Bock et al v. County of Sutter et al

Filing 26

ORDER signed by Judge Morrison C. England, Jr on 2/7/12 ORDERING that Defendants' MOTION TO DISMISS 11 is GRANTED without leave to Amend as to Plaintiffs' seventh cause of action against Defendants County of Sutter and County of Yuba, and GRANTED with leave to amend as to all Plaintiffs' remaining claims. Not later than thirty (30) days following the date this Memorandum and Order is electronically filed, Plaintiff may (but is not required to) file a Second Amended Complaint. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ESTATE OF RODNEY LOUIS BOCK,
deceased, by and through
CYNDIE DENNY BOCK, as
Administrator; KIMBERLY BOCK;
KELLIE BOCK; HILLARY BOCK;
M.B., minor through her mother
and guardian ad litem Cyndie
Denny Bock; LAURA LYNN BOCK;
and ROBERT BOCK,

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Plaintiffs,

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No. 2:11-cv-00536-MCE-GGH

v.

MEMORANDUM AND ORDER

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COUNTY OF SUTTER; COUNTY OF
YUBA; J. PAUL PARKER, Sutter
County Sheriff’s Department
Sheriff; TOM SHERRY, Director
of Human Services of Sutter
and Yuba Counties; AMERJIT
BHATTAL, Assistant Director of
Human Services-Mental Health
of Sutter and Yuba Counties;
JOHN S. ZIL; CHRISTOPHER
BARNETT; SADOUTOUNNISSA MEER;
and Does I through XL,
inclusive,

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Defendants.

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----oo0oo----

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This action for damages was initiated by the estate and

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surviving family members of Rodney Louis Bock (“Decedent”).

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Plaintiffs Estate of Rodney Louis Bock, by and through Cyndie

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Denny Bock, as administrator, Kimberly Bock, Kelly Bock, Hillary

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Bock, M.B., a minor through her guardian ad litem Cyndie Denny

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Bock, Laura Lynn Bock, and Robert Bock (collectively

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“Plaintiffs”) seek to recover from Defendants County of Sutter;

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County of Yuba; J. Paul Parker, Sutter County Sheriff; Tom

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Sherry, Director of Human Services of Sutter and Yuba Counties;

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Amerjit Bhattal, Assistant Director of Human Services-Health

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Division of Sutter and Yuba Counties; Brad Luz, Assistant

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Director of Human Services-Mental Health of Sutter and Yuba

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Counties; John S. Zil; Christopher Barnett; and Sadoutounnissa

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Meer (collectively “Defendants”) for injuries sustained as a

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result of Decedent’s suicide while incarcerated at Sutter County

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Jail (“Jail”).

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to Dismiss Plaintiffs’ First Amended Complaint.

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following reasons, Defendants’ Motion is GRANTED.1

Presently before the Court is Defendants’ Motion
For the

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BACKGROUND2

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Decedent was a self-employed farmer in Marysville, California,

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for over 30 years.

In late 2009, he began experiencing mental

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health issues and required psychiatric treatment.

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1

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Because oral argument will not be of material assistance, the
Court ordered this matter submitted on the briefs. E.D. Cal.
Local Rule 230(g).
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The following facts are derived from Plaintiffs’ First Amended
Complaint (“FAC”).
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On several occasions from 2009 through 2010, Decedent was

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involuntarily hospitalized pursuant to California Welfare &

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Institutions Code § 5150 at the Sutter-Yuba Mental Health

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Services facility (“SYMHS”),3 which was operated and managed by

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Defendants County of Sutter and County of Yuba.

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SYMHS provides a variety of mental health care services to

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adults residing in Sutter and Yuba counties and to inmates of the

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Jail.

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nine to eleven of which are typically filled at any one time,

Because SYMHS has only roughly sixteen inpatient beds,

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Plaintiffs believe SYMHS staff members personally know, or should

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know, all patients.

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Decedent was first hospitalized at SYMHS on approximately

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November 30, 2009.

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psychotic, delusional and grandiose.

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staff evaluated and treated Decedent and diagnosed him with,

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among other things, “Bipolar I Disorder, Most Recent Episode

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Manic, Severe with Psychotic Features.”

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During that time, he was documented as
Defendant Barnett and other

On various occasions, Decedent did indeed exhibit delusional

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and paranoid behavior, and, eventually, on or around January 14,

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2010, Decedent entered a restaurant with a gun and began making

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erratic statements.

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arrested, criminal charges were filed against him, and he was

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taken to the Jail.

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As a result of that incident, Decedent was

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3

On two occasions, Decedent was involuntarily held for
additional periods pursuant to California Welfare & Institutions
Code § 5250.
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1

According to Plaintiffs, the Jail has the capacity to house

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approximately two-hundred prisoners, and, given its relatively

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small size, Jail staff and supervisors must therefore have, or

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reasonably should have, personal knowledge of all prisoners,

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especially those exhibiting psychotic behaviors.

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On January 15, 2010, while still housed at the Jail,

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Decedent was referred to SYMHS for a psychiatric evaluation, at

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which time SYMHS staff again documented his psychiatric history,

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which included his history of delusions.

In addition, later in

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January, after Decedent had been released from the Jail, he was

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again treated at SYMHS, pursuant to one of the above-mentioned

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involuntary holds, by Defendants Barnett and Meer and other

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staff, some of whom confirmed Decedent’s serious psychiatric

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diagnoses and recommended 15-minute safety checks and daily

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treatment.

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Subsequently, on or around January 27, 2010, the Sutter

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County Superior Court judge presiding over Decedent’s then-

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pending criminal case ordered Decedent to undergo a separate

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psychological evaluation to determine whether he was competent to

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stand trial.

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that Decedent’s highly unstable psychiatric condition rendered

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him incompetent to be tried.

The physician conducting that evaluation concluded

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Approximately one month later, on March 1, 2010, another

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Sutter County Superior Court judge ordered a placement evaluation

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of Decedent.

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Decedent’s competency confirmed Decedent’s psychiatric history

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and recommended that Decedent receive outpatient treatment.

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A different physician than the one who evaluated

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Later, on March 25, 2010, Decedent attended a psychiatric

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appointment with Defendant Meer, who documented that Decedent

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remained delusional.

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Sometime after this last appointment, Decedent, who still

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continued to experience paranoia and delusions, began to believe

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he was being “direct[ed]” to drive to his nephew’s home in Idaho.

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Decedent eventually followed that “direction” but was returned to

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California by his nephew.

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missed a court date and, as a result, a warrant had been issued

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In the meantime, however, Decedent had

for his arrest.

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Upon his return to California, Decedent was again taken to

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SYMHS for evaluation and treatment.

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Decedent’s prior diagnosis of Bipolar I Disorder, Manic with

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Severe Psychotic Features, and identified his need for inpatient

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hospitalization or “state hospital placement.”

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also documented that Decedent was sharing delusions of “end

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times.”

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SYMHS staff confirmed

Defendant Barnett

Notwithstanding these observations, on April 2, Defendants

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discharged and transferred Decedent, pursuant to the pending

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warrant, to the custody of Sutter County Sheriff’s Department,

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and he was again placed at the Jail.

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Defendants transferred Decedent to the Jail in contravention of

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California Welfare & Institutions Code § 5152(a) and despite

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their knowledge of Decedent’s urgent need for inpatient care.

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Plaintiffs also generally allege that, at the time of Decedent’s

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discharge, Defendant Barnett and SYMHS staff provided a wholly

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inadequate treatment plan for Decedent.

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According to Plaintiffs,

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Plaintiffs nonetheless further aver that, on the day of

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Decedent’s transfer, Defendant Zil advised a Jail nurse that

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Decedent was to continue taking his current medications.

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days later, SYMHS and/or Sutter County Sheriff’s Department staff

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documented Decedent’s “continued delusions” and need for further

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psychiatric review, and, on April 8, Defendant Zil personally met

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with Decedent.

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Two

Also at around this same time, the physician who had
conducted Decedent’s original court-ordered placement evaluation

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sent a letter to the court retracting his outpatient treatment

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recommendation.

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had ordered Decedent’s placement evaluation found Decedent

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incompetent to stand trial, suspended all pending proceedings,

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and ordered that Decedent be transferred to Napa State Hospital

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for treatment.

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statutory duty to ensure Decedent was transferred in accordance

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with the Court’s order, and all other Defendants, nonetheless

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failed to transfer Decedent in accordance with that order.

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Shortly thereafter, on April 19, the judge who

Defendant Parker, who as Sheriff was under a

By April 24, Decedent was unstable and unkempt, was talking

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to himself and to inanimate objects and was refusing his

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medication.

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Decedent was conducted, however, nor was any further treatment

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undertaken.

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to follow up with Decedent on April 28, failed to attend that

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appointment.

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According to Plaintiffs, no further evaluation of

To the contrary, Defendant Meer, who was scheduled

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Plaintiffs thus allege Defendants failed to appropriately

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assess and medicate Decedent upon his incarceration at the Jail.

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More specifically, Plaintiffs allege Defendants failed to

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appropriately assess Decedent’s suicide risk.

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April 29, using items that Plaintiffs allege should not have been

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permitted in Decedent’s cell due to his psychiatric condition,

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Decedent fashioned a noose and hanged himself from the upper

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bunk.

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covering the cell floor and walls, apparently a result of

Consequently, on

When he was found, there were large amounts of blood

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Decedent banging his head against the wall in a very violent

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manner.

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Decedent died in his cell.

By this suit, Plaintiffs now assert eleven causes of action

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against Defendants arising out of Decedent’s death.

Defendants

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moved to dismiss each claim and to strike Plaintiffs’ request for

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punitive damages.

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to Dismiss is GRANTED and Defendants’ request to strike

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Plaintiffs’ prayer for punitive damages is DENIED as moot.

For the following reasons, Defendants’ Motion

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STANDARD

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20

Pursuant to Federal Rule of Civil Procedure 12(b)(6),4 all

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allegations of material fact must be accepted as true and

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construed in the light most favorable to the nonmoving party.

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Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.

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1996).

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4

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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

2

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

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

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the grounds upon which it rests.’”

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

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47 (1957)).

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dismiss does not require detailed factual allegations.

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

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entitlement to relief requires more than labels and conclusions,

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

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will not do.”

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

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couched as a factual allegation.”

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662, ___, 129 S. Ct. 1937, 1950 (2009) (quoting Twombly, 550 U.S.

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at 555).

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relief above the speculative level.”

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(citing 5 Charles Alan Wright & Arthur R. Miller, Federal

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Practice and Procedure § 1216 (3d ed. 2004) (stating that the

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pleading must contain something more than “a statement of facts

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that merely creates a suspicion [of] a legally cognizable right

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of action.”)).

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Bell Atl. Corp. v. Twombly,

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

Id. (internal citations and quotations omitted).

Ashcroft v. Iqbal, 556 U.S.

“Factual allegations must be enough to raise a right to
Twombly, 550 U.S. at 555

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

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than a blanket assertion, of entitlement to relief.”

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

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

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hard to see how a claimant could satisfy the requirements of

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

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also ‘grounds’ on which the claim rests.”
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Twombly,

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Id. (citing 5 Charles Alan Wright & Arthur R. Miller, supra, at

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§ 1202).

3

claim to relief that is plausible on its face.”

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the “plaintiffs ... have not nudged their claims across the line

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from conceivable to plausible, their complaint must be

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dismissed.”

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proceed even if it strikes a savvy judge that actual proof of

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those facts is improbable, and ‘that a recovery is very remote

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and unlikely.’”

10

A pleading must contain “only enough facts to state a

Id.

Id. at 570.

If

However, “[a] well-pleaded complaint may

Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S.

232, 236 (1974)).

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A court granting a motion to dismiss a complaint must then

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decide whether to grant leave to amend.

Leave to amend should be

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

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

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

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futility of the amendment ....”

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182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,

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

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considered when deciding whether to grant leave to amend).

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all of these factors merit equal weight.

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consideration of prejudice to the opposing party ... carries the

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greatest weight.”

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

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Dismissal without leave to amend is proper only if it is clear

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

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

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(9th Cir. 2007) (internal citations and quotations omitted).

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Foman v. Davis, 371 U.S. 178,

Not

Rather, “the

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

9

ANALYSIS

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2
3

At the outset, the Court notes that Plaintiffs seek relief

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for the events that transpired from April 1 to April 29, 2010.

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See Plaintiffs’ Opposition to Defendants’ Motion to Dismiss

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(“Plt. Opp.”) (ECF No. 16) at pg. 1.

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light most favorable to the non-moving party, however, Decedent’s

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treatment at SYMHS prior to April 1, 2010, as well as other

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events leading up his detention in April 2010, are relevant to

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In viewing the facts in the

Plaintiffs’ claims and will be considered herein.

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A.
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Plaintiffs’ First Through Third Causes of Action for
Deliberate Indifference to Decedent’s Serious Medical
Needs.

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In their first through third causes of action, Plaintiffs

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seek relief under the Fourteenth Amendment for Defendants’

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alleged deliberate indifference to Decedent’s serious medical

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needs.

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while the second and third causes of action are asserted against

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the municipal and supervisory defendants, respectively.

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Court now addresses Plaintiffs’ claims by category of Defendant.

The first cause of action is directed at all Defendants,

The

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1.

Plaintiffs’ First Cause of Action Alleged Against
the Individual Defendants.

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According to Plaintiffs, Defendants Zil, Barnett, and Meer

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“knew there was a strong likelihood that [Decedent] was in danger

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of serious personal harm...,” and their failure to provide mental

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heath care to him thus constituted deliberate indifference in

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violation of the Fourteenth Amendment.
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1

Defendants argue that Plaintiffs failed to plead facts sufficient

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to demonstrate Defendants Zil, Barnett and Meer’s actions

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violated Decedent’s constitutional rights.

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As opposed to prisoner claims under the Eighth Amendment, a

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pretrial detainee is entitled to be free of cruel and unusual

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punishment under the due process clause of the Fourteenth

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Amendment.

8

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

9

2010).

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

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

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violated when a defendant 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, 104-05 (1976).

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claim for failure to provide medical treatment, a plaintiff must

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plead sufficient facts to permit the Court to infer that:

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(1) Decedent had a “serious medical need”; and (2) a Defendant

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was “deliberately indifferent” to that need.

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

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

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“failure to treat a prisoner’s condition could result in further

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significant injury or the unnecessary and wanton infliction of

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pain.”

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omitted).

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Estelle v. Gamble,

In order to establish a plausible

Jett v. Penner,

A serious medical need exists when

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

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1

The Supreme Court, in Farmer, explained in detail the

2

contours of the “deliberate indifference” standard.

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Specifically, a Defendant is not liable under the Fourteenth

4

Amendment for his part in allegedly denying necessary medical

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care unless he knew “of and disregard[ed] an excessive risk to

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[Decedent’s] health or safety.”

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indifference contains both an objective and subjective component:

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

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inference could be drawn that a substantial risk of serious harm

511 U.S. at 837.

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exists, and he must also draw that inference.”

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“need not show that a prison official acted or failed to act

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believing that harm actually would befall an inmate; it is enough

13

that the official acted or failed to act despite his knowledge of

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a substantial risk of serious harm.”

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Id.

Deliberate

Plaintiffs

Id. at 842.

Negligence in diagnosing or treating a medical condition

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does not, however, give rise to a claim under the Eighth

17

Amendment.

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of opinion between the prisoner and medical providers concerning

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the appropriate course of treatment does not give rise to an

20

Eighth Amendment claim.

21

332 (9th Cir. 1996).

See Estelle, 429 U.S. at 106.

Moreover, a difference

See Jackson v. McIntosh, 90 F.3d 330,

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In the FAC, Plaintiffs allege that Defendant Zil, a

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psychiatrist contracted to provide care to SYMHS patients and

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Sutter County Jail inmates, treated Decedent in November and

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December of 2009, as well as in April 2010.

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Defendant Zil allegedly communicated with a nurse at SYMHS and

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ordered that Decedent continue taking his currently prescribed

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medications.
12

On April 2, 2010,

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In addition, on April 8, Defendant Zil personally met with

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Decedent.5

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failed to adequately assess and treat Decedent, those conclusory

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allegations are insufficient to state a claim for deliberate

5

indifference.

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allegations at “Defendants” generally, making it impossible to

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discern which Defendants were responsible for which actions.

While Plaintiffs nonetheless claim that Defendant Zil

Indeed, Plaintiffs have directed most of their

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More to the point, Plaintiffs have not alleged any facts

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indicating Defendant Zil, or any other Defendant for that matter,

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actually had any indication Decedent might intend to cause harm

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to himself.

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Barnett and Meer, both psychiatrists employed by SYHMS, evaluated

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and treated Decedent prior to his April incarceration, Plaintiffs

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fail to allege that either Defendant had contact with Decedent

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during anytime in April 2010.

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allege that Defendant Meer missed an April 28, 2010, appointment

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with Decedent, there are no facts pled demonstrating that

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Defendant Meer had a “sufficiently culpable mind” in doing so.

19

See Farmer, 511 U.S. at 834.

20

treat Decedent’s condition could potentially give rise to a

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constitutional violation, Plaintiffs have not pled the requisite

22

facts relating to the individual Defendants.

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cause of action directed at Defendants Zil, Barnett and Meer is

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thus dismissed with leave to amend.

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For example, while Plaintiffs allege that Defendants

In addition, although Plaintiffs

Accordingly, while a failure to

Plaintiffs’ first

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5

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Plaintiffs have advised in their Opposition that they intend to
amend their pleading based on newly discovered facts indicating
Defendant Zil never visited Decedent or provided any treatment at
the jail. Pls. Opp. 9 n.5.
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2.

1

Plaintiffs’ First and Third Causes of Action
Alleged Against the Supervisory Defendants.

2
3

In their first and third claims for relief, Plaintiffs

4

allege that Defendants Parker, Sherry, Bhattal and Luz are liable

5

for the deliberate indifference of other named Defendants because

6

the other Defendants’ acts were a direct and proximate result of

7

customs, practices, and policies of these supervisory Defendants.

8

Defendants argue that Plaintiffs’ claims against the supervisory

9

Defendants must be dismissed because Plaintiffs failed to

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identify any pertinent policies or practices attributable to

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Defendants Parker, Sherry, Bhattal and Luz and because Plaintiffs

12

improperly ascribe all purported failures very generally to the

13

Defendants as a group.

14

“In order for a person acting under color of state law to be

15

liable under section 1983 there must be a showing of personal

16

participation in the alleged rights deprivation: there is no

17

respondeat superior liability under section 1983.”

18

Williams, 297 F.3d 930, 934 (9th Cir. 2002).

19

liability is imposed against a supervisory official in his

20

individual capacity for his own culpable action or inaction in

21

the training, supervision, or control of his subordinates, for

22

his acquiescence in the constitutional deprivations of which the

23

complaint is made, or for conduct that showed a reckless or

24

callous indifference to the rights of others.”

25

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

26

City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)).

27

///

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///
14

Jones v.

“Supervisory

Menotti v. City

1

In other words, each government official may only be held liable

2

for his own misconduct.

3

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

4

Bowell v. Cal. Substance Abuse Treatment

However, government officials acting as supervisors may be

5

liable under § 1983 under certain circumstances.

A defendant may

6

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

7

either: “(1) his or her personal involvement in the

8

Constitutional deprivation, or (2) a sufficient causal connection

9

between the supervisor’s wrongful conduct and the constitutional

10

violation.”

11

Thus, Section 1983 actions against supervisors are proper as long

12

as a sufficient causal connection exists and the plaintiff was

13

deprived under color of law of a federally secured right.

14

Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting

15

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

16

1991)).

17

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

The requisite causal connection between a supervisor’s

18

wrongful conduct and the violation of the prisoner’s

19

constitutional rights can be established in a number of ways.

20

Plaintiffs may show that a supervisor set in motion a series of

21

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

22

acts by others, which the supervisor knew or reasonably should

23

have known would cause others to inflict a Constitutional injury.

24

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

25

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

26

training, supervision, or control of his subordinates may

27

establish supervisory liability.

28

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15

Starr, 652 F.3d at 1208.

1

Finally, a supervisor’s acquiescence in the alleged

2

constitutional deprivation, or conduct showing deliberate

3

indifference toward the possibility that deficient performance of

4

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

5

requisite causal connection.

6

Id.; Menotti, 409 F.3d at 1149.

Defendants correctly argue that, as with the individual

7

Defendants, Plaintiffs have failed to plead facts demonstrating

8

each supervisory Defendant’s role in any alleged deprivation.6

9

Without some specific allegations against each named Defendant,

10

Plaintiffs’ claims cannot withstand Defendants’ Motion to

11

Dismiss.

12
3.

13

Plaintiff’s First and Second Causes of Action
Alleged Against the Municipal Defendants.

14
15

In their first and second claims for relief, Plaintiffs

16

allege that Defendants County of Sutter and County of Yuba

17

violated the Fourteenth Amendment because the individually named

18

Defendants’ deliberate indifference toward Decedent was a direct

19

and proximate result of County of Sutter and County of Yuba’s

20

policies, customs or practices.

21

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22

///

23

///

24
25
26
27
28

6
The Court is cognizant that Plaintiffs have attempted to allege
Defendant Parker failed to comply with the superior court order
to transfer Decedent to Napa State Hospital. While such a
failure would certainly be significant, Plaintiffs have alleged
no facts indicating Sheriff Parker had or should have had any
indication the court order had been issued or that Defendant
Parker failed to act on any such information.

16

1

Defendants argue that because there was an actual policy in place

2

regarding the identification and treatment of mental disorders,

3

Plaintiffs’ claims dependent on other policies regarding the

4

treatment of inmates are inconsistent and must fail.

5

also argue that the policies identified by Plaintiffs were not

6

the moving force behind any alleged constitutional violations.

7

A municipality may be liable for violating a party’s

Defendants

8

constitutional rights resulting from a policy, ordinance, or

9

regulation pursuant to a governmental custom.

Monell v. Dep’t of

10

Social Servs., 436 U.S. 658 (1978).

11

“moving force” behind the constitutional violation.

12

Gilroy Garlic Festival Ass’n, 541 F.3d 950 (9th Cir. 2008).

13

Section 1983 requires that there is an actual connection or link

14

between the actions of a defendant and the deprivation alleged to

15

have been suffered by the plaintiff.

16

The policy must be the
Villegas v.

Id.

In order to survive Defendants’ Motion to Dismiss, then,

17

Plaintiffs must allege sufficient facts to permit the court to

18

infer the plausibility of each of the following elements: (1) an

19

employee violated the Plaintiffs’ constitutional rights; (2) the

20

municipality has customs or policies that amount to deliberate

21

indifference to those rights; and (3) those customs or policies

22

were the moving force behind the violation of the employee’s

23

constitutional rights.

24

1175, 1193-94 (9th Cir. 2002).

25

sections, Plaintiffs have failed to plead facts sufficient to

26

demonstrate any employee violated Plaintiffs’ constitutional

27

rights.

28

County of Sutter and County of Yuba must fail.

Gibson v. County of Washoe, 290 F.3d
As set forth in the preceding

Accordingly, Plaintiffs’ claims against Defendants

17

B.

1

Plaintiffs’ Fourth Cause of Action for Loss of
Parent/child Relationship.

2
3

Plaintiffs’ fourth cause of action asserts that all

4

Defendants violated the First and Fourteenth Amendments by

5

depriving Plaintiffs of their liberty interest in the parent-

6

child relationship.

7

familial relations between family members.

8

Illinois, 405 U.S. 645, 651 (1972) (“The integrity of the family

9

unit has found protection in the Due Process Clause of the

The due process claim protects the right to
See, e.g., Stanley v.

10

Fourteenth Amendment....”) (citing Meyer v. Nebraksa, 262 U.S.

11

390, 399 (1923)).

12

the conscience” is cognizable as a due process violation.

13

of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (citing

14

Rochin v. Cal., 342 U.S. 165, 172-73 (1952)).

15

question in such cases is “whether the behavior of the

16

governmental officer is so egregious, so outrageous, that it may

17

fairly be said to shock the contemporary conscience.”

18

523 U.S. at 847 n. 8.

19

to rise to the “conscience-shocking level” is “conduct intended

20

to injure in some way unjustifiable by any government interest.”

21

Id. at 849.

22

deliberately indifferent, may nevertheless rise to the

23

conscience-shocking level in some circumstances.

24

///

25

///

26

///

27

///

28

///

However, only official conduct that “shocks
County

The threshold

Lewis,

The type of conduct which is most likely

Conduct which was not intentional, but rather was

18

Id. at 849–50.

1

Plaintiffs’ instant claim is predicated on the allegations

2

set forth in Plaintiffs’ first, second, and third causes of

3

action.

4

“aforementioned acts and/or omissions of Defendants in being

5

deliberatively indifferent to [Decedent],” through their direct

6

actions or failure to take measures to prevent Decedent’s

7

suicide, amount to a violation of the Plaintiffs’ rights under

8

the substantive due process clauses of the first and fourteenth

9

amendments.

More specifically, Plaintiffs allege that the

For the same reasons already discussed in the

10

preceding section, Plaintiffs’ general allegations that

11

Defendants were deliberately indifferent to Decedent’s serious

12

medical needs are likewise insufficient to demonstrate that any

13

Defendant’s conduct “shocks the conscience.”

14

did not plead facts demonstrating any Defendant’s conduct meets

15

the requisite standard to establish a substantive due process

16

violation.

17

dismissed with leave to amend.

Indeed, Plaintiffs

Accordingly, Plaintiffs’ fourth claim for relief is

18
19
20

C.

Plaintiffs’ Fifth Cause of Action for Violation of
Title Ii of the Americans with Disabilities Act and
Section 504 of the Rehabilitation Act.

21
22

In their fifth cause of action, Plaintiffs allege that

23

Defendants County of Sutter and County of Yuba discriminated

24

against Decedent in violation of the Americans with Disabilities

25

Act (“ADA”), 42 U.S.C. §§ 12131, et seq., and the Rehabilitation

26

Act, 29 U.S.C. §§ 701, et seq., because “he was not placed in a

27

setting, or provided appropriate services, to reasonably

28

accommodate his disability and treatment needs.”
19

1

Defendants argue that Plaintiffs’ claims under the ADA and

2

Section 504 of the Rehabilitation Act must be dismissed because

3

Plaintiffs fail to present facts identifying how Decedent was

4

denied treatment, or which particular programs Decedent was

5

denied access to, because of his disability.

6

Opposition, Plaintiffs argue that their claims are based on

7

Defendants’ total withholding of treatment for Decedent and aver

8

that Decedent “had no way to access services available to

9

non-disabled inmates.”

10

In their

Both the ADA and Rehabilitation Act prohibit disability

11

discrimination.

Specifically, Title II of the ADA provides that

12

“no qualified individual with a disability shall, by reason of

13

such disability, be excluded from participation in or be denied

14

the benefits of the services, programs, or activities of a public

15

entity, or be subject to discrimination by such entity.”

16

42 U.S.C. § 12132.

17

part as “any State or local government” or “any department,

18

agency, special purpose district, or other instrumentality of a

19

State or States or local government,” 42 U.S.C.

20

§ 12131(1)(A)-(B), and the Supreme Court has found that “[s]tate

21

prisons fall squarely within the [statute’s] definition of public

22

entity.”

23

206, 210 (1952) (internal quotations and citations omitted).

24

///

25

///

26

///

27

///

28

///

The ADA defines “public entity” in relevant

Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S.

20

1

Section 504 of the Rehabilitation Act states that “[n]o otherwise

2

qualified handicapped individual in the United States...shall,

3

solely by reason of his handicap, be excluded from the

4

participation in, be denied the benefits of, or be subjected to

5

discrimination under any program or activity receiving Federal

6

financial assistance.”

7

Rehabilitation Act have been found to apply to services,

8

programs, and activities for detainees.

9

County of Orange, 526 F.3d 1190, 1214-1215 (9th Cir. 2008).

10

29 U.S.C. § 794.

Both the ADA and the

See, e.g., Pierce v.

Although Plaintiffs allege Decedent did not receive adequate

11

medical treatment, there are no facts in the FAC demonstrating

12

that Defendants did not provide treatment to Decedent because he

13

was disabled.

14

(E.D. Cal. Feb. 24, 2009) (finding plaintiff’s allegations that

15

he did not receive proper medical treatment did not state a claim

16

under the ADA or Rehabilitation Act).

17

Plaintiffs have not pled that Decedent was treated differently

18

than other inmates who did not suffer from a disability.

19

Peacock v. Terhune, 2002 WL 459928 at *2 (E.D. Cal. Jan. 23,

20

2002) (finding a plaintiff stated a claim under the ADA because

21

he alleged he was treated differently, as a paraplegic, than

22

other inmates who did not suffer from the same, or a similar,

23

disability).

24

Decedent did not have access to services that were made available

25

to non-disabled inmates, Plaintiffs do not cite to any part of

26

their FAC to substantiate their position.

27

///

28

///

See Alexander v. Tilton, 2009 WL 464486 at *7

Put differently,

Compare

Although Plaintiffs argue in their opposition that

21

1

Plaintiffs do cite a case from the Northern District to

2

support their argument that “‘outright denial of medical

3

services’...may be ‘so unreasonable as to demonstrate that

4

[defendants] were discriminating against [plaintiff] because of

5

his disability.’” Anderson v. County of Siskiyou, 2010 WL 3619821

6

at *5 (N.D. Cal. Sept. 13, 2010) (quoting Kiman v. New Hampshire

7

Dep’t of Corr., 451 F.3d 274, 285 (1st Cir. 2006)).

8

that case has not been cited by any court for that proposition,

9

and other courts within this circuit have, to the contrary,

10

required plaintiffs to plead facts demonstrating they were

11

treated differently because of their disabilities.

12

2002 WL 4599928 at *2; Alexander, 2009 WL 464486 at *7.

13

importantly, the Ninth Circuit has made clear that “[t]he ADA

14

prohibits discrimination because of disability, not inadequate

15

treatment for disability.”

16

609 F.3d 1011, 1022 (9th Cir. 2010).

17

declines to follow Anderson and finds that Plaintiffs have failed

18

to plead facts sufficient to allege that the Defendants

19

discriminated against Decedent because of his disability.

20

Defendants’ Motion to Dismiss Plaintiffs’ fifth cause of action

21

is GRANTED with leave to amend.

However,

See Peacock,
More

Simmons v. Navajo County, Ariz.,
Accordingly, this Court

22
23

D.

Plaintiffs’ Sixth Cause of Action for Violation of
California’s Unruh Civil Rights Act.

24
25

Plaintiffs allege that Defendants County of Sutter and

26

County of Yuba violated California Civil Code §§ 51 and 52

27

(“Unruh Act”) by failing to reasonably accommodate Decedent’s

28

disability and treatment needs.
22

1

Defendants argue Plaintiffs’ claim must be dismissed because

2

SYMHS and Sutter County Jail are not “business establishments”

3

subject to the Unruh Act.

4

The Unruh Act provides that “[a]ll persons within the

5

jurisdiction of this state are free and equal, and...are entitled

6

to the full and equal accommodations, advantages, facilities,

7

privileges, or services in all business establishments of every

8

kind whatsoever.”

9

California Supreme Court has found that the Legislature intended

10

the term “business establishment” be interpreted “in the broadest

11

sense reasonably possible,”

12

Cruz, Inc., 40 Cal. 3d 72, 78 (1985), the Unruh Act has yet to be

13

applied to claims against correctional facilities, see Lee v.

14

Wilkinson, 2009 WL 2824758 at *7 (E.D. Cal. 2009).

15

several district courts have explicitly found that prisons are

16

not business establishments under the Unruh Act.

17

Cal. Dep’t of Corr., 946 F. Supp. 829, 834 (S.D. Cal. 1996);

18

Wilkins-Jones v. County of Alameda, 2010 WL 4780291 at *9 (N.D.

19

Cal. 2010) (finding defendant County of Alameda was not liable

20

under Unruh Act).

21

holds that Sutter County Jail is not a business establishment

22

under the Unruh Act.7

23

Unruh Act arising out of Decedent’s treatment at Sutter County

24

Jail fails.

Cal. Civ. Code § 51(b).

Although the

Isbister v. Boys’ Club of Santa

Instead,

See Taormina v.

The Court finds this authority persuasive and

Accordingly, Plaintiffs claim under the

25
26
27
28

7

Plaintiffs’ analogy to public school districts is unpersuasive,
as it has been well established that public school districts are
business establishments subject to the Unruh Act. See, e.g.,
D.K. ex rel. G.M. v. Solano County Office of Educ., 2008 WL
5114965 at *6 (E.D. Cal. Dec. 2, 2008).
23

1

Notably, Plaintiffs do not distinguish between SYMHS and

2

Sutter County Jail in their FAC or Opposition.

Without deciding

3

whether SYHMS is subject to the Unruh Act at this point, the

4

Court finds it also appropriate to dismiss Plaintiffs’ claims

5

relating to Decedent’s treatment at SYMHS because Plaintiffs have

6

not alleged facts substantiating their conclusory allegation that

7

Decedent was discriminated against in violation of the Unruh Act

8

while at SYMHS.

9
E.

10

Plaintiffs’ Seventh Cause of Action for Professional
Negligence/medical Malpractice.

11
12

Plaintiffs allege Defendants County of Sutter, County of

13

Yuba, Zil, Barnett and Meer were negligent in their failure to

14

properly assess and treat Decedent’s serious mental illness.

15

First and foremost, the entity Defendants move to dismiss

16

this claim on the ground that they are immune from liability

17

because Plaintiffs failed to provide a statutory basis for the

18

cause of action.

19

“a public entity is not liable for an injury, whether such injury

20

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

21

employee or any other person, except as provided by statute.”

22

Cal. Gov. Code § 815(a).

23

Motion to Dismiss should be granted as to the County of Sutter

24

and County of Yuba in light of Section 815.

25

claim against Defendants County of Sutter and County of Yuba is

26

dismissed without leave to amend.

27

///

28

///

Under California Government Code section 815,

Plaintiffs concede that Defendants’

24

Accordingly, this

1

Turning to the individually named Defendants, Plaintiffs

2

generally allege that Defendants Zil, Barnett and Meer were

3

negligent in their failure to appropriately assess and evaluate

4

Decedent, to prescribe necessary psychiatric medication, to

5

ensure compliance with that medication and to ensure proper

6

treatment.

7

negligent in discharging Decedent from SYMHS to Sutter County

8

Jail in early April 2010.

9

Plaintiffs further allege that Defendant Barnett was

These Defendants argue that they are immune from liability

10

under California Government Code sections 855.6 and 855.8.

11

Section 855.6 shields a public employee from liability “for

12

injury caused by the failure to make a[n] examination, or to make

13

an adequate [] examination,...for the purpose of determining

14

whether [a] person has a...mental condition that would constitute

15

a hazard to the health and safety of himself or others.”

16

Similarly, Section 855.8 provides that a public employee is not

17

liable “for injury resulting from diagnosing or failing to

18

diagnose that a person is afflicted with mental illness [] or

19

from failing to prescribe for mental illness....”

20

§ 855.8(a).

21

allegations regarding their alleged failure to properly assess

22

and evaluate Decedent, as well as their alleged failure to

23

prescribe appropriate medications, fall squarely within sections

24

855.6 and 855.8, and therefore, they are immune from liability on

25

that basis.

26

///

27

///

28

///

Cal. Gov. Code

Defendants correctly argue that Plaintiffs’

25

1

Plaintiffs nonetheless argue that the immunity granted under

2

section 855.6 does not apply in “situation[s] where the defendant

3

fails to provide medical care for a prisoner in obvious need of

4

such care,” as set forth in Lum v. City of San Joaquin,

5

756 F. Supp. 2d 1243 (E.D. Cal. 2010).

6

not cite to any facts pled in their FAC demonstrating that it was

7

“obvious” to Defendants Zil, Barnett and Meer that Decedent

8

needed any care that they failed to provide.

9

Defendants’ Motion to Dismiss is granted with respect to

However, Plaintiffs do

Accordingly,

10

Plaintiffs’ negligence claims arising out of Defendants’ alleged

11

failure to properly evaluate Decedent or prescribe medication for

12

any mental condition.

13

Plaintiffs’ allegations regarding Defendants’ alleged

14

failure to ensure Decedent complied with his prescriptions and

15

received appropriate treatment arguably fall within an exception

16

to immunity codified in Section 855.8(d).

17

§ 855.8(d) (employee not shielded from liability for an injury

18

“caused by his negligent or wrongful act or omission in

19

administering any treatment prescribed for mental illness....”).

20

Defendants, however, correctly point out that Plaintiffs’ FAC

21

does not contain facts relating to each individually named

22

Defendant’s failure to ensure compliance with prescriptions or

23

proper treatment.

24

Zil and other Defendants provided “grossly inadequate treatment”

25

and that Defendant Meer failed to keep an appointment with

26

Decedent.

27

Defendant failed to properly administer any prescribed treatment,

28

consequently causing Decedent’s death.

See Cal. Gov. Code

Indeed, Plaintiffs only allege that Defendant

These allegations alone do not demonstrate that any

26

1

Accordingly, Defendants’ Motion to Dismiss Plaintiffs’ seventh

2

claim for relief is granted as to this theory as well.

3

Finally, although Plaintiffs allege Defendant Barnett

4

negligently discharged Decedent on April 2, 2010, there are no

5

facts in the FAC to support this allegation.

6

(alleging, generally, that Defendants should not have discharged

7

Decedent).

8

Barnett, but they do not plead any facts relating to a decision

9

made by Defendant Barnett regarding Decedent’s transfer from

See FAC at ¶¶ 79-85

Plaintiffs allege that Decedent was seen by Defendant

10

SYHMS to Sutter County Jail.

Id.

Accordingly, without factual

11

support, Plaintiffs’ claim that Defendant Barnett negligently

12

discharged Decedent must be disregarded, see Twombly, 550 U.S. at

13

555, and Defendants’ Motion to Dismiss Plaintiffs’ seventh claim

14

for relief relating to Defendant Barnett’s allegedly negligent

15

discharge of Decedent is granted.

16

action is thus dismissed with leave to amend.

Plaintiffs’ seventh cause of

17
F.

18

Plaintiffs’ Eight Cause of Action for Negligence/
Negligence Per Se.

19
20

Plaintiffs allege that all individually named Defendants had

21

a duty to operate and manage SYMHS and Sutter County Jail, as

22

defined by various laws, standards and regulations, and

23

Defendants’ breach of those duties caused Decedent’s injuries.

24

Defendants correctly argue that Plaintiffs have failed to

25

identify any specific statute, ordinance or regulation in support

26

of their claim, and for this reason, Plaintiffs’ claim for

27

negligence per se is dismissed with leave to amend.

28

///
27

1

See Twombly, 550 U.S. at 555; Cal. Evid. Code § 669 (1967);

2

accord Lorbeer v. American Tel. & Tel. Co., 958 F.2d 377 (9th

3

Cir. 1992) (finding a plaintiff’s negligence per se claim failed

4

“because he [did] not idenif[y] a specific, relevant statutory

5

violation...”).

6
7

G.

Plaintiffs’ Ninth Cause of Action for Negligent
Supervision, Training, Hiring and Retention.

8
9

Plaintiffs allege Defendants Parker, Sherry, Bhattal and

10

Luz were negligent in hiring, supervising, training and retaining

11

employees and thus caused Decedent’s injuries.

12

correctly argue that Plaintiffs’ claim must be dismissed because

13

Plaintiffs have failed to provide a statutory basis for their

14

cause of action.

15

Defendants

Plaintiffs’ ninth claim is really a claim against the

16

entities and not the employees.

See, e.g., Sanders v. City of

17

Fresno, 2006 WL 1883394, *11 (“‘Failure to train...is a “direct”

18

act on the part of the entity, not on the part of the

19

employee.’”) (quoting Reinhardt v. Santa Clara County, 2006 WL

20

662741 (N.D. Cal. Mar. 15, 2006)); see also Megargee ex rel.

21

Lopez v. Wittman, 2006 WL 2988945, *10 n.2 (E.D. Cal.).

22

to California Government Code § 815, however, public entities

23

cannot be held directly liable in tort except as specifically

24

provided by statute.

25

(1995).

26

statutory basis for the entities’ liability in this case.

27

e.g., Megargee, 2006 WL 2988945 at *10.

28

ninth cause of action must be dismissed.

Pursuant

Caldwell v. Montoya, 10 Cal. 4th 972, 980

Neither the parties nor the Court has identified a

28

See,

Accordingly, Plaintiffs’

H.

1

Plaintiffs’ Tenth Cause of Action for Failure to
Furnish/Summon Medical Care.

2
3

Plaintiffs allege that Defendants Parker, Sherry, Bhattal,

4

Luz, Zil, Barnett and Meer knew, or had reason to know, that

5

Decedent was in need of immediate medical and mental health care,

6

yet they failed to take action to summon or provide care.

7

Plaintiffs further allege that Defendants failed to timely

8

respond to Decedent’s “psychotic episode” on April 29 when “he

9

engaged in numerous acts of self-harm before hanging himself....”

10

Defendants argue that because Plaintiffs’ FAC does not contain

11

any facts relating to each individual Defendants’ actual or

12

constructive knowledge of an immediate need for care for a

13

serious or obvious medical condition, however, Plaintiffs’ tenth

14

cause of action must be dismissed.

15

A claim for failure to furnish medical care is based on a

16

violation of California Government Code § 845.6, which states in

17

pertinent part:

18

22

Neither a public entity nor a public employee is liable
for injury proximately caused by the failure of the
employee to furnish or obtain medical care for a
prisoner in his custody; but... a public employee, and
the public entity where the employee is acting within
the scope of his employment, is liable if the employee
knows or has reason to know that the prisoner is in
need of immediate medical care and he fails to take
reasonable action to summon such medical care...”

23

In their FAC, Plaintiffs only refer to one Defendant

19
20
21

24

specifically that had contact with Decedent at Sutter County Jail

25

between April 2 and April 29, 2010: Defendant Zil.

26

Plaintiffs allege that on April 8, Zil had an in-person

27

psychiatric meeting with Decedent.

28

///
29

Specifically,

1

There are no further allegations, however, regarding Zil’s

2

knowledge of Decedent’s immediate need for medical care and his

3

subsequent failure to summon care.

4

Defendants generally knew, or should have known, about Decedent’s

5

need for further psychiatric treatment, the facts presented by

6

Plaintiffs in their FAC are not sufficient to demonstrate that

7

each named Defendant had actual or constructive knowledge of

8

Decedent’s immediate need for care.

9

439 F.3d 1091 (finding disputed issues of fact precluded summary

10

judgment on the inmate-plaintiff’s failure to summon medical care

11

claim because a doctor ordered follow-up visits for plaintiff

12

following a fracture to his thumb and plaintiff filed repeated

13

requests to be seen by a health care provider, which were ignored

14

by defendants); see also Twombly, 550 U.S. at 555.

15

Plaintiffs’ claim for failure to summon medical care is dismissed

16

with leave to amend.

Although Plaintiffs pled that

Compare, e.g., Jett,

Accordingly,

17
18

I.

Plaintiffs’ Eleventh Cause of Action for Wrongful
Death.

19
20

Plaintiffs allege that Decedent’s injuries in this case are

21

a result of the negligence of all Defendants, and therefore,

22

Defendants are liable under California Code of Civil Procedure

23

377.60 for the funeral and burial expenses incurred by

24

Plaintiffs.

25

Plaintiffs’ negligence claim as to Defendants Zil, Barnett, and

26

Meer.

27

facts sufficient to state a claim against the remaining

28

Defendants for negligence.

Defendants argue that this claim is duplicative of

Defendants further argue that Plaintiffs fail to allege

30

1

Plaintiffs correctly argue that a claim for wrongful death

2

is a separate cause of action.

See Ruiz v. Podolsky, 50 Cal. 4th

3

838, 844 (Cal. 2010).

4

where wrongful death actions are derivative, [section] 377.60

5

creates a new cause of action in favor of the heirs as

6

beneficiaries, based upon their own independent pecuniary injury

7

suffered by loss of a relative, and distinct from any the

8

deceased might have maintained had he survived.’” Id. (quoting

9

Horwich v. Superior Court, 21 Cal. 4th 272, 283 (Cal. 1999).

10

However, Plaintiffs have failed to allege facts sufficient to

11

demonstrate that Defendants’ negligence caused Decedent’s death.

12

See supra at 5-8.

13

Plaintiffs’ eleventh cause of action is granted with leave to

14

amend.

Indeed, “‘[u]nlike some jurisdictions

Accordingly, Defendants’ Motion to Dismiss

15
CONCLUSION

16
17
18

For the reasons set forth above, Defendants’ Motion to

19

Dismiss (ECF No. 11) is GRANTED without leave to amend as to

20

Plaintiffs’ seventh cause of action against Defendants County of

21

Sutter and County of Yuba, and GRANTED with leave to amend as to

22

all of Plaintiffs’ remaining claims.8

23

days following the date this Memorandum and Order is

24

electronically filed, Plaintiff may (but is not required to) file

25

a Second Amended Complaint.

Not later than thirty (30)

26
27
28

8

Given that this Court has dismissed Plaintiffs’ entire FAC,
Defendants’ additional request to strike Plaintiffs’ prayer for
punitive damages is DENIED as moot.
31

1

If no amended complaint is filed within said thirty-day

2

period, without further notice to the parties, those causes of

3

action dismissed by virtue of this Order will be deemed dismissed

4

with prejudice.

5
6

IT IS SO ORDERED.
Dated: February 7, 2012

7
8
9

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

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
32