M.B. v. State of California et al

Filing 55

ORDER re 45 Motion for Reconsideration and 48 Motion to Dismiss signed by Senior Judge William B. Shubb on 10/16/2018: IT IS ORDERED that CDCR's Motion for Reconsideration 45 be, and the same hereby is, GRANTED. The Fifth Cause of Acti on against CDCR is DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that individual defendants' Motion to Dismiss 48 be, and the same hereby is, GRANTED. All claims against defendants Manes, Mohr, Munroe, Vue, and Ballard are dismissed. Plaintiffs have twenty days from the date this Order is signed to file a Fourth Amended Complaint, if they can do so consistent with this Order. (Kirksey Smith, K)

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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 FOR
RECONSIDERATION & 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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Before this court is a motion for reconsideration

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(Docket No. 45) brought by defendant California Department of

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Corrections and Rehabilitation (“CDCR”) and a motion to dismiss

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(Docket No. 48) brought by defendants Todd Manes, Kyle Mohr,

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Andrew Ballard, Michael Munroe, and Stacy Vue (“individual

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defendants”).

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I.

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Motion for Reconsideration
In its prior order (Docket No. 43) on a motion to

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dismiss brought by defendants David Baughman and CDCR, the court

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previously described the parties and the factual and procedural

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background to this lawsuit.

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motion to dismiss as to plaintiff’s claim for the failure to

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summon medical care claim, California Government Code §§ 844.6

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and 845.6, against CDCR.

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In that order, the court denied the

Upon reconsideration, the court grants CDCR’s motion

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and will dismiss the claim for the failure to summon medical care

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against CDCR.

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(9th Cir. 1978) (holding that the California did not waive its

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Eleventh Amendment immunity in federal court by enacting the

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California Tort Claims Act); Allen v. Cal. Dep’t of Corr. &

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Rehab., No. 1:09-cv-0767 AWI GSA, 2009 WL 4163510, at *3 (E.D.

See Riggle v. State of Cal., 577 F.2d 579, 585

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Cal. Nov. 23, 2009), adopted by No. 1:09-cv-0767 AWI GSA, 2009 WL

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5197855 (E.D. Cal. Dec. 23, 2009) (finding that CDCR was immune

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under the Eleventh Amendment to a pendent state law claim under

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California Government Code § 845.6).

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Elsinore Unified Sch. Dist., 93 Cal. App. 4th 1098, 1103 (4th

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Dist. 2000) (“Tort actions may be brought against the state or

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its agencies in state court under the California Tort Claims Act

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(Gov. Code, § 810 et seq.) but may not be brought in federal

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court, because the consent to suit contained in the act (Gov.

See also Kirchmann v. Lake

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Code, § 945) is not a waiver of Eleventh Amendment immunity.”).

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II.

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Motion to Dismiss
A.

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Legal Standard
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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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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B.

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

Id.

“The

“A claim has facial plausibility

Id.

Discussion
Individual defendants now seek to dismiss all claims

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against them on the following grounds: (1) plaintiffs fail to

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allege sufficient facts to state a 42 U.S.C. § 1983 claim against

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the individual defendants; (2) plaintiffs’ state law claims fail
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to allege sufficient facts to state cognizable claims; (3) the

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individual defendants are entitled to qualified immunity on

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plaintiffs’ federal cause of action; (4) the individual

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defendants in their official capacities are entitled to Eleventh

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Amendment immunity; and (5) plaintiffs’ state law claims are

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barred by statutory immunities.
1. Section 1983 Claims Against the Individual
Defendants

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Plaintiffs allege that the individual defendants are

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liable for acting with deliberate indifference toward decedent’s

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serious medical needs and safety.

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defendant Manes is liable as a supervisor.

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Plaintiffs also allege that

a. 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.

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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.

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

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To be deliberately

McGuckin

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

Farmer v.

The Third Amended Complaint (“TAC”) alleges that

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

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intensive medical care because of his prior suicide attempts

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while in custody, including one which occurred while decedent was

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in 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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either charged with supervising and/or monitoring the area in

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which decedent was housed on the day of his death and failed to

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perform periodic “cell checks” on decedent’s prison cell as

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required by prison policy or procedure.1

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Further, plaintiffs allege that defendants had ongoing knowledge

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of California’s prison system’s failure to provide medical care

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to the mentally ill.

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(TAC ¶¶ 28, 44, 77.)

Plaintiffs further allege

Plaintiffs claim that each individual defendant was

(Id. ¶¶ 13–16, 26.)

(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 decedent’s rights.

See Henry A. v. Willden, 678 F.3d 991,

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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. ¶ 26.)
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1005 (9th Cir. 2012).

The court previously found that the TAC

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did not allege any facts about what defendant Baughman

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specifically knew or should have known.

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Dismiss at 8.)

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each individual defendant specifically knew or should have known

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as compared to other defendants.

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short in some places [] tying its factual allegations to

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particular defendants.”

(Order Re: Mot. to

Similarly, the TAC contains no facts for what

Thus, “the complaint falls

Id.

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Furthermore, there are no factual allegations detailing

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how each individual defendant would have learned about decedent’s

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previous suicide attempts or past placements.

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allege that information about decedent was contained in records

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that each defendant was provided with, nor do they allege that

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each defendant personally learned about decedent’s sister’s

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communications with the prison.

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the fact that the individual defendants were responsible for

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directly monitoring decedent, as plaintiffs must show that

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defendants were personally aware of decedent’s suicidal

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tendencies.

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Cir. 2010) (denial of medical care inquiry is focused on what the

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defendants personally knew about decedent’s suicide risk).2

Plaintiffs do not

Plaintiffs cannot simply rely on

See Simmons v. Navajo Cty., 609 F.3d 1011, 1020 (9th

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Plaintiffs argue that defendants knew or should have
known about decedent’s mental illness because they observed
decedent being offered medication and transported to prison
healthcare facilities. Even if these allegations were detailed
in the complaint, they are insufficient to establish that
defendants knew of, and disregarded, decedent’s serious medical
need: a heightened suicide risk. These allegations do not
indicate that the individual defendants knew that the medication
or healthcare appointments were related to decedent’s mental
illness.
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Plaintiffs’ allegation that the individual defendants

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failed to a perform a “cell check” on decedent’s cell the day of

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his suicide is insufficient on its own to establish liability.

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Incarcerated individuals do not have a clearly established

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constitutional right “to the proper implementation of adequate

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suicide prevention protocols.”

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2042, 2044 (2015).

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for Eighth Amendment purposes, relevant Ninth Circuit precedent

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requires that plaintiffs show that the defendants were

Taylor v. Barkes, 135 S. Ct.

Rather, to establish deliberate indifference

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subjectively aware of the risk of harm.

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As explained above, plaintiffs have not alleged sufficient facts

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to establish the individual defendants’ subjective awareness of

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the decedent’s medical needs.

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Conn, 591 F.3d at 1096.

Accordingly, the court will dismiss plaintiffs’ first
cause of action against Manes, Mohr, Munroe, Vue, and Ballard.

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b. Second and Third Claims: Supervisory Liability

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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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supervisor is only liable for constitutional violations of his

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subordinates if the supervisor participated in or directed the

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violations, or knew of the violations and failed to act to

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prevent them.”

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1989).

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

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

The court dismisses plaintiffs’ supervisory liability
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“A

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claim against Manes for similar reasons that it dismissed those

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claims against Baughman.

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11.)

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aware of decedent’s specific medical needs; directed,

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participated in, or knew that his subordinates were deliberately

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indifferent to decedent’s medical needs; or that his failure to

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train or supervise his subordinates specifically caused the

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alleged constitutional deprivation: inadequate medical care.

(See Order Re: Mot. to Dismiss at 10–

Plaintiffs have not alleged facts that show that Manes was

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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 Manes.3

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2. State Law Claims

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a.

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Fourth Claim: Negligence/Wrongful Death

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.

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

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

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

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2008)).

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numerous duties to the decedent.

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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

Plaintiffs allege that individual defendants had

Because plaintiffs have not sufficiently alleged that
any of the above defendants violated a constitutional right, the
court need not decide whether they are entitled to qualified
immunity.
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First, plaintiffs allege that all the individual

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defendants had a duty to render appropriate medical care and they

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all failed “to provide antidepressant medication and/or other

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proper mental health treatment and therapy.”

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Because California Government Code § 845.6 immunizes public

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employees for the failure to obtain medical care except as

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provided by §§ 855.8 and 856, this allegation will be analyzed

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with the plaintiffs’ fifth cause of action.

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Dep’t of Corr. & Rehab., 212 Cal. App. 4th 1051, 1070 (2d Dist.

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(TAC ¶ 68).

See Castaneda v.

2013).
Second, plaintiffs argue that all the individual

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defendants breached their “duty of care to observe, report,

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monitor, and provide reasonable security regarding Decedent’s

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condition, and failed to prevent his suicide.” (TAC ¶ 70).

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California law, “[t]he general rule is that a jailer is not

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liable to a prisoner in his keeping for injuries resulting from

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the prisoner’s own intentional conduct.”

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Beach, 60 Cal. App. 3d 341, 349 (2d Dist. 1976).

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relieved of liability, however, if the inmate’s suicide “was

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reasonably foreseeable or the failure to foresee such act was a

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factor in the original negligence.”

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above, plaintiffs have not alleged sufficient facts to show that

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the individual defendants were aware or had reason to be aware of

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decedent’s suicidal tendencies.

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explain how each defendant would have known about decedent’s

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prior suicide attempts, decedent’s sister’s letter to the prison,

Under

Lucas v. City of Long

Id. at 351.

A jailer is not

As explained

Plaintiffs do not sufficiently

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or decedent’s prior placement in a segregated unit.

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v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997)

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(a court may not supply essential elements of a claim that were

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not pled).

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See Bruns

Third, plaintiffs allege that defendant Manes failed as

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a supervisor to implement adequate policies5 and conduct

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appropriate investigatory procedures regarding suicidal inmates’

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medical care.

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the court could infer that Manes was aware of or did not

(TAC ¶¶ 68, 72).

There are no facts from which

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adequately investigate his subordinates’ alleged failure to

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monitor and supervise inmates.

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discern what actions Manes allegedly took or failed to take that

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constituted a breach of duty that he owed to decedent.

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Lapachet v. Cal. Forensic Med. Grp., Inc., No 1:17-cv-1226 DAD

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

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facts showing Manes’ specific knowledge about the decedent’s

Thus, the court is unable to

See

Without

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For the same reason, any negligence claim based on the
defendants’ failure to conduct a “cell check” fails. Plaintiffs
have not alleged sufficient facts to show that this alleged
negligence was the moving force behind a series of events that
ultimately led to a foreseeable harm. See Campos v. County of
Kern, No. 1:14-cv-01099 DAD JLT, 2017 WL 915294, at *14 (E.D.
Cal. Mar. 7, 2017). Without those facts, decedent’s suicide
would be an intervening and superseding cause. Id. (citations
omitted).
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Public employees are immune from liability for the
failure to adopt or enforce an enactment. Cal. Gov’t Code § 821;
see also Taylor v. Buff, 172 Cal. App. 3d 384, 389 (3d Dist.
1985) (holding that defendants, as public employees, were immune
for liability despite operating a facility in violation of the
minimum standards for local detention facilities under the
California Administrative Code). “Enactment means a
constitutional provision, statute, charter provision, ordinance
or regulation.” Cal. Gov’t Code § 810.6.
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suicidal tendencies, plaintiffs have not sufficiently alleged

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that Manes’ action or inaction created a foreseeable harm.

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Johnson v. County of Los Angeles, 143 Cal. App. 3d 298, 307–08

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(2d Dist. 1983) (“The most important policy consideration is the

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foreseeability of the harm: as a general principle a defendant

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owes a duty of care to all persons who are foreseeably endangered

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by his conduct, with respect to all risks which make the conduct

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unreasonably dangerous.”)

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See

Accordingly, plaintiffs’ negligence claim against the
individual defendants will be dismissed.

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b.

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Fifth Claim: Failure to Summon Medical Care

Finally, defendants move to dismiss plaintiffs’

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failure to summon medical care claim under California Government

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Code Section 845.66 against all individual defendants.7

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Section 845.6 provides that a public employee, acting
Plaintiffs do have standing to bring this cause of
action. Under California law, a cause of action survives a
person’s death. Cal. Civ. Proc. Code § 377.20(a). “Where there
is no personal representative for the estate, the decedent’s
‘successor in interest’ may prosecute the survival action.”
Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1094 (9th
Cir. 2006) (citing Cal. Civ. Proc. Code §§ 377.30, 377.32.).
Defendants do not claim that M.B. III, through his Guardian Ad
Litem, is not decedent’s successor in interest, so plaintiffs
have standing to bring this claim. See Campos, 2017 WL 915294, at
*5 (finding that a decedent’s successor in interest may join any
claims that the decedent would have been entitled to file with a
wrongful death claim arising out of the same conduct).
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For the same reasons given in the court’s previous
order, defendants cannot claim immunity from liability under
section 845.6 for this cause of action. (Order Re: Mot. to
Dismiss at 19 n.8.) See also 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.”).
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within the scope of their employment, is liable if the employee

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knows or should know that the prisoner is in need of immediate

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medical care and fails to take reasonable action to summon such

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medical care.

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that duty to where there is actual or constructive knowledge that

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the prisoner is in need of immediate care.

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See Cal. Gov’t Code § 845.6.

This section limits

Id.

To state a claim under section 845.6, plaintiffs must

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establish that: “(1) the public employee knew or had reason to

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know of the need (2) for immediate medical care, and (3) failed

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to reasonably summon such care.”

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1099 (9th Cir. 2006).

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medical condition requiring immediate care.”

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No. 13-cv-4496 MMM AJWX, 2014 WL 12588641, at *18 (C.D. Cal. Mar.

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3, 2014) (citing Johnson, 143 Cal. App. 3d at 316–17)).

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Jett v. Penner, 439 F.3d 1091,

“A suicidal state is a serious and obvious
Johnson v. Baca,

Plaintiffs allege that defendants knew or had reason

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to know of the need for intensive medical care because of the

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decedent’s prior suicide attempts, participation in the Mental

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Health Service Delivery System, and the records available to and

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generated by CDCR indicating that decedent was an immediate

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threat to his safety. (TAC ¶ 78.)

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defendants’ failure to provide immediate medical care in the form

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of adequate monitoring8 and mental health care proximately caused

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decedent’s suicide.

Thus, plaintiffs allege that

(Id. ¶ 76.)

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Under California law, defendants as public employees
are immune from liability for any injuries resulting from their
failure to diagnose or prescribe treatment for decedent’s alleged
mental illness. Cal. Gov’t Code § 855.8(a); see also Estate of
Abdollahi v. County of Sacramento, 405 F. Supp. 2d 1194, 1216
(E.D. Cal. 2005) (Damrell, J.) (citation omitted).
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However, for the same reasons as previously discussed,

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plaintiffs have not sufficiently alleged that any defendants

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personally knew or should have known of decedent’s immediate

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medical need.

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motion to dismiss plaintiffs’ failure to summon medical care

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under section 845.6 against all the individual defendants.

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Accordingly, the court will grant defendants’

IT IS THEREFORE ORDERED that CDCR’s Motion for

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Reconsideration (Docket No. 45) be, and the same hereby is,

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GRANTED.

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The Fifth Cause of Action against CDCR is DISMISSED

WITHOUT PREJUDICE.9

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IT IS FURTHER ORDERED that individual defendants’

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Motion to Dismiss (Docket No. 48) be, and the same hereby is,

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GRANTED.

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and Ballard are dismissed.

All claims against defendants Manes, Mohr, Munroe, Vue,

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Plaintiffs have twenty days from the date this Order

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

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consistent with this Order.

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Dated:

October 16, 2018

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The court expresses no opinion on whether the
plaintiffs’ claim could properly be brought in a California state
court. See Frigard v. United States, 862 F.2d 201, 204 (9th Cir.
1988).
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