FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA G. FLORES, No. 12-56623
Plaintiff-Appellant,
D.C. No.
v. 2:12-cv-03021-R-SH
COUNTY OF LOS ANGELES and
LEE BACA, OPINION
Defendants-Appellees.
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 violation must 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 battery and
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 Monell8 and 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 claim to 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 from severe 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.13 If 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.