Fetter v. Bonner, et al.,

Filing 48

ORDER signed by Judge Garland E. Burrell, Jr on 8/13/14 GRANTING in part and DENYING in part 41 Motion to Dismiss. Plaintiff is granted 10 days to file an amended complaint. The motion for a more definite statement is DENIED. (Manzer, C)

1
2
3
4

UNITED STATES DISTRICT COURT

5

EASTERN DISTRICT OF CALIFORNIA

6
7

GEORGE FETTER,

8

Plaintiff,

9
10
11
12
13
14

No. 2:12-cv-02235-GEB-EFB

v.

ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS; DENYING MOTION TO
STRIKE

PLACER COUNTY SHERIFF, EDWARD
N. BONNER, individually and
in his official capacity,
COUNTY OF PLACER, CALIFORNIA
FORENSICS MEDICAL GROUP
(CFMG), PLACER COUNTY SHERIFF
DEPARTMENT, and DOES 1
THROUGH 20,
Defendants.

15
16

Defendants

17

Placer

County

Sheriff

Edward

N.

Bonner,

18

County of Placer (“Placer County”), and Placer County Sheriff’s

19

Office (“PCSO”)1 (collectively, “Defendants”) jointly move under

20

Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for dismissal

21

of Plaintiff’s Second Amended Complaint (“SAC”), which comprises

22

claims alleged under 42 U.S.C. §§ 1983, 1985(3), Title II of the

23

Americans

24

Rehabilitation Act (“RA”), and California law. Defendants move in

25

the alternative under Rule 12(e) for a more definite statement of

26

certain

27
28

of

with

Disabilities

Plaintiff’s

Act

claims.

1

(“ADA”),

Plaintiff

§

filed

504

an

of

the

opposition

Since the PCSO argues in the dismissal motion that Plaintiff erroneously
sued it as the “Placer County Sheriff Department,” this Order refers to this
Defendant as the PCSO.

1

1

addressing portions of the motions.

2

I. FACTUAL ALLEGATIONS

3

The motions concern the following allegations in the

4

SAC. “[P]laintiff . . . was cited for Driving while Under the

5

Influence and was jailed for that offense.” (SAC ¶ 12, ECF No.

6

39.) Prior to being jailed, “Plaintiff had fallen off a roof and

7

injured both of his legs and ankles” and “was under the care of a

8

doctor for the injuries that he had received.” (Id. ¶¶ 11–12.)

9

After

his

arrest,

Plaintiff

was

“initially

booked

in

at

the

10

medical facility because of his injuries.” (Id. ¶ 32.) There, “it

11

was documented that the Plaintiff had calcaneous (Heel) injuries

12

to

13

injuries to both feet and could barely walk and could not walk

14

without pain [Plaintiff] was not provided a wheel chair.” (Id.)

15

“Instead of a wheel chair . . . Plaintiff was provided a chair in

16

which he would have to use his injured feet to make it mobile and

17

had to scoot around causing much pain to both of his injured

18

feet.” (Id.) Plaintiff was also “placed on the [jail’s] upper

19

tier for housing, forcing him to have to climb a full flight of

20

stairs to get to his cell . . . .” (Id.) “While incarcerated

21

Plaintiff[’s] leg began to turn black as he was suffering from

22

compartment

23

several request of the Defendant to allow him to see a doctor and

24

even informed them [sic] that his leg was turning black, the

25

Defendant still refused to allow the plaintiff the opportunity to

26

see a medical doctor.” (Id. ¶ 88.)

27
28

both

his

right

and

syndrome.”

“Plaintiff

left

(Id.

was

feet.”

¶

15.)

(Id.)

“[A]lthough

“Although

ultimately

he

Plaintiff

released

from

had

made

his

incarceration . . . [.] [He] immediately went to see a doctor and
2

1

was informed that the condition of his leg was so severe . . .

2

that it would have to be amputated.” (Id. ¶ 17.) After seeking a

3

second opinion confirming that diagnosis, “Plaintiff’s right leg

4

was . . . amputated.” (Id. ¶¶ 18–19.)

5

II. LEGAL STANDARD

6

Decision on a Rule 12(b)(6) dismissal motion requires

7

determination of “whether the complaint’s factual allegations,

8

together with all reasonable inferences, state a plausible claim

9

for relief.” United States ex rel. Cafasso v. Gen. Dynamics C4

10

Sys., Inc., 637 F.3d 1047, 1054 (9th Cir.2011) (citing Ashcroft

11

v. Iqbal, 556 U.S. 662, 678–79 (2009)). “A claim has facial

12

plausibility

13

allows

14

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

15

at

16

(2007)).

the

678

when
court

(citing

the
to

Bell

plaintiff
draw

the

Atlantic

pleads

factual

reasonable

v.

Twombly,

content

inference

550

that

U.S.

544,

that
the

556

17

When determining the sufficiency of a claim under Rule

18

12(b)(6), “[w]e accept factual allegations in the complaint as

19

true and construe the pleadings in the light most favorable to

20

the non-moving party.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th

21

Cir.2011) (internal quotation marks omitted). However, this tenet

22

does not apply to “legal conclusions . . . cast in the form of

23

factual

24

“Therefore,

25

inferences are insufficient to defeat a motion to dismiss.” Id.

26

(internal quotation marks omitted); see also Iqbal, 556 U.S. at

27

678 (quoting Twombly, 550 U.S. at 555) (“A pleading that offers

28

‘labels

allegations.”

and

conclusory

Id.

(internal

allegations

conclusions’

or

‘a
3

quotation
of

law

formulaic

marks
and

omitted).

unwarranted

recitation

of

the

1

elements of a cause of action will not do.’”)

2

III. DISCUSSION

3

a. § 1983 Claims Against Placer County, the PCSO, and

4

Sheriff Bonner in his Official Capacity

5

Defendants

seek

dismissal

of

Plaintiff’s

official

6

capacity § 1983 claim against Sheriff Bonner and Plaintiff’s §

7

1983 claim against Placer County and the PCSO, arguing in essence

8

that certain of Plaintiff’s allegations fail to plausibly allege

9

that any injury Plaintiff suffered was caused by a movant.

10

To state a § 1983 claim against a local government

11

entity,

12

[entity] had a deliberate policy, custom, or practice that was

13

the

14

plaintiff] suffered.’” AE ex rel. Hernandez v. Cnty. of Tulare,

15

666 F.3d 631, 636 (9th Cir. 2012) (quoting Whitaker v. Garcetti,

16

486 F.3d 572, 581 (9th Cir. 2007)). This same requirement also

17

applies

18

officers since such suits are “equivalent to a suit against the

19

entity.”

20

Sheriff Dep't, 533 F.3d 780, 799 (9th Cir. 2008).

21

Plaintiff alleges in the SAC:

22

I[t] was and still is the policy and practice
of the Defendants to not transport . . .
inmates to an outside medical facility
without an order from the Court.

23
24
25
26
27
28

a

plaintiff

moving

to

force

official

must

behind

allege

the

capacity

§

“that

‘the

local

constitutional

1983

suits

government

violation

against

[a

municipal

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

It was and still is the policy of the
Defendants to only permit inmates to see
medical person[n][e]l that [are] employed by
the Placer County Jail while they [are] in
Custody of the Defendant.
(SAC ¶¶ 25-26.)
4

1

These

allegations

do

not

adequately

allege

that

2

Plaintiff was denied medical care because of these policies or

3

practices, and therefore Plaintiff has not sufficiently alleged

4

facts

5

moving force behind the [alleged] constitutional violation [he]

6

suffered.”

7

631, 636 (9th Cir. 2012) (quoting Whitaker v. Garcetti, 486 F.3d

8

572, 581 (9th Cir. 2007)).

showing

that

a

referenced

policy

or

practice

“was

the

AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d

9

Defendants also argue that Plaintiff’s allegations that

10

Defendants failed to adequately hire, train, and supervise jail

11

personnel do not plausibly state a § 1983 official capacity claim

12

against Sheriff Bonner and a § 1983 claim against Placer County

13

and the PCSO.

14

Alleged failure by a municipality to hire, train, and

15

supervise personnel “may serve as the basis for § 1983 liability

16

only where the failure . . . amounts to deliberate indifference

17

to the rights of persons with whom [municipal employees] come

18

into contact.” Flores v. Cnty. of Los Angeles, --- F.3d. ----,

19

12-56623,

20

2014)(quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989);

21

see also Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir.

22

2011) (“a failure to supervise that is ‘sufficiently inadequate’

23

may amount to ‘deliberate indifference.’”). To state a plausible

24

claim under this standard, “[a plaintiff] must allege facts . . .

25

show[ing]

26

obvious consequence that a particular omission in [its] training

27

program would cause [municipal] employees to violate citizens’

28

constitutional rights.’” Flores, --- F.3d. ----, 2014 WL 3397219,

2014

that

WL

the

3397219,

at

[municipality]

5

*

2

(9th

‘disregarded

Cir.

the

July

known

14,

or

1

at * 2 (emphasis added)(quoting Connick v. Thompson, ––– U.S. –––

2

–, 131 S.Ct. 1350, 1360 (2011)).

3

Plaintiff alleges in a conclusory manner that Placer

4

County,

5

hire,

6

failures resulted in Plaintiff’s injuries. (See SAC ¶¶ 24, 27-28,

7

31-33, 34.) These conclusory allegations “do[] not identify what

8

[Defendants’]

9

were, how the [these] practices were deficient, or how the[y]

10

caused Plaintiff’s harm.” Ramirez v. Cnty. of Alameda, C12-4852

11

MEJ, 2013 WL 257087, at *3 (N.D. Cal. Jan. 23, 2013) (See SAC ¶¶

12

24, 27-29, 31-33, 34). Therefore, this portion of the dismissal

13

motion is granted.

14

the

PCSO,

train,

and

and

Sheriff

supervise

training

[,

Bonner

jail

failed

personnel,

supervision,]

and

to

appropriately

and

that

hiring

these

practices

b. Individual Capacity § 1983 Claims against Sheriff Bonner

15

Sheriff Bonner also seeks dismissal of Plaintiff’s §

16

1983 claim that sues him in his individual capacity, arguing:

17

“One . . . cannot ascertain from the complaint what Sheriff

18

Bonner

19

complained of by plaintiff . . . .” (Defs.’ Mot. 13:14–15.)

20

personally

did,

or

did

not

do,

to

cause

the

harm

To allege an “individual liability [claim] under . . .

21

§

22

defendant, through the official’s own individual actions, has

23

violated the Constitution’ . . . [or that] the defendant [had]

24

“knowledge of” and “acquiescence in” the unconstitutional conduct

25

of a subordinate. Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir.

26

2012) (quoting Iqbal, 129 S.Ct. at 1948 and Starr v. Baca, 652

27

F.3d 1202, 1206-07 (9th Cir. 2011)).

28

1983,

‘a

plaintiff

must

plead

Plaintiff alleges:
6

that

[a]

Government-official

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

. . . . Defendant Sheriff Bonner has condoned
an ongoing pattern of denial of Inmate
requests for medical assistance committed by
deputies assigned to the jails. COUNTY and
its officials, including Sheriff Bonner,
maintained or permitted [certain] official
policies, customs, or practices . . .
(SAC ¶ 24.) These “conclusory allegations and generalities [lack]
any allegation of the specific wrong-doing by [Sheriff Bonner],”
and do not plausibly allege that Sheriff Bonner had “‘knowledge
of’ and ‘acquiesce[d] in’ the unconstitutional conduct of his
subordinates.” Hydrick, 669 F.3d at 942. Therefore, this portion
of the dismissal motion is granted.
c. Conspiracy Claim
Defendants

also

seek

dismissal

of

Plaintiff’s

civil

rights conspiracy claim, arguing, “[P]laintiff’s allegations of
conspiracy . . . are mere conclusions with no factual allegations
to support them.” (Defs.’ Mot. 14:24-26.)
Plaintiff alleges the following concerning conspiracy:
Defendant
and
each
of
them,
acted
individually and in conspiracy with each
other to deprive Plaintiff of his federal
constitutional and/or statutory rights and or
privileges by failing and refusing to provide
Plaintiff with access to medical care and the
accommodations guaranteed him by Federal and
State law.
Defendants were acting under the color of
state law when Defendants deprived Plaintiff
of his federal rights, property interests and
otherwise discriminated against
Plaintiff
based upon Plaintiff’s disability.
Defendants,
and
each
of
them,
acted
individually and in conspiracy with each
other to deprive Plaintiff under color of
state law of his rights . . . .
(SAC ¶¶ 37-39.)

28
7

1

These “conclusory allegations . . . [of] conspir[acy]”

2

are

3

claim. Woodrum v. Woodward Cnty., 866 F.2d 1121, 1126 (9th Cir.

4

1989).

5

granted.

6

devoid

of

sufficient

Therefore,

this

facts

alleging

portion

of

the

a

viable

dismissal

conspiracy

motion

is

d. ADA and RA Claims

7

i. ADA and RA Claims against Sheriff Bonner

8

Sheriff

Bonner

seeks

dismissal

of

Plaintiff’s

9

individual capacity claims alleged under Title II of the ADA and

10

§ 504 of the RA, arguing the claims are not cognizable under

11

these statutes. These statutes do not authorize these claims to

12

be alleged against Sheriff Bonner in his individual capacity. See

13

Stewart v. Unknown Parties, 483 F. App'x 374 (9th Cir. 2012)

14

(“Dismissal

15

(“ADA”) claim was proper because defendants, as individuals, were

16

not liable under Title II of the ADA”); Garcia v. S.U.N.Y. Health

17

Sciences

18

(“[N]either Title II of the ADA nor § 504 of the Rehabilitation

19

Act

20

officials”); see also Emerson v. Thiel Coll., 296 F.3d 184, 189

21

(3d Cir. 2002)(holding that individual defendants are not liable

22

under section 504 of the RA and noting that “other courts of

23

appeals [have held] that individuals are not liable under Title[]

24

. . . II of the ADA.” (citing Garcia, 280 F.3d at 107 and Walker

25

v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000))). Therefore this

26

portion of the motion is granted.

of

Ctr.

provides

[Plaintiff’s]

of

for

Brooklyn,

Americans

280

individual

F.3d

with

98,

capacity

Disabilities

107

suits

(2d

Cir.

against

Act

2001)

state

27

Sheriff Bonner further seeks dismissal of Plaintiff’s

28

official capacity claims against him alleged under Title II of
8

1

the

2

conclusory

3

alleged against Placer County, and therefore should be dismissed.

4

Although

5

official capacit[y] is really an action against the [county],

6

[Sherriff Bonner] cite[s] to no authority requiring dismissal.”

7

James v. Perez, 2:08-CV-01857-RRC, 2012 WL 5387676, at *4 (E.D.

8

Cal. Nov. 1, 2012)(citations omitted). Therefore, this portion of

9

the motion is denied.

ADA

and

§

504

manner

“an

of

that

action

the

RA.

these

against

Specifically,

claims

[a]

are

he

argues

duplicative

[county]

of

official[]

in

in

a

those

[his]

10

ii. ADA and RA Claims against Placer County, the PCSO,

11

and Official Capacity Claims against Sheriff

12

Bonner

13

Defendants seek dismissal of Plaintiff’s Title II ADA

14

and

§

504

RA

15

allegations in these claims concern alleged medical malpractice

16

and

17

proscribed in these statutes.

therefore

18

Both

claims,

do

arguing

not

Title

in

constitute

II

of

the

essence

that

disability

ADA

and

§

Plaintiff’s

discrimination

504

of

the

RA

19

“prohibit[] discrimination because of disability, not [because

20

of]

21

Cnty., 609 F.3d 1011, 1022 (9th Cir. 2010); see O'Guinn v. Nevada

22

Dep't

23

(“[Plaintiff] challenges the adequacy of his . . . health care, a

24

challenge that cannot be properly brought under the ADA and RA.”)

25

Plaintiff alleges in these claims that he “has been denied and

26

excluded from the benefits of Defendants[’] Program, which would

27

provide Plaintiff with access to medical care . . . .” (SAC ¶ 62;

28

see also id. ¶¶ 16, 67.) These allegations of inadequate medical

inadequate

of

treatment

Corr.,

468

F.

for

disability.”

App'x

9

651,

653

Simmons

(9th

v.

Cir.

Navajo

2012)

1

treatment are insufficient to allege viable Title II ADA and §

2

504 RA claims. Simmons, 609 F.3d at 1022. Therefore this portion

3

of Defendants’ motion is granted.

4

Defendants

also

argue

in

a

conclusory

manner

that

5

Plaintiff has failed to allege two elements of Title II ADA and §

6

504 RA claims: “[1] that he was denied access to [a program],

7

[and] [2] that he was denied access to such programs because of a

8

disability.” (Defs.’ Mot. 20:6-8.)

9
10

To state a Title II ADA claim, a plaintiff must allege,
inter alia:

11

15

(1) he is an individual with a disability; .
. . [2] he was either excluded from
participation in or denied the benefits of
the public entity’s services, programs, or
activities, or was otherwise discriminated
against by the public entity; and [3] such
exclusion,
denial
of
benefits,
or
discrimination
was
by
reason
of
[his]
disability.

16

Simmons, 609 F.3d at 1021 (quoting McGary v. City of Portland,

17

386 F.3d 1259, 1265 (9th Cir. 2004) (alteration in original)).

18

“Similarly, to state a [§ 504 RA] claim[,] a plaintiff must

19

allege [inter alia] ‘(1) he is an individual with a disability;

20

(2)

21

program]; (3) he was denied the benefits of the program solely by

22

reason

23

Correctional Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007) (quoting

24

Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001)).

12
13
14

he

is

of

otherwise

his

qualified

disability

.

to

.

receive

.

.’”

the

benefit

O’Guinn

v.

[of

a

Lovelock

25

Plaintiff alleges in the SAC that he was housed in a

26

cell located on the upper-tier of the jail, “despite the fact

27

that officers knew . . . that such housing would be detrimental

28

to the Plaintiff.” (Id. ¶ 32.) Defendants have not shown that
10

1

these allegations fail to state the challenged claims. Therefore,

2

this portion of Defendants’ motion is denied.

3

iii. Motion for a More Definite Statement

4

Defendants move in the alternative under Rule 12(e) for

5

a more definite statement of Plaintiff’s ADA and RA claims which

6

are based on his placement in an upper-tier cell. Defendants

7

argue that this ADA claim is vague. However, they fail to “point

8

out [in their motion] . . . the details desired [in this claim],”

9

which is a required showing to obtain relief under Rule 12(e).

10

Fed. R. Civ. P. 12(e). Therefore, this portion of the motion is

11

denied.

12

Defendants also seek a more definite statement of the

13

official capacity RA claim against Sheriff Bonner and the RA

14

claim against Placer County and the PCSO, arguing Plaintiff fails

15

to

16

addresses . . . and refers to both ‘defendant’s’ and ‘defendants’

17

as being responsible for . . . harms alleged in this claim.”

18

(Defs.’ Mot 7:27-8:2.) However, read as a whole, the allegations

19

in these claims indicate that these claims are against Placer

20

County, the PCSO, and Sheriff Bonner in his official capacity.

21

(See SAC ¶¶ 68-69.) Accordingly, this portion of the motion is

22

denied.

23

“identify

which

named

defendants

his

[RA]

claim

.

.

.

e. Section 11135 of the California Government Code

24

Each Defendant seeks dismissal of Plaintiff’s Section

25

11135 claim, in which Plaintiff alleges Defendants denied him

26

equal access to the benefits of a state-funded program by denying

27

him

28

Defendants argue Plaintiff has not adequately alleged that he was

a

wheelchair

and

by

housing

11

him

in

an

upper-tier

cell.

1

“denied

2

disability” or “denied any access to any part of the Placer

3

County Jail.” (Defs.’ Mot. 20:14-15, 21: 9-10.)

access

to

any

specific

program

due

to

his

4

Section 11135 states, in pertinent part:

5

alleged

No person in the State of California shall,
on the basis of . . . disability, be
unlawfully denied full and equal access to
the benefits of, or be unlawfully subjected
to discrimination under, any program or
activity that is conducted, operated, or
administered by the state or by any state
agency, is funded directly by the state, or
receives any financial assistance from the
state.

6
7
8
9
10
11

Cal. Gov't Code § 11135(a).

12

“California

Code

of

Regulations,

title

22,

section

13

98010 provides the definition of ‘program or activity’ as used in

14

section 11135.’” Comunidad En Accion v. Los Angeles City Council,

15

219 Cal. App. 4th 1116, 1125 (2013) (quoting Cal. Code Regs. tit.

16

22, § 98010). Section 98010 prescribes: “‘Program or activity’

17

means any project, action or procedure undertaken directly by

18

recipients of State support

19

include, but are not limited to,

20

health, welfare, rehabilitation, housing, or other services;

21

. .” (emphasis added).

. . . . Such programs or activities
. . . the provision of . . .
. .

22

Defendants have not shown that Plaintiff’s allegations

23

should be dismissed. Therefore, this portion of their motion is

24

denied.2

25

Defendants also seek dismissal of Plaintiff’s section

26

11135

27

2

28

claim

that

is

based

on

Defendant’s

alleged

refusal

to

Defendants move in the alternative under Rule 12(e) for a more definite
statement of these section 11135 allegations. However, Defendants fail to
provide sufficient argument supporting this request. Therefore, it is denied.

12

1

permit Plaintiff access to outside medical care. Defendants argue

2

Plaintiff fails to allege he was denied access to this care

3

because of his disability.

4

Plaintiff alleges in the SAC:

5

During
.
.
.
[P]laintiff’s
.
.
.
incarceration he was not allowed to see a
doctor or be transported to a hospital
although . . . Defendants knew about [his]
injuries and [he] made numerous requests that
he be allowed to see a doctor.

6
7
8
9

(SAC ¶ 14.) This allegation does not contain facts that support

10

drawing the reasonable inference that Plaintiff was denied access

11

to outside medical care because of his disability. See Cal. Gov't

12

Code § 11135(a) (“No person . . . shall, on the basis of . . .

13

disability, be unlawfully denied . . . .” (emphasis added)).

14

Therefore, this portion of the motion is granted.

15

f. California Disabled Persons Act Claim

16

Defendants seek dismissal of Plaintiff’s claim alleged

17

under the California Disabled Persons Act (“CDPA”), arguing in

18

its Notice of Motion that “Plaintiff . . . fails to allege any

19

kind of physical barrier that has prevented [him] from accessing

20

facilities available to others . . . .” (Defs.’ Notice of Mot.

21

3:12–16, ECF No. 41.) Plaintiff alleges that Defendants denied

22

him a wheelchair and housed him in an upper-tier cell. Since

23

Defendants have not addressed these allegations in this portion

24

of their motion, it is denied.3

25

g. Negligence, Negligent Infliction of Emotional Distress,

26
27
28

and Negligent Hiring and Supervision
3

Defendants move in the alternative under Rule 12(e) for a more definite
statement of Plaintiff’s CDPA claim, but fail to provide sufficient argument
supporting this request. Therefore, it is denied.

13

1

i. Individual Capacity Claims against Sheriff Bonner

2

Sherriff

Bonner

the

following

4

supervision,

5

Specifically,

6

Government Code shields him from being exposed to liability for

7

these torts.

negligent

Sheriff

Section

negligence,

of

individual

and

claims:

dismissal

3

8

capacity

seeks

infliction

Bonner

820.8

of

argues

the

negligent

of

hiring

emotional

section

Government

distress.

820.8

Code

and

of

the

prescribes:

9

“Except as otherwise provided by statute, a public employee is

10

not liable for an injury caused by the act or omission of another

11

person. Nothing in this section exonerates a public employee from

12

liability for injury proximately caused by his own negligent or

13

wrongful act or omission.” Cal. Gov't Code § 820.8.

14

Plaintiff alleges in the SAC: “Sheriff Bonner . . .

15

condoned an ongoing pattern of denial of Inmate requests for

16

medical assistance committed by deputies assigned to the jails”

17

and

18

customs, or practices” concerning the referenced denials. (SAC ¶

19

24.) These conclusory allegations are insufficient to support

20

drawing

21

Plaintiff’s alleged injury. Fayer, 649 at 1064 (“[C]onclusory

22

allegations of law and unwarranted inferences are insufficient to

23

defeat

24

Defendant’s dismissal motion is granted. See Herrera v. City of

25

Sacramento, 2:13-CV-00456 JAM-AC, 2013 WL 3992497, at *3 (E.D.

26

Cal.

27

claims against supervisor where Plaintiff “fail[ed] to allege

28

[supervisor] personally participated in the conduct giving rise

“maintained

a

a

Aug.

or

reasonable

motion

2,

to

permitted

[certain]

inference

that

dismiss.”).

2013)(dismissing

14

official

Sheriff

Therefore,

state

law

policies,

Bonner

this

caused

portion

individual

of

capacity

1
2

to the allegations in the complaint.”)
ii. Claims Against Placer County, the PCSO, and Sheriff

3
4

Bonner in his Official Capacity
Each

Defendant

negligent

seeks

6

infliction of emotional distress claims that are predicated on

7

Defendants’

8

medical care. The essence of Defendants’ dismissal argument is

9

that under section 845.6 of the California Government Code they

10

are statutorily immune from being exposed to liability for these

11

claims. Plaintiff did not respond to this portion of the motion.

to

supervision,

Plaintiff’s

negligence,

failure

and

of

5

alleged

hiring

dismissal

provide

adequate

and

negligent

non-emergency

12

“Under Government Code section 845.6, both a public

13

entity and its employees are immune from claims based on injuries

14

to prisoners caused by a failure to provide medical care, except

15

when an employee, acting within the scope of his employment,

16

fails to provide medical care to a prisoner and has reason to

17

know that need for medical care is immediate.” Lawson v. Superior

18

Court, 180 Cal. App. 4th 1372, 1384 (2010).

19

Plaintiff alleges in the SAC:

20

During
.
.
.
[P]laintiff’s
.
.
.
incarceration he was not allowed to see a
doctor or be transported to a hospital
although . . . Defendants knew about [his]
injuries and [he] made numerous requests that
he be allowed to see a doctor.

21
22
23
24

. . . .

27

On and between the dates of January 2011 and
August 2012 [P]laintiff had informed the
Defendants on numerous occasions that he was
in pain and that he needed to and wanted to
see a doctor. Each time [P]laintiff made such
a request his request was denied.

28

. . . .

25
26

15

1
2
3
4
5
6
7
8
9
10
11
12
13

Although Plaintiff made several request of
the Defendant[sic] to allow him to see a
doctor . . . , the Defendant[sic] still
refused to allow [P]laintiff the opportunity
to see a medical doctor.
(SAC ¶¶ 14, 77, 88.)
These allegations do not support drawing the reasonable
inference that Plaintiff was in immediate need of medical care
each time he made one of the referenced requests. See Cal. Gov't
Code § 845.6 (“[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.”(emphasis
added)).

Accordingly,

18
19
20

of

Defendants’

motion

is

IV. CONCLUSION

15

17

portion

granted.

14

16

this

For the stated reasons, the dismissal motion is granted
in part and denied in part. Plaintiff is granted ten (10) days
from the date on which this order is filed to file an amended
complaint

addressing

deficiencies

in

any

dismissed

claim.

Further, the motion for a more definite statement is denied.
Dated: August 13, 2014

21
22
23
24
25
26
27
28
16