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)

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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 23 24 25 26 27 28 14

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