NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

CODRINGTON, J.

I

INTRODUCTION

Plaintiff sustained severe injuries when he was attacked by fellow inmates while plaintiff was in a county jail bathroom/shower room, which was equipped with a television monitor. Plaintiff sued the County of San Bernardino (County) and County Sheriff Gary Penrod (defendants) for violating plaintiff's civil rights by ignoring established security measures and not protecting inmates, such as plaintiff, from assaults by other inmates.

Plaintiff appeals the judgment of dismissal entered after the trial court sustained defendants' demurrer to plaintiff's complaint without leave to amend. Plaintiff contends the trial court erred in sustaining the demurrer based on state actor immunity under the Eleventh Amendment to the United States Constitution.

We affirm the judgment on the ground defendants were state actors immune from civil rights liability section 1983 of title 42 of the United States Code.

II

FACTUAL AND PROCEDURAL BACKGROUND

On March 29, 2010, plaintiff filed a complaint against defendants for violation of his civil rights under title 42 of the United States Code section 1983 (section 1983). Plaintiff alleged that on March 17, 2008, he was incarcerated at Glen Helen Rehabilitation Center, serving a prison term beginning on January 29, 2008, and ending on April 8, 2010. While plaintiff was in the bathroom/shower room on March 17, 2008, he was attacked and beaten by several prisoners. Plaintiff suffered severe injuries, including four skull fractures. Other prisoners cleaned up plaintiff after the attack and took him to his bunk. Defendants did not discover plaintiff had been injured until a sheriff deputy noticed his injuries when he went to dinner with the other prisoners.

Plaintiff alleges that, because of defendants' willful and deliberate indifference to plaintiff's safety, defendants ignored established security measures, including looking at the television monitor in the bathroom/shower room. As a consequence, defendants were unaware that prisoners had attacked and seriously injured plaintiff until later, at dinner time.

Plaintiff further alleged that under the Eighth Amendment to the United States Constitution, defendants were required to protect prisoners, such as plaintiff, from assaults by other prisoners. Defendants violated plaintiff's Eighth Amendment right to be free from cruel and unusual punishment by ignoring established security measures, with willful indifference to plaintiff's safety.

Defendants demurred to plaintiff's complaint. Defendants argued they were immune from liability as state actors. Plaintiff filed opposition, arguing that defendants were not immune from liability because defendants were county actors, not state actors. Plaintiff requested leave to amend the complaint in the event the trial court sustained the demurrer. Plaintiff did not indicate how he intended to amend the complaint to cure the defect raised in the demurrer.

The trial court heard the demurrer, took the matter under submission, and issued a written statement of decision, sustaining defendants' demurrer without leave to amend. The court noted that there is a conflict of authority as to whether a sheriff is a state or county actor when establishing and implementing security procedures within a county jail. The trial court concluded that under Venegas v. County of Los Angeles (2004) 32 Cal.4th 820 (Venegas) and Bougere v. County of Los Angeles (2006) 141 Cal.App.4th 237, 247 (Bougere), the sheriff is a state actor, immune from liability under the Eleventh Amendment and the doctrine of sovereign immunity.

Plaintiff appeals from the judgment of dismissal.

III

STATE ACTOR IMMUNITY

Plaintiff argues that under federal law, the county sheriff is not a state official and therefore does not have immunity under the Eleventh Amendment.

A. Standard of Review

For purposes of reviewing the trial court's ruling: "`"We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed." [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.' [Citations.]" (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 107.)

B. State Actor Immunity

There is a split of authority between state and federal case law as to whether a county sheriff acts on behalf of the state or the county when establishing and implementing security procedures and inmate supervision within a county jail. (Bougere, supra, 141 Cal.App.4th at p. 240.) Plaintiff relies on federal case law in support of his position that the sheriff was acting in his administrative capacity, on behalf of the county, as a custodian of prisoners. Therefore defendants were county actors and are not immune from civil rights liability.

Plaintiff cites the following federal case law in support of his position that defendants were county actors: Streit v. County of Los Angeles (9th Cir. 2001) 236 F.3d 552, 564 (Streit) ["Searching for wants and holds that may or may not have been issued for persons whom the state has no legal right to detain is an administrative function of jail operations for which the LASD [Sheriff Department] answers to the County"]; Cortez v. County of Los Angeles (9th Cir. 2002) 294 F.3d 1186, 1190-1192 [the sheriff acted as administrator of the jail, on behalf of the county, in establishing and implementing a policy of separating gang members from nongang members inside the county fail]; Brewster v. Shasta County (9th. Cir. 2001) 275 F.3d 803, 807-808, 811-812 ["the Shasta County Sheriff acts for the County, not the state, when investigating crime in the county." (Id. at pp. 807-808, see also pp. 811-812; Smith v. County of Los Angeles (2008) 535 F.Supp.2d 1033, 1037-1038 (Smith) [the Smith court rejected Venegas, supra, 32 Cal.4th 820 and held that the sheriff acts for the county when performing his functions of promulgating and applying policies regarding inmate medical care].)]

California state case law, on the other hand, supports defendants' position that establishing and implementing security procedures and supervising inmates within a county jail is a law enforcement function. Thus, under California case law, defendants were state actors immune from section 1983 liability for defendant's injuries caused by inmates attacking him in the bathroom. State case law supporting this proposition includes Venegas, supra, 32 Cal.4th at page 829 [a sheriff, when performing law enforcement functions, is a state actor immune from liability under section 1983]; Bougere, supra, 141 Cal.App.4th at pages 247-248 ["[I]n setting and implementing policies and procedures concerning the assignment of inmates in the county jail, the sheriff acts as a state officer performing state law enforcement duties, and not as a policymaker on behalf of the county"]; Pitts v. County of Kern (1998) 17 Cal.4th 340, 362 (Pitts) [a district attorney is a state actor when preparing to prosecute and when prosecuting criminal violations of state law, and when training and developing policy in these areas]; County of Los Angeles v. Superior Court (Peters) (1998) 68 Cal.App.4th 1166, 1178 (Peters) ["[I]n setting policies concerning release of persons from the Los Angeles County jail, the Los Angeles County Sheriff acts as a state officer performing state law enforcement duties, and not as a policymaker on behalf of the County of Los Angeles."]).

In an extensive analysis of the application of section 1983 immunity to the county sheriff, the court in Bougere, supra, 141 Cal.App.4th 237, acknowledged the split in federal and state authority as to whether a sheriff is a county or state actor when establishing and implementing policies regarding county jails. In Bougere, Bougere, a jail inmate, sued the county and county sheriff for violating his civil rights under section 1983 based on the denial of his request to be moved to another facility after receiving inmate death threats. Bougere ultimately was beaten by other inmates. (Id. at p. 240.) The issue on appeal was whether the sheriff acted on behalf of the state or county in setting and implementing policies pertaining to the assignment of inmates within the county jail. (Id. at p. 239.) The court in Bougere held that the sheriff acted as a state officer performing state law enforcement duties with regard to placement of inmates and thus was immune from section 1983 liability. (Id. at p. 247.) The Bougere court affirmed the trial court's ruling sustaining the county's demurrer to Bougere's cause of action alleging county liability under section 1983. (Id. at p. 248.)

In reaching its holding, the Bougere court reasoned that, "The Sheriff's duties to preserve the peace (Gov. Code, § 26600) and to `prevent and suppress any affrays, breaches of the peace, riots, and insurrections' (Gov. Code, § 26602) are law enforcement functions and do not lose this status simply because they are carried out within the confines of a jail, which the sheriff is charged with operating (Gov. Code, § 26605). Inmates at the county jail typically consist of those persons who have been arrested for committing state crimes and are awaiting trial, persons who have already been sentenced, and those detained as witnesses or under civil process or contempt orders. We cannot find that a sheriff's policies relating to the safekeeping of such persons is merely an `administrative function arguably unrelated to the prosecution of state criminal law violations.' [Citation.]" (Bougere, supra, 141 Cal.App.4th at p. 247; see also Pitts, supra, 17 Cal.4th at p. 363.)

The court in Bougere rejected conflicting federal case law and relied on the California Supreme Court cases, Pitts, supra, 17 Cal.4th at page 362 and Venegas, supra, 32 Cal.4th at page 829, in support of the proposition that the sheriff was acting as a state actor, performing state law enforcement duties, when setting and implementing policies and procedures concerning the assignment of inmates in the county jail, in furtherance of inmates' safety and protection. (Bougere, supra, 141 Cal.App.4th at p. 247.) Likewise, here, we conclude based on well-founded California case law that defendants were state actors, performing state law enforcement duties, when setting and implementing security policies and procedures intended to protect jail inmates, as well as staff, from other inmates. (Venegas, supra, 32 Cal.4th at p. 829, Bougere, supra, 141 Cal.App.4th at pp. 247-248, Pitts, supra, 17 Cal.4th at p. 362, and Peters, supra, 68 Cal.App.4th at p. 1178.)

Plaintiff urges this court to reject California state law and rely on conflicting federal case law, which supports the proposition that the sheriff was a county actor. Plaintiff argues federal law applies, not state law, and California law is wrong. We disagree. Although the availability of immunity from liability under section 1983 is governed by federal, not state, law (Pitts, supra, 17 Cal.4th at p. 350), we examine California law to determine whether an official is a policymaker for the state or county for purposes of liability under section 1983. (Pitts, supra, 17 Cal.4th at p. 357; see also Smith, supra, 535 F.Supp.2d at p. 1036.) We therefore look to California case law in analyzing and applying section 1983 to the facts in the instant case. (Venegas, supra, 32 Cal.4th at pp. 831, 835.)

Under Venegas, supra, 32 Cal.4th 820, a sheriff is a state actor immune from liability under section 1983 when performing law enforcement functions. (See also Pitts, supra, 17 Cal.4th at p. 362; Peters, supra, 68 Cal.App.4th at p. 1178; Bougere, supra, 141 Cal.App.4th at pp. 247-248.) Here, the sheriff's policies regarding the monitoring of the jail shower/bathroom, and implementation of those policies, constitute a law enforcement function since it involves security, supervision, and protection of inmates and staff within the jail.

Citing Streit, supra, 236 F.3d 552, plaintiff argues in his reply brief that various county code provisions establish that defendants were acting as county actors. The county code provisions, which plaintiff cites for the first time in his reply brief, are not dispositive in this case of whether defendants were acting as county or state actors. The code provisions relate to training officers; the sale, disposition, and safekeeping of unclaimed property; the disposition of proceeds with the county treasurer; the establishment of several county jail facilities; prisoner and probationer labor on public works; and consolidation of the sheriff and coroner offices. These county code provisions do not establish that defendants were county actors in the instant case, with regard to monitoring inmates in the jail bathrooms.

As state actors, defendants are immune from section 1983 liability with regard to setting and implementing policies relating to monitoring and protecting inmates and staff within the county jails. Since defendants have not proposed any way of successfully amending the complaint to avoid such immunity, the trial court did not abuse its discretion in sustaining defendants' demurrer without leave to amend.

IV

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.

We concur:

Ramirez, P.J.

McKinster, J.