Massage therapist must improve claims that San Jose officials mishandled sexual abuse complaints

SAN JOSE, Calif. (CN) — A Vietnamese massage therapist must revise her claims that the city of San Jose is liable for the abuse and extortion a former city employee was convicted of carrying out against numerous massage therapists.

U.S. District Judge Edward Davila granted the city its motion to dismiss the case, while allowing plaintiff Dai Trang Thi Nguyen leave to amend some claims. She claims that the city and code enforcement workers William Gerry, Joseph Hatfield, Rachel Roberts and Edgardo Garcia violated her Fourteenth Amendment rights to due process and equal protection and that Gerry sexually abused her and other employees at her spa.

Nguyen’s case was originally stayed pending resolution of a criminal case against Gerry until Oct. 2022, during which time the judge granted the city’s first motion to dismiss with leave to amend.

In a 27-page order, Davila dismissed Nguyen’s first amended claim as well. He found several issues with Nguyen’s adjusted allegations, saying that she must demonstrate that a lack of supervision of officers like Gerry caused her constitutional harm or violated her rights.

“Even if the city had known that workers in the massage industry are primarily Asian immigrant women who are vulnerable to human trafficking, plaintiff has not shown that this information would have alerted the city to the likelihood that code inspectors would extort and sexually abuse massage business owners and masseuses during solo code enforcement inspections and prevented the violation of plaintiff’s rights,” Davila wrote.

“The fact that other male code inspectors inspected massage businesses alone for years without engaging in similar conduct is at odds with plaintiff’s argument that there was an obvious need for more supervision to protect against constitutional violations by solo male code inspectors,” he added.

Davila denied Nguyen leave to amend her claim for vicarious liability. As for the claim that Roberts received an email with compromising photos of Gerry, he said he could not say if Robert’s giving the email to San Jose police show “acquiescence or culpable indifference” to Nguyen’s constitutional rights.

“Even if Roberts acted carelessly in allowing Gerry to continue code enforcement visits, ‘negligence does not suffice for due process liability,’” Davila said.

He said Nguyen did not explain whether supervisors in the Code Enforcement Division or San Jose Police Department received notice of a whistleblower complaint and accusations against Gerry, and therefore did not sufficiently claim supervisory liability.

Nguyen also insufficiently pleaded claims that if Roberts, Hatfield and Garcia were aware of the complaint, they “took no steps to prevent Gerry from harming other women working in the massage industry,” Davila said.

Nguyen’s attorneys did not respond to a request for comment before publication. Nguyen must file an amended complaint by Dec. 21.

A representative for San Jose declined to comment on pending litigation.

The licensed massage therapist, owner of the now-closed Soft Touch Spa, claims that in 2018 Roberts received an anonymous letter containing photos of Gerry embracing a woman later identified as an employee of a massage establishment Gerry inspected. The letter’s anonymous author threatened to publicize the photos unless Gerry closed a competitor’s massage business.

Nguyen said the city did not investigate the letter’s claims against Gerry. Two months later, San Jose’s whistleblower hotline received accusations that Gerry preyed on female Asian massage workers and took bribes in exchange for issuing permits to massage businesses engaging in illicit sex trade.

The spa owner also claims that one month later, in January 2019 Gerry visited her spa and massaged two female employees under their blouses. She said he returned the next day to inspect her business and asked to see her tattoo under her blouse. She says she was told to pay him $10,000 in cash, followed by monthly payments of $2,000 in order to keep her business.

Gerry returned to the spa three times to extort her to perform oral sex on him, and within the next month, failed to get her a new permit as promised, Nguyen said.

The city’s investigation of Gerry began after Nguyen went to a Kaiser Permanente hospital in July 2020 for treatment of mental distress, and Emergency Psychiatric Services reported to San Jose police that she was a sexual assault victim. The city began investigating Gerry, who in mid-2019 had resigned from his position.

Gerry was located in Texas and arrested on 14 charges including sexual assault and extortion. He later pleaded guilty to ten of these offenses, and in May 2022 was sentenced to 35 years in state prison.

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