Gillian, et al. v. Frauenheim, et al.

Filing 21

ORDER GRANTING 19 Defendant's Motion to Dismiss and ORDER Directing Clerk to Terminate All Pending Motions and Close Case signed by Magistrate Judge Michael J. Seng on 8/19/2015. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN GILLIAN, et al.,

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Plaintiffs,

Case No. 1:15-cv-00037-MJS (PC)
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

v.

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(ECF No. 19)
CDCR, et al.,

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Defendants.

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CLERK TO TERMINATE ALL PENDING
MOTIONS AND CLOSE CASE

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I.

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PROCEDURAL HISTORY
Plaintiffs John Gillian, Mary Whitaker, James Plaisted, Alice Aaron, and Meg

Wright, individually and on behalf of the estate of David Gillian, filed this civil rights
action pursuant to 42 U.S.C. § 1983 on November 14, 2014 in the Superior Court of

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California – Fresno County. (ECF No. 1.) On January 7, 2015, Defendants California

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Department of Corrections and Rehabilitation (“CDCR”) and Scott Frauenheim, Warden

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of Pleasant Valley State Prison (“PVSP”), removed the case to federal court. 1 (ECF No.

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Plaintiffs also sue twenty unnamed Defendant Does who they allege are agents or employees of CDCR.

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1.) The parties have consented to Magistrate Judge jurisdiction. (ECF Nos. 5 & 10.)

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On February 3, 2015, Defendants moved to dismiss this action. (ECF No. 6.)
On April 27, 2015, the Court granted, in part, and denied, in part, Defendants’ motion to
dismiss. (ECF No. 15.) On June 7, 2015, Plaintiff John Gillian, alone, filed an amended
complaint against Defendants CDCR and Does 1-20. (ECF No. 17.) On July 3, 2015,
Defendant CDCR moved to dismiss the amended pleading. (ECF No. 19.) Plaintiff did
not file an opposition to the motion and the time to do so has passed. The matter is
deemed submitted. Local Rule 230(l).
II.

MOTION TO DISMISS LEGAL STANDARD
A motion to dismiss brought pursuant to Rule 12(b)(6) “tests the legal sufficiency

of a claim”, and dismissal is proper “if there is a ‘lack of a cognizable legal theory or the
absence of sufficient facts alleged under a cognizable legal theory.’”

Conservation

Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In resolving a 12(b)(6) motion, a
court’s review is generally limited to the operative pleading. Daniels-Hall v. Nat’l Educ.
Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). However, the court may also consider material
that is submitted as part of the complaint, relied upon in the complaint, or subject to
judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 668-69 (9th Cir. 2001).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570); Conservation
Force, 646 F.3d at 1242. The Court must accept the factual allegations as true and
draw all reasonable inferences in favor of the non-moving party. Daniels-Hall, 629 F.3d
at 998.

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III.

PLAINTIFF’S CLAIMS
Plaintiff John Gillian is the biological father of the deceased David Gillian

(“Gillian”), a former inmate at PVSP. He brings suit against Defendants CDCR and
Does 1-20.
Plaintiff’s allegations can be summarized essentially as follows:
On October 15, 2013, Gillian committed suicide while incarcerated at PVSP. A
Psychiatric Technician found Gillian at approximately 6:10 a.m. that morning hanging in
his cell by a piece of cloth. The Technician could not find a pulse and observed Gillian
to be “ashen and cyanotic . . . with signs of full body rigor mortis and lividity.” (ECF No.
17 at 3.) Defendant Doe 1 declared Gillian’s cell area a crime scene and closed off the
area, resulting in medical staff having limited access to him. Had medical staff been
able to enter, Gillian may have survived.
At 6:55 a.m., a Paramedic was allowed to enter the cell and declared Gillian
dead. The Coroner determined that Gillian had been hanging in his cell for a minimum
of four to eight hours prior to being brought down. Defendant Does 2 – 9 failed to
properly monitor Gillian.
Gillian was a disabled 52-year-old inmate with chronic neck and back pain and a
history of mental illness. On September 27, 2013, during a mental health screening, he
denied any mental health issues. However, in documents found among his belongings,
he noted feeling depressed and had a previous diagnosis of Major Depressive Disorder,
Recurrent, Severe, with Psychotic Features. Defendant Does 10 – 15 failed to properly
diagnose and treat Gillian for his mental health condition and suicidal ideations.
Defendant Does 15 – 20 failed to properly treat Gillian’s neck and back pain.
In a post-death review, concerns were raised regarding whether the guards
conducted appropriate counts and rounds (given the Coroner’s estimation of how long
Gillian had been hanging) and the decision to declare the area a crime scene and limit
medical personnel’s access to Gillian.

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Plaintiff and Gillian’s family members requested information regarding Gillian’s
death and were repeatedly informed the reports were not yet available, even though
they had already been prepared.

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Plaintiff seeks damages and attorney’s fees and costs.
IV.

DISCUSSION
A.

Defendant argues: 1) CDCR should be dismissed because Plaintiff John Gillian
cannot bring a § 1983 claim against a state agency; 2) Plaintiff has failed to plead he
has standing to bring suit on behalf of Gillian either as the personal representative of his
estate or as his successor in interest; 3) Plaintiff has also failed to link each John Doe
Defendant to a violation of Gillian’s constitutional rights; and, 4) Plaintiff’s allegations are
conclusory, at times contradictory, and fail to allege facts indicating that each Doe
Defendant acted with deliberate indifference.
B.

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Defendant’s Arguments

Analysis
1.

CDCR

Plaintiff does not name CDCR as a Defendant in his first cause of action under §
1983. CDCR is only named as a Defendant in the second cause of action for wrongful
death in violation of California law. Therefore, Defendant’s motion is denied in this
regard.
2.

Standing

Plaintiff pleads that he is the biological father of Gillian and that Gillian died
intestate, leaving his parents as the nearest blood relatives. However, these facts fail to
establish he has standing to bring a § 1983 claim. Survival actions under § 1983 are
only permitted to the extent that they are authorized by state law. Byrd v. Guess, 137
F.3d 1126, 1131 (9th Cir. 1998).

Under California law, “the decedent’s personal

representative or, if none, . . . the decedent’s successor in interest” has standing to
bring a survival action. Cal. Code Civ. Pro. § 377.30. Plaintiff has not pleaded that he

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is his son’s personal representative or that there is no personal representative and he is
the successor in interest. Additionally, if Plaintiff intended to bring suit as the successor
in interest, he failed to indicate in the First Amended Complaint whether he has filed the
necessary affidavit. See Cal. Code Civ. Pro. § 377.32.
Plaintiff was previously advised that he would need to demonstrate compliance
with the state law requirements in order to bring a survival action under § 1983. One
must assume that he failed to do so because he could not. No useful purpose would be
served in once again advising him of those requirements and giving him yet another
opportunity to meet them.
denied.

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Defendant’s motion is granted, and leave to amend is

3.

Failure to Protect Claims

The Eighth Amendment “protects prisoners . . . from inhumane methods of
punishment . . . [and] inhumane conditions of confinement.” Morgan v. Morgensen, 465
F.3d 1041, 1045 (9th Cir. 2006). Although prison conditions may be restrictive and
severe, prison officials must provide prisoners with adequate food, clothing, shelter,
sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 825, 832
(1994).

They also have a duty to take reasonable steps to protect inmates from

physical harm. Id. at 833.
To establish a violation of this duty, the prisoner must establish that prison
officials were “deliberately indifferent” to serious threats to the inmate's health or safety.
Id. at 834. “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391
F.3d 1051, 1060 (9th Cir. 2004). “‘If a [prison official] should have been aware of the
risk, but was not, then the [official] has not violated the Eighth Amendment, no matter
how severe the risk.’” Id. at 1057 (quoting Gibson v. Cnty. of Washoe, 290 F.3d 1175,
1188 (9th Cir. 2002)).

The prisoner must show that “the official [knew] of and

disregard[ed] an excessive risk to inmate . . . safety; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm

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exists, and [the official] must also draw the inference.” Id. at 837; Anderson v. Cnty. of
Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). To prove knowledge of the risk, the prisoner
may rely on circumstantial evidence; in fact, the very obviousness of the risk may be
sufficient to establish knowledge. Farmer, 511 U.S. at 842.

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As an initial matter, Plaintiff fails to link each Doe Defendant individually to a
violation of Gillian’s constitutional rights. See Jones v. Williams, 297 F.3d 930, 934 (9th
Cir. 2002). Plaintiff groups the Doe Defendants into four categories: Doe Defendant 1,
Doe Defendants 2-9, Doe Defendants 10-15, and Doe Defendants 15-20.

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Plaintiff also fails to plead facts demonstrating the Doe Defendants acted with
deliberate indifference. No allegations suggest that any Defendant knew that Gillian
was potentially or actually suicidal.

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Plaintiff alleges that Doe Defendant 1 failed to protect Gillian by declaring the
area a crime scene and refusing to allow CPR to be done on Gillian. However, Plaintiff
also acknowledges that prior to Doe Defendant’s actions it was determined that Gillian
did not have a pulse, was not breathing, and was “ashen and cyanotic and his skin was
dry with signs of full body rigor mortis and lividity.” (ECF No.17 at 3.) On these facts it
cannot be said that Doe Defendant 1 acted with deliberate indifference by not sooner
allowing CPR.

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Plaintiff was previously advised of the necessary elements of a failure to protect
claim and failed to include them in his Amended Complaint. His failure in this regard
may reasonably be construed as an inability to so allege. Further amendment would
therefore be pointless. Defendant’s motion is granted and leave to amend denied.
V.

CONCLUSION AND ORDER
Based on the foregoing, the Court HEREBY ORDERS that:
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Defendant’s motion to dismiss (ECF No. 19.) is granted;

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The action is DISMISSED WITH PREJUDICE for failure to state a claim;
and

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3.

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The Clerk of Court shall terminate all pending motions and CLOSE this
case.

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Dated:

August 18, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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