Tandel v. County of Sacramento, et al

Filing 68

MEMORANDUM AND ORDER signed by Judge Morrison C. England, Jr on 2/17/12 GRANTING IN PART AND DENYING IN PART 42 Motion to Dismiss, 44 Motion to Dismiss, and 45 Motion to Dismiss in accordance with this Order. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SANDIPKUMAR TANDEL,

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No. 2:09-cv-00842-MCE-GGH
(Consolidated with Case
No. 2:11-cv-00353-MCE-GGH)

Plaintiff,
v.
COUNTY OF SACRAMENTO, et al.,

MEMORANDUM AND ORDER
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Defendants.

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----oo0oo---17
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Plaintiff Sandipkumar Tandel (“Plaintiff”) seeks redress for

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several federal and state law claims alleging that the County of

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Sacramento (“County”), Sheriff of Sacramento County, John

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McGinness (“McGinness”), Chief of Sacramento County Jail

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Correctional Health Services, Ann Marie Boylan (“Boylan”),

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Medical Director of Sacramento County Jail Correctional Health

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Services, Asa Hambly, M.D. (“Hambly”), Chris Smith, M.D.

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(“Smith”), Hank Carl, R.N. (“Carl”), Sergeant Tracie Keillor

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(“Keillor”), and Officer Pablito Gaddis (“Gaddis”) violated

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Plaintiff’s civil rights during Plaintiff’s detention at the

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Sacramento County Main Jail.
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Plaintiff further claims that said Defendants committed certain

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state-law violations.

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Plaintiff seeks compensatory and punitive damages, attorneys’

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fees and costs, and declaratory and injunctive relief.

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before the Court are the Motion to Dismiss of Defendants County,

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McGinness, Boylan, Hambly, Carl, Keillor and Gaddis (collectively

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“County Defendants”).

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Second Am. Compl. [“CDMTD”], filed July 22, 2011 [ECF No. 44].),

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and the Motion to Dismiss of Defendant Smith filed pursuant to

In his Second Amended Complaint (“SAC”),

Presently

(See County Defs.’ Mot. to Dismiss Pl.’s

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

(See Def. Smith’s Mot.

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to Dismiss Pl.’s Second Am. Compl. [“SMTD”], filed July 27, 2011

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[ECF No. 45].)

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motions are granted in part and denied in part.1

For the reasons set forth below, Defendants’

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BACKGROUND2

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On February 7, 2007, Plaintiff was arrested and incarcerated

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at the Sacramento County Main Jail (“the Jail”) as a pre-trial

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detainee.

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color, he was housed with the African-American inmates.

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April 27, 2007, Plaintiff suffered a head injury as a result of a

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racial altercation at the Jail.

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Plaintiff alleges that, because of his dark skin
On

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1
Because oral argument will not be of material assistance,
the Court ordered this mater submitted on the briefing. E.D.
Cal. R. 230(g).

2
The following facts are taken from Plaintiff’s Second
Amended Complaint (“SAC”), filed July 11, 2011 [ECF No. 43].

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Plaintiff was sent to the Emergency Room at the Doctor’s Center

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in Sacramento, where Dr. Gray, M.D., treated Plaintiff’s injury

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by cleaning and suturing the wound and vaccinating Plaintiff for

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tetanus.

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with instructions to remove the sutures in five days, leaving the

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wound open to air and keeping the wound clean.

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return to the Jail, he was seen by the Jail’s medical personnel

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who evaluated Plaintiff, noted the treatment and vaccination, and

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referred the matter to a doctor.

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personnel that he had a headache.

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Defendant Hambly reviewed Plaintiff’s chart on April 30, 2007.

The same day, Dr. Gray sent Plaintiff back to the Jail

Upon Plaintiff’s

Plaintiff informed Jail medical
Plaintiff alleges that

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After returning to the Jail, Plaintiff was placed into

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Administrative Segregation, where he remained for approximately

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two weeks.

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Administrative Segregation: (1) he repeatedly requested, but was

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denied, showers and items required for regular hygiene and for

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keeping his wound clean, and medical products for proper wound

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care; (2) he requested, but was denied, the removal of his

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sutures after five days; and (3) he requested, but was denied, a

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steady flow of clean water in the sink in his cell rather than a

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dripping faucet with brown water.

Plaintiff alleges that during his stay in the

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Plaintiff goes on to allege that the unit where he was

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housed was an indirect supervision unit and that, if he wanted to

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communicate with the staff, he had to push the call button in his

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cell.

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and that when the calls were answered, he was told, “We are

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working on it” and to “stop using the call button,” and finally

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to “stop complaining.”

Plaintiff claims that many of his calls went unanswered

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Eventually, the Jail staff stopped answering Plaintiff’s calls

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altogether.

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cell and regular showers, he could not keep his wound clean as

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prescribed by Dr. Gray.

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Plaintiff alleges that, without running water in his

On or about May 12, 2007, Plaintiff was moved to a regular

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cell and immediately requested medical care.

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allegedly saw Plaintiff on May 13, 2007.

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that he had been suffering from headaches for the past four days.

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Carl consulted with Defendant Dr. Smith who ordered the stitches

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Defendant Carl

Plaintiff informed Carl

removed and gave Motrin to Plaintiff.

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On or about May 14, 2007, Plaintiff again sought medical

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attention, complaining of headaches, sensitivity to light and

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nasal drip.

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was returned to his cell.

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collapsed while taking a shower when he lost control of his legs.

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Defendant Officer Gaddis responded to Plaintiff’s request for

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help but allegedly failed to use the radio to properly alert

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medical and custody staff of the emergency.

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Plaintiff, Gaddis also failed to file an incident or casualty

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report following the incident, in violation of Jail policy.

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May 17, 2007, Defendant Sergeant Keillor was the supervising

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officer on duty.

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Plaintiff was examined by a nurse, Jim Austin, and
On or about May 17, 2007, Plaintiff

According to

On

When Plaintiff was wheeled in a wheelchair for evaluation,

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he told Defendant Carl, “My legs don’t work.”

Plaintiff alleges

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that Carl failed to conduct an adequate medical assessment of a

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patient presenting with an apparent spinal cord injury or

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neurological disorder.

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cell without arranging for any medical follow-up.

Carl ordered Plaintiff returned to his

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Plaintiff alleges that, upon returning to his cell, he was dumped

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out of the wheelchair and left on the floor of his cell.

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On May 18, 2007, Plaintiff had a sudden and acute loss of

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vision in his left eye and started noticing that he was not able

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to move his lower extremities.

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urinary retention and constipation.

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emergency bell to summon help and informed the officers on duty

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that his legs did not work, that he could not urinate and that he

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was going blind, but was told to stop using the call button and

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He was also suffering from
He repeatedly rang the

that “these things would not kill him.”

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On May 20, 2007, at 11:44 a.m., Defendant Carl saw Plaintiff

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and referred him to see Defendant Dr. Smith.

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Plaintiff at 12:30 p.m. but allegedly “failed to take any

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appropriate medical action.”

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evaluated Plaintiff and noted that Plaintiff had been on the

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floor of his cell for three days.

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suffering from vision loss, an inability to control his

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extremities, get up to “void or defecate,” and other neurological

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impairments.

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room where he was found to have an expansive lesion in the spine

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and brain involvement.

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Dr. Smith saw

At 9:45 p.m., Dr. Horowitz

Plaintiff claimed to be

Dr. Horowitz sent Plaintiff to a local emergency

On May 21, 2007, Plaintiff was admitted to the University of

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California, Davis, Medical Center (“UCD”).

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Plaintiff was found to have bilateral lower extremity

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paraparesis, vision loss, occasional shakes to upper extremities,

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and an inability to eat or drink on his own.

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Upon admission,

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Because Plaintiff’s medical history allegedly did not accompany

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him to the hospital, the UCD treating physicians were unaware of

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the treatment already rendered to Plaintiff, including the

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Tetanus vaccination.

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his eyes or speak.

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Acute Disseminated Encephalomyelitis (“ADEM”).

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neurological disorder characterized by inflammation of the brain

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and spinal cord caused by damage to the myelin sheath.

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Vaccination for tetanus is allegedly a known cause of ADEM.

By May 24, 2007, Plaintiff could not open
On May 26, 2012, Plaintiff was diagnosed with
ADEM is a

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Plaintiff alleges that, due to the lengthy delay in diagnosis and

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treatment, he was rendered paralyzed and near death.

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Plaintiff’s condition improved with treatment, he still remains

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dependent for his activities in daily living and must use a

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catheter and diaper.

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depression and emotional distress.

While

Plaintiff alleges ongoing serious bouts of

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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),3 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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also assume that “general allegations embrace those specific

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facts that are necessary to support a claim.”

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Props. & Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004).

Cahill v. Liberty Mut.
The Court must

Smith v. Pacific

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3

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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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Rule 8(a)(2) “requires only ‘a short and plain statement of the

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claim showing that the pleader is entitled to relief,’ in order

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to ‘give the defendant a fair notice of what the [. . .] claim is

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and the grounds upon which it rests.’”

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

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355 U.S. 41, 47 (1957)).

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motion to dismiss does not require detailed factual allegations.

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Id.

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his entitlement to relief requires more than labels and

Bell. Atl. Corp. v.

A complaint attacked by a Rule 12(b)(6)

However, “a plaintiff’s obligation to provide the grounds of

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conclusions, and a formulaic recitation of the elements of a

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cause of action will not do.”

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quotations omitted).

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“legal conclusion couched as a factual allegation.”

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Iqbal,129 S. Ct. 1937, 1950 (2009) (quoting Twombly, 550 U.S. at

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555).

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allegations that are merely conclusory, unwarranted deductions of

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fact, or unreasonable inferences.”

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Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

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

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speculative level.”

21

Alan Wright & Arthur R. Miller, Federal Practice and Procedure

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

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something more than a “statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action.”)).

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Id. (internal citations and

A court is not required to accept as true a
Ashcroft v.

The Court also is not required “to accept as true

In re Gilead Sciences Sec.
“Factual

Twombly, 550 U.S. at 555 (citing 5 Charles

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1

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

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rather than a blanket assertion, of entitlement to relief.”

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Twombly, 550 U.S. at 556 n.3 (internal citations and quotations

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omitted).

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is 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

“Without some factual allegation in the complaint, it

A pleading

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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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well-pleaded complaint may proceed even if it strikes a savvy

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judge that actual proof of those facts is improbable, and ‘that a

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recovery is very remote and unlikely.’”

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

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Id. at 570.

Id. (citing 5 Charles

If the “plaintiffs . . .

Id.

However, “a

Id. at 556 (quoting

A court granting a motion to dismiss a complaint must then

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decide whether to grant a leave to amend.

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be “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).

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Not all of these factors merit equal weight.

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consideration of prejudice to the opposing party . . . carries

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the greatest weight.”
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Leave to amend should

Foman v. Davis, 371 U.S.

Rather, “the

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Eminence Capital, 316 F.3d at 1052 (citing DCD Programs, Ltd. v.

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Leighton, 833 F. 2d 183, 185 (9th Cir. 1987)).

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leave to amend is proper only if it is clear that “the complaint

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could not be saved by any amendment.”

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Crest Group, Inc., 499 F. 3d 1048, 1056 (9th Cir. 2007) (internal

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citations and quotations omitted).

Dismissal without

Intri-Plex Techs., Inc. v.

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ANALYSIS

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The Court examines Plaintiff’s claims in the following

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order: (1) Plaintiff’s § 1983 claims for failure to provide

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appropriate medical care against all individual Defendants (First

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Claim for Relief); (2) Plaintiff’s § 1983 claim for violation of

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the Equal Protection Clause against all individual Defendants

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(Sixth Claim for Relief); (3) Plaintiff’s § 1983 claim for

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violation of the First Amendment against all individual

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defendants (Eighth Claim for Relief); (4) Plaintiff’s Monell

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liability claims against Sacramento County (Second, Third,

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Fourth, Fifth, Seventh and Ninth Claims for Relief); and

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(5) Plaintiff’s claim under the Americans with Disabilities Act

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and Rehabilitation Act against Sacramento County (Tenth Claim for

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Relief).4

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Plaintiff has expressed no opposition, and the parties
have agreed, to dismiss the County from Counts 1, 6 and 8 of the
SAC. (See Pl.’s Am. Consol. Opp. To Defs.’ Mot. To Dismiss,
filed August 26, 2011 [ECF No. 59], at 29:23-25.) The parties
have also agreed to the dismissal from the SAC of all individual
defendants when alleged to be acting in their official
capacities. (See id. at 29:10-23.) Finally, the parties have
agreed to the dismissal of Counts 11, 12 and 13 of the SAC in
their entirety. (See id. at 30:4-8.) Based on the parties’
agreement, this Court dismisses the County from Counts 1, 6 and 8
(continued...)

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I.

First Claim for Relief: Claims Brought Pursuant to

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42 U.S.C. § 1983 for Violations of the Fourteenth

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Amendment to the United States Constitution for Failure

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to Provide Appropriate Medical Care against Defendants

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McGinness, Boylan, Hambly, Smith, Carl, Keillor and

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Gaddis in Their Individual Capacities

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Plaintiff’s first claim arises under 42 U.S.C. § 1983.

The

SAC alleges that all individual Defendants failed to provide

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appropriate medical care to Plaintiff, and that Plaintiff

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suffered and continues to suffer personal injury and emotional

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distress and incurred damages as a result of such failure.

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¶¶ 50-52.)

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be dismissed because Plaintiff groups all the Defendants together

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and fails to plead specific allegations as to how each Defendant

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violated Plaintiff’s constitutional rights in failing to provide

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adequate medical care.

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7:9-11).

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(SAC

Defendants argue that Plaintiff’s first claim should

(CDMTD at 8:1-3; SMTD at 6:12-14,

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(...continued)
of the SAC, dismisses all individual defendants when alleged to
be acting in their official capacities from the SAC, and
dismisses Counts 11, 12 and 13 of the SAC.
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To the extent that Plaintiff alleges supervisory responsibility

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of some Defendants, Defendants argue that Plaintiff failed to

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state a claim because he failed to allege: (1) personal

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participation by supervisory Defendants in the alleged violation

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of Plaintiff’s rights, and/or (2) that a supervisory Defendant

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directed any actions which caused violations of Plaintiff’s

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rights, and/or (3) that any supervisory Defendant was aware of

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widespread abuse and, with deliberate indifference, failed to

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act.

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(CDMTD at 9:8-12).
Under 42 U.S.C. § 1983, an individual may sue “[e]very

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person, who, under color of [law] subjects” him “to the

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deprivation of any rights, privileges, or immunities secured by

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the Constitution and laws.”

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impose individual liability upon a government officer for actions

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taken under color of state law.”

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(1991).

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unconstitutional conduct of their subordinates under a theory of

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respondeat superior.

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individual may be liable for deprivation of constitutional rights

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“within the meaning of section 1983, if he does an affirmative

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act, participates in another’s affirmative acts, or omits to

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perform an act which he is legally required to do that causes the

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deprivation of which complaint is made.”

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County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007).

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Thus, a plaintiff cannot demonstrate that an individual officer

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is liable “without a showing of individual participation in the

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unlawful conduct.”

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Cir. 2002).

Individual capacity suits “seek to

Hafer v. Melo, 502 U.S. 21, 25

Government officials may not be held liable for the

Iqbal, 129 S. Ct. at 1948.

Rather, an

Preschooler II v. Clark

Jones v. Williams, 297 F.3d 930, 935 (9th

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Plaintiff must “establish the ‘integral participation’ of the

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officers in the alleged constitutional violation,” id., which

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requires “some fundamental involvement in the conduct that

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allegedly caused the violation.”

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485 F.3d 463, 481 n.12 (9th Cir. 2007).

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Blankenhorn v. City of Orange,

Government officials acting as supervisors may be liable

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under § 1983 under certain circumstances.

“[W]hen a supervisor

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is found liable based on deliberate indifference, the supervisor

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is being held liable for his or her own culpable action or

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inaction, not held vicariously liable for the culpable action or

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inaction of his or her subordinate.”

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1202, 1207 (9th Cir. 2011).

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supervisor under § 1983 if there exists “either (1) his or her

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personal involvement in the constitutional deprivation; or (2) a

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sufficient causal connection between the supervisor’s wrongful

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conduct and the constitutional violation.”

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885 F.2d 642, 646 (9th Cir. 1989); Starr, 652 F.3d at 1207.

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Starr v. Baca, 652 F.3d

A defendant may be held liable as a

Hansen v. Black,

A supervisor’s physical presence is not required for

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supervisory liability.

Starr, 652 F.3d at 1205.

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requisite causal connection between a supervisor’s wrongful

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conduct and the violation of the prisoner’s Constitutional rights

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can be established in a number of ways.

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that the supervisor set in motion a series of acts by others, or

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

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the supervisor knew or reasonably should have known would cause

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others to inflict a constitutional injury.

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

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of L.A., 946 F.2d 630, 646 (9th Cir. 1991).
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Rather, the

The plaintiff may show

Dubner v. City &

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

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training, supervision, or control of his subordinates may

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establish supervisory liability.

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946 F.2d at 646.

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alleged constitutional deprivation, or conduct showing deliberate

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indifference toward the possibility that deficient performance of

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

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requisite causal connection.

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

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Starr, 652 F.3d at 1208; Larez,

Finally, a supervisor’s acquiescence in the

Starr, 652 F.3d at 1208; Menotti v.

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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Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir.

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2010).

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have the established right to not have officials remain

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deliberately indifferent to their serious medical needs.”

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Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir.

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2002) (quoting Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir.

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1996)).

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is violated when a jailer fails to promptly and reasonably

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procure competent medical aid when the pretrial detainee suffers

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a serious illness or injury while confined.

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429 U.S. 97, 104-105 (1976).

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“manifested by prison doctors in their response to the prisoner’s

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needs or by prison guards in intentionally denying or delaying

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access to medical care or intentionally interfering with the

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treatment once prescribed.”

Bell v. Wolfish, 441 U.S. 520, 537 n. 16 (1979);

The Due Process Clause requires that “persons in custody

A pretrial detainee’s due process right in this regard

Estelle v. Gamble,

Deliberate indifference can be

Id.
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1

In order to establish a plausible claim for failure to provide

2

medical treatment, Plaintiff must plead sufficient facts to

3

permit the Court to infer that (1) Plaintiff had a “serious

4

medical need,” and that (2) individual Defendants were

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“deliberately indifferent” to that need.

6

439 F.3d 1091, 1096 (9th Cir. 2006); Cf. Farmer v. Brennan,

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511 U.S. 825, 834, 837 (1994).

8
9

Jett v. Penner,

Plaintiff can satisfy the “serious medical need” prong by
demonstrating that “failure to treat [his] condition could result

10

in further significant injury or the unnecessary and wonton

11

infliction of pain.”

12

and quotations omitted); Clement v. Gomez, 298 F.3d 898, 904

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(9th Cir. 2002).

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“[t]he existence of an injury that a reasonable doctor or patient

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would find important and worthy of comment or treatment, the

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presence of a medical condition that significantly affects an

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individual’s daily activities, or the existence of chronic and

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substantial pain.”

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2000).

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facts to make a plausible showing that his medical need was

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serious.

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sutures, was suffering from persistent headaches, sensitivity to

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light, loss of vision, inability to move his lower extremities,

24

and urinary retention and constipation.

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28, 31, 32.)

26

affected Plaintiff’s daily activities but, also, that a

27

reasonable doctor would find such symptoms noteworthy.

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///

Jett, 439 F.3d at 1096 (internal citations

Examples of such serious medical needs include

Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.

The Court finds that Plaintiff has alleged sufficient

Plaintiff suffered a head injury which required

(See SAC ¶¶ 23, 24, 27,

The Court recognizes that such symptoms not only

14

1

The next issue for the Court is whether individual

2

Defendants were deliberately indifferent to Plaintiff’s serious

3

medical need.

4

the contours of the “deliberate indifference” standard.

5

Specifically, individual Defendants are not liable under the

6

Fourteenth Amendment for their part in allegedly denying

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necessary medical care unless they knew “of and disregard[ed] an

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excessive risk to [Plaintiff’s] health and safety.”

9

511 U.S. at 837; Gibson, 290 F.3d at 1187-88.

The Supreme Court, in Farmer, explained in detail

Farmer,

Deliberate

10

indifference contains both an objective and subjective component:

11

“the official must both be aware of facts from which the

12

inference could be drawn that a substantial risk of serious harm

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exists, and he must also draw that inference.”

14

at 837.

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not,” then the standard of deliberate indifference is not

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satisfied “no matter how severe the risk.”

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1188 (citing Jeffers v. Gomez, 267 F.3d 895, 914 (9th Cir.

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2001)). Plaintiff “need not show that a prison official acted or

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failed to act believing that harm actually would befall on

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inmate; it is enough that the official acted or failed to act

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despite his knowledge of a substantial risk of serious harm.”

22

Farmer, 511 U.S. at 842.

Farmer, 511 U.S.

“If a person should have been aware of the risk, but was

Gibson, 290 F.3d at

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Important for purposes of the motions at issue, “[w]hether a

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prison official had the requisite knowledge of a substantial risk

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is a question of fact subject to demonstration in the usual ways,

26

including inference from circumstantial evidence, . . . and a

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fact finder may conclude that a prison official knew of a

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substantial risk from the very fact that the risk was obvious.”
15

1

Id. (emphasis added) (internal citations omitted); see also

2

Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003)

3

(“Much like recklessness in criminal law, deliberate indifference

4

to medical needs may be shown by circumstantial evidence when the

5

facts are sufficient to demonstrate that a defendant actually

6

knew of a risk of harm.”).

7

“The indifference to medical needs must be substantial; a

8

constitutional violation is not established by negligence or ‘an

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inadvertent failure to provide adequate medical care.’”

10

Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995)

11

(quoting Estelle, 429 U.S. at 105-06).

12

“deliberately indifferent to a prisoner’s serious medical needs

13

when they deny, delay, or intentionally interfere with medical

14

treatment.”

15

2002); Lolli, 351 F.3d at 419.

16

neglect do not constitute deliberate indifference.”

17

Cal. Substance Abuse Treatment Facility at Concord,

18

No. 1:10-cv-02336, 2011 WL 2224817, at *3 (E.D. Cal. June 7,

19

2011) (citing Jett, 439 F.3d at 1096).

20

receiving medical treatment, without more, does not constitute

21

“deliberate indifference,” unless the plaintiff can show that the

22

delay caused serious harm to the plaintiff.

23

900 F.2d 1332, 1335 (9th Cir. 1990).

24

///

25

///

26

///

27

///

28

///

Generally, defendants are

Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.
However, “[i]solated incidents of

16

Bowell v.

Further, a mere delay in

Wood v. Housewright,

1

In the SAC, Plaintiff makes a general allegation that all

2

individual defendants violated Plaintiff’s constitutionally

3

protected rights by: (1) failing to provide Plaintiff with

4

necessary medical treatment; (2) failing to monitor Plaintiff

5

once he reported signs of a serious neurological disorder;

6

(3) failing to transport Plaintiff to a hospital or appropriate

7

diagnostic facility upon learning that he has suffered from a

8

serious medical condition; (4) failing to maintain appropriate

9

medical records and history; (5) failing to supply the outside

10

care provider with Plaintiff’s accurate medical history upon

11

transport.

12

context for Plaintiff’s allegations against individual

13

Defendants, they are not sufficient to state a claim as to each

14

Defendant without specific allegations demonstrating each

15

Defendant’s participation in the alleged constitutional

16

deprivation.

(SAC ¶ 51.)

While these general allegations create a

See Jones, 297 F.3d at 935.

17
18

(1) Defendant McGinness

19
20

The only facts in the SAC alleged specifically against

21

McGinness are as follows: (1) McGinness “was, at all relevant

22

times, employed by the County as the Sacramento County Sheriff,”

23

and (2) McGinness “was, at all relevant times, acting within the

24

scope of his employment and/or agency with the County.”

25

¶ 8.)

26

///

27

///

28

///
17

(SAC

1

As was discussed earlier, to sustain a § 1983 claim for

2

individual liability, Plaintiff must establish the “personal

3

involvement” of each defendant, including supervisors, in a

4

constitutional deprivation or a “causal connection” between each

5

defendant’s wrongful conduct and the deprivation.

6

885 F.2d at 646.

7

employed as the County Sheriff and that he was acting within the

8

scope of his employment are insufficient to demonstrate either

9

his “personal involvement” in the alleged constitutional

Hansen,

Plaintiff’s allegations that McGinness was

10

deprivation or the “causal connection” between McGinness’ actions

11

or omissions and the deprivation.

12

In his opposition to Defendants’ motions to dismiss,

13

Plaintiff relies on Redman v. County of San Diego, 942 F.2d 1435

14

(9th Cir. 1990), and Starr, 652 F.3d 1202, in asserting that,

15

under California law, the Sheriff is required by statute to take

16

charge of and keep the county jail and the prisoners in it, and

17

is answerable for the prisoner’s safekeeping. (Pl.’s Opp. at

18

14:14-15:21.)

19

prison’s safekeeping,” Plaintiff argues, is sufficient to state a

20

claim for supervisory liability for deliberate indifference.

21

(Id.)

22

plaintiffs alleged specific facts as to how the Sheriff was

23

liable as a supervisor and how the Sheriff’s actions or inactions

24

caused the plaintiff’s constitutional deprivation.

25

Defs.’ Reply to Pl.’s Opp., filed August 30, 2011 [ECF No. 60],

26

at 5:13-19).

27

///

28

///

Inactions of the person “answerable for the

County Defendants contend that, in both Redman and Starr,

18

(County

1

Defendants further contend that Plaintiff here, unlike plaintiffs

2

in Redman and Starr, failed to make any specific allegations to

3

demonstrate McGinness’ supervisory liability.

4

The Court agrees with County Defendants.

5

(Id. at 5:8-19.)

In Redman, a plaintiff specifically alleged that the Sheriff

6

was ultimately in charge of the facility’s operations, that the

7

Sheriff knew that the facility was not a proper place to detain

8

the plaintiff and posed a risk of harm to the plaintiff but

9

placed the plaintiff there anyway.

Redman, 942 F.2d at 1446-47.

10

In Starr, the plaintiff similarly alleged that the Sheriff knew

11

of the unconstitutional activities in the jail, including that

12

his subordinates were engaging in some culpable actions.

13

652 F.3d at 1208.

14

contained numerous specific factual allegations demonstrating the

15

Sheriff’s knowledge of unconstitutional acts at the jail and the

16

Sheriff’s failure to terminate those acts, including that the

17

U.S. Department of Justice gave the Sheriff clear written notice

18

of a pattern of constitutional violations at the jail, that the

19

Sheriff received “weekly reports from his subordinates

20

responsible for reporting deaths and injuries in the jails,” that

21

the Sheriff personally signed a Memorandum of Understanding that

22

required him to address and correct the violations at the Jail,

23

and that the Sheriff was personally made aware of numerous

24

concrete instances of constitutional deprivations at the jail.

25

Starr, 652 F.3d at 1209-12.

26

SAC does not contain any factual allegations demonstrating that

27

McGinness was aware of Plaintiff’s constitutional deprivations or

28

of any other wrongful acts by Jail personnel.

Starr,

In fact, the plaintiff’s complaint in Starr

Here, on the other hand, Plaintiff’s

19

1

Thus, nothing in the SAC plausibly suggests that McGinness

2

“acquiesced” in the wrongful conduct of his subordinates.

3

Accordingly, Plaintiff has not pleaded sufficient facts to

4

support the inference that McGinness was deliberately indifferent

5

to Plaintiff’s medical needs.

6

McGinness from Plaintiff’s first claim with leave to amend.

The Court dismisses Defendant

7
8

(2) Defendant Boylan

9
10

Plaintiff’s allegations against Boylan are similarly limited

11

to statements that Boylan (1) was, at all relevant times,

12

employed by the County as the Chief of the Sacramento County Jail

13

Correctional Health Services [“CHS”], and (2) was at all relevant

14

times acting within the scope of her employment and/or agency

15

with the County.

16

Boylan participated in or directed alleged violations, or knew of

17

the violations and failed to act.

18

argues that it is reasonable to infer that Boylan, because of her

19

position as the CHS Chief for the Jail, was responsible for and

20

knew of the pervasive deficiencies in the Jail’s delivery of

21

medical care.

22

contention unavailing.

23

///

24

///

25

///

26

///

27

///

28

///

(SAC ¶ 9.)

Plaintiff has not alleged that

(Pl.’s Opp. at 15.)

20

In his opposition, Plaintiff

The Court finds Plaintiff’s

1

Nowhere in the SAC does Plaintiff allege that Boylan, as a

2

supervisor, knew or reasonably should have known of any

3

“pervasive deficiencies” in the provision of medical care at the

4

Jail and refused to cure these deficiencies, or that Boylan’s own

5

culpable action or inaction in the training, supervision, or

6

control of her subordinates were the cause of the alleged

7

constitutional deprivation, or that Boylan acquiesced in the

8

alleged constitutional deprivation.

9

defendant’s official title is not sufficient, by itself, to infer

10

that the defendant should be individually liable for Plaintiff’s

11

constitutional deprivations.

12

Dismiss Plaintiff’s first claim against Defendant Boylan is

13

granted with leave to amend.

A mere recitation of the

Accordingly, Defendants’ Motion to

14
15

(3) Defendant Hambly

16
17

In addition to allegations that Hambly was, at all relevant

18

times, employed as Interim Medical Director of the Jail CHS, and

19

that he was acting within the scope of his employment, the SAC

20

states that Hambly was also a physician employed by the County to

21

provide medical treatment to inmates at the Jail, and that he was

22

responsible for providing treatment to Plaintiff.

23

¶¶ 10-11.)

24

personal contact between Plaintiff and Hambly, or any

25

demonstration of Hambly’s other personal participation in the

26

alleged constitutional deprivation.

27

///

28

///

(SAC

However, absent from the SAC are any allegations of

21

1

The only indication of Hambly’s knowledge about Plaintiff is a

2

statement in the SAC that, on Plaintiff’s information and belief,

3

Hambly reviewed Plaintiff’s chart on Aril 30, 2007 (two days

4

after Plaintiff returned to the Jail after his head surgery).

5

(Id. ¶ 24.)

6

to demonstrate that Hambly had direct knowledge of Plaintiff’s

7

medical condition as one of Plaintiff’s treating physicians, and

8

that ”acquiescence” or “culpable indifference” are sufficient to

9

show that Hambly, as a supervisor, personally participated in the

Plaintiff claims that this allegation is sufficient

10

alleged constitutional violation.

11

15:27-28.)

12

Plaintiff allege that Hambly, as Plaintiff’s treating physician,

13

personally denied, delayed, or intentionally interfered with

14

Plaintiff’s medical treatment.

15

Lolli, 351 F.3d at 419.

16

Plaintiff’s medical chart two days after the surgery is plainly

17

insufficient to demonstrate that Hambly was deliberately

18

indifferent to Plaintiff’s serious medical needs.

19

(Pl.’s Opp. at 15:7-9,

The Court disagrees.

Nowhere in the SAC does

See Hallett, 296 F.3d at 744;

An allegation that Hambly reviewed

Similarly absent from the SAC are any allegations of

20

Hambly’s supervisory liability.

As the Court explained earlier,

21

a statement that a defendant was employed in a supervisory

22

capacity and acted within the scope of his employment is not

23

sufficient, by itself, to infer that the defendant should be

24

personally liable for Plaintiff’s constitutional deprivations.

25

///

26

///

27

///

28

///
22

1

Plaintiff’s general allegations that all medical defendants

2

failed to provide Plaintiff with necessary medical treatment,

3

failed to monitor him, delayed transporting him to an outside

4

medical facility, and failed to maintain appropriate medical

5

records are also insufficient to state a claim of deliberate

6

indifference against Hambly without further demonstration that

7

Hambly either personally participated or “acquiesced” in those

8

wrongful acts.

9

Plaintiffs’ first claim against Defendant Hambly is granted with

10

Accordingly, Defendants’ Motion to Dismiss

leave to amend.

11
12

(4) Defendant Smith

13
14

Plaintiff alleges that Smith was the physician responsible

15

for providing treatment to Plaintiff.

16

further alleges that Smith treated Plaintiff on two occasions.

17

On May 13, 2007, in response to Plaintiff’s complaints about

18

persistent headaches, Smith ordered Plaintiff’s stitches removed

19

and gave Plaintiff Motrin for pain.

20

2007, after Plaintiff told the officers that “his legs did not

21

work, that he could not urinate, and that he was going blind,”

22

Smith allegedly saw Plaintiff but “failed to take any appropriate

23

medical action.”

24

later that day he was seen by another doctor, Dr. Horowitz, who

25

determined that Plaintiff “had been on the floor of his cell for

26

three days” and that Plaintiff “had been suffering from vision

27

loss, an inability to control his extremities, get up to ‘void or

28

defecate,’ and obvious other neurological impairments.”

(Id. ¶¶ 31,32.)

23

(SAC ¶ 11.)

(Id. ¶¶ 26,27.)

Plaintiff

On May 20,

Plaintiff further alleges that

1

(Id. ¶ 32.)

Dr. Horowitz sent Plaintiff to an emergency room,

2

where MRI scans revealed an expansive lesion of Plaintiff’s spine

3

and brain involvement.

4

admitted to UCD, where he was eventually diagnosed with a rare

5

neurological disorder, ADEM.

6

that, because of the delays in his diagnosis and treatment, “he

7

had been rendered paralyzed and near death.”

(Id. ¶ 33.)

Subsequently, Plaintiff was

(Id. ¶¶ 34-36.)

Plaintiff alleges

(Id. ¶ 36.)

8

Defendant Smith argues that Plaintiff’s first claim for

9

relief fails to set forth specific facts or, alternatively, that

10

it fails to state facts sufficient to constitute a claim under

11

§ 1983.

12

that Plaintiff’s only specific allegations against Smith in ¶¶ 27

13

and 32 of the SAC lack specific details or factual circumstances

14

as to what the alleged act or omission by Smith caused

15

Plaintiff’s constitutional deprivation. (Id. at 6:12-7:3.)

16

further argues that “[n]othing in Plaintiff’s sparse allegations

17

can be interpreted to show that Dr. Smith provided (or failed to

18

provide) treatment which resulted in deliberate indifference to

19

Plaintiff’s rights.”

(SMTD at 5-8.)

In particular, Defendant Smith contends

(Id. at 8:14-15.)

Smith

The Court disagrees.

20

In reviewing the sufficiency of the complaint under Rule

21

12(b)(6), the Court must assume that “general allegations embrace

22

those specific facts that are necessary to support a claim.”

23

Smith, 358 F.3d at 1106.

24

survives a Rule 12(b)(6) motion to dismiss, the Court takes into

25

consideration not only specific factual allegations, but also

26

“reasonable inferences” from the complaint’s “factual content.”

27

///

28

///

Also, in deciding whether a complaint

24

1

Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir.

2

2009).

3

factual allegations in the SAC and reasonable inferences, it is

4

plausible that Dr. Smith knew of and was deliberately indifferent

5

to Plaintiff’s serious medical condition.

6

had serious medical symptoms at the time of his treatment by

7

Smith on May 20, including vision loss, inability to control his

8

legs, persistent headaches, inability to urinate and

9

constipation.

The Court finds that, based on the general and specific

Plaintiff allegedly

Smith’s alleged failure to do anything to

10

alleviate Plaintiff’s serious medical symptoms, coupled with

11

Dr. Horowitz’s determination that Plaintiff was indeed suffering

12

from serious impairments and required an emergency medical

13

assistance, permit the Court to reasonably infer that Smith

14

plausibly denied, delayed, or intentionally interfered with

15

Plaintiff’s medical treatment.

16

Plaintiff’s allegations of his medical symptoms and the fact that

17

Plaintiff informed the treating medical staff about those

18

symptoms plausibly demonstrate that “the course of treatment

19

[Smith] chose was medically unacceptable under the circumstances

20

... and ... that [he] chose this course in conscious disregard of

21

an excessive risk to plaintiff's health.”

22

McIntosh, 90 F.3d 330, 332 (9th Cir. 1986).

23

See Hallett, 296 F.3d at 744.

See Jackson v.

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

24

litigation, without substantial discovery, and where the Court

25

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

26

sufficient allegations for the Court to infer that Defendant

27

Smith’s deliberate indifference to Plaintiff’s serious medical

28

needs resulted in Plaintiff’s constitutional deprivation.
25

1

(5) Defendant Carl

2
3

Plaintiff alleges that Carl was employed as a nurse at the

4

Jail, and that he was Plaintiff’s medical provider during the

5

relevant time period.

6

on three occasions.

7

Plaintiff complained about persistent headaches.

8

with Dr. Smith, who ordered Plaintiff’s stitches to be removed

9

and pain medication to be administered.

(SAC ¶ 13.)

Carl allegedly saw Plaintiff

On May 13, 2007, Carl saw Plaintiff when
Carl consulted

(Id. ¶¶ 26,27.)

On

10

May 17, 2007, after Plaintiff collapsed in the shower, Plaintiff

11

again saw Carl and complained that his legs did not work.

12

¶ 29.)

13

adequate medical assessment of a patient presenting with an

14

apparent spinal chord [sic] injury and/or neurological disorder.”

15

(Id. ¶ 30.)

16

Plaintiff to be returned to his cell, without arranging for any

17

medical follow-up.

18

started complaining about vision loss, urinary retention and

19

constipation, in addition to inability to move his lower

20

extremities and persistent headaches, Carl again saw Plaintiff

21

and referred Plaintiff to see Dr. Smith.

22

(Id.

Plaintiff alleges that Carl “failed to conduct an

Plaintiff further alleges that Carl ordered

(Id.)

On May 20, 2007, after Plaintiff

(Id. ¶ 32.)

Plaintiff’s allegations against Carl do not rise to the

23

level of deliberate indifference.

24

allegations demonstrate that each time Carl saw Plaintiff, he

25

evaluated Plaintiff’s complaints and twice referred Plaintiff to

26

a doctor.

27

///

28

///
26

On the contrary, Plaintiff’s

1

While Plaintiff’s allegations concerning the incident on May 17

2

permit the Court to infer that Carl might have been negligent in

3

sending Plaintiff back to the cell, nothing in the SAC suggests

4

that Carl knew “of a substantial risk of serious harm,” but chose

5

to disregard it.

6

own allegation that, on May 17, Carl “failed to conduct an

7

adequate medical assessment” supports the inference of

8

negligence, not deliberate indifference.

9

incident of neglect does not demonstrate “deliberate

See Gibson, 290 F.3d at 1187-88.

Plaintiff’s

Because one isolated

10

indifference,” see Jett, 439 F.3d at 1096, the Court dismisses

11

Defendant Carl from the SAC’s first claim with leave to amend.

12
13

(6) Defendant Gaddis

14
15

Plaintiff alleges that Officer Gaddis at all relevant times

16

was employed as custodial staff at the jail.

(SAC ¶ 14.)

17

Plaintiff specifically alleges that Gaddis responded when

18

Plaintiff fell in the shower on May 17, 2007, but “failed to use

19

the radio properly to alert medical staff od [sic] the emergebncy

20

[sic], and failed to file an incident or casualty report

21

following the incident, violating jail policies, acting with

22

deliberate indifference to [Plaintiff’s] medical needs and

23

delaying [Plaintiff’s] access to necessary medical care.”

24

¶ 29.)

25

in a wheelchair to the nurse for evaluation.”

26

finds these allegations insufficient to state a claim of

27

deliberate indifference against Officer Gaddis.

28

///

(Id.

Plaintiff further alleges that he was “eventually wheeled

27

(Id.)

The Court

1

The only plausible allegation that can lead to the inference of

2

deliberate indifference on the part of Officer Gaddis is that he

3

delayed alerting the medical staff of Plaintiff’s medical needs.

4

However, the SAC fails to allege how significant the delay was

5

and how the delay harmed Plaintiff.

6

No. 1:04-cv-5633, 2009 WL 62126, at *4(E.D. Cal. Jan. 8, 2009)

7

(citing Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d

8

404, 407 (9th Cir. 1985)) (“[A] delay in receiving medical care,

9

without more, is insufficient to state a claim against a jailor

10

for deliberate indifference unless the plaintiff can show that

11

the delay in treatment harmed him.”).

12

See Hertig v. Cambra,

Moreover, “[t]o have acted with deliberate indifference,

13

. . . the officers also must have inferred . . . that [the

14

plaintiff] was at serious risk of harm” if he did not receive

15

immediate medical attention.

16

fails to provide any evidence that Gaddis knew that Plaintiff was

17

at serious risk of harm if he did not receive immediate medical

18

attention.

19

and to file the incident report at best amounts to negligence,

20

and does not rise to the level of deliberate indifference to

21

Plaintiff’s serious medical needs.

22

first claim against Defendant Gaddis is dismissed with leave to

23

amend.

24

///

25

///

26

///

27

///

28

///

Lolli, 351 F.3d at 420.

The SAC

Finally, Gaddis’ failure “to use the radio properly”

28

Accordingly, Plaintiff’s

1

(7) Defendant Keillor

2
3

Plaintiff alleges that Sergeant Keillor was employed at all

4

relevant times as supervisory custodial staff at the Jail, and

5

that Sergeant Keillor was responsible for supervising custodial

6

staff at the Jail.

7

allegation against Keillor is that he was the supervising officer

8

on duty on May 17, 2007, when Plaintiff fell in the shower, and

9

that he “failed to ensure the unit was properly staffed and

(SAC ¶ 15.)

The SAC’s only other specific

10

failed to ensure custody staff was properly trained in responding

11

to medical emergencies.”

12

(Id. ¶ 29.)

As Keillor’s alleged liability is based on his supervisory

13

status, Plaintiff must demonstrate Keillor’s “‘own culpable

14

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

15

his subordinates,’ ‘his acquiescence in the constitutional

16

deprivations of which the complaint is made,’ or ‘conduct that

17

showed a reckless or callous indifference of others.’”

18

652 F.3d at 1205-06 (quoting Larez, 946 F.2d at 646).

19

conclusory allegation that Keillor “failed to ensure the unit was

20

properly staffed and failed to ensure custody staff was properly

21

trained in responding to medical emergencies,” without any

22

specific factual allegations, does not plausibly suggest an

23

entitlement to relief and is not entitled to the presumption of

24

truth.

25

allege any facts suggesting that Keillor knew of the alleged

26

constitutional violations and failed to act to prevent them.

27

///

28

///

See Iqbal, 556 U.S. at 1949-50.

29

Starr,
A

Plaintiff fails to

1

Thus, the SAC does not plead sufficient facts to support the

2

inference that Defendant Keillor was deliberately indifferent to

3

Plaintiff’s medical needs.

4

Additionally, there can be no showing that supervisory

5

defendants should be held liable under § 1983 without a showing

6

that their subordinates violated Plaintiff’s constitutional

7

rights.

8

Cir. 2001).

9

a supervisor, was deliberately indifferent to Plaintiff’s serious

Jackson v. City of Bremerton, 268 F.3d 646, 653 (9th
Thus, Plaintiff cannot demonstrate that Keillor, as

10

medical needs without first demonstrating that Keillor’s

11

subordinate, Defendant Gaddis, committed a constitutional

12

violation.

13

from Plaintiff’s first claim with leave to amend.

Accordingly, the Court dismisses Defendant Keillor

14
15

II.

Sixth Claim for Relief: Violation of the Equal

16

Protection Clause of the Fourteenth Amendment Against

17

Defendants McGinness, Boylan, Hambly, Smith, Carl,

18

Keillor and Gaddis in Their Individual Capacities

19
20

Plaintiff alleges in Count 6 that Defendants’ acts alleged

21

in the SAC “were motivated by racial animus and that Plaintiff

22

. . . was treated differently from similarly situated non-Indian

23

inmates,” and that Plaintiff suffered and continues to suffer

24

damages for the deprivation of his constitutional rights.

25

¶¶ 77-78.)

26

///

27

///

28

///
30

(SAC

1

Plaintiff’s factual allegations relevant to his racial

2

discrimination claim are: (1) Plaintiff was housed with the

3

African-American inmates at the Jail because of his very dark

4

skin color (Id. ¶ 23); (2) On April 27, 2007, Plaintiff suffered

5

a head injury as a result of a racial alteration between African

6

American inmates and non-black inmates (Id.); and (3) The Jail

7

“has a history of repeated acts of discrimination against inmates

8

based on their race or national origin” (Id. ¶ 41).

9

Defendants argue that Plaintiff’s racial discrimination

10

claim against individual Defendants should be dismissed because

11

Plaintiff failed to establish how each Defendant violated

12

Plaintiff’s constitutional rights by acting with an intent or

13

purpose to discriminate based on race.

14

at 9:16-18.)

15

identify another similarly situated group which was treated

16

differently and the actual differing treatment itself.

17

8:19-21; SMTD at 9:14-16.)

18

extent that Plaintiff bases his allegations on the supervisory

19

liability of some Defendants, Plaintiff failed to allege that

20

those Defendants personally participated in the wrongful conduct,

21

or directed such a conduct, or were aware of such a conduct and

22

failed to act.

23

contentions persuasive.

(CDMTD at 8:14-19; SMTD

Defendants further argue that Plaintiff failed to

(CDMTD at

Defendants also contend that, to the

(CDMTD at 10:8-12.)

The Court finds Defendants’

24

To state a claim under § 1983 for a violation of the Equal

25

Protection Clause of the Fourteenth Amendment, a plaintiff must

26

demonstrate that each defendant acted with an “intent or purpose

27

to discriminate against the plaintiff based upon membership in a

28

protected class.”
31

1

Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001); see also

2

Monteiro v. Temple Union High School Dist., 158 F.3d 1022, 1026

3

(9th Cir. 1998) (“[Section] 1983 claims based on Equal Protection

4

violations must plead intentional unlawful discrimination or

5

allege facts that are at least susceptible of an inference of

6

discriminatory intent.”).

7

demonstrating that any of the named Defendants had an “intent or

8

purpose to discriminate.”

9

his claim of racial discrimination, Plaintiff pleads a legal

Plaintiff does not plead any facts

Instead of pleading facts to support

10

conclusion: “Plaintiff is informed and believes . . . that

11

Defendants’ aforementioned acts were motivated by racial animus.”

12

(SAC ¶ 77.) Such a legal conclusion is not entitled to be

13

accepted as true and does not plausibly suggest an entitlement to

14

relief.

See Iqbal, 556 U.S. at 1949-50.

15

Plaintiff’s allegation that the Jail has a history of

16

discrimination is similarly insufficient to demonstrate that any

17

of the individual Defendants acted with a discriminatory intent.

18

The allegation that Plaintiff’s housing assignment was

19

discriminatory also does not bear on the individual Defendants’

20

intent as Plaintiff does not allege that any of the individual

21

Defendants took any role in determining Plaintiff’s housing

22

arrangements.

23

allege that these Defendants knew of and “acquiesced” in the

24

alleged racial discrimination by their subordinates.

25

652 F.3d at 1207.

26

demonstrating that he was treated differently from a similarly

27

situated group of inmates.

28

Plaintiff’s sixth claim for relief with leave to amend.

As to the supervisory Defendants, the SAC fails to

See Starr,

Further, Plaintiff fails to allege any facts

Accordingly, the Court dismisses

32

1

III. Eighth Claim for Relief: Violation of the First

2

Amendment Against Defendants McGinness, Boylan, Hambly,

3

Smith, Carl, Keillor and Gaddis in Their Individual

4

Capacities

5
6

Plaintiff alleges that Defendants’ acts “were in retaliation

7

for Plaintiff’s . . . protest of the deplorable conditions under

8

which he and similarly situated inmates were being held” at the

9

Jail, and that he suffered damages as a result of this

10

constitutional deprivation.

(SAC ¶¶ 85-86.)

11

alleges that the Jail has “a history of retaliation against

12

inmates for their requests for medical attention, basic hygiene

13

needs, or even food.”

14

Plaintiff (1) failed to address all the elements of the

15

retaliation claim, (2) failed to allege what adverse action was

16

taken, (3) failed to allege that the adverse action chilled his

17

First Amendment rights, and (4) failed to allege that the adverse

18

action did not serve a legitimate penological purpose.

19

13:25-14:2.)

20

allege any personal involvement as to any of the individual

21

Defendants in the alleged retaliatory actions.

22

SMTD at 10:11-18.)

23

///

24

///

25

///

26

///

27

///

28

///

(Id. ¶ 41.)

The SAC also

Defendants contend that

(CDMTD at

Defendants further argue that Plaintiff failed to

33

(Id. at 14:9-11;

1

In his opposition, Plaintiff contends that the SAC’s factual

2

allegations that the custodial staff at the Jail warned him to

3

“stop using the call button” and “stop complaining,” and that

4

Defendants took his wheelchair away, making it impossible for

5

Plaintiff to get to the intercom to request care constitute

6

sufficient circumstantial evidence allowing to infer Defendants’

7

intent to chill Plaintiff’s First Amendment rights.

8

at 25:27-26:5.)

9

warnings from the guards would chill an inmate of ordinary

(Pl’s Opp.

Plaintiff further argues that “[t]he repeated

10

resilience, and when coupled with the brutality of being dumped

11

onto the cell floor and denied a wheelchair to get up, and the

12

use of the intercom to call for help . . . would silence an

13

inmate in ordinary circumstances.”

14

finds Plaintiff’s arguments unpersuasive.

15

(Id. at 26:5-9.)

The Court

A bare allegation of retaliation is insufficient to support

16

a plausible claim for relief.

See Iqbal, 129 S. Ct. at 1949-50.

17

In order to state a claim for retaliation, Plaintiff must

18

demonstrate that: (1) the Jail officials took an adverse action

19

against him; (2) the adverse action was taken because Plaintiff

20

engaged in the protected conduct; (3) the adverse action chilled

21

Plaintiff’s First Amendment rights; and (4) the adverse action

22

did not serve a legitimate penological purpose, such as

23

preserving institutional order and discipline.

24

Robinson, 408 F.3d 559, 568 (9th Cir. 2005); Barnett v. Centoni,

25

31 F.3d 813, 815-16 (9th Cir. 1994).

26

when not completely silenced.”

27

///

28

///

Rhodes v.

“Speech can be chilled even

Rhodes, 408 F.3d at 568.

34

1

“[T]he proper First Amendment inquiry asks ‘whether an official’s

2

acts would chill or silence a person of ordinary firmness from

3

future First Amendment activities.’”

4

Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300

5

(9th Cir.)) (emphasis in the original).

6

Id. at 568-69 (quoting

The Court finds that Plaintiff failed to state a viable

7

claim of retaliation against the named Defendants.

8

as true Plaintiff’s allegations that some members of the

9

custodial staff ordered him “to stop using the call button,” “to

10

stop complaining,” and took Plaintiff’s wheelchair away, the SAC

11

is silent as to the identities of those wrongdoers.

12

does not plead that any of the named defendants personally

13

participated in the alleged retaliatory actions.

14

supervisory defendants, Plaintiff again fails to demonstrate that

15

those Defendants knew of and “acquiesced” in the alleged

16

retaliatory conduct of their subordinates.

17

at 1207.

18

retaliation against inmates is not sufficient to state a claim as

19

to individually named Defendants without some further showing

20

that those Defendants personally, or as supervisors, participated

21

in the wrongful conduct.

22

Even assuming

Plaintiff

As to the

See Starr, 652 F.3d

The general allegation that the Jail has a history of

Furthermore, even with respect to the unnamed Doe

23

Defendants, the SAC does not contain any allegations

24

demonstrating that the allegedly adverse action of Jail personnel

25

chilled Plaintiff’s First Amendment rights, or that the alleged

26

adverse action did not serve a legitimate penological purpose.

27

See Rhodes, 408 F.3d at 568.

28

Plaintiff’s eighth claim with leave to amend.

Accordingly, the Court dismisses

35

1

IV.

2

Second, Third, Fourth, Fifth, Seventh and Ninth Claims
for Relief: Monell Liability Against Sacramento County

3
4

Plaintiff claims that, at all relevant times, the County

5

(1) “maintained a policy or a de facto unconstitutional informal

6

custom or practice of permitting, ignoring and condoning [Jail

7

personnel] to delay in providing adequate medical assistance for

8

the protection of the health of inmates, failing to properly

9

observe and treat inmates” (SAC ¶ 55) (Count 2); (2) “maintained

10

the policy, custom of practice of under-staffing the Main Jail

11

with custody and medical personnel” (Id. ¶ 59) (Count 3);

12

(3) “maintained a policy, custom or practice of staffing the Main

13

Jail with personnel who were not sufficiently trained” (Id. ¶ 65)

14

(Count 4); (4) “maintained a policy, custom, or practice of

15

understaffing the Main Jail with supervisory personnel and

16

failing to properly supervise the custodial and medical staff at

17

the Main Jail” (Id. ¶ 71) (Count 5); (5) “maintained a policy,

18

custom or practices of treating and retaliating against inmates

19

of color differently than similarly situated non-Indian inmates

20

at the Main Jail” (Id. ¶ 80) (Count 7); and (6) “maintained a

21

policy, custom or practice of retaliating against inmates who

22

complained about deplorable and unlawful conditions of

23

confinement at the Main Jail” (Id. ¶ 88) (Count 9).

24

also alleges that the County was, at all relevant times,

25

responsible for the policies, customs and procedures at the Jail.

26

(Id. ¶ 7.)

27

///

28

///
36

Plaintiff

1

County Defendants contend that Plaintiff failed to state a

2

Monell claim because he did not demonstrate how each policy,

3

custom or practice was deficient; how each policy, custom or

4

practice caused Plaintiff’s harm; and how the deficiency involved

5

was obvious and the constitutional injury was likely to occur.

6

(CDMTD at 10:8-11, 14:3-6.)

7

In order to be subject to suit under § 1983, the alleged

8

offender must be a “person” acting under color of state law.

9

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 60 (1989).

10

Local governments, including counties, qualify as “persons”

11

within the meaning of § 1983.

12

436 U.S. 658, 690 (1978); Long v. County of L.A., 442 F.3d 1178,

13

1185 (9th Cir. 2006).

14

governments cannot be vicariously liable for the conduct of their

15

employees under § 1983, but rather are only “responsible for

16

their own illegal acts.”

17

1359 (2011) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479

18

(1986)) (emphasis in the original).

19

municipality may only be liable where it individually caused a

20

constitutional violation via “execution of a government’s policy

21

or custom, whether by its lawmakers or by those whose edicts or

22

acts may fairly be said to represent official policy.”

23

436 U.S. at 694; Ulrich v. City & County of S.F., 308 F.3d 968,

24

984 (9th Cir. 2002).

25

summarized the Ninth Circuit standard of municipal liability

26

under § 1983 in the following way:

27

///

28

///

Monell v. Dep’t of Social Servs.,

However, municipalities and local

Connick v. Thompson, 131 S. Ct. 1350,

In other words, a

Monell,

A recent decision from this district

37

1

Municipal liability may be premised on: (1) conduct
pursuant to an expressly adopted official policy; (2) a
longstanding practice or custom which constitutes the
“standard operating procedure” of the local government
entity; (3) a decision of a decision-making official
who was, as a matter of state law, a final policymaking
authority whose edicts or acts may fairly be said to
represent official policy in the area of decision; or
(4) an official with final policymaking authority
either delegating that authority to, or ratifying the
decision of, a subordinate.

2
3
4
5
6
7

Young v. City of Visalia, 687 F. Supp. 2d 1141, 1147 (E.D. Cal.

8

2009) (citing Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008);

9

Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004); Ulrich,

10

308 F.3d at 984-85, Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.

11

1996)).

12

A “policy,” for purposes of municipal liability under

13

§ 1983, is a “deliberate choice to follow a course of action

14

. . . made from among various alternatives by the official or

15

officials responsible for establishing final policy with respect

16

to the subject matter in question.”

17

824, 834 (9th Cir. 2008).

18

that, although not authorized by written law or express municipal

19

policy, is so permanent and well-established as to constitute a

20

custom or usage with the force of law.”

21

Praprotnik, 485 U.S. 112, 127 (1988); L.A. Police Protective

22

League v. Gates, 907 F.2d 879, 890 (9th Cir. 1990) (internal

23

quotation marks omitted).

24

///

25

///

26

///

27

///

28

///

Fogel v. Collins, 531 F.3d

A “custom” is a “widespread practice

38

City of St. Louis v.

1

A negligent policy does not violate the Constitution;

2

rather, in order to amount to “deliberate indifference,” the need

3

for more or different action is “obvious, and the inadequacy [of

4

the current procedure] so likely to result in the violation of

5

constitutional rights, that the policymakers . . . can reasonably

6

be said to have been deliberately indifferent to the need.”

7

of Canton v. Harris, 489 U.S. 378, 390 (1989); Mortimer v. Baca,

8

594 F.3d 714, 722 (9th Cir. 2010).

9

local government is not liable under § 1983 on the basis of the

City

Because Monell held that a

10

doctrine of respondeat superior, “a plaintiff must show the

11

municipality’s deliberate indifference led to its omission and

12

that the omission caused the employee to commit the

13

constitutional violation.”

14

“[t]o prove deliberate indifference, the plaintiff must show that

15

the municipality was on actual or constructive notice that its

16

omission would likely result in a constitutional violation.”

17

(citing Farmer, 511 U.S. at 841).

Gibson, 290 F.3d at 1186.

Moreover,

Id.

18

Generally, “[l]iability for improper custom may not be

19

predicated on isolated or sporadic incidents; it must be founded

20

upon practices of sufficient duration, frequency and consistency

21

that the conduct has become a traditional method of carrying out

22

policy.”

23

circumstances, a court can find a municipality liable under

24

§ 1983 based on the so-called “single-incident” theory.

25

131 S. Ct. at 1361.

26

‘obviousness’ can substitute for the pattern of violations

27

ordinarily necessary to establish municipal liability.”

28

///

Trevino, 99 F.3d at 918.

However, in rare

Connick,

Specifically, a particular “showing of

39

1

Id.

2

narrow range of circumstances’ [that] a pattern of similar

3

violations might not be necessary to show deliberate

4

indifference.”

5

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

6

However, the Supreme Court emphasized that it is only “’in a

Id. (quoting Bd. of County Comm’rs of Bryan

Besides demonstrating that one of the methods of

7

establishing municipal liability applies, a plaintiff must also

8

show that the challenged municipal conduct was both the cause in

9

fact and the proximate cause of the constitutional deprivation.

10

Trevino, 99 F.3d at 918.

In other words, Plaintiff bears the

11

burden of demonstrating that the County’s policy or custom was a

12

“moving force” of the constitutional deprivation and that

13

Plaintiff’s injury would have been avoided had the County had a

14

constitutionally proper policy.

Gibson, 290 F.3d at 1196.

15

A pre-Iqbal Ninth Circuit decision held that “a claim of

16

municipal liability under section 1983 is sufficient to withstand

17

a motion to dismiss even if the claim is based on nothing more

18

than a bare allegation that the individual officers’ conduct

19

conformed to official policy, custom, or practice.”

20

Garcetti, 486 F.3d 572, 581 (9th Cir. 2007).

21

Supreme Court in Iqbal made it clear that conclusory,

22

“threadbare” allegations merely reciting the elements of a cause

23

of action cannot defeat the Rule 12(b)(6) motion to dismiss.

24

Iqbal, 129 S. Ct. at 1949-50.

25

that the prior Ninth Circuit pleading standard for Monell claims

26

(i.e. ‘bare allegations’) is no longer viable.”

27

687 F. Supp. 2d at 1149.

28

///

Whitaker v.

However, the

“In light of Iqbal, it would seem

40

Young,

1

Thus, a Monell claim against the County requires more than

2

“labels and conclusions” or “a formulaic recitation of the

3

elements of a cause of action.’”

4

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

See Iqbal, 129 S. Ct. at 1949

5
6

(1)

Plaintiff’s Second Claim for Relief: Policy of Delaying

7

Medical Assistance to Inmates and Failure to Properly

8

Observe and Treat Inmates

9
10

Plaintiff alleges that the acts of individual Defendants in

11

being deliberately indifferent to Plaintiff’s serious medical

12

needs and safety were the direct and proximate cause of customs,

13

practices and policies of the County.

14

claims that the Defendants, including the County, “failed to

15

promulgate appropriate policies, guidelines and procedures and

16

have failed to rectify improper practices/customs with regard to

17

the medical treatment and/or health and safety” of the Jail

18

inmates.

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///

(Id. ¶ 46.)

41

(SAC ¶ 54).

Plaintiff

1

Specifically, Plaintiff alleges that the County maintained the

2

following policies, customs, or practices, which fell below any

3

acceptable standard of care: (1) Failure to provide follow-up

4

care and to monitor inmates with known medical needs; (2) Failure

5

to provide medical care to inmates with serious medical needs;

6

(3) Failure to have medical examinations conducted by qualified

7

medical personnel; (4) Failure to hospitalize inmates with acute

8

medical conditions; (5) Failure to maintain adequate medical

9

records; (6) Failure to provide medical records and a complete

10

medical history to outside hospitals rendering acute care for

11

inmates; and (7) Failure of custody staff to conduct proper

12

welfare checks and alert medical to serious medical needs of

13

inmates.

14

a history of failing to respond to the urgent medical need of its

15

inmates,” and that the Jail “has operated for a number of years

16

without sufficient staffing of properly trained and supervised

17

custody and medical personnel.”

18

that Plaintiff’s second claim consists of a laundry list of

19

potential factual theories, and fails to specifically identify a

20

policy, practice, or procedure, or lack thereof, that resulted in

21

the alleged constitutional violation.

22

(Id. ¶ 56.)

Plaintiff also alleges that the Jail “has

(Id. ¶ 40.)

Defendants contend

(Defs.’ Reply at 7:1-5.)

The SAC does not contain sufficient facts to allege that the

23

County’s policy regarding medical care for inmates at the Jail

24

plausibly amounts to deliberate indifference.

25

///

26

///

27

///

28

///
42

1

As the County cannot be vicariously liable under § 1983 for the

2

conduct of Jail personnel, Plaintiff must demonstrate that the

3

County itself caused a constitutional violation via “execution of

4

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

5

those whose edicts or acts may fairly be said to represent the

6

official policy.”

7

984.

8

that the County itself or through its entity or an official with

9

a final decision-making authority executed any of the seven

Monell, 436 U.S. at 694; Ulrich, 308 F.3d at

The SAC’s factual allegations do not support the inference

10

policies or customs identified by Plaintiff.

11

Plaintiff’s allegations might be sufficient to demonstrate

12

“deliberate indifference” to his serious medical needs by certain

13

Jail employees, nothing in the SAC suggests that those employees

14

were acting pursuant to the County’s policy of ignoring the

15

inmates’ medical needs. On the contrary, some of Plaintiff’s own

16

allegations suggest that the Jail employees were acting not in

17

conformance with, but contrary to, the established Jail policies.

18

(See, e.g., SAC ¶ 39 (alleging that Defendant Gaddis violated

19

jail policies by failing to file an incident report).)

20

While some of

Plaintiff’s allegation about the Jail’s “history of failing

21

to respond to the urgent medical need of its inmates” is an

22

unsupported conclusory statement.

23

contain references to any other incidents of the Jail’s failure

24

to respond to inmates’ medical needs; instead, Plaintiff bases

25

his allegation of the Jail’s policies solely on Plaintiff’s own

26

experience of the alleged medical mistreatment.

27

§ 1983 liability cannot be predicated on one isolated incident.

28

See Trevino, 99 F.3d at 918.
43

In fact, the SAC does not

The County’s

1

To survive a motion to dismiss, Plaintiff has to demonstrate the

2

County’s “practices of sufficient duration, frequency and

3

consistency.”

4

predicate § 1983 municipal liability on a single incident of a

5

constitutional violation, the SAC fails to demonstrate the

6

requisite “obviousness” of Plaintiff’s constitutional

7

deprivation.

See id. While in narrow circumstances a court can

See Connick, 131 S. Ct. at 1361.

8

Accordingly, as currently pled, Plaintiff’s third claim

9

fails to state a claim and thus is dismissed with leave to amend.

10
11

(2)

12

Plaintiff’s Fourth Claim for Relief: Failure to
Adequately Train

13
14

Plaintiff alleges the County maintained a policy, custom, or

15

practice of staffing the Jail with personnel who were not

16

sufficiently trained, and that such a policy, custom or practice

17

was the moving force behind the violation of his constitutional

18

rights.

19

claim is limited to the County’s failure to train custody

20

personnel, and does not implicate the medical personnel at the

21

Jail.

22

///

23

///

24

///

25

///

26

///

27

///

28

///

(SAC ¶¶ 65-66.)

It appears that Plaintiff’s fourth

(See id. ¶¶ 66-67.)

44

1

Specifically, Plaintiff alleges that the County “failed to

2

properly train custody personnel, including but not limited to

3

training and monitoring inmates, detecting the need for medical

4

care, responding to requests for medical care, proper policies

5

and procedures for transportation of acute inmates to appropriate

6

medical facilities, maintaining constitutional[ly] adequate

7

medical charts and histories, ensuring that inmates requiring

8

acute medical care are accompanied to the treating facility with

9

a complete medical history, and providing necessary medical care

10

to inmates with serious medical needs.”

11

(Id. ¶ 67.)

A municipality’s failure to train its employees may create a

12

§ 1983 liability where the “failure to train amounts to

13

deliberate indifference to the rights of persons with whom the

14

[employees] come into contact.”

15

Lee, 250 F.3d at 681.

16

is adequate and, if it is not, whether such inadequate training

17

can justifiably be said to represent the municipal policy.”

18

Long, 442 F.3d at 1186.

19

must show that “(1) he was deprived of a constitutional right,

20

(2) the [municipality] had a training policy that ‘amounts to

21

deliberate indifference to the [constitutional] rights of the

22

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

23

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

24

avoided had the [municipality] properly trained those officers.”

25

Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007).

26

///

27

///

28

///

City of Canton, 489 U.S. at 388;

“The issue is whether the training program

A plaintiff alleging a failure to train

45

1

“Only where a municipality’s failure to train its employees

2

in a relevant respect evidences a ‘deliberate indifference’ to

3

the rights of its inhabitants can such a shortcoming be properly

4

thought as a . . . ‘policy or custom’ that is actionable under

5

§ 1983.”

6

A municipality is “deliberately indifferent” when the need for

7

more or different action “is so obvious, and the inadequacy [of

8

the current procedure] so likely to result in the violation of

9

constitutional rights, that the policymakers . . . can reasonably

City of Canton, 489 U.S. at 389; Long, 511 F.3d at 907.

10

be said to have been deliberately indifferent to the need.”

City

11

of Canton, 489 U.S. at 390; Lee, 250 F.3d at 682.

12

deliberate indifference standard used to determine if a violation

13

of a detainee’s right to receive medical care took place, th[e]

14

standard [for failure to train] does not contain a subjective

15

component.”

16

841) (emphasis added).

17

plaintiff] to prove that the County policymakers actually knew

18

that their omissions would likely result in a constitutional

19

violation.”

20

despite the existence of a training program, or ‘highly

21

predictable’ constitutional violations due to a ‘failure to equip

22

law enforcement officers with specific tools to handle

23

situations’ are circumstances in which liability for failure to

24

train may be imposed.”

25

Board of County Comm’rs, 520 U.S. at 407-10; Long, 442 F.3d at

26

1186-87).

27

///

28

///

“Unlike the

Gibson, 290 F.3d at 1195 (citing Farmer, 511 U.S. at

Id.

“As a result, there is no need for [the

For example,“[a] ‘pattern of tortious conduct,’

Young, 687 F. Supp. 2d at 1148 (citing

46

1

Generally, “[e]vidence of the failure to train a single

2

officer is insufficient to establish a municipality’s deliberate

3

policy.”

4

officer may be unsatisfactorily trained will not alone suffice to

5

fasten liability of the [municipality], for the officer’s

6

shortcomings may have resulted from factors other than a faulty

7

training program.”

8

Moreover, “adequately trained officers may occasionally make

9

mistakes; the fact that they do says little about the training

Blankenhorn, 485 F.3d at 484.

“That a particular

City of Canton, 489 U.S. at 390-91.

10

program or the legal basis for holding the [municipality]

11

liable.”

12

‘program-wide inadequacy in training,’ any shortfall in a single

13

officer’s training ‘can only be classified as negligence on the

14

part of the municipal defendant – a much lower standard of fault

15

than deliberate indifference.’”

16

(quoting Alexander v. City & County of S.F., 29 F.3d 1355, 1367

17

(9th Cir. 1994)).

18

the validity of the so-called “single-incident” theory in failure

19

to train cases.

20

discussed earlier, in “a narrow range of circumstances,” a

21

particular “showing of ‘obviousness’ can substitute for the

22

pattern of violations ordinarily necessary to establish municipal

23

liability.”

24

Id. at 391.

Accordingly, “absent evidence of a

Blankenhorn, 485 F.3d at 484-85

However, the Supreme Court recently affirmed

Connick, 131 S. Ct. at 1360.

As this Court

Id. at 1361.

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

25

in the SAC, it is plausible that the County maintained a policy,

26

custom, or practice of staffing the Jail with inadequately

27

trained custody personnel.

28

///
47

1

Plaintiff has made sufficient factual allegations to demonstrate

2

that the County plausibly failed to train Jail custody personnel

3

adequately.

4

repeated requests for showers and items required for regular

5

hygiene and to keep his wound clean were repeatedly ignored by

6

the custodial officers for two weeks (SAC ¶ 25); (2) Jail

7

personnel did not provide Plaintiff with any medical products for

8

proper wound care for two weeks after the initial treatment by

9

Dr. Gray (Id.); (3) Plaintiff’s repeated complaints about the

10

lack of clean running water in his cell were similarly ignored

11

for two weeks (Id.); (4) After Plaintiff collapsed in the shower

12

and was improperly evaluated by Defendant Carl, Defendant Doe

13

officer dumped Plaintiff out of his wheelchair and left him on

14

the floor of his cell (Id. ¶ 30); (5) After Plaintiff suffered

15

sudden and acute vision loss in his left eye and noticed that he

16

could not move his lower extremities on May 18, 2007, Plaintiff

17

had been ringing the emergency bell repeatedly for two days to

18

summon help, but was told by the custodial officers that “these

19

things would not kill him and to stop using the call button” (Id.

20

¶ 31); and (6) When Plaintiff was transported to UCD, Plaintiff’s

21

medical history did not accompany him, which led to lengthy

22

delays in diagnosis and treatment (Id. ¶¶ 34,35).

23

///

24

///

25

///

26

///

27

///

28

///

In particular, Plaintiff alleges: (1) Plaintiff’s

48

1

These factual allegations are sufficient to plausibly

2

demonstrate that the County failed to train its custodial

3

personnel in “monitoring inmates,” “detecting the need for

4

medical care” “responding to requests for medical care,” and

5

“ensuring that inmates requiring acute medical care are

6

accompanied to the treating facility with a complete medical

7

history.” (See id. ¶ 67.)

8
9

Accordingly, the Court finds that Plaintiff sufficiently
alleged what County’s training practices were inadequate and how

10

those practices caused Plaintiff’s harm.

See Young, 687

11

F. Supp. 2d at 1149.

12

fourth claim for relief against the County for failure to

13

adequately train.

The Court declines to dismiss Plaintiff’s

14
15

(3)

Plaintiff’s Third Claim for Relief: Failure to

16

Adequately Staff, and Fifth Claim for Relief: Failure

17

to Supervise

18
19

The Court considers the Third and Fifth claims for relief

20

together because Plaintiff’s allegations to support these claims

21

substantially overlap.

22

maintained the policy, custom or practice of understaffing the

23

Jail with custody and medical personnel (SAC ¶ 59), understaffing

24

the Jail with supervisory personnel and failing to properly

25

supervise the custodial and medical staff at the Jail (Id. ¶ 71).

26

Plaintiff also alleges that the Jail “has operated for a number

27

of years without sufficient staffing of properly trained and

28

supervised custody and medical personnel.”

Plaintiff claims that the County

49

(Id. ¶ 40.)

1

“In order to comply with their duty not to engage in acts

2

evidencing deliberate indifference to inmates’ medical . . .

3

needs, jails must provide medical staff who are ‘competent to

4

deal with prisoners’ problems.’”

5

(citing Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982)).

6

However, to demonstrate that the County had a policy or custom of

7

understaffing and failure to supervise, Plaintiff must provide

8

“more than labels and conclusions.”

9

555. Yet, Plaintiff’s allegations about the County’s policy of

Gibson, 290 F.3d at 1187

See

Twombly, 550 U.S. at

10

understaffing and failure to adequately supervise amount to just

11

that -- legal conclusion which are not entitled to be taken as

12

true and are not sufficient to support Plaintiff’s claims for

13

relief.

14

understaffing is a conclusory statement not supported by any

15

evidence in the SAC.

16

allegations that the Jail did not have enough medical, custody or

17

supervisory personnel to provide adequate medical care to

18

Plaintiff.

19

inadequacy of medical care that he received while detained at the

20

Jail, not the understaffing of the Jail.

21

The allegation regarding the Jail’s history of

The SAC does not contain any factual

The gravamen of Plaintiff’s allegations is the

Nor does the SAC contain any factual allegations allowing

22

the Court to infer that either the County’s lawmakers or “those

23

whose edicts or acts may fairly be said to represent” the

24

County’s official policy created or endorsed the policy of

25

understaffing of the Jail with medical, custody or supervisory

26

personnel.

27

of S.F., 308 F.3d 968, 984 (9th Cir. 2002).

28

///

See Monell, 436 U.S. at 694; Ulrich v. City & County

50

1

Accordingly, Plaintiff’s Third and Fifth claims for relief

2

against the County are dismissed with leave to amend.

3
4

(4)

Plaintiff’s Seventh Claim for Relief: Policy of

5

Discrimination against Inmates of Color

6
7

Plaintiff alleges that the County maintained a policy,

8

custom or practice of treating and retaliating against inmates of

9

color differently than similarly situated non-Indian inmates at

10

the Jail.

11

a history of repeated acts of discrimination against inmates

12

based on their race and national origin.”

13

(SAC ¶ 80.)

Plaintiff also alleges that the Jail “has

(Id. ¶ 41.)

Labeling an action “discriminatory,” without more, is a

14

legal conclusion, which is not sufficient to state a cognizable

15

claim.

16

evidence of the alleged “repeated acts of discrimination.”

17

only factual allegation relevant to Plaintiff’s allegation of the

18

history of discrimination” is that Plaintiff was housed with the

19

African-American inmates at the Jail as a result on his dark skin

20

color.

21

to demonstrate the Jail’s “history” of discrimination against

22

Indian inmates.

23

demonstrating that the County, by its own actions or by the

24

actions of its officials, maintained an official or de facto

25

policy of racial discrimination.

26

seventh claim for relief against the County is dismissed with

27

leave to amend.

28

///

Iqbal, 129 S. Ct. at 1949.

(SAC ¶ 23.)

The SAC is devoid of any
The

This allegation alone is hardly sufficient

Moreover, the SAC lacks any factual allegations

51

Accordingly, Plaintiff’s

1

(5)

Plaintiff’s Ninth Claim for Relief: Policy of

2

Retaliating Against Inmates for Protesting

3

Unconstitutional and Unlawful Jail Conditions

4
5

Plaintiff alleges that the County maintained a policy,

6

custom or practice of retaliating against inmates who complained

7

about deplorable and unlawful conditions of confinement at the

8

Jail.

9

history of retaliation against inmates for their requests for

(SAC ¶ 88.)

Plaintiff also alleges that the Jail has “a

10

medical attention, basic hygiene needs, or even food.”

(Id.

11

¶ 41.)

12

relief against the County is equally applicable to Plaintiff’s

13

ninth claim for relief in that Plaintiff’s allegations lack any

14

factual support for the Jail’s “history of retaliation” or the

15

County’s retaliatory policies or customs.

16

Plaintiff’s ninth claim for relief against the County is

17

dismissed with leave to amend.

18

///

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///

The Court’s analysis of Plaintiff’s seventh claim for

52

Accordingly,

1

V.

2

Tenth Claim for Relief: Violation of the Americans with
Disabilities Act and Rehabilitation Act Against the County

3
4

Plaintiff alleges that he was a qualified individual under

5

the Americans with Disabilities Act (“ADA”) and the

6

Rehabilitation Act (“RA”).

7

alleges that the County violated the ADA by (1) creating and

8

maintaining a jail without sufficient staffing levels to provide

9

responsible care to disabled persons in need; and (2) failing to

(SAC ¶ 93.)

Plaintiff further

10

provide wheelchairs or other types of accommodations to those

11

people suffering from the inability to ambulate, thereby

12

providing a lesser quality of care and service that is different,

13

separate, and worse than the service provided to other

14

individuals.

15

disability, he was denied the benefits of the services, programs

16

and activities of the County, mental care, treatment, follow-up

17

and supervision.

18

(1) Plaintiff was not a “qualified individual” during his

19

incarceration; and (2) Plaintiff’s allegations of inadequate

20

medical care are insufficient to state a claim under either the

21

ADA or RA.

22

(Id. ¶ 100.)

Plaintiff claims that, because of his

(Id. ¶ 102.)

County Defendants contend that

(CDMTD at 15:14-16:8.)

“When a plaintiff brings a direct suit under either the [RA]

23

or Title II of the ADA against a municipality (including a

24

county), the public entity is liable for the vicarious acts of

25

its employees.”

26

(9th Cir. 2001).

27

///

28

///

Duvall v. County of Kitsap, 260 F.3d 1124, 1141

53

1

To establish a violation of § 504 of the RA, Plaintiff must show

2

that (1) he is handicapped within the meaning of the RA; (2) he

3

is otherwise qualified for the benefit or services sought; (3) he

4

was denied the benefit or services solely by reason of his

5

handicap; and (4) the program providing the benefit or services

6

receives federal financial assistance.

7

303 F.3d 1039, 1052 (9th Cir. 2002).

8
9

Lovell v. Chandler,

To establish a violation of Title II of the ADA, Plaintiff
must show that (1) he is a qualified individual with a

10

disability; (2) he is otherwise qualified to participate in or

11

receive the benefit of some public entity’s services, programs,

12

or activities; (3) he was excluded from participation in or

13

otherwise discriminated against with regard to a public entity’s

14

services, programs or activities; and (4) such exclusion or

15

discrimination was by reason of his disability.

16

Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir.

17

2007).

18

‘anything a public entity does,’” including “programs or services

19

provided at jails, prisons, and any other ‘custodial and

20

correctional institution.’”

21

Yeskey v. Pennsylvania Dep’t of Corr., 118 F.3d 168, 171 & n.5

22

(3d Cir. 1997)).

23

O’Guinn v.

“The ADA’s broad language brings within its scope

Lee, 250 F.3d at 691(quoting

To demonstrate that he is a “qualified individual with a

24

disability,” Plaintiff has to show that, at the time of the

25

alleged events, he had a physical or mental impairment that

26

substantially limited Plaintiff’s one or more major life

27

activities, or a record of such an impairment, or being regarded

28

as having such an impairment. 42 U.S.C.A. § 12102(1).
54

1

Plaintiff bases his allegations of being a “qualified individual”

2

on his medical impairments associated with his “paraparesis and a

3

neurological condition, which prevented him from walking and

4

standing, and therefore resulted in his limited and/or

5

substantially limited ability to care for himself and control his

6

mental, medical or physical health conditions.”

7

Although the ADA includes walking, standing, and caring for

8

oneself as examples of “major life activities,” 42 U.S.C.A.

9

§ 12102(2), the existence of disabilities under the ADA and RA is

(SAC ¶ 93.)

10

an individualized inquiry and should be determined on a

11

case-by-case basis.

12

555, 566 (1999); Thornton v. McClatchy Newspapers, Inc., 261 F.3d

13

789, 794 (9th Cir. 2001).

14

his major life activities were limited, Plaintiff has to

15

demonstrate that the limitation was substantial.

16

§ 12102(1).

17

///

18

///

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///

Albertson's, Inc. v. Kirkingburg, 527 U.S.

In addition to alleging that some of

55

42 U.S.C.A.

1

The SAC’s factual allegations relevant to Plaintiff’s claim

2

of inability to walk and stand are as follows: (1) on May 17,

3

2007, Plaintiff collapsed while taking a shower when he lost

4

control of his legs, but he managed to drag himself to summon

5

help (SAC ¶ 29); (2) On May 18, 2007, Plaintiff “started

6

noticing” his inability to move his lower extremities (Id. ¶ 31);

7

(3) On May 18, 2007, Plaintiff had to pull himself up the wall to

8

ring the emergency bell in the cell to summon help because he was

9

unable to leave the cell; he told the officers that his legs did

10

not work (Id. ¶ 31); (4) On May 20, 2007, Defendant Carl reported

11

that Plaintiff “was ‘again man down’ in his cell saying ‘my legs

12

don’t work’” (Id. ¶ 32); (5) On May 20, 2007, Dr. Horowitz

13

determined that Plaintiff had been on the floor of his cell for

14

three days, and that Plaintiff was suffering from an inability to

15

control his extremities (Id.).

16

factual allegations to demonstrate that Plaintiff’s walking and

17

standing abilities had been seriously impaired for four days

18

before Plaintiff was transported to UCD for diagnosis and

19

treatment.

20

definition of “disability” in favor of broad coverage of

21

individuals and to the maximum extent permitted by the terms of

22

the ADA, 42 U.S.C.A. § 12102(4)(a), the Court concludes that

23

Plaintiff has made s plausible showing that he was a “qualified

24

individual with a disability” at the time of the alleged events.

25

Thus, the SAC contains sufficient

Considering the legislative directive to construe the

Defendants contend that, even if Plaintiff is a “qualified

26

individual,” Plaintiff’s allegations amount merely to an

27

inadequate treatment for disability and not to a discriminatory

28

treatment because of the disability.
56

1

(CDMTD at 15:21-22.)

Defendants are correct in that the

2

inadequate treatment or lack of medical treatment for Plaintiff’s

3

medical conditions does not provide a basis for a liability under

4

the ADA or RA.

5

(7th Cir. 1996)(“The ADA does not create a remedy for medical

6

malpractice.”); Burger v. Bloomberg, 418 F.3d 882, 883 (8th Cir.

7

2005) (medical treatment decisions are not a basis for ADA or RA

8

claims); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144

9

(10th Cir. 2005) (concluding that medical decisions are not

See, e.g., Bryant v. Madigan, 84 F.3d 246, 249

10

ordinarily within the scope of the ADA); Luna v. Cal. Health Care

11

Servs., No. 1:10-CV-02076, 2011 WL 6936399, at *5 (E.D. Cal.

12

2011) (“Plaintiff's allegations of inadequate medical care do not

13

state a claim under the ADA.”).

14

explained, in an unpublished opinion, that “[i]nadequate medical

15

care does not provide a basis for an ADA claim unless medical

16

services are withheld by a reason of a disability.”

17

Madison County, Idaho, 50 Fed. Appx. 872, 873 (9th Cir. 2002)

18

(emphasis in the original).

The Ninth Circuit has also

Marlor v.

19

Aside from Plaintiff’s claims of inadequacy of and delays in

20

his medical treatment, Plaintiff alleges no facts to show that he

21

was denied any of the Jail’s “benefits of the services, programs,

22

or activities.”

23

“simply failing to attend to the medical needs of its disabled

24

prisoners.”

25

of the Jail’s understaffing with competent caretakers and the

26

Jail’s failure to provide non-ambulatory inmates with wheelchairs

27

are merely camouflaged claims of inadequate medical care provided

28

to Plaintiff at the Jail.

The County does not violate the ADA and RA by

See Bryant, 84 F.3d at 249.

57

Plaintiff’s assertions

1

Although Plaintiff alleges that the County failed to provide

2

wheelchairs to “people suffering from the inability to ambulate,”

3

the SAC does not contain any facts demonstrating that the County

4

failed to provide a wheelchair to any other inmate.

5

Plaintiff’s allegations are not sufficient to state a claim of

6

“discrimination” under the ADA and RA.

Accordingly,

7

Even if the Court were to conclude that Plaintiff’s claims

8

of the Jail understaffing with “responsible” caretakers and the

9

Jail’s failure to provide non-ambulatory inmates with wheelchairs

10

rise to the level of “discrimination” for the ADA and RA

11

purposes, Plaintiff fails to make any factual allegations as to

12

what benefits or services he would have been entitled to absent

13

his disability.

14

other inmates’ medical care to demonstrate that he was denied

15

access to medical supplies or treated differently by reason of

16

his disability.”

17
18

Moreover, Plaintiff “offered no comparison with

See Marlor, 50 Fed. Appx. at 873.

Accordingly, the Court dismisses Plaintiff’s tenth claim for
relief with leave to amend.

19
CONCLUSION

20
21
22

For the reasons stated above, Defendants’ motions are

23

granted in part and denied in part, consistent with the

24

foregoing, as follows:

25

///

26

///

27

///

28

///
58

1

1. County Defendants’ motion to dismiss Plaintiff’s First

2

Claim under § 1983 for failure to provide adequate medical care

3

is GRANTED with leave to amend as to the County, McGinness,

4

Boylan, Hambly, Carl, Keillor and Gaddis, in their official and

5

individual capacities.

6

2.

Defendant Smith’s motion to dismiss Plaintiff’s First

7

Claim under § 1983 for failure to provide adequate medical care

8

is DENIED as to Smith in his individual capacity, and GRANTED as

9

to Smith in his official capacity with leave to amend.

10

3.

Defendants’ motions to dismiss Plaintiff’s Second,

11

Third, Fifth, Seventh, and Ninth Claims under § 1983 are GRANTED

12

with leave to amend as to the County, McGinness, Boylan, Hambly,

13

Keillor and Gaddis in their official capacities.

14

4.

Defendants’ motions to dismiss Plaintiff’s Fourth Claim

15

under § 1983 for failure to train are DENIED as to the County,

16

but GRANTED with leave to amend as to McGinness, Boylan, Hambly,

17

Keillor and Gaddis in their official capacities.

18

5. Defendants’ motions to dismiss Plaintiff’s Sixth Claim

19

under § 1983 for violation of the Equal Protection Clause of the

20

Fourteenth Amendment are GRANTED with leave to amend as to the

21

County, McGinness, Boylan, Hambly, Smith, Carl, Keillor and

22

Gaddis, in their official and individual capacities.

23

6. Defendants’ motions to dismiss Plaintiff’s Eighth Claim

24

under § 1983 for violation of the First Amendment are GRANTED

25

with leave to amend as to the County, McGinness, Boylan, Hambly,

26

Smith, Carl, Keillor and Gaddis, in their official and individual

27

capacities.

28

///
59

1
2
3
4
5

7.

County Defendants’ motion to dismiss Plaintiff’s Tenth

Claim under the ADA and RA is GRANTED with leave to amend.
8.

Defendants’ motions to dismiss Plaintiff’s Eleventh,

Twelfth and Thirteenth Claims are GRANTED with leave to amend.
Any amended pleading consistent with the terms of this

6

Memorandum and Order must be filed not later than twenty (20)

7

days following the date the Memorandum and Order is signed.

8

IT IS SO ORDERED.

9
10

Dated: February 17, 2012

11
12
13

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

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60