M.B. v. State of California et al

Filing 43

ORDER signed by Senior Judge William B. Shubb on 8/23/2018 DISMISSING all claims against Baughman. The fourth claim for negligence is dismissed against CDCR. In all other respects, defendants' 33 Motion to Dismiss is DENIED. Plaintiffs have 20 days from the date this Order is signed to file a 4th Amended Complaint, if they can do so consistent with this Order. (York, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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M.B. III, a minor, by and
through his Guardian Ad Litem,
TITICE BEVERLY, individually and
as Successor in Interest and
Personal Representative of the
Estate of MILTON BEVERLY, JR.,

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No.

2:17-cv-2395 WBS DB

ORDER RE: MOTION TO DISMISS

Plaintiffs,
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,
DAVID BAUGHMAN, individually and
in his official capacity as
Warden of California State
Prison-Sacramento; Sergeant TODD
MANNES, individually and in his
official capacity as a
correctional officer and
supervisor at California State
Prison-Sacramento; KYLE MOHR,
individually and in his official
capacity as a correctional
officer at California State
Prison-Sacramento; ANDREW
BALLARD, individually and in his
official capacity as a
correctional officer at
California State PrisonSacramento, MICHAEL MUNROE,
individually and in his official
capacity as a correctional
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officer at California StatePrison Sacramento; STACY VUE,
individually and in her official
capacity as a correctional
officer at California State
Prison-Sacramento; and DOES 2,
3, 4, 5, and 10,

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Defendants.

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----oo0oo----

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Plaintiffs M.B. III, a minor, by and through his

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guardian ad litem, Titice Beverly, bring this action against

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defendants California Department of Corrections and

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Rehabilitation (“CDCR”), Warden of California State Prison-

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Sacramento David Baughman (“Warden” or “Baughman”), correctional

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officer and supervisor at California State Prison-Sacramento

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(“SAC”) Sergeant Todd Mannes, correctional officers at California

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State Prison-SAC Kyle Mohr, Andrew Ballard, and Stacy Vue arising

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from decedent Milton Beverly Jr.’s suicide while incarcerated at

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California State Prison-SAC.

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Baughman’s Motion to Dismiss portions of the Third Amended

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Complaint.

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I.

Before the court is CDCR’s and

(Docket No. 33).

Facts and Procedural Background
Milton Beverly Jr. (“decedent”) was convicted of

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various crimes.1

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31).)

(Third Am. Compl. (“TAC”) ¶ 22 (Docket No.

Prior to sentencing and while in the custody of the County

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Plaintiff M.B. III is the biological son, successor in
interest, and personal representative of the estate of his
father, decedent. Plaintiff Twyller Weary is the mother,
successor in interest, and personal representative of the estate
of her son, decedent.
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of Los Angeles, decedent attempted suicide.

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transferred to Vacaville Mental Health Facility where he was

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supervised with suicide precautions.

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subsequently transferred to North Kern Prison in Delano,

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California, where he again attempted suicide.

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Decedent was transferred from North Kern State Prison to a

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California Medical Facility where he was placed in an enhanced

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outpatient program for mental health care.

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2016, Decedent was then transferred to California State Prison-

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SAC.

(Id.)

(Id. ¶ 23.)

Decedent was

Decedent was

(Id. ¶ 24.)

(Id.)

On June 2,

(Id. ¶ 23.)

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Plaintiffs allege that while decedent was at

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California State Prison-SAC, decedent showed signs and symptoms

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of suicidal ideation and behavior.

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allege that in October of 2016, decedent’s sister attempted to

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reach California State Prison-SAC personnel by telephone and

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received no response.

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decedent’s sister notified California State Prison-SAC personnel

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that she feared decedent’s condition was getting worse.

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Plaintiffs allege that while at California State Prison-SAC,

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decedent was not provided with proper medical care, supervision,

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or suicide precautions.

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that the personnel assigned to perform periodic “cell checks” on

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decedent’s prison cell failed to perform these cell checks every

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hour, as required by prison policy or procedure.2

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Plaintiffs allege that written policy, procedure, and
practice require that corrections officers personally observe
inmates on a regular schedule and not less than once per hour,
and that suicidal inmates should be observed more frequently.
(Id.)

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(Id.)

(Id. ¶ 25.)

Plaintiffs

In a letter dated November 1, 2016,

(Id. ¶ 26.)

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(Id.)

Plaintiffs further allege

(Id.)

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Plaintiffs also allege that decedent was not prescribed or

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administered antidepressant medication.

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November 24, 2016, decedent committed suicide by asphyxiation.

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(Id. ¶ 27.)

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(Id. ¶ 29.)

On or about

On January 30, 2017 plaintiffs filed their First

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Amended Complaint alleging the following causes of action: (1) 42

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U.S.C. § 1983 claim for violating the Eighth and Fourteenth

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Amendments, against defendants the State of California, CDCR,

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Governor Edmund G. Brown Jr. (“Brown”), Secretary of the CDCR

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Scott Kernan (“Kernan”), and Baughman; (2) Monell claim under 42

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U.S.C. § 1983, against defendants Brown, Kernan, Baughman; (3) 42

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U.S.C. § 1983 claim for negligent hiring and failure to train and

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supervise, against defendant CDCR and defendants Brown, Kernan,

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and Baughman; (4) negligence against all defendants; (5)

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violation of California Government Code §§ 844.6 and 845.6,

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against all defendants for failure to summon medical care; (6)

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violation of California Civil Code §§ 51 and 52.1, the California

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Unruh Act and Bane Act, against all defendants; (7) violation of

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42 U.S.C. §§ 12101, et. seq., the Americans with Disabilities Act

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(“ADA”), against all defendants; and (8) violation of 29 U.S.C. §

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794, the Rehabilitation Act (“Rehab Act”), against all

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defendants.

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The court granted in part defendant Baughman, Brown,

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CDCR, Kernan’s Motion to Dismiss Portions of the First Amended

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Complaint.

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claims: (1) all claims against defendant Brown; (2) the fourth,

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fifth, sixth, seventh, and eighth claims against defendants

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Kernan and Baughman; (3) the third, fourth, and sixth claims

(Docket No. 19.)

The court dismissed the following

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against CDCR; (4) the fourth and sixth claims against the State

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of California; (5) the claims for injunctive relief; and (6) the

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claim for punitive damages.

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Motion to Dismiss was denied.

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leave to amend to file an amended complaint.

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In all other respects, defendants’
The court permitted plaintiffs

On June 6, 2018, plaintiffs filed a Third Amended

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Complaint alleging the following causes of action: (1) 42 U.S.C.

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§ 1983 claim for violating the Eighth and Fourteenth Amendments,

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against defendants Baughman, Manes, Mohr, Ballard, Munroe, and

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Vue; (2) supervisory liability based on customs, policies, and

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procedures under 42 U.S.C § 1983, against Baughman and Manes; (3)

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supervisory liability for negligent hiring and failure to train

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and supervise under 42 U.S.C § 1983, against Baughman and Manes;

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(4) negligence against all defendants; (5) violation of

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California Government Code §§ 844.6 and 845.6, against all

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defendants for failure to summon medical care.3

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II.

Legal Standard

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On a Rule 12(b)(6) motion, the inquiry before the court

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is whether, accepting the allegations in the complaint as true

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and drawing all reasonable inferences in the plaintiff’s favor,

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the plaintiff has stated a claim to relief that is plausible on

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its face.

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plausibility standard is not akin to a ‘probability requirement,’

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but it asks for more than a sheer possibility that a defendant

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has acted unlawfully.”

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See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Id.

“A claim has facial plausibility

Plaintiffs no longer allege assert claims under the
ADA, the Rehab Act, the Bane Act, or the Unruh Act.
Additionally, plaintiffs no longer seek injunctive relief or
punitive damages.
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“The

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when the plaintiff pleads factual content that allows the court

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to draw the reasonable inference that the defendant is liable for

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the misconduct alleged.”

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plaintiff will ultimately prevail but whether the claimant is

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entitled to offer evidence to support the claims.”

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Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974)).

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III. Discussion

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Id.

“The issue is not whether a

Jackson v.

Defendants CDCR and Baughman move to dismiss all claims

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asserted against them in plaintiffs’ Third Amended Complaint on

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the following grounds: plaintiffs fail to allege sufficient facts

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to state a section 1983 claim against Baughman; (2) plaintiffs’

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state law claims against defendants, except for failure to summon

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medical care against CDCR, are barred for failure to file a

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timely and proper government claim; (3) plaintiffs’ state law

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claims fail to allege sufficient facts to state cognizable

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claims; (4) Baughman is entitled to qualified immunity on

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plaintiffs’ federal causes of action; (5) CDCR and Baughman are

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entitled to Eleventh Amendment immunity; and (6) plaintiffs’

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state law claims are barred by statutory immunities.

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A.

Section 1983 claims against Baughman

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Plaintiffs allege Baughman is liable both as an

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individual and as a supervisor for acting with deliberate

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indifference towards the decedent’s serious medical needs and

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safety.4

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The court notes that “state officers named in their
official capacities are immune from suits for damages in federal
court (for federal or state law claims) under the doctrine of
state sovereign immunity and the Eleventh Amendment, and are not
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1. First Claim: Individual Liability

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To state a claim under 42 U.S.C. § 1983 for a violation

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of the Eighth Amendment based on inadequate medical care, “a

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prisoner must allege acts or omissions sufficiently harmful to

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evidence deliberate indifference to serious medical needs.”

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Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotations

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omitted).

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a serious medical need.”

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1095 (9th Cir. 2010), cert. granted, judgment vacated sub nom.

“A heightened suicide risk or an attempted suicide is
Conn v. City of Reno, 591 F.3d 1081,

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City of Reno, Nev. v. Conn, 563 U.S. 915 (2011), and opinion

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reinstated, 658 F.3d 897 (9th Cir. 2011).

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indifferent, “[a] defendant must purposefully ignore or fail to

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respond to a prisoner’s pain or possible medical need.”

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v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992), overruled on other

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grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.

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1997).

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the inference could be drawn that a substantial risk of serious

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harm exists, and he must also draw the inference.”

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Brennan, 511 U.S. 825, 837 (1994).

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To be deliberately

McGuckin

“[T]he official must both be aware of facts from which

Farmer v.

The Third Amended Complaint alleges that defendants

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knew or had reason to know of the need for intensive medical care

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for decedent because of decedent’s prior suicide attempts while

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in custody, including one which occurred while decedent was in

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‘persons’ subject to suit under 42 U.S.C. § 1983 (in federal or
state court).” Silverbrand v. Woodford, No. 06-cv-3253-R(CW),
2010 WL 3635780, at *4 (C.D. Cal. Aug. 18, 2010) (citing Hafer v.
Melo, 502 U.S. 21, 25 (1991)). Therefore, Baughman is not liable
and the court dismisses the section 1983 claims against him in
his official capacity. The court proceeds with plaintiffs’
claims against Baughman in his individual capacity.
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custody at a CDCR facility, his participation in the Mental

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Health Service Delivery System, and his past placement in a

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segregated unit.

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that decedent’s sister notified California State Prison-SAC in

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writing that she feared decedent’s condition was getting worse.

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(Id. ¶ 25.)

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provided with reports concerning the treatment of mentally ill

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inmates, jail suicides, and violations involving housing, care,

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mental healthcare, and treatment of inmates at California State

(TAC ¶¶ 28, 44, 77.)

Plaintiffs further allege

Plaintiffs claim that Baughman was regularly

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Prison-SAC. (Id. ¶ 9).

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defendants had ongoing knowledge of California’s prison system’s

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failure to provide medical care to the mentally ill.

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Further, plaintiffs allege that

(Id. ¶ 16.)

Under section 1983, plaintiffs must demonstrate that

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each named defendant personally participated in the deprivation

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of his rights.

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Cir. 2012).

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or should have known” but contain no facts regarding what

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Baughman specifically knew or should have known as compared to

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other defendants.

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places [] tying its factual allegations to particular

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defendants.”

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regarding how Baughman would have learned about decedent’s

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previous suicide attempts or past placements.

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plaintiffs do not allege that information about decedent was

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contained in the records Baughman was provided with, nor do they

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allege that Baughman personally learned about the decedent’s

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sister’s communications with the prison.

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simply rely on the fact that Baughman was the warden at the

See Henry A. v. Willden, 678 F.3d 991, 1005 (9th

Here, plaintiffs’ allegations state “defendants knew

Id.

Thus, “the complaint falls short in some

Furthermore, there are no allegations

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Moreover,

Plaintiffs cannot

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prison, and argue that because of his position Baughman was aware

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or should have been aware that decedent was suicidal.

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v. Davis, 572 F. App’x 611, 618 (10th Cir. 2014) (“[I]t is not

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plausible to infer that a warden is aware of everything that

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happens to each inmate in his custody.”); Sullivan v. Biter, No.

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1:15-cv-243 DAD SAB, 2017 WL 1540256, at *1 (E.D. Cal. Apr. 28,

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2017) (“Conclusory allegations that various prison officials knew

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or should have known about constitutional violations occurring

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against plaintiff simply because of their general supervisory

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See Vega

role are insufficient to state a claim under 42 U.S.C. § 1983.”).

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Thus, plaintiffs’ allegations are insufficient because

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there are no facts to show that Baughman was aware of decedent’s

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specific medical needs or to establish how he was personally

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involved in the constitutional deprivation.

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court will dismiss plaintiffs’ first cause of action against

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Baughman.

Accordingly, the

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2. Second and Third Claims: Supervisory Liability

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Plaintiffs purport to hold Baughman liable under a

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theory of supervisory liability for promulgating or failing to

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promulgate proper polices, practices and customs and negligently

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hiring and failing to train and supervise his subordinates.

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A supervisor may be held liable under section 1983 “if

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there exists either (1) his or her personal involvement in the

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constitutional deprivation, or (2) a sufficient causal connection

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between the supervisor’s wrongful conduct and the constitutional

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violation.”

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

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be liable, the supervisor’s participation could include his “own

Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)

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To

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culpable action or inaction in the training, supervision, or

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control of his subordinates, his acquiescence in the

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constitutional deprivations of which the complaint is made, or

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conduct that showed a reckless or callous indifference to the

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rights of others.”

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Angeles, 946 F.2d 630 (9th Cir. 1991)).

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liable for constitutional violations of his subordinates if the

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supervisor participated in or directed the violations, or knew of

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the violations and failed to act to prevent them.

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Id. at 1205–06 (citing Larez v. City of Los
“A supervisor is only

Taylor v.

List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Here, plaintiffs allege that Baughman’s affirmative

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conduct involves his knowing failure to ensure enforcement of the

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specific policies, rules, or directives that applied to decedent,

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which set in motion a series of acts that Baughman knew or

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reasonably should have known would cause others to inflict

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constitutional injuries on decedent.

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allege that Baughman failed to enforce numerous policies and

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practices, including the policy that required correctional

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officers to personally observe inmates on a regular schedule and

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not less than once per hour, with suicidal inmates observed more

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frequently.

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that policy, plaintiffs allege that decedent was unsupervised for

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more than three hours, a period of time long enough for decedent

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to commit suicide.

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individuals who monitored decedent were not properly trained or

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supervised as to provide the immediate medical care that was

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necessary to save decedent’s life.

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(Id. ¶ 26.)

(TAC ¶ 11.)

Plaintiffs

As a result of the failure to enforce

(Id. ¶ 27.)

Plaintiffs also allege that

(TAC ¶ 80.)

Here, for the same reasons as previously stated, there
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are no facts to show that Baughman was aware of decedent’s

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specific medical needs.

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to establish that Baughman directed, participated in, or knew

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that his subordinates were not following prison policy or that

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his subordinates were deliberately indifferent to decedent’s

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medical needs.

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failure to train or supervise his subordinates caused the delay

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in response to the incident is conclusory and fails to allege

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either his personal involvement or a sufficient causal connection

Furthermore, there are no specific facts

Moreover, plaintiffs’ assertion that Baughman’s

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between Baughman’s alleged conduct--failure to train or

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supervise--and the alleged constitutional deprivation--inadequate

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medical care.

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Accordingly, the court will grant defendants’ Motion to

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dismiss plaintiffs’ second and third causes of action as alleged

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against defendant Baughman.5

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B.

State Law Claims

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1.

California Government Tort Claims Act

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Defendants allege that plaintiffs’ state law claims

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against defendants, except failure to summon medical care against

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CDCR, are barred for failure to comply with the California

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Government Claims Act.

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Under the Government Claims Act, no suit for money or

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damages may be brought against a public entity on a cause of

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action for which a claim (“government claim”) satisfying

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California Government Code § 910 has been submitted and denied.

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Because plaintiffs have not sufficiently alleged that
Baughman violated a constitutional right, the court need not
decide whether Baughman is entitled to qualified immunity on
plaintiffs’ federal claims.
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Cal. Gov’t Code § 945.5; Blair v. Superior Court, 218 Cal. App.

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3d 221, 224 (3d Dist. 1990).

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government claim include, among other requirements, “the date,

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place, and other circumstances of the occurrence or transaction

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which gave rise to the claim asserted” as well as “[a] general

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description of the indebtedness, obligation, injury, damage or

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loss incurred so far as it may be known at the time of

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presentation of the claim.”

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claimant is also required to identify “the name or names of the

Section 910 requires that the

Cal. Gov’t Code § 910(c), (d).

The

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public employee or employees causing the injury, damage, or loss,

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if known.”

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Claims Act is an element of the cause of action, is required, and

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failure to file a claim is fatal to a cause of action.”

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Livingston v. Sanchez, No. 1:10-cv-1152 LJO, 2012 WL 3288177, at

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*2 (E.D. Cal. Aug. 10, 2012) (internal quotations and citations

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omitted).

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Cal. Gov’t Code § 910(e).

“Compliance with the []

“Where a submitted claim is deficient in some way, but

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the claim substantially complies with all of the statutory

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requirements, the doctrine of ‘substantial compliance’ in some

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cases may validate the deficient claim.”

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v. County of Fresno, 815 F. Supp. 2d 1123, 1133 (E.D. Cal. 2011)

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(Ishii, J.) (citing Sparks v. Kern Cty. Bd. of Supervisors, 173

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Cal. App. 4th 794, 800 (5th Dist. 2009)). “However, the doctrine

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of substantial compliance cannot cure the ‘total omission of an

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essential element from the claim, or remedy a plaintiff’s failure

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to comply meaningfully with the statute.’”

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omitted).

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entity sufficient information to enable it to adequately

Gen. Sec. Servs. Corp.

Id. (citations

The purpose of section 910 is “to provide the public

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investigate claims and to settle them, if appropriate, without

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the expense of litigation.”

City of San Jose v. Superior Court,

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12 Cal. 3d 447, 455 (1974).

“[T]he statute should not be applied

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to snare the unwary where its purpose is satisfied.”

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Servs. Corp., 815 F. Supp. 2d at 1133.

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Gen. Sec.

Here, plaintiffs filed a timely government claim with

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the State as required under section 910.6

Defendants assert that

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plaintiffs did not comply with the Government Claims Act because

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plaintiffs’ government claim did not name Baughman, and the

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government claim alleges acts and omissions by “personnel at

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Folsom State Prison.”

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not mention Baughman or California State Prison-SAC, it does

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purport to bring claims against CDCR and the personnel at the

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prison where the suicide occurred.7

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Claims Act does not require the claimant to name each defendant;

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instead, the statute requires plaintiffs to name individual

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public employees “if known.”

While plaintiffs’ government claim does

Regardless, the Government

Cal. Gov’t Code § 910(e).

Thus,

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The court takes judicial notice of plaintiffs’
government claim. See Moore v. City of Vallejo, 73 F. Supp. 3d
1253, 1256 (E.D. Cal. 2014) (Mendez, J.) (taking judicial notice
of government tort claim because “[s]uch a document is a matter
of public record and is necessarily relied on by Plaintiffs in
bringing their state law claims.”).
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Plaintiffs initially believed decedent committed
suicide at Folsom State Prison because the Sacramento County
Coroner’s Report listed the decedent’s place of death as “Folsom
State Prison”. (Pls.’ Opp’n at 4-5 (Docket No. 36).) Plaintiffs
originally relied on the coroner’s report in drafting the
government claim, and later learned that the decedent committed
suicide at California State Prison-SAC. (Id.) The court notes
that the California State Prison-SAC is a state prison located in
Folsom. The facility is adjacent to Folsom State Prison, and
both prisons are located on the same road.
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plaintiffs’ failure to name certain defendants in their

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government claim, where those defendants were later named in the

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Complaint, does not require dismissal of those state law claims

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under the Government Claims Act.

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Defendants also argue that the government claim does

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not comply with the Government Claims Act because the government

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claim did not give defendants any reason to investigate negligent

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conduct, specifically a failure to train or supervise.

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Mem. P. & A. at 10 (Docket No. 33-1).)

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(Defs.’

Here, plaintiffs’ government claim states that while

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incarcerated at Folsom State Prison, “decedent was showing signs

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and symptoms of suicidal ideation and behavior” and that

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“decedent was not provided with proper medical and supervisory

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care, and appropriate precautions,” which lead to decedent’s

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suicide.

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33-2).)

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employees of the State of California failed in their statutory

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duties under [] California . . . law.”

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government claim alleges that “the State of California and its

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employees knew and/or had reason to know that decedent was in

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immediate need of medical and other supervisory care yet . . .

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failed to take reasonable action to summon such care in order to

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protect against decedent’s attempted suicide.”

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(Defs.’ Req. for Judicial Notice (“RJN”) (Docket No.
Moreover, plaintiffs contend “that the agents and

(Id.)

Lastly, the

(Id. at 8.)

These allegations in the government claim provide the

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public entity with sufficient information to enable it to conduct

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an adequate investigation.

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455.

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additional theories of liability not listed in the government

See City of San Jose, 12 Cal. 3d at

Moreover, while the Third Amended Complaint may contain

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1

claim, those theories are based on the same factual foundation as

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those in the government claim.

3

F. Supp. 2d at 1134 (quoting Dixon v. City of Livermore, 127 Cal.

4

App. 4th 32, 40, 42 (2005)) (“[I]t is permissible to plead

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additional theories where the ‘additional theories [are] based on

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the same factual foundation as those in the claim.’”).

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government claim put defendants on notice to investigate whether

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CDCR, its agents, and employees followed proper precautions to

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protect against decedent’s suicide attempt, including failing to

See Gen. Sec. Servs. Corp., 815

Thus, the

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train or supervise their employees.

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225 Cal. App. 3d 1505, 1511 (1st Dist. 1990) (finding that

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failure of plaintiff to mention in government claim against city

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and county any alleged problems in hiring, training, retention,

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and supervision of officer did not bar plaintiff from asserting

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such allegations in plaintiff’s complaint where plaintiff’s

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complaint and her government claim were predicated on the same

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fundamental facts concerning the officer’s conduct).

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See White v. Superior Court,

Because the court finds that plaintiffs’ government

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claim substantially complies with the Government Claims Act, the

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court will deny defendants’ Motion to Dismiss as to plaintiffs’

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state law claims for failure to comply with the Government Claims

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Act.

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2.

Fourth Claim: Negligence/Wrongful Death

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a.

Claim against CDCR

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Plaintiffs concede that the negligence cause of action

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against defendant CDCR should be dismissed.

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court will dismiss plaintiffs’ fourth cause of action for

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negligence asserted against CDCR.
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Accordingly, the

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b.

Claim against Baughman

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To state a claim for negligence, plaintiffs must

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allege: (1) a legal duty to use reasonable care, (2) breach of

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that duty, (3) proximate cause between the breach and (4) the

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plaintiff’s injury.

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4th 1333, 1339, (2d Dist. 1998).

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has a special relationship with a prisoner that creates a duty of

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care.

9

*15 (E.D. Cal. Aug. 6, 2013) (citing Lawson v. Superior Court,

Mendoza v. City of Los Angeles, 66 Cal. App.
Under California law, a jailer

Love v. Salinas, No. 2:11-cv-361-MCE, 2013 WL 4012748, at

10

180 Cal. App. 4th 1372, 1389–90 (4th Dist. 2010); Giraldo v.

11

Dep’t of Corr. & Rehab., 168 Cal. App. 4th 231, 240 (1st Dist.

12

2008)).

13

responsible for a detainee’s injuries if the deputy’s actions or

14

inaction are the moving force behind a series of events that

15

ultimately lead to a foreseeable harm being suffered, even if

16

other intervening causes contribute to the harm.”

17

County of Kern, No. 1:14-cv-1099 DAD JLT, 2017 WL 915294, at *14

18

(E.D. Cal. Mar. 7, 2017) (citing cases).

19

Thus, for example, “[a] deputy may be held legally

Campos v.

Here, plaintiffs allege that Baughman had a number of

20

duties to decedent including, but not limited to, a duty to

21

render access and delivery of mental and medical care, treatment,

22

and emergency services to decedent.

23

allege Baughman had a duty to ensure the competence of his

24

employees, to observe, report and monitor decedent, and to train,

25

supervise, and instruct his subordinates.

26

Plaintiffs allege that Baughman breached his duties, and as a

27

direct result of the breach of his duty of care to decedent,

28

plaintiffs have suffered damage.
16

(TAC ¶ 68.)

Plaintiffs also

(Id. ¶ 70.)

(Id. ¶ 68-71.)

1

At oral argument, plaintiffs’ counsel argued that

2

Baughman had a duty to ensure inmates are adequately supervised,

3

and that prison employees follow all protocols, policies, and

4

procedures.

5

did not supervise decedent as required by policy on the night

6

decedent committed suicide, Baughman, as warden, was liable for

7

negligence.

8

may be liable for any harm that results from the negligence of

9

prison employees.

Plaintiffs’ counsel argued that because an employee

Plaintiffs’ counsel went on to argue that the warden

To so hold would amount to a finding of strict

10

liability for all actionable conduct that occurs in the prison.

11

That is not the law.

12

was not an ensurer of the safety of every inmate.

13

As the warden of a large prison, Baughman

Under California Government Code section 820.8,

14

“[e]xcept as otherwise provided by statute, a public employee is

15

not liable for an injury caused by the act or omission of another

16

person.”

17

proximately caused by his own negligent or wrongful act or

18

omission.

19

is not alleged may not be held responsible for the acts of their

20

subordinates under California law.”

21

1158, 1159 (9th Cir. 1975) (holding that under California law,

22

including section 820.8, a prison director, warden, and associate

23

warden could not be held vicariously liable for the actions of

24

their subordinates).

25

liable based solely on his supervisory role as warden of

26

California State Prison-SAC.

27

sufficient facts to allege that Baughman’s own acts as a

28

supervisor proximately caused the injury.

However, a public employee is liable for injury

Id.

“Supervisory personnel whose personal involvement

Milton v. Nelson, 527 F.2d

Thus, plaintiffs cannot hold Baughman

Rather, plaintiffs must allege

17

See Johnson v. Baca,

1

No. 1:30-cv-4496 MMMA JWX, 2014 WL 12588641, at *17 (C.D. Cal.

2

Mar. 3, 2014) (denying defendants’ motion to dismiss because

3

plaintiff alleged facts that, if proved, would give rise to

4

liability for injury proximately caused by the Sheriff’s own

5

negligent or wrongful act or omission).

6

Furthermore, as previously discussed, “there is nothing

7

from which the court could plausibly infer that defendant

8

[Baughman] was aware of [decedent]’s need for medical attention

9

and failed to respond appropriately to it.”

Lapachet v.

10

California Forensic Med. Grp., Inc., No 1:17-cv-1226 DAD EPG,

11

2018 WL 2564398, at *10 (E.D. Cal. June 1, 2018).

12

any facts from which the court could infer that Baughman was

13

aware of or did not adequately investigate his subordinates’

14

alleged failure to monitor and supervise inmates such as

15

decedent.

16

Baughman allegedly took or failed to take that constituted a

17

breach of duty that he owed to decedent.

18

without sufficient facts regarding Baughman’s knowledge that

19

decedent was suicidal or that his subordinates failed to

20

adequately monitor, supervise, or treat decedent, plaintiffs have

21

not sufficiently alleged that Baughman’s action or inaction

22

created a foreseeable harm.

23

Angeles, 143 Cal. App. 3d 298, 307–08 (2d Dist. 1983) (“The most

24

important policy consideration is the foreseeability of the harm:

25

as a general principle a defendant owes a duty of care to all

26

persons who are foreseeably endangered by his conduct, with

27

respect to all risks which make the conduct unreasonably

28

dangerous.”)

Nor are there

Thus, the court is unable to discern what actions

See id.

Moreover,

See Johnson v. County of Los

Accordingly, plaintiffs’ negligence claim against
18

1
2

Baughman will be dismissed.
3.

3

Fifth Claim: Failure to Summon Medical Care
Finally, defendants move to dismiss plaintiffs’ failure

4

to summon medical care under California Government Code Section

5

845.6 against both CDCR and Baughman.8

6

Section 845.6 provides that “a public employee, and the

7

public entity where the employee is acting within the scope of

8

his employment, is liable if the employee knows or has reason to

9

know that the prisoner is in need of immediate medical care and

10

he fails to take reasonable action to summon such medical care.”

11

Cal. Gov’t Code § 845.6.

12

medical care for prisoners to cases where there is actual or

13

constructive knowledge that the prisoner is in need of immediate

14

medical care.”

15

plaintiffs must establish that: “(1) the public employee knew or

16

had reason to know of the need (2) for immediate medical care,

17

and (3) failed to reasonably summon such care.”

18

439 F.3d 1091, 1099 (9th Cir. 2006).

19

serious and obvious medical condition requiring immediate care.”

20

Defendants argue that section 845.6 immunizes public
employees for injuries caused by the failure of the employee to
furnish medical care for a prisoner. Section 845.6 states that
“[n]either a public entity nor a public employee is liable for
injury proximately caused by the failure of the employee to
furnish or obtain medical care for a prisoner in his custody.”
However, a public employee and the entity “is liable if the
employee knew 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 care.” Thus, defendants cannot claim immunity for
plaintiffs’ fifth cause of action for failure to summon medical
care. See Castaneda v. Dep’t of Corr. & Rehab., 212 Cal. App.
4th 1051, 1071 (2d. Dist. 2013) (“[T]he duty to summon is
presented as the exception to the broad, general immunity for
failing to furnish or provide medical care.”)”
19

21
22
23
24
25
26
27
28

8

Id.

The section “limits the duty to provide

To state a claim under section 845.6,

Jett v. Penner,

“A suicidal state is a

1

Johnson v. Baca, No. 13-cv-4496 MMM AJWX, 2014 WL 12588641, at

2

*18 (C.D. Cal. Mar. 3, 2014) (citing Johnson, 143 Cal. App. 3d at

3

316–17)).

4

A.

5

Against Baughman
Here, plaintiffs allege that defendants knew or had

6

reason to know of the need for intensive medical care for

7

decedent because of his recent prior suicide attempts while in

8

custody, his participation in the Mental Health Service Delivery

9

System, and the records available to and generated by CDCR

10

indicating that decedent was an immediate threat to his safety.

11

(TAC ¶ 78.)

12

provide immediate medical care in the form of adequate

13

monitoring9 and mental health care proximately caused decedent’s

14

suicide.

15

discussed, plaintiffs have not sufficiently alleged that Baughman

16

personally knew or had reason to know of decedent’s need for

17

immediate medical need.

18

defendants’ motion to dismiss plaintiffs’ failure to summon

19

medical care under section 845.6 against Baughman.

20

B.

Thus, plaintiffs allege that defendants’ failure to

(Id. ¶ 76.)

For the same reasons as previously

Accordingly, the court will grant

Against CDCR

21
22
23
24
25
26
27

California courts hold that the failure to prescribe
necessary medication or, once summoned to provide treatment, to
ensure proper diagnosis, or to monitor the progress of an inmate
that the public employee has been summoned to assist, are issues
relating to the manner in which medical care is provided, and do
not subject the State to liability under section 845.6 for
failure to summon. Castaneda, 212 Cal. App. 4th at 1074. Thus,
to the extent that plaintiffs allege defendants provided
healthcare, monitoring, and treatment to decedent, but that care
was not adequate, plaintiffs do not state a claim under section
845.6.
9

28
20

1

“Under the doctrine of respondeat superior, an employer

2

may be held vicariously liable for torts committed by an employee

3

within the scope of employment.”

4

54 Cal. 3d 202, 208 (1991).

5

815.2 provides that, unless the employee is immune from

6

liability, public entities are liable for injury proximately

7

caused by an act or omission of an employee of the public entity

8

within the scope of his employment if the act or omission would .

9

. . have given rise to a cause of action against that employee or

Mary M. v. City of Los Angeles,

“California Government Code section

10

his personal representative.”

11

No. 1:18-cv-804 DAD SAB, 2018 WL 3655434, at *6 (E.D. Cal. July

12

31, 2018) (Boone, J.) (citing Cal. Gov’t Code § 815.2(a)).

13

“CDCR may be liable for its employee’s failure to summon

14

immediate medical care to a prisoner under Section 845.6.”

15

2013 WL 4012748, at *14.10

16
17
18
19
20
21
22
23
24
25
26
27
28

Bulgara v. County of Stanislaus,

Thus,

Love,

Here, plaintiffs allege that while decedent was at
California State Prison-SAC he showed signs and symptoms of
Defendants assert that CDCR is immune from suit under
the Eleventh Amendment. The Eleventh Amendment states “[t]he
Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.” U.S. Const.
amend. XI. To overcome the Eleventh Amendment bar, either the
State must have consented to waive its sovereign immunity or
Congress must have abrogated it; moreover, the State’s consent or
Congress’ intent must be “unequivocally expressed.” Phillips v.
Cty. of Fresno, No. 1:13-CV-0538 AWI BAM, 2014 WL 12768165, at *3
(E.D. Cal. May 14, 2014) (citing Pennhurst Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99–100 (1984)). As previously stated,
Section 845.6 permits suit against CDCR if an “employee knows or
has reason to know that the prisoner is in need of immediate
medical care.” Thus, the Eleventh Amendment does not bar
plaintiffs’ failure to summon medical care claim against CDCR.
See id.
21
10

1

suicidal ideation and behavior.

2

allege that decedent’s sister notified California State Prison-

3

SAC in writing that she feared decedent’s condition was getting

4

worse.

5

monitored, supervised, treated, and administered decedent as an

6

inmate and who reported to the chain of command were in a

7

position to know of decedent’s need for medical care.

8

78.)

9

State Prison-SAC knew and failed to provide antidepressant

(Id.)

(TAC ¶ 25.)

Plaintiffs also

Plaintiffs further claim that individuals who

(Id. ¶

Moreover, plaintiffs claim that the staff at California

10

medication or other therapies and interventions indicated by the

11

patient’s medical history.

12

(Id. ¶ 80.)

Plaintiffs do not have to rely on the actions or

13

inactions of Baughman to state a claim against CDCR.

14

plaintiffs need only allege that a CDCR employee had actual or

15

constructive knowledge of decedent’s need for immediate medical

16

care, and failed to summon immediate medical care.

17

2013 WL 4012748, at *14 (denying summary judgment with respect to

18

plaintiff’s section 845.6 claim against CDCR where plaintiff

19

presented evidence that correctional officer failed to summon

20

immediate medical care to prisoner); Gillian v. CDCR, No. 1:15-

21

CV-37 MJS, 2015 WL 1916417, at *7 (E.D. Cal. Apr. 27, 2015)

22

(finding plaintiff alleged sufficient cause of action against

23

CDCR where plaintiffs sufficiently alleged a state cause of

24

action against defendant CDCR employees or agents that were

25

acting within the scope of their agency or employment).

26

plaintiffs allege that CDCR employees were notified of decedent’s

27

sister’s concerns, witnessed decedent showing signs and symptoms

28

of suicidal ideation, and failed to provide interventions as
22

Instead,

See Love,

Here,

1

outlined in decedent’s medical records.

2

allegations, the court finds that plaintiffs have sufficiently

3

alleged that CDCR employees had actual or constructive knowledge

4

of decedent’s need for immediate medical care, and failed to

5

summon immediate medical care.

6

sufficiently alleged a section 845.6 claim against an employee of

7

CDCR, plaintiffs have sufficiently alleged a section 845.6 claim

8

against CDCR.

9

Given the foregoing

Thus, because plaintiffs have

Accordingly, the court will deny defendants’ motion to

10

dismiss plaintiffs’ claim against CDCR for failure to summon

11

medical care.

12

IT IS THEREFORE ORDERED that:

13

1.

All claims against Baughman are dismissed.

14

2.

The fourth claim for negligence is dismissed

15

against CDCR.

16

3.

17

In all other respects, defendants’ Motion to
Dismiss is denied.

18

Plaintiffs have twenty days from the date this Order is

19

signed to file a Fourth Amended Complaint, if they can do so

20

consistent with this Order.

21

Dated:

August 23, 2018

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27
28
23