                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 5 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RAFAEL BENITEZ,                                 No.    17-55107

                Plaintiff-Appellant,            D.C. No.
                                                8:12-cv-00550-AG-JC
 v.

SANDRA HUTCHENS, in her individual              MEMORANDUM*
capacity, and DON BARNES, in his official
capacity as Sheriff-Coroner of Orange
County,

                Defendant-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                             Submitted May 14, 2020**
                               Pasadena, California

Before: EBEL,*** WARDLAW, and OWENS, Circuit Judges.

      Rafael Benitez appeals the district court’s dismissal of his Third Amended


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
Complaint (TAC) alleging violations of 42 U.S.C. § 1983 by Sarah Hutchens,

Sheriff-Coroner of Orange County, in her official and individual capacity.1 We

review de novo the grant of a motion to dismiss, “accept[ing] as true all well-

pleaded factual allegations[] and constru[ing] all factual inferences in the light

most favorable to the plaintiff.” Parents for Privacy v. Barr, 949 F.3d 1210, 1221

(9th Cir. 2020). We reverse.

      1. Benitez’s TAC plausibly alleges that his federal rights were violated

throughout his five-year confinement in Orange County Jail. See King v. Cty. of

Los Angeles, 885 F.3d 548, 556 (9th Cir. 2018) (“To establish a claim under

§ 1983, [Benitez] must show the violation of a federal right by a person acting

under color of state law.” (citing West v. Atkins, 487 U.S. 42, 48 (1988))).

      “Under the Due Process Clause of the Fourteenth Amendment, ‘an

individual detained under civil process . . . cannot be subjected to conditions that

amount to punishment.’” King, 885 F.3d at 556–57 (quoting Jones v. Blanas, 393

F.3d 918, 932 (9th Cir. 2004)). Because Benitez was housed in the same unit and

treated the same as a criminal detainee from 2008 to May 2012, his conditions

were “identical to . . . those in which [his] criminal counterparts [were] held.” Id.

at 557 (internal quotation marks and citation omitted). His conditions during this


      1
         During the pendency of this appeal, Don Barnes succeeded Hutchens as
Sheriff of Orange County, and has therefore replaced Hutchens in her official
capacity in this lawsuit.

                                           2
four-year period were therefore unconstitutionally punitive. Id.

      In May 2012, Orange County released a “completely new addition” to its

Jail Operations Manual, which detailed new policies for detaining civil detainees,

including that civil detainees would be held separately from criminal detainees.

Pursuant to these policies, Benitez was moved to a separate wing of the jail that

housed only civil detainees. Even so, Benitez has plausibly alleged that his

conditions of confinement during this period were unconstitutionally punitive

because they were “substantially worse than [those he] would face upon

commitment [to Coalinga State Hospital].” Jones, 393 F.3d at 933 (internal

quotation marks and citation omitted). In King, we took judicial notice of the

following facts to describe the conditions of confinement at Coalinga State

Hospital:

      [Sexually Violent Predators] at Coalinga are treated as “patients” by a
      staff that includes “psychologists, psychiatrists, social workers,
      rehabilitation therapists, registered nurses, psychiatric technicians, and
      other medical and clinical staff.” Coalinga Website at Home. Patients
      live in dorms, not cells. Coalinga Website at Facilities. Patients may
      make and receive calls using the public telephone in their unit, and the
      phone numbers for these units are posted online. Coalinga Website at
      Family and Friend Resources, Visitor Information. As part of their
      treatment, patients are encouraged to have visits from friends and
      family members. Coalinga Website at Visitor Information. Patients
      may hug and kiss their visitors at the beginning and end of each visit,
      and may hold hands during visits. Id. Patients can receive packages
      from family members and vendors, and can possess “personal items”
      such as shoes and caps. Coalinga Website at Family and Friend
      Resources, Statewide Contraband List.


                                          3
885 F.3d at 555.

        By contrast, Orange County’s new Jail Operations Manual required that

Benitez be held in conditions of confinement markedly worse from those at

Coalinga. Benitez was held in a cell, not a dorm. He was prohibited from

receiving packages from family members or vendors, and was barred from having

such personal items as a cap. Because the Jail Operations Manual required Benitez

to be held in conditions of confinement that are unconstitutionally punitive as

measured along the dimensions we set out in King, he has also plausibly alleged

the violation of his federal rights from May 2012 until the date he was transferred

to Coalinga.

        2. To state a claim under § 1983 against Orange County or Sheriff Barnes in

his official capacity, Benitez must allege both a violation of his federal rights and

facts to “show that a county policy or custom caused his injury.” King, 885 F.3d at

556.2

        Construing Benitez’s pro se TAC liberally, see Jackson v. Barnes, 749 F.3d

755, 763 (9th Cir. 2014), he has plausibly alleged that from 2008 to May 2012



        2
        “When a county official like Sheriff [Barnes] is sued in his official
capacity, the claims against him are claims against the county.” Mendiola–
Martinez v. Arpaio, 836 F.3d 1239, 1250 (9th Cir. 2016). Municipalities are
considered “persons” under 42 U.S.C. § 1983 and therefore may be liable for
causing a constitutional deprivation. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
690 (1978).

                                           4
Orange County Jail had an unwritten policy or custom that required him to be

detained in unconstitutionally punitive conditions of confinement, see Castro v.

Cty. of Los Angeles, 833 F.3d 1060, 1075 (9th Cir. 2016) (en banc) (defining

custom).

      From 2008 to May 2012, Benitez claims that Office of Independent Review

staff and other Orange County Jail staff told him directly that he was being housed

“in accordance with [Hutchens’s] policies as outlined within the [Jail Operations

Manual].” He also alleges that Hutchens’s deputies told him that there was no

separate unit at the jail to house civil detainees. Furthermore, Benitez alleges that

in 2011 he met another civil detainee who was also repeatedly told by Hutchens’s

deputies that he would not be housed separately from criminal detainees. Taken

together, this evidence plausibly alleges that from 2008 to May 2012 it was

standard operating procedure at Orange County Jail to house civil detainees like

Benitez in the same conditions as criminal detainees, in violation of the civil

detainees’ federal rights. See Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir.

1992) (referring to a custom as “standard operating procedure” (internal quotation

marks and citations omitted)).

   From May 2012 onwards, Benitez has plausibly alleged a claim against Barnes

because Benitez was held pursuant to the County’s policies as detailed in the Jail




                                          5
Operations Manual, and, as explained above, these policies were constitutionally

deficient.

   3. For the first time on appeal, Hutchens argues that the district court lacked

personal jurisdiction over her in her individual capacity. However, Hutchens’s

motion to dismiss before the district court only briefly noted in a footnote that she

had not yet been served in her individual capacity and thus was appearing only in

her official capacity. Notably, she did not move to dismiss at that time under

Federal Rule of Civil Procedure 4 for failure to serve or move to dismiss under

Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. Because

“arguments not raised in the district court will not be considered for the first time

on appeal,” In re Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 780 (9th Cir.

2014), she has waived any claim of defective service, see Smith v. Idaho, 392 F.3d

350, 355 (9th Cir. 2004) (“[I]t is well-recognized that personal jurisdiction—unlike

subject-matter jurisdiction—may be waived.” (citing Ins. Corp. of Ir. v.

Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982))).

   4. To overcome Hutchens’s motion to dismiss the individual-capacity claims,

Benitez’s complaint must “plausibly allege[] that: (1) [Hutchens] promulgate[d],

implement[ed], or in some other way possesse[d] responsibility for the continued

operation of the . . . policy” regarding his conditions of confinement, and (2) that

“the [constitutional] violation . . . occurred pursuant to that policy.” OSU Student


                                           6
All. v. Ray, 699 F.3d 1053, 1076 (9th Cir. 2012) (internal quotation marks

omitted). Benitez has done so.

   Benitez’s TAC claims that, from 2008 till May 2012, Hutchens’s own deputies

told him that they were acting “in accordance with Defendant’s policies.”

(emphasis added). Because Hutchens “possesse[d] responsibility for the continued

operation” of these policies, and these policies required unconstitutionally punitive

conditions of confinement, Benitez has plausibly alleged that the constitutional

violations at issue in this case “occurred pursuant to [Hutchens’s] policy.” Id.

   Furthermore, the revised Jail Operations Manual issued in 2012 was published

in Hutchens’s name and on her letterhead. Therefore, Benitez has plausibly

alleged that Hutchens “promulgate[d], implement[ed], or in some other way

possesse[d] responsibility for the continued operation of the” Jail Operations

Manual policies that caused Benitez’s constitutional injury. Id.

   REVERSED; REMANDED for further proceedings.




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