FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA G. FLORES,

Plaintiff-Appellant,

v.

COUNTY OF LOS ANGELES and

LEE BACA,

Defendants-Appellees.

No. 12-56623

D.C. No.

2:12-cv-03021-R-SH

OPINION

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Submitted March 7, 2014*

Pasadena, California

Filed July 14, 2014

Before: Jay S. Bybee, Carlos T. Bea,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Bea

* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 FLORES V. COUNTY OF LOS ANGELES

SUMMARY**

Civil Rights

The panel affirmed the district court’s dismissal of an

action brought pursuant to 42 U.S.C. § 1983 against Los

Angeles County and Sheriff Lee Baca by a plaintiff who

alleged that she was sexually assaulted by an unidentified

deputy sheriff at a vehicle inspection cite.

The panel held that plaintiff’s allegations did not establish

that the County or Baca were deliberately indifferent to the

risk of sexual assault by deputies on members of the public,

nor that the assault on plaintiff was a known or obvious

consequence of the alleged lack of training of deputies. 

Further, the panel held that in view of the penal code of

California, which already prohibited such assault, and which

law the deputies were sworn to uphold, and in the absence of

any pattern of sexual assaults by deputies, plaintiff has also

failed to allege facts sufficient to state a claim, plausible on

its face, that the alleged failure to train officers not to commit

sexual assault constituted deliberate indifference.

COUNSEL

Luis A. Carillo, Law Offices of Luis A. Carillo, South

Pasadena, California, for Plaintiff-Appellant.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
FLORES V. COUNTY OF LOS ANGELES 3

Thomas C. Hurrell and Melinda Cantrall, Hurrell Cantrall

LLP, Los Angeles, California, for Defendants-Appellees.

OPINION

BEA, Circuit Judge:

Plaintiff Maria Flores alleges that after she received a

traffic ticket, she drove to a Los Angeles County vehicle

inspection site to clear the ticket. There, she alleges, she was

sexually assaulted by a deputy sheriff, who is to date

unidentified. She now sues the County and its sheriff Lee

Baca, claiming the assault was a proximate result of their

failure properly to train deputy sheriffs “to ensure that

Sheriff’s [d]eputies do not sexually assault women that

[d]eputies come in contact with.” This failure to train is

alleged to be a violation of plaintiff’s constitutional rights,

actionable under 42 U.S.C. § 1983. The district court

dismissed Flores’s claims for failure to state a claim for relief,

and she appeals.

Flores’s allegations do not establish that the County or

Baca were deliberately indifferent to the risk of sexual assault

by deputies on members of the public, nor that the assault on

Flores was a known or obvious consequence of the alleged

lack of training of deputies. Further, in view of the penal

code of California,1 which already prohibited such assault,

1 California Penal Code § 243.4(e)(1) provides that any “person who

touches an intimate part of another person, if the touching is against the

will of the person touched, and is for the specific purpose of sexual

arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor

sexual battery.”
4 FLORES V. COUNTY OF LOS ANGELES

and which law the deputies were sworn to uphold, and in the

absence of any pattern of sexual assaults by deputies, Flores

has also failed to allege facts sufficient to state a claim,

plausible on its face, that the alleged failure to train officers

not to commit sexual assault constituted deliberate

indifference. For these reasons, we affirm.

Factual and Procedural History2

On January 20, 2011, plaintiff Maria Flores went to the

Vehicle Inspection Area at Metropolitan Court House in Los

Angeles in connection with a traffic ticket. An unknown

deputy, whom Flores names Deputy Doe 1, was tasked with

“signing off” on her ticket. According to Flores’s complaint,

Deputy Doe 1 touched and fondled Flores’s body without her

consent.3 Id.

Flores timely brought suit in federal district court under

42 U.S.C. § 1983 against the County of Los Angeles (the

“County”) and Sheriff Lee Baca.4 Flores also brought state

2 The facts we relate are drawn from the allegations of Flores’s

complaint. Because Flores’s complaint was dismissed under Federal Rule

of Civil Procedure 12(b)(6), we take her factual allegations as true for the

purposes of our review. Dahlia v. Rodriguez, 735 F.3d 1060, 1063 n.1

(9th Cir. 2013).

3 There are no allegations that the nature of the law enforcement work

performed at vehicle inspection areas requires deputies to touch people

with whom they interact.

4 Flores alleged violations of the Fourth, Fifth, Eighth, and Fourteenth

Amendments, but briefs on appeal only her Fourth Amendment claim. 

However, Flores’s alleged Fourth Amendment violationmust be premised

on the Fourteenth Amendment’s incorporation of the Fourth Amendment

against the states. Therefore, for the purpose of our analysis, and based
FLORES V. COUNTY OF LOS ANGELES 5

law negligence claims against the County, Baca, and the

fictitiously named Deputies Doe 1–10, assault and batteryand

intentional infliction of emotional distress claims against

Deputy Doe 1, and a respondeat superior claim against the

County. Deputy Doe 1 has not been served with process and

is not a party to the action. The district court dismissed with

prejudice Flores’s state-law based negligence claims against

the County and Baca, and her respondeat superior claim

against the County. Flores does not appeal the dismissal of

these state-law based claims.

In support of her § 1983 claims,5 Flores’s First Amended

Complaint (“FAC”) alleged that defendants “failed to

implement proper training to protect women to ensure that

Sheriff’s [d]eputies do not sexually assault women that . . .

[they] come into contact with at the Vehicle Inspection Area.” 

The FAC also alleged that the defendants were on notice,

following a different deputy sheriff’s 2006 conviction for

three sexual assaults which took place in 2004 and 2005,6

“that since 2004 the training of Sheriff’s [d]eputies had

deteriorated, was defective, and needed improvement[,] and

that failure to implement proper training for Sheriff’s

[d]eputies was reckless and dangerous . . . especially for

women who would go to the Vehicle Inspection Area.” The

FAC alleged that the “failure to properly train Sheriff’s

on her allegations, we will assume that Flores attempted to allege a

deprivation of her rights under the Fourth and Fourteenth Amendments.

5 Flores brought the § 1983 claim at issue against the County under

Monell v. Dep’t of Soc. Serv. of the City of New York, 436 U.S. 658

(1978).

6 Flores does not allege that the 2004 and 2005 assaults took place at the

Vehicle Inspection Area where she was allegedly assaulted.
6 FLORES V. COUNTY OF LOS ANGELES

[d]eputies reflects a ‘deliberate’ or ‘conscious’ choice by the

[County] and [Baca], and said failure to train can be properly

characterized as an actionable [County] ‘policy.’”7 To

support the argument that the failure to include sexual assault

training amounts to a deliberate or conscious choice, Flores

proposed additions to the Sheriff’s Department Manual that

would instruct deputies that they “shall not sexually harass or

sexually attack women with whom they come into contact.”

Defendants moved the court to dismiss the FAC for

failure to state a claim for relief under Fed. R. Civ. P.

12(b)(6). On that motion, the court found that Flores had

failed to allege facts to show the existence of a policy,

practice, or custom sufficient to state a claim against the

County under Monell8and that Flores “fails to allege facts

7 The FAC also incorporated allegations from the complaint that the

County and Baca “intentionally and deliberately . . . ignore the

background and evaluation of prospective deputies[;] ignor[e] the proper

supervision of [d]eputies; ignor[e] recurrent complaints about sexually

assaultive conduct . . . ; fail[] to remediate sexually assaultive conduct[;]

and fail[] to discipline, reprimand, re-train or discharge [d]eputies or

employees of the Los Angeles County Sheriff’s Department for sexually

assaultive conduct committed while employed” by the County. These

claims were not briefed on appeal, and are considered abandoned. Collins

v. City of San Diego, 841 F.2d 337, 339 (9th Cir. 1988).

8 Under City of Canton v. Harris, “[o]nly where a municipality’s failure

to train its employees in a relevant respect evidences a deliberate

indifference to the rights of its inhabitants can such a shortcoming be

properly thought of as a city policy or custom under § 1983.” 489 U.S.

378, 389 (1989). Where deliberate indifference is proved, “failure to

provide proper training may fairly be said to represent a policy for which

the city is responsible, and for which the city may be held liable if it

actually causes injury.” Id. at 390. A plaintiff alleging Monell liability for

failure to train must “evince[] the deliberate indifference that [City of

Canton] requires for a free-standing failure-to-train claimto succeed,” and
FLORES V. COUNTY OF LOS ANGELES 7

showing that there was a sufficient causal connection between

the wrongful conduct and the constitutional violation” to

support her § 1983 claim against Baca in his individual

capacity. The court dismissed the Monell and § 1983 claims

against the County and Baca without leave to amend.9 Flores

timely appealed. On appeal, Flores argues that the district

court erred because Flores alleged facts sufficient to state a

claim for relief, plausible on its face, as to the County’s and

Baca’s failure to train sheriff’s deputies.

Standard of Review

This court reviews de novo a district court’s dismissal of

an action for failure to state a claim under Fed. R. Civ. P.

12(b)(6). Wood v. City of San Diego, 678 F.3d 1075, 1080

(9th Cir. 2012).

having done so suffices to make out a free-standing claim for failure to

train against a municipality. Price v. Sery, 513 F.3d 962, 973 (9th Cir.

2008).

9 The order dismissing the counts against Baca and the County of Los

Angeles made no mention of the state claims against Deputy Does 1

through 10. The district court has since entered a minute order

terminating the case and stating that the case should have been closed

August 20, 2012. When an “action is dismissed as to all of the defendants

who have been served and only unserved defendants remain, the district

court’s order may be considered final under section 1291 for the purpose

of perfecting the appeal. In such circumstances there is no reason to

assume that there will be any further adjudication of the action.” Patchick

v. Kensington Pub. Corp., 743 F.2d 675, 677 (9th Cir. 1984) (internal

citations omitted).
8 FLORES V. COUNTY OF LOS ANGELES

Analysis

Under 42 U.S.C. § 1983, “[e]very person who, under

color of any statute . . . custom, or usage of any State . . .

subjects, or causes to be subjected, any . . . person within the

jurisdiction of [the United States] to the deprivation of any

rights, privileges or immunities secured by the Constitution

and laws, shall be liable to the party injured in an action at

law.” Neither state officials nor municipalities are

vicariously liable for the deprivation of constitutional rights

by employees. Monell, 436 U.S. at 694. Rather, as to a

municipality, “the inadequacy of police training may serve as

the basis for § 1983 liability only where the failure to train

amounts to deliberate indifference to the rights of persons

with whom the police come into contact.” City of Canton v.

Harris, 489 U.S. at 388.10 This means that Flores must “must

10 In City of Canton, plaintiff Harris was arrested and detained at a police

station. 489 U.S. at 381. During her transport to the station and at the

station, Harris repeatedly slumped over, and she responded incoherently

to the question whether she needed medical attention. Id. After her

release, Harris’s family took her to a hospital where it was determined she

was suffering fromsevere emotional ailments and she was hospitalized for

a week. Id. Harris brought suit under 42 U.S.C. § 1983, alleging the city

violated her due process rights by failing to provide medical attention. Id.

at 382. A jury found in favor of Harris, and the municipal defendant

appealed. Id. The Sixth Circuit held that a municipality could be liable

for failure to train, but reversed because the jury instructions might have

led the jury to believe it could find for Harris on a respondeat superior

theory rather than a failure to train theory. Id. at 382–83. The Supreme

Court reversed and remanded, holding that failure to train police officers

is a basis for § 1983 liability where that failure amounts to deliberate

indifference to the rights of persons with whom the police force comes

into contact. Id. at 388. The Court “reject[ed] [the] contention that only

unconstitutional policies are actionable under the statute.” Id. at 387.

Deliberate indifference is “a stringent standard of fault, requiring proof

that a municipal actor disregarded a known or obvious consequence of his
FLORES V. COUNTY OF LOS ANGELES 9

demonstrate a ‘conscious’ or ‘deliberate’ choice on the part

of a municipality in order to prevail on a failure to train

claim.” Price, 513 F.3d at 973. As to an official in his

individual capacity, the same standard applies—Flores must

show that Baca was deliberately indifferent to the need to

train subordinates, and the lack of training actually caused the

constitutional harm or deprivation of rights. Connick v.

Thompson, 131 S. Ct. 1350, 1358 (2011).

Under this standard, Flores must allege facts to show that

the County and Baca “disregarded the known or obvious

consequence that a particular omission in their training

program would cause [municipal] employees to violate

citizens’ constitutional rights.” Id. at 1360 (internal quotation

marks omitted).

To this end, Flores argues that following the earlier arrest

and conviction of a different Los Angeles deputy sheriff for

sexual assaults, who Flores does not allege worked at the

same installation, the County and Baca were on notice that

the training of deputies was “inadequate,” and that “proper

training and procedures were not in place . . . to protect

women [and] ensure that Sheriff’s [d]eputies do not sexually

assault women that Sheriff’s deputies come in contact with on

a daily basis.”11 However, Flores does not allege a pattern of

action.” Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011) (internal

citations omitted).

11 Flores requests this court to take judicial notice of two news stories

regarding the 2013 arrest for rape of yet another different Los Angeles

deputy sheriff. Even assuming that the content of these stories were

alleged in the complaint, further allegations of, or convictions for, sexual

assault by sheriff’s deputies which occurred after Flores’s claimed injury

would not change our analysis. The 2013 incidents occurred after Flores’s
10 FLORES V. COUNTY OF LOS ANGELES

sexual assaults perpetrated by Los Angeles sheriff’s deputies

before her alleged assault in 2011.12 The sexual assaults in

2004 resulted in convictions against the sole offender.

A “pattern of similar constitutional violations by

untrained employees is ordinarily necessary to demonstrate

deliberate indifference for purposes of failure to train,”

though there exists a “narrow range of circumstances [in

which] a pattern of similar violations might not be necessary

to show deliberate indifference.” Id. at 1360, 1361 (internal

citations and quotation marks omitted). The isolated

incidents of criminal wrongdoing by one deputy other than

Deputy Doe 1 do not suffice to put the County or Baca on

“notice that a course of training is deficient in a particular

respect,” nor that the absence of such a course “will cause

violations of constitutional rights.” Id. Neither Baca nor the

County was faced with a pattern of similar constitutional

violations by untrained employees. Id. at 1360.

Nor does Flores’s failure to train claim fall within the

“narrow range of circumstances [in which] a pattern of

similar violations might not be necessary to show deliberate

indifference.” Id. at 1361 (internal citations omitted). In City

of Canton, the “Court posed the hypothetical example of a

city that arms its police force with firearms and deploys the

armed officers into the public to capture fleeing felons

without training the officers in the constitutional limitation on

alleged assault in 2011, and cannot impute to the defendants a knowledge

of risk as of 2011. We deny the request to take such judicial notice.

12 Flores’s conclusory allegations below as to deliberate and intentional

failure to evaluate applicants, and failure to punish deputy perpetrators of

sexual assaults, have been abandoned on appeal. See supra, n. 7.
FLORES V. COUNTY OF LOS ANGELES 11

the use of deadly force.” Id. at 1361 (internal citations and

quotation marks omitted). In its hypothetical, the Court

“sought not to to foreclose the possibility, however rare, that

the unconstitutional consequences of failing to train could be

so patently obvious that a city could be liable under § 1983

without proof of a pre-existing pattern of violations.” Id. As

the Court observed, this hypothetical recognizes that “[t]here

is no reason to assume that police academy applicants are

familiar with the constitutional constraints of the use of

deadly force.” Id. There is, however, every reason to assume

that police academy applicants are familiar with the criminal

prohibition on sexual assault, as everyone is presumed to

know the law. United States v. Budd, 144 U.S. 154, 163

(1892). There is no basis from which to conclude that the

unconstitutional consequences of failing to train police

officers not to commit sexual assault are so patently obvious

that the County or Baca were deliberately indifferent.

Finally, Flores’s claim for failure to train fails because it

is not plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). Flores’s sole factual allegation regarding the

alleged failure to train consists in the absence of language in

the Sheriff’s Department Manual that would instruct deputies

not to sexually harass or sexually attack women with whom

they come into contact. “Where the proper response . . . is

obvious to all without training or supervision, then the failure

to train or supervise is generally not ‘so likely’ to produce a

wrong decision as to support an inference of deliberate

indifference by city policymakers to the need to train or

supervise.” Walker v. City of New York, 974 F.2d 293,

299–300 (2d Cir. 1993); see also Sewell v. Town of Lake

Hamilton, 117 F.3d 488, 490 (11th Cir. 1997). Given that the

penal code prohibits sexual battery, it is not plausible that

inclusion in the Manual of the language that Flores proposes
12 FLORES V. COUNTY OF LOS ANGELES

would have prevented the assault on Flores.13If the threat of

prison time does not sufficiently deter sexual assault, it is not

plausible to assume that a specific instruction not to commit

sexual assault will provide such deterrence, and therefore

failure to include such instruction does not constitute

deliberate indifference absent a longstanding pattern of such

criminal behavior. We agree with our sister circuits that “[i]n

light of the regular law enforcement duties of a police

officer” there is not “a patently obvious need for the city []

specifically [to] train officers not to rape young women.” 

Andrews v. Fowler, 98 F.3d 1069, 1077 (8th Cir. 1996); see

also Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th Cir.

1998) (“Specific or extensive training hardly seems necessary

for a jailer to know that sexually assaulting inmates is

inappropriate behavior”).

Accordingly, we hold that Flores has failed to allege

sufficiently that the failure to train sheriff’s deputies not to

commit sexual assault constitutes deliberate indifference to

13 As the Tenth Circuit has explained regarding the training of

corrections officers, it does not appear that “a plainly obvious

consequence of a deficient training program would be the sexual assault

of inmates.” Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th Cir. 1998). 

In Barney, plaintiffs were two women who, on separate occasions, were

serving 48-hour sentences for minor offenses when they were sexually

assaulted by a jailer. Id. at 1303. Plaintiffs brought suit against the jailer,

the county, the sheriff, and the county commissioner under 42 U.S.C.

§ 1983, alleging violations of their First, Eighth, Ninth, and Fourteenth

Amendment rights. Id. The district court granted the county’s, sheriff’s,

and county commissioners’ motion for summary judgment, and the Eighth

Circuit affirmed, holding that under City of Canton, plaintiffs had not

alleged the existence of a pattern of tortious conduct sufficient to show

deliberate indifference nor that sexual assault was a highly predictable or

plainly obvious consequence of the municipality’s action or inaction. Id.

at 1307–08.
FLORES V. COUNTY OF LOS ANGELES 13

the risk of such assault by a deputy. Given the absence of any

pattern of sexual assaults and the clear criminality of the

conduct, we also hold that instructions in an employment

manual not to sexually harass or sexually assault women

cannot plausibly be considered an effective means to prevent

sexual assault, when the employees are peace officers sworn

to uphold the law which prohibits such assaults.

Conclusion

Flores has not alleged facts sufficient to state a claim

against the County or Baca, and the district court properly

dismissed the action for failure to state a claim. The

judgment of the district court is AFFIRMED.