Quinn v. Fresno County Sheriff et al

Filing 36

MEMORANDUM DECISION REGARDING MOTION TO DISMISS 30 , signed by Judge Oliver W. Wanger on 5/5/2011. ( IT IS ORDERED: 1) Plaintiffs medical care claim under Section 1983 (thirteenth cause of action) against Defendant Alanis isDISMISSED WITHOUT PRE JUDICE; 2)Plaintiffs first cause of action is DISMISSED WITH PREJUDICE; 3)Plaintiffs second cause of action is DISMISSED WITHPREJUDICE; 4)Plaintiffs third cause of action is DISMISSED WITHOUT PREJUDICE; 5) Plaintiff shall file an amended complaint wi thin fourteen (14) days of electronic service of this Memorandum Decision; Defendants shall file a esponse within ten (10) days of service of the amended complaint, and 6) Defendants shall submit a form of order consistent with this Memorandum Decision within five (5) days of electronic service of this decision.)(Gaumnitz, R)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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1:10-cv-01617-OWW-SMS
JAMES LORAN QUINN,

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MEMORANDUM DECISION REGARDING
MOTION TO DISMISS (Doc. 30)

Plaintiff,

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v.

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FRESNO COUNTY SHERIFF, et al.,
Defendants.

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I. INTRODUCTION.
Plaintiff James Loran Quinn “Plaintiff” proceeds with an
action pursuant to 42 U.S.C. § 1983 against various Defendants.
Plaintiff filed his third amended complaint (“TAC”) on March 2,
2011.

(Doc. 27).

On March 11, 2011, Defendants David Alanis (“Alanis”) and the
County of Fresno (“the County”) filed a motion to dismiss the SAC.
(Doc. 30).

April 18, 2011. (Doc. 32).

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Plaintiff filed opposition to the motion to dismiss on

II. FACTUAL BACKGROUND.
Plaintiff pled guilty to driving under the influence on
September 5, 2005, and was sentenced to five years of formal
probation.

The terms of Plaintiff’s probation require him to file

a report each month with the probation department.

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1

In October

1

2006, Alanis was designated as Plaintiff’s probation officer.

2

On

December

4,

form

2006,
for

Plaintiff

December

personally

to Alanis

at

delivered

his

3

monthly report

the probation

4

department office.

5

Plaintiff had a conversation with Alanis.

6

January 11, 2007, Plaintiff personally delivered January’s monthly

7

report form to the probation department office.

8

with Alanis when he visited the probation department office to turn

9

in his January monthly report.

Upon turning in his monthly report form,
Sometime prior to

Plaintiff spoke

Plaintiff alleges that he also

10

timely submitted his February 2007 report, but the TAC does not

11

allege how or when he did so.

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Plaintiff’s Arrest

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On February 12, 2007, Alanis caused Detective Mark VanWyhe of

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the Fresno Police Department to arrest Plaintiff for failing to

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submit

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February 2007.

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place of business and announced that he was arresting Plaintiff due

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to

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Plaintiff responded he had copies of the three forms in question

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with probation department date stamps.

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Plaintiff time to find his conformed reports, which were located in

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another room on the premises where Plaintiff was arrested.

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monthly

Plaintiff’s

reports

for

December

2006,

January

2007,

and

The SAC alleges that VanWyhe went to Plaintiff’s

failure

to

file

three

monthly

report

forms.

VanWhye refused to give

At the time of his arrest, Plaintiff was suffering from heart

24

disease and was taking several prescription medications daily.

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During the booking process, Plaintiff told Alanis that he was a

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cardiac patient and needed his heart medications because he had not

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taken them

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request.

prior

to his

(SAC at 7).

arrest.

Alanis

ignored

Plaintiff’s

Additionally, as part of the booking
2

1

process, Plaintiff’s prescription pain medication was taken from

2

him and never returned.

3

By 2200 hours on February 12, 2007, Plaintiff was experiencing

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severe and increasing pain in his chest.

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nitroglycerin, but Plaintiff informed jail personnel that it would

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not address his medical needs.

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grievance form on February 13, 2007, requesting medical attention

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for his unstable heart condition.

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Plaintiff’s medication to the Fresno County Jail some time on

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Plaintiff was offered

Plaintiff submitted an inmate

Plaintiff’s associate delivered

February 13, 2007; the medication was never given to Plaintiff.

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Plaintiff’s request for medical attention was ignored until

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the early morning hours of February 14, 2007; by that time,

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Plaintiff’s cellmate had flagged down the nurse on duty, who

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recognized that Plaintiff’s condition was very serious. An EKG and

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blood pressure measurement confirmed that Plaintiff was in grave

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danger, and Plaintiff was immediately transferred to an emergency

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room. Plaintiff was discharged from the hospital and released from

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custody on February 17, 2007.
III. LEGAL STANDARD.

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Dismissal

under

Rule

12(b)(6)

is

appropriate

where

the

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complaint lacks sufficient facts to support a cognizable legal

22

theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th

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Cir.1990). To sufficiently state a claim to relief and survive a

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12(b) (6) motion, the pleading “does not need detailed factual

25

allegations” but the “[f]actual allegations must be enough to raise

26

a right to relief above the speculative level.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

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Mere “labels and conclusions” or a “formulaic recitation of the
3

1

elements of a cause of action will not do.” Id. Rather, there must

2

be “enough facts to state a claim to relief that is plausible on

3

its face.” Id. at 570. In other words, the “complaint must contain

4

sufficient factual matter, accepted as true, to state a claim to

5

relief that is plausible on its face.” Ashcroft v. Iqbal, --- U.S.

6

----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal

7

quotation marks omitted).

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The Ninth Circuit has summarized the governing standard, in

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light of Twombly and Iqbal, as follows: “In sum, for a complaint to

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survive a motion to dismiss, the nonconclusory factual content, and

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reasonable

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suggestive of a claim entitling the plaintiff to relief.” Moss v.

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U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal

14

quotation marks omitted). Apart from factual insufficiency, a

15

complaint is also subject to dismissal under Rule 12(b)(6) where it

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lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or

17

where the allegations on their face “show that relief is barred”

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for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct.

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910, 166 L.Ed.2d 798 (2007).

inferences

from

that

content,

must

be

plausibly

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In deciding whether to grant a motion to dismiss, the court

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must accept as true all “well-pleaded factual allegations” in the

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pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not,

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however, “required to accept as true allegations that are merely

24

conclusory,

25

inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988

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(9th Cir.2001). “When ruling on a Rule 12(b)(6) motion to dismiss,

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if a district court considers evidence outside the pleadings, it

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must normally convert the 12(b)(6) motion into a Rule 56 motion for

unwarranted

deductions

4

of

fact,

or

unreasonable

1

summary

2

opportunity to respond.”

United States v. Ritchie, 342 F.3d 903,

3

907

court

4

materials-documents

5

incorporated by reference in the complaint, or matters of judicial

6

notice-without converting the motion to dismiss into a motion for

7

summary judgment.” Id. at 908.

(9th

judgment,

and

Cir.2003).

“A

must

attached

give

may,
to

the

nonmoving

however,
the

party

consider

complaint,

an

certain

documents

IV. DISCUSSION.

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9

it

A. Preliminary Matters

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1. Defendants Statute of Limitations Argument

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Defendants

persist

asserting

California Code of Civil Procedure section 474, which sets forth

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the procedure for naming “doe defendants” under California law,

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rather than the Federal Rule of Civil Procedure 15.

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previously advised Defendants’ counsel that a similar statute of

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limitations argument was frivolous, as Plaintiff’s allegations

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against

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transactions identified in the original complaint.

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decision regarding Defendant’s motion to dismiss the second amended

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complaint advised:

clearly

relate

the

court

back

to

to

of

13

Penner

urge

statute

limitations

Defendant

Defendants

frivolous

12

22

arguments.

in

apply

The court

the

The memorandum

Rule 15(c)(1)(B) of the Federal Rules of Civil Procedure
provides in part:

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An amendment to a pleading relates back to the date of
the original pleading when . . . the amendment asserts a
claim or defense that arose out of the conduct,
transaction, or occurrence set out--or attempted to be
set out--in the original pleading

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Claims arise out of the same conduct, transaction, or
occurrence if they "share a common core of operative
facts" such that the plaintiff will rely on the same
evidence to prove each claim. Williams v. Boeing Co., 517
5

same

1
2

F.3d 1120, 1133 (9th Cir. 2008) (citing
Martell v.
Trilogy Ltd., 872 F.2d 322, 325-26 (9th Cir. 1989) and
Percy v. S.F. Gen. Hosp., 841 F.2d 975, 978 (9th Cir.
1988))...

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Contrary to Defendants’ frivolous argument...The SAC
expressly relates back to the allegations made in
Plaintiff’s
original
complaint
with
respect
to
Plaintiff’s claims arising out of Plaintiff’s alleged
probation violation arrest and the Fresno County Jail’s
failure to provide Plaintiff medical care.

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(Doc. 21 at 7-8).

Defendants’ statute of limitations argument is

devoid of merit.

The remaining question is whether Defendant’s

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9
counsel’s intentional disregard of the court’s prior admonition
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should be addressed under 28 U.S.C. § 1927.
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2. Defendants Redundancy Argument
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Defendants assert that claims against Defendant Penner in her
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official capacity are redundant because the County is named as a
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Defendant.

However, some of Plaintiff’s claims are directed

15
against the County based on claims arising out of management of the
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county jail, while others assert claims against the County based on
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Penner’s conduct as the Chief Probation Officer.

Defendants cite

18
no authority for the proposition that the alleged redundancy they
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complain requires dismissal of the TAC. The cases Defendants cite,
20
Center For Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff
21
Dept., 533 F.3d 780, 799 (9th Cir. 2008) and Megargee v. Wittman,
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550 F. Supp. 2d 1190, 1206 (E.D. Cal. 2008) contain permissive, not
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mandatory language.
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3. State Law Immunities
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Defendants invoke a host of state law immunities.

With

26
respect to the immunities invoked on behalf of Defendant Penner in
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her official capacity, as discussed below, the complaint does not
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allege any cognizable claim and it is unnecessary to reach the

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immunity issues.

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Defendants

invocation

of

California

Penal

Code

section

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847(b)(1) is premature.

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(b)(1) provides ‘[t]here shall be no civil liability on the part of

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... any peace officer ... acting within the scope of his or her

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authority, for false arrest or false imprisonment ... [if][¶][t]he

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arrest was lawful, or the peace officer, at the time of the arrest,

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had reasonable cause to believe the arrest was lawful.’” O’Toole v.

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Superior Court, 140 Cal. App. 4th 488, 510-11 (2006). Because, for

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reasons explained below, the TAC sufficiently alleges lack of

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probable cause, section 847 immunity cannot be granted at this

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stage in the proceedings.

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“Penal Code section 847, subdivision

Defendants invocation of California Penal Code section 845.8
is also premature.

Section 845.8 provides:

Neither a public entity nor a public employee is liable
for:

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(a) Any injury resulting from determining whether to
parole or release a prisoner or from determining the
terms and conditions of his parole or release or from
determining whether to revoke his parole or release

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Nothing in the complaint indicates that Alanis made the decision to
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arrest Plaintiff was part of Alanis’ decision to determine or
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revoke Plaintiff’s parole or its conditions.

The provision does

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not apply.
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B. Federal Claims
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1. Fourth Amendment Claim
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Probable cause for a warrantless arrest arises when the facts
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and circumstances within the officer's knowledge are sufficient to
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cause a prudent person to believe that the suspect has committed an
offense. E.g. Crowe v. County of San Diego, 593 F.3d 841, 868 (9th
Cir. 2010) (citation omitted).

In determining whether there was

probable

court

cause

to

arrest,

a

reviews

the

totality

of

circumstances known to the arresting officers to determine if a
prudent person would have concluded there was a fair probability
that the defendant had committed a crime.

Id.

While evidence

supporting probable cause need not be admissible in court, it must
be legally sufficient and reliable.

Id.

Law enforcement may not

disregard facts tending to dissipate probable cause.
Defendants

contend

that

the

allegations

Id.

contained

in

Plaintiff’s dismissed complaints establish that Alanis had probable
cause to believe Plaintiff was subject to arrest under California
Penal Code section 1203.2(a), which provides:
[a]t any time during the probationary period of a person
released on probation under the care of a probation
officer pursuant to this chapter... if any probation
officer or peace officer has probable cause to believe
that the probationer is violating any term or condition
of his or her probation or conditional sentence, the
officer may, without warrant or other process and at any
time until the final disposition of the case, rearrest
the person and bring him or her before the court.

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Cal. Pen. Code § 1203.2(a).

In previous complaints, Plaintiff

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alleged

the

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Probation System (“APS”), a computer data-base which contains

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scanned copies of individuals’ monthly report forms, as well as

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Plaintiff’s

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Plaintiff’s monthly reports were missing. The TAC does not contain

that

Alanis

physical

checked

probation

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8

probation

file,

and

department’s

discovered

Adult

that

1

these allegations.1

2

The TAC asserts that Plaintiff turned in his monthly reports

3

for December, January, and February, and that Alanis had personal

4

knowledge

5

reports.

6

not have probable cause to arrest Plaintiff on the basis of the

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missing monthly reports because Alanis had actual knowledge that at

8

least two of the reports in question were timely submitted.

9

reasonable officer with Alanis’ alleged knowledge would have had

that

Plaintiff

turned

in

his

December

and

January

Accepting the allegations of the TAC as true, Alanis did

10

reason

to

know

that

the

probation

department’s

records

11

A

were

inaccurate and thus insufficient to support probable cause.

12

Alanis is not entitled to qualified immunity at this time, as

13

the reasonableness of his conduct depends on questions of fact that

14

cannot be resolved by reference to allegations of the TAC.

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reasonable officer at the time of the incident would have believed

16

that inaccurate and incomplete records could support a finding of

17

probable cause. The motion to dismiss Plaintiff’s fourth amendment

18

claim against Alanis is DENIED.

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2. Medical Treatment Claim

No

a. Defendant Alanis

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21

Claims

that

correctional

facility

officials

violated

a

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1

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24
25
26
27

Contrary to Defendants’ argument, Plaintiff’s previous allegation that Alanis
checked Plaintiff’s APS and physical probation file does not establish that
Alanis actually did so.
In any event, assuming arguendo that Plaintiff is
judicially estopped from asserting that Alanis did not check Plaitniff’s
probation records, the TAC sufficiently alleges lack of probable cause because
it alleges that Alanis had actual knowledge that Plaintiff turned in his December
and January reports. No reasonable officer would rely on records he knew to be
incomplete or inaccurate in ascertaining probable cause to effect an arrest.
See, e.g., Crowe, 593 F.3d at 868 (officers may not ignore facts dissipating
probable cause).

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9

1

pretrial detainee’s constitutional rights by failing to address

2

their medical needs are evaluated under a “deliberate indifference”

3

standard.

4

2010) (noting that standard is the same for pretrial detainees

5

under

6

Amendment). A correctional officer cannot be liable for deliberate

7

indifference unless she "knows of and disregards an excessive risk

8

to inmate health or safety; the official must both be aware of

9

facts from which the inference could be drawn that a substantial

10

risk of serious harm exists, and he must also draw the inference."

11

Id. (citation omitted).

Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir.

Fourteenth

Amendment

as

for

prisoners

under

Eighth

12

The TAC alleges that Plaintiff “told Alanis he was a cardiac

13

patient, that he needed his prescribed medications and that he had

14

not been able to take them prior to being arrested.”

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further alleges that Alanis “never did anything to alert the

16

jailors to Plaintiff’s pressing need...for medications.”

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the TAC alleges that Alanis knew that Plaintiff was under the care

18

of a physician and had been prescribed heart medication,

19

does not allege that Alanis knew facts sufficient to put him on

20

notice that Plaintiff’s need for his medication was urgent.

21

TAC does not allege that, at the time of booking, Plaintiff was in

22

such dire

23

recognized

24

Plaintiff’s behalf, Plaintiff faced a substantial risk of serious

25

harm.

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Defendant Alanis is DISMISSED, without prejudice.

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need
that

of

medical assistance

unless

Alanis

sought

that

Alanis

medical

The TAC

Although

the TAC

could

attention

The

have
on

Plaintiff’s medical care claim under section 1983 against

b. The County
There are three theories of municipal liability under section
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2
3
4
5
6
7
8
9

1983:
First, a local government may be held liable when
implementation of its official policies or established
customs inflicts the constitutional injury...
Second, under certain circumstances, a local government
may be held liable under § 1983 for acts of "omission,"
when such omissions amount to the local government's own
official policy. To impose liability on a local
government for failure to adequately train its employees,
the government's omission must amount to "deliberate
indifference" to a constitutional right. This standard is
met when the need for more or different training is so
obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that the policymakers
of the city can reasonably be said to have been
deliberately indifferent to the need...

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12

Third, a local government may be held liable under § 1983
when the individual who committed the constitutional tort
was an official with final policy-making authority or
such
an
official
ratified
a
subordinate's
unconstitutional decision or action and the basis for it.

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14

Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249-1250 (9th

15

Cir. 2010). Unlike the deliberate indifference standard applicable

16

to individuals, the standard applicable to municipal entities is an

17

objective standard.

18

Clouthier, 591 F.3d at 1249, n.9.

Plaintiff alleges that the Fresno County Jail had in place

19

policies

which

interfered

with

20

prescription medications, and that Fresno County Jail employed a

21

policy of failing to properly train and supervise jail staff to

22

ensure provision of vital prescription medications.

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allegations regarding the policies in place at the Fresno County

24

Jail are supported by reasonable inferences drawn from the TAC’s

25

factual allegations, as the TAC alleges that persons responsible

26

for Plaintiff’s custody were on notice of facts from which they

27

could infer a substantial risk of serious harm to Plaintiff but

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11

prisoners’

access

to

vital

Plaintiff’s

1

deliberately chose to ignore Plaintiff’s requests for help.2

2

The TAC alleges that when he arrived at the Fresno County

3

Jail, Plaintiff expressly told staff that he was a cardiac patient

4

and that he needed heart medications.

5

prescription pain medication was taken from him during the booking

6

process, and that Plaintiff’s grievance form requesting medical

7

attention for his unstable heart condition was ignored.3 According

8

to the TAC, Plaintiff did not receive any medical attention until

9

his cellmate flagged down the on-duty nurse after Plaintiff’s

The TAC also alleges that

10

medical condition had become critical.

11

support a reasonable inference that Fresno County Jail has a policy

12

of failing to administer and/or withholding prescription medication

13

even where it appears that such medication is needed to stabilize

14

obviously serious medical conditions.

15

support the inference that Fresno County Jail fails to properly

16

train its staff regarding the urgency entailed by detainees’

17

requests

18

threatening medical conditions.

19

///

20

///

for

medical

attention

Plaintiff’s allegations

The TAC’s allegations also

concerning

potentially

life-

The motion to dismiss is DENIED.

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22
23
24
25
26

2

Whether such persons actually drew the inference that Plaintiff faced a
substantial risk of serious harm is a question of fact. E.g. Farmer v. Brennan,
511 U.S. 825, 842 (1994) (“[w]hether a prison official had the requisite
knowledge of a substantial risk is a question of fact subject to demonstration
in the usual ways, including inference from circumstantial evidence...a
factfinder may conclude that a prison official knew of a substantial risk from
the very fact that the risk was obvious). Plaintiff does not name any individual
defendants in his medical care claim under section 1983, however.

3

27
28

Although the fact that Plaintiff’s pain medication was taken away does not
reflect deliberate indifference in and of itself, it does support an inference
that the Fresno County Jail was on notice that Plaintiff was under the care of
a physician.

12

1

C.

State Law Claims

2

1. First Cause of Action

3

Plaintiff’s first cause of action is against the County for

4

breach of its statutory duty of supervision and training. Plaintiff

5

asserts that Defendant Penner breached her duty by:

6

(a) negligently failing to enact procedures and policies
guiding probation officers in the handling of minor
violations of conditions of probation committed by DUI
probationers with no history of violence; (b) failing to
devote a reasonable and sufficient amount of time to
train and supervise Alanis and other deputy probation
officers so that Alanis and other deputy probation
officers would employ a proper and measured response if
and hen there is reason to belief that a DUI probationer
with no history of violence has failed to file one or
more monthly report forms and (c) failing to devote a
reasonable and sufficient amount of time to train and
supervise Alanis and other deputy probation officers to
make them aware of the impropriety of arresting and
detaining or causing the arrest and detention of such
non-violent probationers based on such a belief in the
absence of exigent circumstances.

7
8
9
10
11
12
13
14
15
(TAC

at

9).

Plaintiff’s

allegations

assail

the

Probation

16
Department’s

substantive

policies concerning

when

arrests

are

17
appropriate; such allegations do not give rise to liability against
18
the County. Plaintiff’s allegations do not allege failure to train
19
officers regarding the prerequisites to a lawful arrest, rather,
20
Plaintiff alleges failure to train officers to exercise discretion
21
not arrest probationers notwithstanding the existence of probable
22
cause.

As there is no statutory basis for liability based on

23
failure to train probation officers not to effect arrests even when
24
probable cause exists, Plaintiff’s supervision and training claim
25
must be dismissed.4

See, e.g., Guzman v. County of Monterey, 46

26
27
28

4

Although the TAC is sufficient to allege that Plaintiff was arrested absent
probable cause, without more, a single unlawful arrest does not provide
sufficient factual basis to support a claim for failure to train and supervise.

13

1

Cal. 4th 887, 897 (Cal. 2009) (public entity liability must be

2

predicated on statute).

3

The memorandum decision dismissing Plaintiff’s second amended

4

complaint provided the following analysis of Plaintiff’s failure to

5

train and supervise claim:

6

Under [California's] Government Claims Act (Cal. Gov.
Code, § 810 et seq.), there is no common law tort
liability for public entities in California; instead,
such liability must be based on statute. E.g., Guzman v.
County of Monterey, 46 Cal. 4th 887, 897 (Cal. 2009).
Where a public entity is under a mandatory duty imposed
by an enactment that is designed to protect against the
risk of a particular kind of injury, the public entity is
liable for an injury of that kind proximately caused by
its failure to discharge the duty unless the public
entity establishes that it exercised reasonable diligence
to discharge the duty. Id. (citations omitted)...

7
8
9
10
11
12

California courts construe the mandatory duty requirement
strictly, "finding a mandatory duty only if the enactment
‘affirmatively imposes the duty and provides implementing
guidelines.'" Id. at 898 (citations omitted). Although
[California Penal Code] section 1203.71 appears to impose
an affirmative duty of supervision on the probation
officer, it does not provide implementing guidelines.

13
14
15
16
As

section

1203.71

does

not

provide

implementing

guidelines

17
sufficient

to

establish

a

mandatory

duty

to

train

probation

18
officers

not

to

effect

arrests

where

probable

cause

exists,

19
Plaintiff’s allegations do not state a claim for relief. Plaintiff
20
has had numerous opportunities to allege a cognizable failure to
21
train and supervise claim.

Plaintiff’s first cause of action is

22
DISMISSED WITH PREJUDICE.
23
2.

Second Cause of Action

24
Plaintiff’s second cause of action asserts a breach of the
25
“statutory duty to maintain accurate records.”
26
27
28
14

Plaintiff contends

1

that “to the extent Alanis...looked in the files of Plaintiff and

2

did not find the monthly reports which were required by law to be

3

in the file, the Probation Department violated the terms of Penal

4

Code 1202.10.”

5

The memorandum decision dismissing Plaintiff’s second amended

6

complaint provided the following analysis of Plaintiff’s records-

7

based negilgence claim:

8
9
10
11
12
13
14

Plaintiff’s contention that California Penal Code section
1203.10 imposes a mandatory duty to maintain monthly
reports is dubious. See Whitcombe v. County of Yolo, 73
Cal. App. 3d 698, 707 (Cal. Ct. App. 1977) (“Next, we
examine appellants' contention that Penal Code section[]
1203.10 impose[s] mandatory duties upon the county...We
fault the argument inasmuch as we find among other things
the proximate cause requirement of section 815.6
unsatisfied by the facts in this case.”) (emphasis
added). Section 1203.10 does not provide implementing
guidelines for the preparation and maintenance of monthly
reports. In fact, the plain language of section 1203.10
does not require the probation officer to prepare monthly
reports at all...Cal. Penal Code § 1203.10.

15
16
17
18
19
20
21
22
23
24
25

To the extent section 1203.10 gives rise to a mandatory
duty to prepare and maintain the monthly progress reports
at issue in this case, such duty is not “designed to
protect against the risk of a particular kind of injury”
Plaintiff complains of.
In supervising a person on
probation, and in compiling and keeping the required
records, the probation department acts as an arm of the
court. County of Placer v. Superior Court, 130 Cal. App.
4th 807, 814 (Cal. Ct. App. 2005) accord McGuire v.
Superior Court, 12 Cal. App. 4th 1685, 1687 (Cal. Ct.
App. 1993) (“the probation officer keeps the file both
for his own benefit and for the benefit of the court”).
The courts’ role with respect to the records discussed in
section 1203.10 is to review such records when exercising
discretion to revoke, modify, or change the conditions of
a person’s probation. See, e.g., People v. Segura, 44
Cal. 4th 921, 932 (Cal. 2008). The applicable statutory
framework does not suggest that records prepared pursuant
to section 1203.10 are to be used by the court to protect
probationers from imprudent arrests.

26
27

In opposition to the motion to dismiss, Plaintiff contends that the

28

cases cited in the memorandum decision are “distinguishable and/or
15

1

inapposite.”

2

As Plaintiff points out, Whitcombe did not expressly decide

3

whether section 1203.10 imposes mandatory record keeping duties on

4

probation departments because it found that Plaintiff could not

5

satisfy the proximate cause requirement of California Government

6

Code section 815.6.

7

provides that the proximate cause rationale was one of several

8

reasons plaintiff’s attempt to predicate liability on section

9

1203.10, a theory that the Court held “lacks merit.”

73 Cal. App. 3d at 707.

However, Whitcome

The short

10

shrift afforded to Plaintiff’s theory of liability in Whitcome

11

strongly suggests that section 1203.10 does not give rise to

12

negligence liability.5

13

Plaintiff argues that Bradford v. State, 36 Cal. App. 3d 16,

14

21 (Cal. Ct. App. 1973) supports his theory of liability. However,

15

in Bradford, the Court held that the statutes at issue were

16

“clearly designed to prevent the very type of harm which befell

17

plaintiff.” Here, not even Plaintiff contends that section 1203.10

18

is “clearly designed to prevent the very type of harm which befell”

19

him; rather, Plaintiff argues that section 1203.10 is intended “at

20

least in part to protect the probationer.”

21

Plaintiff

22

proposition that section 1203.10 imposes on probation departments

23

“significant duties to the court and the probationer.” Plaintiff’s

cites

Placer,

130

Cal.

App.

(Opposition at 14).
4th

at

813,

for

the

24
25
26
27
28

5

Plaintiff avers that Whitcombe “makes no logical sense unless the court of
appeal assumed...a mandatory duty.” (Opposition at 4). The fact that Whitcombe
quickly and efficiently disposed of the plaintiff’s claim based on an obvious
proximate cause deficiency– while noting that proximate cause was one of several
flaws in the plaintiff’s theory– does not suggest that the Court gave credence
to the notion that section 1203.10 creates a mandatory duty sufficient to
establish liability.

16

1

citation to Placer is unavailing, as Placer does not suggest that

2

the “duties to...the probationer” are designed to protect against

3

the injury of which Plaintiff complains.

4

clear that the purpose of section 1203.10 is to ensure that the

5

court has a sufficient factual record to properly exercise its

6

statutory parole authority.

Rather, Placer makes

See id.

7

It cannot be said that, in enacting section 1203.10, the

8

Legislature imposed a mandatory duty on probation departments to

9

maintain monthly progress reports in order to protect probationers

10

from imprudent arrests.

11

progress

12

implementing guidelines for the maintenance of monthly progress

13

reports.

14

monthly reports does protect the probationer from being arrested

15

for failing to file such reports, this protection is incidental to

16

the underlying requirement that the probationer file the reports in

17

the first instance. Absent the requirement--imposed not by section

18

1203.10, but rather by the discretionary policies of probation

19

departments--to file monthly progress reports, there would be no

20

need

21

probationers from imprudent arrest.

22

does not give rise to liability:

23
24
25
26

to

reports

at

Section 1203.10 does not require monthly

all;

a

fortiori,

it

does

not

set

forth

Although keeping accurate records of a probationer’s

keep

records

of

such

reports

in

order

to

protect

Such incidental protection

That the enactment ‘confers some benefit’ on the class to
which plaintiff belongs is not enough; if the benefit is
‘incidental’ to the enactment's protective purpose, the
enactment cannot serve as a predicate for liability under
section 815.6.
Guzman, 46 Cal. 4th 898.

27

Plaintiff requests that the court defer ruling on his claim

28

under section 1203.10 in order to afford him time to conduct
17

1

further research and present legislative history concerning section

2

1203.10. Additional time is not warranted, as Plaintiff was put on

3

notice of the deficiencies of his claim in the court’s memorandum

4

decision issued on February 8, 2011.

5

ample time to identify additional authorities to support

6

claim.

7

futile, as a court must strictly construe the mandatory duty

8

requirement, "finding a mandatory duty only if the enactment

9

‘affirmatively

10
11
12

(Doc. 21).

Plaintiff has had
his

Further, affording Plaintiff additional time would be

imposes

guidelines.'" Id.
Plaintiff’s

the

duty

and

provides

implementing

Pleading must come to an end.
second

cause

of

action

is

DISMISSED

WITH

PREJUDICE.

13

3. Third Cause of Action

14

Plaintiff’s third cause of action asserts the existence of a

15

special relationship between Plaintiff and the probation department

16

sufficient to give rise to a duty of care.

17

“under the totality of the circumstances it was outrageous and/or

18

unreasonable, and a breach of the duty of care, to cause Plaintiff,

19

with no record of violence, to be precipitously arrested and

20

imprisoned.” Assuming arguendo that a special relationship existed

21

between the Plaintiff and the Probation Department, existence of a

22

special relationship, by itself, does not create liability; tort

23

liability for governmental entities is based upon statute.

24

Guerrero v. South Bay Union School Dist., 114 Cal. App. 4th 264,

25

269 (Cal. Ct. App. 2003).

26

statutory duty underlies Plaintiff’s special relationship claim.

27

Plaintiff will be given one final opportunity to properly plead

28

this claim.

Plaintiff alleges that

E.g.,

The TAC does not clearly allege what

This cause of action is DISMISSED WITHOUT PREJUDICE.
18

1

4. Fourth Cause of Action

2

The fourth cause of action asserts violation of California

3

Civil Code section 52.1.

4

Section 52.1 provides in part:

If a person or persons, whether or not acting under color
of law, interferes by threats, intimidation, or coercion,
or attempts to interfere by threats, intimidation, or
coercion, with the exercise or enjoyment by any
individual or individuals of rights secured by the
Constitution or laws of the United States, or of the
rights secured by the Constitution or laws of this
state...Any individual whose exercise or enjoyment of
[*17] rights secured by the Constitution or laws of the
United States, or of rights secured by the Constitution
or laws of this state, has been interfered with, or
attempted to be interfered with, as described in
subdivision (a), may institute and prosecute in his or
her own name and on his or her own behalf a civil action
for damages

5
6
7
8
9
10
11
12

Cal. Civ. Code § 52.1.

13

are:

14
15
16
17
18
19

The elements of a claim under section 52.1

(1) that the defendant interfered with or attempted to
interfere with the plaintiff's constitutional or
statutory right by threatening or committing violent
acts; (2) that the plaintiff reasonably believed that if
she exercised her constitutional right, the defendant
would commit violence against her or her property; that
the defendant injured the plaintiff or her property to
prevent her from exercising her right or retaliate
against the plaintiff for having exercised her right; (3)
that the plaintiff was harmed; and (4) that the
defendant's conduct was a substantial factor in causing
the plaintiff's harm.

20
See Austin B. v. Escondido Union School Dist., 149 Cal. App. 4th
21
860, 882, 57 Cal. Rptr. 3d 454 (Cal. Ct. App. 2007)(citing CACI No.
22
3025).
23
The TAC sufficiently alleges that Plaintiff was arrested
24
absent probable cause.

The act of placing an individual under

25
arrest is inherently coercive, and where, as here, the arrest is
26
not supported by probable cause, use of coercive physical force to
27
deprive a person of their constitutional right to freedom from
28
19

1

incarceration is sufficient to provide the basis for a section 52.1

2

claim.

3

66 Cal. Rptr. 3d 847 (Cal. Ct. App. 2007) (liability for false

4

arrest under California Civil Code section 52.1 turns on whether

5

arrest was violative of Fourth Amendment); Warner v. County of San

6

Diego, 2011 U.S. Dist. LEXIS 14312 * 15 (S.D. Cal. 2011). The

7

motion to dismiss the fourth cause of action is DENIED.

See, e.g., Wood v. Emmerson, 155 Cal. App. 4th 1506, 1514,

8

5. Fifth Cause of Action

9

Plaintiff’s fifth cause of action alleges false arrest and

10

false imprisonment.

11

is liable for the tort of false arrest depends on whether or not

12

probable cause existed. See, e.g., Salazar v. Upland Police Dept.,

13

116 Cal. App. 4th 934, 947-48 (Cal. Ct. App. 2004) (cause of action

14

for false arrest foreclosed by existence of probable cause). The

15

TAC

16

probable cause. The motion to dismiss the fifth cause of action is

17

DENIED.

sufficiently

Under California law, whether a peace officer

alleges

that

18

Plaintiff’s

was

arrested

absent

6. Sixth Cause of Action

19

Plaintiff

sixth

cause

of

action

asserts

intentional

20

infliction of emotional distress. To state a claim for intentional

21

infliction of emotional distress under California law, a claimant

22

must allege the following elements: (1) extreme or outrageous

23

conduct by the defendant with the intent to cause, or reckless

24

disregard for the probability of causing, emotional distress; (2)

25

suffering of severe emotional distress by the plaintiff; and (3)

26

the plaintiff's emotional distress is actually and proximately the

27

result of the defendant's outrageous conduct.

28

Johnson, 25 Cal. 3d 932, 946, (Cal. 1978), overruled on other
20

E.g., Agarwal v.

1

grounds in White v. Ultramar, 21 Cal. 4th 563, 574 n.4 (Cal. 1999).

2

The TAC is sufficient to allege extreme conduct by Alanis that

3

proximately caused Plaintiff to suffer severe emotional distress.

4

Accepting the TAC as true, Alanis willfully caused Plaintiff to be

5

arrested for an offense Alanis knew Plaintiff had not committed.

6

Alanis is alleged to have ignored that Plaintiff’s reports were

7

current and to have acted with conscious disregard to implied harm

8

to Plaintiff.

9

DENIED.

The motion to dismiss the sixth cause of action is

10

7. Seventh Cause of Action

11

Plaintiff contends that Alanis owed him a duty of care based

12

on the existence of a special relationship.

Under California law,

13

whether a special relationship exists is determined by examining

14

six factors: (1) the extent to which the transaction was intended

15

to affect the plaintiff; (2) the foreseeability of harm to the

16

plaintiff; (3) the degree of certainty that the plaintiff suffered

17

injury; (4) the closeness of the connection between the defendant's

18

conduct and the injury suffered; (5) the moral blame attached to

19

the defendant's conduct; and (6) the policy of preventing future

20

harm.

21

1308-1309 (E.D. Cal.1996), aff'd, 141 F.3d 1174 (9th Cir.1998).

22

The TAC is sufficient to allege a special relationship between

23

probation officer and probationer.

24

was arrested absent probable cause, the TAC sufficiently alleges a

25

negligence claim against Alanis.

26

App. 2d 742, 751 (Cal. Ct. App. 1962) (noting that probable cause

27

inquiry is essentially coextensive with negligence inquiry).

28

motion to dismiss the seventh cause of action is DENIED.

E.g., Cabanas v. Gloodt Associates, 942 F.Supp. 1295,

21

As the TAC alleges Plaintiff

See Bulkley v. Klein, 206 Cal.

The

1

8.

Eleventh Cause of Action

2

Plaintiff’s

eleventh

cause

of

action

asserts

failure

to

3

provide medical care under California Government Code section

4

845.6.

5

pertinent part:

6

California Government Code section 845.6 provides in

a public employee, and the public entity where the
employee is acting within the scope of his employment, is
liable if the employee knows or has reason to know that
the prisoner is in need of immediate medical care and he
fails to take reasonable action to summon such medical
care.

7
8
9
10

Cal. Gov. Code § 845.6.

11

on notice of facts which gave them reason to know that Plaintiff

12

was

13

prescription heart medication.

14

personnel failed to take reasonable action to summon the medical

15

care required by Plaintiff, and that the formal medical grievance

16

Plaintiff filed with jail staff was ignored until Plaintiff’s

17

condition deteriorated so far that his cellmate had to flag down a

18

nurse.

in

need

of

The TAC alleges that jail officials were

immediate

medical

care

in

the

form

of

his

The TAC also alleges that jail

The TAC states a claim under section 845.6.

19

Defendants persist in asserting arguments previously disposed

20

of in the memorandum decision regarding Plaintiff’s second amended

21

complaint.

22

now then they were at that time.

23

White,

24

dispatched these cases as follows:

25
26
27
28

and

Defendants’ meritless arguments are no more persuasive

Watson

remain

Defendants citations to Lawson,

unavailing.

The

court

previously

Defendants cite Lawson v. Superior Court, 180 Cal. App.
4th 1372, 1375, 1385 (Cal. Ct. App. 2010) for the
proposition that “under California precedent, even if
Plaintiff was denied his prescription medications, said
denial, does not amount to neglect of a serious medical
condition.”
(Motion to Dismiss at 16).
Lawson is
inapposite. Lawson concerned depravation of a pregnant
22

1
2
3
4
5
6
7
8
9
10
11
12
13
14

prisoner’s unidentified pregnancy medications and a
breast pump. Lawson did not hold that deprivation of
prescription medications is never sufficient to establish
liability under section 845.6 as a matter of law.
Rather, in Lawson, the trial court concluded that denial
of medications and a breast pump did not amount to
neglect of a serious and obvious medical condition. 180
Cal. App. 4th at 1385. Here, the facts alleged in the
SAC are sufficient to find that Alanis knew Plaintiff
needed daily doses of prescription heart medications.
Plaintiff’s need for heart medication is not analogous to
a pregnant women’s need for a breast pump and unspecified
pregnancy medications.
Defendants also cite White v. Superior Court, 225 Cal.
App. 3d 1505, 1509 (1990) in support of the contention
that “[f]ailure of a medical practitioner to prescribe or
provide necessary medications or treatment to one he is
summoned to assist cannot, within the plain meaning of
the statutory language, constitute failure to summon
medical care.” (Motion to Dismiss at 16). White is not
applicable to Plaintiff’s allegations. Plaintiff’s claim
under section 845.6 is based on his allegation that
medical care was not timely summoned, and that as a
result, he was deprived of his medication.
Plaintiff
does not allege that medical practitioner was summoned to
provide care, but then failed to prescribe or provide the
proper medication.

15
16
17
18
19
20
21
22
23
24
25
26

Finally, Defendants cite Watson v. State of California,
21 Cal. App. 4th 836, 842
(Cal. Ct. App. 1993) and
Nelson v. State of California, 139 Cal. App. 3d 72, 78-9
(Cal. Ct. App. 1982) in support of the argument that
section 845.6 contains a distinction between a public
entity employee who is “lawfully engaged in the practice
of
the
healing
arts”
and
an
employee
who
is
not...Defendant COUNTY cannot be vicariously liable for
any alleged medical malpractice of its employees.
(Motion to Dismiss at 16-17).
Defendants’ attempt to conflate Plaintiff’s cause of
action under section 845.6 (fourteenth cause of action)
with Plaintiff’s separate claim for medical malpractice
(sixteenth cause of action) is unavailing.
As
Defendants’ own authorities recognize, a claim for
medical malpractice is distinct from a claim under
section 845.6. See id. Section 845.6 expressly provides
that “a public employee, and the public entity where the
employee is acting within the scope of his employment, is
liable” for violations of section 845.6. Cal. Gov. Code
§ 845.6 (emphasis added).

27

(Doc. 21 at 21-22).

The TAC sufficiently alleges a claim under

28

California Government Code section 845.6.
23

The motion to dismiss

1

the eleventh cause of action is DENIED.
ORDER

2
3

For the reasons stated, IT IS ORDERED:

4

1)

5

(thirteenth cause of action) against Defendant Alanis is

6

DISMISSED WITHOUT PREJUDICE;

7

2)Plaintiff’s

8

PREJUDICE;

9

3)Plaintiff’s

Plaintiff’s

medical

first

second

care

cause

cause

of

of

claim

under

Section

1983

action

is

DISMISSED

WITH

action

is

DISMISSED

WITH

10

PREJUDICE;

11

4)Plaintiff’s third cause of action is DISMISSED WITHOUT

12

PREJUDICE;

13

5) Plaintiff shall file an amended complaint within fourteen

14

(14) days of electronic service of this Memorandum Decision;

15

Defendants shall file a response within ten (10) days of

16

service of the amended complaint, and

17

6) Defendants shall submit a form of order consistent with

18

this Memorandum Decision within five (5) days of electronic

19

service of this decision.

20

IT IS SO ORDERED.

21

Dated:
hkh80h

May 5, 2011

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

22
23
24
25
26
27
28
24