Lapachet v. California Forensic Medical Group, Inc. et al

Filing 65

ORDER Granting in Part and Denying in Part Defendants' 51 Motion to Dismiss signed by District Judge Dale A. Drozd on 06/01/2018. (Flores, E)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JEREMY LAPACHET,

12
13
14
15
16
17

No. 1:17-cv-01226-DAD-EPG

Plaintiff,
v.
CALIFORNIA FORENSIC MEDICAL
GROUP, INC., et al.,

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS
(Doc. No. 51)

Defendants.
This matter is before the court on defendants’ motion to dismiss. (Doc. No. 51.) On

18

December 19, 2017, a hearing on the motion was held. Attorneys Teresa Allen, Michael Haddad,

19

and Sanjay Schmidt appeared telephonically on behalf of plaintiff Jeremy Lapachet. Attorneys

20

Jemma Saunders, Jesse M. Rivera, and Jill Nathan appeared telephonically on behalf of

21

defendants. Having reviewed the parties’ briefing and heard arguments, and for the reasons that

22

follow, defendants’ motion to dismiss will be granted in part and denied in part.

23
24

BACKGROUND
Plaintiff brings this action against the County of Stanislaus (“County”), Sheriff Adam

25

Christianson (“Christianson”), California Forensic Medical Group, Inc. (“CFMG”), various

26

CFMG employees, and unidentified Stanislaus County Sheriff’s Department supervisors. In his

27

complaint, plaintiff alleges as follows. When plaintiff entered the Stanislaus County Jail on

28

December 9, 2014, he possessed the ability to walk, jog, run, and use all of his extremities freely.
1

1

(Doc. No. 1 (Compl.) at ¶ 25–26.) On or about October 26, 2015, he left the jail on a stretcher as

2

a quadriplegic, with injuries that included a fractured skull, multiple subdural hematomas, a

3

traumatic brain injury, severe spinal cord injuries, and a torn rotator cuff. (Id.) On October 24,

4

2015, around 5:50 p.m., plaintiff was placed in the jail’s “Sobering Cell” because County and

5

CFMG staff became aware that he had been injected with and was under the influence of an

6

unknown controlled substance. (Id. at ¶ 27.) Specifically, defendant Jessamae Trinidad, R.N.

7

(“Trinidad”), a CFMG employee, received a report that plaintiff had been injected with an

8

unknown substance by another inmate. (Id.) Trinidad noted three red marks in plaintiff’s right

9

AC joint, with bruising present. Plaintiff reported to Trinidad that he had experienced the effects

10

of various drugs prior to being in custody, but that the effects produced by this unknown

11

substance did not feel like any he had experienced previously. (Id.) Prior to his placement in the

12

Sobering Cell, plaintiff had also been observed to be engaging in self-harm, including punching

13

himself multiple times. (Id. at ¶ 28.) County jail staff reported this to CFMG staff. (Id.)

14

Less than an hour later, defendant Tabitha King (“King”), a CFMG employee and L.V.N.,

15

documented an “Emergency Response,” indicating that she had responded to a call for possible

16

drug use. (Id. at ¶ 29.) Defendant Lani Antonio (“Antonio”), another CFMG employee, was also

17

notified of the call. (Id.) King responded and found plaintiff sitting in a chair with handcuffs on.

18

(Id.) His symptoms included trembling, restlessness, dilated pupils, and elevated vital signs. (Id.)

19

Defendant Antonio directed that plaintiff’s vital signs be checked every six hours until he

20

stabilized. (Id.)

21

Around 8:02 p.m. that same evening, defendant Trinidad checked the Sobering Cell and

22

observed plaintiff touching his chest, pacing in his cell, and behaving restlessly. (Id. at ¶ 30.)

23

Plaintiff also complained that his lungs and chest were filling with fluid. (Id.) Rather than

24

treating plaintiff, Trinidad merely told plaintiff to “relax.” (Id.) Around 11:46 p.m., defendant

25

Judith Alejandre, L.V.N. (“Alejandre”), a CFMG employee, checked the Sobering Cell again.

26

(Id. at ¶ 31.) Defendant Alejandre took plaintiff’s vital signs, which remained elevated. (Id.)

27

Although plaintiff had been injected with an unknown substance, and had displayed elevated vital

28

signs for several hours, defendant Alejandre did not request any further medical treatment or
2

1

order a toxicology screening test. (Id.) At about midnight, plaintiff was moved from the

2

Sobering Cell to a “Safety Cell,” although the Safety Cell lacked the precautions that such cells

3

normally have. (Id.)

4

On October 25, 2015, around 5:01 a.m., plaintiff’s vital signs were checked again, and

5

remained elevated. (Id. at ¶ 35.) Defendant Veronica Berghorst, R.N. (“Berghorst”), a CFMG

6

employee, observed plaintiff and related to CFMG medical staff that plaintiff had told her “people

7

were going to get him in his cell.” (Id.) Defendant Berghorst did not order a toxicology

8

screening or request medical treatment, despite the fact that plaintiff’s vital signs had been

9

elevated for roughly 10 hours. (Id.) At 9:08 a.m., CFMG R.N. Varinder Sablok attempted to

10

perform a “Drug Withdrawal” monitoring evaluation, but did not do so because County staff at

11

the jail had removed plaintiff from his cell. (Id. at ¶ 36.)

12

Around 4:00 p.m. on October 25, 2015, defendant Amardeep Tawana L.V.N. (“Tawana”),

13

a CFMG employee, conducted a check on plaintiff to monitor the effects of the substance he had

14

taken. (Id. at ¶ 37.) At that time defendant Tawana, as well as other CFMG and County staff,

15

observed plaintiff standing beside the wall in his cell with a towel tied tightly around his left

16

wrist. (Id.) Defendant Tawana requested that County staff open the cell in order for Tawana to

17

check plaintiff’s vital signs, but County staff refused to do so. (Id.) Around 5:30 p.m. that same

18

day, CFMG staff, including defendant Tawana, were summoned for a “man down” call because

19

plaintiff was bleeding from his nose and the right side of his head. (Id. at ¶ 38.) No further

20

medical examination or treatment was performed at that time since defendant Tawana observed

21

“no visible injuries.” (Id.) At around 5:55 p.m., defendant Tawana observed plaintiff without a

22

safety garment, and with towels wrapped around his neck and hands. (Id. at ¶ 40.) CFMG’s

23

mental health R.N., defendant Grashika Devendra (“Devendra”), was notified of these

24

observations at roughly 6:10 p.m., but conducted no follow-up. (Id.)

25

Around 5:58 p.m., defendant Tawana noted that she responded to plaintiff’s cell with

26

other CFMG staff and found plaintiff lying on the floor and “bleeding from an unknown place.”

27

(Id. at ¶ 41.) Plaintiff had blood on his mouth, forehead, and both hands, and was apparently

28

using “filthy language to medical and custody staff.” (Id.) County correctional officers dragged
3

1

plaintiff out of his cell by the head and neck. (Id.) An unidentified County shift sergeant directed

2

that plaintiff be placed in a safety cell due to the risk of him injuring himself, but otherwise no

3

medical action was taken at that time. (Id.) At 6:58 p.m., defendant Tawana conducted a

4

“Suicide Watch” of plaintiff and observed him lying on the floor without a safety garment and

5

with dried blood on his face and nose. (Id. at ¶ 42.) At 11:02 p.m., defendant Tawana checked

6

on plaintiff and observed him lying flat on the floor. (Id. at ¶ 43.) Defendant Tawana scheduled

7

a mental health evaluation for the next morning, but the evaluation was never conducted. (Id.)

8

On October 26, 2015, at about 12:40 a.m., defendant Berghorst wrote a Suicide Watch

9

Report stating that plaintiff was “found laying” in the “prone position” and, according to County

10

staff, had not moved since he had been placed in the safety cell. (Id. at ¶ 45.) Plaintiff was found

11

lying in a pool of yellow and brown liquid around his face and upper body and provided with a

12

safety garment, although his breathing was reportedly labored at that time. (Id.) An examination

13

of his mouth and throat revealed the presence of blood. (Id. at ¶ 46.) At 12:49 a.m., defendant

14

Berghorst requested that the County sergeant on duty call for an ambulance. (Id.) Plaintiff’s

15

statements to treating personnel at that time indicated that he did not know where he was. (Id.)

16

Medical staff arrived at around 12:59 a.m., placed plaintiff into “full spine precautions”

17

and transported him to an emergency room. (Id. at ¶ 49.) Plaintiff arrived at the Doctors Medical

18

Center hospital at 1:39 a.m., approximately 32 hours after he was first placed in the jail’s

19

“Sobering Cell.” (Id.) After being admitted to the hospital and undergoing tests, plaintiff was

20

found to be suffering from numerous injuries including, but were not limited to, lack of feeling or

21

movement of his legs, a cervical spine fracture at the C5 vertebrae, a nondepressed skull fracture,

22

and a torn rotator cuff. (Id. at ¶ 52.) Plaintiff remains paralyzed from the neck down. (Id.)

23

In his complaint, plaintiff presents eight causes of action. On November 20, 2017,

24

defendants separately moved to dismiss the first, third, fourth, sixth, and seventh causes of

25

action.1 (Doc. No. 51.) On December 5, 2017, plaintiff filed an opposition to the motion. (Doc.

26
27
28

1

Defendants also moved to dismiss the fifth cause of action on November 17, 2017 by separate
motion. (Doc. No. 48.) Plaintiff stipulated to the dismissal of this claim on November 30, 2017.
Doc. No. 53.)
4

1

No. 54.) On December 12, 2017, defendants filed a reply. (Doc. No. 56.)

2

LEGAL STANDARD

3

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal

4

sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.

5

1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of

6

sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901

7

F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to

8

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A

9

claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

10

the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

11

Iqbal, 556 U.S. 662, 678 (2009).

12

In determining whether a complaint states a claim on which relief may be granted, the

13

court accepts as true the allegations in the complaint and construes the allegations in the light

14

most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v.

15

United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth

16

of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v.

17

Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed

18

factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me

19

accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and

20

conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S.

21

at 555. See also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action,

22

supported by mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to

23

assume that the plaintiff “can prove facts which it has not alleged or that the defendants have

24

violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal.,

25

Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

26

/////

27

/////

28

/////
5

1
2

DISCUSSION
A.

Section 1983 Claim Against Defendant Christianson
The first cause of action of plaintiff’s complaint alleges that defendants acted under color

3
4

of state law to deprive plaintiff of his Eighth Amendment right to be free of cruel and unusual

5

punishment, in violation of 42 U.S.C. § 1983. 2 To state an Eighth Amendment claim based on

6

medical treatment in prison, an inmate must show “deliberate indifference to serious medical

7

needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “In the Ninth Circuit, the test for deliberate

8

indifference consists of two parts.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing

9

McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other grounds by WMX Techs.,

10

Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). “First, the plaintiff must show a serious

11

medical need” by demonstrating that “failure to treat a prisoner’s condition could result in further

12

significant injury or the unnecessary and wanton infliction of pain.” Id. (internal quotation marks

13

and citations omitted). “Second, the plaintiff must show the defendant’s response to the need was

14

deliberately indifferent.” Id. This second prong “may appear when prison officials deny, delay

15

or intentionally interfere with medical treatment, or it may be shown by the way in which prison

16

physicians provide medical care.” Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir.

17

1988). “Liability under section 1983 arises only upon a showing of personal participation by the

18

defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citing Fayle v. Stapley, 607 F.2d

19

858, 862 (9th Cir. 1979)). Defendant Christianson seeks dismissal of this cause of action,

20

arguing that there is no allegation in plaintiff’s complaint that he personally participated in the

21

alleged constitutional violation.

22

/////

23
24
25
26
27
28

2

The court takes judicial notice of plaintiff’s sentencing on March 25, 2015 (Doc. Nos. 51-2, 513) because it is a matter of public record. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.
2001) (citing Fed. R. Evid. 201). Because plaintiff was serving a criminal sentence at the relevant
time, his claims are appropriately analyzed under the Eighth Amendment, rather than the
Fourteenth Amendment. See Castro v. County of Los Angeles, 833 F.3d 1060, 1067–68 (9th Cir.
2016) (en banc) (“Inmates who sue prison officials for injuries suffered while in custody may do
so under the Eighth Amendment's Cruel and Unusual Punishment Clause or, if not yet convicted,
under the Fourteenth Amendment's Due Process Clause.”)
6

1

In this regard, the complaint alleges that defendants knew and/or had reason to know that

2

plaintiff had been injected with a controlled substance, that he was having a reaction to that

3

substance, had unstable and elevated vital signs, and so forth. (Compl. at ¶ 67.) It is then alleged

4

that despite this knowledge, defendants were deliberately indifferent to plaintiff’s immediate and

5

serious medical needs. As detailed above, the complaint includes numerous factual allegations

6

explaining how various CFMG employees knew of plaintiff’s condition, as well as allegations as

7

to how their medical response to his condition was allegedly deficient. (See Compl. ¶¶ 27–51.)

8

However, none of these allegations reflect any act or omission on the part of defendant

9

Christianson. The only allegation against defendant Christianson appears to be that plaintiff was

10

“in the custody” of defendant Christianson, without any allegation that the two ever interacted.

11

(Id. ¶ 59.) Therefore, plaintiff’s allegation that defendant Christianson “knew and/or had reason

12

to know” of plaintiff’s condition is merely conclusory and insufficient. See Krainski v. Nev. ex

13

rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 969 (9th Cir. 2010) (dismissing a

14

complaint because plaintiff “merely alleged in a conclusory fashion that the officers ‘knew, or

15

should have known’” of the violation); Sullivan v. Biter, No. 1:15-cv-00243-DAD- SAB, 2017

16

WL 1540256, at *1 (E.D. Cal. Apr. 28, 2017) (“Conclusory allegations that various prison

17

officials knew or should have known about constitutional violations occurring against plaintiff

18

simply because of their general supervisory role are insufficient to state a claim under 42 U.S.C. §

19

1983.”).
There is no allegation in plaintiff’s complaint that defendant Christianson ever observed

20
21

plaintiff after he had ingested the unknown substance, nor is there any allegation that Christianson

22

was notified of this incident by jail staff. Finding no factual allegations that could support a claim

23

against defendant Christianson, the court will grant defendants’ motion to dismiss the first cause

24

of action against him.

25

B.

Section 1983 Claims Against County and Doe Defendants

26

In his second cause of action, plaintiff alleges a § 1983 claim against the County and

27

various Doe defendants based on the First, Fourth, and Fourteenth Amendments. (Compl. at

28

¶ 85.) Defendants have not moved for dismissal of this claim. However, at the hearing on the
7

1

pending motion plaintiff conceded that this cause of action must be dismissed as improperly

2

pleaded. Accordingly, plaintiff’s second cause of action will be dismissed with leave to amend.

3

C.

4

Monell Claim
In the third cause of action of the complaint plaintiff alleges a § 1983 claim against

5

defendant Stanislaus County pursuant to Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S.

6

658 (1978). Plaintiff also alleges a § 1983 claim against defendant Christianson on a theory of

7

supervisory liability. The court addresses each in turn.

8

It is well-established that “a municipality cannot be held liable solely because it employs a

9

tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat

10

superior theory.” Monell, 436 U.S. at 69; see also Bd. of Cty. Comm’rs of Bryan Cty. v. Brown,

11

520 U.S. 397, 403 (1997). To state a Monell claim against the County, plaintiff “must

12

demonstrate that an ‘official policy, custom, or pattern’ on the part of [the County] was ‘the

13

actionable cause of the claimed injury.’” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th

14

Cir. 2012) (quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008)). A

15

Monell claim can be established in one of three ways. See Thomas v. County of Riverside, 763

16

F.3d 1167, 1170 (9th Cir. 2014). First, a local government may be held liable when it acts

17

“pursuant to an expressly adopted policy.” Id. (citing Monell, 436 U.S. at 694); Lytle v. Carl, 382

18

F.3d 978, 982 (9th Cir. 2004). Second, a public entity may be held liable for a “longstanding

19

practice or custom.” Thomas, 763 F.3d at 1170. Such circumstances may arise when, for

20

instance, the public entity “fail[s] to implement procedural safeguards to prevent constitutional

21

violations” or when it fails to adequately train its employees. Tsao, 698 F.3d at 1143 (citing

22

Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992)); see also Connick v. Thompson, 563 U.S.

23

51, 61 (2011) (“A municipality’s culpability for a deprivation of rights is at its most tenuous

24

where a claim turns on a failure to train.”); Flores v. County of Los Angeles, 758 F.3d 1154, 1159

25

(9th Cir. 2014) (requiring a plaintiff asserting a claim based on a failure to train to allege facts

26

showing that defendants “disregarded the known or obvious consequence that a particular

27

omission in their training program would cause municipal employees to violate citizens’

28

constitutional rights”) (internal brackets omitted) (quoting Connick, 563 U.S. at 61). “Third, a
8

1

local government may be held liable under § 1983 when ‘the individual who committed the

2

constitutional tort was an official with final policy-making authority’ or such an official ‘ratified a

3

subordinate’s unconstitutional decision or action and the basis for it.’” Clouthier v. County of

4

Santa Clara, 591 F.3d 1232, 1250 (9th Cir. 2010) (quoting Gillette v. Delmore, 979 F.2d 1342,

5

1346–47 (9th Cir. 1992)), overruled on other grounds by Castro, 833 F.3d at 1070.

6

“Liability for improper custom may not be predicated on isolated or sporadic incidents; it

7

must be founded upon practices of sufficient duration, frequency and consistency that the conduct

8

has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th

9

Cir. 1996), holding modified on other grounds by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001);

10

see also Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (“A single constitutional

11

deprivation ordinarily is insufficient to establish a longstanding practice or custom.”); Cain v.

12

City of Sacramento, No. 2:17-CV-00848-JAM-DB, 2017 WL 4410116, at *3 (E.D. Cal. Oct. 4,

13

2017) (dismissing the plaintiff’s Monell claim because it alleged only a single encounter between

14

plaintiff and jail staff). Although “[i]t is difficult to discern from the caselaw the quantum of

15

allegations needed to survive a motion to dismiss a pattern and practice claim,” Gonzalez v.

16

County of Merced, No. 1:16-cv-01682-LJO-SAB, 2017 WL 6049179, at *2 (E.D. Cal. Dec. 7,

17

2017), “where more than a few incidents are alleged, the determination appears to require a fully-

18

developed factual record.” Lemus v. County of Merced, No. 1:15-cv-00359-MCE-EPG, 2016 WL

19

2930523, at *4 (E.D. Cal. May 19, 2016), aff’d, No. 16-16092, 2017 WL 4772557 (9th Cir. Oct.

20

23, 2017); see also Becker v. Sherman, No. 1:16-cv-0828-AWI-MJS (PC), 2017 WL 6316836, at

21

*9 (E.D. Cal. Dec. 11, 2017) (finding that “four assaults related to [plaintiff’s] housing

22

assignment and status as a transgender inmate . . . sufficiently alleged the existence of a CDCR

23

custom”), findings and recommendations adopted, 2018 WL 623617 (E.D. Cal. Jan. 30, 2018);

24

Bagley v. City of Sunnyvale, No. 16-CV-02250-JSC, 2017 WL 5068567, at *5 (N.D. Cal. Nov. 3,

25

2017) (“Where courts have allowed Monell claims to proceed at the motion to dismiss stage,

26

plaintiffs have pled multiple incidents of alleged violations.”).

27
28

Here, plaintiff has alleged the existence of multiple policies or customs by the County. To
take but one example, plaintiff alleges in his complaint that defendants had a policy:
9

1

To fail to properly classify, house, and/or monitor inmates suffering
from: negative or unpredictable reactions to the ingestion of a
controlled substance, mental health crises or who are at risk of selfharm and/or who pose a danger to the their own safety, including
placement on self-harm watch or suicide watch with proper suicide
precautions, including failing to consider in any way the clear and
obvious danger of placing inmates at risk of suicide in cells with
means to injure themselves (including bunk beds, horizontal bars,
clothing, and ligature materials) and without the frequent, logged
observation required by law.

2
3
4
5
6
7

(Doc. No. 1 (Compl.) at ¶ 93.) Plaintiff has also provided specific factual allegations supporting

8

the existence of this policy. As discussed in detail above, plaintiff alleges that over the course of

9

two days, multiple County and CFMG employees failed to properly monitor his health and

10

provide him with adequate medical treatment, despite his apparent need. Viewing the complaint

11

as a whole, the court finds that the complaint contains a sufficient quantum of factual allegations

12

to plausibly allege the existence of a policy or custom under Monell. Accordingly, defendants’

13

motion to dismiss the Monell claim against the County will be denied.

14

D.

Supervisory Liability Claim

15

Defendants next seek dismissal of plaintiff’s third cause of action brought against

16

defendant Christianson based upon supervisory liability. Defendants argue that plaintiff’s claims

17

are insufficiently pleaded because “[n]o information is provided as to how Sheriff Christianson

18

failed to properly supervise County subordinates, or allegedly set in motion a series of acts that he

19

knew would result in a constitutional violation.” (Doc. No. 51-1 at 23.)

20

“A defendant may be held liable as a supervisor under § 1983 ‘if there exists either (1) his

21

or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection

22

between the supervisor’s wrongful conduct and the constitutional violation.’” Starr v. Baca, 652

23

F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989)); see

24

also Larez v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir. 1991) (noting that whether a

25

supervisor in his individual capacity is liable for a failure to supervise “hinges upon his

26

participation in the deprivation of constitutional rights”). “A supervisor can be liable in his

27

individual capacity for his own culpable action or inaction in the training, supervision, or control

28

of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that
10

1

showed a reckless or callous indifference to the rights of others.” Starr, 652 F.3d at 1208

2

(quoting Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998)). If a subordinate has

3

committed a constitutional violation, the liability of a supervisor “depends upon whether he set in

4

motion a series of acts by others, or knowingly refused to terminate a series of acts by others,

5

which he knew or reasonably should have known, would cause others to inflict the constitutional

6

injury.” Blankenhorn v. City of Orange, 485 F.3d 463, 485 (9th Cir. 2007) (internal quotation

7

marks omitted) (quoting Watkins, 145 F.3d at 1093).
Here, the complaint alleges that defendant Christianson knew that plaintiff was a “serious

8
9

risk” to himself because of plaintiff’s ingesting of a controlled substance and his reaction to it.

10

(Compl. at ¶ 67.) However, as discussed with respect to plaintiff’s first cause of action,

11

conclusory allegations that a defendant “knew or should have known” of a serious risk do not

12

state a claim for relief. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Instead, a plaintiff

13

must allege facts from which it can be plausibly inferred that the defendant possessed such

14

knowledge. Burgis v. N.Y.C. Dep’t of Sanitation, 798 F.3d 63, 70 n.8 (2d Cir. 2015) (holding that

15

the plaintiff’s allegations that the defendant “knew about the discriminatory practice, without any

16

allegation as to how he knew or should have known of it is not sufficient”); Tubbs v. Warden,

17

Institutional Officials, No. C 01-843 SI(PR), 2001 WL 1256569, at *1 (C.D. Cal. Oct. 15, 2001),

18

aff’d sub nom. Tubbs v. Kelly, 46 Fed. App’x 493 (9th Cir. 2002) (“[Plaintiff’s] conclusory

19

allegations that prison officials knew or should have known that administrative segregation

20

inmates were a danger to the security of the institution is not sufficient to plead the requisite

21

mental state of actual knowledge of a risk of serious harm or injury.”).
Because plaintiff’s complaint is devoid of any factual allegations regarding defendant

22
23

Christianson, the court will dismiss the third cause of action as to him. However, plaintiff will be

24

granted leave to amend in that regard if he believes he is able to allege additional facts that will

25

cure this deficiency.

26

E.

Bane Act Claim

27

Defendants next move to dismiss plaintiff’s fourth cause of action which is brought under

28

California’s Bane Act, arguing that any such claim requires threats, intimidation, or coercion, and
11

1

that plaintiff’s allegations “fail to identify how Lapachet’s rights were interfered with by way of

2

‘threats, intimidation, or coercion,’ within the meaning of the Civil Code.” (Doc. No. 51-1 at 24.)

3

The California Bane Act protects against interference “by threat, intimidation, or

4

coercion” or an attempt to do the same “with the exercise or enjoyment by any individual or

5

individuals of rights secured by the Constitution or laws of the United States, or of the rights

6

secured by the Constitution or laws of this state.” Cal. Civ. Code § 52.1(a). “[T]he relevant

7

distinction for purposes of the Bane Act is between intentional and unintentional conduct.”

8

Dillman v. Tuolumne County, 1:13-cv-00404-LJO-SKO, 2013 WL 1907379, at *20 (E.D. Cal.

9

May 7, 2013); see also Morse v. County of Merced, No. 1:16-cv-00142-DAD-SKO, 2016 WL

10

4000406, at *1–2 (E.D. Cal. July 25, 2016). A cognizable Bane Act claim requires alleged

11

conduct that is “more egregious” than “mere negligence.” Shoyoye v. County of Los Angeles, 203

12

Cal. App. 4th 947, 958 (2012). As this court has noted, district courts in California have yet to

13

reach a consensus as to whether a plaintiff bringing a Bane Act claim for deliberate indifference

14

to serious medical needs must plead threats and coercion independent of the constitutional

15

violation. See Atayde, 2016 WL 4943959, at *7–8 (comparing M.H. v. County of Alameda, 90 F.

16

Supp. 3d 889, 898–99 (N.D. Cal. 2013), with Moreno v. L.A. Cty. Sheriff’s Dep’t, No. 2:13-cv-

17

07570-CAS(MANx), 2015 WL 4652637, at *18 (C.D. Cal. Aug. 3, 2015)). However, the

18

undersigned has concluded that threats, coercion and intimidation are inherent in deliberate

19

indifference claims, which “extend[ ] . . . ‘far beyond [an] ordinary tort claim[ ].” Atayde, 2016

20

WL 4943959, at *8 (quoting Venegas v. County of Los Angeles, 32 Cal. 4th 820, 843 (2004)).

21

Defendant cites to the decisions in Lewis v. City of Fairfield, No. 2:16-cv-01053-JAM-

22

AC, 2017 WL 633952, at *1 (E.D. Cal. Feb. 15, 2017), and Lopez v. County of Tulare, No. CV-F-

23

11-1547-LJO-BAM, 2012 WL 33244 (E.D. Cal. 2012) in contending that plaintiff cannot allege a

24

cognizable Bane Act claim here. (Doc. No. 16-1 at 5–6.) In Lewis, the district court concluded

25

that a plaintiff cannot premise a Bane Act claim on a deliberate indifference theory. 2017 WL

26

633952, at *6. In Lopez, the court concluded that “[i]ncarceration coupled with deliberate

27

indifference to medical and psychiatric needs does not constitute ‘threats, intimidation, or

28

coercion’ for purposes of section 52.1.” 2012 WL 33244, at *11. The undersigned has
12

1

considered these decisions but comes, as have other district courts, to the opposite conclusion and

2

therefore reaffirms its prior holding and reasoning. Plaintiffs bringing Bane Act claims for

3

deliberate indifference to serious medical needs must only allege prison officials “knowingly

4

deprived [them] of a constitutional right or protection through acts that are inherently coercive

5

and threatening,” such as housing a prisoner in an inappropriate cell, failing to provide treatment

6

plans or adequate mental health care, and failing to provide sufficient observations. Atayde, 2016

7

WL 4943959, at *8, n.1.

8

“Where the state’s highest court has not decided an issue, the task of the federal courts is

9

to predict how the state high court would resolve it.” Dimidowich v. Bell & Howell, 803 F.2d

10

1473, 1482 (9th Cir. 1986). The California Supreme Court has not resolved this issue, and its

11

recent discussion of Civil Code § 52.1 suggested the statute should be read broadly. Venegas, 32

12

Cal. 4th at 842–43 (emphasis omitted) (holding § 52.1 does not require the victim to be targeted

13

because of “an actual or perceived class or characteristic”). In addition, the Ninth Circuit recently

14

held that Bane Act claims based on the alleged excessive use of force need not allege a “threat,

15

intimidation or coercion” that is “transactionally independent from the constitutional violation

16

alleged.” Reese v. County of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018). In so holding,

17

the Ninth Circuit in Reese relied upon a decision by the California Court of Appeal finding that in

18

the context of Bane Act claims based upon allegations of unlawful arrest, “there is no need for a

19

plaintiff to allege a showing of coercion independent from the coercion inherent in the seizure or

20

use of force.” Cornell v. City & County of San Francisco, 17 Cal. App. 5th 766, 802 n.31 (2017),

21

as modified (Nov. 17, 2017) (citing Morse v. County of Merced, No. 1:16–cv–00142–DAD–SKO,

22

2016 WL 3254034, at *12 (E.D. Cal. June 13, 2016); Mann v. County of San Diego, 147 F. Supp.

23

3d 1066, 1092 (S.D. Cal. 2015); Simmons v. Superior Court of San Diego Cty., 7 Cal. App. 5th

24

1113, 1126 (2016)). Although Reese and Cornell did not involve Bane Act claims based upon

25

allegations of deliberate indifference as leveled by plaintiff in this case, the logic of those

26

decisions is fully applicable here. See Scalia v. County of Kern, No. 1:17-cv-01097-LJO-SKO,

27

2018 WL 1726616, at *12 (E.D. Cal. Apr. 10, 2018) (finding that the court’s analysis in Cornell

28

with respect to threats, intimidation and coercion “appl[ies] to all Bane Act claims”). The
13

1

decision in Cornell also cited with approval to M.H., 90 F. Supp. 3d at 898–99, where the district

2

court held that a prisoner who alleges deliberate indifference to serious medical need not allege

3

threats, coercion, and intimidation independent of that deliberate indifference to state a Bane Act

4

claim. See Cornell, 17 Cal. App. 5th at 802 n.31. The undersigned finds these authorities to be

5

persuasive in the context of this case.
However, as defendants point out, plaintiff’s claims against defendant Christianson must

6
7

still be dismissed if plaintiff has not alleged sufficient facts. (See Doc. No. 56 at 7.) As discussed

8

above with respect to plaintiff’s § 1983 claims, his complaint includes no factual allegations

9

against defendant Christianson. The court will therefore dismiss the Bane Act claim against

10

defendant Christianson for failure to state a claim.
Defendants advance an alternative argument as to why dismissal of plaintiff’s Bane Act

11
12

claim against the County is appropriate. In this regard, defendants rely on California Government

13

Code § 844.6, which states that “a public entity is not liable for . . . [a]n injury to any prisoner.”

14

Cal. Gov’t Code § 844.6(a)(2); see also Towery v. State, 14 Cal. App. 5th 226, 236 (2017)

15

(finding that the Bane Act does not create an exception to statutory immunity under § 844.6).

16

Under this provision, defendants argue that the County is immune from plaintiff’s Bane Act

17

claim.
In response, plaintiff cites California Government Code § 815.2, which provides that “[a]

18
19

public entity is liable for injury proximately caused by an act or omission of an employee of the

20

public entity within the scope of his employment if the act or omission would, apart from this

21

section, have given rise to a cause of action against that employee or his personal representative.”

22

Cal Gov’t Code § 815.2(a). Plaintiff argues that his complaint contains sufficient allegations

23

against defendant Christianson so as to impose liability on the County. This argument is

24

unavailing because, as already discussed above, plaintiff’s complaint contains no factual

25

allegations against defendant Christianson.3 There is therefore nothing in the complaint that

26

plausibly alleges that defendant Christianson’s acts or omissions “proximately caused” plaintiff’s

27
28

3

Defendant Christianson is the only named defendant in this action who is also a County
employee.
14

1

injury. Id. Since § 815.2 does not provide an exception to § 844.6 on the facts alleged in

2

plaintiff’s complaint, the court will grant defendants’ motion to dismiss the Bane Act claim as to

3

the County.

4

F.

5

Claim Under California Government Code § 845.6
Defendants next move to dismiss the sixth cause of action of the complaint, which alleges

6

a violation of California Government Code § 845.6. To state a claim for relief under § 845.6, a

7

prisoner must allege facts establishing three elements: (1) the public employee knew or had

8

reason to know of the need (2) for immediate medical care, and (3) failed to reasonably summon

9

such care. Jett, 439 F.3d at 1099 (citing Cal. Gov’t Code § 845.6). “Liability under section 845.6

10

is limited to serious and obvious medical conditions requiring immediate care.” Id. Defendants

11

argue that the monitoring of plaintiff once he was placed in the jail’s Sobering Cell constituted

12

the summoning of medical care, thereby preventing liability under § 845.6.

13

Under California law, “once an inmate is receiving medical care, § 845.6 does not create a

14

duty to provide adequate or appropriate care.” Resendiz v. County of Monterey, No. 14-CV-

15

05495-LHK, 2015 WL 7075694, at *8 (N.D. Cal. Nov. 13, 2015) (citing Watson v. State, 21 Cal.

16

App. 4th 836, 841–43 (1993)). Liability under § 845.6 attaches only when an employee fails to

17

summon medical care; the failure to provide further treatment, or to ensure further diagnosis or

18

treatment, is not actionable under § 845.6. Castaneda v. Dep’t of Corr. & Rehab., 212 Cal. App.

19

4th 1051, 1072 (2013). “Thus, once a prisoner is receiving medical care, prison employees are

20

under no further obligation under § 845.6.” Pajas v. County of Monterey, No. 16-CV-00945-

21

LHK, 2016 WL 3648686, at *12 (N.D. Cal. July 8, 2016); see also Castaneda, 212 Cal. App. 4th

22

at 1070 (“Section 845.6 is very narrowly written to authorize a cause of action against a public

23

entity for its employees’ failure to summon immediate medical care only, not for certain

24

employee’s malpractice in providing that care.”).

25

Here, the complaint alleges that on October 24, 2015, less than an hour after being placed

26

in the Sobering Cell, defendant King went to plaintiff’s Sobering Cell in response to a call of

27

possible drug use. (Compl. at ¶ 29.) Plaintiff was then treated by defendants King and Antonio,

28

both medical professionals. (Id.) Plaintiff’s vital signs were checked, and he was placed on
15

1

“drug withdrawal monitoring.” (Id.) The court finds that based on these allegations of the

2

complaint, public employees were “summoned” to treat plaintiff within the meaning of § 845.6.

3

Plaintiff argues that despite this monitoring, his claim under § 845.6 should not be

4

dismissed because plaintiff “was neither transported to an inpatient medical or psychiatric care

5

facility, nor placed in a proper safety cell on suicide.” (Doc. No. 54 at 32–33.) These arguments

6

go merely to the adequacy of the medical response, and California law is clear that inadequate

7

medical treatment does not provide the basis for asserting a claim under § 845.6 as long as

8

medical treatment was in fact provided. Because the complaint alleges that medical care was

9

summoned to treat plaintiff soon after he was placed in the jail’s Sobering Cell, the court will

10

grant defendants’ motion to dismiss plaintiff’s sixth cause of action with leave to amend.

11

G.

Negligence Claim
Finally, defendants move for dismissal of plaintiff’s negligence cause of action brought

12
13

against defendants County and Christianson. The County argues it is immune from all negligence

14

actions, and that the complaint fails to state claim against defendant Christianson. The court

15

addresses each argument in turn.

16

1.

Defendant County

17

The County argues that it is “expressly immune for any tort injury to prisoners under Gov.

18

Code § 844.6.” (Doc. No. 51-1 at 31.) That provision states that “notwithstanding any other

19

provision of this part . . . a public entity is not liable for . . . [a]n injury to any prisoner.” Cal.

20

Gov’t Code § 844.6(a)(2).4
At oral argument, plaintiff’s counsel conceded that § 844.6 barred all state law claims

21
22

against the County except for those claims based on a failure to summon medical care under

23

§ 845.6. As discussed above, reliance on § 845.6 is unavailing because, on the facts alleged,

24

medical care was in fact summoned. The court will therefore dismiss plaintiff’s negligence claim

25

against the County.

26
27
28

4

That statute also recognizes multiple exceptions to that immunity, such as Government Code §§
814, 814.2, 845.4, and 845.6. See, e.g., Matysik v. County of Santa Clara, No. 16-CV-06223LHK, 2018 WL 732724, at *15 (N.D. Cal. Feb. 6, 2018).
16

1

2.

2

The court turns next to plaintiff’s negligence claim brought against defendant

Defendant Christianson

3

Christianson. In California, the elements of a cause of action for negligence are: (1) a legal duty

4

to use reasonable care; (2) breach of that duty; and (3) proximate cause between the breach and

5

(4) the plaintiff’s injury. Mendoza v. City of Los Angeles, 66 Cal. App. 4th 1333, 1339 (1998)

6

(citation omitted).

7

Here, plaintiff’s complaint does not allege any facts suggesting that defendant

8

Christianson took any action with respect to plaintiff. There is nothing from which the court

9

could plausibly infer that defendant Christianson was aware of plaintiff, let alone that he was

10

aware of plaintiff’s need for medical attention and failed to respond appropriately to it.

11

Therefore, the court is unable to discern what actions defendant Christianson allegedly took or

12

failed to take that constituted a breach of any duty owed to plaintiff. Plaintiff’s negligence claim

13

against defendant Christianson must therefore be dismissed as well.

14

CONCLUSION

15

For all of the reasons set forth above:

16

1.

Defendants’ motion to dismiss (Doc. No. 51) is granted in part and denied in part;

17

2.

Plaintiff’s first, third, fourth, and seventh causes of action are dismissed as to

18

defendant Christianson, plaintiff’s second and sixth causes of action are dismissed

19

in their entirety, and plaintiff’s fourth cause of action is dismissed with respect to

20

defendant Stanislaus County.

21

3.

Each of these causes of action is dismissed with leave to amend and if plaintiff

22

elects to file an amended complaint in an attempt to cure the noted deficiencies, he

23

shall file and serve has amended complaint within twenty-eight days of the date of

24

this order; and

25

/////

26

/////

27

/////

28

/////
17

1

4.

Stanislaus” is a defendant in this case rather than the “County of Alpine.”

2
3
4
5

The Clerk of Court is directed to correct the docket to reflect that the “County of

IT IS SO ORDERED.
Dated:

June 1, 2018
UNITED STATES DISTRICT JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
18