Fetter v. Bonner, et al.,
Filing
61
ORDER signed by Judge Garland E. Burrell, Jr on 1/12/15 GRANTING in part and DENYING in part 51 Motion to Dismiss Third Amended Complaint. Plaintiff is granted 10 days to amend any claim dismissed with leave to amend. (Manzer, C)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
GEORGE FETTER,
12
15
16
17
18
2:12-cv-2235-GEB-EFB
Plaintiff,
13
14
No.
v.
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,
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DIMISS THE THIRD
AMENDED COMPLAINT
Defendants.
19
20
21
Each of the following movants, the County of Placer
22
(“Placer County”), the Placer County Sheriff‟s Office (“PCSO”)1
23
and Placer County Sheriff Bonner in his individual and official
24
capacities
25
Plaintiff‟s Third Amended Complaint (“TAC”) under Federal Rule of
26
Civil Procedure (“Rule”) 12(b)(6). Plaintiff alleges in the TAC
27
1
28
(collectively
“Defendants”),
seek
dismissal
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
of
1
violations of the Fourteenth Amendment, Title II of the Americans
2
with Disabilities Act (“ADA”), § 504 of the Rehabilitation Act
3
(“RA”), and California law.
4
Each
movant
without
argues
leave
to
the
amend
dismissal
because
motion
should
“Plaintiff
has
be
5
granted
6
unsuccessfully to plead and re-plead his allegations four times”
7
and this demonstrates that “[f]urther leave to amend would be
8
futile.” (Mem. P.& A. ISO Mot. Dismiss TAC (“Mot.”) 1:6-7, ECF
9
No. 51-1.)
10
I. LEGAL STANDARD
11
tried
To survive a motion to dismiss, a complaint
must
contain
sufficient
factual
matter,
accepted as true, to “state a claim to relief
that is plausible on its face.” A claim has
facial plausibility when the plaintiff pleads
factual content that allows the court to draw
the reasonable inference that the defendant
is liable for the misconduct alleged. The
plausibility standard is not akin to a
“probability requirement,” but it asks for
more
than
a
sheer
possibility
that
a
defendant has acted unlawfully. Where a
complaint pleads facts that are “merely
consistent with” a defendant's liability, it
“stops short of the line between possibility
and plausibility of entitlement to relief.”
12
13
14
15
16
17
18
19
20
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation
21
omitted).
22
“For purposes of a motion to dismiss, we accept all
23
well-pleaded allegations of material fact as true and construe
24
them
25
Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783 (9th
26
Cir. 2012). However, “we do not accept legal conclusions in the
27
complaint
28
allegations.” Lacano Investments, LLC v. Balash, 765 F.3d 1068,
in
the
as
light
true,
most
even
favorable
if
cast
2
to
in
the
the
nonmoving
form
of
party.”
factual
1
1071 (9th Cir. 2011) (internal quotation marks omitted).
2
II. FACTUAL ALLEGATIONS
3
The factual background, based on the allegations in
4
Plaintiff‟s TAC, follows. Plaintiff alleges his “right leg was
5
amputated due to the neglect of the defendants.” (TAC ¶ 10, ECF
6
No. 49.)
7
Plaintiff was arrested for driving under the influence.
8
(Id. ¶¶ 11-12.) Prior to his arrest, Plaintiff fell off a roof,
9
injuring “both of his legs, heels and ankles.” (Id. ¶ 11.) While
10
incarcerated, he “began to have extreme pain in his leg and his
11
leg
12
informed of the pain and observed the fact that [Plaintiff‟s] leg
13
was turning [b]lack,” yet “refused to allow [Plaintiff] to see a
14
doctor or transport him to the hospital.” (Id. ¶¶ 15-16.)
15
began
to
turn
black.”
(Id.
¶
15.)
“[T]he
deputies
were
Plaintiff was “placed on the upper tier for housing,
16
forcing him to . . .
17
cell, [and] although the officers were aware that Plaintiff had
18
injuries to both ankles” and “feet and could barely walk . . .
19
[Plaintiff] was not provided a wheelchair.” (Id. ¶ 41.)
20
When
climb a full flight of stairs to get to his
Plaintiff
went
to
see
“was
a
ultimately
doctor”
informed
him
he
21
“immediately
22
condition of his leg was so severe since it had not been attended
23
to for so long that it would have to be amputated.” (Id. ¶¶ 13,
24
17.) A “second opinion” confirmed the diagnosis and Plaintiff‟s
25
leg was amputated. (Id. ¶¶ 18-19.)
26
///
27
///
28
///
3
who
released”
“the
1
III. DISCUSSION
2
A.
Claims Against PCSO
3
PCSO argues all claims alleged against it in the FAC
4
should be dismissed since although “California Government Code
5
section 811.2 defines „public entity‟ to include „every kind of
6
political or governmental entity in the state,‟. . . . [c]ourts
7
have
8
entities,”
9
Plaintiff‟s 42 U.S.C. § 1983 claim against it should be dismissed
10
since PCSO is not a “person” as the term is used in the statute
11
concerning liability for a federal claim. (Mot. 5:26-6:2.)
found
that
like
definition
the
PCSO.
to
exclude
(Mot.
departments
5:18-20.)
PCSO
of
public
also
argues
12
The Ninth Circuit has held a sheriff‟s department is a
13
“public entity” under Cal. Gov. Code § 811.2. Streit v. Cnty. of
14
Los Angeles, 236 F.3d 552, 565 (9th Cir. 2001). Further, it
15
held that when a sheriff‟s department acts to “overs[ee] and
16
manage[] . . . [a] local jail,” it is considered a “person” as
17
the term is used in 42 U.S.C. § 1983. Id. at 561.
18
19
20
has
Therefore, PCSO‟s motion to dismiss the claims against
it on this ground is denied.
B.
42 U.S.C. § 1983 Claims
21
1.
Sheriff Bonner in His Individual Capacity
22
Sheriff
Bonner
seeks
dismissal
of
Plaintiff‟s
23
individual capacity claim that is alleged against him under 42
24
U.S.C.
25
concerning “what [he] personally did, or did not do, to cause the
26
harm complained of by Plaintiff.” (Mot. 11:1-2.)
§
1983,
arguing
it
is
devoid
of
factual
allegations
27
“A supervisor may be held liable under § 1983 [in his
28
individual capacity] if he or she was personally involved in the
4
1
constitutional
2
exists
3
constitutional violation.” Jackson v. City of Bremerton, 263 F.3d
4
646, 653 (9th Cir. 2001). Specifically, “[a] supervisor can be
5
liable in his individual capacity for his own culpable action or
6
inaction
7
subordinates;
8
deprivation; or for conduct that showed a reckless or callous
9
indifference
10
deprivation
between
in
the
the
the
a
sufficient
supervisor‟s
training,
for
to
or
his
unlawful
supervision,
acquiescence
rights
of
causal
conduct
or
in
and
control
the
others.”
connection
of
the
his
constitutional
Watkins
v.
City
of
Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998).
11
Plaintiff
alleges
in
the
TAC
that
Sheriff
Bonner
12
“condoned the [unconstitutional] activities . . .
13
knew or should have known that his staff was inadequately trained
14
or was deliberately ignoring the health and well being of the
15
inmates that were in their care and custody.” (TAC ¶ 35.)
16
The
allegation
Sheriff
further factual enhancement” and does not plausibly allege that
19
Sheriff Bonner violated Plaintiff‟s constitutional rights. Iqbal,
20
556 U.S. at 678. Therefore, this portion of the dismissal motion
21
is granted. Since this claim is unchanged from the claim in
22
Plaintiff‟s prior complaint, which was dismissed for the same
23
reason,
24
granted.
dismissal
assertions
without
leave
to
devoid
the
18
for
naked
“condoned
[officer‟s]
motion
“tenders
Bonner
17
the
activities”
that
in that he
amend
of
is
25
2.
Conspiracy
26
The County, PCSO and Sheriff Bonner (in his official
27
capacity) seek dismissal of Plaintiff‟s conspiracy claim against
28
them that is alleged under § 1983, arguing the pled allegations
5
1
“are
2
them.” (Mot. 11:15-17.)
mere
conclusions
with
no
factual
allegations
to
support
3
Plaintiff alleges in this claim that “Defendant[s]...in
4
conspiracy with each other [acted] to deprive Plaintiff of his
5
federal . . . rights . . .
6
Plaintiff with access to medical care” and “Defendants . . . in
7
conspiracy with each other [acted] to deprive Plaintiff under
8
color of state law of his rights, as guaranteed to him. . . .”
9
(TAC ¶¶ 46, 48.)
10
by failing and refusing to provide
These “conclusory allegations. . . [of] conspir[acy]”
11
are
devoid
of
sufficient
12
claim.” Woodrum v. Woodward Cnty., 866 F.2d 1121, 1126 (9th Cir.
13
1989).
14
Plaintiff
15
motion for dismissal without leave to amend is granted.
Therefore,
16
has
3.
the
facts
dismissal
unsuccessfully
Unconstitutional
17
alleging
pled
a
motion
this
viable
is
claim
Policies,
conspiracy
granted.
four
Practices
Since
times,
or
the
Customs
and a Failure to Adequately Hire and Train
18
The County, PCSO and Sheriff Bonner (in his official
19
capacity)
20
against
21
unconstitutional policies, practices or customs or a failure to
22
adequately
hire
23
Defendants
argue
24
cannot support this claim.
25
26
27
28
seek
them,
dismissal
in
which
and
of
Plaintiff‟s
Plaintiff
train
Plaintiff‟s
alleges
section
that
each
employees
caused
vague
conclusory
and
1983
his
claim
movant‟s
injuries.
allegations
Plaintiff counters he adequately supports this claim in
paragraphs 30 through 33 of the TAC, which state:
30. Plaintiff incorporates and restates each
of the above paragraphs as if fully set forth
herein.
6
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
28
31. Defendants maintained policies, customs
or practices in the Main Jail that were the
moving
force
behind
the
violation
of
Plaintiff, Fetter‟s constitutional rights.
32. Such policies, customs or practices
include, but are not limited to, f[a]iling to
promulgate sufficient policies and procedures
to ensure that inmates[‟] medical needs are
taken into account when housing them.
a. Plaintiff FETTER was housed in an
upper tier cell despite the fact that
officers knew. . . that such housing would be
detrimental to the Plaintiff because of his
medical needs.
b.
Plaintiff
FETTER,
was
initially
booked in at a medical facility because of
his injuries and it is documented that the
Plaintiff had calcaneous (Heel) injuries to
both his right and left feet.
c.
Plaintiff was then placed on the
upper tier for housing, forcing him to have
to climb a full flight of stairs to get to
his cell, although the officers were aware
that Plaintiff had injuries to both ankles.
Failing to promulgate sufficient policies and
procedures to ensure that staff provide for
all inmates‟ medical needs.
d. Plaintiff FETTER, although he had
injuries to both feet and could barely walk
and could not walk without pain was not
provided a wheel chair.
e.
Instead
of
a
wheel
chair
the
Plaintiff was provided a chair in which he
would have to use his injured feet to make it
mobile and had to scoot around causing much
pain to both of his injured feet.
f. Plaintiff FETTER is informed and
believes and on that basis alleges that the
Defendants
policies
and
procedures
are
inadequate to ensure that inmates will have
access to the necessary medical devices.
f. Plaintiff FETTER is informed and
believes and on that basis alleges that the
Defendants had a practice of denying inmates
the necessary medical devices as a way of
punishing the inmates.
7
1
33. These Defendants knew or should have
known that the policies, customs or practices
in the Main Jail would cause grievous injury
to Plaintiff, FETTER in violation of his
constitutional rights.
2
3
4
(Opp‟n 6:3-7:12.)
5
The challenged claim is a municipal liability claim.
6
“A section 1983 plaintiff may establish municipal liability . . .
7
[by] prov[ing] that a [municipal] employee committed [an] alleged
8
constitutional violation pursuant to a formal government policy
9
or
a
„longstanding
practice
or
custom
which
constitutes
the
10
standard operating procedure of the local government entity.”
11
Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992.) The
12
municipality‟s policy, practice or custom must be the “moving
13
force” behind the constitutional violation. City of Oklahoma v.
14
Tuttle, 471 U.S. 808, 819 (1985). However, “[i]t is insufficient
15
for a plaintiff to allege generally that supervisors knew about
16
the
17
policies
18
alleging „a specific policy‟ or „a specific event‟ instigated by
19
the supervisors that led to the constitutional violation.” Peyton
20
v. Grounds, No. 13-4232-VC(PR), 2014 WL 1866516 at *1 (N.D. Cal.
21
May 8, 2014) (quoting Hydrick v. Hunder, 559 F.3d 937, 942 (9th
22
Cir.
23
allegation of a specific policy or custom, nor . . . specific
24
allegations regarding each Defendant‟s purported knowledge of the
25
[section 1983 violation]”) (emphasis omitted).
constitutional
and
2012)
violation
procedures
(dismissing
or
that
the
that
led
to
Complaint
they
the
generally
created
violation,
without
since
“there
[was]
no
26
Nowhere in Plaintiff‟s TAC does he allege “a specific
27
policy or a specific event instigated by the [Defendants] that
28
led to [his alleged] constitutional violation.”
8
Peyton, 2014 WL
1
1866516
2
granted. Further, since Plaintiff has unsuccessfully pled this
3
claim in three prior complaints, the motion to dismiss without
4
leave to amend is granted.
5
at
C.
*1.
Therefore,
each
movant‟s
dismissal
motion
is
ADA and RA
6
Defendants also seek dismissal of Plaintiff‟s ADA and
7
RA claims, arguing that Plaintiff has not alleged “discrimination
8
because of [a] disability”, which is an element of each claim.
9
(Mot. 12:10-14.)
10
To plead a Title II ADA claim, a plaintiff must allege
11
he “was . . . discriminated against by the public entity. . . by
12
reason of [his] disability.” Simmons v. Navajo Cnty., 609 F.3d
13
1011, 1021 (9th Cir. 2010) (quotation omitted) (emphasis added).
14
To
15
“qualified to receive the benefit [of a program] . . . [but] was
16
denied
17
disability.”
18
1056, 1060 (9th Cir. 2001) (quotation omitted) (emphasis added).
plead
19
a
the
§
504
RA
claim,
a
benefits
of
the
O‟Guinn
v.
Lovelock
plaintiff
program
must
solely
by
Correctional
allege
reason
Ctr.,
he
of
502
was
his
F.3d
Plaintiff alleges in his ADA and RA claims that he was
20
denied
access
to
outside
medical
care,
excluded
from
21
participating in counseling and therapy programs and assigned to
22
an upper tier cell. (TAC ¶¶ 68, 76, 102.) However, Plaintiff does
23
not allege he was denied access to these programs because of a
24
disability.
25
Therefore, Plaintiff‟s ADA and RA claims are dismissed.
26
Since these claims are unchanged from the claims in Plaintiff‟s
27
prior complaint, which were dismissed for the same reason, the
28
motion for dismissal without leave to amend is granted.
9
1
D.
California Government Code §§ 11135-11139
2
Defendants
seek
5
he
6
disability.” (Mot. 14:18-20.) Section 11135 states, in pertinent
7
part: “No person in the State of California shall, on the basis
8
of . . . disability, be unlawfully denied full and equal access
9
to the benefits of, or be unlawfully subjected to discrimination
10
any
specific
§
11135,
claim
Plaintiff fails to state a viable claim since he has not alleged
to
Code
Plaintiff‟s
4
access
Government
of
alleged
“denied
California
dismissal
3
was
under
also
program
arguing
due
to
his
under, any program or activity. . . .”
11
A “program or activity” as the phrase is used in §
12
11135 means “any project, action or procedure. . . [;including]
13
the provision of. . .
14
or other services. . . .” 22 CCR § 98010.
health, welfare, rehabilitation, housing,
15
Defendants assert “[w]hile Plaintiff alleges that the
16
denial of a wheel chair and being placed on the second tier
17
caused injury to his leg, he does not allege that these . . .
18
acts denied him access to any programs at the Placer County
19
Jail.” (Mot. 15:15-17.)
20
Plaintiff alleges in the TAC that Defendants violated
21
Cal.
Gov.
22
FETTER‟S need for a wheel chair and by placing him on an upper
23
tier.” (TAC ¶ 55.)
24
25
26
Code
§
11135
“by
failing
to
accommodate
Plaintiff
Defendants have not shown that this claim should be
dismissed. Therefore, this portion of the motion is denied.
E.
California Disabled Persons Act
27
Defendants seek dismissal of Plaintiff‟s claim alleged
28
under the California Disabled Persons Act (“CDPA”), arguing it
10
1
alleges a denial of access to a service, which the CDPA “does not
2
address.”
3
failed provide him “access to the appropriate medical care and
4
attention” necessary to treat his condition. (TAC ¶ 60.) This
5
allegation essentially alleges the denial of a service.
(Mot.
16:13-14.)
Plaintiff
alleges
that
Defendants‟
6
The CDPA prescribes in part that: “[i]ndividuals with
7
disabilities or medical conditions have the same right as the
8
general
9
buildings, medical facilities. . . public facilities, and other
public
to
the
full
and
free
use
of
.
.
.
public
10
public places.” Cal. Civ. Code § 54.
11
solely with physical access to public spaces. Thus, Plaintiff
12
cannot
13
Wilkins-Jones v. Cnty. of Alameda, 859 F. Supp. 2d 1039, 1054
14
(N.D. Cal. 2012).
15
16
maintain
a
claim
based
on
“The CDPA is concerned
the
denial
of
services.”
Therefore, Defendants dismissal motion is granted with
leave to amend.
17
F.
18
California Government Code § 845.6
Placer
County
and
Sheriff
Bonner
(in
his
official
19
capacity) seek dismissal of Plaintiff‟s claim alleging that their
20
conduct violates California Government Code § 845.6, arguing this
21
statute requires an inmate to be in need of immediate medical
22
care and “Plaintiff...has not claimed any exigent circumstances”
23
showing he was in need of immediate medical care. (Mot. 15:26-
24
27.)
25
Plaintiff argues the allegation “that [his] leg had
26
turned [b]lack” demonstrates he was in need of immediate medical
27
care. (Opp‟n 12:1-5.)
28
California Government Code § 845.6 prescribes:
11
1
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. . . [unless the] public employee and
the public entity where the employee is
acting . . . 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.
2
3
4
5
6
7
8
9
10
11
Plaintiff alleges he is a “white/Caucasian male” whose
leg “began to turn black.” (TAC ¶ 15.) The movants have not shown
this allegation is insufficient to allege that Plaintiff was in
need of immediate medical care. Therefore, this portion of the
motion is denied.
G.
12
1.
14
18
19
20
23
negligence,
26
27
and
Supervision,
and
Bonner
in
His
Individual
and
Official
Bonner
negligent
seeks
hiring
dismissal
and
of
supervision,
Plaintiff‟s
and
negligent
infliction of emotional distress claims alleged against him in
his individual and official capacities, arguing each is based on
the alleged conduct of his subordinates for which he “cannot be
liable under Gov. Code § 820.8(a)(2).” (Mot. 16:3-4.)
Cal.
Gov.
Code
§
820.8
states
in
part:
“Except
as
otherwise provided by statute, a public employee is not liable
for an injury caused by the act or omission of another person.”
24
25
Sheriff
Sheriff
21
22
Hiring
Capacities
15
17
Negligent
Negligent Infliction of Emotional Distress
13
16
Negligence,
Concerning
infliction
allege
that
of
Plaintiff‟s
emotional
Sheriff
distress
Bonner
was
negligence
claims,
personally
and
negligent
Plaintiff
does
not
involved
with
his
injuries alleged in these claims. Therefore, these claims are
28
12
1
dismissed.
2
supervision, training, hiring and retention claim alleges that
3
Sheriff
4
negligence.” Delfino v. Agilent Technologies, Inc., 145 Cal. App.
5
4th 790, 815 (2006).
However,
Bonner
Plaintiff
is
does
“direct[ly]
allege
in
liability
his
for
negligent
[his
own]
6
Specifically, Plaintiff alleges Sheriff Bonner had “a
7
duty to hire, supervise, train and retain employee[s]. . . so
8
that these employees. . . refrain[ed] from the conduct alleged,”
9
that
Sheriff
Bonner
“breached
this
duty
causing
the
conduct
10
alleged,” and that this “breach proximately caused the [alleged]
11
damages and injur[y] to Plaintiff . . . .” (TAC ¶¶ 91-93.)
12
However, these conclusory allegations do not support
13
drawing a reasonable inference that Sheriff Bonner is liable for
14
this claim, and it is therefore dismissed. Fayer, 649 F.3d at
15
1064 (“[C]onclusory allegations of law and unwarranted inferences
16
are insufficient to defeat a motion to dismiss.”).
17
Since these claims are unchanged from the claims in
18
Plaintiff‟s prior complaint, which were dismissed for the same
19
reason,
20
granted.
the
motion
for
dismissal
without
leave
to
amend
is
21
2.
Placer County and PCSO
22
Placer County and PCSO seek dismissal of Plaintiff‟s
23
negligence and negligent infliction of emotional distress claims
24
alleged against them; and Placer County also seeks dismissal of
25
Plaintiff‟s
26
alleged against it.
27
Code section 844.6(a)(2) immunizes . . .
28
alleging] injur[y] to [a]
negligent
hiring,
training
and
retention
claim
These movants argue California “Government
[them from claims
prisoner[].” (Mot. 17:4-6.)
13
1
Cal.
Gov.
Code
§
844.6(a)(2)
are
“not
liable
Counties
and
local
an
injury
part:
“[p]ublic
3
prisoner.”
4
considered “public entities.” Cal. Gov. Code § 811.2 (holding
5
counties to be public entities); Streit, 236 F.3d at 565 (finding
6
a county sheriff‟s department was a public entity); Shaw v. State
7
of California Dep‟t of Alcoholic Beverage Control, 788 F.2d 600,
8
605 (9th Cir. 1986) (“[W]e conclude that the courts of California
9
would hold that the Police Department is a public entity under
law
for
in
2
10
entities”
prescribes
enforcement
to
any
agencies
are
section 811.2.”).
11
Therefore, Placer County and PCSO are immune from suit
12
for
Plaintiff‟s
13
dismissed. Since these claims are unchanged from the claims in
14
Plaintiff‟s prior complaint, which were dismissed for the same
15
reason,
16
granted.
the
negligence-based
motion
for
17
dismissal
claims
without
and
the
leave
claims
to
amend
are
is
IV. CONCLUSION
18
For the reasons stated above, the dismissal motion is
19
GRANTED IN PART and DENIED IN PART. Plaintiff is granted ten days
20
(10) from the date on which this order is filed to amend any
21
claim dismissed with leave to amend.
22
Dated:
January 12, 2015
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25
26
27
28
14
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