ORDER ADOPTING FINDINGS AND RECOMMENDATIONS

(ECF Nos. 25, 26)

LAWRENCE J. O'NEILL, Chief District Judge.

Plaintiff Ashley Gonzalez ("Plaintiff") filed the Complaint in this action on November 4, 2016. ECF No. 1. Therein, Plaintiff, a pre-trial detainee in the custody of Defendant County of Merced ("Defendant County"), has asserted against Defendant County, Gregory Rich ("Defendant Rich"), an employee of Defendant County, and Does 1-10, jointly and severally, two claims1 under 42 U.S.C. § 1983 for the alleged violations of her civil rights2 that occurred on or about January 27, 2015. See id. On November 29, 2016, Defendant County filed a motion to dismiss the complaint, ECF No. 7, and on December 20, 2016, Defendant Rich filed a motion to stay this action pending the resolution of the state criminal prosecution against him, ECF No. 11. Both motions were referred to a United States Magistrate Judge pursuant to U.S.C. § 636(b)(1)(B) and Local Rule 302. ECF Nos. 8 &13.

On February 1, 2017, the Magistrate Judge filed Findings and Recommendations ("F&Rs"). ECF No. 25. The F&Rs recommended that Defendant County's motion to dismiss be granted with leave to amend and that Defendant Rich's motion to stay this action be granted as to Defendant Rich at this time, but not as to Defendant County until an answer is filed by Defendant County. Id. The F&Rs also recommended that a review hearing be set for 90 days from the date that the motion to stay is granted as to Defendant Rich and that Defendant Rich be required to file a status report at least 7 days prior to the review hearing. Id. The F&Rs were served on the parties and contained notice that any objections to were to be filed within fourteen days (14) days from the date of service.

On February 15, 2017, Plaintiff filed objections to the findings and recommendations. ECF No. 26. Plaintiff objected only to the Magistrate Judge's recommendation that the Court grant Defendant County's motion to dismiss. Id. at 1. Defendant County filed a response on March 1, 2017. ECF No. 27.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the F&Rs to be supported by the record and by proper analysis, and that Plaintiff's objections either repeat arguments that the F&Rs have correctly rejected, or reflect a misunderstanding both of the relevant law in this case and the reasoning set forth in the F&Rs.

First3, Plaintiff asserts that the Complaint adequately pleads a Monell4 claim based on a theory of liability pursuant to Monell that Defendant County itself caused a substantial risk of serious harm through its "policy concerning opposite sex transports." ECF No. 26 at 4-7, 10-12. Specifically, Plaintiff claims that the Complaint sufficiently alleges a "policy" because "the Complaint clearly identifies a course of action chosen from among the various alternatives by the County, namely, its policy concerning opposite sex transports," in that it alleges that the County failed to "adopt or enforce a policy, procedure or program that would facilitate the transport of detainees of the opposite sex of the correctional officer(s) carrying out the transport . . . in a fashion that would protect female detainees from predatory behavior [by male correctional officers,]" or in the alternative, the County "failed to properly oversee, enforce, and/or properly carry out existing policies or training." Id. at 5 (citing Compl. ¶¶ 28, 29). Plaintiff then claims that the Magistrate Judge improperly required Plaintiff to allege that Defendant County knew that its policy would harm Plaintiff in particular or to allege that there were prior guard-on-inmate sexual assaults within Merced County. Id. at 5-6; 11-12. Plaintiff claims that her case is analogous to the Ninth Circuit's decision in Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016), which Plaintiff characterizes as affirming the proposition that proof of a pattern of similar prior incidents is not necessary to demonstrate a Monell violation. Id. at 6-7. Plaintiff then argues that she alleged that the County was sufficiently on notice "of the very realistic risk of correctional officer-on inmate-sexual assaults," and that Defendant County's failure to have a policy that protected female detainees from sexual assault by male correctional officers amounted to a cognizable Monell claim. ECF No. 26 at 11-12.

Plaintiff is mistaken—her argument reflects a misunderstanding of what is required to establish liability under Monell. Plaintiff correctly notes that Monell would permit Defendant County to be liable if one of its policies caused Plaintiff to suffer a violation of her constitutional rights. However, under this theory of liability, "[it] is not sufficient for a plaintiff to identify a custom or policy, attributable to the municipality, that caused his injury. A plaintiff must also demonstrate that the custom or policy was adhered to with `deliberate indifference to [her] constitutional rights . . .'" Castro, 833 F.3d at 1076 (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989)). Contrary to Plaintiff's assertion in her objections, Castro does not support her position. Although in Castro, the Ninth Circuit did affirm jury instructions that did not require proof of a pattern of similar prior incidents, Castro is distinguishable from this case. Notwithstanding the fact that the plaintiff in Castro was not required to demonstrate a pattern of prior incidents, the Ninth Circuit held that there was substantial evidence supporting the jury's finding that Los Angeles County was deliberately indifferent towards the plaintiff because the design of the cell and the policy of only checking on intoxicated inmates without adequate audio monitoring was in direct contravention to the California Building Code's directives and the West Hollywood police station's own manual, which required that a sobering cell "allow for maximum visual supervision of prisoners by staff" and forbade the use of non-complaint sobering cells. See 833 F.3d at 1076-77. Because Los Angeles County had acted in a manner that violated the Building Code and the police station's manual, it was therefore clear that a jury could find that that Los Angeles County was deliberately indifferent to the plaintiff's constitutional rights. See id. Here, there are no analogous factual allegations in the Complaint that would support a claim that Defendant County was deliberately indifferent to Plaintiff's constitutional rights.5 The Court agrees with the Magistrate Judge's determination that the Complaint insufficiently pleads that Defendant County itself caused Plaintiff to suffer a constitutional injury because the Complaint lacks "any facts explaining how the infirmity of the custom or policy or the omission of a policy as alleged by Plaintiff put policymakers on notice through actual notice or constructive notice that the constitutional injury was likely to occur." See ECF No. 25 at 10-11 (emphasis added).6 The Court therefore rejects Plaintiff's argument that the Magistrate Judge applied the wrong standard of proof regarding deliberate indifference.

For this reason, the Court also rejects Plaintiff's argument that the Complaint has adequately pleaded a Monell violation because it alleged that Defendant County failed to have any policy in place that would have prevented Plaintiff's injury. See ECF No. 26 at 8. Although the Supreme Court and the Ninth Circuit have recognized that a municipal entity can be liable under § 1983 for acts of "omission," see Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 2010), overruled on other grounds by Castro, 833 F.3d 1060 (citing City of Canton, 489 U.S. at 390)), Plaintiff would still need to provide sufficient factual allegations of Defendant County's deliberate indifference towards her constitutional rights. See Castro, 833 F.3d at 1073. As discussed above, the Magistrate Judge correctly determined that Plaintiff failed to make these allegations sufficiently in the Complaint.

The third argument Plaintiff makes in her objections is that the Magistrate Judge placed too much reliance on the Ninth Circuit's decision in Flores v. County of Los Angeles, 758 F.3d 1154 (9th Cir. 2014). ECF No. 26 at 8-10. Plaintiff claims that "there are critical distinctions" between the allegations in Flores and the allegations in this case, and that the holding in Flores is limited to addressing Monell liability based on a "failure to train" theory. Id. at 9. According to Plaintiff, her allegations are "fundamentally different" from those advanced in Flores because the Complaint in this case sets forth three theories of Monell liability: "the absence of a policy prohibiting unaccompanied, unsupervised opposite sex transport by officers, a failure to train, and a failure to supervise," and the F&Rs fail to acknowledge the "key distinctions" between the Complaint's allegations and the allegations at issue in Flores. Id. Plaintiff also claims it is "unclear based on the controlling authorities how the Magistrate arrived at the conclusion that no facts were alleged in Plaintiff's Complaint to show the existence of a policy, practice, custom or omission sufficient to state a claim under Monell against County." Id. at 9-10.

Upon review of Flores, the Court agrees with the Magistrate Judge that Flores is directly on point in this case. The F&Rs observed that Plaintiff has alleged a similar constitutional violation to what the plaintiff in Flores alleged,7 but has attempted to differentiate her case from Flores through unsupported assertions that her allegations are "qualitatively different" from those in Flores by setting forth what she claims are three distinct theories of liability. See ECF No. 26 at 9-10. As pointed out by Defendant County in its response (ECF No. 27 at 1), under any of the three theories that Plaintiff has proposed, she would still be required to demonstrate deliberate indifference to establish Monell liability on the part of Defendant County. See, e.g., City of Canton, 489 U.S. at 392 ("while claims . . . alleging that the city's failure to provide training to municipal employees resulted in the constitutional deprivation she suffered—are cognizable under § 1983, they can only yield liability against a municipality where that city's failure to train reflects deliberate indifference to the constitutional rights of its inhabitants."); Peel v. Mateo, No. 15-cv-04694-JST, 2016 WL 463269, at *3 (N.D. Cal. Feb. 8, 2016) (citing Davis. v. City of Ellensberg, 869 F.2d 1230, 1235 (9th Cir. 1989) for the proposition that "[a] failure to supervise that is `sufficiently inadequate' may amount to `deliberate indifference.'"); Johnson v. Shasta Cty., 83 F.Supp.3d 918, 930 (E.D. Cal. Jan. 6, 2015) (a Monell claim may be stated "when omissions or failures to act amount to a local government policy of deliberate indifference to constitutional rights."). As discussed above, the Court has determined that the Complaint fails to allege sufficient facts that could plausibly support a finding that Defendant County was deliberately indifferent because it does not allege any prior similar incidents, nor does it demonstrate that the need to train male correctional officers to not sexually assault inmates is "patently obvious." See Connick v. Thompson, 563 U.S. 51, 63-64 (2011). "A pattern of similar constitutional violations by untrained employees is `ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train . . . Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights." Id. at 62. Although the Supreme Court has recognized the possibility that a municipality could be liable under § 1983 for failure to train "without proof of a pre-existing pattern of violations," only if the unconstitutional consequences of failing to train are so "patently obvious" would it be possible for a court to find single-incident liability. See id. at 64. As was the case in Connick, "[t]he obvious need for specific legal training . . . is absent here." Id.; see, e.g., Kangas v. Wright, No. 1:15-CV-00577-CWD, 2016 WL 6573943, at *4 (D. Idaho Nov. 4, 2016) ("a failure to train theory is tenuous in cases alleging sexual assault, because so many courts have held no training is required to teach employees not to commit sexual assault.")8; E.G. by and through Lepe v. Maldonado, No. 5:14-cv-01053-LHK, 2014 WL 5472654, at *9 (N.D. Cal. Oct. 28, 2014) ("If, on the contrary, the proper behavior is so obvious without any training, the failure to train does not support a finding of deliberate indifference") (emphasis in original). The Court has discerned no meaningful differences between the allegations in the Complaint and the allegations set forth in Flores and finds that the Magistrate Judge's reliance on Flores to reach its determination in this case was therefore proper.

Fourth, Plaintiff argues that the Complaint sufficiently alleged that the County's policies were the moving force between the violation of her constitutional rights. ECF No. 26 at 10. She claims that because the Complaint alleges that she, as a female inmate, was transported, unaccompanied and unsupervised by Defendant Rich, and there was no policy to minimize "the obvious abuse of authority that allegedly occurred," that there is therefore a "direct, logical, and reasonably inferable factual causal link" between the violation of her constitutional rights and Defendant County's policy. Id.

At this time, the Court declines to address this argument. In establishing Monell liability, the "moving force" requirement is separate and discrete from the requirements that Plaintiff allege that Defendant County had a policy and that the policy amounted to deliberate indifference to Plaintiff's constitutional rights. See Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (To establish liability for an official policy or custom under Monell, "a plaintiff must show (1) that the plaintiff `possessed a constitutional right of which [he or she] was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and, (4) that the policy was the moving force behind the constitutional violation."). Because the Court has determined that Plaintiff did not sufficiently allege that Defendant County was deliberately indifferent to her constitutional rights, it declines to address whether any policy of Defendant County was the "moving force" behind Plaintiff's alleged constitutional injury.

Finally, the Court agrees with the Magistrate Judge's determination that Plaintiff should be granted leave to amend the Complaint. Although Defendant County has argued that leave to amend should not be granted in light of the fact that Plaintiff has already obtained "free discovery"9 of Defendant County's policies regarding transportation of opposite-sex detainees (ECF No. 19 at 10; ECF No. 27 at 7), and the Court agrees with Defendant County's argument that the Complaint fails to plead a cognizable Monell violation, it is not clear that the Complaint "could not be saved by amendment." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003); see also AE ex. rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 637-38 (9th Cir. 2012) ("The district court abused its discretion when it denied [plaintiff] the opportunity to allege additional facts supporting the claim that [defendants'] alleged constitutional violations were carried out pursuant to County policy or custom."). Leave to amend was properly granted.

Accordingly, IT IS HEREBY ORDERED that:

IT IS SO ORDERED.