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
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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

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For the reasons stated above, the dismissal motion is

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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.

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Dated:

January 12, 2015

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