Schwartz v. Lassen County et al

Filing 38

MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr. on 8/1/2011 GRANTING defendants' 31 Motion to Dismiss Second Amended Complaint with leave to amend. Defendant County of Lassen's 31 Motion to Dismiss is DENIED as to plaintif f's First and Second Causes of Action to extent claims are based on Mr. Parker's state as pre-trial detainee. Plaintiff may, but is not required to, file a Third Amended Complaint no later than 20 days after date of this Order. (Marciel, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12
13

NANCY SCHWARZ, on behalf of
herself individually as the
mother of MICHAEL PARKER,
deceased, and as representative
and administrator of MICHAEL
PARKER’S estate,

No. 2:10-cv-03048-MCE-GGH

14
Plaintiff,
15
v.

MEMORANDUM AND ORDER

16
17

LASSEN COUNTY ex rel. the
LASSEN COUNTY JAIL (DETENTION
FACILITY), et al.,

18
Defendants.
19
20

----oo0oo----

21
22

Plaintiff Nancy Schwarz brings this action on her own behalf

23

and on behalf of her deceased son’s estate (referred to in both

24

capacities hereafter as “Plaintiff”).

25

original Complaint on November 9, 2010, and amended her pleading

26

without leave of the Court on December 13, 2010.

27

///

28

///
1

Plaintiff filed her

1

The Court subsequently dismissed Plaintiff’s First Amended

2

Complaint for lack of jurisdiction because Plaintiff failed to

3

comply with California Code of Civil Procedure § 377.32 by filing

4

either a death certificate or an affidavit swearing she was

5

entitled to act as her son’s successor in interest.

6

has since complied with the requirements of the California Civil

7

Code and has filed the operative Second Amended Complaint (“SAC”)

8

alleging causes action arising under 42 U.S.C. § 1983 and various

9

state laws against Lassen County ex rel. the Lassen County Jail

10

(“Lassen County” or “the County of Lassen”), Steven W. Warren,

11

the Sheriff of Lassen County, unknown guards and an unknown

12

deputy sheriff, the City of Susanville, Officer Ed Vega and

13

unknown Susanville police officers.

14

is a Motion to Dismiss filed by Defendants Lassen County and

15

Sheriff Warren and joined by Defendants City of Susanville and

16

Officer Ed Vega.1

Plaintiff

Presently before the Court

17
BACKGROUND2

18
19
20

Lassen County is responsible for overseeing the operations

21

of the Lassen County Adult Detention Facility (“Facility”).

22

Sheriff Warren oversees the Facility, and the Lassen County

23

sheriff is generally responsible for managing and setting policy

24

for the actions of Facility staff and contracted medical staff.

25
26
27
28

1

Because oral argument will not be of material assistance,
the Court ordered this matter submitted on the briefing. E.D.
Cal. Local Rule 230(g).
2

The following facts are derived from Plaintiff’s SAC.
2

1

Plaintiff’s son, Michael Parker (“Parker”), was born with

2

medical conditions requiring a special diet (diverticulitis and a

3

congenital heart condition).

4

Parker was arrested for, among other things, stalking his ex-

5

girlfriend, who lived in a trailer belonging to Parker and

6

Plaintiff.

At the beginning of July 2009,

Bond for Parker’s release was set at $3,750.

7

Later that month, Parker was arrested for violating a

8

temporary restraining order obtained by that same ex-girlfriend.

9

An officer who asserted he had a long-standing association with

10

Parker reported to the court that Parker had been involved in

11

prior incidents of prowling, rock throwing, stalking and TRO

12

violations.

13

$75,000.

14

Bond for Parker’s subsequent release was set at

A few days later, while still jailed, Parker requested to

15

see a doctor.

Instead, he was seen by a physician’s assistant

16

and was advised he had the stomach flu.

17

more by that physician’s assistant over the following two weeks.

18

On August 6, 2009, a doctor working under contract with the jail

19

ordered an x-ray, through which it was discovered Parker had an

20

infected colon.

21

and underwent emergency surgery that included insertion of a

22

drain tube into his colon.

23

was released from the hospital into his mother’s care.

24

///

25

///

26

///

27

///

28

///

Parker was seen twice

The following day, Parker was bailed from jail

Approximately one week later, Parker

3

1

The following week, Dr. Hal Meadows, who was coincidentally

2

Parker’s physician as well as a contract physician with the

3

Facility, removed Parker’s drain tube in his office.

4

following month, Dr. Meadows drafted a letter stating that Parker

5

should not be subject to incarceration due to the severity of his

6

medical condition and instead should serve any sentence under

7

house arrest.

8
9

The

Later that same month, Parker accompanied his mother to a
bank.

When Plaintiff exited the bank, she found approximately

10

six Susanville Police Department police cars surrounding Parker,

11

who had remained in her truck.

12

Plaintiff that her son had driven by his ex-girlfriend’s

13

residence that morning in that vehicle.

14

she had been in sole possession of the truck prior to Parker

15

joining her at 11:00 a.m. that morning.

16

son would die if incarcerated.

17

not arrest Parker, but Officer Vega proceeded to effectuate the

18

arrest.

19

advised of the above letter from Dr. Meadows.

20

The Police Department advised

Plaintiff argued that

She also stated that her

Two officers stated they would

Officers took Parker to the Facility despite being

Plaintiff made plans to post bail for Parker once again.

21

The $150,000 bond set, however, was above the bondable limit of

22

the bail bond available to Plaintiff, and she was unable to bail

23

Parker out of jail.

24

On October 7, 2009, Plaintiff visited her son at the

25

Facility and saw that Parker had lost over 40 pounds.

26

Plaintiff questioned her son as to why he had not seen a doctor,

27

Parker replied that Facility staff had told him to “quit

28

complaining and make the best of it.”
4

When

1

On October 22, 2009, Parker, who was suffering intensely and

2

whose health was failing, was released from the Facility and

3

transferred to Renown Hospital in Reno, Nevada.

4

November 5, 2009.

5

Parker died on

Based on the above facts, Plaintiff seeks relief pursuant to

6

the following causes of action: 1) 42 U.S.C. § 1983, cruel and

7

unusual punishment, deliberate indifference to serious medical

8

needs; 2) 42 U.S.C. § 1983, deprivation of basic necessities of

9

life; 3) 42 U.S.C. § 1983, deprivation of life without due

10

process; 4) 42 U.S.C. § 1983, maliciously subjecting Plaintiff to

11

pain (against City of Susanville and County of Lassen);

12

5) failure to summon medical care for inmate in violation of

13

California Government Code § 845.6 (against Lassen County);

14

6) failure to discharge mandatory duty under California

15

Government Code § 815.6; 7) reckless or malicious neglect of a

16

dependent adult under California Welfare and Institutions Code

17

§ 15687 (against Lassen County); 8) negligent infliction of

18

emotional distress (“NIED”) on behalf of the estate;

19

9) intentional infliction of emotional distress (“IIED”) on

20

behalf of the estate; 10) violation of California Civil Code

21

§ 52.1; 11) 42 U.S.C. § 1983, due process - deprivation of

22

familial relationships; 12) NIED on behalf of Ms. Schwarz; and

23

13) IIED on behalf of Ms. Schwarz.

24

other things, punitive damages.

25

Plaintiff’s SAC, in part, as discussed in greater detail below.

26

///

27

///

28

///

Plaintiff also seeks, among

Defendants move to dismiss

5

STANDARD

1
2
3

On a motion to dismiss for failure to state a claim under

4

Federal Rule of Civil Procedure 12(b)(6),3 all allegations of

5

material fact must be accepted as true and construed in the light

6

most favorable to the nonmoving party.

7

Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

8

“requires only ‘a short and plain statement of the claim showing

9

that the pleader is entitled to relief,’ in order to ‘give the

Cahill v. Liberty Mut.
Rule 8(a)(2)

10

defendant fair notice of what the [...] claim is and the grounds

11

upon which it rests.’”

12

555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

13

complaint attacked by a Rule 12(b)(6) motion to dismiss does not

14

require detailed factual allegations.

15

obligation to provide the grounds of his entitlement to relief

16

requires more than labels and conclusions, and a formulaic

17

recitation of the elements of a cause of action will not do.”

18

Id. (internal citations and quotations omitted).

19

required to accept as true a “legal conclusion couched as a

20

factual allegation.”

21

(2009) (quoting Twombly, 550 U.S. at 555).

22

must be enough to raise a right to relief above the speculative

23

level.”

24

///

25

///

26

///

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

However, “a plaintiff’s

A court is not

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950
“Factual allegations

27
3

28

A

All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.
6

1

Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur

2

R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)

3

(stating that the pleading must contain something more than “a

4

statement of facts that merely creates a suspicion [of] a legally

5

cognizable right of action.”)).

6

Furthermore, “Rule 8(a)(2)...requires a ‘showing,’ rather

7

than a blanket assertion, of entitlement to relief.”

Twombly,

8

550 U.S. at 556 n.3 (internal citations and quotations omitted).

9

Thus, “[w]ithout some factual allegation in the complaint, it is

10

hard to see how a claimant could satisfy the requirements of

11

providing not only ‘fair notice’ of the nature of the claim, but

12

also ‘grounds’ on which the claim rests.”

13

Alan Wright & Arthur R. Miller, supra, at § 1202).

14

must contain “only enough facts to state a claim to relief that

15

is plausible on its face.”

16

have not nudged their claims across the line from conceivable to

17

plausible, their complaint must be dismissed.”

18

“[a] well-pleaded complaint may proceed even if it strikes a

19

savvy judge that actual proof of those facts is improbable, and

20

‘that a recovery is very remote and unlikely.’”

21

(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

22

Id. at 570.

Id. (citing 5 Charles
A pleading

If the “plaintiffs...

Id.

However,

Id. at 556

A court granting a motion to dismiss a complaint must then

23

decide whether to grant leave to amend.

24

“freely given” where there is no “undue delay, bad faith or

25

dilatory motive on the part of the movant,...undue prejudice to

26

the opposing party by virtue of allowance of the amendment, [or]

27

futility of the amendment....”

28

///
7

Leave to amend should be

1

Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC

2

v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the

3

Foman factors as those to be considered when deciding whether to

4

grant leave to amend).

5

weight.

6

party...carries the greatest weight.”

7

at 1052 (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185

8

(9th Cir. 1987).

9

if it is clear that “the complaint could not be saved by any

Not all of these factors merit equal

Rather, “the consideration of prejudice to the opposing
Eminence Capital, 316 F3d

Dismissal without leave to amend is proper only

10

amendment.”

Intri-Plex Techs. v. Crest Group, Inc., 499 F.3d

11

1048, 1056 (9th Cir. 2007) (internal citations and quotations

12

omitted).

13
ANALYSIS

14
15

A.

Plaintiff’s claims against Sheriff Warren.
1.

16
17

Plaintiff’s § 1983 official capacity claims
against Sheriff Warren are duplicative of her
claims against Lassen County.

18
19

Sheriff Warren argues that Plaintiff’s § 1983 claims against

20

him in his official capacity are duplicative of Plaintiff’s

21

identical claims against Lassen County.

22

473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all

23

respects other than name, to be treated as a suit against the

24

entity.”).

25

Kentucky v. Graham,

The Sheriff is correct.

“There is no longer a need to bring official-capacity

26

actions against local government officials, for...local

27

government units can be sued directly for damages and injunctive

28

or declaratory relief.”

Id. at 167 n.14.
8

1

Accordingly, “[w]hen both a municipal officer and a local

2

government entity are named, and the officer is named only in an

3

official capacity, the court may dismiss the officer as a

4

redundant defendant.”

5

Angeles County Sheriff Dept., 533 F.3d 780, 799 (9th Cir. 2008);

6

see also Megargee v. Wittman, 550 F. Supp. 2d 1190, 1206 (E.D.

7

Cal. 2008) (“‘For this reason, when both an officer and the local

8

government entity are named in a lawsuit and the officer is named

9

in official capacity only, the officer is a redundant defendant

10

and may be dismissed.’”) (quoting Luke v. Abbott, 954 F. Supp.

11

202, 203 (C.D. Cal. 1997)). Plaintiff does not attempt to oppose

12

this argument and instead focuses on Sheriff Warren’s liability

13

in his personal capacity.

14

against Sheriff Warren in his official capacity are dismissed

15

with leave to amend.

Ctr. for Bio-Ethical Reform, Inc. v. Los

Accordingly, Plaintiff’s § 1983 claims

16
2.

17

Plaintiff has failed to plead § 1983 claims
against Sheriff Warren in his individual capacity.

18
19

Sheriff Warren also moves to dismiss Plaintiff’s § 1983

20

claims against him in his individual capacity.

Individual

21

capacity suits “seek to impose individual liability upon a

22

government officer for actions taken under color of state law.”

23

Hafer v. Melo, 502 U.S. 21, 25 (1991).

24

not be held liable for the unconstitutional conduct of their

25

subordinates under a theory of respondeat superior.

26

129 S. Ct. at 1948.

27

held liable for his own misconduct.

28

///

Government officials may

Iqbal,

Rather, each government official may only be

9

1

Bowell v. Cal. Substance Abuse Treatment Facility, No. 1:10-CV-

2

02336-AWI-DLB PC, 2011 WL 2224817, at *4 (E.D. Cal. June 7,

3

2011).

4

However, government officials acting as supervisors may be

5

liable under § 1983 under certain circumstances.

A defendant may

6

be held liable as a supervisor under § 1983 if there exists

7

either (1) his or her personal involvement in the constitutional

8

deprivation, or (2) a sufficient causal connection between the

9

supervisor’s wrongful conduct and the constitutional violation.

10

Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989).

11

actions against supervisors are proper as long as a sufficient

12

causal connection exists and the plaintiff was deprived under

13

color of law of a federally secured right.

14

F.3d ____, 2011 WL 2988827, *4 (9th Cir. 2011) (quoting Redman v.

15

Cnty. of San Diego, 942 F.2d 1435, 1447 (9th Cir. 1991)).

16

Thus, § 1983

Starr v. Baca, ___

The requisite causal connection between a supervisor’s

17

wrongful conduct and the violation of the prisoner’s

18

constitutional rights can be established in a number of ways.

19

The plaintiff may show that the supervisor set in motion a series

20

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

21

acts by others, which the supervisor knew or reasonably should

22

have known would cause others to inflict a constitutional injury.

23

Starr, 2011 WL 2988827, *5; Dubner v. City of S.F., 266 F.3d 959,

24

968 (9th Cir. 2001). Similarly, a supervisor’s own culpable

25

action or inaction in the training, supervision, or control of

26

his subordinates may establish supervisory liability.

27

///

28

///
10

Id.

1

Likewise, a supervisor’s acquiescence in the alleged constitutional

2

deprivation, or conduct showing deliberate indifference toward the

3

possibility that deficient performance of the task may violate the

4

rights of others, may establish the requisite causal connection.

5

Id.; Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir.

6

2005).

7

evidence that the supervisor ‘implement[ed] a policy so deficient

8

that the policy ‘itself is a repudiation of constitutional

9

rights....’”

Finally, a sufficient causal connection “may be shown by

Wesley v. Davis, 333 F. Supp. 2d 888, 892 (quoting

10

Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987)); Hansen v.

11

Black, 885 F.2d 642, 646 (9th Cir. 1989).

12

The only allegation Plaintiff makes that is at all specific

13

to Sheriff Warren is that he “oversees the Adult Detention

14

Facility.”

15

sheriff of Lassen County “has responsibility to manage and set

16

policy for the actions of the staff at the Detention Facility and

17

the actions of the contracted medical staff.”

18

Plaintiff makes numerous arguments in her opposition as to why

19

the Sheriff must have known about her son’s condition and must

20

have known that he was being denied medical care, she makes no

21

allegation in her SAC that Sheriff Warren was on notice of or had

22

actual knowledge of the same, nor does she make any allegations

23

that the Sheriff had any personal involvement with Plaintiff’s

24

care while he was housed in the Facility.

25

does not allege that Sheriff Warren himself enacted or enforced

26

any constitutionally deficient policies.

27

Plaintiff’s only policy-related allegations are specifically

28

directed at the County of Lassen and the City of Susanville.

SAC, ¶ 6.

Plaintiff also alleges generally that the

11

Id., ¶ 5.

While

In addition, Plaintiff

To the contrary,

1

Accordingly, Plaintiff has failed to plead any § 1983 claims

2

against Sheriff Warren in his individual capacity, and the

3

Sheriff’s Motion is granted as to these claims with leave to

4

amend.

5
3.

6

Plaintiff failed to adequately plead any state law
causes of action against Sheriff Warren.

7
8

Plaintiff’s state law causes of action against Sheriff

9

Warren likewise fail because she has alleged no facts indicating

10

the Sheriff personally participated in any violations of Parker’s

11

rights, or that he had any knowledge that would have rendered him

12

responsible for violations inflicted by other individuals.

13

Moreover, Plaintiff failed to raise any arguments in opposition

14

to Sheriff Warren’s Motion as to these claims.

15

state law causes of action against Sheriff Warren are dismissed

16

with leave to amend.

Accordingly, all

17

19

Plaintiff’s claims against the County of Lassen, the
City of Susanville and Officer Vega (hereafter
collectively “Defendants”).

20

1.

18

B.

21

Plaintiff’s first and second causes of action are
dismissed as to the City of Susanville and Officer
Vega and dismissed in part as to Lassen County.

22
23

The City of Susanville and Officer Vega move to dismiss

24

Plaintiff’s first and second causes of action alleging violations

25

of § 1983 based on a deliberate indifference to serious medical

26

needs and deprivation of the basic necessities of life because

27

the facts alleged against those Defendants are insufficient to

28

state a claim.
12

1

Joinder of City of Susanville and Officer Vega in Motion to

2

Dismiss (“Joinder”), 5:6-9.

3

“[a]ll that is alleged against Officer Vega is that he arrested

4

the decedent and took him into custody and all that is alleged

5

against the City of Susanville is that they employed and

6

improperly trained and supervised Officer Vega.”

7

Both the complaint and the opposition are devoid of facts or

8

argument demonstrating how these allegations are sufficient to

9

allege claims for the denial of medical care.

As those Defendants point out,

Id., 5;4-6.

Accordingly, both

10

the first and second causes of action are dismissed as to the

11

City of Susanville and Officer Vega.

12

For its part, Lassen County moves to dismiss the above

13

causes of action because they are explicitly premised on cruel

14

and unusual punishment allegedly inflicted on Parker pursuant to

15

the Eighth Amendment, which protects individuals that have been

16

convicted and sentenced.

17

250 F.3d 668, 686 (9th Cir. 2001).

18

intended to plead Eighth Amendment post-conviction claims, those

19

claims are dismissed with leave to amend because Plaintiff has

20

not yet pled any facts indicating Parker was being held pursuant

21

to a conviction rather than an arrest.

22

causes of action seek to recover for injuries Parker sustained

23

while incarcerated as a pre-trial detainee, however, they survive

24

the instant Motion despite Plaintiff’s failure to point to the

25

exact constitutional section under which the claims arise because

26

the County does not challenge the factual underpinnings of the

27

claims themselves and instead attacks only Plaintiff’s

28

misidentification of the proper constitutional amendment.

See Lee v. City of Los Angeles,

13

To the extent Plaintiff

To the extent these

1

See Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2009) (“A

2

complaint need not identify the statutory or constitutional

3

source of the claim raised in order to survive a motion to

4

dismiss.”).

5

granted with leave to amend as to the first and second causes of

6

action only as to Plaintiff’s post-conviction theory, but not as

7

to any claims based on Parker’s status as a pre-trial detainee.

8
9

Accordingly, the County of Lassen’s Motion is

Lassen County also seeks to dismiss Plaintiff’s first cause
of action insofar as it is based on the County’s failure to

10

train, supervise and/or discipline personnel.

“[A]

11

municipality’s failure to train its employees may create § 1983

12

liability where the ‘failure to train amounts to deliberate

13

indifference to the rights of persons with whom the [employees]

14

come into contact.’” Young v. City of Visalia, 687 F. Supp. 2d

15

1141, 1148 (E.D. Cal. 2009) (quoting City of Canton v. Harris,

16

489 U.S. 378, 388 (1989)).

17

train claim must show: (1) he was deprived of a constitutional

18

right, (2) the municipality had a training policy that amounts to

19

deliberate indifference to the [constitutional] rights of the

20

persons’ with whom [its police officers] are likely to come into

21

contact; and (3) his constitutional injury would have been

22

avoided had the municipality properly trained those officers.”

23

Id. (internal citations and quotations omitted).

24

municipality’s failure to train its employees in a relevant

25

respect evidences a ‘deliberate indifference’ to the rights of

26

its inhabitants can such a shortcoming be properly thought of as

27

a city ‘policy or custom’ that is actionable under § 1983.’”

28

City of Canton, 489 U.S. at 389.

“A plaintiff alleging a failure to

14

“Only where a

1

The SAC contains insufficient facts to plausibly support the

2

validity of a failure to train claim here.

3

specific allegation is that “despite actual knowledge of the

4

inadequacy of its health services including numerous complaints

5

of pain and suffering by other inmates, Defendants failed to

6

sufficiently train and discipline their staff to provide

7

reasonable and adequate response to medical needs.”

8

Plaintiff does not, however, identify any Defendants’ actual

9

training and hiring practices or articulate how the challenged

Plaintiff’s most

SAC, ¶ 79.

10

practices are deficient.

See Young, 687 F. Supp. 2d at 1150;

11

Rodriguez v. City of Modesto, 2010 WL 4880748, *11 (E.D. Cal.).

12

Accordingly, Plaintiff’s first cause of action is dismissed with

13

leave to amend as to the County of Lassen on this basis as well.

14
2.

15
16

Plaintiff’s third and fourth causes of action are
dismissed with leave to amend as to the City of
Susanville and Officer Vega.

17
18

The City of Susanville and Officer Vega assert in passing

19

that Plaintiff’s third and fourth causes of action against them

20

should be dismissed for failure to state a claim.

21

13.

22

Defendants “allow[ed] [Parker] to degenerate, suffer and die

23

instead of adopting simple life saving measures and procedures.”

24

SAC, ¶ 64.

25

“his health, strength and activity and ultimately his life,

26

without due process of law.”

27

Plaintiff likewise alleges violations of Parker’s constitutional

28

rights arising solely out of his incarceration at the Facility.

Joinder, 5:7-

In her third cause of action, Plaintiff alleges that

Plaintiff thus contends that Parker was deprived of

Id.

15

In her fourth cause of action,

1

This latter cause of action is premised on the theory that, while

2

incarcerated: 1) “Defendants abandoned [Parker] and ignored his

3

complaints and calls for help”; 2) Parker was visible to inmates

4

and Facility personnel; and 3) “Defendants’ actions and

5

omissions...were excessive, vindictive, harassing and wholly

6

unrelated to institutional security or any other legitimate

7

penalogical objective.”

8

“[r]easonable and readily available alternatives existed to

9

protect [Parker’s] privacy and dignity, including but not limited

Id., ¶¶ 66-68.

According to Plaintiff,

10

to transferring him to the Renown Medical Center immediately or

11

allowing him to stay on house arrest and have the liberty to take

12

himself to Renown Medical Center where he would be cared for and

13

attended to properly.”

Id., ¶ 68.

14

None of these allegations indicate that either claim is

15

premised on the arrest allegedly effectuated by Officer Vega, and

16

the claims as pled instead arise solely from the other

17

Defendants’ post-arrest conduct.

18

argument in opposition to these Defendants’ challenges to the

19

third and fourth causes of action.

20

insufficiency of Plaintiff’s allegations and her failure to

21

effectively oppose Defendants’ Motion, the third and fourth

22

causes of action are dismissed with leave to amend as to the City

23

of Susanville and Officer Vega.

24

///

25

///

26

///

27

///

28

///
16

Moreover, Plaintiff raises no

Accordingly, in light of the

3.

1

Plaintiff’s seventh cause of action is dismissed
with leave to amend as to Lassen County.4

2
3

In Plaintiff’s seventh cause of action, she alleges that

4

Lassen County violated California Welfare and Institutions Code

5

§ 15657, which prohibits the reckless or malicious neglect of a

6

dependent adult.

7

ages of 18 and 64 years who resides in this state and who has

8

physical or mental limitations that restrict his or her ability

9

to carry out normal activities or to protect his or her rights,

A “dependant adult” is “any person between the

10

including, but not limited to, persons who have physical or

11

developmental disabilities, or whose physical or mental abilities

12

have diminished because of age.”

13

§ 15610.23.

14

support a finding that Parker was a dependent adult within the

15

meaning of § 15610.23.

16

624 F. Supp. 2d 1184, 1195 (E.D. Cal. 2009).

17

Parker suffered from physical disorders and congenital defects

18

and that he was in need of and receiving medical care, but

19

Plaintiff does not allege that Parker, for example, needed any

20

assistance with “activities of daily living” or was otherwise

21

restricted in his ability to protect his rights.

22

1194-95 (internal citations and quotations omitted).

23

allegations are simply insufficient to establish that Parker was

24

a dependent adult as that term is used in the Welfare and

25

Institutions Code.

Cal. Welf. & Inst. Code

Plaintiff’s pleading is wholly insufficient to

See Cabral v. County of Glenn,
Plaintiff alleges

See id. at
Plaintiff’s

26
27
28

4

The Court interprets the fifth and seventh causes of
action as being pled against Lassen County only. Accordingly,
the following discussion pertains only to that Defendant.
17

1

Accordingly, Lassen County’s Motion to Dismiss Plaintiff’s

2

seventh cause of action is granted with leave to amend.

3
4.

4

Plaintiff’s tenth cause of action is dismissed
with leave to amend as to all Defendants.

5
6

All Defendants seek dismissal of Plaintiff’s tenth cause of

7

action, which arises under California Civil Code § 52.1.

8

Defendants argue that Plaintiff failed to allege sufficient facts

9

constituting threats, intimidation or coercion.

According to

10

Plaintiff’s SAC, “The civil rights violations reiterated and

11

alleged [in the SAC] were accompanied by threats, intimidation or

12

coercion on the part of Defendants, by arrest, threatening

13

further punishment if complaints were made by Michael Parker and

14

threats to the Plaintiff if she complained about the treatment of

15

Michael Parker.”

16

precisely what “further punishment” was threatened by Defendants

17

or what “threats” were made directly to Plaintiff.

SAC, ¶ 98.

Plaintiff does not elaborate as to

18

Under the Civil Code, “[a]ny individual whose exercise or

19

enjoyment of rights secured by the Constitution or laws of the

20

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

21

of this state, has been interfered with, or attempted to be

22

interfered with” “by threats, intimidation, or coercion” may

23

bring a private action for damages.

24

(b).

25

///

26

///

27

///

28

///
18

Cal. Civ. Code § 52.1(a)-

1

Without citing to any authority other than § 52.1, Plaintiff

2

takes the position her allegations are sufficient here because

3

Parker’s bond was set purposefully high, which intimidated Parker

4

by forcing his incarceration, and that Parker was threatened when

5

jail staff responded to his medical complaints by telling him to

6

“quit complaining and make the best of it.”

7

(citing SAC, ¶¶ 30, 35, 38).

8
9

Opposition, 8:14-23

Plaintiff’s arguments fail.

“A claim under [Section 52.1(b)] requires a showing of ‘an
attempted or completed act of interference with a legal right,

10

accompanied by a form of coercion.’”

11

Diego, 650 F. Supp. 2d 1094, 1108 (S.D. Cal. 2009) (quoting Jones

12

v. Kmart Corp., 17 Cal. 4th 329, 334 (1998)).

13

whether a reasonable person, standing in the shoes of the

14

plaintiff, would have been intimidated by the actions of the

15

defendants and have perceived a threat of violence.

16

v. City of Antioch, 722 F. Supp. 2d 1133, 1147 (N.D. Cal. 2010).

17

“Speech alone is not sufficient to support an action [under

18

52.1(b)], except upon a showing that the speech itself threatens

19

violence against a specific person or group of persons; and the

20

person or group of persons against whom the threat is directed

21

reasonably fears that, because of the speech, violence will be

22

committed against them or their property and that the person

23

threatening violence had the apparent ability to carry out the

24

threat.”

25

///

26

///

27

///

28

///

Cal. Civ. Code § 52.1(j).

19

Martin v. County of San

“The test is

Richardson

1

In this case, the setting of a bond, without more, cannot be

2

viewed as intimidation or coercion, nor does a passing comment,

3

though insensitive, that Parker should learn to “make the best of

4

it” rise to the level of a threat.5

5

requests, grievances and appeals are not “threats, intimidation,

6

or coercion” under § 52.1 either.

7

184, 185 (9th Cir. 2009).

8

consequently dismissed with leave to amend.

Failure to timely respond to

Brook v. Carey, 352 Fed. Appx.

Plaintiff’s tenth cause of action is

9
5.

10
11

Plaintiff’s eighth, ninth, twelfth and thirteenth
causes of action are dismissed with leave to amend
as to all Defendants.

12
13

Defendants also move to dismiss Plaintiff’s causes of action

14

for NIED and IIED.

The entity Defendants argue that under

15

California law these common law claims cannot stand against

16

public entities.

17

///

18

///

19
20
21
22
23
24
25
26
27
28

5

Plaintiff’s attempt to base her instant claim on allegedly
excessive bail fails in any event. First, “in California it is
the judicial officers that are vested with the ‘exclusive
authority to enhance or reduce bail.” Muhammad v. San Diego
County Sheriff’s Dep’t., 2008 WL 821832, *2 (S.D. Cal. 2008)
(quoting Galen v. County of Los Angeles, 477 F.3d 652, 663 (9th
Cir. 2007)). “A law enforcement officer can only be held liable
for...excessive bail ‘if they prevented the [judicial officer]
from exercising his independent judgment.’” Id. Plaintiff has
not alleged any facts indicating any Defendant prevented any
judicial officer from exercising his or her independent judgment.
Plaintiff has likewise failed to allege any facts implicating any
judicial officer individually. Even if she had alleged
wrongdoing on the part of some judicial officer, however,
Defendants’ Motion would still be well-taken because judicial
officers are state, not county or city actors. See Petty v.
Petty, 2003 WL 21262369, *4 (N.D. Cal.).
20

1

In California, “[e]xcept as otherwise provided by statute...[a]

2

public entity is not liable for any injury, whether such injury

3

arises out of an act or omission of the public entity or a public

4

employee or any other person.”

5

Legislative Committee Comment to § 815 states, “This section

6

abolishes all common law or judicially declared forms of

7

liability for public entities, except for such liability as may

8

be required by the state or federal constitution, e.g., inverse

9

condemnation.

Cal. Gov. Code § 815(a).

The

In the absence of a constitutional requirement,

10

public entities may be held liable only if a statute...is found

11

declaring them to be liable.”

12

of public entity tort liability is statutory.”

13

California ex rel. Dept. of Transportation, 100 Cal. App. 3d 980,

14

986 (1979).

15

entity Defendants’ Motions to Dismiss her NIED and IIED claims,

16

which are thus dismissed with leave to amend.6

17

Accordingly, “the exclusive basis
Tolan v. State of

Plaintiff raises no argument in opposition to the

Officer Vega moves to dismiss these claims as well arguing

18

Plaintiff failed to allege sufficient facts against him.

19

elements of a prima facie case for the tort of intentional

20

infliction of emotional distress are:

21

///

22

///

23

///

24

“The

///

25
6

26
27
28

The parties do not address whether the entity Defendants
could be vicariously liable for these tort claims pursuant to
California Government Code § 815.2. However, since, as discussed
below, the SAC includes insufficient facts to state a claim
against the individual Defendants, any vicarious liability claim
fails as well.
21

1

(1) extreme and outrageous conduct by the defendant with the

2

intention of causing, or reckless disregard of the probability of

3

causing, emotional distress; (2) the plaintiff’s suffering severe

4

or extreme emotional distress; and (3) actual and proximate

5

causation of the emotional distress by the defendant’s outrageous

6

conduct.”

7

(1979).

8

exceed all bounds of that usually tolerated in a civilized

9

community.” Id.

Cervantez v. J.C. Penney Co., 24 Cal. 3d 579, 593
“Conduct to be outrageous must be so extreme as to

10

For its part, “[a] claim of negligent infliction of

11

emotional distress is not an independent tort but the tort of

12

negligence to which the traditional elements of duty, breach of

13

duty, causation, and damages apply.”

14

App. 4th 1354, 1377 (2010).

15

distress on a claim of negligence where there is no accompanying

16

personal, physical injury, the plaintiff must show that the

17

emotional distress was ‘serious.’”

18

distress” is functionally the same as “severe emotional

19

distress.”

20

ordinary negligence actions for physical injury, recovery for

21

emotional distress caused by that injury is available as an item

22

of parasitic damages.’”

23

1299360, *10 (N.D. Cal.) (quoting Potter v. Firestone Tire &

24

Rubber Co., 6 Cal. 4th 965, 1004 (1993)).

25

Id. at 1378.

Wong v. Tai Jing, 189 Cal.

“[T]o recover damages for emotional

Id.

“Serious emotional

Otherwise, “it is well-settled that ‘in

Summers v. Delta Airlines, Inc., 2011 WL

Plaintiff makes only conclusory allegations in support of

26

her emotional distress claims and makes no factual allegations as

27

to how Officer Vega, who simply arrested Parker, engaged in any

28

conduct capable of supporting her tort causes of action.
22

1

In addition, in opposition to Defendants’ Motion, Plaintiff

2

argues only that she does not yet have access to Parker’s medical

3

records and thus could not properly plead sufficient facts here.

4

Plaintiff fails to explain why Parker’s medical records are

5

necessary to pleading her own emotional distress claims or how

6

her own interactions with Parker were insufficient to enable her

7

to adequately plead claims on his behalf.

8

Plaintiff’s NIED and IIED causes of action are dismissed as to

9

Officer Vega with leave to amend.

Accordingly,

10
11
12

6.

Plaintiff’s request for punitive damages is
dismissed as to all Defendants with leave to
amend.

13
14

Defendants’ move to dismiss Plaintiff’s request for punitive

15

damages in its entirety.

16

to the entity Defendants because they are immune from punitive

17

damages liability as matter of law.

18

(“Notwithstanding any other provision of law, a public entity is

19

not liable for damages awarded under § 3294 of the Civil Code or

20

other damages imposed primarily for the sake of example and by

21

way of punishing the defendant.”); Newport v. Fact Concerts,

22

Inc., 453 U.S. 247, 271 (1981) (“[A] municipality is immune from

23

punitive damages under 42 U.S.C. § 1983.”).

24

Defendants’ arguments are well-taken as

Cal. Gov. Code § 818

Individual Defendants, however, may be liable for punitive

25

damages pursuant to the § 1983 claims when their “conduct is

26

shown to be motivated by evil motive or intent, or when it

27

involves reckless or callous indifference to the federally

28

protected rights of others.”
23

1

Smith v. Wade, 461 U.S. 30, 56 (1983).

Likewise, “[u]nder

2

California law, punitive damages are appropriate where a

3

plaintiff establishes by clear and convincing evidence that the

4

defendant is guilty of (1) fraud, (2) oppression or

5

(3) malice...[A] plaintiff may not recover punitive damages

6

unless the defendant acted with intent or engaged in ‘despicable

7

conduct.’”

8

Cir. 2006) (citing Cal. Civ. Code § 3294(a), (c)) (emphasis

9

omitted).

In re First Alliance Mortg. Co., 471 F.3d 977 (9th

Plaintiff’s allegations against Officer Vega, are

10

extraordinarily conclusory and do not, at this point, include any

11

factual assertions supporting a conclusion that he acted with

12

evil motive or in a despicable manner.

13

that might even potentially go to “reckless indifference” is that

14

Officer Vega allegedly knew of Parker’s medical condition, but

15

proceeded to arrest him anyway.

16

suggest, however, that the arrest was improper or that it was

17

supported by a lack of probable cause.

18

Plaintiff’s allegations are insufficient to justify a punitive

19

damages claim against Officer Vega.

20

claims are thus dismissed with leave to amend.

The closest allegation

Plaintiff does not otherwise

Accordingly, as pled,

Plaintiff’s punitive damages

21
CONCLUSION

22
23
24

For the reasons just stated, Defendants’ Motions are granted

25

in part and denied in part, consistent with the foregoing, as

26

follows:

27
28

1.

Defendant Sheriff Warren’s Motion to Dismiss Plaintiff’s

entire SAC is GRANTED with leave to amend.
24

1

2.

Defendants City of Susvanille’s and Officer Vega’s

2

Motion to Dismiss is GRANTED with leave to amend as to: 1)

3

Plaintiff’s first, second, third, fourth, eight, ninth, tenth,

4

twelfth and thirteenth causes of action in their entirety; and 2)

5

Plaintiff’s claim for punitive damages.

6

3.

Defendant County of Lassen’s Motion to Dismiss is

7

GRANTED with leave to amend as to: 1) Plaintiff’s first cause of

8

action to the extent it is based on a failure to train theory; 2)

9

Plaintiff’s first and second causes of action to the extent they

10

are based on post-conviction violations arising under the Eight

11

Amendment; 3) Plaintiff’s seventh, eighth, ninth, tenth, twelfth

12

and thirteenth causes of action in their entirety; and 4)

13

Plaintiff’s claim for punitive damages.

14

Lassen’s Motion to Dismiss is DENIED as to Plaintiff’s first and

15

second causes of action to the extent those claims are based on

16

Mr. Parker’s status as a pre-trial detainee.

17

Defendant County of

Plaintiff may (but is not required to) file a third amended

18

complaint not later than twenty (20) days after the date this

19

Memorandum and Order is filed electronically.

20

complaint is filed within said twenty (20)-day period, without

21

further notice, those causes of action hereby dismissed will be

22

deemed to have been dismissed with prejudice.

23

IT IS SO ORDERED.

24

If no amended

Dated: August 1, 2011

25
26
27

_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

28
25