Schwartz v. Lassen County et al

Filing 56

MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr. on 1/18/2012 ORDERING that Defendants 43 Motion to Dismiss is GRANTED IN PART and DENIED IN PART, consistent with the foregoing, as follows: Defendants' motion to dismiss Plaintiff& #039;s first, second, third and fourth claims under § 1983 for decedent's pain and suffering is GRANTED with leave to amend as to the County and Mineau. Defendants' motion to dismiss Plaintiff's eighth and ninth claims for NIED an d IIED in her representative capacity is GRANTED without leave to amend. Defendants' motion to dismiss Plaintiff's twelfth and thirteenth claims for NIED and IIED against the County is GRANTED without leave to amend. Defendants' motion to dismiss Plaintiff's twelfth claim for NIED against Mineau is DENIED. Defendants' motion to dismiss Plaintiff's thirteenth claim for IIED against Mineau is GRANTED without leave to amend. Defendants' motion to dismiss Plaintiff 's eleventh claim under Section 1983 for deprivation of familial relationship is DENIED. Plaintiff's entire complaint against Officer Vega is dismissed without leave to amend. Defendant City of Susanville's motion to dismiss is Plainti ffs first, second, third, fourth, eighth, ninth, tenth, twelfth and thirteenth claims is GRANTED without leave to amend; Defendant City of Susanville's motion to dismiss Plaintiff's Eleventh claim is DENIED. Plaintiff's claim for punitive damages is dismissed against all Defendants without leave to amend. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NANCY SCHWARTZ on behalf of
herself individually as the
mother of MICHAEL PARKER,
deceased; et al.,

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

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Plaintiffs,
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v.

MEMORANDUM AND ORDER

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

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Defendants.
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----oo0oo---Plaintiff Nancy Schwartz (“Plaintiff”), survivor of

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decedent, Michael Parker (“Decedent”), on behalf of herself and

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as successor-inp-interest to Decedent, seeks redress for several

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federal and state law claims alleging that the County of Lassen

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(“County”), Sheriff of Lassen County, Steven Warren (“Warren”),

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Officer Ed Vega (“Vega”), The City of Susanville (“City”), the

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Susanville Police Department (“Department”), and undersheriff

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John Mineau (“Mineau”) violated decedent’s civil rights leading

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up to, and during decedent’s detainment at the Lassen County

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Adult Detention Facility (the “Facility”).
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By Memorandum and Order signed August 1, 2011, this Court

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granted in part Defendants’ Motion to Dismiss Plaintiff’s Second

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Amended Complaint and granted Plaintiff leave to amend.

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(See ECF No. 38.)

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Defendants Mineau and the County to dismiss claims 1, 2, 3, 4, 8,

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9, 11, 12 and 13 of Plaintiff’s Third Amended Complaint1 (“TAC”)

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pursuant to Federal Rule of Civil Procedure 12(b)(6).

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Def.’s Mot. to Dismiss Pl.’s Third Am. Compl. [“MTD”], filed

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September 2, 2011 [ECF No. 43].)

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joined in the motion to dismiss.

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Presently before the court is the motion of

(See

Both the City and Officer Vega

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As Plaintiff notes in her opposition, the TAC contains
typographical errors in paragraphs 73, 76 and 80 in which she
states that her claims are brought under the Eighth Amendment, as
opposed to the Fourteenth. Defendants’ moving papers acknowledge
this typo: “There is no allegation that either Ms. Schwartz or
Mr. Parker suffered a post-conviction injury. Nonetheless,
[P]laintiff pleads the Eighth Amendment For purposes of this
motion, responding defendants will treat the alleged Eighth
Amendment violations as though they were [properly]stated under
the Fourteenth Amendment,” as does the Court. (MTD at 1:4 n.2.)
Moreover, the Court notes that this distinction does not affect
the Court’s analysis — as described in detail below, the same
“deliberate indifference” standard is applied to claims for
failure to provide medical care to pretrial detainees as is
applied to claims by post-conviction prisoners under the Eighth
Amendment cruel and unusual punishment rubric.
The court further notes that, when Plaintiff realized these
typographical errors, she filed a motion for leave to file a
corrected version of the TAC. (ECF No. 48.) Since the Court and
Defendants, as stated above, construe these claims as being
properly brought under the Fourteenth Amendment, the Court, via
this order, rules on the substantive validity of Plaintiff’s TAC.
Since the court grants in part and denies in part Defendants’
motion with leave to amend, Plaintiff’s motion for leave to file
a corrected TAC is hereby denied as moot.
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(Joinder, filed Sept. 7, 2011, [ECF No. 47].)2

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set forth below, Defendants’ motion is granted in part and denied

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in part.3

For the reasons

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BACKGROUND

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The case arises out of the passing of Michael Parker,

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Plaintiff’s son, who suffered from certain medical conditions —

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diverticulitis and congenital heart condition — that required a

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restricted diet

(Pl.’s Third Am. Compl. (“TAC”), filed Aug. 24,

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2001 [ECF No. 40] ¶ 13, 42.)

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Hospital in Reno, Nevada, after colon and gastronomical

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complications.

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time at the Lassen County Adult Detention Facility as a result of

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allegations of prowling and stalking his ex-girlfriend.

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gravamen of Plaintiff’s complaint is that Defendants violated

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Decedent’s constitutional rights by refusing to provide necessary

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medical care while decedent was detained at the Facility.

Decedent passed away at Renown

Prior to his death, Decedent intermittently spent

The

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The court granted Defendants’ motion to dismiss the Second
Amended Complaint with leave to amend as to Plaintiff’s first,
second, third, fourth, eighth, ninth, tenth, twelfth and
thirteenth claims against officer Vega and the City of
Susanville. (Mem. & Order, filed Aug. 1, 2011 [ECF No. 38], at
25:1-5.) Plaintiff, however, failed to add any additional
factual allegations, or argument, against either Officer Vega or
City of Susanville. As such, the aforementioned claims against
Officer Vega and the City of Susanville are hereby dismissed with
prejudice. As a result of dismissal of these claims, none of
Plaintiff’s remaining claims are asserted against Officer Vega,
and thus, the entirety of Plaintiff’s complaint against Officer
Vega is hereby dismissed.
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Because oral argument will not be of material assistance,
the Court ordered this matter submitted on the briefing. E.D.
Cal. R. 230(g).
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Decedent was first detained at the Facility on July 3, 2009,

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when he “was arrested and charged with Lewd vagrancy, peep, prowl

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and stalking”; his mother posted bail at the set bond rate of

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$3,750.

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violating a court order prohibiting Decedent from contacting his

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ex-girlfriend.

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the center, Decedent requested to see a doctor; instead of seeing

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a doctor, a physician’s assistant attended to Decedent and

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concluded that he suffered from a stomach flu.

(Id. ¶ 14.)

On July 17, 2009, Decedent was charged with

(Id. ¶ 16.)

Five days later, while detained at

(Id. ¶ 18.)

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Finally, on August 6, 2009, after complaining of intense pain,

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the Center’s contract physician administered x-rays which

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revealed an infected colon.

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(Id. ¶ 19.)

The next day, Plaintiff’s mother posted Decedent’s bail and

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Plaintiff was admitted to Renown Hospital in Reno, Nevada, in

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order to obtain a procedure in which a drain tube was inserted

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into his colon for purposes of addressing the infection.

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¶ 20.)

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Dr. Meadows — also the contract doctor for the hospital —

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removed the drain tube at his office.

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the TAC, approximately one month after he removed the drain,

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Dr. Meadows wrote a letter stating that “any incarceration should

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be converted to a house arrest because of the serious medical

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condition of Michael Parker.”

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(Id.

On August 29, 2009, Decedent’s family physician,

(Id. ¶ 21.)

According to

(Id. ¶ 23.)

On September 21, 2009, Decedent accompanied Plaintiff to the

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bank.

(Id. ¶ 24.)

When she returned, she found her son

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surrounded by approximately six police cars. (Id.)

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Susanville police officers informed Plaintiff that Decedent had

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driven past his ex-girlfriend’s home that morning.
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The

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(Id. ¶ 25.)

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incarceration would kill her son.

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“Officer Vega stated that he would arrest Michael Parker . . .

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and did so despite actual knowledge that the Lassen Detention

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Facility Doctor specifically stated that Michael Parker should

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not be incarcerated because of his serious medical condition.”

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(Id. ¶ 29.)

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Facility despite the individual officers’ cognizance of the

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letter allegedly written by Dr. Meadows warning against

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Plaintiff alleges that she told the officers that
(Id. ¶ 26.)

At that time,

Plaintiff alleges that Decedent was taken to the

incarceration.

(Id. ¶ 30.)

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Plaintiff alleges that, during the bond hearing, Mineau

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reported to the court numerous instances of prowling and TRO

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violations “for the purpose of influencing the court to make the

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bond so high that [Plaintiff], with her bond capacity as a bond

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agent, could not write the bond, thus insuring Michael Parker

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would not be released on bond.”

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alleges that the “Sheriff of Lassen County knew that [Mineau] had

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exaggerated and told untruthful statements to the judge in order

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to raise the amount of the bail and knew that [Plaintiff] was a

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bail agent and that the amount of the bail would have to be

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raised to an amount higher than usually required for a

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misdemeanor.”

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$150,000.

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(Id. ¶ 34.)

(Id. ¶ 33.)

Plaintiff further

Decedent’s bail was ultimately set at

(Id. ¶ 35.)

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Plaintiff alleges that she visited her son in the facility

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on September 30, 20094 and requested of an unknown guard that her

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son be released for medical attention; Plaintiff alleges that the

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Facility refused her request to release Decedent to home arrest

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or provide him “necessary life-sustaining medical attention.”

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(Id. ¶¶ 36-37.)

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Decedent one week later, he had visibly lost over forty pounds.

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(Id. ¶ 38.)

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doctor, he replied that the Facility staff told him “quit

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According to Plaintiff, when she visited

When Plaintiff asked Decedent why he had not seen a

complaining and make the best of it.”

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(Id. ¶ 39.)

On October 22, 2009, Decedent was once again released to

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Renown Hospital. (Id. ¶ 40.)

Plaintiff alleges that nobody from

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the detention facility contacted her to inform her that her son

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was transferred to the hospital until three weeks after his

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transport, when Mineau informed her that Decedent was released.

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(Id. ¶ 41.)

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complications.

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Shortly thereafter, Decedent died of gastronomical

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Plaintiff’s complaint states 2010, however, such a date
would be inconsistent with the relevant time line. The court
therefore infers that, based on the time line of actual events,
that actual date was 2009.
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STANDARD

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

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Federal Rule of Civil Procedure 12(b)(6),5 all allegations of

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

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most favorable to the nonmoving party.

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

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

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

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

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

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grounds upon which it rests.’”

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550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,

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47 (1957)).

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dismiss does not require detailed factual allegations.

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“a plaintiff’s obligation to provide the grounds of his

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entitlement to relief requires more than labels and conclusions,

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and a formulaic recitation of the elements of a cause of action

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will not do.”

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A court is not required to accept as true a “legal conclusion

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couched as a factual allegation.”

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1937, 1950 (2009) (quoting Twombly, 550 U.S. at 555).

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Bell Atl. Corp. v. Twombly,

A complaint attacked by a Rule 12(b)(6) motion to
However,

Id. (internal citations and quotations omitted).

Ashcroft v. Iqbal, 129 S. Ct.

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All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.
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“Factual allegations must be enough to raise a right to relief

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above the speculative level.”

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5 Charles Alan Wright & Arthur R. Miller, Federal Practice and

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Procedure § 1216 (3d ed. 2004) (stating that the pleading must

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contain something more than “a statement of facts that merely

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creates a suspicion [of] a legally cognizable right of

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action.”)).

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Twombly, 550 U.S. at 555 (citing

Furthermore, “Rule 8(a)(2). . . requires a ‘showing,’ rather
than a blanket assertion, of entitlement to relief.”

Twombly,

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

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

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hard to see how a claimant could satisfy the requirements of

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

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also ‘grounds’ on which the claim rests.”

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

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

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is plausible on its face.”

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have not nudged their claims across the line from conceivable to

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plausible, their complaint must be dismissed.”

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

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

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

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

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Id. at 570.

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Id. (citing 5 Charles
A pleading

If the “plaintiffs . . .

Id.

However,

Id. at 556

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A court granting a motion to dismiss a complaint must then

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decide whether to grant leave to amend.

Leave to amend should be

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

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

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to the opposing party by virtue of allowance of the amendment,

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[or] futility of the amendment . . . .”

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178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d

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1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to

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be considered when deciding whether to grant leave to amend).

Foman v. Davis, 371 U.S.

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Not all of these factors merit equal weight.

Rather, “the

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consideration of prejudice to the opposing party . . . carries

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the greatest weight.”

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DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir.

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1987).

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clear that “the complaint could not be saved by any amendment.”

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Intri-Plex Techs. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th

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Cir. 2007) (internal citations and quotations omitted).

Eminence Capital, 316 F3d at 1052 (citing

Dismissal without leave to amend is proper only if it is

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ANALYSIS

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A.

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Plaintiff’s § 1983 claims

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Defendants contend that none of Plaintiff’s § 1983 claims

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against Mineau in either his individual, or his supervisory

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capacity are cognizable because Plaintiff has failed to allege

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any violations of Decedent’s or Plaintiff’s federally guaranteed

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rights.

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Specifically, Defendants contend that Plaintiff has failed to

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state facts sufficient to show that Mineau was deliberately

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indifferent to Decedent’s serious medical needs such that the

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court could infer a plausible constitutional violation.

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at 3:22-6:12.)

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Section 1983 claims also fail against the County of Lassen

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because: (1) Plaintiff has improperly brought her first four §

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1983 claims on behalf of Decedent for his pain and suffering and

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(2) Plaintiff fails to adequately plead the existence of a policy

(See MTD

Defendants further contend that Plaintiff’s

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to establish Monell liability.

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Plaintiff counters that the circumstantial evidence, as pled by

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the TAC, is sufficient for the court to infer that Mineau was

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deliberately indifferent to Plaintiff’s serious medical needs,

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and the County’s failure to train caused Plaintiff’s

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constitutional deprivation such that the motion to dismiss should

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be denied in accordance with the standard governing dismissal

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under Rule 12(b)(6).

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(See Id. at 9:4-13-21.)

The court examines Plaintiff’s § 1983 claims in three parts:

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(1) Plaintiff’s individual liability claims against Mineau;

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(2) Plaintiff’s supervisory liability claims against Mineau; and

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(3) Plaintiff’s Monell liability claims against Lassen County.

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The court will then analyze Plaintiff’s state law claims.

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Individual Liability6

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As opposed to prisoner claims under the Eighth Amendment, a

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pretrial detainee is entitled to be free of cruel and unusual

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punishment under the due process clause of the Fourteenth

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Amendment.

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Navajo Cnty., Ariz., 609 F.3d 1011, 1017-18 (9th Cir. 2010).

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pretrial detainee’s due process right in this regard is violated

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when a jailer fails to promptly and reasonably procure competent

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medical aid when the pretrial detainee suffers a serious illness

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or injury while confined.

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105 (1976).

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to provide medical treatment, Plaintiff must plead sufficient

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facts to permit to court to infer that (1) Decedent had a

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“serious medical need that (2) Mineau was “deliberately

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indifferent” to that need.

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(9th Cir. 2006); Cf. Farmer v. Brennan, 511 U.S. 825, 834, 837

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(1994).

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prisoner’s condition could result in further significant injury

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or the unnecessary and wanton infliction of pain.

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at 1096 (internal citations and quotations omitted).

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Bell v. Wolfish, 441 U.S. 520, 537 n. 16; Simmons v.
A

Estelle v. Gamble, 429 U.S. 97, 104-

In order to establish a plausible claim for failure

Jett v. Penner, 439 F.3d 1091, 1096

A serious medical need exists when “failure to treat a

Jett, 439 F.3d

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As the court noted in its previous memorandum and order,
“There is no longer a need to bring official-capacity actions
against local government officials, for . . . local government
units can be sued directly for damages and injunctive relief.
(ECF No. 38 at 8:25-28 [quoting Kentucky v. Graham, 473 U.S. 159,
166 (1985)].) Thus, as the court held in its previous order
dismissing Plaintiff’s claims against Sheriff Warren, all of
Plaintiff’s claims against Mineau in his official capacity are
hereby dismissed with prejudice.
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The Supreme Court, in Farmer, explained in detail the

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contours of the “deliberate indifference” standard.

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Specifically, Mineau is not liable under the Fourteenth Amendment

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for his part in allegedly denying necessary medical care unless

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he knew “of and disregard[ed] an excessive risk to [Mineua’s]

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health or safety”

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both an objective and subjective component: “the official must

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both be aware of facts from which the inference could be drawn

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that a substantial risk of serious harm exists, and he must also

Id. at 837.

Id.

Deliberate indifference contains

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draw that inference.”

Plaintiff “need not show that a

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prison official acted or failed to act believing that harm

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actually would befall an inmate; it is enough that the official

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acted or failed to act despite his knowledge of a substantial

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risk of serious harm.”

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for purposes of this motion, “[w]hether a prison official had the

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requisite knowledge of a substantial risk is a question of fact

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subject to demonstration in the usual ways, including inference

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from circumstantial evidence, and a fact finder may conclude that

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a prison official knew of a substantial risk from the very fact

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that the risk was obvious.”

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citations ommitted).

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standard “sends a clear message to prison officials that their

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affirmative duty under the Constitution for the safety of inmates

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is not to be taken lightly.

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concurring).

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Id. at 842 (emphasis added).

Important

Id. (emphasis added) (internal

According to the Supreme Court, this

Id. at 852 (Blackmun, J.,

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The court finds unavailing Defendants’ contentions that the

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TAC lacks sufficient allegations to support any7 of Plaintiff’s

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§ 1983 claims in his individual capacity.

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all the circumstances as alleged, the court can reasonably infer

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that Mineau was deliberately indifferent to Decedent’s serious

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medical needs.

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relevant to Mineau are as follows: he had knowledge of Decedent’s

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history based on the fact that he “worked as the undersheriff of

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Lasssen County during the incidents that are described . . .

Specifically, based on

The circumstantial facts, as alleged, that are

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[and] gave testimony to set the bail for Michael Parker at

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$150,000 on a misdemeanor offense” (Compl ¶ 6, 33); Mineau knew

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Plaintiff and has intimate knowledge of decedent’s history with

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the County (See Id. ¶¶ 33, 41.); Decedent’s doctor sent a letter

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explaining that Decedent should be put on house arrest as opposed

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to detention because of his serious medical condition (Id. ¶ 23);

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during a previous confinement at the facility, Decedent had to be

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admitted to the hospital for emergency surgery (Id. ¶ 20); during

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previous detainments, Decedent put in numerous requests to see

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the doctor (Id. ¶ 18); when Nancy Schwartz visited her son, she

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requested that he be released for medical attention (Id. ¶ 36-

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37); within just two weeks of detention, Decedent had lost over

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forty pounds (Id. ¶ 38);

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As set forth below, Plaintiff’s first through fourth
claims under § 1983 are dismissed with leave to amend as they are
improperly brought on behalf of Decedent for his pain and
suffering. In reaching this conclusion, however, the court does
not hold that these claims should be dismissed for faiCure to
allege sufficient facts to state a claim for deliberate
indifference; rather, the claims are simply pled improperly on
behalf of Decedent. Moreover, this analysis in no way affects
Plaintiff’s eleventh claim for deprivation of familial
relationship under § 1983.
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when Plaintiff asked her son “why he had not seen a doctor[] he

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stated to her that the staff had said to him to “quit complaining

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and make the best of it” (Id. ¶ 39); ultimately, and although he

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was not able to make bail, Decedent had to be released from the

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facility and admitted to the hospital because his health was

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failing so quickly. (Id. ¶ 40); Although Mineau knew of

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Decedent’s relocation, did not contact Plaintiff when her son was

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transported from the Facility to the hospital (Id. ¶ 41.)

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Finally, Plaintiff alleges that “Mineau personally knew that

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[Decedent] was seriously and critically ill, that incarceration

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posed a substantial risk of serious harm if not treated and

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refused to implement any policy or protocol at the [Facility] to

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provide for the prompt response to serious medical needs.”

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at 53.)

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(Id.

Based on the these facts, which the court must accept as

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true, the court can reasonably infer that it was certainly

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plausible that Mineau knew of, and failed to respond to,

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Decedent’s serious medical condition.

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supported by the fact that, “[t]he common jails in the several

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counties of [California] are kept by the sheriffs of the counties

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in which they are respectively situated.”

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§ 4000.

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relation to the facility, and the circumstances as alleged —

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especially Mineau’s intimate knowledge of Decedent’s case — the

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court can reasonably infer that it is plausible that Mineau was

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deliberately indifferent to Decedent’s serious medical needs.

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This conclusion is

Cal. Penal Code

Based on the Sheriff Department’s unique position in

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As a point of reference, the court notes the factual

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similarities between this case and Martin v. Board of Cnty.

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Comm’r of Cnty. Of Pueblo, 909 F.2d 402 (10th Cir. 1990).

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Martin, Plaintiff brought a civil rights suit under § 1983 for

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disregard of medical needs during pretrial detention.

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plaintiff’s transportation to county jail, a physician warned the

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transporting officers of the significant risk of injury “should

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she be moved other than by wheelchair or gurney, and that she was

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to be released only to the care of her parents.”

In

Prior to

Id. at 404.

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The physician requested that, at the very least, the transporting

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officers “contact plaintiff’s attending physician before moving

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her.”

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injury was allegedly aggravated during transportation.

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upholding the district court’s denial of defendants’ motion for

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summary judgment on qualified immunity grounds, the court held

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that the evidence “raised factual questions whether defendants

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deliberately disregarded the medical information and warnings

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given by plaintiff's mother regarding her daughter's serious,

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fragile condition, and refused her request that they contact the

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attending physician for instructions before moving plaintiff.”

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Id. at 406.

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facts to survive defendants’ motion for summary judgment based on

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her allegations that Mineau and other prison officials

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deliberately disregarded the letter Plaintiff’s physician wrote

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explaining that, because of his serious medical condition, he

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should not be detained at the facility.

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Id.

The officers ignored the warning and plaintiff’s neck
Id.

In

Similarly, here, Plaintiff has alleged sufficient

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The court further finds Defendants’ three main arguments

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that the facts, as alleged, are insufficient to survive dismissal

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unconvincing.

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contentions that: (1) Mineau’s statements during the bond hearing

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are irrelevant because “[a] law enforcement officer can only be

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held liable for . . . excessive bail ‘if they prevented the

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[judicial officer] from exercising his independent judgment’”

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(MTD at 5:1-3 [quoting Muhammad v. San Diego County Sheriff’s

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Dep’t., 2008 WL 821832 *2 (S.D. Cal. 2008)]); (2) Plaintiff’s

Specifically, the court refers to Defendants’

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allegation that Mineau refused to implement a policy of providing

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a prompt response to medical needs is belied by a previous

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statement alleging that there is a policy of requiring inmates to

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submit written requests for medical care (Id. at 5:6-16);

14

(3) Plaintiff’s claim for loss of familial relationship is not

15

cognizable because Plaintiff did not plead that Mineau’s conduct

16

“shocked the conscience” (Id. at 5:26-6:12.)

17

First, while Defendants correctly state the law concerning a

18

law enforcement officer’s potential liability for excessive bail,

19

they fail to correctly apply it.

20

whether Mineau knew of, and failed to address Decedent’s medical

21

condition, not whether Mineau is directly liable for the

22

excessive bail.

23

as it tends to show that Mineau had extensive knowledge of

24

Decedent’s history and detainment at the facility.

25

///

26

///

27

///

28

///

Specifically, the issue is

In this regard, Mineau’s testimony is relevant

16

1

Even if the latter question were the relevant one here, if, as

2

Plaintiff alleges, Mineau purposefully distorted his testimony

3

for purposes of obtaining a higher bail, the court could

4

undoubtedly infer that he “prevented the [judicial officer] from

5

exercising his independent judgment.”

6

*2 (quoting Galen v. County of Los Angeles, 477 F.3d 652, 659

7

(9th Cir. 2007).)

8
9

Muhammad, 2008 WL 821832

Second, Defendants’ contention that Plaintiff admitted there
was indeed a medical policy in place is a non-sequitur.

10

Specifically, whether there was a specific policy of requiring

11

written submissions for medical care has no bearing on whether

12

Mineau is potentially liable in his personal capacity for being

13

deliberately indifferent to Decedent’s serious medical needs.

14

other words, Defendants are simply applying the incorrect

15

standard to the issue of Mineau’s liability in his individual

16

capacity.

17

Defendants’ third arguments are similarly misplaced.

18

Specifically, Plaintiff need not actually state the words

19

“Defendant’s conduct shocked the conscience”; she is merely

20

required to plead facts which could plausibly demonstrate that

21

Defendant was deliberately indifferent to Plaintiff’s medical

22

needs.

23

Police Dep’t., 159 F.3d 365, 372 (9th Cir. 1998) is misplaced.

24

Specifically, Moreland involved a substantive due process claim

25

arising out of a police shooting, not a claim for failure to

26

provide medical care.

27

///

28

///

In

Defendants’ reliance on Moreland v. Las Vegas Metro.

17

1

Indeed, the very authority Defendants rely upon specifically

2

states that “Eighth Amendment claims based on medical care are

3

governed by [a] different culpability standard than claims

4

involving harm inflicted by officers responding to . . .

5

disturbances.”

6

312, 320-321 (1986)).

7

Id. at 372 (citing Whitley v. Albers, 475 U.S.

In sum, the court concludes that, at this point in the

8

litigation, without substantial discovery, and where the court

9

must draw all inferences in favor of Plaintiff, the TAC contains

10

sufficient factual allegation for the Court to infer that

11

Mineau’s deliberate indifference to Decedent’s serious medical

12

needs resulted in Decedent’s constitutional deprivation.

13
14

2.

Supervisory Liability

15
16

Plaintiff contends that Mineau is also liable for Decedent’s

17

constitutional deprivation in his supervisory capacity because he

18

“knew of the blatant disregard of [Decedent’s] serious medical

19

need and he participated in keeping [Decedent] in jail to deprive

20

him of medial care and knew that he should have been released to

21

obtain medical care.”

22

[ECF No. 50] at 6:4-9.)

23

Plaintiff’s argument that Mineau is liable for Decedent’s alleged

24

constitutional deprivation in his supervisory capacity.

25

Defendants rely on the same argument asserted in support of its

26

contention that Mineau is not liable in his individual capacity

27

— Plaintiff has not alleged sufficient facts to implicate Mineau

28

in the deprivation of Decedent’s Fourteenth Amendment rights.

(Pl.’s Opp’n, filed Sept. 22, 2011
Defendants do not specifically address

18

Instead,

1

State officials are “persons” within the meaning of § 1983.

2

Hafer v. Melo, 502 U.S. 21, 22 (1991).

3

may be sued in their individual capacity for damages resulting

4

from an alleged violation of a prisoner’s Constitutional rights

5

under § 1983.

6

individual liability upon a government officer for actions taken

7

under color of state law.”

8

not be held liable for the unconstitutional conduct of their

9

subordinates under a theory of respondeat superior.

Id.

As such, prison officials

Individual capacity suits “seek to impose

Id. at 25.

Government officials may

Iqbal,

10

129 S. Ct. at 1948.

Rather, each government official may only be

11

held liable for his own misconduct.

12

Abuse Treatment Facility, No. 1:10-CV-02336-AWI-DLB PC, 2011 WL

13

2224817, at *4 (E.D. Cal. June 7, 2011).

Bowell v. Cal. Substance

However, government officials acting as supervisors8 may be

14
15

liable under § 1983 under certain circumstances.

A defendant may

16

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

17

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

18

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

19

supervisor’s wrongful conduct and the Constitutional violation.

20

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

21

actions against supervisors are proper as long as a sufficient

22

causal connection exists and the plaintiff was deprived under

23

color of law of a federally secured right.

24

633 F.3d 1191, 1196 (9th Cir. 2011) (quoting Redman v. Cnty. of

25

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

26

///

Thus, § 1983

Starr v. Baca,

27
8

28

Defendants do not contest that Mineau is a “supervisor”
for purposes of supervisory liability under § 1983.
19

1

The requisite causal connection between a supervisor’s

2

wrongful conduct and the violation of the prisoner’s

3

Constitutional rights can be established in a number of ways.

4

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

5

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

6

acts by others, which the supervisor knew or reasonably should

7

have known would cause others to inflict a Constitutional injury.

8

Dubner v. City of S.F., 266 F.3d 959, 968 (9th Cir. 2001).

9

Similarly, a supervisor’s own culpable action or inaction in the

10

training, supervision, or control of his subordinates may

11

establish supervisory liability.

12

Finally, a supervisor’s acquiescence in the alleged

13

constitutional deprivation, or conduct showing deliberate

14

indifference toward the possibility that deficient performance of

15

the task may violate the rights of others, may establish the

16

requisite causal connection.

17

409 F.3d 1113, 1149 (9th Cir. 2005).

18

Starr, 633 F.3d at 1197.

Id.; Menotti v. City of Seattle,

In this case, based on two of the aforementioned theories,

19

Plaintiff’s complaint contains sufficient factual allegations to

20

establish a causal connection between Mineau’s allegedly wrongful

21

conduct and the constitutional violation such that it survives

22

Defendants’ motion to dismiss.

23

sufficient factual allegations to permit the court to reasonably

24

infer that Mineau plausibly refused to terminate a series of acts

25

by his subordinates, which the supervisor knew or reasonably

26

should have known would cause others to inflict a Constitutional

27

injury.

28

///

First, the complaint contains

20

1

Specifically, Plaintiff alleges that Decedent’s physical health

2

was visibly deteriorating, that he had requested medical care on

3

numerous occasions, that Mineau knew of his deteriorating health

4

but, as undersheriff of Lassen County, failed to ensure that the

5

Facility provided him sufficient medical care.

6

on these same facts, the court can reasonably infer that Mineau

7

plausibly acquiesced in the alleged constitutional deprivation

8

and was deliberately indifferent to the possibility that his

9

subordinates deficiently performed in providing Decedent

10

Moreover, based

necessary medical care.

11

In sum, at this stage of the litigation, in which little to

12

no discovery9 has been conducted, and where all reasonable

13

inferences must be drawn in favor of Plaintiff, the Court cannot

14

conclude that, based on the facts as alleged, Plaintiff has no

15

plausible claim that Mineau is liable under Section 1983 for

16

Plaintiff’s constitutional deprivation in either his individual

17

or supervisory capacity.

18

///

19

///

20

///

21

///

22

///

23
9

24
25
26
27
28

The court notes that fully-developed discovery —
particularly Mineau’s deposition — is necessary for the ultimate
resolution of Plaintiff’s § 1983 claims against Mineau. For
example, discovery may reveal that Mineau indeed had intimate
knowledge of Decedent’s deteriorating health but did nothing to
insure adequate medical care, which would militate in favor of
Plaintiff’s claims; conversely, discovery may reveal that it
would have been impossible for Mineau to know of Decedent’s
health, which would militate in favor of denying Plaintiff’s
claim.
21

3.

1

Monell Liability10 Against Lassen County

2
3

Defendants tether their contention that Plaintiff has failed

4

to allege sufficient facts to permit the Court to infer that the

5

County plausibly is liable under § 1983 on a theory of Monell

6

liablility to the fact that Plaintiff only alleges a single

7

incident in which a pretrial detainee at the Facility has been

8

denied adequate medical care.

9

Reply, filed Sept. 29, 2011 [Ecf No. 52], at 6-7.)

(See MTD at 10-11; see also Def.’s
Specifically,

10

defendants argue that, since “sporadic or isolated incidents are

11

not a sufficient basis to state a Section 1983 claim,” and

12

Plaintiff fails to point to any instances — besides the single

13

incident of Decedent’s passing — “that would support an

14

inference that a custom of deliberate indifference to serious

15

medical conditions existed in the County,” Plaintiff’s claims

16

against the County must be dismissed.

17

///

18

///

19

///

20

///

21
22
23
24
25
26
27
28

10

The Court previously denied Defendants’ motion to dismiss
Plaintiff’s claims based on failure to provide medical care “to
the extent these causes of action seek to recover for injuries
Parker sustained while incarcerated as a pre-trial detainee.”
(ECF No. 38 at 13:21-23.) However, those claims only survived
because “the County d[id] not challenge the factual underpinnings
of the claims themselves and instead attack[ed] only Plaintiff’s
misidentification of the proper constitutional amendment.” (Id.
at 13:26-28.) Defendants now contend that Plaintiff has not
alleged sufficient facts to establish liability against the
County under the Fourteenth Amendment. Thus, the Court now, for
the first time, addresses the substantive merits of Plaintiff’s
factual allegations in this regard.
22

1

Plaintiff responds that, based on the particularly egregious

2

nature of the facts as alleged, Plaintiff has alleged a custom of

3

failure to train, supervise or discipline employees who fail to

4

provide medical care to an incarcerated pretrial detainee

5

sufficient to withstand a motion to dismiss.

6

Defendants also maintain that, because claims one through

7

four, “pursuant to Section 1983, ple[d] o[n] behalf of the

8

Estate[,] seek damages for pain and suffering, those [claims]

9

should be dismissed.”

(MTD at 10:1-2.)

In support of this

10

proposition, Defendants cite to a number of holdings from the

11

Eastern District of California Defendants maintain proscribe

12

survivors from recovering damages for a Decedent’s pain and

13

suffering.

14

contention; instead, Plaintiff merely declares that she “believes

15

that the reasoning and legal analysis” of Defendants and the

16

cases Defendants rely on “do[] not preclude the kind of wrongful

17

death suffered.”

18

Plaintiff does not directly address Defendants’

(Pl.’s Opp’n at 10:11-16.)

The court finds unavailing Defendants’ contention that the

19

allegations supporting Plaintiff’s § 1983 claims do not state

20

sufficient facts to allow the Court to infer that Lassen County

21

plausibly had an official policy or custom that caused the

22

alleged constitutional deprivation.

23

governments cannot be vicariously liable for employee conduct

24

under § 1983, but rather are only “responsible for their own

25

illegal acts.”

26

(quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986).)

27

///

28

///

Municipalities or local

Connick v. Thompson 131 S. Ct. 1350, 1359 (2011)

23

1

In other words, a municipality may only be liable where it

2

individually causes a constitutional violation via “execution of

3

a government’s policy or custom, whether by its lawmakers or by

4

those whose edicts or acts may fairly be said to represent them.”

5

Monell v. Dep’t of Social Services, 436 U.S. 658, 694 (1978);

6

Ulrich v. City & County of San Francisco, 308 F.3d 968, 984

7

(9th Cir. 2002).

8

decisions of a government's lawmakers, the acts of its

9

policymaking officials, and practices so persistent and

“Official municipal policy includes the

10

widespread as to practically have the force of law.”

11

131 S. Ct. at 1359.

12

Connick,

Complete inadequacy of training may amount to a policy

13

giving rise to Monell liability; however, “adequately trained

14

officers occasionally make mistakes; the fact that they do says

15

little about the training program or the legal basis for holding

16

the [municipality] liable.”

17

378, 379 (1989).

18

inadequate training is only cognizable under Section 1983 “where

19

that city’s failure to train reflects deliberate indifference to

20

the constitutional rights of its inhabitants.”

21

In sum, “Plaintiff can allege that through its omissions the

22

municipality is responsible for a constitutional violation

23

committed by one of its employees, even though the municipality’s

24

policies were facially constitutional [and] the municipality did

25

not direct the employees to take the unconstitutional action,” as

26

long as the court may infer that those omissions amounted to a

27

deliberate indifference to Plaintiffs’ constitutional rights.

28

Gibson, 290 F.3d at 1193-94.

City of Canon v. Harris, 489 U.S.

It therefore follows that, a claim of

24

Id. at 392.

1

Defendants’ argument is on point in one regard: generally

2

speaking, in order to prove deliberate indifference, it is

3

“ordinarily necessary” to demonstrate “a pattern of similar

4

constitutional violations by untrained employees.”

5

131 S. Ct. at 1360 (citing Bryan Cnty Com’rs of Bryan Cnty

6

Okl. v. Brown, 520 U.S. 397, 409 (1997)).

7

Court, in Connick, recently affirmed the validity of the

8

so-called “single-incident” theory.

9

the court affirmed that, under City of Canton, Ohio v. Harris,

10

489 U.S. 378 (1989), a particular “showing of ‘obviousness’ can

11

substitute for the pattern of violations ordinarily necessary to

12

establish municipal liability.”

13

However, Connick took care to note that it is only “‘in a narrow

14

range of circumstance’ [that] a pattern of similar violations

15

might not be necessary to show deliberate indifference.”

16

(quoting Bryan Cnty, 520 U.S. at 409.)

17

protected right must be a “highly predictable consequence” of a

18

failure to train.

19

incident” theory represents the Supreme Court’s refusal to

20

“foreclose upon the possibility” that the failure to train is so

21

patently obvious that a single constitutional violation suffices

22

to give rise to municipal liability under § 1983.

23

Id.

Connick,

However, the Supreme

Specifically, in Connick,

Connick, 131 S. Ct. at 1361.

Id.

A violation of a

Connick explained that the “single-

Id.

In this case, the Court finds that, based on the allegations

24

in the complaint, it is plausible that the failure to train was

25

so obviously deficient that it could lead to liability resulting

26

from the single constitutional deprivation at issue here.

27

///

28

///
25

1

In other words, the court can reasonably infer that, based on the

2

particular circumstances as alleged, the facility’s employees so

3

obviously lacked training in providing proper medical care that

4

it resulted in Decedent’s death and, consequently, Plaintiff’s

5

loss of her son’s companionship.

6

Decedent visibly lost forty pounds; directly requested, and was

7

refused, medical care; and previously had medical complications

8

while detained at the Facility.

9

by Plaintiff’s assertion that Decedent’s physician sent a letter

10

explaining that, because of Decedent’s severe medical condition,

11

he should not be detained at the Facility, but rather should be

12

placed in the care of his mother.

13

litigation, absent more fully-developed facts, the Court declines

14

to dismiss Plaintiff’s § 1983 claims on the basis that Plaintiff

15

has only alleged a single incident of failure to provide medical

16

care.11

17

Specifically, as alleged,

These allegations are compounded

Thus, at this stage of the

While the court finds that Plaintiff’s first four claims

18

state a plausible claim to withstand 12(b)(6) dismissal with

19

regard to Monell liability, those claims fail on other grounds.

20

Specifically, ”[t]he Eastern District has consistently held that

21

§ 377.34 [of the California Code of Civil Procedure] is not

22

inconsistent with Section 1983, and has thus barred survivor

23

claims for pain and suffering damages under Section 1983.”

24

///

25
11

26
27
28

Defendants are free to re-assert their “single-incident”
theory at the summary judgment stage as further discovery will
shed light on the specific circumstances that led to Decedent’s
death. However, at this stage of the litigation, and based on
the nature of the allegations, that argument does not convince
the Court that outright dismissal is appropriate.
26

1

Estate of Contreras ex rel. Contreras v. Cnty of Glenn,

2

725 F. Supp. 2d 1161 (E.D. Cal. 2010).

3

Venerable v. City of Sacramento, 185 F. Supp. 2d 1128, 1133

4

(E.D. Cal. 2002), which held that, “[b]ecause state law does not

5

permit recovery of a decedent’s pain and suffering, [Plaintiff’s]

6

claim for pain and suffering from injury leading to death does

7

not survive and will be dismissed.”

8

[also] well established in the Ninth Circuit that a ‘parent has a

9

constitutionally protected liberty interest in the companionship

This trend began with

Id.

However, “[i]t is

10

and society of his or her child” that is violated when a

11

defendant is deliberately indifferent to that right.

12

(quoting Ward v. City of San Jose, 967 F.2d 280, 283 (9th Cir.

13

1998).

14

Id. at 1131

In this case, each of Plaintiff’s first four claims rely on

15

Plaintiff’s allegations that the County’s “complete failure to

16

train was the actual and proximate cause of [Decedent’s]

17

unnecessary and wanton infliction of pain and physical injury.”

18

(See TAC ¶ 73; see also Id. ¶¶ 80, 89, 95 [describing Decedent’s

19

pain and anguish]) (emphasis added).

20

where the failure to train resulted in Decedent’s death, and

21

thus, the deprivation of Plaintiff’s liberty interest in the

22

companionship of her child, she is precluded from recovering for

23

her deceased child’s pain and suffering.

24

///

25

///

26

///

27

///

28

///
27

While Plaintiff may recover

1

As such, Plaintiff’s first, second, third and fourth claims, the

2

essence of which consist of Decedent’s pain and suffering, are

3

hereby dismissed with leave to amend.12

4
B.

5

Plaintiff’s State Law Claims
1.

6

Plaintiff’s Tenth Claim — California Civil Code
§ 52.1

7
8
9

In its memorandum and order on Plaintiff’s motion to dismiss
Plaintiff’s Second Amended Complaint, the court dismissed

10

Plaintiff Tenth Cause of Action for violation of California Civil

11

Code § 52.1 because “the setting of a bond, without more, cannot

12

be viewed as intimidation or coercion, nor does a passing

13

comment, though insensitive, that [Decedent] should learn to

14

‘make the best of it’ rise to the level of a threat.”

15

No. 38 at 20:1-6.)

16

she “was threatened with the further imprisonment of her son, the

17

further denial of medical treatment if she continued to request

18

visitation with him or further phone calls with him.”

19

¶ 127.)

20

sufficiently amended her complaint to demonstrate sufficient

21

threat or coercions by Defendants to withstand dismissal of the

22

claim.

23

///

24

///

25

///

(ECF

Plaintiff amended her complaint to state that

(TAC

Defendants now maintain that Plaintiff has not

26
12

27
28

Plaintiff’s eleventh claim under § 1983, is brought not
to recover for Decedent’s pain and suffering, but rather on her
own behalf for loss of familial relationship. Thus, Plaintiff’s
eleventh claim for relief survives.
28

1

Plaintiff again takes the position her allegations are sufficient

2

here because Parker’s bond was set purposefully high, which

3

intimidated Parker by forcing his incarceration, and that Parker

4

was threatened when jail staff responded to his medical

5

complaints by telling him to quit complaining and make the best

6

of it.

7

As the Court previously held, Plaintiff’s repeated

8

allegations are simply insufficient to give rise to a claim under

9

Section 52.1.

Moreover, liability pursuant to Section 52.1 is

10

“limited to plaintiffs who themselves have been the subject of

11

violence and threats.”

12

38 Cal. App. 4th 141, 145 (1995).

13

however, states that the alleged “threats” and “violence” were

14

directed at Decedent.

15

to dismiss Plaintiff’s Tenth claim for relief is granted without

16

leave to amend.

Bay Area Rapid Transit v. Sup. Ct.,
The complaint in this case,

Based on the foregoing, Defendants’ motion

17
2.

18
19

Plaintiff’s eighth, ninth, twelfth and thirteenth
claims — Negligent Infliction of Emotional
Distress & Intentional Infliction of Emotional
Distress

20
21

Defendants contend that Plaintiff’s eighth and ninth claims

22

for negligent infliction of emotional distress (“NIED”) and

23

intentional infliction of emotional distress (“IIED”), brought on

24

behalf of Decedent, should be dismissed because claims for NIED

25

and IIED can only be brought in Plaintiff’s individual capacity.

26

///

27

///

28

///
29

1

Defendants further maintain that Plaintiff’s twelfth and

2

thirteenth claims against the County should be dismissed because

3

public entities cannot be liable under these common law theories

4

of recovery.

5

and thirteenth claims against Mineau should be dismissed for

6

failure to state sufficient facts to give rise to either an NIED

7

or IIED claim.

8
9

Finally, Defendants assert that Plaintiff’s twelfth

Plaintiff does not specifically address Defendants’ various
arguments with regard to her NIED and IIED claims.

Instead,

10

Plaintiff submits a blanket argument that the “emotional scarring

11

suffered by the Plaintiff is adequately pled.”

12

Specifically, Plaintiff avers that Mineau’s refusal to provide

13

Decedent medical care and failure to inform Plaintiff that

14

Decedent was transferred to the hospital “shocks the conscience.”

15

(Id. at 10:1-9.)

16

(Opp’n at 9:5.)

First, Defendants seek to dismiss Plaintiff’s eighth and

17

ninth claims which Plaintiff brings to redress the psychological

18

and physical harm Decedent suffered as result of Defendants

19

alleged failure to provide adequate medical care.

20

¶¶ 119, 121.)

21

emotional distress do not survive the death of Decedent.

22

Specifically, under California law:

23

Under California law, an estate’s tort claims for

[i]n an action or proceeding by a decedent's personal
representative or successor in interest on the
decedent's cause of action, the damages recoverable are
limited to the loss or damage that the decedent
sustained or incurred before death, including any
penalties or punitive or exemplary damages that
decedent would have been entitled to recover had the
decedent lived, and do not include damages for pain,
suffering, or disfigurement.

24
25
26
27
28

(See TAC

///
30

1

Cal. Civ. Proc. Code § 377.34 (emphasis added).

2

Circuit recently affirmed this rule, upholding with the District

3

Court’s conclusion that, “under California law, the Estate's tort

4

claims for emotional distress did not survive the death” of

5

Decedent.

6

560 F.3d 1042, 1050-51 (9th Cir. 2009).

7

eighth and ninth claims are brought solely on behalf of Decedent,

8

those claims are dismissed without leave to amend.

9

The Ninth

Martin v. California Dept. of Veteran Affairs,
Because Plaintiff’s

Second, the Court finds that the public entity Defendants’

10

contention that Plaintiff’s twelfth and thirteenth California

11

common law causes of action must be dismissed is well-taken.

12

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

13

[a] public entity is not liable for any injury, whether such

14

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

15

a public employee or any other person.”

16

§ 815(a).

17

states, “This section abolishes all common law or judicially

18

declared forms of liability for public entities, except for

19

such liability as may be required by the state or federal

20

constitution, e.g., inverse condemnation.

21

constitutional requirement, public entities may be held liable

22

only if a statute...is found declaring them to be liable.”

23

Accordingly, “the exclusive basis of public entity tort

24

liability is statutory.”

25

Dept. of Transportation, 100 Cal. App. 3d 980, 986 (1979).

26

Plaintiff raises no argument in opposition to the entity

27

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

28

are therefore dismissed without leave to amend.

Cal. Gov. Code

The Legislative Committee Comment to Section 815

In the absence of a

Tolan v. State of California ex rel.

31

1

The Court, however, finds unavailing Defendants’

2

contention that Plaintiff’s twelfth claim for NIED against

3

Mineau should be dismissed for failure to allege that Mineau

4

owed Plaintiff a duty.

5

negligence, and thus, a Plaintiff asserting an NIED claim must

6

show that the defendant owed the plaintiff a duty of care.

7

Lawson v. Mgmt. Activities, 69 Cal. App. 4th 652, 656 (1999).

8

Plaintiff specifically alleges that, under California law, the

9

county Sheriff has a broad and affirmative duty to “keep the

NIED claims are merely a species of

10

county jail and the prisoners in it, and is answerable for the

11

prisoner’s safekeeping.”

12

Gov’t Code §§ 26605, 26610; Brandt v. Bd. of Supervisors,

13

84 Cal. App. 3d 598, 601; Cal. Penal Code §§ 4000, 4006].)

14

Contrary to Defendants’ contention, Plaintiff has specifically

15

alleged that the Sheriff, and by implication, undersheriff

16

Mineau, owed Decedent as a detainee at the Lassen County jail a

17

duty.

18

so at the summary judgment stage; at this stage, however,

19

Plaintiff has alleged sufficient facts to withstand a motion to

20

dismiss.

(Pl.’s Opp’n at 6:10-16 [citing Cal.

If Mineau wishes to contest this duty, he is free to do

21

Conversely, the Court finds persuasive Defendants’

22

contention that Plaintiff has failed to allege a prima facie

23

case for IIED, Plaintiff’s thirteenth claim against Mineau.

24

“The elements of a prima facie case for the tort of intentional

25

infliction of emotional distress are:

26

///

27

///

28

///
32

1

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

2

intention of causing, or reckless disregard of the probability

3

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

4

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

5

proximate causation of the emotional distress by the

6

defendant’s outrageous conduct.”

7

24 Cal. 3d 579, 593 (1979) (overturned on other grounds).

8

Under California law, “the rule which seems to have emerged is

9

that there is liability for conduct exceeding all bounds

Cervantez v. J.C. Penney Co.,

10

usually tolerated by a decent society, of a nature which is

11

especially calculated to cause and does cause, mental distress

12

of a very serious kind.”

13

159, 166 n.5 (1985) (emphasis in original).

14

Ochoa v. Superior Court, 39 Cal. 3d

Plaintiff paints with too broad a conclusory brush in

15

support of her intentional infliction of emotional distress

16

claim against Mineau.

17

opposition to the motion that the “standard is met when

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Undersheriff John Mineau refused medical care for Michael

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Parker and then failed and refused to allow his mother to

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visit” simply does not suffice to demonstrate that Mineau’s

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conduct was especially calculated to cause Plaintiff severe

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emotional distress.

23

Ochoa, the California Supreme Court sustained a demurrer to

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plaintiff’s IIED claims in an abundantly similar factual

25

setting.

26

she observed his health visibly deteriorate while the staff at

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the juvenile facility he was detained at refused to provide him

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appropriate medical care.

Specifically, Plaintiff’s statement in

(Pl.’s Opp’n at 10:7-9.)

Indeed, in

Specifically, in Ochoa, plaintiff’s son died after

Id. at 162-165.
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1

As did the Ochoa court, the Court finds that Plaintiff simply

2

has not alleged sufficient facts to state a plausible IIED

3

claim against Mineau.

4

against Mineau is dismissed without leave to amend.

As such, Plaintiff’s thirteenth claim

5
C.

6

Plaintiff’s Claims for Punitive Damages

7
8
9

The Court previously dismissed Plaintiff’s claims for
punitive damages with leave to amend.

(See ECF No. 38.)

10

Defendants again contend that Plaintiff’s punitive damages

11

claim against the entity defendant is legally prohibited and

12

that Plaintiff has failed to allege that Mineau’s conduct was

13

so outrageous as to justify punitive damages.

14

opposition fails to address Defendants’ assertion that her

15

Punitive damages claims should be dismissed.

16

Plaintiff’s

First, as the Court previously held, Defendants’ arguments

17

are well-taken as to the entity Defendants because they are

18

immune from punitive damages liability as a matter of law.

19

Cal. Govt. Code § 818 (“Notwithstanding any other provision of

20

law, a public entity is not liable for damages awarded under

21

§ 3294 of the Civil Code of other damages imposed primarily for

22

the sake of example and by way of punishing the defendant.”);

23

Newport v. Fact Concerts Inc., 453 U.S. 427, 271 (1981) (“[A]

24

municipality is immune from punitive damages under 42 U.S.C.

25

§ 1983.”)

26

///

27

///

28

///
34

1

Moreover, while individual Defendants, such as Mineau, may be

2

liable for punitive damages under Section 1983 when “their

3

conduct is shown to be motivated by evil motive or intent,”

4

Plaintiff wholly fails to address Defendants’ motion to dismiss

5

her claim for punitive damages.

6

(1983).

7

hereby dismissed without leave to amend.

8

Plaintiff had addressed Defendants’ arguments, the Court also

9

finds that, as set forth above, Plaintiff’s allegation simply

10

does not show that Mineau acted with “evil motive or intent.”

11

Id.

12

for punitive damages is dismissed without leave to amend.

Smith v. Wade, 461 U.S. 30, 56

As such, Plaintiff’s claim for punitive damages are
Moreover, even if

As such, Defendants’ motion to dismiss Plaintiff’s claim

13
CONCLUSION

14
15
16

For the reasons stated above, Defendants’ Motions are

17

granted in part and denied in part, consistent with the

18

foregoing, as follows:

19

1.

Defendants’ motion to dismiss Plaintiff’s first,

20

second, third and fourth claims under § 1983 for decedent’s

21

pain and suffering is GRANTED with leave to amend as to the

22

County and Mineau.

23

2.

Defendants’ motion to dismiss Plaintiff’s eighth and

24

ninth claims for NIED and IIED in her representative capacity

25

is GRANTED without leave to amend.

26

3.

Defendants’ motion to dismiss Plaintiff’s twelfth and

27

thirteenth claims for NIED and IIED against the County is

28

GRANTED without leave to amend.
35

1
2
3

4.

Defendants’ motion to dismiss Plaintiff’s twelfth

claim for NIED against Mineau is DENIED.
5.

Defendants’ motion to dismiss Plaintiff’s thirteenth

4

claim for IIED against Mineau is GRANTED without leave to

5

amend.

6

6.

Defendants’ motion to dismiss Plaintiff’s eleventh

7

claim under Section 1983 for deprivation of familial

8

relationship is DENIED.

9
10
11

7.

Plaintiff’s entire complaint against Officer Vega is

dismissed without leave to amend.
8.

Defendant City of Susanville’s motion to dismiss is

12

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

13

twelfth and thirteenth claims is

14

amend; Defendant City of Susanville’s motion to dismiss

15

Plaintiff’s Eleventh claim is DENIED.

16
17
18
19

9.

GRANTED without leave to

Plaintiff’s claim for punitive damages is dismissed

against all Defendants without leave to amend.
IT IS SO ORDERED.
Dated: January 18, 2012

20
21
22

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

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26
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