Lemire et al v. State of California et al

Filing 66

ORDER signed by Judge Garland E. Burrell, Jr. on 01/27/10 ORDERING that dfts' 61 Motion to Dismiss is GRANTED in its entirety as follows: plfs' first claim against the CDCR is DISMISSED w/o leave to amend; plfs' claims against all df ts in their official capacities are DISMISSED w/leave to amend; the portion of claim plfs' first claim, in which plfs allege dfts Schwarzenegger, Tilton, Carey, Sisto, and Traquina were deliberately indifferent in violation of the 8th Amendment is DISMISSED w/leave to amend; plfs' second claim against dfts Schwarzenegger, Tilton, Martinez, Nuehring, Orrick, and Wong is DISMISSED w/ leave to amend; plfs' third claim is DISMISSED w/leave to amend; plfs' fourth claim is DISMISSE D w/o leave to amend; plfs' fifth through eighth claims are DISMISSED w/leave to amend; plfs have 20 days to file a fifth amended complaint addressing the deficiencies discussed in this Order that they have been granted leave to amend. (Benson, A.)

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*

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

SHELLY LEMIRE, individually and as a personal representative for the ESTATE OF ROBERT ST. JOVITE, GERARD CHARLES ST. JOVITE, and NICOLE ST. JOVITE,

) ) ) ) ) ) Plaintiffs, ) ) v. ) ) ARNOLD SCHWARZENEGGER, CALIFORNIA ) DEPARTMENT OF CORRECTIONS AND ) REHABILITATION, JAMES E. TILTON, ) TOM L. CARY, D.K. SISTO, REBECCA ) CAHOON, ALFREDO ALCARAZ, RAYMOND ) WADE, CHERYL ORRICK, GALE MARTINEZ,) GORDON WONG, JAMES NUEHRING, ) SHABREEN HAK, ALVARADO TRAQUINA, ) ALFREDO NORIEGA, JOHN M. DUSAY, ) C. HOLLIDAY, JAIME CHUA, DODIE ) HICKS, ) ) Defendants. ) )

2:08-cv-00455-GEB-EFB ORDER GRANTING DEFENDANTS' MOTION TO DISMISS*

On December 15, 2009, Defendants filed a motion to dismiss Plaintiffs' Fourth Amended Complaint ("FAC") for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Plaintiffs

allege the following claims in their FAC: (1) deliberate indifference

argument.

This matter is deemed suitable for decision without oral E.D. Cal. R. 230(g). 1

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under 42 U.S.C. § 1983 in violation of the Eighth and Fourteenth Amendments against all Defendants in their individual capacities; (2) supervisory liability under 42 U.S.C. § 1983 for promulgating unconstitutional policies and customs in violation of the Eighth Amendment against Defendants Schwarzenegger, Tilton, Carey, Sisto, Traquina, Nuehring, Wong, Martinez, and Orrick in their individual capacities; (3) supervisory liability under 28 U.S.C. § 1983 for negligent hiring and failure to train and supervise against Defendants Schwarzenegger, Tilton, Carey, Sisto, Traquina, Nuehring, Wong, Martinez, and Orrick in their individual capacities; (4) violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12010 and section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794 against Defendants Schwarzenegger, Tilton, Carey, Sisto, Traquina, Nuehring, Wong, Martinez, and Orrick in their individual capacities; (5) state law negligence and wrongful death against all Defendants; (6) medical malpractice against Defendants California Department of Corrections and Rehabilitation ("CDCR"), Hak, Traquina, Noriega, Dusay, and Hicks; (7) failure to summon medical care under California Government Code sections 844.6 and 845.6 against all Defendants; and (8) civil rights violations under California Unruh Act, California Civil Code section 51, against all Defendants. Defendants seek dismissal of CDCR and all

official capacity claims, dismissal of Defendants Schwarzenegger, Tilton, Carey, Sisto, and Traquina from the first claim, dismissal of Defendants Schwarzenegger, Tilton, Martinez, Nuehring, Orrick, and Wong from the second claim, and dismissal of the third through eighth claims. // // 2 For the following reasons, the dismissal motion is GRANTED.

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I.

Allegations Contained in Plaintiffs' Fourth Amended Complaint Robert St. Jovite ("Robert") was found dead in his prison

cell at the California State Prison-Solano ("CSP-Solano") by his cellmate, John Lee Harden, at approximately 3:10 p.m. on May 10, 2006. (FAC 1:21-24, ¶ 27.) Robert was a mentally ill inmate housed in the (FAC 1:22-25.)

medical unit in CSP-Solano at the time of his death.

Robert suffered from chronic pain and mental health problems throughout his incarceration at CSP-Solano. (FAC ¶ 26.) Robert and

his mother, Plaintiff Sherie Lemire, requested "medical and mental health assessment, care, and treatment" for Robert during his incarceration. (Id.) These requests were only "partially-effective," (Id.) On March

"wholly ineffective," or were "completely ignored."

29, 2006, Robert submitted a Health Care Services Request in which he requested "further medical treatment." (Id.)

When Robert's cellmate Harden found Robert on May 10, 2006, Robert was hanging by a bed sheet wrapped around his neck from a ceiling vent above the toilet. (FAC ¶ 27.) Harden "got [Robert] down

to the ground," began calling for help, and performed cardiopulmonary resuscitation (CPR) on Robert. (FAC ¶¶ 27-28.) Harden yelled to (FAC ¶ 28.) Cahoon

Corrections Officer Rebecca Cahoon to "hurry up."

then "stopped for several minutes" and stated, "Nobody tells me to hurry up." (FAC ¶ 28.) After Cahoon arrived, she stated "I'm not

medical I don't respond to man down calls when [i]nmates bang on doors." (Id.) Cahoon did not immediately signal the tower to ask for (Id.) Cahoon then (Id.) Harden

assistance and did not perform CPR on Robert.

stated to Harden, "it's all done, come out of there." was then handcuffed and removed from the area. (Id.)

Defendants

Orrick, Martinez, Wong, Hak, Noriega, Nuehring, Alcaraz, Wade, 3

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Holliday, Chua, and Hicks "responded" but failed to perform CPR on Robert or provide him with immediate and adequate medical attention. (Id.) The Vacaville Fire Department arrived "thirty minutes later" (FAC ¶ 29.) Plaintiffs allege in their

and performed CPR on Robert.

FAC Robert "would have benefitted from the administration of timely life-saving medical measures, including CPR." (FAC ¶ 31.)

Plaintiffs' also allege: "On June 9, 2005, Judge Karlton in the case of Coleman v. Schwarzenegger (Eastern District of California Case No. CI S-90-0520) issued an order requiring the CDCR to develop and implement a policy mandating that [CPR] be performed by correctional officers upon inmates." (FAC ¶ 34.) Plaintiffs allege

Defendants' failure to promulgate these policies resulted in Robert's "long term suffering and ultimately death." II. Legal Standard (FAC ¶¶ 38-40.)

"A Rule 12(b)(6) motion tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To

avoid dismissal, Plaintiffs must allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. 544, 570 (2007). Bell Atlantic Corp. v.

When considering a dismissal

motion, all "allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). However, this

"tenet . . . is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements." v. Iqbal, 556 U.S. ---, 129 S.Ct. 1937, 1940 (2009). // // // 4 Ashcroft

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III.

Analysis

Plaintiffs' First Claim for Deliberate Indifference Under 42 U.S.C. § 1983 Against The CDCR Defendants argue Plaintiffs' first claim alleged under

42 U.S.C. § 1983 against the CDCR should be dismissed since the CDCR is not a "person" subject to suit under § 1983 and that Eleventh Amendment immunity bars Plaintiffs' claim against the CDCR. Mot. to Dismiss 5:18-6:10.) (Defs.'

"State agencies . . . are not `persons'

within the meaning of § 1983 and are therefore not amenable to suit under that statute." 2004). 1983." Maldonado v. Harris, 370 F.3d 945, 951 (9th Cir.

"The [CDCR] is a state agency and thus not a `person' under § Johnson v. California Dep't of Corr. and Rehab., 2009 WL

2425073, *3 (E.D. Cal. 2009); see also Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1326 (9th Cir. 1991) ("arms of the State such as the Arizona Department of Corrections are not persons under section 1983"). In addition, "[i]n the absence of a waiver by the state or a valid congressional override, under the eleventh amendment, agencies of the state are immune from private damage actions or suits for injunctive relief brought in federal court. The State of California

has not waived its Eleventh Amendment immunity with respect to claims brought under § 1983 in federal court . . . ." Dittman v. California,

191 F.3d 1020, 1025-26 (9th Cir. 1999) (cites, quotations, and brackets omitted). Accordingly, the Eleventh Amendment bars See Brown v. California

Plaintiffs' first claim against the CDCR.

Dept. of Corrections, 554 F.3d 747, 752 (9th Cir. 2009) ("The district court correctly held that the California Department of Corrections and the California Board of Prison Terms were entitled to Eleventh 5

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Amendment immunity.").

Therefore, Plaintiffs' first claim alleged

against the CDCR under 42 U.S.C. § 1983 is dismissed without leave to amend on the basis of Eleventh Amendment immunity. B. Plaintiffs' Federal Claims Against Individual Defendants in Their Official Capacities Defendants also seek dismissal of Plaintiffs' federal claims alleged against the individually named Defendants in their official capacities. (Defs.' Mot. to Dismiss 6:11-13.) Plaintiffs allege in

"The Parties" section of their FAC that the Defendants are being sued "in their individual and official capacities." (FAC ¶¶ 8-21).

However, Plaintiffs' federal claims are alleged against each individual Defendant in his or her individual capacity only. 13:3-4, 16:7, 18:14, 21:24). (FAC

"[A] suit against a state official in

his or her official capacity is not a suit against the official but rather is a suit against the official's office. different from a suit against the State itself." As such, it is no Will v. Michigan

Dept. of State Police, 491 U.S. 58, 71 (1989) (cite omitted). "Therefore, state officials sued in their official capacities . . . are not `persons' within the meaning of § 1983 and are therefore generally entitled to Eleventh Amendment immunity." Dennison, 488 F.3d 816, 825 (9th Cir. 2007). Flint v.

Since Plaintiffs have

not alleged a sufficient basis to maintain an official capacity claim against any of the moving individual Defendants, Defendants' motion to dismiss Plaintiffs' official capacity claims is GRANTED with leave to amend. // // // 6

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C.

Plaintiffs' First Claim: Deliberate Indifference Under 42 U.S.C. § 1983 in Violation of the Eighth Amendment Defendants also seek dismissal of Plaintiffs' first claim

based on "deliberate indifference" under the Eighth Amendment alleged against Defendants Schwarzenegger, Tilton, Carey, Sisto, and Traquina, arguing Plaintiffs failed to allege sufficient facts to make this claim actionable. (Defs.' Mot. to Dismiss 6:17-19.) Plaintiffs allege in this claim that Defendants "knew, or should have known, of Robert's serious medical, physical and mental health conditions, were deliberately indifferent to them[,] ignored them, [and] failed to provide access to and delivery of adequate medical intervention, care and attention to him." (FAC ¶ 44.)

Plaintiffs further allege, "As a result of Defendants' deliberate indifference, [Robert] was deprived of the necessary and indicated medical intervention, care and treatment . . . causing him to suffer . . . in violation of his Eighth Amendment rights[,] resulting in his wrongful death." (FAC ¶ 47.) Plaintiffs also allege:

Defendants failed to administer CPR or cause CPR or other life saving measures to be implemented in a timely fashion after [Robert] was found in the afternoon of May 10, 2006. Defendants also caused [Robert's] cellmate, John Lee Harden, to stop giving [Robert] CPR. Defendants' complete failure to attempt to revive [Robert] until paramedics arrived approximately 30 minutes later ensured his death and violated his Eighth Amendment Rights. (FAC ¶ 48.) To state an Eighth Amendment deliberate indifference claim, Plaintiffs are required to allege that Defendants "knew that [Robert] faced a substantial risk of serious harm and `disregarded that risk by failing to take reasonable measures to abate it.'" Hearns v. Terhune,

413 F.3d 1036, 1042 (9th Cir. 2005) (quoting Farmer v. Brennan, 511 7

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U.S. 825, 842 (1994)).

Here, Plaintiffs do not allege facts showing

that Defendants Schwarzenegger, Tilton, Carey, Sisto, or Traquina knew of Robert's medical conditions. Plaintiffs have set forth only

conclusory allegations, which are insufficient to state a cognizable claim. amend. D. Plaintiffs' Second and Third Claims for Supervisory Liability Under 42 U.S.C. § 1983 Defendants seek dismissal of Plaintiffs' second claim in which Plaintiffs allege Defendants Schwarzenegger, Tilton, Martinez, Nuehring, Orrick, and Wong are liable under 42 U.S.C. § 1983 as supervisors for their subordinates' behavior that caused Plaintiffs' Eight Amendment rights to be violated. 20.) (Defs.' Mot. to Dismiss 8:17Therefore, this portion of the motion is GRANTED with leave to

Plaintiffs' allegations are premised on Defendants' alleged

promulgation of unconstitutional policies and customs that violate the Eighth Amendment. Defendants argue Plaintiffs have failed to allege (Def.'s Mot. to Dismiss 7:20.)

sufficient facts to state claim.

These Defendants also seek dismissal of Plaintiffs' third claim alleged against them under 42 U.S.C. § 1983 based on their status as supervisors; specifically, Plaintiffs allege Defendants are liable for their subordinates' behavior that caused Plaintiffs' Eighth Amendment rights to be violated. (FAC ¶¶ 65-71.) These allegations are

premised on Defendants alleged negligent hiring and failure to train and supervise the referenced subordinates. Plaintiffs counter both

dismissal motions arguing, "The Coleman Court has ordered CDCR to change their practices, hire, train and supervise their employees. These responsibilities flow all the way up and down the chain of

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command.

Had the Coleman orders been followed in this case, [Robert] (Plts.' Opp'n 4:15-20.)

would likely be alive today."

"Liability under § 1983 arises only upon a showing of personal participation by the defendant[s]. A supervisor is only

liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. superior liability under § 1983." (9th Cir. 1989) (cite omitted). There is no respondeat

Taylor v. List, 880 F.2d 1040, 1045 Here, Plaintiffs have alleged no

facts explaining how the Defendants participated in, directed, or knew of and failed to act on any violations of Robert's constitutional rights. Although Plaintiffs argue "the Coleman litigation put

Defendants on notice of their unconstitutional policies, practices, customs and procedures," Plaintiffs have not alleged Defendants knew

their subordinates were violating the mandates of Coleman or any regulation concerning Robert's medical or mental-health treatment. (Plts.' Opp'n 7:18-19.) Plaintiffs' conclusory allegations that

Defendants have not complied with the mandates of Coleman are insufficient to state claim for supervisory liability. Therefore,

Defendants' motion to dismiss Plaintiffs' second claim and third claim against the above named defendants is GRANTED with leave to amend. E. Plaintiffs' Fourth Claim for Violation of the ADA and the RA Defendants also seek dismissal of Plaintiffs' fourth claim in which Plaintiffs allege Defendants Schwarzenegger, Tilton, Carey, Sisto, Traquina, Nuehring, Wong, Martinez, and Orrick violated the ADA and the RA. Defendants argue individual liability is precluded under (Defs.' Mot. to Dismiss 10:22-23.) Plaintiffs did not

both statutes.

respond to this portion of the motion. 9

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The Ninth Circuit has not directly addressed whether the ADA or the RA provide for individual capacity suits against state officials. The Ninth Circuit "decline[d] to address the issue" in

Eason v. Clark County School District, 303 F.3d 1137, 1144-45 (9th Cir. 2002), in which it cited Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002), a case in which the Ninth Circuit held "that a plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official in her individual capacity to vindicate rights created by Title II of the ADA or section 504 of the Rehabilitation Act." Second Circuit addressed the issue in Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98, 107 (2d Cir. 2001), and as the court stated there, "neither Title II of the ADA nor § 504 of the [RA] provides for individual capacity suits against state officials." Therefore, Defendants' motion to dismiss Plaintiffs' fourth claim is GRANTED. Since the defects in Plaintiffs' fourth claim cannot be The

cured by amendment, Plaintiffs are not given leave to amend. F. Plaintiffs' State Law Claims Finally, Defendants seek dismissal of Plaintiffs' fifth through eighth state law claims. Specifically, Defendants seek

dismissal of Plaintiffs' claims for negligence, wrongful death, medical malpractice, negligence in violation of California Government Code sections 844.6 and 845.6, and violation of the California Unruh Act. Defendants argue these claims "are barred because [Plaintiffs]

did not plead that they complied with or were excused from complying with the California Tort Claims Act" ("CTCA"). Dismiss 5:4-5.) // // 10 (Defs.' Mot. to

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The CTCA requires that a tort claim against a public entity or its employees be presented to the California Victim Compensation and Government Claims Board no more than six months after the cause of action accrues. 950.2. Cal. Gov. Code §§ 905.2, 910, 911.2, 945.4, 950-

Presentation of a written claim, and action on or rejection of State v. Superior Court

the claim are conditions precedent to suit.

of Kings County, 32 Cal. 4th 1234, 1244-45 (2004); Manigold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995). Compliance with the CTCA must be affirmatively alleged in the complaint and "failure to allege compliance or circumstances excusing compliance with [this] claim presentation requirement [results in] a complaint . . . fail[ing] to state facts sufficient to constitute a cause of action." State v. Superior Court, 32 Cal. 4th at 1245; see

also Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988) (affirming dismissal of pendent state law claims against public employee where plaintiff failed to allege compliance with the CTCA). Plaintiffs' fifth through eighth claims are subject to the provisions of the CTCA. See, e.g., Renteria v. City of Maywood,

2009 WL 3297152, *6 (E.D. Cal. 2009) (claim under California Unruh Act); Hernandez v. Jordan, 2009 WL 937960, *2 (E.D. Cal. 2009) (claim based on negligence under section 844.6); Davis v. Sutley, 2008 WL 1817262, *6 (E.D. Cal. 2008) (claim based on defendant's failure to provide medical care under section 845.6). Since Plaintiffs have

failed to allege compliance with the CTCA in their FAC, Defendants' motion to dismiss Plaintiffs' fifth, sixth, seventh, and eighth claims is GRANTED with leave to amend. // 11

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IV.

Conclusion

For these reasons, Defendants' motion to dismiss is GRANTED in its entirety. 1. It is ORDERED:

Plaintiffs' first claim against the CDCR is dismissed without leave to amend. Plaintiffs' claims against all Defendants in their official capacities are dismissed with leave to amend. The portion of Plaintiffs' first claim, in which Plaintiffs allege Defendants Schwarzenegger, Tilton, Carey, Sisto, and Traquina were deliberately indifferent in violation of the Eighth Amendment, is dismissed with leave to amend. Plaintiffs' second claim against Defendants Schwarzenegger, Tilton, Martinez, Nuehring, Orrick, and Wong is dismissed with leave to amend. Plaintiffs' third claim is dismissed with leave to amend. Plaintiffs' fourth claim is dismissed without leave to amend. Plaintiffs' fifth through eighth claims are dismissed with leave to amend.

Plaintiffs have twenty (20) days from the date on which this Order is filed to file a fifth amended complaint addressing the deficiencies discussed in this Order that they have been granted leave to amend. Dated: January 28, 2010

GARLAND E. BURRELL, JR. United States District Judge

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