Orr v. County of Sacramento, et al.

Filing 26

ORDER granting in part and denying in part 15 Motion to Dismiss signed by Judge Lawrence K. Karlton on 8/23/13. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARVIN ORR,

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Plaintiff,

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No. CIV. S-13-0839 LKK/AC

v.

ORDER

COUNTY OF SACRAMENTO;
Sacramento County Sheriff’s
Department Sheriff SCOTT
JONES; Sacramento Main Jail
Commander RICHARD PATTISON;
Sacramento County Sheriff’s
Department Chief of
Correctional and Court
Services JAMIE LEWIS;
Sacramento County Chief of
Correctional Health Services
AARON BREWER; and DOES 1
through 30, inclusive,

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Defendants.

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23

I.

BACKGROUND1
Plaintiff, an inmate at the Sacramento County Main Jail has

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25

“a

history

of

serious

medical

issues,”

including

diabetes,

26

seizure disorder, arthritis and joint problems, and had undergone

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1

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The background facts are as alleged in the Complaint (ECF No.
1).
1

a

1

bilateral hip replacements.

2

a

3

individual pursuant to the Americans with Disabilities Act who

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required accommodations.”

5

required an accommodation of being housed on a lower tier (and on

6

a lower bunk) at the jail.

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consequence,

Complaint (ECF No. 1) ¶¶ 4, 19.

plaintiff

alleges

that

Id. ¶ 19.

he

“is

a

As

qualified

Plaintiff alleges that he

Id. ¶ 20.

Plaintiff was placed in custody at the Sacramento County

8

Main Jail on June 6, 2012, to finish out a misdemeanor term.

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¶ 19.

Id.

The medical staff, recognizing plaintiff’s medical needs,

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generated two “Miscellaneous Medical Needs forms” on June 6 and

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7, 2012, stating that plaintiff “needed both lower bunk and lower

12

tier housing for the length of his stay.”

Complaint ¶ 21.

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Notwithstanding plaintiff’s need for accommodation and the

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medical staff’s request that he be accommodated, plaintiff “was

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housed

16

Complaint ¶ 22.

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up the stairs to his upper tier cell.

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suffered

19

“personal

20

distress and mental anguish.”

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fall, and after plaintiff’s attorney intervened, plaintiff was

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“finally given the medically required housing.”

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on

6West

no

on

upper

bunk

in

an

upper

tier

cell.”

On June 14, 2012, plaintiff fell while walking

broken

injury,”

Plaintiff

an

bones,
as

filed

but

well

this

as

he

Complaint ¶ 23.
did

“pain

suffer

and

an

Plaintiff
unspecified

suffering,

emotional

Complaint ¶¶ 25 & 35.

lawsuit

under

42

After the

Complaint ¶ 24.
U.S.C.

§

1983,

24

alleging

25

indifference

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Americans with Disabilities Act, 42 U.S.C. § 12132, for failure

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to accommodate him, and California state law, for negligence.

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The suit names the County, the named individual defendants, and

an

Eighth
to

his

Amendment
serious

violation

medical

2

needs,

for
Title

deliberate
II

of

the

1

unknown “Does,” as defendants.

2

are Scott Jones, the County Sheriff, Richard Pattison, the County

3

Jail Commander, Jamie Lewis, the Sheriff’s Chief of Correctional

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and

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Correctional Health Services.

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are each sued in their official and their individual capacities.

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Court

Services,

Defendants

and

move

The named individual defendants

Aaron

to

Brewer,

the

County

Chief

of

The named individual defendants

dismiss

all

8

II.

against

all

defendants, for failure to state a claim.

9

claims

DISMISSAL STANDARD

10

A dismissal motion under Fed. R. Civ. P. 12(b)(6) challenges

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a complaint's compliance with the federal pleading requirements.

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Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a “short

13

and plain statement of the claim showing that the pleader is

14

entitled

15

“‘fair notice of what the ... claim is and the grounds upon which

16

it rests.’”

17

quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).

18

to

relief.”

The

complaint

must

give

the

defendant

Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007),

To meet this requirement, the complaint must be supported by

19

factual allegations.

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129

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S. Ct. 1937 (2009).

Moreover, this court “must accept as true

21

all

allegations

22

Erickson v. Pardus, 551 U.S. 89, 94 (2007).2

23

of

the

“While

factual

legal

conclusions

contained

can

provide

in

the

complaint.”

the

framework

of

24
2

25
26
27
28

Citing Twombly, 550 U.S. at 555-56, Neitzke v. Williams, 490
U.S. 319, 327 (1989) (“[w]hat Rule 12(b)(6) does not countenance
are dismissals based on a judge’s disbelief of a complaint’s
factual allegations”), and Scheuer v. Rhodes, 416 U.S. 232, 236
(1974) (“it may appear on the face of the pleadings that a
recovery is very remote and unlikely but that is not the test”
under Rule 12(b)(6)).
3

a

1

complaint,” neither legal conclusions nor conclusory statements

2

are themselves sufficient, and such statements are not entitled

3

to a presumption of truth.

4

Twombly therefore prescribe a two step process for evaluation of

5

motions

6

conclusory factual allegations, and then determines whether these

7

allegations,

8

favorable

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entitlement to relief.”

to

dismiss.

to

taken
the

The

as

true

Iqbal, 556 U.S. at 679.

court

and

plaintiff,

first

identifies

construed
“plausibly

in

the

give

Iqbal and

the

light

rise

to

non-

most
an

Iqbal, 556 U.S. at 679.

10

“Plausibility,” as it is used in Twombly and Iqbal, does not

11

refer to the likelihood that a pleader will succeed in proving

12

the

13

conclusory factual allegations, when assumed to be true, “allow[]

14

the court to draw the reasonable inference that the defendant is

15

liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678.

16

“The

akin

17

requirement,’ but it asks for more than a sheer possibility that

18

a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.

19

at 557).3

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3

21
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23
24
25
26
27
28

allegations.

plausibility

Instead,

standard

it

is

refers

not

to

whether

to

a

the

non-

‘probability

A complaint may fail to show a right to relief either

Twombly imposed an apparently new “plausibility” gloss on the
previously well-known Rule 8(a) standard, and retired the longestablished “no set of facts” standard of Conley, although it did
not overrule that case outright. See Moss v. U.S. Secret
Service, 572 F.3d 962, 968 (9th Cir. 2009) (the Twombly Court
“cautioned that it was not outright overruling Conley ...,”
although it was retiring the “no set of facts” language from
Conley). The Ninth Circuit has acknowledged the difficulty of
applying the resulting standard, given the “perplexing” mix of
standards the Supreme Court has applied in recent cases. See
Starr v. Baca, 652 F.3d 1202, 1215 (9th Cir. 2011), cert. denied,
132 S. Ct. 2101 (2012). Starr compared the Court's application
of the “original, more lenient version of Rule 8(a)” in
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) and Erickson v.
Pardus, 551 U.S. 89 (2007) (per curiam), with the seemingly
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by lacking a cognizable legal theory or by lacking sufficient

2

facts alleged under a cognizable legal theory.

3

Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

4

III. ANALYSIS

5

A.

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Plaintiff’s first four claims are brought pursuant to 42

Balistreri v.

Eighth Amendment Claims under 42 U.S.C. § 1983.

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U.S.C. § 1983.

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his federal constitutional right has been violated by a “person”

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acting under color of law.

That statute provides a remedy for plaintiff if

42 U.S.C. § 1983.

The County is a

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“person” subject to liability under Section 1983.

11

County of Washoe, Nev., 290 F.3d 1175, 1185 (9th Cir. 2002)

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(regarding

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indifference to inmate’s medical needs), cert. denied, 537 U.S.

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1106 (2003) (quoting Monell v. Dept. of Soc. Svcs., 436 U.S. 658,

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689 (1978)).4

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county’s

Plaintiff’s

Section

underlying

1983

liability

constitutional

for

claim

Gibson v.

deliberate

is

that

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defendants violated his Eighth Amendment right to be free from

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cruel

19

indifference to his serious medical needs.

and

unusual

punishments,

by

virtue

of

their

deliberate

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To state the underlying constitutional claim, the Complaint

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must allege first, a “serious medical need,” and second, that

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defendants’ response to the need was deliberately indifferent.

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“higher pleading standard” in Dura Pharmaceuticals, Inc. v.
Broudo, 544 U.S. 336 (2005), Twombly and Iqbal. See also Cook v.
Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (applying the “no set
of facts” standard to a Section 1983 case).

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4

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However, defendants are correct that the County “may not be held
liable under a respondeat superior theory.” Gibson, 290 F.3d at
1185.

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5

1

Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012) (plaintiff

2

stated a Section 1983 for deliberate indifference stemming from

3

defendants’ failure to follow medical directives that plaintiff

4

be placed on a lower bunk).5

The second prong, “deliberate

5

indifference”

defendants’

6

failure

7

need;6 or (b) harm caused by the indifference.

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9

to

is

shown

respond

to

by:
a

(a)

prisoner's

pain

or

purposeful
possible

act

or

medical

Id.

Defendants assert that the claim against the County “solely
alleges

liability

based

on

individual

conduct

of

ignoring

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plaintiff’s medical needs,” and is thus a prohibited respondeat

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superior claim under Monell.

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the named individual defendants on the grounds that no “personal

13

involvement” is alleged.

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the motion.7

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1.

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Claim 1:

Motion at 11.

They move to dismiss

Motion at 7, 10-12.

Plaintiff opposes

“Deliberate Indifference.”

Claims 1 to 4 are Section 1983 claims in which plaintiff

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alleges that his Eighth Amendment rights were violated.

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claims all arise out of the same basic set of facts.

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the Complaint alleges that employees at the Sacramento County

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Main Jail assigned plaintiff to housing in the upper tier (and on

The

In Claim 1,

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6

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25
26
27
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Citing Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

Plaintiff’s “allegations of deliberate indifference to his
medical condition were sufficient to satisfy the pleading
requirement.” Akhtar, 698 F.3d at 1214.
7

Defendants assert that “Plaintiff does not oppose Defendants
Jones, Pattison, Lewis, and Brewer’s motion to dismiss the first
claim. Therefore the individual defendants should be dismissed.”
However, plaintiff does oppose dismissal of the First Claim
against defendants in their individual capacities, as well as
their official capacities.
6

1

an upper bunk), which directly led to his injury when he fell

2

while climbing the stairs to the upper tier.

3

plaintiff alleges, with deliberate indifference to his serious

4

medical needs, which necessitated that he be housed on the lower

5

tier (and on a lower bunk).

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Defendants did so,

Because Claims 2, 3 and 4 allege liability for this same

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conduct,

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“Unconstitutional

9

Liability,” the court will construe Claim 1 as alleging direct

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liability only against those who actually made the upper tier

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assignment and who actually housed plaintiff there.

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defendants who actually engaged in this conduct are alleged to be

13

Does 1-10, only.

but

based

upon

an

Practices/De

“Unconstitutional

Facto

Policy,”

and

Policy,”

“Supervisory

The specific

See Complaint ¶ 13.

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The Complaint is clear in alleging that the named individual

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defendants were responsible for “training and supervision” of the

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Doe defendants, but that it was “[t]hose Does” -- not the named

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individual defendants -- who “failed to implement the lower tier,

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lower bunk housing recommendation or properly classify Orr’s cell

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and bedding assignment.”

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nothing in the “Factual Allegations” portion of the Complaint

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that alleges or implies that the County of Sacramento itself, or

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any

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housed plaintiff on the upper tier.

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County and the named individual defendants are addressed in the

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following Claims, which allege liability through policy, custom

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and practice, and through supervision of the Does by the named

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individual defendants.

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Accordingly,

of

the

named

Complaint ¶¶ 9, 10, 12, 13.

individual

the

court

defendants

will
7

actually

There is

assigned

or

Thus, the liability of the

construe

Claim

1

to

assert

1

liability only against Does 1-10, but not against the County or

2

the individual named defendants.

3

alleges

4

defendants, those defendants’ motion to dismiss Claim 1 will be

5

granted.

6

a

claim

2.

7

against

Claim 2:

the

To the degree the Complaint

County

or

the

individual

named

“Unconstitutional Policy.”

Claim 2 alleges that the unconstitutional conduct alleged in

8

Claim

9

promulgated by the County, all the named individual defendants,

1

was

“the

direct

and

proximate

result

of

policies”

10

and Does 16-20.

11

allegedly “responsible for the promulgation of the policies and

12

procedures” under constitutional attack here.

13

Further, the Complaint alleges, those policies “were a direct and

14

proximate cause of plaintiff’s injuries.”

15

allegations properly state a Section 1983 claim against the cited

16

defendants, as discussed below.

17

“policy,

18

“Unconstitutional

19

“Unconstitutional Practices/De Facto Policy” (Claim 3), the court

20

will construe Claim 2 as attacking only “official” County policy,

21

and address practice, custom and “de facto” policies in Claim 3.

22

Moreover, the only Does named in Claim 2 are Does 16-20, who

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“were

24

procedure.”8

25

8

26
27
28

Does 16-20 are those County employees who were

practice

responsible

and

for

the

Id. ¶¶ 44 45.

These

Since plaintiff divides up the

custom”

Policy”

Complaint ¶ 15.

(Claim

claim
2)

promulgation

into

one

entitled

and

one

entitled

of

the

policies

and

They are also alleged to have “permitted the customs/practices
pursuant to which the acts alleged herein were committed.”
Complaint ¶ 15. This latter allegation seems to undo plaintiff’s
attempt to finely segregate each aspect of the Section 1983
claim. To keep things relatively simple, the court will leave
these allegations for the claim that addresses customs and
8

1

a.

The County.

2

There are at least “two routes” to County Monell liability

3

under Section 1983: (1) the County itself violated plaintiff’s

4

rights, or directed its employees to do so, acting with the

5

required state of mind; or (2) the County is responsible for a

6

constitutional tort committed by its employee.

7

at 1185 87 (describing “two routes” to municipal liability under

8

Section 1983).9

9

Plaintiff’s

underlying

constitutional

Gibson, 290 F.3d

claim

is

that

10

defendants violated his Eighth Amendment rights by deliberate

11

indifference to his serious medical needs.

“A public official's

12

‘deliberate

prisoner's

serious

13

injury’

Amendment

ban

14

punishment.”

15

2002), quoting Estelle v. Gamble, 429 U.S. 97, 105 (1976).

indifference

violates

the

to

a

Eighth

(1)
Under

against

or

cruel

Clement v. Gomez, 298 F.3d 898, 904 (9th Cir.

16
17

illness

the

first

Route 1.

route

to

municipal

liability,

“a

18

municipality may be liable under § 1983, just as natural persons

19

are,

20

municipalities and other local government units to be included

21

among

22

Monell, 436 U.S. at 689).

23

municipality must have “acted with ‘the state of mind required to

24

prove the underlying violation,’ just as a plaintiff does when he

25

or she alleges that a natural person has violated his federal

because

those

when

persons

Congress

to

whom

enacted

§

1983

§

1983

it

applies.’”

‘intend[ed]

Id.

(quoting

To be liable under this route, the

26
practices (Claim 3).
27
9

28

Citing Board of County Comm’rs v. Brown, 520 U.S. 397, 404, 40607 (1994) and Canton v. Harris, 489 U.S. 378, 387 (1989)).
9

1

rights.’” Id. (quoting Board of County Comm'rs, 520 U.S. at 405).

2

The municipality can “act” through an official policy-making

3

mechanism, such as a local ordinance.

4

(municipality may be liable under Section 1983 for “action that …

5

implements or executes a policy statement, ordinance, regulation,

6

or decision officially adopted and promulgated by that body's

7

officers”).

8

actions of its “authorized decision-maker.”

9

at 1443.

10

Alternatively,

the

Monell, 436 U.S. at 690

County

can

“act”

through

the

Thompson, 885 F.2d

Thus:

13

[m]unicipal liability under Monell is established where “the
appropriate officer or entity promulgates a generally
applicable statement of policy and the subsequent act
complained of is simply an implementation of that policy.”
Bd. of County Comm'rs v. Brown, 520 U.S. 397, 417 (1997).
Such a policy may either be “explicitly adopted” or “tacitly
authorized.”

14

Harper v. City of Los Angeles, 533 F.3d 1010, 1024 (9th Cir.

15

2008) (quoting Gibson v. United States, 781 F.2d 1334, 1337 (9th

16

Cir. 1986), cert. denied, 479 U.S. 1054 (1987)).

11
12

17

The

“underlying

violation”

here

is

an

Eighth

Amendment

18

violation

19

indifference to plaintiff’s serious medical needs.

20

the County must have: (1) “had a policy that posed a substantial

21

risk of serious harm;” and (2) “known that its policy posed this

22

risk.”

23

To survive dismissal of a Section 1983 deliberate indifference

24

claim against the County based upon an unconstitutional policy,

25

the

26

substantial

27

(county’s Section 1983 liability for deliberate indifference to

allegedly

arising

from

the

County’s

deliberate

To be liable,

Id. (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

Complaint

must

risk

of

allege

that

serious

the

harm”

28
10

County’s
to

policy

plaintiff.

“posed

See

a

Gibson

1

inmate’s medical needs).

2

As for the County’s “knowledge,” it can be liable only if it

3

“‘knows of and disregards an excessive risk to inmate health and

4

safety.’” Id. at 1187 (quoting Farmer, 511 U.S. at 841).

5

County is actually aware of “a substantial risk of serious harm,”

6

it will be “liable for neglecting a prisoner’s serious medical

7

needs” on the basis of either its “action” or its “inaction.”

8

Id. (citing Farmer, 511 U.S. at 842).

9

The

Complaint

sufficiently

alleges

a

County

If the

policy

that

10

posed

11

alleges that the Sacramento County Sheriff’s Department: (1) has

12

“a

13

recommendations” from its own medical staff; and (2) has a de

14

facto

15

medical

16

specifically related to their needs of lower bunk, lower tier

17

housing assignments.”

18

alleges that the lawsuit was filed to address “the systemic and

19

on-going failure of the Sacramento County Main Jail to properly

20

accommodate the special medical needs of inmates and detainees

21

and

22

recommendations.”

23
24

a

substantial

custom

and

policy

practice

of

needs

“knew”

of

its

of

inmates

as

serious

ignoring

failure
at

the

harm.

It

lower

to

tier,

accommodate

Sacramento

relate

to

lower

the

County

Complaint ¶¶ 26 & 34(b).

they

specifically

lower

bunk,

bunk

serious

Main

Jail

Further, it

lower

tier

Complaint ¶ 3.

Complaint

that

of

“systemic

particularly

The

risk

also

policy

sufficiently
posed

the

alleges

risk

of

that

the

County

substantial

harm.10

25
26
27

10

The cases acknowledge the difficulty of discerning what a
municipality “knows,” but it can be determined by reference to
the state of mind of its policymakers “who are, of course,
natural persons.” See Gibson, 290 F.3d at 1189 n.10.

28
11

1

Specifically,

2

because its own medical staff recommended, upon plaintiff’s being

3

taken into custody at the jail, and on two separate occasions,

4

that

5

housed on the lower tier.

6

that other disabled inmates have suffered similar injuries at the

7

same jail, arising from “being improperly placed on upper bunks

8

and/or upper tiers in disregard of medical advice and/or obvious

9

medical needs.”

because

the

of

County

knew

plaintiff’s

its

policies

medical

posed

condition,

this

he

risk

should

be

In addition, the Complaint alleges

Complaint ¶¶ 31 & 32.

It goes on to allege that

10

these prior injuries led to hospitalizations for those inmates

11

and/or prior litigation by them.11

12

Finally, the Complaint sufficiently alleges that this County

13

policy

14

injury,

15

recommendation that led to plaintiff’s fall while climbing to the

16

upper tier.

is

what

since

led,
it

directly

was

its

and

proximately,

directive

to

to

ignore

plaintiff’s
the

medical

17

In sum, the Complaint sufficiently alleges that the County’s

18

employees’ failure to assign plaintiff to lower tier housing was

19

the

20

recommendations of its own staff in regard to housing disabled

21

inmates.

22

being

23

itself: ignore the medical recommendations of its own medical

24

staff on where to house disabled inmates.

25
26
27
28

direct

result

of

a

County

to

ignore

the

medical

The County’s deliberate indifference, in addition to

alleged

specifically,

(2)
11

policy

can

be

inferred

from

the

policy

Route 2.

The Complaint also alleges that previously, plaintiff himself
was injured as a result of this policy, leading to litigation,
although that injury is alleged to have resulted from assignment
to a higher bunk, rather than housing on the higher tier.
12

1

Another route to municipal liability is through the conduct

2

of

3

violation itself, nor direct its employee to do so.

4

route, the County can be liable if (1) a County employee violated

5

plaintiff’s rights, (2) the County has policies (or “customs,”

6

discussed in Claim 3), that amount to deliberate indifference (as

7

that phrase is defined by Canton), and (3) these policies were

8

the “moving force” behind the employee's violation of plaintiff’s

9

constitutional rights, in the sense that the County could have

its

employees,

even

where

the

County

did

not

commit

the

Under this

10

prevented the violation with an appropriate policy.

11

F.3d at 1193-94 (citing Amos v. City of Page, 257 F.3d 1086, 1094

12

(9th Cir. 2001)).

13

Gibson, 290

(a) Allegations that a County employee
violated plaintiff’s Eighth Amendment
rights.

14
15
16

The Complaint specifically alleges that unknown County

17

employees (Does 1-10), ignored his need to be accommodated with a

18

lower tier housing assignment, and instead placed him on an upper

19

tier.

20

out of deliberate indifference to his serious medical needs, and

21

ignoring the specific recommendation from jail medical personnel

22

that he be housed on the lower tier.

23

alleges that this conduct directly led to plaintiff’s injury, in

24

that the failure to house him on the lower tier despite his

25

medical conditions, forced him to climb the stairs to the upper

26

tier, resulting in his fall.

27

////

28

////

See Complaint ¶¶ 9-16. It alleges that these Does did this

Id.

The Complaint further

Id. ¶¶ 23, 35 & 38.

13

1
(b) Allegations of County customs and
policies
amounting
to
deliberate
indifference.

2
3
4
The

5
6
7
8
9

Complaint

sufficiently

alleges

the

existence

of

an

official County policy amounting to deliberate indifference, as
set forth above.

The County’s alleged policy of ignoring the

recommendations of its own medical staff on how disabled inmates
should be housed, is plainly a policy of deliberate indifference.

10
(c) Allegations of County policy as the
moving force behind the violation.

11
12
13

The Complaint sufficiently alleges that the County’s policy

14

was the moving force behind the alleged constitutional violation.

15

It alleges that the policy was to ignore medical recommendations

16

that an inmate be housed in a lower tier.

17

this policy that plaintiff was housed in the upper tier despite a

18

medical recommendation to the contrary.

19

alleged

20

Further, the Complaint alleges that plaintiff’s injury was the

21

direct and proximate result of this policy and its implementation

22

by the Does.

23

Complaint that if the County had a policy in place to follow the

24

medical recommendations of its medical staff (rather than ignore

25

them), plaintiff’s injury would not have occurred.

26

or

can

reasonably

be

inferred

It was pursuant to

No other motivation is
from

the

complaint.

Further, it may reasonably be inferred from the

The Complaint sufficiently alleges County liability under

27

both

28

motion to dismiss Claim 2 will be denied.

routes

set

forth

in

Gibson.

14

Accordingly,

the

County’s

1

b.

2

Individual named defendants.

The individual named defendants assert that plaintiff fails

3

to

4

constitutional

5

County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010) (“[e]ach

6

Government official, his or her title notwithstanding, is only

7

liable for his or her own misconduct”).

8

does allege these defendants’ personal involvement, namely, that

9

they

10

allege

their

personal

deprivation,

“promulgated”

the

as

involvement
required

by

plaintiff’s

Simmons

v.

Navajo

However, the Complaint

unconstitutional

directly to plaintiff’s injury.

in

policies

that

led

Complaint ¶¶ 9-12.

11

Defendants’ response to the charge that they promulgated the

12

challenged policies seems to be that only the Sheriff could have

13

promulgated any “official county policy” regarding the jail and

14

the “safekeeping of inmates” there, and that defendants Lewis,

15

Pattison

16

claim.

17

Code § 4000 and Cal. Gov’t Code § 26605.

18

“[t]he sheriffs have exclusive responsibility for running the

19

county jails,”

20

567 (9th Cir.), cert. denied, 534 U.S. 823 (2001) (citing Cal.

21

Gov’t Code § 26605), and that the county jails are “kept” by the

22

County Sheriff.

23

either statute, or any case, that would counter the common-sense

24

notion that the Sheriff could delegate duties to other senior

25

officials, such as Lewis, Pattison and Brewer.

26

v. City and County of San Francisco, 308 F.3d 968, 985 (9th Cir.

27

2002) (municipal liability can be based upon the action of a non-

28

final

and

Brewer

should

Motion at 13-14.

therefore

be

dismissed

from

this

In support, defendants cite Cal. Penal
It is correct that

Streit v. County of Los Angeles, 236 F.3d 552,

However, defendant has identified nothing in

policy-maker

if

“an

official
15

with

See, e.g., Ulrich

final

policymaking

1

authority either delegated that authority to, or ratified the

2

decision of, a subordinate”) (emphasis added).12

3

Defendants also cite Thompson v. City of Los Angeles, 885
1989),13

4

F.2d

5

proposition that defendants other than the Sheriff cannot be held

6

liable for promulgating policies.

7

against California and the City and County of Los Angeles.

8

did not involve the liability of any individual, and sheds no

9

light on defendants’ argument here.14

1439,

1446

(9th

Cir.

and

other

cases

for

the

However, Thompson was a suit
It

The other cases cited by

10

defendants similarly address whether the municipality may be held

11

liable based upon the decisions or actions of municipal officers,

12

not whether the officers themselves may be held liable.15

13
12

14
15
16
17
18

Nor have defendants asserted or argued that policymakers
themselves cannot be held liable for unconstitutional policies
they promulgate. See, e.g., Cabrales v. County of Los Angeles,
864 F.2d 1454 (9th Cir. 1988) (affirming jury verdict against
county and its policymaker) (this decision was vacated at 490
U.S. 1087 (1989), but reinstated at 886 F.2d 235 (9th Cir. 1989),
cert. denied, 494 U.S. 1091 (1990)).
13

Overruled on other grounds by Bull v. City and County of San
Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc).

19
14

20
21
22
23
24

Defendants have not argued that the County cannot be liable
based upon the purported inability of defendants Lewis, Pattison
and Brewer – that is, anyone other than the Sheriff – to
promulgate an “official” policy.” In any event, as noted above,
there is nothing in either party’s papers that would tend to
dispute the common-sense notion that the Sheriff could delegate
duties to other senior officials, such as Lewis, Pattison and
Brewer.
15

25
26
27
28

See Pembaur v. City of Cincinnati, 475 U.S. 469, 481-482 (1986)
(“[m]unicipal liability attaches only where the decisionmaker
possesses final authority to establish municipal policy with
respect to the action ordered. The fact that a particular
official — even a policymaking official — has discretion in the
exercise of particular functions does not, without more, give
rise to municipal liability based on an exercise of that
16

1

In

2

denied.

sum,

defendants’

3.

3

motion

to

dismiss

Claim

2

will

be

Claim 3: “Unconstitutional Practices / De Facto
Policy”

4
Claim 3 appears to be identical to Claim 2, except that (i)

5
6

instead

of

alleging

an

official

“policy,”

it

alleges

7

“unconstitutional practices / de facto policy,” (ii) it names

8

Does 21-30, and (iii) it does not name defendant Pattison, the

9

Jail Commander.

Does 21-30 are alleged to be “responsible for

10

the customs and practices” challenged here.

11

are

12

policies, even if those practices are not officially adopted by

13

formal legislative act, the analysis set forth for Claim 2 also

14

applies here.16

liable

for

their

actual

practices,

Because defendants

customs

and

de

facto

See Monell, 436 U.S. at 690 91; Mitchell v.

15
16
17
18
19
20
21
22
23
24
25
26
27

discretion”) (emphases added) (footnote omitted); City of St.
Louis v. Praprotnik, 485 U.S. 112, 128 (1988) (Plurality Opinion)
(“[t]he city cannot be held liable under § 1983 unless respondent
proved the existence of an unconstitutional municipal policy”)
(emphasis added), and 485 U.S. at 142 (Opinion of Brennan, J.)
(“[b]ecause the court identified only one unlawfully motivated
municipal employee involved in respondent's transfer and layoff,
and because that employee did not possess final policymaking
authority with respect to the contested decision, the city may
not be held accountable for any constitutional wrong respondent
may have suffered”) (emphasis added); Streit, 236 F.3d at 565
(“[w]e therefore affirm the district court's holding that the
LASD [L.A. County Sheriff’s Department], when functioning as the
administrator of the local jail, is a County actor, and that the
County may therefore be subject to liability under 42 U.S.C. §
1983”) (emphasis added); Cortez, 294 F.3d at 1187 (“[t]he issue
in this case is whether the actions of a California sheriff are
attributable to the county for purposes of 42 U.S.C. § 1983”)
(emphasis added).
16

Defendant does not separately attack Claim 3, apparently
recognizing that the same arguments apply to both claims.

28
17

1

Dupnik, 75 F.3d 517, 525 (9th Cir. 1996) (“the court correctly …

2

conclude[d]

3

witnesses

4

Accordingly,

5

denied.

that
did

the

not

meet

4.

de

the

defendants’

6

facto

requirements

motion

to

a.

8

The
liability

lies

of

dismiss

of

not

due

Claim

calling

process”).
3

will

be

The County.

seeks

County

policy

Claim 4: “Supervisory Liability”

7

9

Jail's

dismissal

only

against

on

the

individual

grounds

that

supervisors,

such

and

that

10

“supervisory liability is not a cognizable legal theory against

11

the County.”

Motion at 14.

The County cites no authority that

12

supports this proposition.17

However, plaintiff does not defend

13

the claim, instead proffering arguments that would support its

14

claims

15

unconstitutional policies.

16

Claims 2 and 3.

17

against the County, rather than explore, without assistance from

18

either party, the issue of whether “supervisory liability” can

19

attach to a county.

against

the

based

upon

its

allegedly

Those claims are already covered in

Accordingly, the court will dismiss this claim

20

b.

21

County

“Supervisory

Individual named defendants.

liability

is

imposed

against

a

supervisory

22

official in his individual capacity for his own culpable action

23

or

24

subordinates,

inaction

in

the
for

training,
his

supervision,

acquiescence

in

or
the

control

of

his

constitutional

25
17

26
27
28

The case cited by the County, Larez v. Los Angeles, 946 F.2d
630 (9th Cir. 1991) does state that supervisory liability can lie
against an individual, but it does not state that such liability
cannot lie against a municipality or is not cognizable against a
municipality.
18

1

deprivations of which the complaint is made, or for conduct that

2

showed

3

others.”

4

Cir. 2005) (quoting Larez, 946 F.2d at 646).

5

supervisor’s

6

subordinates’ violations, then the supervisor can be held liable

7

for that culpable conduct.

a

reckless

or

callous

indifference

to

the

rights

of

Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th

training

or

supervision

Accordingly, if the

directly

leads

to

his

8
Supervisory liability exists even without overt
personal participation in the offensive act if
supervisory officials implement a policy so deficient
that
the
policy
itself
is
a
repudiation
of
constitutional rights and is the moving force of the
constitutional violation.

9
10
11
12
13

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

14

added) (internal quotation marks omitted).
The Complaint alleges that each named individual defendant

15
16

is

“responsible

17

resulted in plaintiff’s constitutional injury.

18

9-12.18 Defendants argue that only the Sheriff can make policy,

19

but offers no cases on point, nor any logical reason why those

20

under

21

applicable to their own subordinates.

him

cannot

Defendants

22
23

plaintiff

24

actual

25

Plaintiff

for

has

the

also

further
not

knowledge
alleges

promulgation

create

seek

alleged
of

official

the

or

dismissal

that

the

plaintiff’s

that

of

before

policies”

See Complaint ¶¶

de

plaintiff

facto

because,

individual

medical

that

they

defendants

needs.
was

policy

Not

say,
had
so.

incarcerated,

26
27

18

The Complaint also alleges that defendants’ deficient training
and supervision of the Does caused plaintiff’s injury.

28
19

1

“defendants

2

medical conditions and the need for him to be housed on both a

3

lower bunk and lower tier.”

4

own medical staff requested that plaintiff be housed on a lower

5

tier and in a lower bunk, based upon his medical needs.

6

defendants

7

accommodations,

8

lawsuit that resulted from his fall from an upper bunk (and the

9

County’s failure to summon medical help for him for three days).

10

Third, the defendants knew of past incidents and injuries to

11

other disabled inmates from their not having been housed on the

12

lower tier.19

13

had

actual

knew

notice

that
based

Defendants

of

assert

the

severity

Complaint ¶ 20.

plaintiff
upon

both

his

that

the

prior

Orr’s

First, the jail’s

specifically
own

of

required

injury

allegations

Second,

and

a

these
prior

against

the

14

individual defendants are not specific enough under Iqbal, to

15

find supervisory liability.

16

alleged sufficient facts.

17

supervisory defendants knew that plaintiff had a medical need to

18

be assigned to a lower tier (and a lower bunk) in order to avoid

19

serious injury.

20

incident, and from his medical file.

21

because of their failure to train and control their subordinates,

22

plaintiff was nevertheless placed into an upper tier cell.

23

alleges that plaintiff fell on the stairs, trying to reach his

24

upper-tier cell.

25

stairs could not have occurred if plaintiff had been placed in a

26

lower tier cell.

The court finds that plaintiffs have
The Complaint alleges that the named

It alleges how they knew this – from a prior
The Complaint alleges that

It

The Complaint alleges that the fall on the

Defendants assert that these allegations are

27
19

28

Whether these named individual defendants actually knew any of
this or not, appears to be a matter for discovery.
20

1

conclusory,

2

allegations, sufficient to meet the pleading standard of Fed. R.

3

Civ. P. 8, as interpreted by Twombly and Iqbal.

4

but

Defendants

they

are

complain

in

that

fact

very

plaintiff

specific

has

lumped

factual

all

the

5

individual defendants together.

6

enough to dismiss the claims against them.

7

the four senior officials who, collectively, are responsible for

8

creating and implementing policies to ensure that his medical

9

needs are seen to, and who, collectively, are alleged to be

10

responsible for ensuring that those policies are carried out.

11

Plaintiff

12

official was responsible for which aspect of the policies.

13

would appear to be a matter for plaintiff to learn in discovery,

14

it is not a basis for dismissal.

15

presumably

does

not

That is true, but it is not

currently

Plaintiff has named

know

exactly

which
That

Accordingly, defendants’ motion to dismiss Claim 4 will be

16

denied.

17

B.

Claim 5: Negligence.

18

Defendants assert that the County cannot be liable for

19

injury caused by its employees, except as provided by statute

20

(Cal. Govt. Code § 815(a)), and plaintiff has not identified the

21

statute making the County liable in this case.

22

would have been nice if plaintiff had identified the statutory

23

basis for its claim.

Motion at 16.

However, the statutory basis does exist:

24
25
26
27
28

Public entities are ... liable for the
negligent
acts
or
omissions
of
their
employees acting within the scope of their
employment except where either the employee
or the public entity is immunized from
liability by statute.
21

It

1

Giraldo v. CDCR, 168 Cal. App. 4th 231, 245 (1st Dist. 2008),

2

citing Cal. Govt. Code § 815.2.

3

Defendants then assert that they are “immune against all

4

claims brought for injuries to any prisoners” under Cal. Govt.

5

Code § 844.6(a).

6

law cannot immunize state actions from liability under federal

7

law.

8

(“[c]onduct by persons acting under color of state law which is

9

wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized

Motion at 16 (emphasis added).

Of course state

See Martinez v. State of Cal., 444 U.S. 277, 284 n.8 (1980)

10

by state law”) (internal quotation marks omitted).

11

the issue as to this cause of action alleging a liability under

12

the state’s negligence law.

13

That is not

In any event, Section 844.6(a) does provide that “a public

14

entity is not liable for ... [a]n injury to any prisoner.”

15

Govt. Code § 844.6(a)(2).

16

there are several exceptions to this immunity, and does not

17

address whether any of the exceptions applies here.20

18

those exceptions, defendant is wrong in stating that the County

19

is immune from “all” claims relating to prisoner injuries.

20

Defendant does not even offer a perfunctory “with exceptions not

21

pertinent here ....”

22

Cal.

Defendant fails to recognize that

Because of

Plaintiff responds by citing three cases, rather than simply

23

stating what immunity exceptions apply here.

24

cites Lum v. County of San Joaquin, 756 F. Supp. 2d 1243 (E.D.

25

Cal. 2010) (Karlton, J.), and Giraldo, for the proposition that

26

20

27
28

Plaintiff first

For example, the County is liable if its 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.” Cal. Govt. Code § 845.6.
22

1

there is a “special relationship between jailer and prisoner

2

which imposes a duty of care on the jailer to the prisoner.”

3

Opposition at 5.

4

is conceptually distinct from the possible applicability of any

5

immunity:

6

However, as Lum noted, finding a duty of care

“Conceptually, the question of the applicability of a
statutory immunity does not even arise until it is
determined that a defendant otherwise owes a duty of
care to the plaintiff and thus would be liable in the
absence of such immunity.” Davidson v. City of
Westminster, 32 Cal. 3d 197, 201–02 (1982).

7
8
9
10
11

Id., at 1253-54.

12

address whether the County is immune under Section 844.6.

13

Plaintiff next cites C.A. v. William S. Hart Union High School

14

District, 53 Cal. 4th 861, 865 (2012), apparently also for the

15

“special relationship” between “inmates and jailers” point.

16

Opposition at 5.

17

relationship” a high school has with its students.

18

what high school students may think, this court knows of no legal

19

basis for concluding that they are “prisoners” of the school

20

within the meaning of Section 844.6.

21

case, as plaintiff does, does not address whether the Section

22

844.6 immunity applies here.
In

23

short,

Thus, merely citing those cases does not

However, Hart addressed the “special

defendant

cites

an

No matter

Thus, merely citing this

immunity

statute,

Section

24

844.6, as if it applies in every single case, without mentioning

25

that it has exceptions, and without asserting that none of the

26

exceptions applies.

27

not

28

exceptions applies.

immune,

but

Then, plaintiff states that defendants are

without

asserting

that

any

of

the

immunity

Rather than delving into the intricacies of
23

1

state immunity law under Section 844.6 (or re-writing both the

2

Complaint and the motion to dismiss, on behalf of the parties),

3

the court will deny the motion to dismiss, as it is predicated

4

upon

5

immune from “all” claims of injuries to prisoners.

defendants’

plainly

false

assertion:

that

the

County

is

6

C.

7

Title

8

discriminating

9

disability,” and from doing so “by reason of such disability.”

Claim 6: Americans with Disabilities Act.
II

of

the

ADA

prohibits

a

“qualified

against

10

42 U.S.C. § 12132.

11

require

12

disabilities

13

appropriate

14

public

entities

individual

from

with

a

35.152(b)(2) (emphasis added).

15
16

public

entities

are
to

The federal regulations implementing Title II

the

housed
needs

to
in
of

“ensure
the
the

that
most

inmates
integrated

individuals.”

28

...

with

setting
C.F.R.

To state a claim under Title II, for failure to accommodate
a disability, plaintiff must allege:

17
18
19
20
21
22

(1) he is an individual with a disability; (2) he is
otherwise qualified to participate in or receive the
benefit of some public entity's services, programs, or
activities;
(3)
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 (4) such exclusion, denial of benefits, or
discrimination was by reason of [his] disability.

23

Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1021 (9th Cir.

24

2010).

25
26
27

§

1.

County of Sacramento.

Defendants assert that plaintiff’s factual allegations are

28
24

1

not specific enough under Iqbal and Twombly, to state a claim

2

against the County.

3

mere “legal conclusions,” that the allegations do not show that

4

plaintiff is disabled, and do not show that he suffered injury by

5

reason of his disability.

6

They argue that plaintiff’s allegations are

Plaintiff’s allegations are not mere legal conclusions, they

7

are very fact-specific.

8

issues” which include diabetes, a seizure disorder and “bilateral

9

hip replacements.”

He alleges that he has “serious medical

Neither party explains why this does – nor

10

why this does not – make plaintiff a qualified individual with a

11

disability.

12

be:

13

The implementing regulations define “disability” to

a physical or mental impairment that substantially
limits one or more of the major life activities of such
individual; a record of such an impairment; or being
regarded as having such an impairment.

14
15
16

28 C.F.R. § 35.104 (“disability”).

17

“walking,”

18

affecting ... the ... musculoskeletal” system.

19

(2).

20

has

21

replacements, that prevent him from walking up stairs without

22

falling.

and

physical

Major life activities include

impairments

include

“anatomical

loss

Id. at (1)(i) and

The allegations appear to meet this definition: plaintiff
serious

medical

conditions,

including

bilateral

hip

23

Plaintiff goes on to allege that his disability required a

24

specific accommodation: that he be housed on a lower tier (and in

25

a lower bunk).21

He alleges that upon his incarceration, medical

26
27
28

21

Plaintiff spends much time on defendants’ failure to place him,
and others, in lower bunks. However, there is no allegation that
he was injured in any way by this failure.
25

1

personnel requested that he be accommodated by being housed on a

2

lower tier (and a lower bunk).

3

accommodation,

4

ignored, and that he was housed on an upper tier.

5

alleges that by reason of this placement, he fell while climbing

6

the steps to his upper tier cell, and was injured.

7

enough to state a claim for failure to accommodate under Title

8

II.

9

Cir.)

and

the

He alleges that this need for

recommendation

for

accommodation

were

Plaintiff

This is

See Pierce v. County of Orange, 526 F.3d 1190, 1224 (9th
(prisoner

stated

a

Title

II

that

claim

“he

for

failure

to

10

accommodate

11

supply of catheters, and as a result suffered recurrent bladder

12

infections,” and that “he was not provided a proper mattress

13

given his disability, and as a result developed bed sores”),

14

cert. denied, 555 U.S. 1031 (2008).

15

when

he

alleged

was

denied

an

adequate

The court will deny the County’s motion to dismiss Claim 5.

16
2.

Individual defendants.

17
Defendants assert that a Title II ADA claim may only be

18
19

brought

against

20

Motion at 18.

Plaintiffs concede the point.

Opposition at 5.

21

The

is

202

22

prohibits

discrimination

23

entities.”

Barnes v. Gorman, 536 U.S. 181, 184 (2002) (emphasis

24

added).

25

named

26

capacities.

27

////

28

////

concession

a

public

entity,

well-taken,

not

since

against

individual

“Section
the

disabled

defendants.

of
by

the

ADA

public

The ADA claim will be dismissed against all individual
and

Doe

defendants

in

their

26

official

and

individual

1

D.

Individual defendants
capacities.

sued

in

their

“official”

2
3

Defendants argue that all the claims against the individuals

4

in their “official” capacities should be dismissed, because such

5

claims are really claims against the municipality, and that

6

naming the individuals is redundant.

7

“[a]n official capacity suit against a municipal officer is

8

equivalent to a suit against the entity.”

9

Reform, Inc. v. Los Angeles County Sheriff Dept., 533 F.3d 780,

Defendants are correct that

Center for Bio-Ethical

10

799 (9th Cir. 2008) (citing Kentucky v. Graham, 473 U.S. 159,

11

165–66 (1985)), cert. denied, 555 U.S. 10987 (2009).

12

“[w]hen both a municipal officer and a local government entity

13

are named, and the officer is named only in an official capacity,

14

the court may dismiss the officer as a redundant defendant.”

15

(emphasis added).

16

Sheriff Baca was sued only in his official capacity, and only for

17

injunctive relief.

18

Circuit affirmed the district court’s dismissal of defendant Baca

19

as “a redundant defendant.”

20

The

only

Therefore,

Id.

In Center for Bio-Ethical Reform, defendant

Id., at 780 & 786.

other

case

Accordingly, the Ninth

Id. at 799.
defendants

cite

for

this

point

is

21

Armstrong v. Siskiyou County Sheriff's Dept., 2009 WL 4572879,

22

2009 U.S. Dist. LEXIS 111606 (E.D. Cal. 2009) (Burrell, J.),

23

aff’d mem., 420 F3d. Appx. 741 (9th Cir. 2011).

24

were

25

However, the claims against the defendants in their individual

26

capacities had been dismissed on immunity grounds, so that the

27

only

sued

in

remaining

both

their

claims

individual

against

28
27

them

and

were

Defendants there

official

in

capacities.

their

official

1

capacities.

2

the official capacity claims against defendants as “redundant.”

In that circumstance, the district court dismissed

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It appears, then, that if the only surviving claims are

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against the municipality and the individuals in their official

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capacities, the court may dismiss the official capacity suits as

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redundant.

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Accordingly, defendants’ motion to dismiss them in their official

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capacities will be denied.

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IV.

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That is not the situation for any of the claims here.

SUMMARY
For the reasons stated above:

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1.

The court CONSTRUES Claim 1 (Section 1983,

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direct liability), to assert claims against Does 1-10, only.

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the degree Claim 1 asserts claims against the County and/or the

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individual named defendants, their motion to dismiss Claim 1 is

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GRANTED;

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2.

Defendants’

motion

to

dismiss

To

Claim

2

Claim

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(Section 1983, based upon official policy), is DENIED;

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3.

Defendants’

motion

to

dismiss

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(Section 1983, based upon custom, practice and de facto policy),

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is DENIED;

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4.

Defendants’

motion

to

dismiss

Claim

4

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(Section 1983, based upon supervisory liability), is GRANTED as

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to the County, and is otherwise DENIED;

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5.

Defendants’

motion

to

dismiss

Claim

5

(negligence), is DENIED; and

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6.

Defendants’ motion to dismiss Claim 6 (ADA)

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is GRANTED as to all individual defendants, and is otherwise

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DENIED.
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1

IT IS SO ORDERED.

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DATED:

August 23, 2013.

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