Edd v. County of Placer et al

Filing 16

ORDER signed by Judge John A. Mendez on 4/16/15 ORDERING that Defendants' motion is GRANTED WITH PREJUDICE as to Plaintiff's second, third and sixth causes of action. Defendants' motion is GRANTED WITH LEAVE TO AMEND the fourth cause of action to the extent it alleges that Defendants failed to accommodate his coldness. Defendants' motion is GRANTED WITH LEAVE TO AMEND as to the seventh, eighth, ninth, and tenth causes of action in their entirety.The Court DENIES Defendants& #039; motion as to the remainder of the fourth cause of action. Finally, the first, fifth, and eleventh claims have been dismissed pursuant to Plaintiff's evidenced intent to abandon them. If Plaintiff chooses to amend his complaint, he must file such amended complaint within twenty (20) days from the date of this Order, otherwise the case will proceed only on the remainder of the fourth cause of action that was not dismissed. If an amended complaint is filed, Defendants' responsive pleading is due within twenty (20) days thereafter. Plaintiff is cautioned that he may not include any claims that have been abandoned or dismissed with prejudice in an amended complaint. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY C. EDD,

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No.

2:14-cv-02739-JAM-AC

Plaintiff,
v.
COUNTY OF PLACER, Placer
County Sheriff’s Department
Sheriff EDWARD BONNER; Placer
County Department Corrections
Commander DON HUTCHINSON;
Placer County Sheriff’s
Department Sheriff Officer
KEN SKOGEN; PLACER COUNTY
AUBURN JAIL; AND DOES 1-50,
inclusive,

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS

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Defendants.
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Plaintiff Tony C. Edd (“Plaintiff”) sued Placer County for

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his allegedly unlawful arrest for driving under the influence and

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the officers’ failure to accommodate his medical needs during his

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arrest and overnight confinement in jail.

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dismiss on the basis that the complaint shows probable cause for

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the arrest and that they were not required to provide any further

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accommodation for Plaintiff’s medical needs.
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Defendants move to

For the reasons

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stated below, the Court grants in part and denies in part

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Defendants’ motion. 1

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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiff is a 55-year-old man who suffers from Traumatic

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Brain Injury (“TBI”), bursitis, arthritis, and “multiple bulging

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vertebral discs.”

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“dizziness, unsteady gait, and lack of coordination” as well as

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difficulty “mov[ing], sit[ting], and l[ying] down.”

Compl. ¶ 17.

These conditions cause

Id.

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On September 16, 2013, Placer County Sheriff’s Department

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Officer Ken Skogen (“Defendant Skogen”) received a report of a

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road rage incident involving a U-Haul Plaintiff had been driving.

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Compl. ¶¶ 23, 29.

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Haul, asked Plaintiff several questions about whether he had been

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drinking, and conducted multiple field sobriety tests.

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¶¶ 28, 30-32.

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the tests, because he did not tilt his head back.

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¶ 32.

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rage” was simply an “amusing” incident in which he “grabbed a

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short bamboo tiki torch . . . and played the air guitar and a

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[sic] little dance in front of [another] vehicle.”

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He also explained that he could not tilt his head back because of

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his disability.

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Plaintiff for driving under the influence.

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///

Defendant Skogen located Plaintiff and the U-

Compl.

Plaintiff was unable to complete at least one of
See Compl.

Plaintiff clarified to Skogen that the reported “road

Compl. ¶ 32.

Compl. ¶ 29.

Defendant Skogen then arrested
Id.

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for March 25, 2015.
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Upon arrest, Skogen placed Plaintiff in his police car,

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where he remained for over thirty minutes, before driving him to

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Placer County Auburn Jail (“the jail”).

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the car, Plaintiff claims he experienced “severe pain” due to his

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“disabilities, the handcuffs and his body position[.]”

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alleges that he informed Skogen of these problems, but Defendant

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Skogen “laughed” and told Plaintiff that there was “plenty of

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room.”

Compl. ¶ 33.

While in

Id.

He

Id.

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Once at the jail, Plaintiff claims he spent twelve hours in

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a “very cold” cell and was “forced [] to sit or lie on a concret

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[sic] floor or narrow metal beach [sic].”

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Plaintiff further alleges he was later placed in an “extremely

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cold cell for over an hour,” which caused him to “shiver[]

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uncontrollably.”

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Compl. ¶ 37.

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Id.

Compl. ¶ 36.

Defendants then released Plaintiff.

Plaintiff sued the County of Placer, Placer County

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Sherriff’s Department Officers Skogen and Edward Bonner, Placer

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County Sherriff’s Department Corrections Commander Don

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Hutchinson, and the jail (collectively, “Defendants”).

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complaint (Doc. #3) states eleven causes of action as follows:

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(1) excessive force, (2) false arrest, (3) “Civil Rights

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Violation,” (4) Americans with Disabilities Act (“ADA”)

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violations, (5) assault and battery, (6) false imprisonment,

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(7) intentional infliction of emotional distress, (8) negligent

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training, hiring, disciple, and retention, (9) “Unconstitutional

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Policy,” (10) “Unconstitutional Practices/De Facto Policy,” and

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(11) deliberate indifference to serious medical needs.

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Defendants moved to dismiss (Doc. #7) and Plaintiff filed an
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The

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“opposition” stating only that “all defects raised in Defendants’

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Motion maybe [sic] cured by amendment” (Doc. #9).

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concurrently filed a “first amended complaint” (Doc. #8).

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Court struck the amended complaint as untimely (Doc. #14).

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Plaintiff
The

The Court now addresses the merits of Defendants’ motion as

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to the original complaint.

The Court disregards the claims that

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Plaintiff evidenced his intent to abandon (i.e., he omitted them

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entirely from his untimely amended complaint).

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claims are the first, fifth, and eleventh causes of action and

These abandoned

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all claims against the jail.

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Defendants’ reply, because it addresses the merits of the

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stricken amended complaint.

The Court also disregards

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II.

OPINION

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A.

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“Courts have recognized at least two types of Title II

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claims applicable to arrests: (1) wrongful arrest, where police

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wrongly arrest someone with a disability because they misperceive

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the effects of that disability as criminal activity; and

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(2) reasonable accommodation, where, although police properly

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investigate and arrest a person with a disability for a crime

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unrelated to that disability, they fail to reasonably accommodate

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the person’s disability in the course of investigation or

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arrest[.]”

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1211, 1232 (9th Cir. 2014), cert. granted, 135 S. Ct. 702 (Nov.

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25, 2014).

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ADA Violations (Fourth Cause of Action)

Sheehan v. City & Cnty. of San Francisco, 743 F.3d

Plaintiff here alleges that Defendants failed to accommodate
his disability under both these theories at the following times:
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When Defendant Skogen arrested Plaintiff because Skogen

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misperceived his TBI and bulging disc symptoms as

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impairment, Compl. ¶ 19;

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2)

While Plaintiff was in Defendant Skogen’s police car

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for thirty minutes at the scene of arrest and during

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the drive to the station, Compl. ¶¶ 33-34; and

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3)

At the police station when Defendants left Plaintiff in
two cold and uncomfortable cells, Compl. ¶ 36.

The Court addresses each of these claims below:
1.

Wrongful Arrest for DUI

“To prevail on his wrongful arrest theory under the ADA,

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[a] plaintiff must prove that (1) he was disabled; (2) the

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officers knew or should have known he was disabled; and (3) the

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officers arrested him because of legal conduct relating to his

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disability.”

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(E.D. Cal. Feb. 26, 2015) (citations omitted).

Orr v. Cal. Highway Patrol, 2015 WL 848553, at *17

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Plaintiff here has adequately pled wrongful arrest.

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Defendants do not dispute that the complaint states that

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Plaintiff was disabled and that he was arrested in part because

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of his “dizziness, unsteady gait, and lack of coordination” as

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well as his inability to tilt his head back during the field

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sobriety test.

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element — that Defendant Skogen “knew or should have known

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[Plaintiff] was disabled.”

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allegations of the complaint do not show an obvious and

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verifiable disability . . . .”).

Defendants apparently do dispute the second

See id.; Mot. at 13:9-10 (“[T]he

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But Defendants’ argument fails, because Plaintiff has

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alleged that he and others informed Defendant Skogen about his
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disability prior to the arrest.

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Skogen actually believed Plaintiff and whether he should have

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known of Plaintiff’s disability under the circumstances are

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factual questions that this Court cannot take up on this motion

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to dismiss.

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wrongful arrest claim, Defendants’ motion as to this claim is

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denied.

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See Compl. ¶ 28, 32.

Whether

Because Plaintiff has pled all three elements of a

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Failure to Accommodate in Police Car and at Jail

A plaintiff may base a reasonable accommodation claim on an

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officer’s failure to accommodate his disability during post-

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arrest transportation to prison.

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2014 WL 6660415, at *11 (N.D. Cal. Nov. 24, 2014) (citing Gorman

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v. Bartch, 152 F.3d 907, 916 (8th Cir. 1998)).

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a claim on failure to accommodate within a correctional facility.

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Lum v. Cnty. of San Joaquin, 2012 WL 1027667, at *9-*10 (E.D.

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Cal. Mar. 23, 2012) (citing Lee v. City of Los Angeles, 250 F.3d

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668 (9th Cir. 2001)).

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accommodate a disability where the treatment “caus[es] the person

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to suffer greater injury or indignity . . . than other

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arrestees.”

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Anaya v. Marin Cnty. Sheriff,

He may also base

An officer or facility fails to

Sheehan, 743 F.3d at 1232.

Defendants argue that the allegations related to Plaintiff’s

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experience in the police vehicle do not state a claim, because

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“[t]he cases have not held that an officer dealing with a

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subjective claim of disability during an encounter in the field,

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one that is not objectively verifiable in short order by the

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officer, must immediately accommodate that claim.”

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13:24-26.

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argument, but cite Bircoll v. Miami-Dade Cnty., 480 F.3d 1072,

Mot. at

Defendants provide no further elaboration for this

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1085-86 (11th Cir. 2007).

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requirement that a disability be “objectively verifiable in short

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order.”

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for dismissal, the claims related to conditions in the police car

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survive.

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Bricoll does not discuss any

Because Defendants have not asserted any other reason

Defendants next challenge Plaintiff’s claims about treatment

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at the jail.

Defendants argue that “Plaintiff did not suffer any

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greater indignity than any other person subjected to

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incarceration in the [jail]” because the cold, concrete cells

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with metal benches are “inherently uncomfortable” for all

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detainees.

Mot. at 14:6, 15:1-2.

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Defendants are partially correct, in that Plaintiff has not

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pled that he suffered “greater injury or indignity” in regard to

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the temperature of the cell.

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explain how the coldness was related to his disability or how it

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could have been ameliorated by an accommodation related to that

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disability.

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to any particular cold sensitivity, so any failure to accommodate

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Plaintiff’s coldness is not actionable under the ADA.

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Airways, Inc. v. Barnett, 535 U.S. 391, 413-14 (2002).

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accordingly dismisses the allegations that Defendants violated

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the ADA by failing to remedy the coldness of Plaintiff’s cell.

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That is, the complaint does not

Plaintiff does not suggest that his disability led

See U.S.
The Court

But Plaintiff’s remaining allegations do relate to his

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disability and are therefore viable.

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Defendants “forced Plaintiff to sit or lie on a concret [sic]

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floor or narrow metal beach [sic].”

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disability allegedly caused him difficulty sitting and lying

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down; so while other inmates might feel discomfort in such a
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These allegations are that

Compl. ¶ 36.

Plaintiff’s

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cell, Plaintiff felt pain.

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in this cell without accommodation therefore caused him to suffer

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greater injury or indignity than his cohorts.

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See id.

Forcing Plaintiff to remain

Defendants have also argued that they cannot be liable under

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the ADA because they housed Plaintiff “in the same manner as all

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other inmates are housed[.]”

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Defendants had a neutral housing policy for all detainees does

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not release them from ADA liability.

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has “repeatedly recognized that facially neutral policies may

Mot. at 14:15.

But the fact that

Indeed, the Ninth Circuit

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violate the ADA when such policies unduly burden disabled

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persons, even when such policies are consistently enforced.”

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McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004).

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Defendants’ argument therefore does not defeat Plaintiff’s

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accommodation claims.

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B.

False Arrest, “Civil Rights Violation,” and False
Imprisonment (Second, Third, and Sixth Causes of
Action)

Defendants argue that the second, third, and sixth claims

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should be dismissed because the complaint shows facts

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demonstrating that Defendant Skogen had probable cause to arrest

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and detain Plaintiff.

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causes of action fail if there was probable cause.

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cause of action alleges that Defendants did not have lawful

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authority to arrest Plaintiff and transport him to jail.

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Compl. ¶¶ 62-64, 67, 78.

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facts sufficient to establish probable cause.

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Mot. at 16.

The Court agrees that these
Indeed, each

See

As described below, the complaint shows

“Probable cause exists when under the totality of

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circumstances known to the arresting officers, a prudent person

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would have concluded that there was a fair probability that [the
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defendant] had committed a crime.”

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Beach, 315 F.3d 1081, 1085 (9th Cir. 2002) (citation and

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quotation marks omitted).

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Grant v. City of Long

The complaint here shows the following facts as to

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Plaintiff’s behavior and Defendant Skogen’s knowledge at the time

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of arrest:

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Plaintiff suffered from a condition that caused

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“dizziness, unsteady gait, and lack of coordination[,]”

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Compl. ¶ 19;

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•

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Defendant Skogen was aware that Plaintiff had been
driving a U-Haul truck, see Compl. ¶ 23, 25;

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Defendant Skogen was aware that an off-duty officer had

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called to report a road rage incident involving

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Plaintiff’s U-Haul “where someone was brandishing a

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shotgun[,]” see Compl. ¶ 29;

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•

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Plaintiff admitted to Defendant Skogen that he “drank
only part of a beer about an hour ago[,]” Compl. ¶ 28;

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Plaintiff further admitted that while driving the

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truck, he had at one point gotten out of the truck,

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“grabbed a short bamboo tiki torch to be amusing and

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played the air guitar and a [sic] little dance in front

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of [another] vehicle[,]” Compl. ¶ 29; and

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Plaintiff failed to complete at least one field

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sobriety test because he could not tilt his head back,

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see Compl. ¶ 32.

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These facts are sufficient to establish probable cause for

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impaired driving.

Cf. Walker v. City of Post Falls, 2008 WL

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4997056, at *7 (D. Idaho May 21, 2008) (finding probable cause
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and rejecting false arrest claim where “[p]robation officers

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observed Plaintiff driving erratically and without his headlights

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on so they reported the possible DUI to the police and followed

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the Plaintiff.

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[plaintiff] to the responding officers as the driver of the car

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they had observed[,] [and] Plaintiff did not pass the field

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sobriety test . . . .”).

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innocent explanations for his behavior (i.e., that the supposed

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road rage was simply an amusing dance and that he could not tilt

The probation officers then identified

Although Plaintiff here offered

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his head back because of “strained muscles and bulging discs,”

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Compl. ¶¶ 29, 32), Skogen need not have credited those

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explanations.

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(2008) (“[A]n officer is not required to eliminate all innocent

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explanations for a suspicious set of facts to have probable cause

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to make an arrest.”).

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See Pennsylvania v. Dunlap, 555 U.S. 964, 964

Defendant is correct that the complaint establishes probable

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cause for Plaintiff’s arrest and any further attempt to amend

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these claims would be futile. Therefore, Plaintiff’s second,

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third, and sixth claims are dismissed with prejudice.

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the claims on this basis, the Court does not reach Defendants’

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qualified immunity argument.

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C.

Dismissing

Intentional Infliction of Emotional Distress (Seventh
Cause of Action)

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Defendants seek to dismiss Plaintiff’s seventh cause of

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action because their alleged behavior was not “extreme and

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outrageous” as required for a claim of intentional infliction of

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emotional distress.

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of the conduct alleged in the complaint is “so extreme as to

Mot. at 20.

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Defendants are correct.

None

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exceed all bounds of that usually tolerated in a civilized

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community.”

See Davidson v. City of Westminster, 32 Cal.3d 197,

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209 (1982).

The Court therefore dismisses the seventh cause of

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action without prejudice.

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D.

Monell Claims Based on Deliberate Indifference
(Eighth, Ninth, and Tenth Causes of Action)

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Defendants argue that the Court should dismiss those claims

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based on deliberate indifference because “merely being cold in a

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cell, absent further extenuating circumstances, is not sufficient

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to constitute an Eighth Amendment violation.”

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And absent an Eighth Amendment violation, Defendants contend,

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Plaintiff cannot state a Monell claim.

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Mot. at 19:5-6.

Id. at 17.

“A prison official violates the Eighth Amendment only when

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two requirements are met: (1) the deprivation alleged is,

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objectively, sufficiently serious; and (2) the prison official

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is, subjectively, deliberately indifferent to inmate safety.”

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Wood v. Hughes, 2007 U.S. Dist. LEXIS 97887, at *13 (N.D. Cal.

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Mar. 20, 2007) (citing Farmer v. Brennan, 511 U.S. 825, 834

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(1994)).

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deny[] the minimal civilized measure of life’s necessities[.]”

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Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quotation marks

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omitted).

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The objective prong is met “only [where] deprivations

The complaint here alleges that Plaintiff was “forced [] to

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sit or lie on a concret [sic] floor or narrow metal beach

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[sic][,]” causing “physical and mental pain” and “anxiety,” and

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that he “had no shoes and was only given a thin blanket” during

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his detention in a “very cold” cell for “over 12 hours[.]”

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Compl. ¶ 36.

Plaintiff also alleges that he was placed in
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another “extremely cold” cell for “over an hour” without a

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blanket, causing him to “shiver[] uncontrollably.”

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allegations are not “sufficiently grave to form the basis of an

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Eighth Amendment violation.”

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1130 (9th Cir. 1998) (“[A]lthough [plaintiff] complains about the

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temperature in his cell, the conditions in the Medical Center,

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and the conditions in the temporary holding cell, he has not

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shown that such circumstances ultimately deprived him of the

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‘minimal civilized measures of life’s necessities.’”) (quoting

Id.

These

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Hudson, 503 U.S. at 9).

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See Frost v. Agnos, 152 F.3d 1124,

deliberate indifference claim.

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Plaintiff therefore fails to plead a

Defendants are also correct that failure to state an Eight

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Amendment claim necessitates dismissal of Plaintiff’s Monell

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claims based on deliberate indifference.

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Riverside, 794 F.2d 1409, 1414 (9th Cir. 1986) (“[A]bsent any

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constitutional violations by the individual defendants, there can

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be no Monell liability.”); cf. City of Los Angeles v. Heller, 475

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U.S. 796, 799 (1986) (per curiam) (“If a person has suffered no

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constitutional injury at the hands of the individual police

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officer, the fact that the departmental regulations might have

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authorized the use of constitutionally excessive force is quite

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beside the point.”) (emphasis in original).

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dismisses Plaintiff’s eighth, ninth, and tenth causes of action

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without prejudice.

See Palmerin v. City of

The Court therefore

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E.

Defendants’ Remaining Arguments

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As described above, the Court dismisses each of Plaintiff’s

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causes of action except parts of Plaintiff’s ADA claim (fourth

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cause of action).

Plaintiff asserts the ADA claim only against
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Defendants County of Placer and Placer County Auburn Jail.

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Plaintiff has evidenced his intent to abandon his claims against

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the jail, so only the County of Placer remains as a Defendant.

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The Court therefore does not reach Defendants’ further arguments

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that Defendants Bonner, Hutchinson, and the jail are not properly

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named.

But

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III.

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For the reasons set forth above:

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ORDER

Defendants’ motion is GRANTED WITH PREJUDICE as to
Plaintiff’s second, third and sixth causes of action.

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Defendants’ motion is GRANTED WITH LEAVE TO AMEND the

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fourth cause of action to the extent it alleges that Defendants

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failed to accommodate his coldness.

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Defendants’ motion is GRANTED WITH LEAVE TO AMEND as to the

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seventh, eighth, ninth, and tenth causes of action in their

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entirety.

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The Court DENIES Defendants’ motion as to the remainder of
the fourth cause of action.

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Finally, the first, fifth, and eleventh claims have been

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dismissed pursuant to Plaintiff’s evidenced intent to abandon

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them.

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If Plaintiff chooses to amend his complaint, he must file

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such amended complaint within twenty (20) days from the date of

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this Order, otherwise the case will proceed only on the remainder

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of the fourth cause of action that was not dismissed. If an

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amended complaint is filed, Defendants’ responsive pleading is

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due within twenty (20) days thereafter. Plaintiff is cautioned
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that he may not include any claims that have been abandoned or

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dismissed with prejudice in an amended complaint.

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IT IS SO ORDERED.
Dated: April 16, 2015

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