Simmons v. Rodriguez, et al.

Filing 25

ORDER signed by District Judge John A. Mendez on 05/04/16 ORDERING that defendant's 7 Motion to Dismiss is GRANTED; Plaintiff's wrongful death, negligence, and IIED claims are DISMISSED with prejudice. Plaintiffs § 1983 claims are DISMISSED WITH LEAVE TO AMEND. Plaintiff's amended complaint, if any, must be filed within 20 days; defendants' responsive pleading is due within 20 days thereafter. (Benson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Rachel Simmons,

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1:15-cv-00818-JAM-EPG

Plaintiff,

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No.

v.

ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

Correctional Officer
Rodriguez, et al.,

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Defendants.
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Plaintiff Rachel Simmons (“Plaintiff”) filed this action

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against Defendants Correctional Officers Rodriguez and Hall

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(“Defendants”) on May 28, 2015 (Doc. #1).

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dismiss Plaintiff’s complaint (Doc. #7).

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motion (Doc #15). 1

Defendants move to
Plaintiff opposes the

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I.

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The Court takes the following facts, alleged by Plaintiff,

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

as true for purposes of this motion.

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for April 5, 2016.
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Armando Simmons (“Mr. Simmons”), Plaintiff’s late husband,

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was being housed in Administrative Segregation at Avenal State

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Prison.

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Defendants to his cell and told them that he had swallowed some

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drugs and needed medical attention.

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Mr. Simmons.

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first called to the officers, Defendants told Mr. Simmons to take

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off his clothing.

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his cell and put Mr. Simmons in a cage while Defendants searched

Compl. ¶ 3.

Id.

On May 30, 2013, Mr. Simmons called

Id.

Defendants laughed at

About thirty minutes after Mr. Simmons had

Id.

Defendants then removed Mr. Simmons from

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his cell.

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the cage where he was naked and handcuffed.

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five minutes after Mr. Simmons was placed in the cage, nurses

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came to escort Mr. Simmons out of the facility.

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was taken to Coalinga Regional Medical Center, where he was

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pronounced dead of an acute methamphetamine overdose.

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Id.

Mr. Simmons hollered and twitched on the floor of
Id.

About forty-

Id.

Mr. Simmons

Id.

Plaintiff’s Complaint named Officer Rodriquez, Officer Hall

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and Sergeant Luis as defendants (Doc. #1) and includes five

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causes of action: (1) violation of the Eighth Amendment pursuant

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to 42 U.S.C. § 1983, (2) wrongful death, (3) negligence,

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(4) conspiracy, and (5) intentional infliction of emotional

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distress (“IIED”). 2

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dismissed Sergeant Luis from this action without prejudice (Doc.

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#20).

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before the Court (Doc. #7).

Compl. at 5-9.

Plaintiff voluntarily

Defendants Rodriguez and Hall’s motion to dismiss is now

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Plaintiff includes both her conspiracy and IIED claims under
the heading “Fourth Cause of Action.” Compl. at 9. Conspiracy
and IIED are two separate causes of action, and thus the Court
will refer to conspiracy as Plaintiff’s fourth cause of action
and IIED as Plaintiff’s fifth cause of action.
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II.

OPINION

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A.

Request for Judicial Notice

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Defendants ask the Court to take judicial notice of the

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following: (1) the California Victim Compensation and Government

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Claims Board (“VCGCB”) claim file for plaintiff Rachel Simmons

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(Claim No. G614531, attached to Defendants’ Request for Judicial

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Notice [“RJN”] as Exh. A); (2) the fact that the VCGCB received

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Plaintiff’s claim on November 7, 2013 (Exh. A); (3) the fact

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that the VCGCB mailed its rejection of Plaintiff’s claim to

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Plaintiff’s counsel, Julia Young, on December 20, 2013 (id.);

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and (4) the fact that Plaintiff’s Claim No. G614531 is the only

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government claim relating to the death of Armando Simmons that

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Plaintiff presented to the VCGCB before this lawsuit was filed

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(Declaration of VCGCB custodian of records Katrina de Caro,

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attached to RJN as Exhibit B).

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RJN at 2.

A court may take judicial notice of a fact that is not

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reasonably disputed if it “can be accurately and readily

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determined from sources whose accuracy cannot reasonably be

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questioned.”

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courts may consider “matters of public record.”

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Advisors Inc. v. Schwab Inv., 779 F.3d 1036, 1042 (9th Cir.

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2015) (quoting Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038

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(9th Cir. 2010)).

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and reports of administrative agencies.

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673269, at *6 n.6 (E.D. Cal. Feb. 17, 2015) (citing United

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States v. 14.02 Acres of Land More or Less in Fresno Cty., 547

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F.3d 943, 955 (9th Cir. 2008)).

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Fed. R. Evid. 201(b)(2).

On a motion to dismiss,
Northstar Fin.

“Matters of public record” include records
Enciso v. Moon, 2015 WL

The Court takes judicial notice of Rachel Simmons’ VCGCB
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claim file because it is a matter of public record not subject

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to reasonable dispute.

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the facts that Plaintiff’s government claim is dated November 7,

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2013, and the letter rejecting Plaintiff’s claim is dated

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December 20, 2013.

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The Court also takes judicial notice of

A court may also take judicial notice “that an authorized

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custodian of records for the VCGCB conducted a search of the

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VCGCB’s records” and of the results of that search.

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Hedgpeth, 2014 WL 3884287, at *6 (N.D. Cal. Aug. 7, 2014).

Martin v.

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Thus, the Court takes judicial notice of the fact that Ms. de

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Caro conducted a search of the VCGCB records and found only

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Rachel Simmons’ Claim No. G614531 and no other claims related to

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the May 2013 death of Mr. Simmons.

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B.

Evidentiary Objections

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Defendants object to the declaration of Rachel Simmons

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attached to Plaintiff’s opposition memorandum (Doc. #23).

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Defendants object to the sentence in which Plaintiff states that

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she is Mr. Simmons’ successor in interest on the grounds that a

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lay witness cannot offer legal conclusions and that California

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Code of Civil Procedure (“CCP”) section 377.32 requires facts to

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support such a statement.

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1.

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accompany a declaration that states that the declarant is the

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decedent’s successor in interest.

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§ 377.32(a)(5).

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beneficiary of the decedent's estate or other successor in

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interest who succeeds to a cause of action.”

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Plaintiff attached her marriage certificate and Mr. Simmons’

Defendants’ Objections (Doc. #23) at

Section 377.32 requires “facts in support thereof” to

Cal. Civ. Proc. Code

‘“[D]ecedent's successor in interest” means the

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Id. § 377.11.

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death certificate to her declaration, but the marriage and death

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certificates alone do not prove that Plaintiff is Mr. Simmons’

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successor in interest.

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documents attached indicate whether Mr. Simmons had any other

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family members who may be the beneficiary of Mr. Simmons’

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estate.

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of any other individuals—is Mr. Simmons’ “successor in

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interest.”

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declaration of Rachel Simmons.

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Neither Plaintiff’s declaration nor any

Plaintiff has failed to prove that she—to the exclusion

Thus, the Court strikes paragraph 3 of the

Defendants also argue that the Court should strike

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Plaintiff’s declaration in its entirety because the declaration

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does not contain several elements required by CCP section

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377.32.

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that Plaintiff fails to include in her declaration some

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statements and pieces of information required by section 377.32.

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See Cal. Civ. Proc. Code § 377.32.

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cite any authority, and the Court is aware of none, which

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requires the Court to strike a declaration in its entirety

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simply because it lacks certain information.

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consider Plaintiff’s declaration sufficient to establish that

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she is Mr. Simmons’ successor in interest.

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insufficient as a 377.32 affidavit, the declaration does not

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violate any evidentiary rules.

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Defendants’ motion to strike Plaintiff’s declaration in full and

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strikes only paragraph 3.

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///

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///

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///

Defendants’ Objections at 2.

Defendants are correct

Defendants do not, however,

The Court does not

But while

Thus, the Court denies

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C.

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Analysis
1.

First Cause of Action: Eighth Amendment Violation
Pursuant to 42 U.S.C. § 1983

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Plaintiff brings her § 1983 claim on behalf of herself and

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her late husband, Mr. Simmons.

Plaintiff alleges that

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Defendants deprived “plaintiff decedent” of his Eighth Amendment

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right against cruel and unusual punishment by failing to provide

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Mr. Simmons with medical treatment.

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also alleges that Defendants violated “plaintiff’s right to a

Compl. ¶¶ 18-22.

Plaintiff

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familiar relationship with decedent, without due process of

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law.”

Id. ¶ 22.

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In a § 1983 action, “[t]he party seeking to bring a

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survival action bears the burden of demonstrating that a

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particular state's law authorizes a survival action and that the

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plaintiff meets that state's requirements for bringing a

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survival action.”

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159 F.3d 365, 369 (9th Cir. 1998).

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statute, “violations of personal civil rights may be brought by

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decedent’s . . . successor in interest.”

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of Kern, 2007 WL 3341593, at *2 (E.D. Cal. Nov. 8, 2007).

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person who seeks to commence an action . . . as the decedent's

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successor in interest . . . shall execute and file an affidavit

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or a declaration under penalty of perjury.”

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Code § 377.32.

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include several specific statements and pieces of information.

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Id.

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proceeding is now pending in California for administration of

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the decedent's estate.”

Moreland v. Las Vegas Metro. Police Dep't,
Under California’s survival

Chang Heum Lee v. Cty.
“The

Cal. Civ. Proc.

Section 377.32 requires the declaration to

For example, the declaration must state that “[n]o

Id.
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Plaintiff filed a declaration stating that she is the

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surviving spouse of Mr. Simmons.

Declaration of Rachel Simmons

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“Simmons Decl.” ¶ 2.

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declaration is insufficient to establish that she is Mr.

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Simmons’ successor in interest because her declaration does not

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include several of the elements required by section 377.32.

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Memorandum of Points and Authorities in Support of Motion to

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Dismiss (“Mot.”) at 4.

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declaration lacks several elements required by CCP section

Defendants argue that Plaintiff’s

Defendants are correct: Plaintiff’s

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377.32 and facts to support the statement that she is decedent’s

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successor in interest.

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she is Mr. Simmons’ successor in interest, and she therefore

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cannot bring a § 1983 survivor action.

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may be able to submit a sufficient section 377.32 affidavit, so

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Plaintiff’s first cause of action is dismissed with leave to

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amend.

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1052 (9th Cir. 2003) (“Dismissal with prejudice and without

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leave to amend is not appropriate unless it is clear . . . that

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the complaint could not be saved by amendment.”).

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Plaintiff has failed to establish that

Nevertheless, Plaintiff

See Eminence Capital, LLC v. Aspeon Inc., 316 F.3d 1048,

2.

Second, Third, and Fifth Causes of Action: State
Law Claims

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Plaintiff’s second, third, and fifth causes of action are

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for wrongful death, negligence, and IIED, respectively.

Compl.

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at 7-9.

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section 377.60.

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“decedent’s surviving spouse” may assert “[a] cause of action for

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the wrongful death of [the decedent] caused by the wrongful act

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or neglect of another.”

Plaintiff brings her wrongful death claim under CCP
Id. ¶ 25.

Section 377.60 states that a

Cal. Civ. Proc. Code § 377.60.
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Plaintiff’s negligence and IIED claims also arise under

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California state law.

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Admin., 2014 WL 1883939, at *7 (E.D. Cal. May 12, 2014)

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(“[N]egligence is a state law claim.”); Ware v. McDonald, 2013 WL

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1499437, at *3 (E.D. Cal. Apr. 10, 2013) (“[I]ntentional

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infliction of emotional distress is a state law claim.”).

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Additionally, for each state law claim, Plaintiff must comply

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with the California Government Tort Claims Act (“CTCA”).

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Bremer v. Cty. of Contra Costa, 2015 WL 5158488, at *4 (N.D. Cal.

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Sept. 2, 2015) (dismissing wrongful death claim brought under CCP

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§ 377.60 for failure to allege compliance with the CTCA); Elliot

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v. Readdy, 2013 WL 1281804, at *13 (E.D. Cal. Mar. 27, 2013)

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(“[A] state negligence claim is subject to compliance with the

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claim presentation requirements of the California Government Tort

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Claims Act.”); Dowell v. Contra Costa Cty., 928 F. Supp. 2d 1137,

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1151 (N.D. Cal. 2013) (stating that IIED claims are subject to

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the CTCA).

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See Fid. Nat. Title Co. v. U.S. Small Bus.

See

The CTCA requires that any tort claim against a public

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entity or its employees be presented to the VCGCB no more than

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six months after the cause of action accrues.

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Schwarzenegger, 2010 WL 430818, at *5 (E.D. Cal. Jan. 28, 2010).

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If the VCGCB rejects the claim, the plaintiff has “six months

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from the date the rejection [is] mailed to file a lawsuit

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regarding the claim.”

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2353525, at *5 (E.D. Cal. Jun. 9, 2010) (citing Cal. Gov’t Code

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§ 945.6(a)(1)).

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Lemire v.

Wade v. Fresno Police Dep’t, 2010 WL

Defendants argue that Plaintiff’s state law claims are
barred by the limitations period imposed by California Government
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Code section 945.6.

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are not time-barred because she submitted her claim to the VCGCB

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within six months of the death of Mr. Simmons.

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Plaintiff did indeed comply with the requirement to submit a

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government claim to the VCGCB within six months of the accrual of

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the cause of action.

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six-month timeline is not at issue here.

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Plaintiff complied with the timeline imposed by section

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945.6(a)(1), which requires that a plaintiff file a lawsuit

Mot. at 3.

Plaintiff argues that her claims

Opp. at 1.

See Cal. Gov’t Code § 911.2(a).

But, that

The issue is whether

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within six months of receiving a notice of rejection from the

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state agency.

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See id. § 945.6(a)(1).

Here, Plaintiff’s attorney received a written notice from

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the VCGCB on December 20, 2013 stating that it had rejected

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Plaintiff’s claim.

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that Plaintiff had six months to file a court action on her

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rejected claim.

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did not file this action until May 28, 2015, almost a year and a

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half after she received the notice rejecting her claim.

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Plaintiff failed to comply with the CTCA.

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third, and fifth causes of action are therefore dismissed with

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prejudice.

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7282904, at *9 (E.D. Cal. Nov. 18, 2015) (“[F]ailure to file a

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claim within the statute of limitations provided by the CGCA is

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grounds for dismissal with prejudice.”); Taylor v. City of E.

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Palo Alto, 2012 WL 5511024, at *1 (Cal. Ct. App. Nov. 14, 2012)

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(affirming trial court’s dismissal with prejudice of claims which

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were untimely under section 945.6).

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Exh. A to RJN.

The notice explicitly stated

Id. (citing Cal. Gov’t Code § 945.6).

Plaintiff

Thus,

Plaintiff’s second,

See Mohsin v. Cal. Dep't of Water Res., 2015 WL

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3.

Fourth Cause of Action: Conspiracy

Plaintiff does not make clear whether she brings her

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conspiracy claim pursuant to California state law or § 1983.

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discussed with regard to Plaintiff’s state law claims, any state

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law conspiracy claim is barred by Plaintiff’s failure to comply

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with the six-month limitation period imposed by Government Code

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section 945.6(a)(1).

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conspiracy claim pursuant to § 1983.

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As

Thus, Plaintiff is limited to bringing a

To prevail on a conspiracy claim under § 1983, a plaintiff

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must show “specific facts to support the existence of the claimed

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conspiracy.”

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1989).

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existence of an express or implied agreement among the

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defendant[s] to deprive [the plaintiff] of his constitutional

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rights, and (2) an actual deprivation of those rights resulting

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from that agreement.”

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(C.D. Cal. 2007), aff'd, 596 F.3d 583 (9th Cir. 2010).

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Plaintiff has not pled the “existence of an express or implied

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agreement” between the Defendants to deprive her or her late

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husband of any constitutional rights.

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claim, to the extent that it is brought under § 1983, is

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dismissed with leave to amend.

Burns v. Cty. of King, 883 F.2d 819, 821 (9th Cir.

The elements of conspiracy under § 1983 are: (1) “the

Avalos v. Baca, 517 F. Supp. 2d 1156, 1169
Here,

Plaintiff’s conspiracy

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III.

ORDER

For the reasons set forth above, the Court GRANTS

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Defendant’s Motion to Dismiss.

Plaintiff’s wrongful death,

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negligence, and IIED claims are dismissed with prejudice.

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Plaintiff’s § 1983 claims are dismissed with leave to amend.
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Plaintiff’s amended complaint, if any, must be filed within

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twenty (20) days of the date of this order.

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responsive pleading is due within twenty (20) days thereafter:

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IT IS SO ORDERED.
Dated: May 4, 2016

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Defendants’