 Page 1 of 14

1 Phil Telfeyan (CA Bar No. 258270)

2 Katherine Hubbard (CA Bar No. 302729)

3 Attorneys, Equal Justice Under Law

4 601 Pennsylvania Avenue NW

5 South Building — Suite 900

6 Washington, D.C. 20004

7 (202) 505-2058

8 ptelfeyan@equaljusticeunderlaw.org

9 khubbard@equaljusticeunderlaw.org

10 Attorneys for Plaintiff Gary Welchen

11

12

THE UNITED STATES DISTRICT COURT

13

FOR THE EASTERN DISTRICT OF CALIFORNIA

14

15

)

16 GARY WAYNE WELCHEN, on behalf of )

17 himself and others similarly situated,

)

18

)

19

Plaintiffs,

)

20

)

Case No. 2:16-at-90

21

v.

)

(Class Action)

22

)

23 THE COUNTY OF SACRAMENTO and )

24 KAMALA HARRIS in her Official

)

25 Capacity as the California Attorney General, )

26

)

27

Defendants.

)

28 ____________________________________)

29

30

CLASS ACTION COMPLAINT

31

Introduction

32

1. This case is about Sacramento County’s wealth-based detention scheme, which

33 operates to jail some of the County’s poorest residents solely because they cannot make a

34 monetary payment. Named Plaintiff Gary Welchen is an impoverished arrestee currently

35 imprisoned in the county jail because he is too poor to pay the money the County demands for

36 his release. If he were rich enough to pay $10,000 — like many wealthier people accused of the

37 same offense — he could walk out of his jail cell immediately under Sacramento County’s pay-

38 for-freedom pretrial justice system.

Class Action Complaint

1

Case 2:16-cv-00185-TLN-KJN Document 1 Filed 01/29/16 Page 2 of 14

1

2. Sacramento County currently runs two systems of pretrial justice: one for the rich

2 and another for the poor. Wealthy arrestees purchase their immediate freedom by paying their

3 bail amount. Poor arrestees must languish behind bars for days, weeks, or months, simply

4 because they cannot afford to pay their bail amount. In Defendants’ wealth-based detention

5 scheme, the ultimate criterion that determines whether an arrestee immediately walks free or sits

6 in jail is the amount of money she has.

7

3. On behalf of the many other arrestees subjected to Defendants’ unlawful and

8 ongoing wealth-based detention scheme, the named Plaintiff in this action challenges the use of

9 money bail to detain poor arrestees while letting rich arrestees free. Defendants’ wealth-based

10 detention scheme has no place in a system that promises equal justice under law, and it violates

11 the Equal Protection and Due Process Clauses of the Constitution.

12

4. By and through his attorneys and on behalf of himself and all others similarly

13 situated, the named Plaintiff seeks in this civil action the vindication of his fundamental rights,

14 injunctive relief preventing future wealth-based detention of all Class Members, and a

15 declaration that Defendants cannot use money bail to detain any person solely because she is

16 unable to make a monetary payment.

17

Nature of the Action

18

5. It is the policy and practice of the County of Sacramento to refuse to release

19 arrestees from jail unless they pay their money bail amount. Plaintiffs seek declaratory and

20 injunctive relief prohibiting Defendants’ wealth-based detention scheme and requiring that

21 pretrial release or detention decisions be based on factors other than wealth-status.

22

Jurisdiction and Venue

23

6. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201,

Class Action Complaint

2

Case 2:16-cv-00185-TLN-KJN Document 1 Filed 01/29/16 Page 3 of 14

1 et seq., and the Fourteenth Amendment to the United States Constitution. This Court has

2 jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.

3

7. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.

4

Parties1

5

8. Named Plaintiff Gary Welchen is a 50-year-old resident of Sacramento. He is

6 currently experiencing homelessness, and his sole source of income is social security disability

7 payments. He represents himself as an individual and represents a Class of similarly situated

8 people subjected to Defendants’ wealth-based detention scheme.

9

9. Defendant County of Sacramento is a local government entity organized under the

10 laws of the State of California. The Sacramento County Sheriff’s Department is a division of the

11 County and operates the Sacramento County Jail. The Sheriff’s Department detains inmates at

12 the county jail and is authorized to issue and sign orders of release.

13

10. The Sheriff’s Department is headed by the Sacramento County Sheriff, who is an

14 officer of Sacramento County. The officers and employees of the Sheriff’s Department are

15 authorized to accept money bail, order the release of an arrestee, and set a time for an arrestee’s

16 appearance in state court. The Sheriff’s Department, by policy and practice, detains arrestees too

17 poor to afford their bail amount.

18

11. Under the Supremacy Clause of the United States Constitution, all officials must

19 uphold the Equal Protection and Due Process Clauses of the Fourteenth Amendment, regardless

20 of contrary instructions from state officials, local officials, or state judges. Additionally, upon

21 taking office, the Sacramento County Sheriff swears an oath to support and defend the

22 Constitution of the United States.

1 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they have had personal involvement and on information and belief as to all other matters.

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1

12. Defendant County of Sacramento is liable for its unconstitutional policies and

2 practices — including the policies and practices of its officers and divisions — even if they are

3 consistent with state law and even if they are consistent with orders of state judges.

4

13. Defendant Kamala Harris is the California Attorney General and the chief law

5 enforcement officer in California. She is charged with the enforcement of California’s laws,

6 including provisions of the Penal Code. In her official capacity as the California Attorney

7 General, she requires the County of Sacramento to enact a bail schedule, thereby creating a

8 wealth-based detention scheme. See Cal. Pen. Code § 1269b.

9

Factual Background

10 A. The Named Plaintiff’s Arrest

11

14. Gary Welchen is a 50-year-old resident of Sacramento.

12

15. Mr. Welchen was arrested for the first time in his life by Sacramento police on

13 January 29, 2016. He was accused of second-degree burglary of an uninhabited dwelling.

14

16. Mr. Welchen was taken to jail and told that he would be released if he paid

15 $10,000. He was told that he would be kept in jail unless he paid $10,000. See Exhibit 1,

16 Declaration of Gary Welchen.

17

17. Mr. Welchen is indigent. He worked as a contractor and a roofer until 1976,

18 when he injured his back, and his disability has prevented him from working since then. He is

19 currently experiencing homelessness, without a stable address or place to stay. His sole source

20 of income is Social Security disability payments.

21

18. Mr. Welchen was not told when he would be brought to court and has not been

22 brought to court for an initial appearance. Pursuant to Defendants’ policy, Mr. Welchen will not

23 be brought to court until February 2 (at the earliest), and he will not be considered for release

Class Action Complaint

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1 without bail until two additional days after his first appearance.

2 B. Defendants’ Wealth-Based Detention Scheme

3

19. The named Plaintiff would be released from jail immediately if he paid the

4 amount of money required by the County.

5

20. Arrestees are given a right to release pending trial, but Defendants’ pay-for-

6 freedom system conditions their release on their ability to afford money bail, thus tying their

7 pretrial freedom to their wealth-status.

8

21. The treatment of the named Plaintiff and other Class Members is caused by and is

9 representative of Defendants’ wealth-based detention policies and practices.

10

22. As a matter of policy and practice, when the Sheriff’s Department books a new

11 arrestee at the county jail, county employees inform the arrestee that she will be released from

12 jail immediately if she pays her money bail amount. The arrestee is told that she will remain in

13 jail if she is not able to make that payment.

14

23. For arrestees booked at the county jail, the Sheriff’s Department determines the

15 money bail amount by reference to the Sacramento County Bail Schedule based on each

16 arrestee’s booking charges. An arrestee’s booking charges are determined by the Sheriff’s

17 Department (or other arresting agency, such as a police department). The Superior Court judges

18 of Sacramento County prepare, adopt, and annually revise Sacramento’s county bail schedule in

19 their administrative capacity.

20

24. Before an arrestee’s first appearance in court, it is the policy and practice of the

21 Sheriff’s department to set bail based on the bail schedule.

22

25. An arrestee’s first appearance in court occurs at least two to five days after arrest.

23 At each arrestee’s first appearance in court, the arrestee receives formal charges from the district

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1 attorney’s office. If the formal charges differ from the booking charges, the Superior Court

2 judge will reset the bail according to the bail schedule based on the formal charges. Superior

3 Court judges do not entertain a reduction or increase in bail until at least two days after an

4 arrestee’s first appearance in court.

5

26. It is the policy and practice of the Sheriff’s Department to immediately release

6 those arrestees who pay their money bail amount.

7

27. It is the policy and practice of the Sheriff’s Department to detain individuals who

8 do not pay their money bail amount. Before a Superior Court bail hearing, it is the policy and

9 practice of the Sheriff’s Department to detain individuals who do not pay the amount listed on

10 the bail schedule. After a Superior Court bail hearing, it is the policy and practice of the

11 Sheriff’s Department to detain individuals who do not pay the bail amount set by the Superior

12 Court.

13

28. Under Defendants’ pay-for-freedom system, those wealthy enough to pay their

14 bail amount are immediately released from the county jail. Some poorer arrestees eventually

15 make arrangements with private bail bond companies — arrangements that require significant

16 time spent in jail not suffered by wealthier arrestees. And many others who are poorer still are

17 left to languish in jail until the resolution of their case.

18

29. In Sacramento, approximately 45,000 individuals are booked in county jail every

19 year. On a typical day, approximately 120 new arrestees are locked in the county jail.

20

30. At any given time, there are approximately 4,400 inmates in the county jail,

21 roughly 57% of whom are being detained pretrial. Although they are presumed innocent of the

22 crime for which they have been arrested, there are more than 2,500 individuals at any given time

23 who are being detained pretrial.

Class Action Complaint

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1

31. Approximately 60% of pretrial detainees are held due to probation revocation

2 proceedings, violation of terms of release, immigration detainers, or other holds. Even

3 discounting this percentage, more than 8,000 individuals are detained annually solely due to their

4 wealth-status.

5

32. Those arrestees too poor to pay for their freedom are not appointed counsel until

6 their first appearance in court. Such arrestees could theoretically ask a magistrate to be released

7 without money bail, but this process is functionally non-existent while arrestees remain

8 unrepresented by counsel.

9

33. At their first appearance, arrestees too poor to afford their money bail are told that

10 they cannot seek release until at least two days later, meaning that they have to wait a minimum

11 of four to seven days before having the chance for a judge to release them without money bail.

12

34. Wealthy arrestees do not have to wait in jail for any of these processes, because

13 the County grants them immediate release if they pay their money bail amount.

14

35. By offering bail to all arrestees, Defendants allow pretrial release to everyone, but

15 condition that release on an arrestee’s wealth-status. Only those who can afford their money bail

16 amount are permitted pretrial release.

17

36. While tying pretrial freedom to wealth-status is the norm Sacramento, many other

18 jurisdictions throughout the country do not hold people in jail because of their poverty. Instead,

19 many other places release arrestees with pretrial supervision practices that can help increase

20 court attendance and public safety without requiring detention. Pretrial services agencies in

21 other counties employ numerous methods of maximizing public safety and court appearances,

22 including reporting obligations, phone and text message reminders of court dates, rides to court

23 for those without transportation or a stable address, counseling, drug and alcohol treatment,

Class Action Complaint

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1 batterer intervention programs, anger management courses, reporting obligations, SCRAM

2 bracelets (for alcohol testing), or electronic monitoring, among other services, when necessary to

3 guard against a particular risk.

4

37. Other counties also employ non-monetary conditions of release, including

5 unsecured or “signature” bonds (which do not require payment up front), stay-away orders,

6 curfews, or even home detention, further contributing to high public safety and court appearance

7 rates.

8

38. Jurisdictions with robust pretrial services and non-monetary conditions of release

9 often achieve court-appearance rates over 90%, with more than 85% of those released pretrial

10 remaining arrest-free (and 98–99% remaining arrest-free for violent crimes).

11

39. Unnecessary pretrial detention causes instability in employment, housing, and

12 care for dependent relatives. Studies show that those detained pretrial face worse outcomes at

13 trial and sentencing than those released pretrial, even when charged with the same offenses.

14 Detained defendants are more likely to plead guilty just to shorten their jail time, even if they are

15 innocent. They have a harder time preparing for their defense, gathering evidence and witnesses,

16 and meeting with their lawyers. Studies also show that just two days of pretrial detention

17 increases the likelihood of future arrests.

18

40. Pretrial detention is more than ten times more expensive than effective pretrial

19 supervision programs. Through non-monetary tools, pretrial supervision programs can save

20 taxpayer expense while maintaining high public safety and court appearance rates.

21

41. The County of Sacramento does not supervise any pretrial arrestees. Instead, its

22 wealth-based detention scheme is the central component of its pretrial justice system, making

23 wealth-status the ultimate criterion for an arrestee’s detention or release.

Class Action Complaint

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Case 2:16-cv-00185-TLN-KJN Document 1 Filed 01/29/16 Page 9 of 14

1

Class Action Allegations

2

42. The named Plaintiff brings this action, on behalf of himself and all others

3 similarly situated, for the purpose of asserting the claims alleged in this Complaint on a common

4 basis.

5

43. A class action is a superior means, and the only practicable means, by which the

6 named Plaintiff and unknown Class Members can challenge the Defendants’ unlawful wealth-

7 based detention scheme.

8

44. This action is brought and may properly be maintained as a Class action pursuant

9 to Rule 23(a)(1)–(4) and Rule 23(b)(2) of the Federal Rules of Civil Procedure.

10

45. This action satisfies the numerosity, commonality, typicality, and adequacy

11 requirements of those provisions.

12

46. Plaintiff proposes one Class seeking declaratory and injunctive relief. The

13 Declaratory and Injunctive Class is defined as: all arrestees who are or will be in the custody of

14 the County of Sacramento and are or will be detained for any amount of time because they are

15 unable to pay money bail.

16 A. Numerosity — Fed. R. Civ. P. 23(a)(1)

17

47. The Sacramento County Jail detains approximately 45,000 individuals annually.

18 Of those, approximately 57% are detained pretrial. Arrestees are presented with the County’s

19 standard money bail choice of pay or jail.

20

48. Some arrestees are able to pay for release immediately. Those not able to pay are

21 held in the county jail pursuant to Defendants’ wealth-based detention scheme.

22

49. The number of current and future arrestees detained pursuant to Defendants’

23 wealth-based detention scheme — if it is not enjoined — is well into the hundreds.

Class Action Complaint

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Case 2:16-cv-00185-TLN-KJN Document 1 Filed 01/29/16 Page 10 of 14

1 B. Commonality — Fed. R. Civ. P. 23(a)(2)

2

50. The relief sought is common to all Class Members, and common questions of law

3 and fact exist as to all Class Members. The named Plaintiff seeks relief concerning whether

4 Defendants’ policies, practices, and procedures violate the rights of the Class Members and relief

5 mandating Defendants to change their policies, practices, and procedures so that the

6 constitutional rights of the Class Members will be protected in the future.

7

51. These common legal and factual questions arise from one set of policies and

8 practices: Defendants’ wealth-based detention scheme. Defendants operate this scheme in

9 materially the same manner every day. The material components of the scheme do not vary

10 from Class Member to Class Member, and the resolution of these legal and factual issues will

11 determine whether all Class Members are entitled to the relief they seek.

12

Among the most important, but not the only, common questions of fact are:

13  14 15  16 17  18 19 20

Does the County have a policy and practice of requiring money bail as a prerequisite for post-arrest release? Does the County immediately release those arrestees wealthy enough to pay their money bail amount? Does the County detain, for any amount of time, those arrestees too poor to pay their money bail amount solely because they cannot make that monetary payment?
52. Among the most important common question of law are:

21  22 23  24 25 26 C.

Do the Equal Protection and Due Process Clauses prohibit the government from jailing an individual solely due to her inability to make a monetary payment? Does jailing an individual due solely to her inability to afford money bail constitute jailing her due to her inability to make a monetary payment?
Typicality — Fed. R. Civ. P. 23(a)(3)

27

53. The named Plaintiff’s claims are typical of the other Class Members’ claims, and

28 he has the same interests in this case as all other Class Members. Each Class Member is

29 confined in jail because she cannot afford to pay Defendants’ money bail amount. The answer to

Class Action Complaint

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Case 2:16-cv-00185-TLN-KJN Document 1 Filed 01/29/16 Page 11 of 14

1 whether Defendants’ wealth-based detention scheme is unconstitutional will determine the

2 claims of the named Plaintiff and every other Class Member.

3

54. If the named Plaintiff succeeds in the claim that Defendants’ wealth-based

4 detention scheme violates his constitutional rights, that ruling will likewise benefit every other

5 Class Member.

6 D. Adequacy — Fed. R. Civ. P. 23(a)(4)

7

55. The named Plaintiff is an adequate representative of the Class because his interest

8 in the vindication of the legal claims that he raises is entirely aligned with the interests of the

9 other Class Members, who each have the same constitutional claims. He is a Member of the

10 Class, and his interests do not conflict with those of the other Class Members.

11

56. There are no known conflicts of interest among Class Members, all of whom have

12 a similar interest in vindicating their constitutional rights in the face of Defendants’ pay-for-

13 freedom system.

14

57. Plaintiffs are represented by attorneys from Equal Justice Under Law, who have

15 experience in litigating complex civil rights matters in federal court and extensive knowledge of

16 both the details of Defendants’ scheme and the relevant constitutional and statutory law.

17 Counsels’ relevant qualifications are more fully set forth in the contemporaneously filed Motion

18 for Class Certification.

19

58. The combined efforts of Class counsel have so far included extensive

20 investigation into money bail schemes over a period of years, including numerous interviews

21 with witnesses, court employees, jail inmates, families, attorneys throughout the region,

22 community members, statewide experts in the functioning of state and local courts, and national

23 experts in constitutional law, post-arrest procedure, law enforcement, judicial procedures,

Class Action Complaint

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Case 2:16-cv-00185-TLN-KJN Document 1 Filed 01/29/16 Page 12 of 14

1 criminal law, pretrial services, and jails.

2

59. Class counsel have a detailed understanding of state law and practices as they

3 relate to federal constitutional requirements. Counsel have studied the way that these systems

4 function in other counties in order to investigate the wide array of lawful alternatives.

5

60. As a result, counsel have devoted enormous time and resources becoming

6 intimately familiar with Defendants’ scheme and with the relevant state and federal laws.

7 Counsel has also developed relationships with many of the individuals and families most

8 victimized by Defendants’ practices. The interests of the Class Members will be fairly and

9 adequately protected by the Plaintiffs and their attorneys.

10 E. Rule 23(b)(2)

11

61. Class action status is appropriate because Defendants — through the policies and

12 practices that make up their wealth-based detention scheme — have acted in the same

13 unconstitutional manner with respect to all Class Members. Defendants enforce a wealth-based

14 system of pretrial justice: wealthy arrestees can purchase their immediate release, while poorer

15 arrestees must remain in jail.

16

62. The Class therefore seeks declaratory and injunctive relief to enjoin Defendants

17 from detaining arrestees who cannot afford their money bail amounts. Because the putative

18 Class challenges Defendants’ scheme as unconstitutional through declaratory and injunctive

19 relief that would apply the same relief to every Class Member, Rule 23(b)(2) certification is

20 appropriate and necessary.

21

63. Injunctive relief compelling Defendants to comply with these constitutional rights

22 will similarly protect each Class Member from being subjected to Defendants’ unlawful policies

23 and practices. A declaration and injunction stating that Defendants cannot detain arrestees due to

Class Action Complaint

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Case 2:16-cv-00185-TLN-KJN Document 1 Filed 01/29/16 Page 13 of 14

1 their inability to make a monetary payment would provide relief to every Class Member.

2 Therefore, declaratory and injunctive relief with respect to the Class as a whole is appropriate.

3

64. Plaintiffs seek the following relief and hereby demand a jury in this cause for all

4 matters so appropriate.

5

Claims for Relief

6 Count One: Defendant County of Sacramento Violates Plaintiffs’ Rights by Jailing Them

7 Because They Cannot Afford a Monetary Payment

8

9

65. Plaintiffs incorporate by reference the allegations in paragraphs 1–64.

10

66. The Fourteenth Amendment’s Equal Protection and Due Process Clauses prohibit

11 jailing a person because of her inability to make a monetary payment. Defendant County of

12 Sacramento violates Plaintiffs’ fundamental rights by keeping them in jail solely because they

13 cannot afford to pay money bail.

14 Count Two: Defendant Kamala Harris, in Her Official Capacity, Violates Plaintiffs’ Rights

15 by Requiring Defendant County of Sacramento to Adopt a Money Bail Schedule

16

17

67. Plaintiffs incorporate by reference the allegations in paragraphs 1–66.

18

68. The Fourteenth Amendment’s Equal Protection and Due Process Clauses prohibit

19 jailing a person because of her inability to make a monetary payment. Defendant Kamala Harris,

20 in her official capacity as California Attorney General, violates Plaintiffs’ rights by requiring

21 Defendant County of Sacramento to adopt a bail schedule that results in detaining them solely

22 because they cannot afford to pay money bail.

23

Request for Relief

24

WHEREFORE, Plaintiffs and the other Class Members request that this Court issue the

25 following relief:

26

a. A declaratory judgment that Defendants violate the named Plaintiff’s and Class

27

Members’ constitutional rights by keeping them in jail solely because they cannot

Class Action Complaint

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Case 2:16-cv-00185-TLN-KJN Document 1 Filed 01/29/16 Page 14 of 14

1

make a monetary payment;

2

3

b. An order and judgment preliminarily and permanently enjoining Defendants from

4

enforcing their unconstitutional wealth-based detention policies and practices

5

against the named Plaintiff and the Class of similarly situated people that he

6

represents;

7

8

c. An order and judgment preliminarily and permanently enjoining the County of

9

Sacramento — including the Sheriff and all officers and employees of the

10

Sheriff’s Department at the county jail — from using money bail to detain any

11

person due to her inability to make a monetary payment and requiring that all

12

release/detention decisions be based on factors other than wealth-status or ability

13

to make a monetary payment;

14

15

d. A judgment individually compensating the named Plaintiff for the damages that

16

he suffered as a result of Defendants’ unconstitutional and unlawful conduct,

17

including damages resulting from his confinement in jail;

18

19

e. An order and judgment granting reasonable attorneys’ fees and costs pursuant to

20

42 U.S.C. § 1988, and any other relief this Court deems just and proper.

21

22

Respectfully submitted,

23

24

/s/ Phil Telfeyan

25

Phil Telfeyan (California Bar No. 258270)

26

Katherine Hubbard (California Bar No. 302729)

27

Attorneys, Equal Justice Under Law

28

601 Pennsylvania Avenue NW

29

South Building — Suite 900

30

Washington, D.C. 20004

31

(202) 505-2058

32

ptelfeyan@equaljusticeunderlaw.org

33

khubbard@equaljusticeunderlaw.org

34

Attorneys for Plaintiffs

Class Action Complaint

14

 
 1

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8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 GARY WAYNE WELCHEN,

No. 2:16-cv-00185-TLN-KJN

12

Plaintiff,

13

v.

14 KAMALA HARRIS and COUNTY OF SACRAMENTO,
15
Defendants. 16

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER

17

18

This matter is before the Court pursuant to Plaintiff Gary Welchen’s (“Plaintiff”) motion

19 for temporary restraining order. (ECF No. 2.) For the reasons set forth below, Plaintiff’s motion

20 is hereby DENIED.

21

I.

FACTUAL BACKGROUND

22

Plaintiff is a homeless and indigent resident of Sacramento, California. (ECF No. 2 at 3.)

23 He was arrested on January 29, 2016, by Sacramento police offers and accused of burglary. (ECF

24 No. 2 at 3.) After his arrest, he was taken to the Sacramento County Jail and informed by jail

25 employees that he would not be released unless he paid $10,000 in bail. (ECF No. 2 at 3.)

26 Plaintiff asserts that the bail scheme in Sacramento is unconstitutional because it is a “wealth-

27 based detention scheme that penalizes all indigent arrestees.” (ECF No. 2 at 3.) Plaintiff has

28 filed the instant case as a class action and moves this Court for a temporary restraining order 1

1 “prohibiting Defendants’ wealth-based detention scheme and requiring that pretrial release or

2 detention decisions be based on factors other than wealth-status.” (ECF No. 2 at 2.)

3

II. LEGAL STANDARD

4

A temporary restraining order is an extraordinary and temporary “fix” that the court may issue

5 without notice to the adverse party if, in an affidavit or verified complaint, the movant “clearly

6 show[s] that immediate and irreparable injury, loss, or damage will result to the movant before the

7 adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of a temporary

8 restraining order is to preserve the status quo pending a fuller hearing. See Fed. R. Civ. P. 65. It is

9 the practice of this district to construe a motion for temporary restraining order as a motion for

10 preliminary injunction. Local Rule 231(a); see also Aiello v. One West Bank, No. 2:10–cv–0227–

11 GEB–EFB, 2010 WL 406092 at *1 (E.D. Cal. Jan. 29, 2010) (“Temporary restraining orders are

12 governed by the same standard applicable to preliminary injunctions.”) (internal quotation and

13 citations omitted).

14

Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear showing

15 that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22

16 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). “The purpose of a

17 preliminary injunction is merely to preserve the relative positions of the parties until a trial on the

18 merits can be held.” University of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (emphasis added);

19 see also Costa Mesa City Employee’s Assn. v. City of Costa Mesa, 209 Cal. App. 4th 298, 305 (2012)

20 (“The purpose of such an order is to preserve the status quo until a final determination following a

21 trial.”) (internal quotation marks omitted); GoTo.com, Inc. v. Walt Disney, Co., 202 F.3d 1199, 1210

22 (9th Cir. 2000) (“The status quo ante litem refers not simply to any situation before the filing of a

23 lawsuit, but instead to the last uncontested status which preceded the pending controversy.”) (internal

24 quotation marks omitted). In cases where the movant seeks to alter the status quo, preliminary

25 injunction is disfavored and a higher level of scrutiny must apply. Schrier v. University of Co., 427

26 F.3d 1253, 1259 (10th Cir. 2005). Preliminary injunction is not automatically denied simply because

27 the movant seeks to alter the status quo, but instead the movant must meet heightened scrutiny. Tom

28 Doherty Associates, Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33–34 (2d Cir. 1995). 2

1

“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed

2 on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief,

3 [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”

4 Winter, 555 U.S. at 20. A plaintiff must “make a showing on all four prongs” of the Winter test

5 to obtain a preliminary injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135

6 (9th Cir. 2011). In evaluating a plaintiff’s motion for preliminary injunction, a district court may

7 weigh the plaintiff’s showings on the Winter elements using a sliding-scale approach. Id. A

8 stronger showing on the balance of the hardships may support issuing a preliminary injunction

9 even where the plaintiff shows that there are “serious questions on the merits . . . so long as the

10 plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the

11 public interest.” Id. Simply put, Plaintiff must demonstrate, “that [if] serious questions going to

12 the merits were raised [then] the balance of hardships [must] tip[] sharply in the plaintiff’s favor,”

13 in order to succeed in a request for preliminary injunction. Id. at 1134–35 (emphasis added).

14

III. ANALYSIS

15

For the reasons stated below, the Court finds that the first two Winter factors do not

16 support granting relief. Therefore, the Court need not address the remaining factors as Plaintiff

17 has not met his burden for injunctive relief. See Alliance for the Wild Rockies, 632 F.3d at 1135

18 (stating that the Winter test requires a plaintiff to “make a showing on all four prongs”).

19

A. Likelihood of Success

20

At the outset, the Court notes that Plaintiff’s briefing is replete with one-liner platitudes

21 concerning equal justice and wealth status. However, the briefing fails to address the other

22 factors that the state court considers in deciding whether bail should be applied. In essence,

23 Plaintiff’s briefing makes overarching legal conclusions, but fails to provide this Court with facts

24 that would enable the Court to grant the relief sought by Plaintiff. Plaintiff’s failure is more

25 notable in this situation where Plaintiff is asking this Court to upset the status quo. See Martin,

26 740 F. 2d at 675 (“a party seeks mandatory preliminary relief that goes well beyond maintaining

27 the status quo pendente lite, courts should be extremely cautious about issuing a preliminary

28 injunction.”) Furthermore, the case law cited by Plaintiff is not binding on this Court, nor does 3

1 the information before this Court provide enough detail to determine whether the bail systems

2 that other districts have found to be unconstitutional are similar to that which is utilized in

3 Sacramento. As such, this Court cannot find that Plaintiff is likely to succeed on the merits of

4 this case, and this factor weighs in favor of denying injunctive relief.

5

B. Irreparable Harm

6

Plaintiff asserts that “without intervention from this Court, Plaintiff and the class of

7 similarly situated people will continue to suffer the serious and irreparable harm of

8 unconstitutional jailing.” (ECF No. 2 at 17.) In deciding whether Plaintiff is likely to suffer

9 irreparable injury absent an injunction, the Court must address whether he is likely to suffer from

10 a constitutional violation. Although Plaintiff is correct that “unconstitutionally imprisoning a

11 human being in a jail cell in violation of her constitutional rights is undoubtedly an irreparable

12 harm to her body and mind,” (ECF No. 2 at 17), Plaintiff has not shown that the bail system

13 employed in Sacramento is unconstitutional. Plaintiff asserts that ability to pay is the only thing

14 that stands in the way of many indigent prisoners’ release. Such an accusation is not an accurate

15 depiction of the system, and the Court cannot find that irreparable harm exists without an accurate

16 assessment of Sacramento’s bail system. In sum, Plaintiff’s freedom rhetoric is not enough to

17 overcome Plaintiff’s failure to show an actual constitutional violation. Thus, the Court finds that

18 this factor weighs in favor of denying relief.

19

Because Plaintiff has failed to show a likelihood of success or irreparable harm, the Court

20 need not address the other two Winter factors since Plaintiff cannot succeed under Winter or the

21 Ninth Circuit’s sliding scale approach. See Winter, 555 U.S. at 20; Alliance for the Wild Rockies,

22 632 F.3d at 1135 (Winter requires a plaintiff to make a showing on all of the Winter factors); see

23 also Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (sliding scale approach requires a

24 likelihood of irreparable injury to the plaintiff).

25

IV. CONCLUSION

26

For the foregoing reasons, this Court finds that injunctive relief at this juncture of the

27 ///

28 /// 4

1 litigation is not appropriate. As such, Plaintiff’s Motion for Temporary Restraining Order (ECF

2 No. 2) is hereby DENIED.

3

IT IS SO ORDERED.

4

5 Dated: February 4, 2016

6

7

Troy L. Nunley United States District Judge

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1 Phil Telfeyan (CA Bar No. 258270) 2 Attorney, Equal Justice Under Law 3 601 Pennsylvania Avenue NW 4 South Building — Suite 900 5 Washington, D.C. 20004 6 (202) 505-2058 7 ptelfeyan@equaljusticeunderlaw.org 8 Attorney for Plaintiff Gary Welchen

9

THE UNITED STATES DISTRICT COURT

10

FOR THE EASTERN DISTRICT OF CALIFORNIA

11

12

)

13 GARY WAYNE WELCHEN, on behalf of )

14 himself and others similarly situated,

)

15

)

16

Plaintiffs,

)

17

)

Case No. 2:16-cv-00185-TLN-DB

18

v.

)

(Class Action)

19

)

20 THE COUNTY OF SACRAMENTO,

)

21 KAMALA HARRIS in her Official

)

22 Capacity as the California Attorney General, )

23 and SCOTT JONES in his Official Capacity )

24 as the Sacramento County Sheriff,

)

25

)

26

Defendants.

)

27 ____________________________________)

28

AMENDED CLASS ACTION COMPLAINT

29

Introduction

30

1. This case is about Sacramento County keeping some of its poorest residents in jail

31 because of their inability to make a monetary payment. Named Plaintiff Gary Welchen is an

32 indigent arrestee who was kept in the county jail solely because he was too poor to pay the

33 amount of money that the Sacramento County Sheriff’s Department demanded for his release.

34

2. In Sacramento, arrestees face two different outcomes depending on their wealth

35 status. If Mr. Welchen had been rich enough to pay $10,000 — like many wealthier people

36 accused of the same offense — he could have walked out of his jail cell immediately under

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1 Sacramento County’s pay-for-freedom pretrial justice system. Because the only criterion

2 standing between Plaintiff and freedom was his ability to make a monetary payment, Sacramento

3 operates a wealth-based detention system.

4

3. On behalf of the many other arrestees subjected to Defendants’ unlawful wealth-

5 based detention system, the named Plaintiff in this action challenges the use of money bail to

6 detain poor arrestees while letting wealthier arrestees free. Defendants’ wealth-based detention

7 system violates the Equal Protection and Due Process Clauses of the United States Constitution

8 because it ties pretrial freedom to the ability to make a monetary payment, thus making freedom

9 dependent on wealth-status.

10

4. Defendants’ wealth-based detention system is a violation of substantive due

11 process that demands heightened scrutiny because the fundamental right to pretrial liberty is at

12 stake. Defendants’ wealth-based detention system fails heightened scrutiny because it does not

13 further a compelling government interest and is not narrowly tailored. Defendants’ wealth-based

14 detention system also violates substantive due process because it imposes punishment prior to

15 trial, in that the effects of wealth-based pretrial detention are far in excess of any regulatory

16 purpose for having such detention.

17

5. By and through his attorneys and on behalf of himself and all others similarly

18 situated, the named Plaintiff seeks the vindication of his fundamental rights, injunctive relief

19 preventing future wealth-based detention of all Class Members, and a declaration that any state

20 statutory or constitutional provisions that require the use of secured money bail to detain any

21 person are unconstitutional. Defendants cannot use money bail to detain any person solely

22 because she is unable to make a monetary payment.

Amended Class Action Complaint

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1

Nature of the Action1

2

6. It is the policy and practice of the County of Sacramento and Sheriff Scott Jones,

3 in implementing Sacramento’s bail system and enforcing Cal. Pen. Code §1269b, to refuse to

4 release arrestees from jail unless they pay their money bail amount. Additionally, the Sheriff and

5 the Attorney General enforce unconstitutional state laws that require the use of money bail to

6 detain individuals based on wealth-status. Plaintiffs seek declaratory and injunctive relief

7 prohibiting Defendants’ wealth-based detention system and requiring that pretrial release or

8 detention decisions be based on factors other than wealth-status.

9

Jurisdiction and Venue

10

7. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201,

11 et seq., and the Fourteenth Amendment to the United States Constitution. This Court has

12 jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.

13

8. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.

14

Parties

15

9. Named Plaintiff Gary Welchen is a 50-year-old resident of Sacramento. He has

16 experienced homelessness on several occasions, and his sole source of income is social security

17 disability payments. He represents himself as an individual and represents a Class of similarly

18 situated people subjected to Defendants’ wealth-based detention system.

19

10. Defendant County of Sacramento is a local government entity organized under the

20 laws of the State of California. The Sacramento County Sheriff’s Department is a division of the

21 County and operates the Sacramento County Jail.

22

11. Defendant Scott Jones, in his official capacity as Sacramento County Sheriff, is an

1 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they have had personal involvement and on information and belief as to all other matters.

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1 official of Defendant County of Sacramento in his role as jailor and with regard to release and

2 detention decisions and Sacramento’s release/detention policy.

3

12. The Sheriff has charge of and is the sole and exclusive authority to keep the

4 county jail and the prisoners in it. Cal. Gov’t Code § 26605. The Sheriff’s Department detains

5 inmates at the county jail and is authorized to issue and sign orders of release for pretrial

6 detainees. See Cal. Pen. Code § 1269b(a).

7

13. The Sheriff’s Department is headed by the Sacramento County Sheriff, who is an

8 officer of Sacramento County. The officers and employees of the Sheriff’s Department are

9 authorized to accept money bail, order the release of an arrestee, and set a time for an arrestee’s

10 appearance in state court. The Sheriff’s Department, by policy and practice, detains arrestees too

11 poor to afford their bail amount.

12

14. The Correctional Services Division of the Sacramento County Sheriff’s

13 Department is charged with the operations each of Sacramento’s County Jails, Correctional

14 Health, Work Release, and the various Jail Programs.

15

15. The Sheriff is the final policymaker for Defendant County of Sacramento with

16 regard to release and detention decisions and Sacramento’s release/detention policy.

17

16. While the money bail policies and practices of the Sheriff and the Sheriff’s

18 Department are consistent with state law, they are not consistent with the federal Constitution.

19 More than just the particular manner of implementation, it is the Sheriff and County’s policy of

20 implementing the money bail system that amounts to unconstitutional wealth-based detention.

21

17. Under the Supremacy Clause, the United States Constitution is the supreme law

22 of the land. All government officials must uphold the Equal Protection and Due Process Clauses

23 of the Fourteenth Amendment, regardless of contrary instructions from state officials, local

Amended Class Action Complaint

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1 officials, state law, local law, or state judges. Additionally, upon taking office, the Sacramento

2 County Sheriff swears an oath to support and defend the Constitution of the United States.

3

18. The Sheriff enforces the law requiring use of secured money bail after arrest, and

4 Sacramento has a policy and practice of detaining individuals based on their inability to make a

5 monetary payment.

6

19. Sacramento is responsible for its application of its policies, including its release

7 and detention policies.

8

20. Defendant County of Sacramento is liable for its unconstitutional policies and

9 practices — including the policies and practices of its officers and divisions — even if they are

10 consistent with state law and even if they are consistent with orders of state judges.

11

21. Under Ex parte Young, 209 U.S. 123 (1908), the Sheriff in his official capacity

12 can be enjoined from enforcing any unconstitutional state laws. Any statutes requiring or

13 permitting wealth-based detention are unconstitutional.

14

22. Under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), the County of

15 Sacramento and the county Sheriff are liable for their unconstitutional policies and practices.

16 Any detention practices that tie freedom to wealth-status are unconstitutional.

17

23. Defendant Kamala Harris is the California Attorney General and the chief law

18 enforcement officer in California. She is charged with the enforcement of California’s laws,

19 including provisions of the Penal Code. In her official capacity as the California Attorney

20 General, she requires the County of Sacramento and the county Sheriff to impose bail pursuant to

21 a bail schedule, thereby creating a wealth-based detention system. See Cal. Pen. Code § 1269b.

22

24. The Attorney General has direct supervision over every county sheriff in the state.

23 Cal. Const. Art. V, § 13; Cal. Gov’t Code § 12560. Several statutory provisions give the

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1 Attorney General specific supervisory powers over sheriffs. See, e.g., Cal. Gov’t Code §§

2 12524, 12560, 12561.

3

25. The Attorney General also has direct supervision over county district attorneys

4 and may assist the district attorney or take full charge of any investigation or prosecution. See

5 Cal. Gov’t Code § 12550. The Attorney General has a duty to prosecute violations of law

6 whenever, in her opinion, “any law of the State is not being adequately enforced in any county.”

7 Cal Const. Art. V, § 13. Criminal violations of the bail law can be prosecuted either by county

8 district attorneys or by the Attorney General herself.

9

26. Under Ex parte Young, the Attorney General in her official capacity can be

10 enjoined from enforcing any unconstitutional state laws. Any statutes requiring or permitting

11 wealth-based detention without an inquiry into an individual’s ability to make a monetary

12 payment are unconstitutional.

13

Factual Allegations

14 A. 15
16

The Named Plaintiff Was Held in Jail by Defendants Because He Was Unable to Pay His Money Bail Amount
27. At the time of his arrest, Gary Welchen was a 50-year-old resident of Sacramento.

17

28. Throughout the first several months of 2016, Mr. Welchen was experiencing

18 homelessness. Mr. Welchen was arrested by Sacramento police on January 29, 2016. He was

19 accused of second-degree burglary of an uninhabited dwelling.

20

29. Mr. Welchen was taken to jail and told that he would be released if he paid

21 $10,000. He was told that he would be kept in jail unless he paid $10,000. See Exhibit 1,

22 Declaration of Gary Welchen.

23

30. Mr. Welchen is indigent. He worked as a contractor and a roofer until 1996,

24 when he injured his back, and his disability has prevented him from working since then. Both

Amended Class Action Complaint

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1 before and after his arrest, he was experiencing homelessness, without a stable address or place

2 to stay. His sole source of income is Social Security disability payments.

3

31. Because of his indigence, Mr. Welchen was unable to pay his money bail amount.

4

32. Had Mr. Welchen been able to afford his money bail amount, he would have paid

5 for his freedom immediately.

6

33. Unable to afford his money bail amount, Mr. Welchen was detained for six days

7 — from January 29, 2015, through February 4, 2015 — before he was released by the Sheriff’s

8 Department.

9 B. 10
11

Defendants’ Wealth-Based Detention Scheme Detains Arrestees Who Cannot Pay Their Money Bail Amount while Releasing Those Who Can Pay
34. Upon arrest, arrestees in Sacramento are transported to the Mail Jail for booking.

12 The Sheriff’s Correctional Services Division performs booking processes on all arrestees.

13

35. The Sacramento County Sheriff’s Department has a computerized Jail

14 Management System, which records various data on all inmates in the county jail system. These

15 records are updated on an ongoing basis as events occur, and include information about the time

16 of arrest and the charge(s), the posting of any bail, and the date and time of release from custody.

17

36. The booking processes of arrestees include searching arrestees, medical triage,

18 photographing, fingerprinting to include warrant checks, classification, criminal history review,

19 review for eligibility to be cited and released, DNA collection from persons arrested for felony

20 charges, and inventory and storage of property.

21

37. At the end of booking processes, arrestees are given a booking sheet, which

22 includes their booking charge and their bail amount. Bail is determined by referring to the

23 Felony and Misdemeanor Bail Schedule as established by the Superior Court of California,

24 County of Sacramento. Deputy sheriffs use this bail schedule, referring to an arrestee’s booking

Amended Class Action Complaint

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1 charge(s), when determining an arrestee’s bail amount.

2

38. Arrestees are told that if they pay their bail amount, they will be released

3 immediately. They are told that if they cannot pay bail, they will remain in jail until arraignment

4 or discharge.

5

39. Arrestees who are not able to pay their money bail amount are shown a poster

6 listing the phone numbers of bail bond agents and told that they may call one of these numbers to

7 attempt to secure their release. Arrestees who obtain release through bail agents remain in jail

8 while making arrangements with the agent such as finding cosigners for the bail bond contract.

9 This process can take hours or days.

10

40. If an arrestee can afford to pay her bail amount, the Sheriff’s Department accepts

11 the money and orders the release of the arrestee.

12

41. If an arrestee cannot afford to pay her bail amount, the Sheriff’s Department

13 keeps her in jail until either she can make other arrangements to obtain her release, she is

14 discharged, or she is taken to court 2 to 5 days later for arraignment.

15

42. In Sacramento, approximately 45,000 individuals are booked in county jail every

16 year. On a typical day, approximately 120 new arrestees are locked in the county jail.

17

43. At any given time, there are approximately 4,400 inmates in the county jail,

18 roughly 57% of whom are being detained pretrial.

19

44. Although they are presumed innocent of the crime for which they have been

20 arrested, there are more than 2,500 individuals at any given time who are being detained pretrial

21 solely because they cannot afford money bail.

22

45. Approximately 60% of pretrial detainees are held due to probation revocation

23 proceedings, violation of terms of release, immigration detainers, or other holds. Even

Amended Class Action Complaint

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1 discounting this percentage, more than 8,000 individuals are detained annually solely due to their

2 wealth-status.

3 C. 4
5

Defendants’ Wealth-Based Detention Scheme Caused Plaintiff to Be Held in Jail Solely Due to His Inability to Pay Bail
46. The named Plaintiff would have been released from jail immediately if he had

6 paid the amount of money required by the Sheriff’s Department.

7

47. Arrestees are given a right to release pending trial, but Defendants’ pay-for-

8 freedom system conditions their release on their ability to afford money bail, thus tying their

9 pretrial freedom to their wealth-status.

10

48. The treatment of the named Plaintiff and other Class Members is caused by two

11 factors: (1) the unconstitutional provisions of California’s Penal Code that are enforced by the

12 Sheriff and Attorney General and (2) the Sheriff’s and Sacramento’s policies and practices of

13 wealth-based detention.

14

49. As a matter of policy and practice, when the county Sheriff’s Department books a

15 new arrestee at the county jail, county employees inform the arrestee that she will be released

16 from jail immediately if she pays her money bail amount. The arrestee is told that she will

17 remain in jail if she is not able to make that payment.

18

50. Before an arrestee’s first appearance in court, it is the policy and practice of the

19 Sheriff’s department to set bail based on the bail schedule. The bail schedule assigns bail

20 amounts solely on the charges for which the arrestee was arrested.

21

51. It is the policy and practice of the Sheriff’s Department to immediately release

22 those arrestees who pay their money bail amount.

23

52. In a typical week, the Sheriff’s Department releases dozens of individuals who

24 pay their money bail amount.

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1

53. It is the policy and practice of the Sheriff’s Department to detain individuals who

2 do not pay their money bail amount. Before arraignment, it is the policy and practice of the

3 Sheriff’s Department to detain individuals who do not pay the amount listed on the bail schedule.

4 After arraignment, it is the policy and practice of the Sheriff’s Department to detain individuals

5 who do not pay the bail amount set by the Superior Court.

6

54. In a typical week, the Sheriff’s Department detains dozens of individuals who do

7 not pay their money bail amount.

8

55. The Sheriff and Sheriff’s Department have a longstanding practice and custom —

9 which constitutes the standard operating procedure of the Sheriff and the County of Sacramento

10 — of releasing those individuals who pay their money bail amount.

11

56. The Sheriff and Sheriff’s Department have a longstanding practice and custom —

12 which constitutes the standard operating procedure of the Sheriff and the County of Sacramento

13 — of detaining those individuals who cannot pay their money bail amount.

14

57. Any provisions of California law that require the use of secured money bail to

15 detain individuals due to their inability to pay are unconstitutional because they violate the

16 principle that no person should have to spend a single day in jail simply because she cannot

17 make a monetary payment.

18

58. By directing that arrestees’ money bail amounts are set without regard to ability to

19 pay, Cal. Pen. Code § 1269b(b) violates the Equal Protection and Due Process Clauses of the

20 Fourteenth Amendment.

21

59. The Sheriff is liable under Ex parte Young for enforcing California law in

22 imposing money bail irrespective of an arrestee’s ability to pay.

23

60. The Attorney General is liable under Ex parte Young for enforcing California law

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1 in supervising the Sheriff and in requiring imposition of money bail irrespective of an arrestee’s

2 ability to pay.

3

61. The Sacramento County Sheriff and the County of Sacramento are liable under

4 Monell for the policy and practice of detaining all individuals who do not pay money bail while

5 releasing those individuals who do pay money bail.

6 D. 7
8

None of the Alternatives to Bail in Sacramento Allows for Immediate Release of Arrestees
62. Those arrestees too poor to pay for their freedom are not appointed counsel until

9 their first appearance in court. Such arrestees could theoretically apply to a magistrate for

10 release on lower bail or on their own recognizance, but this process is functionally non-existent

11 while arrestees remain unrepresented by counsel.

12

63. Under Defendants’ pay-for-freedom system, those wealthy enough to pay their

13 bail amount are immediately released from the county jail. Some poorer arrestees eventually

14 make arrangements with private bail bond companies — arrangements that require significant

15 time spent in jail not suffered by wealthier arrestees and that require the payment of a non-

16 refundable deposit. And many others who are poorer still are left to languish in jail until the

17 resolution of their case.

18

64. Wealthy arrestees do not have to wait in jail for any of these processes, because

19 the County grants them immediate release when they pay their money bail amount.

20

65. By offering bail to arrestees, the Sheriff’s Department allows pretrial release, but

21 conditions that release on an arrestee’s wealth-status. Only those who can afford their money

22 bail amount are permitted pretrial release.

23 E. 24 25

Defendants’ Use of Money Bail Infringes upon the Fundamental Right to Pretrial Liberty, and Is Not Narrowly Tailored in Securing Court Attendance or Public Safety

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1

66. Arrestees have a fundamental right to pretrial liberty that is infringed when money

2 is the deciding factor for whether that right is recognized. Because wealth-based pretrial

3 detention infringes on the fundamental right to pretrial liberty, Defendants’ use of money bail is

4 subject to heightened scrutiny, requiring that it be narrowly tailored to advance a compelling

5 governmental interest.

6

67. No governmental interests — other than securing court appearance or public

7 safety — are compelling enough to justify pretrial detention.

8

68. Defendants’ vehicle for pretrial detention — money bail — is not narrowly

9 tailored to advance compelling interests. Because money and wealth are the ultimate factors

10 determining release, Defendants’ money bail system allows release for someone who is rich,

11 dangerous, and a flight risk while detaining someone who is poor, safe, and likely to appear in

12 court. Money bail does not carefully delineate the circumstances under which the compelling

13 governmental interests are satisfied because the only question that matters is whether an arrestee

14 can afford her money bail amount.

15

69. There is no evidence that ability to pay correlates closely with unmanageable

16 flight risk or public safety. There is no acute problem of unmanageable flight risk or public

17 safety that money bail tackles because a person’s wealth is not determinative of her likelihood of

18 appearing for trial or threatening public safety. The money bail system applies to every case,

19 regardless of how serious or minor the charges.

20

70. Those wealthy enough to pay their bail amount have their full amount returned to

21 them if they appear for all their court dates, regardless of whether they commit additional crimes.

22 Thus, money bail has no connection to public safety.

23

71. Instead of basing pretrial release on risk level and therefore targeting a specific

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1 group of people known to be high-risk, Defendants’ money bail system is a blanket deprivation

2 of poor arrestees’ right to pretrial liberty simply because of their inability to pay bail.

3

72. Setting bail based on charges — as is Defendants’ policy and practice — is not an

4 individualized assessment that satisfies due process. Although the money bail system may be

5 administratively convenient for the Sheriff and the County for handling arrestees, administrative

6 convenience is a thoroughly inadequate basis for the deprivation of core constitutional rights.

7

73. The County of Sacramento does not supervise any pretrial arrestees. Instead, its

8 wealth-based detention scheme is the central component of its pretrial justice system, making

9 wealth-status the ultimate criterion for an arrestee’s detention or release.

10

74. Defendants’ money bail system violates substantive due process because the

11 system is not narrowly tailored to serving the interests of public safety and court appearance. By

12 making wealth-status the sole determinative factor of pretrial freedom, Defendants’ system rests

13 on a false assumption that wealth has bearing on a person’s likelihood of showing up to court or

14 ability to follow the law.

15

75. Defendants could use numerous other factors to determine pretrial release that are

16 not tied to wealth status. They could choose to release all arrestees (or all arrestees charged with

17 non-serious crimes); they could release those arrestees without prior failures to appear; they

18 could release arrestees who show no particularized concerns of flight risk or danger; or they

19 could choose other non-wealth-based metrics. Especially in light of the many possible systems

20 Defendants could adopt, the current method of wealth-based detention is not narrowly tailored to

21 further compelling interests.

22 F. 23
24

Defendants’ Money Bail Scheme Further Violates Substantive Due Process Because Its Effects Are Excessive in Relation to Its Regulatory Purpose
76. Wealth-based detention excessively restricts pretrial liberty in relation to any

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1 regulatory purpose. Money bail categorically eliminates the opportunity for people who are poor

2 to achieve pretrial freedom, even if they are not a danger or flight risk. Wealth-based detention

3 imposes punishment before an adjudication of guilt.

4

77. There is no pressing societal problem that requires wealth-based detention, nor is

5 there evidence that money bail is as effective as several alternative systems successfully used in

6 other jurisdictions. Defendants’ wealth-based detention system is excessive in light of successful

7 non-money-based systems that do not infringe on the fundamental right to pretrial liberty.

8

78. Defendants’ wealth-based detention system is also excessive because it does not

9 provide for individualized assessments of risk level nor offers a prompt detention hearing.

10

79. The existence of private, for-profit bail bond companies is not an adequate

11 leveling resource, for poor arrestees have to pay non-refundable deposits that alone may be out

12 of reach for some arrestees. The fact that bail may be reduced or eliminated at some point is also

13 not an adequate alternative remedy, as arrestees will have already spent time in jail solely based

14 on their inability to pay their money bail before having access to those alternatives.

15

80. While tying pretrial freedom to wealth-status is the norm in Sacramento, other

16 jurisdictions throughout the country do not hold people in jail because of their poverty. Instead

17 of relying on money bail, these jurisdictions release arrestees with pretrial supervision practices

18 that effectively promote court attendance and public safety without requiring detention. Pretrial

19 services agencies in other counties employ numerous methods of maximizing public safety and

20 court appearances, including reporting obligations, phone and text message reminders of court

21 dates, rides to court for those without transportation or a stable address, counseling, drug and

22 alcohol treatment, batterer intervention programs, anger management courses, reporting

23 obligations, SCRAM bracelets (for alcohol testing), or electronic monitoring, among other

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1 services, when necessary to guard against a particular risk. See generally Exhibit 2, Morrison

2 Aff.; Exhibit 3, Herceg Aff.; Exhibit 4, Murray Aff.

3

81. Other jurisdictions also employ non-monetary conditions of release, including

4 unsecured or “signature” bonds (which do not require payment up front), stay-away orders,

5 curfews, or even home detention, further contributing to high public safety and court appearance

6 rates. See generally Exhibit 4, Murray Aff.

7

82. Sacramento could use such pretrial services, but it does not do so to any

8 meaningful degree. The vast majority of arrestees booked in Sacramento County Jail are

9 processed and detained through Sacramento’s money bail scheme rather than non-monetary

10 supervision methods.

11

83. Jurisdictions with robust pretrial services and non-monetary conditions of release

12 often achieve court-appearance rates over 90%, with more than 85% of those released pretrial

13 remaining arrest-free (and 98–99% remaining arrest-free for violent crimes). See generally

14 Exhibit 2, Morrison Aff.; Exhibit 3, Herceg Aff.

15

84. Unnecessary pretrial detention has profound costs. It causes instability in

16 employment, housing, and care for dependent relatives. See generally Exhibit 4, Murray Aff.

17 Studies show that those detained pretrial face worse outcomes at trial and sentencing than those

18 released pretrial, even when charged with the same offenses. Detained defendants are more

19 likely to plead guilty just to shorten their jail time, even if they are innocent. Exhibit 5, Adachi

20 Decl. at ¶ 7. They have a harder time preparing for their defense, gathering evidence and

21 witnesses, and meeting with their lawyers. Id. at ¶ 8. Studies also show that just two days of

22 pretrial detention substantially increase the likelihood of future arrests.

23

85. Pretrial detention is more than ten times more expensive than effective pretrial

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1 supervision programs. See generally Exhibit 4, Murray Aff. Through non-monetary tools,

2 pretrial supervision programs can save taxpayer funds while maintaining high public safety and

3 court appearance rates.

4

Class Action Allegations

5

86. The named Plaintiff brings this action, on behalf of himself and all others

6 similarly situated, to assert the claims alleged in this Amended Complaint on a common basis.

7

87. A class action is a superior means, and the only practicable means, by which the

8 named Plaintiff and unknown Class Members can challenge Defendants’ unlawful wealth-based

9 detention system.

10

88. This action is brought and may properly be maintained as a Class action pursuant

11 to Rule 23(a)(1)–(4) and Rule 23(b)(2) of the Federal Rules of Civil Procedure.

12

89. This action satisfies the numerosity, commonality, typicality, and adequacy

13 requirements of those provisions.

14

90. Plaintiff proposes one Class seeking declaratory and injunctive relief. The

15 Declaratory and Injunctive Class is defined as: all arrestees who are or will be in the custody of

16 the County of Sacramento and are or will be detained for any amount of time because they are

17 unable to pay money bail.

18 A. Numerosity — Fed. R. Civ. P. 23(a)(1)

19

91. The Sacramento County Jail detains approximately 45,000 individuals annually.

20 Of those, approximately 57% are detained pretrial. Those arrestees who are not held due to

21 probation revocation proceedings, violation of terms of release, immigration detainers, or other

22 holds are presented with Defendants’ standard money bail choice of pay or jail.

23

92. Some arrestees are able to pay for release immediately. Those not able to pay are

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1 held in the county jail pursuant to Defendants’ wealth-based detention system.

2

93. The number of current and future arrestees detained pursuant to Defendants’

3 wealth-based detention system — if it is not enjoined — is well into the hundreds.

4 B. Commonality — Fed. R. Civ. P. 23(a)(2)

5

94. The relief sought is common to all Class Members, and common questions of law

6 and fact exist as to all Class Members. The named Plaintiff seeks relief concerning whether

7 provisions of state law that require the use of money bail and whether the Sheriff Department’s

8 policies, practices, and procedures violate the rights of the Class Members and relief mandating

9 that Defendants not enforce such provisions nor continue such practices so that the constitutional

10 rights of the Class Members will be protected in the future.

11

95. These common legal and factual questions arise from one set of policies and

12 practices: Defendants’ wealth-based detention system. Defendants operate this system in

13 materially the same manner every day. The material components of the system do not vary from

14 Class Member to Class Member, and the resolution of these legal and factual issues will

15 determine whether all Class Members are entitled to the relief they seek.

16

Among the most important, but not the only, common questions of fact are:

17  18
19  20
21  22 23 24

Do the Sheriff and County have a policy and practice of requiring money bail as a prerequisite for post-arrest release? Do the Sheriff and County immediately release those arrestees wealthy enough to pay their money bail amount? Do the Sheriff and County detain, for any amount of time, those arrestees too poor to pay their money bail amount solely because they cannot make that monetary payment?
96. Among the most important common question of law are:

25  26
27  28 29

Do the Equal Protection and Due Process Clauses prohibit the government from jailing an individual solely due to her inability to make a monetary payment?
Does jailing an individual due solely to her inability to afford money bail constitute jailing her due to her inability to make a monetary payment?

Amended Class Action Complaint

17

Case 2:16-cv-00185-TLN-DB Document 31 Filed 11/09/16 Page 18 of 22

1 C. Typicality — Fed. R. Civ. P. 23(a)(3)

2

97. The named Plaintiff’s claims are typical of the other Class Members’ claims, and

3 he has the same interests in this case as all other Class Members. Each Class Member is

4 confined in jail because she cannot afford her money bail amount. The answer to whether

5 Defendants’ wealth-based detention scheme is unconstitutional will determine the claims of the

6 named Plaintiff and every other Class Member.

7

98. If the named Plaintiff succeeds in the claim that Defendants’ policies and

8 practices concerning wealth-based detention violates his constitutional rights, that ruling will

9 likewise benefit every other Class Member.

10 D. Adequacy — Fed. R. Civ. P. 23(a)(4)

11

99. The named Plaintiff is an adequate representative of the Class because his interest

12 in the vindication of the legal claims that he raises is entirely aligned with the interests of the

13 other Class Members, who each have the same basic constitutional claims. He is a member of

14 the Class, and his interests coincide with and are not antagonist to those of the other Class

15 Members.

16

100. There are no known conflicts of interest among Class Members, all of whom have

17 a similar interest in vindicating their constitutional rights in the face of Defendants’ pay-for-

18 freedom system.

19

101. Plaintiffs are represented by attorneys from Equal Justice Under Law, who have

20 experience in litigating complex civil rights matters in federal court and extensive knowledge of

21 both the details of Defendants’ scheme and the relevant constitutional and statutory law.

22 Counsels’ relevant qualifications are more fully set forth in the previously filed Motion for Class

23 Certification.

Amended Class Action Complaint

18

Case 2:16-cv-00185-TLN-DB Document 31 Filed 11/09/16 Page 19 of 22

1

102. The combined efforts of Class counsel have so far included extensive

2 investigation into money bail schemes over a period of years, including numerous interviews

3 with witnesses, court employees, jail inmates, families, attorneys throughout the region,

4 community members, statewide experts in the functioning of state and local courts, and national

5 experts in constitutional law, post-arrest procedure, law enforcement, judicial procedures,

6 criminal law, pretrial services, and jails.

7

103. Class counsel have a detailed understanding of state law and practices as they

8 relate to federal constitutional requirements. Counsel have studied the way that these systems

9 function in other counties in order to investigate the wide array of lawful alternatives.

10

104. As a result, counsel have devoted enormous time and resources becoming

11 intimately familiar with Defendants’ system and with the relevant state and federal laws.

12 Counsel have also developed relationships with many of the individuals and families most

13 victimized by Defendants’ practices. The interests of the Class Members will be fairly and

14 adequately protected by the Plaintiffs and their attorneys.

15 E. Rule 23(b)(2)

16

105. Class action status is appropriate because Defendants have acted in the same

17 unconstitutional manner with respect to all Class Members. Defendants enforce a wealth-based

18 system of pretrial justice: wealthy arrestees can purchase their immediate release, while poorer

19 arrestees must remain in jail.

20

106. The Class therefore seeks declaratory and injunctive relief to enjoin Defendants

21 from detaining arrestees who cannot afford their money bail amounts. Because the putative

22 Class challenges Defendants’ system as unconstitutional through declaratory and injunctive relief

23 that would apply the same relief to every Class Member, Rule 23(b)(2) certification is

Amended Class Action Complaint

19

Case 2:16-cv-00185-TLN-DB Document 31 Filed 11/09/16 Page 20 of 22

1 appropriate and necessary.

2

107. Injunctive relief compelling Defendants to comply with these constitutional rights

3 will similarly protect each Class Member from being subjected to Defendants’ unlawful policies

4 and practices. A declaration and injunction stating that Defendants cannot detain arrestees due to

5 their inability to make a monetary payment would provide relief to every Class Member.

6 Therefore, declaratory and injunctive relief with respect to the Class as a whole is appropriate.

7

108. Plaintiffs seek the following relief and hereby demand a jury in this cause for all

8 matters so appropriate.

9

Claims for Relief

10 Count One: Defendants Violate Plaintiffs’ Substantive Due Process Rights by Jailing Them 11 Because They Cannot Afford a Monetary Payment

12

109. Plaintiffs incorporate by reference the allegations in paragraphs 1–108.

13

110. The Fourteenth Amendment’s Due Process Clauses prohibits infringement of the

14 fundamental right to pretrial freedom without narrow tailoring to a compelling governmental

15 interest. Because Defendants’ wealth-based detention model is not narrowly tailored to a

16 compelling governmental interest, Defendants violate Plaintiffs’ substantive due process rights

17 by keeping them in jail solely because they cannot afford to pay money bail.

18

111. Furthermore, the Fourteenth Amendment’s Due Process Clause prohibits

19 imposing punishment prior to trial. Because the effects of Defendants’ restrictions are excessive

20 in relation to any legitimate regulatory purpose, Defendants violate Plaintiffs’ substantive due

21 process rights by keeping them in jail solely because they cannot afford to pay money bail.

22

112. Defendant County of Sacramento violates Plaintiffs’ Fourteenth Amendment

23 rights by implementing the state’s bail laws and by implementing its wealth-based detention

24 system. Such implementation is a policy and practice of Defendant County of Sacramento.

Amended Class Action Complaint

20

Case 2:16-cv-00185-TLN-DB Document 31 Filed 11/09/16 Page 21 of 22

1

113. Defendant Scott Jones, in his official capacity as Sacramento County Sheriff,

2 violates Plaintiffs’ Fourteenth Amendment rights by implementing the county’s wealth-based

3 detention scheme through his oversight of the county jail, by implementing the state’s bail laws,

4 and by enforcing provisions of California state law regarding the use of money bail.

5

114. Defendant Kamala Harris, in her official capacity as California Attorney General,

6 violates Plaintiffs’ Fourteenth Amendment rights by requiring Defendants County of Sacramento

7 and Scott Jones to adopt and implement a bail schedule that results in detaining them solely

8 because they cannot afford to pay money bail.

9 Count Two: Defendants Violate Plaintiffs’ Equal Protection Rights by Jailing Them 10 Because They Cannot Afford a Monetary Payment [PRESERVED FOR APPEAL]

11

115. Plaintiffs incorporate by reference the allegations in paragraphs 1–114.

12

116. The Fourteenth Amendment’s Equal Protection Clause prohibits jailing a person

13 because of her inability to make a monetary payment. Defendants violate Plaintiffs’ equal

14 protection rights by detaining them solely because they cannot afford to pay money bail.

15

Request for Relief

16

WHEREFORE, Plaintiffs and the other Class Members request that this Court issue the

17 following relief:

18

a. A declaratory judgment that Defendants violate the named Plaintiff’s and Class

19

Members’ constitutional rights by keeping them in jail solely because they cannot

20

make a monetary payment;

21

b. An order and judgment preliminarily and permanently enjoining Defendants from

22

enforcing their unconstitutional wealth-based detention policies and practices

23

against the named Plaintiff and the Class of similarly situated people that he

24

represents;

25

c. An order and judgment preliminarily and permanently enjoining Defendant

26

County of Sacramento — including the Sheriff and all officers and employees of

27

the Sheriff’s Department at the county jail — from using money bail to detain any

28

person due to her inability to make a monetary payment and requiring that all

29

release/detention decisions be based on factors other than wealth-status or ability

Amended Class Action Complaint

21

Case 2:16-cv-00185-TLN-DB Document 31 Filed 11/09/16 Page 22 of 22

1

to make a monetary payment;

2

d. An order and judgment preliminarily and permanently enjoining the Attorney

3

General from requiring the use of money bail to detain indigent arrestees in

4

Sacramento;

5

e. An order declaring that all Defendants must follow the requirements of the Equal

6

Protection and Due Process Clauses, regardless of contrary state law or contrary

7

policies and practices;

8

f. An order declaring that California Penal Code section 1269b(b) and any other

9

state statutory or constitutional provisions that require the use of secured money

10

bail to detain any person without an inquiry into ability to pay are facially

11

unconstitutional;

12

g. An order declaring that, as applied by Defendants against Plaintiffs and Class

13

Members, California Penal Code section 1269b(b) and any other state statutory or

14

constitutional provisions that require the use of secured money bail to detain any

15

person without an inquiry into ability to pay are unconstitutional;

16

h. A judgment individually compensating the named Plaintiff for the damages that

17

he suffered as a result of Defendants’ unconstitutional and unlawful conduct,

18

including damages resulting from his confinement in jail;

19

i. An order and judgment granting reasonable attorneys’ fees and costs pursuant to

20

42 U.S.C. § 1988, and any other relief this Court deems just and proper.

21

Respectfully submitted,

22

/s/ Phil Telfeyan

23

Phil Telfeyan (California Bar No. 258270)

24

Attorney, Equal Justice Under Law

25

601 Pennsylvania Avenue NW

26

South Building — Suite 900

27

Washington, D.C. 20004

28

(202) 505-2058

29

ptelfeyan@equaljusticeunderlaw.org

30

Attorney for Plaintiffs

Amended Class Action Complaint

22

 
 Case 2:16-cv-00185-TLN-DB Document 42 Filed 10/26/18 Page 1 of 18

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 GARY WAYNE WELCHEN,

No. 2:16-cv-00185-TLN-DB

11

Plaintiff,

12

v.

ORDER

13 THE COUNTY OF SACRAMENTO, KAMALA HARRIS, in her official
14 capacity as the California Attorney General, and SCOTT JONES, in his
15 official capacity as the Sacramento County Sheriff,
16
Defendants. 17

18

19

This matter is before the Court pursuant to Defendant County of Sacramento, (“County”)

20 Defendant Scott Jones, in his official capacity as Sacramento County Sheriff, (“Sheriff”) and

21 Defendant Kamala Harris’s, in her official capacity as the California Attorney General, (“AG”)

22 (collectively “Defendants”) Motions to Dismiss. (ECF No. 35; ECF No. 36.) Plaintiff Gary

23 Wayne Welchen, et al. (“Plaintiff”) filed oppositions to Defendants’ motions. (ECF No. 37; ECF

24 No. 38.) Defendants filed replies. (ECF No. 39; ECF No. 40.) The Court has carefully

25 considered the parties’ arguments. For the reasons set forth below, Defendants’ Motions to

26 Dismiss are GRANTED IN PART and DENIED IN PART.

27 ///

28 /// 1

Case 2:16-cv-00185-TLN-DB Document 42 Filed 10/26/18 Page 2 of 18

1

I.

FACTUAL ALLEGATIONS

2

Plaintiff, a 50-year-old indigent and homeless resident of Sacramento, was arrested by

3 Sacramento police on January 29, 2016, for suspicion of second-degree burglary of an

4 uninhabited dwelling. (Pl.’s First Am. Compl. (“FAC”), ECF No. 31, ¶¶ 27–28, 30.) Plaintiff

5 alleges that after he was taken to jail, he was informed he would be kept in jail unless he paid

6 $10,000 for bail. (ECF No. 31, ¶ 29.) Plaintiff alleges that because he could not afford to pay

7 $10,000, he was detained for six days before he was released by the Sheriff’s Department. (ECF

8 No. 31, ¶ 33.) That same day, Plaintiff filed this class action against the County and AG alleging

9 that enforcement of California Penal Code section 1269b (“Bail Law”) and the County’s bail

10 schedule adopted pursuant to that law (“Bail Schedule”) violate his Constitutional rights under the

11 Due Process Clause and Equal Protection Clause of the Fourteenth Amendment. (Compl., ECF

12 No. 1, ¶¶ 13, 65–68.) Plaintiff later named the Sheriff as an additional defendant in the FAC for

13 the same claims. (ECF No. 31.)

14

Plaintiff alleges the County and Sheriff’s “policy of implementing the money bail system

15 [pursuant to Cal. Pen. Code § 1269(b)] . . . amounts to unconstitutional wealth-based detention.”

16 (ECF No. 31, ¶ 16.) Plaintiff alleges that at the end of the booking process, arrestees are given a

17 booking sheet, which includes their booking charge and their bail amount. (ECF No. 31, ¶ 37.)

18 Plaintiff further alleges bail is determined by referring to the Felony and Misdemeanor Bail

19 Schedule as established by the Superior Court of California, County of Sacramento. (ECF No.

20 31, ¶ 37.) Plaintiff states deputy sheriffs use this bail schedule, referring to an arrestee’s booking

21 charge(s), when determining an arrestee’s bail amount. (ECF No. 31, ¶ 37.) Plaintiff alleges

22 arrestees are told that if they pay their bail amount, they will be released immediately. (ECF No.

23 31, ¶ 38.) Plaintiff alleges arrestees are then told that if they cannot pay bail, they will remain in

24 jail until arraignment or discharge. (ECF No. 31, ¶ 38.) Plaintiff states that arrestees who are not

25 able to pay their money bail amount are shown a poster listing the phone numbers of bail bond

26 agents and told that they may call one of these numbers to attempt to secure their release. (ECF

27 No. 31, ¶ 39.) Plaintiff alleges arrestees who obtain release through bail bond agents remain in

28 2

Case 2:16-cv-00185-TLN-DB Document 42 Filed 10/26/18 Page 3 of 18

1 jail while arranging cosigners and finalizing the bail bond contract. (ECF No. 31, ¶ 39.)

2 According to Plaintiff, this process can take hours or days. (ECF No. 31, ¶ 39.)

3

Plaintiff alleges that if an arrestee can afford to pay her bail amount, the Sheriff’s

4 Department accepts the bail payment and orders the release of the arrestee. (ECF No. 31, ¶ 40.)

5 Plaintiff further states that if an arrestee cannot afford to pay her bail amount, the Sheriff’s

6 Department keeps her in jail until either she can make other arrangements to obtain her release,

7 she is discharged, or she is taken to court two to five days later for arraignment. (ECF No. 31, ¶

8 41.) Consequently, Plaintiff alleges that “[a]rrestees are given a right to release pending trial, but

9 Defendants’ pay-for-freedom system conditions their release on their ability to afford money bail,

10 thus tying their pretrial freedom to their wealth-status.” (ECF No. 31, ¶ 47.)

11

Plaintiff alleges the Bail Law violates substantive due process because the system is not

12 narrowly tailored to public safety or ensuring court appearances. (ECF No. 31, ¶ 74.) Plaintiff

13 further alleges that non-wealth-based alternatives to the money bail system exist and could be

14 implemented. (ECF No. 31, ¶ 75.) Moreover, Plaintiff alleges that Defendants’ wealth-based

15 detention system is excessive in relation to its purpose to ensure court appearances considering

16 successful non-money-based systems that do not infringe on the fundamental right to pretrial

17 liberty, such as phone and text message reminders of court dates, rides to court for those without

18 transportation or a stable address, counseling, SCRAM bracelets (for alcohol testing), and

19 electronic monitoring services. (ECF No. 31, ¶¶ 76–77, 80.) According to Plaintiff, subjecting

20 the poor to unnecessary pretrial detention causes instability in employment, housing, and care

21 dependent relatives. (ECF No. 31, ¶ 84.) Plaintiff further alleges that unnecessary pretrial

22 detention also leads to worse outcomes at trial when compared with those released pretrial. (ECF

23 No. 31, ¶ 84.) Plaintiff states that unnecessary pretrial detention causes difficulties in preparing a

24 defense, gathering evidence and witnesses, and meeting with their lawyers. (ECF No. 31, ¶ 84.)

25 Plaintiff also alleges that the Bail Law does not provide individualized assessments of risk level.

26 (ECF No. 31, ¶ 78.) For these reasons, Plaintiff alleges Defendants’ policy and practice of

27 enforcing the money-based bail system is excessive in relation to the Bail Law’s regulatory

28 purpose. (ECF No. 31, ¶ 111.) 3

Case 2:16-cv-00185-TLN-DB Document 42 Filed 10/26/18 Page 4 of 18

1

Plaintiff brings suit under 42 U.S.C. § 1983 (“§ 1983”). (ECF No. 31, ¶ 7.) Plaintiff

2 alleges the County violates Plaintiffs’ Fourteenth Amendment rights by its policy and practice of

3 implementing the Bail Law’s wealth-based detention system. (ECF No. 31, ¶ 112.) Plaintiff

4 alleges the Sheriff, in his official capacity, violates Plaintiffs’ Fourteenth Amendment rights by

5 implementing the Bail Schedule through his oversight of the county jail, by implementing the

6 state’s bail laws, and by enforcing provisions of California state law regarding the use of money

7 bail. (ECF No. 31, ¶ 113.) Finally, Plaintiff alleges the AG, in her official capacity, violates

8 Plaintiffs’ Fourteenth Amendment rights by requiring the County and Sheriff to adopt and

9 implement a bail schedule that results in detaining them solely because they cannot afford to pay

10 money bail. (ECF No. 31, ¶ 114.)

11

Plaintiff requests declaratory judgment that: (1) Defendants violated and continue to

12 violate Plaintiff’s and proposed class members’ rights under the Fourteenth Amendment; (2)

13 Defendants must follow the requirements of the Equal Protection and Due Process Clauses,

14 regardless of contrary state law or contrary policies and practices; (3) California Penal Code

15 section 1269b(b) and any other state statutory or constitutional provisions that require the use of

16 secured money bail to detain any person without an inquiry into ability to pay are facially

17 unconstitutional; and (4) as applied by Defendants against Plaintiff and class members, California

18 Penal Code section 1269b(b) and any other state statutory or constitutional provisions that require

19 the use of secured money bail to detain any person without an inquiry into ability to pay are

20 unconstitutional. (ECF No. 31 at 21–22.) Plaintiff also seeks preliminary and permanent

21 injunctive relief enjoining Defendants and all involved employees of the County from enforcing

22 the bail policy and practices against all proposed class members and request money damages and

23 attorneys’ fees and costs. (ECF No. 31 at 21–22.)

24

II. PROCEDURAL HISTORY

25

The Complaint was filed on January 29, 2016, with accompanying motions for a

26 temporary restraining order, preliminary injunction, and class certification. (ECF Nos. 1, 2, & 3.)

27 On February 4, 2016, this Court denied Plaintiff’s ex parte motion for a temporary restraining

28 order. (ECF No. 12.) On February 18, 2016, the AG filed a motion to dismiss the complaint. 4

Case 2:16-cv-00185-TLN-DB Document 42 Filed 10/26/18 Page 5 of 18

1 (ECF No. 14.) The County joined in the AG’s motion to dismiss, but also in the alternative

2 moved the Court for a more definite statement of the law pursuant to Federal Rule of Civil

3 Procedure 12(e). (See Joinder in Mot. to Dismiss and Not. of Mot. in the Alt. for More Def.

4 Statement, ECF No. 17.) The Court granted Defendants’ motion to dismiss as to Plaintiff’s Equal

5 Protection claim without leave to amend and granted the motion for a more definite statement as

6 to Plaintiff’s Due Process claim. (ECF No. 30.) The Court denied the pending motion for class

7 certification as moot. (ECF No. 30 at 19–20.) Plaintiff filed the FAC on November 9, 2016.

8 (ECF No. 31.) The AG filed a motion to dismiss the FAC on December 13, 2016. (ECF No. 36).

9 That same day, the Sheriff and the County (collectively “County Defendants”) also jointly filed a

10 separate motion to dismiss. (Mot. Dismiss, ECF No. 35; Mem. Points Auth. for Mot. Dismiss,

11 ECF No. 35-1.) The Court will rule on both motions to dismiss in this order.

12

III. STATUTORY BACKGROUND

13

Under the challenged Bail Law, Cal. Penal Code section 1269b, a person arrested for a

14 crime may be released on bail while awaiting trial or some alternative resolution of the charges.

15 Cal. Penal Code § 1269b(a). The bail amount is determined by a judge if the arrestee appears

16 before a judge; if not, then the bail amount is determined by “the uniform countywide schedule of

17 bail” (i.e. the Bail Schedule). Cal. Penal Code § 1269b(b). This Bail Schedule is “prepare[d],

18 adopt[ed], and annually revise[d]” by the county’s superior court judges who consider the

19 “seriousness of the offense charged.” Cal. Penal Code § 1269b(c) & (e). The Bail Law also

20 allows detained individuals to petition for release on their own recognizance or for a lower bail.

21 Cal. Penal Code § 1269c. While individuals charged with serious felonies may seek lower bail

22 than the Bail Schedule, those charged with misdemeanors are presumptively entitled to release

23 unless the court foresees a public safety or court appearance issue. Cal. Penal Code §§ 1270 –

24 1270.1(a).1

25 ///

26 ///

27

1

The Court notes that California Governor Jerry Brown signed Senate Bill No. 10 (“SB 10”) on August 28,

28 2018. SB 10 will take effect on October 1, 2019, and it will eliminate the money-based bail system in California.

5

Case 2:16-cv-00185-TLN-DB Document 42 Filed 10/26/18 Page 6 of 18

1

IV. STANDARD OF LAW

2

A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal

3 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Federal Rule of

4 Civil Procedure 8(a) requires that a pleading contain “a short and plain statement of the claim

5 showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 678–79

6 (2009). Under notice pleading in federal court, the complaint must “give the defendant fair notice

7 of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S.

8 544, 555 (2007) (internal quotations omitted). “This simplified notice pleading standard relies on

9 liberal discovery rules and summary judgment motions to define disputed facts and issues and to

10 dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

11

On a motion to dismiss, the factual allegations of the complaint must be accepted as true.

12 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give plaintiff the benefit of every

13 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail

14 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege

15 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to

16 relief.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

17 factual content that allows the court to draw the reasonable inference that the defendant is liable

18 for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 544, 556 (2007)).

19

Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of

20 factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir.

21 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an

22 unadorned, the defendant–unlawfully–harmed–me accusation.” Iqbal, 556 U.S. at 678. A

23 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the

24 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678

25 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

26 statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove

27 facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not

28 6

Case 2:16-cv-00185-TLN-DB Document 42 Filed 10/26/18 Page 7 of 18

1 been alleged[.]” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters,

2 459 U.S. 519, 526 (1983).

3

Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough

4 facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting

5 Twombly, 550 U.S. at 570). Only where a plaintiff has failed to “nudge[] [his or her] claims . . .

6 across the line from conceivable to plausible[,]” is the complaint properly dismissed. Id. at 680.

7 While the plausibility requirement is not akin to a probability requirement, it demands more than

8 “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility inquiry is

9 “a context–specific task that requires the reviewing court to draw on its judicial experience and

10 common sense.” Id. at 679.

11

If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to

12 amend even if no request to amend the pleading was made, unless it determines that the pleading

13 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122,

14 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 1995));

15 see also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in

16 denying leave to amend when amendment would be futile). Although a district court should

17 freely give leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to

18 deny such leave is ‘particularly broad’ where the plaintiff has previously amended its

19 complaint[.]” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir.

20 2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)).

21

V. ANALYSIS

22

Defendants request the Court dismiss Plaintiff’s FAC in its entirety. (ECF No. 35-1; ECF

23 No. 36.) The County Defendants bring four principal arguments: (1) Plaintiff’s claims against the

24 Sheriff are barred by the Eleventh Amendment to the extent Plaintiff seeks money damages

25 because the Sheriff acts on behalf of the state when enforcing the Bail Law; (2) the County is not

26 liable for the Sheriff’s conduct because the Sheriff acts on behalf of the state; (3) the County is

27 not liable under § 1983 because its involvement with the Bail Law amounted to ministerial

28 compliance with state law rather than a deliberate choice as required by Monell v. Dep’t of Soc. 7

Case 2:16-cv-00185-TLN-DB Document 42 Filed 10/26/18 Page 8 of 18

1 Servs. of City of New York, 436 U.S. 658 (1978); and (4) Plaintiff fails to state a Due Process

2 claim. (ECF No. 35-1 at 2–3.) The AG separately argues that the Bail Law does not violate Due

3 Process. (ECF No. 36 at 7.)

4

The Court will first address the County Defendants’ Eleventh Amendment argument as it

5 is dispositive. As such, the Court declines to address the County Defendants’ Monell argument.

6 The Court will then address the Due Process claim as it applies to the Sheriff and AG.

7

A. The Eleventh Amendment

8

As a threshold matter, the County Defendants argue that Eleventh Amendment sovereign

9 immunity shields the Sheriff from money damages because he acts on behalf of the state when

10 enforcing the Bail Law. (ECF No. 35-1 at 5.) The County Defendants further argue that the

11 County is not liable for the Sheriff’s conduct as a state actor implementing the Bail Law and thus

12 claims against the County should be dismissed. (ECF No. 35-1 at 9.) The Court will first address

13 whether the Sheriff is a state or county actor in implementing the Bail Law. The Court will then

14 address the County’s liability.

15

The Eleventh Amendment has been interpreted as a grant of sovereign immunity to the

16 states against suit in federal court. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996)

17 (“[E]ach State is a sovereign entity in our federal system; and ... it is inherent in the nature of

18 sovereignty not to be amenable to the suit of an individual without its consent.”) (internal quotes

19 omitted). This means that “an unconsenting State is immune from suits brought in federal courts

20 by her own citizens as well as by citizens of another state.” Pennhurst State School & Hosp. v.

21 Halderman, 465 U.S. 89, 100 (1984) (internal quotes omitted) (emphasis added). State agencies

22 or departments are protected by Eleventh Amendment sovereign immunity when named as a

23 defendant. Id.

24

Sovereign immunity extends to state officials sued in their official capacity. Will v. Mich.

25 Dep’t of State Police, 491 U.S. 58, 70–71 (1989) (finding that state officials acting in their

26 official capacity do not qualify as “persons” within the meaning of § 1983 because “a suit against

27 a state official in his or her official capacity is not a suit against the official but rather a suit

28 against the official’s office.”) Although sovereign immunity generally does not extend to local 8

Case 2:16-cv-00185-TLN-DB Document 42 Filed 10/26/18 Page 9 of 18

1 governmental bodies, Monell, 436 U.S. at 690, local officials qualify for sovereign immunity

2 when they act on behalf of the state, rather than local government. See McMillian v. Monroe

3 County, Alabama, 520 U.S. 781, 785–86 (1997). In determining if a local official qualifies as a

4 state actor, courts analyze (1) whether the governmental official is a “final policymaker[] for the

5 local government in a particular area, or on a particular issue,” and (2) state law evaluating “the

6 definition of the official’s functions.” Id.; Weiner v. San Diego Cty., 210 F.3d 1025, 1028 (9th

7 Cir. 2000) (“[T]he official’s ‘actual function . . . in a particular area,’ as defined by state law,

8 must be evaluated to determine whether he acts for the state or the county.”) (quoting McMillian,

9 520 U.S. at 786).

10

While “[t]he Eleventh Amendment erects a general bar against federal lawsuits brought

11 against a state,” Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003), “it does not [ ] bar actions for

12 prospective declaratory or injunctive relief against state officers in their official capacities for

13 their alleged violations of federal law.” Coal. to Defend Affirmative Action v. Brown, 674 F.3d

14 1128, 1133–34 (9th Cir. 2012) (citing Ex parte Young, 209 U.S. 123, 155–56 (1908)). This is

15 known as the Ex parte Young exception, and it requires that the individual state official sued

16 “must have some connection with the enforcement of the act.” Id. at 1134 (quoting Ex parte

17 Young, 209 U.S. at 157). Moreover, that connection “must be fairly direct; a generalized duty to

18 enforce state law or general supervisory power over the persons responsible for enforcing the

19 challenged provision will not subject an official to suit.” Id. (internal citations omitted).

20 Otherwise, suing a state official would be just an indirect way of suing the State. Ex parte Young,

21 209 U.S. at 157. “In determining whether the doctrine of Ex parte Young avoids an Eleventh

22 Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the]

23 complaint alleges an ongoing violation of federal law and seeks relief properly characterized as

24 prospective.” Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 645

25 (2002) (internal quotes omitted).

26

i. The Sheriff’s Eleventh Amendment Immunity

27

The Sheriff contends that he is entitled to sovereign immunity under the Eleventh

28 Amendment because he acts on behalf of the state of California in enforcing the Bail Law. (ECF 9

Case 2:16-cv-00185-TLN-DB Document 42 Filed 10/26/18 Page 10 of 18

1 No. 35-1 at 5.) Plaintiff argues that the Sheriff acts as a county official when implementing the

2 Bail Law and is not entitled to sovereign immunity based on (1) analysis under McMillian v.

3 Monroe County, Ala., (2) binding Ninth Circuit precedent, and (3) the state’s lack of control over

4 the Sheriff’s discretion in implementing the Bail Law. (ECF No. 37 at 2–6.) The Court will

5 address Plaintiff’s three arguments in turn.

6

a. McMillian Analysis

7

Plaintiff first argues that the Sheriff is a county official based on the analysis set forth in

8 McMillan. (ECF No. 37 at 2.) In McMillian, the Supreme Court analyzed in detail Alabama’s

9 constitutional and statutory provisions, governmental structure, and allocation of power among its

10 institutions as applied to sheriffs. 520 U.S. at 786–92. The McMillan Court determined that

11 despite the sheriff’s connection to the county, “the weight of the evidence is strongly on the side

12 of the conclusion reached by the Court of Appeals: Alabama sheriffs, when executing their law

13 enforcement duties, represent the State of Alabama, not their counties.” Id. at 793. Similarly,

14 California law has found that sheriffs act on behalf of the state when executing law enforcement

15 activities. See Venegas v. County of Los Angeles, 32 Cal. 4th 820, 839 (2004) (“California

16 sheriffs act as state officers while performing state law enforcement duties”); Streit v. Cty. of Los

17 Angeles, 236 F.3d 552, 564 (9th Cir. 2001) (“Acting upon a warrant is a law enforcement

18 function with which the [Sheriff’s Department] is tasked under California state law.”). As such,

19 the Court rejects Plaintiff’s argument that McMillian categorically precludes the Court from

20 finding the Sheriff to be a state actor.

21

b. Ninth Circuit Precedent

22

Plaintiff next argues that binding circuit precedent makes clear that a sheriff is a county

23 official when dealing with matters relating to oversight and management of local jails. (ECF No.

24 37 at 5–6.) To support this contention, Plaintiff cites two Ninth Circuit cases: Streit, 236 F.3d at

25 563 and Cortez v. Cnty. of Los Angeles, 294 F.3d 1186, 1187 (9th Cir. 2002). (ECF No. 37 at 6.)

26

In Streit, the court analyzed a sheriff’s department policy requiring a records check on a

27 prisoner’s release date. 236 F.3d at 555. The court determined that the sheriff’s department acted

28 on behalf of the county when implementing the release policy because it was an administrative 10

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1 function of the sheriff. Id. at 564. The court carefully distinguished that while a sheriff may in

2 fact act on behalf of a county when performing administrative functions, a sheriff acts on behalf

3 of the state when enforcing state laws, such as detaining someone pursuant to a facially-valid

4 warrant, because the sheriff is tasked to do so by state law. See id.

5

In Cortez, the Ninth Circuit held that a sheriff acted as a county official “in implementing

6 policies and procedures for the safekeeping of inmates in the county jail.” 294 F.3d at 1187. At

7 issue in Cortez was a sheriff-established policy to put inmates with certain gang affiliations in

8 segregated units. Id. at 1187–88. Applying Streit, the Cortez court determined that the sheriff

9 acted as a county official in implementing his segregation policy because he acted in his

10 administrative capacity. Id. at 1189–90.

11

Neither Streit nor Cortez apply to the facts at hand. The Bail Law is a state law, and the

12 Bail Schedule is set by the Sacramento County Superior Court. (ECF No. 31, ¶¶ 16, 37.) As

13 such, the Bail Law is not a sheriff-established policy that might be considered an administrative

14 action like the policies at issue in Streit or Cortez. See Streit, 236 F.3d at 564; Cortez, 294 F.3d at

15 1189–90.

16

Moreover, district courts within this circuit have determined that California Sheriffs act as

17 representatives of the state, and not a county, when enforcing state laws, including the Bail Law.

18 In Buffin v. City & Cty. of San Francisco, No. 15-CV-04959-YGR, 2016 WL 6025486, at *7

19 (N.D. Cal. Oct. 14, 2016), the court, analyzing a constitutional challenge to the enforcement of

20 the Bail Law, stated that district courts draw a line “when the sheriff detains someone pursuant to

21 state law rather than under an administrative policy set by the sheriff herself.” Id. at *7. The

22 Northern District granted a sheriff’s motion to dismiss based on sovereign immunity, finding that

23 the sheriff acted on behalf of the state in enforcing the Bail Law. Id. at *8–9 (“Sheriff Hennessey

24 acts on behalf of the State when she detains a person based on his or her inability to pay the bail

25 amount prescribed in the bail schedule as set by the Superior Court. As a state actor, the Sheriff is

26 entitled to immunity from suit for money damages under the Eleventh Amendment and plaintiffs'

27 request for such relief is barred thereby.”); see also McNeely v. Cty. of Sacramento, No. 205-CV-

28 1401-MCE-DAD, 2008 WL 489893, at *3–5 (E.D. Cal. Feb. 20, 2008), aff’d, 344 F. App’x 317 11

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1 (9th Cir. 2009) (holding that a sheriff “was acting on behalf of the State of California in detaining

2 Plaintiff pursuant to pending criminal proceedings, and a facially valid bench warrant issued by

3 the [county’s superior court].”); Smith v. Cty. of San Mateo, No. C 99–00519 CRB, 1999 WL

4 672318, at *5–8 (N.D. Cal. Aug. 20, 1999) (applying McMillian in finding that the sheriff acted

5 on behalf of the state, not the county, when incarcerating an arrestee at county jail pursuant to

6 bench warrant); Munoz v. Kolender, 208 F. Supp. 2d 1125, 1152–53 (S.D. Cal. 2002)

7 (determining that a California sheriff acts on behalf of the state when detaining a plaintiff in a

8 county jail pursuant to a court order).

9

Despite Plaintiff’s argument that Ninth Circuit precedent bars a finding that the Sheriff is

10 a state actor, Plaintiff’s Ninth Circuit cases are distinguishable from the instant case. Further,

11 federal district courts determined sheriffs act on behalf of the state when they are detaining an

12 individual based on court orders. See, e.g, McNeely, 2008 WL 489893 at *3. Similarly, the

13 Sheriff implements the Bail Law according to the Sacramento County Superior Court’s Bail

14 Schedule because he is tasked to do so under state law. See Buffin, 2016 WL 6025486 at *8.

15 Thus, the Court determines that Ninth Circuit precedent does not preclude a finding that the

16 Sheriff is a state actor.

17

c. Sheriff’s Discretion

18

Finally, Plaintiff argues the Sheriff’s actions were not controlled by the state. (ECF No.

19 37 at 6.) But as noted, Plaintiff admits the Sheriff is obligated to implement the state Bail Law,

20 and the Sheriff enforces bail schedules as set by the Sacramento County Superior Court. (ECF

21 No. 31, ¶¶ 18, 37.) Despite its title, the Sacramento County Superior Court is an arm of the State.

22 Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987)

23 (finding that a superior court’s “geographical location within any particular county cannot change

24 the fact that the court derives its power from the State and is ultimately regulated by the State”)

25 (superseded by statute on other grounds). As such, the terms of the Bail Law are set and

26 controlled by the state. Buffin, 2016 WL 6025486 at *7 (finding under the Bail Law, “the Sheriff

27 lacks discretion to release the arrested person outside the bounds of the statute”).

28

Plaintiff alternatively argues that, “this case involves (at most) a conditional order of

12

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1 detention” by the state, whereas the Sheriff makes “innumerable decisions about conditional

2 detention and release,” including methods of payment, when arrestees are notified of bail

3 amounts, and whether arrestees receive a list of bail bond agents. (ECF No. 37 at 7–8.)

4 However, the Court finds Plaintiff’s argument unpersuasive. Decisions such as methods of

5 payments and lists of bail bond agents are ancillary to the alleged unconstitutional provisions of

6 the Bail Law itself, and do not alter the Sheriff’s actions as a state actor in implanting the Bail

7 Law. Buffin, 2016 WL 6025486 at *8 (“Even if true, these decisions and procedures are not

8 challenged by plaintiffs in this lawsuit and do not alter the Sheriff’s lack of discretion in detaining

9 a person who is unable to pay the bail amount set by the bail schedule.”). Indeed, after carefully

10 analyzing the Bail Law, in Buffin, the court determined that “the Sheriff lacks discretion to release

11 the arrested person outside the bounds of the statute.” Buffin, 2016 WL 6025486 at *7. As in

12 McNeely, where the court found that Cal. Pen. Code § 4004 requires sheriffs to detain arrestees

13 “until legally discharged,” here, the Sheriff similarly does not have discretion when implementing

14 the Bail Law. McNeely, 2008 WL 489893 at *5.

15

For these reasons, the Court finds that the Sheriff acts on behalf of the state in

16 implementing the Bail Law. Accordingly, the Eleventh Amendment shields the Sheriff from suit

17 for money damages. However, based on the Ex Parte Young exception to sovereign immunity,

18 Plaintiff may seek declaratory or injunctive relief against the Sheriff for allegedly

19 unconstitutional conduct related to the Bail Law. Ex Parte Young, 209 U.S. at 155–56 (holding

20 that Eleventh Amendment immunity from suit does not bar claims for injunctive or declaratory

21 relief against state actors enforcing challenged state law).

22

ii. The County’s Liability for the Sheriff’s Actions

23

The County Defendants next argue the County cannot be liable for the Sheriff’s actions

24 because the Sheriff acts on behalf of the state, not the county. (ECF No. 35-1 at 9.) Although

25 Plaintiff alleges the County is equally liable for implementation of the Bail Law, the claim against

26 the County fails. (ECF No. 31, ¶ 112.) Because the Court has determined that the Sheriff acts on

27 behalf of the state on this issue, the County is not liable for the Sheriff’s implementation of the

28 Bail Law. See McMillian, 520 U.S. at 783 (explaining that the county is liable for the sheriff’s 13

Case 2:16-cv-00185-TLN-DB Document 42 Filed 10/26/18 Page 14 of 18

1 actions when the actions stem from a county policy) (citing Monell v. New York City Dep’t of

2 Social Servs., 436 U.S. 658, 694 (1978)); Weiner v. San Diego Cty., 210 F.3d 1025, 1031 (9th

3 Cir. 2000) (“In the present case, however, the San Diego County district attorney was acting as a

4 state official . . . Weiner’s § 1983 claim against the County, therefore, fails [because] [t]he

5 County was not the actor; the state was.”). Therefore, the claim against the County is dismissed.

6

B. 12(b)(6) Analysis of the Substantive Due Process Claim

7

The AG independently argues that Plaintiff has not sufficiently pleaded that the Bail Law

8 is facially invalid under Due Process. (ECF No. 36 at 7.) Additionally, the AG and Sheriff both

9 argue that Plaintiff has not sufficiently pleaded that the Bail Law has a punitive purpose or is

10 excessive to its legitimate purposes of ensuring public safety and court appearances. (ECF No.

11 35-1 at 13–14; ECF No. 36 at 8.) The Court will address each argument in turn.

12

The Due Process Clause of the Fourteenth Amendment provides heightened protection

13 against government interference with certain fundamental rights and liberty interests. Lopez-

14 Valenzuela v. Arpaio, 770 F.3d 772, 780 (9th Cir. 2014) (citing Washington v. Glucksberg, 521

15 U.S. 702, 719–20 (1997)); Reno v. Flores, 507 U.S. 292, 302 (1993)).2 “In evaluating the

16 constitutionality of conditions or restrictions of pretrial detention that implicate only the

17 protection against deprivation of liberty without due process . . . the proper inquiry is whether

18 those conditions or restrictions amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S.

19 520, 535 (1979). “The [Supreme] Court outlined a two-pronged test for determining when

20 conditions and restrictions of pretrial detention amount to punishment, focusing first on whether

21 the restrictions were imposed for a punitive purpose and, if not, on whether the restrictions are

22 excessive in relation to a legitimate regulatory purpose.” Arpaio, 770 F.3d at 778 (citing Bell,

23 441 U.S. at 538–39).

24

i. Facially Invalid

25

The AG argues that the Bail Law is not facially invalid because it “does not categorically

26 deny bail to any group of individuals; to the contrary, it allows any individual (other than those

27

2

The Court previously found Plaintiff met the threshold showing that pretrial detention is a fundamental right

28 subject to heightened scrutiny. (ECF No. 30 at 17.)

14

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1 charged with capital crimes or other serious offenses) to obtain bail.” (ECF No. 36 at 7.) “[A]

2 plaintiff can only succeed in a facial challenge by ‘establish[ing] that no set of circumstances

3 exists under which the Act would be valid,’ i.e., that the law is unconstitutional in all of its

4 applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)

5 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).

6

In Arpaio, the Ninth Circuit reversed a district court’s grant of partial summary judgment

7 of a plaintiff’s substantive due process claim. Arpaio, 770 F.3d at 792. In doing so, the court

8 found as a matter of law that Proposition 100, an Arizona constitutional amendment that

9 categorically denied bail to undocumented immigrants, was facially invalid. Id. at 791–92. The

10 court explained,

11

[Proposition 100] purport[ed] to deal with a societal ill—

unmanageable flight risk posed by undocumented immigrants as a

12

class—that has not been shown to exist. Even if we assume that a

problem exists, Proposition 100 employs a profoundly overbroad

13

irrebuttable presumption, rather than an individualized evaluation, to

determine whether an arrestee is an unmanageable flight risk. As

14

discussed, this mechanism necessarily results in the deprivation of

liberty even where not necessary to ensure appearance at trial,

15

because undocumented immigrants who do not pose a flight risk or

who pose a manageable one are categorically denied bail based

16

solely on their status. Given this severe lack of fit between the

asserted nonpunitive purpose and the actual operation of the law, we

17

conclude that Proposition 100’s bail provisions are punitive rather

than regulatory. Thus, the Proposition 100 laws facially violate

18

substantive due process by imposing punishment before trial.

19

Id. at 791.

20

Plaintiff alleges that if an arrestee cannot afford to pay the bail amount, whether by her

21 own means or with the aid of a bail bond agent, the Sheriff’s Department keeps her in jail until

22 either she can make other arrangements to obtain her release, she is discharged, or she is taken to

23 court two to five days later for arraignment. (ECF No. 31, ¶¶ 38–41.) According to Plaintiff,

24 “wealthy arrestees can purchase their immediate release, while poorer arrestees must remain in

25 jail.” (ECF No. 31, ¶ 105.) Plaintiff further alleges there is “no evidence that ability to pay

26 correlates closely with unmanageable flight risk or public safety . . . a person’s wealth is not

27 determinative of her likelihood of appearing for trial or threatening public safety.” (ECF No. 31,

28 ¶ 69.) 15

Case 2:16-cv-00185-TLN-DB Document 42 Filed 10/26/18 Page 16 of 18

1

The AG’s argument that the Bail Law is not a categorical bar to pretrial release because it

2 “allows any individual . . . to obtain bail,” (ECF No. 36 at 7), ignores the thrust of Plaintiff’s

3 claim, which is that the Bail Law effectively imposes a categorial bar to pretrial release of poor

4 arrestees, not because bail does not exist, but because the poor cannot afford it. (ECF No. 31, ¶

5 111.) In the instant case, as in Arpaio, Plaintiff alleges the Bail Law “categorically eliminates the

6 opportunity for people who are poor to achieve pretrial freedom, even if they are not a danger or

7 flight risk,” and it does so without any “individualized assessment of risk level” of the arrestee.

8 (ECF No. 31, ¶¶ 76, 78; see Arpaio, 770 F.3d at 791.)

9

To survive a 12(b)(6) motion, Plaintiff need only allege “enough facts to state a claim to

10 relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting Twombly, 550 U.S. at 570).

11 Based on Plaintiff’s allegations that the Bail Law categorically prevents poor individuals from

12 pretrial release, the Court finds Plaintiff pleaded sufficient facts that the Bail Law is facially

13 invalid to survive a Rule 12(b)(6) motion. Therefore, the AG’s motions to dismiss on the basis

14 that the Bail Law is not facially invalid is denied.

15

ii. Excessive in Relation to its Purpose

16

The AG and Sheriff both argue that Plaintiff has not sufficiently pleaded that the Bail Law

17 has a punitive purpose or is excessive to its legitimate purposes of ensuring public safety and

18 court appearances. (ECF No. 35-1 at 13–14; ECF No. 36 at 8.) Plaintiff does not claim the Bail

19 Law has an expressly punitive purpose. Rather, Plaintiff responds that the bail provisions are

20 excessive in relation to any legitimate purpose. (ECF No. 38 at 2, 8.)

21

Plaintiff alleges that the Bail Law “has no connection to public safety” because “[t]hose

22 wealthy enough to pay their bail amount have their full amount returned to them if they appear for

23 all their court dates, regardless of whether they commit additional crimes.” (ECF No. 31, ¶ 70.)

24 Plaintiff further alleges that the Bail Law is excessive in relation to its sole remaining legitimate

25 purpose, ensuring court appearances. (ECF No. 31, ¶¶ 76–77.)

26

In Arpaio, the court found that Proposition 100 “employ[ed] a profoundly overbroad

27 irrebuttable presumption, rather than an individualized evaluation, to determine whether an

28 arrestee is an unmanageable flight risk” based on the wealth-status of the arrestee. Arpaio, 770 16

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1 F.3d at 79. In the instant case, Plaintiff alleges that the Bail Law, like Proposition 100 “restricts

2 pretrial liberty in relation to any regulatory purpose,” and fails “to provide for individualized

3 assessments of risk levels. . . .” (ECF No. 31, ¶¶ 76, 78.) To bolster his accusation that the Bail

4 Law is excessive, Plaintiff alleges that successful non-money-based alternatives exist to ensure

5 court appearances, such as phone and text message reminders of court dates, rides to court for

6 those without transportation or a stable address, and electronic monitoring services. (ECF No. 31,

7 ¶¶ 76–77, 80.) Plaintiff also alleges that unnecessary pretrial detention causes arrestees to suffer

8 instability in employment, housing, and care for dependent relatives. (ECF No. 31, ¶ 84.)

9 Moreover, Plaintiff alleges that pretrial detention also leads to worse outcomes at trial and delays

10 in preparing a defense. (ECF No. 31, ¶ 84.)

11

As in Arpaio, Plaintiff’s allegations suggest that implementation of the Bail Law

12 “necessarily results in the deprivation of liberty even where not necessary to ensure appearance at

13 trial.” (770 F.3d at 791; see also ECF No. 31, ¶ 111.) Given Plaintiff’s allegations, the Court

14 finds that Plaintiff sufficiently pleaded the Bail Law is excessive in relation to its purpose of

15 ensuring court appearances. Arpaio, 770 F.3d at 791 (finding a law to be excessive based on its

16 “severe lack of fit between the asserted nonpunitive purpose and the actual operation”). Thus, the

17 Sheriff and AG’s motions to dismiss the Due Process claim under Rule 12(b)(6) are denied.

18

VI. CONCLUSION

19

For the foregoing reasons, the Court hereby orders as follows:

20

1. The County Defendants’ Motion to Dismiss is GRANTED as to Plaintiff’s claims for

21

monetary damages against the Sheriff;

22

2. The County Defendants’ Motion to Dismiss is GRANTED as to Plaintiff’s claims

23

against the County; and

24

3. Both the County Defendants’ and AG’s Motions to Dismiss are DENIED as to

25

Plaintiff’s Due Process claim.

26 ///

27 ///

28 /// 17

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1

IT IS SO ORDERED.

2 Dated: October 24, 2018

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Troy L. Nunley

United States District Judge

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