(PS) Schmitz et al v. Asman et al

Filing 85

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/13/20 DENYING IN PART #63 and #64 Motions to Dismiss and RECOMMENDING that #63 and #64 Motions to Dismiss be granted in part. F&R referred to District Judge John A. Mendez. Objections to F&R due within fourteen (14) days. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS SCHMITZ, et al.,

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Plaintiffs,

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v.

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No. 2:20-cv-00195-JAM-CKD PS

ORDER AND FINDINGS AND
RECOMMENDATIONS

A. ASMAN, et al.,
(ECF Nos. 63, 64)

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Defendants.

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Presently before the court are defendants’ motions to partially dismiss the Second

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Amended Complaint (ECF No. 44), to which plaintiffs have responded and defendants have

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replied.1 (ECF Nos. 63, 64, 65, 68, 70, 75, 76-79.) These motions were taken under submission

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pursuant to Local Rule 230(g). (ECF No. 82.) As set forth below, the court DENIES IN PART

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and recommends GRANTING IN PART defendants’ motions to dismiss.

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Plaintiffs are proceeding pro se, and this action is before the undersigned pursuant to Eastern
District of California Local Rule 302(c)(21).

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BACKGROUND2
This matter concerns the death of William Schmitz (“Decedent”) while incarcerated at

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Mule Creek State Prison (“MCSP”), under the authority of the California Department of

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Corrections and Rehabilitation (“CDCR”). Plaintiffs Thomas Schmitz and Dianne Mallia—

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Decedent’s father and mother—bring this action individually on their own behalves and also as

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successors in interest to Decedent’s estate. The Second Amended Complaint (“SAC”) asserts 16

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causes of action and names 32 defendants, including the CDCR and 28 CDCR employees and

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officials (“the CDCR defendants”)3; two former CDCR officials, Dr. Kevin Kuich and former

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MCSP warden Joe Lizarraga; and Dr. Stephen DeNigris, a private doctor who contracts with the

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CDCR. (ECF No. 44 at 3-9.) The court describes in detail only the SAC allegations pertinent to

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resolving the present motions.

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A.

Factual Background

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Generally, plaintiffs allege that Decedent was removed from critical antipsychotic

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medications and the prison’s Enhanced Outpatient Program (EOP)—a high-level outpatient

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psychiatric care program—and that these two decisions resulted in Decedent’s death via

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methamphetamine overdose on January 21, 2019.4 (ECF No. 44 at 3.) Plaintiffs allege that these

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decisions took place against the backdrop of systemic problems with mental health care in CDCR

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prisons, as highlighted in the Coleman v. Brown lawsuit5 which resulted in court-supervised

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Unless otherwise indicated, the factual background is taken from plaintiffs’ Second Amended
Complaint. (ECF No. 44.)

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On August 31, 2020, after filing the SAC, plaintiffs voluntarily dismissed without prejudice all
claims against one of the named CDCR defendants, Dr. Michael Golding, pursuant to Federal
Rule of Civil Procedure 41(a)(1)(A)(i). (ECF No. 61.)
It remains unclear whether plaintiffs assert Decedent’s death was an accidental overdose or a
suicide. (See ECF No. 44 at 3 (“A psychotic [Decedent] was forcibly given or ingested two
bindles of methamphetamine.”).)
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That ongoing litigation has carried the names of various California governors over the years and
stems from a 1995 decision finding Eighth Amendment deliberate indifference violations due to
the CDCR being “significantly and chronically understaffed in the area of mental health care
services.” Coleman v. Wilson, 912 F. Supp. 1282, 1307 (E.D. Cal. 1995). Decades of ongoing
remedial efforts have followed.
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monitoring of CDCR mental health care that continues today. (Id. at 10-18.) Plaintiffs also

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emphasize a December 2019 order in that case finding that CDCR knowingly presented

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misleading information to the court in 2017 and 2018 so as to be relieved of further court

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monitoring. (Id. at 15-16, 47-48.) See Coleman v. Newsom, 424 F. Supp. 3d 925, 939-56 (E.D.

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Cal. 2019). Plaintiffs allege that, as part of this scheme to feign compliance, inmates who should

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have been in EOP—like Decedent—were excluded from the program in order to show improved

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metrics. (Id. at 16.) In addition, they say that between December 2016 to April 2017, the CDCR

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changed the requirement that EOP patients be seen by a psychiatrist every 30 days, instead

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allowing up to 60 days to “count as compliant on the metrics” reported to the court. (Id.

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at 16-17.) This change was approved by defendant Dr. Laura Ceballos, the Mental Health

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Administrator of Quality Management for CDCR’s Statewide Mental Health Program (“SMHP”),

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a program developed to comply with the Coleman monitoring. (Id. at 7-8, 12, 16-17.) Dr. David

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Leidner, a Senior Psychologist Specialist on the Quality Management team, was also involved in

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implementing the change. (Id. at 8, 16-17, 21.) And plaintiffs allege that, in March 2017, CDCR

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Deputy Director of SMHP Katherine Tebrock—who was responsible for overseeing all CDCR

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mental health care—“knowingly presented fraudulent data to the Court to alter the number of

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psychiatrists required to provide [c]onstitutional medical care.” (Id. at 7, 17-18.)

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Decedent had a long history of mental illness and schizophrenia, conditions which caused

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him to experience auditory hallucinations and to self-medicate with illicit drugs. (Id. at 2-3, 19.)

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Decedent was incarcerated for shooting and killing a man while in a psychotic state; he was in

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CDCR custody at MCSP from February 2009 until his death. (Id. at 19.) From the start of his

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incarceration until May 2018, Decedent was in EOP—the “highest level of outpatient psychiatric

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care for mentally disordered inmate-patients.” (Id. at 19.) Even so, plaintiffs allege that

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Decedent received unconstitutionally poor mental health care from as early as November 2015

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through the time of his death in 2019. The SAC describes a series of sporadic appointments with

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various medical provider defendants who did not appropriately review Decedent’s medical record

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or heed his history of symptoms and responses to various psychotropic medications. (Id.

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at 20-31.) Accordingly, Decedent’s hallucinations, insomnia, and manic episodes continued with
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only occasional periods of improvement.6 (Id.)
On February 9, 2018, defendant MCSP physician Dr. Robert Rudas filled out a “physician

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request for services” for Decedent stating, “Patient with cirrhosis/[end stage liver cancer]. Per

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registry protocol patient is due for esophageal varices follow-up/surveillance.” (Id. at 8, 34

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(capitalization altered to sentence case).) Dr. Rudas requested that an “On-site” contracting

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medical provider complete the procedure by May 9, 2018, but Dr. Rudas left blank the section of

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the form for “Summary of preliminary or diagnostic work up.” (Id. at 35.) The prison’s Chief

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Medical Officer Executive, defendant Dr. Christopher Smith then “inappropriately” approved the

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form twice, once on February 12 and again on March 16. (Id. at 6, 35.) At a March 8, 2018 visit,

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Decedent’s “primary medical doctor,” defendant Dr. Marianna Ashe, noted that Decedent “[d]oes

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not have a known history of cirrhosis”; and Decedent’s blood work indicated a low “FIB4 score”

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which (plaintiffs say) indicated “no need to evaluate for cirrhosis.”7 (Id.) Dr. Ashe noted that

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Decedent had an upcoming abdominal ultrasound, but did not mention the endoscopy in her

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notes, nor did she counsel Decedent regarding the accuracy of his liver disease diagnosis. (Id.

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at 35.)
On March 14, 2018, at Dr. Rudas’ instruction, Decedent was educated about his upcoming

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endoscopy. Dr. Rudas’ order was to “Explain to [Decedent] that an EGD has been scheduled for

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him. Records show he has advanced liver disease/cirrhosis that puts him at risk for bleeding from

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the veins in his esophagus (esophageal varices). With an EGD the veins can be treated.” (Id.

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at 36.) Decedent’s paranoia was “greatly magnified” by his “false diagnosis” of cirrhosis/end

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stage liver disease, and the risk of “bleeding to death from veins in his esophagus.” (Id. at 33,

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35.) His family did not believe him when he shared the diagnosis, thinking he must be delusional

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or misunderstanding his doctors, since he had only recently developed Hepatitis C. (Id. at 33.)

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Because the defendants implicated in this portion of the SAC have not moved to dismiss the
claims against them, the court does not describe these appointments in detail.
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“Cirrhosis is a late stage of scarring (fibrosis) of the liver caused by many forms of liver
diseases and conditions, such as hepatitis and chronic alcoholism.”
https://www.mayoclinic.org/diseases-conditions/cirrhosis/symptoms-causes/syc-20351487.
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Around the same time, in the spring of 2018, medical staff decided to transfer Decedent to

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a lower level of psychiatric care, known as the Correctional Clinical Case Management System

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(“CCCMS”), citing Decedent’s poor attendance in EOP group meetings. (Id. at 36-38.) CCCMS

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is for “inmate patients that can function in the general population and do not require a clinically

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structured, therapeutic environment.” (Id. at 38.) Decedent asked to remain in EOP, as he “did

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not want to be on his meds and ‘stuck’ in his cell.” (Id. at 37.) But on April 30, 2018, after nine

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years in EOP, Decedent was officially transferred to the CCCMS level of care. (Id.) According

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to plaintiffs, he was transferred because it would “help CDCR look better on their healthcare

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monitoring metrics and give the appearance of better care than actually provided.” (Id. at 38.)

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Following this transfer, doctors “completely stopped [Decedent’s] antipsychotic

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medications,” despite noting that Decedent reported “chronic [auditory hallucinations] of low

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level voices,” because stopping the antipsychotic medications would prevent him from being

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“‘stuck’ in his cell because of the ‘heat meds.’” (Id. at 39.)

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On May 4, 2018, Decedent underwent the “fraudulent endoscopy,” from which he awoke

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in “physical pain.” (Id.) An on-site contracting physician, defendant Dr. DeNigris, performed the

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procedure and found “no evidence of Portal Hypertension specifically; No esophago-gastric

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varices . . .” but recommended another endoscopy in three years. (Id. at 40.) However, the

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procedure was incorrectly coded as an “Esophagogastroduodenoscopy, flexible, transoral; with

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band ligation of esophageal/gastric varices,” making it look like Decedent had esophageal varices

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that were treated. (Id.)

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Notations from Decedent’s health care visits over the rest of 2018 showed that, without

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any antipsychotic medication, Decedent experienced a resurgence in his auditory hallucinations,

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paranoia, and insomnia—which providers still took no action to address. (Id. at 40-44.)

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On January 17, 2019, four days before his death, Decedent met with his new MCSP

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social worker, defendant Violka Wanie. (Id. at 44.) Wanie noted that Decedent denied that his

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psychosis was substance induced, but Decedent told her that he “self-medicated when [he] started

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hearing voices to help [him] deal with them.” (Id.) Upon hearing these reports from Decedent,

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Wanie took no action other than to recommend dormitory exclusion. (Id.)
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The SAC describes a coroner’s report that places Decedent’s “last known interaction” at

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6:35 AM on January 21, 2019 with defendant Officer Adam Asman.

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reportedly “saw water was flowing out from [Decedent’s] cell,” but he did not inspect the cell,

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contrary to CDCR policy. (Id.) Plaintiffs further state that the report noted that fellow defendant

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Officer Erik Bradley “did not see [Decedent] during his routine check” that day at 2:15 PM. (Id.

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at 45.) Bradley stated there was “an obstruction on the bottom half of the cell window,” which he

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did not remove to positively identify Decedent, also contrary to CDCR policy. (Id.) Decedent’s

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body was discovered at approximately 2:30 PM by another inmate. (Id.) Bradley and another

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officer responded to the discovery and “found [Decedent] stiff and cold, slumped over on the

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(Id.) Officer Asman

toilet.” (Id.)
On January 22, 2019, Dr. C. Smith authored the MCSP Death Report in which he failed to

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accurately report the events and circumstances leading up to the death. (Id.) For instance,

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Dr. Smith omitted Decedent’s recent complaints of auditory hallucinations, did not list any

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psychiatric illness, and mentioned no diagnosis of cirrhosis—despite having approved the

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unnecessary endoscopy less than a year prior. (Id.)

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Defendant Sergeant David Brunkhorst told the Coroner that Decedent “had a history of

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smuggling drugs and likely got them from a visitor,” although Decedent had no such history. (Id.

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at 5, 46.) The coroner’s report attached to the SAC reflects an accidental “massive overdose of

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methamphetamine” due to “leakage or rupture of bindle(s) of methamphetamine ingested for

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purposes of drug smuggling.” (Id. at 69.) It makes no mention of Decedent’s mental illness.

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Plaintiffs assert that this “convenient scenario” was adopted to ensure minimal investigation, as

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Decedent’s “death occurred at a particularly inconvenient time for MCSP and CDCR” as they

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were “desperately trying to get out from under the court injunction as a result of [the] Coleman v.

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Brown lawsuit.” (Id. at 46.)

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B.

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Plaintiffs filed the present suit on January 27, 2020 and filed their First Amended

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Complaint (“FAC”) on February 26, 2020. (ECF Nos. 1, 6.) The defendants named in the FAC

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filed motions to dismiss the case in its entirety (ECF Nos. 22, 23), which the court denied in part

Procedural History

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and granted in part, permitting plaintiffs to file another amended complaint (ECF No. 41). On

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July 16, 2020, plaintiffs filed their SAC, amending certain claims and adding 11 new causes of

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action and 14 more defendants. (ECF No. 44.) On August 31, 2020, the CDCR defendants and

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Dr. DeNigris, represented by independent counsel, filed motions to partially dismiss the SAC

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(ECF Nos. 63, 64), which are presently before the court.8 Dr. Kuich and former Warden

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Lizarraga, also represented by independent counsel, have joined the CDCR defendants’ motion to

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dismiss—as has Dr. DeNigris. (ECF Nos. 65, 70.)

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LEGAL STANDARDS

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In considering a motion to dismiss for failure to state a claim upon which relief can be

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granted, the court must accept as true the allegations of the complaint in question, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the pleading in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

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at 678.
In ruling on a motion to dismiss pursuant to Rule 12(b), the court “may generally consider

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only allegations contained in the pleadings, exhibits attached to the complaint, and matters

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properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d

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895, 899 (9th Cir. 2007). Defendants have requested this court take judicial notice of certain

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documents. (ECF No. 63.2.) That request will be granted.

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On September 9, 2020, through state counsel, defendant Adams also joined the CDCR
defendants’ motion to partially dismiss. (ECF No. 68.)
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DISCUSSION
Defendants move to dismiss the claims against some or all defendants in each of the

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SAC’s sixteen counts. (ECF Nos. 63, 64.) Because the court recommends granting dismissal as

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to some defendants and denying dismissal as to others, the court will address defendants’

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arguments in the order presented.

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A.

Deliberate Indifference

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The SAC’s First Cause of Action is for deliberate indifference in violation of the Eighth

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Amendment. (ECF No. 44 at 49-50.) Defendants argue that the SAC fails to state a claim for

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deliberate indifference against (1) defendants Asman and Bradley, the officers on duty the day of

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Decedent’s death; (2) defendant Drs. Ashe, DeNigris, Rudas, and C. Smith (the “endoscopy

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defendants”), the healthcare providers involved with Decedent’s endoscopy; and (3) defendant

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Wanie, Decedent’s social worker who met with him days before his death.

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

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must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091,

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1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for

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deliberate indifference requires the plaintiff to show (1) “a ‘serious medical need’ by

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demonstrating that failure to treat a prisoner’s condition could result in further significant injury

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or the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need

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was deliberately indifferent.” Jett, 439 F.3d at 1096; Wilhelm v. Rotman, 680 F.3d 1113, 1122

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(9th Cir. 2012).

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Deliberate indifference is shown where the official is aware of a serious medical need and

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fails to adequately respond. Simmons v. Navajo Cty., 609 F.3d 1011, 1018 (9th Cir. 2010).

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“Deliberate indifference is a high legal standard,” Simmons, 609 F.3d at 1019; Toguchi v. Chung,

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391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was a “purposeful act or failure to

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respond to a prisoner’s pain or possible medical need” and the indifference caused harm, Jett, 439

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F.3d at 1096. The prison official must be aware of facts from which he could make an inference

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that “a substantial risk of serious harm exists” and he must make the inference. Farmer v.

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Brennan, 511 U.S. 825, 837 (1994). Finally, plaintiffs alleging deliberate indifference must also
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demonstrate that the defendants’ actions were both an actual and proximate cause of their injuries.

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Lemire v. California Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013).

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1. Defendants Asman & Bradley
Plaintiffs allege that at 6:35 AM on the morning of his death, Decedent had an unspecified

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“interaction” with Officer Asman, who saw water flowing out of Decedent’s cell but did not

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inspect the cell. (ECF No. 44 at 44.) Plaintiffs assert that Asman had an obligation to

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“investigate and report on cell flooding” under section 91090.6 of the CDCR Department

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Operations Manual (“DOM”). (Id. at 44-45.) Then, fifteen minutes before Decedent’s body was

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found at 2:30 PM, Officer Bradley failed to positively identify Decedent during his routine check

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because there was “an obstruction on the bottom half of the cell window,” which Bradley did not

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remove, although window coverings were against DOM policy. (Id. at 45.) Plaintiffs further

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allege that Asman and Bradley “were responsible for conducting counts to observe and document

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the safety of [Decedent],” and that by violating DOM policy and not confirming Decedent’s

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safety, they “failed to timely summon or provide emergency medical care.” (Id. at 50.)

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The court previously dismissed similar allegations in the FAC as insufficient to

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demonstrate Asman and Bradley’s deliberate indifference to Decedent’s need for medical

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treatment. (ECF No. 41 at 9.) And the SAC does not cure the deficiencies that led to that

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dismissal. Although plaintiffs have added the allegation that Officer Asman’s failure to

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investigate the cell flooding was a DOM violation, identifying this policy violation does not

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bolster plaintiffs’ claim. See Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (failure to

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follow internal prison policies does not rise to the level of a constitutional violation). Aside from

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this addition, plaintiffs’ allegations against Asman have, if anything, become vaguer than they

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were in the FAC. As best the court can discern, Decedent and Asman had some sort of

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“interaction” early on the morning of Decedent’s death, and although Asman at that time

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observed water “flowing out” of the cell, he did not investigate further. (ECF No. 44 at 44.)

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These facts do not add up to Asman’s deliberate indifference to Decedent’s serious medical need.

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As to Officer Bradley, even assuming his failure to affirmatively confirm that Decedent
was in his cell later that afternoon would satisfy the subjective indifference prong, plaintiffs have
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not alleged how that failure caused Decedent harm. See Lemire, 726 F.3d at 1074. According to

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the SAC, Bradley did not conduct his routine check until 2:15 PM, only fifteen minutes before

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Decedent’s body was discovered by another inmate; and when discovered, Decedent’s body was

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already “stiff and cold.” (ECF No. 44 at 45.) It is virtually impossible, therefore, that Bradley’s

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failure to remove the window obstruction and fully check on Decedent in any way contributed to

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Decedent’s suffering or death.
Accordingly, plaintiffs’ deliberate indifference claims against Officers Asman and

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Bradley should be dismissed. As this is the second time plaintiffs have tried and failed to state

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such a claim against these defendants, the claims should be dismissed with prejudice. See

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Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (permitting dismissal without

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leave to amend if plaintiff has had several opportunities to amend and repeatedly failed to cure

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deficiencies).

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2. Defendant Wanie
Plaintiffs allege that at a meeting four days before Decedent’s death, Decedent told

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defendant Wanie, his new social worker, that he was experiencing “distress from [Auditory

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Hallucinations” at a level of 5/10. (ECF No. 44 at 44.) Decedent denied that his psychosis was

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substance induced, stating that he “self-medicated when [he] started hearing voices to help [him]

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deal with them.” (Id.) Plaintiffs allege that despite “observ[ing] the voices bothering

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[Decedent],” Wanie merely filled out paperwork and recommended dormitory exclusion. (Id.)

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The court previously dismissed the FAC’s deliberate indifference claim against Wanie

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based on allegations substantially identical to those repeated here in the SAC. (ECF No. 41 at 9;

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compare ECF No. 6 at 29, with ECF No. 44 at 44.) Once again, the court concludes that these

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allegations fail to demonstrate that defendant Wanie willfully ignored Decedent’s medical needs,

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or that Decedent was harmed by her indifference. This claim against defendant Wanie is

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therefore subject to dismissal without leave to amend. (ECF No. 41 at 14 (cautioning that

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“renewed claims against the dismissed defendants that are identical or substantially similar to

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those contained in their FAC will likely be subject to dismissal without leave to amend”).)

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3. The Endoscopy Defendants (Drs. Ashe, DeNigris, Rudas, and C. Smith)

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Plaintiffs’ deliberate indifference claims against Drs. Ashe, DeNigris, Rudas, and

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C. Smith arise from their alleged involvement in Decedent’s purportedly unnecessary endoscopy

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the year before his death. (ECF No. 44 at 49.) These claims did not appear in plaintiffs’ FAC.

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Plaintiffs report that after filing the FAC, they obtained medical records alerting them to the new

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facts alleged regarding this procedure. (ECF Nos. 44 at 33, 75 at 35.) Plaintiffs assert that these

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defendants were “deliberately indifferent by fabricating and propagating a serious diagnosis of

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End Stage Liver Disease.” (ECF No. 44 at 49.) Plaintiffs allege that the false diagnosis and

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unnecessary procedure caused Decedent physical pain and “directly increased [his] suffering and

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worsened his mental state.” (Id. at 43.)
To state a claim for this sort of deliberate indifference, based on a doctor’s choice of

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treatment, plaintiffs must plead facts showing that “the course of treatment the doctors chose was

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medically unacceptable under the circumstances” and that the doctors “chose this course in

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conscious disregard of an excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330,

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332 (9th Cir. 1996). To satisfy the subjective prong of the deliberate indifference analysis, the

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prison official must act with a “sufficiently culpable state of mind,” which entails more than mere

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negligence, but less than conduct undertaken for the very purpose of causing harm. Farmer v.

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Brennan, 511 U.S. at 837. A prison official does not act in a deliberately indifferent manner

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unless the official “knows of and disregards an excessive risk to inmate health or safety.” Id.
Plaintiffs assert several pieces of circumstantial evidence which they say shows that the

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four doctors knew Decedent did not have liver disease and pushed him into an unnecessary

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procedure purely for financial gain: Decedent’s medical records contained no indication that he

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had liver disease; Dr. Rudas specified a quick deadline for completing the procedure so that it

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would be done while the “on-site” provider was present; Dr. C. Smith twice approved the

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procedure and omitted the diagnosis from his death report; Dr. Ashe did not mention the

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upcoming endoscopy in her visit notes; Dr. DeNigris performed the endoscopy when Decedent’s

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records contained no suggestion that the procedure was needed; and the procedure was

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inaccurately coded. (ECF No. 75 at 9-12 (citing ECF No. 44).) From these allegations, plaintiffs

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argue that “fraud is the most likely conclusion.” (ECF No. 75 at 12.)
Although plaintiffs’ narrative might be correct, the court concludes that these assertions

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are not enough to push the pleadings “across the line from conceivable to plausible.” Ashcroft v.

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Iqbal, 556 U.S. 662, 680 (2009). Even taking these allegations as true, at most they might support

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a claim for negligence—that each doctor should have, but failed to, consult Decedent’s medical

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history more thoroughly to confirm the necessity of an endoscopy. They do not plausibly allege

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that any of the four doctors knew that liver disease was not medically indicated, notwithstanding

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plaintiffs’ contrary conclusory opinion. Moreover, they do not show how the decision to order,

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approve, or ultimately conduct the endoscopy presented “an excessive risk to [Decedent’s] health

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or safety” that the doctors consciously disregarded. Farmer, 511 U.S. at 837. Based on the

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present pleadings, it is equally likely that the doctors took these actions believing that they were

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helping Decedent—who is alleged to have had Hepatitis C—based on a good faith (albeit,

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allegedly incorrect) understanding of Decedent’s medical file.9

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Accordingly, the deliberate indifference claims against Drs. Ashe, DeNigris, Rudas, and

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C. Smith, are subject to dismissal. Because the SAC represents plaintiffs’ first attempt to state a

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deliberate indifference claim against these defendants based on their involvement in the newly

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discovered endoscopy, however, they may amend these claims against these defendants.

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Conclusion

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Because plaintiffs have twice failed to sufficiently plead a deliberate indifference claim

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against defendants Asman, Bradley, and Wanie, those claims should be dismissed with prejudice

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as to those defendants. Plaintiffs have also failed to sufficiently plead deliberate indifference

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claims against Drs. Ashe, DeNigris, Rudas, and C. Smith, but those claims are dismissed with

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leave to amend.

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Having reached this conclusion, the court need not address Dr. DeNigris’ additional argument
that he was not acting under color of state law. (ECF No. 64.1 at 5.)
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1

B.

Supervisory Liability & Failure to Train

2

Plaintiffs’ Second and Third Causes of Action allege Eighth Amendment deliberate

3

indifference by supervisory defendants including former MCSP Warden Lizarraga and former

4

CDCR Chief Psychiatrist of Telepsychiatry Dr. Kuich. (ECF No. 44 at 50-52.)

5

Under § 1983, a supervisor may be liable if there exists either “(1) his or her personal

6

involvement in the constitutional deprivation or (2) a sufficient causal connection between the

7

supervisor’s wrongful conduct and the constitutional violation.” Mackinney v. Nielsen, 69 F.3d

8

1002, 1008 (9th Cir. 1995) (internal citations and quotations omitted). Supervisory liability can

9

exist in the present case if defendants implemented “a policy so deficient that the policy itself is a

10

repudiation of constitutional rights and is the moving force of the constitutional violation.” Id.

11

Failure to train or to supervise may amount to “deliberate indifference” if the need for training or

12

supervision was obvious and the failure to do so made a constitutional violation likely.

13

Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). Mere negligence in training or

14

supervision, however, does not rise to the level of deliberate indifference. Id.

15

The court previously denied the CDCR defendants’ motion to dismiss substantially

16

similar causes of action recited in the FAC (ECF No. 41 at 10-11), and the CDCR defendants

17

named in the SAC do not now seek dismissal of these two causes of action. Only defendants

18

Kuich and Lizarraga apparently dispute the sufficiency of these two renewed causes of action.

19

But because defendants Kuich and Lizarraga have not properly moved to dismiss these claims,

20

those causes of action survive.

21

Kuich and Lizarraga did not file their own motion to dismiss any claims in the SAC;

22

instead, they filed a notice of joining the CDCR defendants’ motion to dismiss. (ECF No. 65).

23

The CDCR defendants’ motion to dismiss notably does not challenge the sufficiency of the

24

SAC’s second and third causes of action for supervisory liability and failure to train, nor does the

25

CDCR defendants’ supporting brief include any argument on these topics. (ECF Nos. 63, 63.1.)

26

Kuich and Lizarraga did not file an opening brief in support of the motion to dismiss, but they did

27

file a reply to plaintiffs’ opposition arguing that the SAC’s allegations fail to state a claim against

28

them for supervisory liability. (ECF No. 79.) Raising these arguments for the first time in a reply
13

1

brief is procedurally improper, as it denies plaintiffs the opportunity to respond. The court

2

therefore declines to consider these arguments. See Zamani v. Carnes, 491 F.3d 990, 997 (9th

3

Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply

4

brief.”). The court also notes that it has already denied dismissal of these causes of action against

5

defendant Lizarraga in reviewing the substantially similar allegations against him in the FAC.

6

(ECF No. 41 at 10-11 (“Plaintiffs have adequately alleged system-wide constitutional

7

deprivations and failure to adequately train and supervise those tasked with safeguarding

8

Decedent’s constitutional rights.”).) To the extent defendants Lizarraga and Kuich move for

9

dismissal of the Second and Third Causes of Action against them, their motion is denied.

10

C.

11

Plaintiffs’ Fourth Cause of Action asserts a deprivation of their Fourteenth Amendment

Fourteenth Amendment Familial Relations

12

substantive due process right to familial relations against every named defendant except Sergeant

13

Brunkhorst and the CDCR itself.
Under the Fourteenth Amendment, “official conduct that ‘shocks the conscience’ in

14
15

depriving [family members] of [a liberty interest in the companionship and society of a family

16

member] is cognizable as a violation of due process.” Wilkinson v. Torres, 610 F.3d 546, 554

17

(9th Cir. 2010). “Just as the deliberate indifference of prison officials to the medical needs of

18

prisoners may support Eighth Amendment liability, such indifference may also ‘rise to the

19

conscience-shocking level’ required for a substantive due process violation.” Lemire, 726 F.3d at

20

1075 (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 849-50 (1998)). “A prison official’s

21

deliberately indifferent conduct will generally ‘shock the conscience’” if “the prison official had

22

time to deliberate before acting or failing to act in a deliberately indifferent manner.” Lemire,

23

726 F.3d at 1075.

24

The same nine defendants who seek dismissal of the Eighth Amendment claims against

25

them, in either their individual or supervisory capacities—that is, Officers Asman and Bradley;

26

social worker Wanie; the endoscopy defendants Drs. Ashe, DeNigris, Rudas, and C. Smith; and

27

////

28

////
14

1

former CDCR officials Lizarraga and Kuich10—also move to dismiss plaintiffs’ Fourteenth

2

Amendment claims on the grounds that plaintiffs failed to state even a deliberate indifference

3

claim, for the reasons discussed above. (ECF Nos. 63.1 at 23; 64.1 at 7.)

4

As discussed in the previous two sections, plaintiffs have failed to plead that defendants

5

Ashe, Asman, Bradley, DeNigris, Rudas, C. Smith, or Wanie were deliberately indifferent to

6

Decedent’s medical needs and therefore have insufficiently pleaded that their actions “shocked

7

the conscience.” Further, as to the endoscopy defendants, plaintiffs have not alleged how their

8

conduct deprived them of Decedent’s companionship at all. Plaintiffs only directly allege that the

9

false diagnosis of end stage liver disease and the performance of the endoscopy increased

10

Decedent’s suffering and worsened his mental state, not that they caused his death some six

11

months later. Lastly, because the court reaches no conclusion on the sufficiency of the deliberate

12

indifference claims against defendants Kuich and Lizarraga in their supervisory capacities (for the

13

reasons above), the court also denies their motion to dismiss the Fourteenth Amendment cause of

14

action against them, which also relies on inapplicable arguments asserted in the CDCR

15

defendants’ motion.

16

In sum, the court should grant the motion to dismiss the Fourth Cause of Action against

17

defendants Asman, Bradley, and Wanie, and dismiss the claims against those defendants with

18

prejudice. Conversely, the court denies the motion to dismiss the Fourth Cause of Action against

19

defendants Kuich, and Lizarraga; and the court grants the motion to dismiss the Fourth Cause of

20

Action against defendants Ashe, DeNigris, Rudas, and C. Smith with leave to amend as to those

21

defendants only.

22

D.

23

Plaintiffs’ Fifth Cause of Action asserts a conspiracy to interfere with Decedent’s civil

24

42 U.S.C. § 1985(3) Conspiracy to Interfere with Civil Rights

rights, in violation of 42 U.S.C. § 1985(3), by the following defendant health care providers and

25
26
27
28

The same procedural problems discussed above also apply to defendants Lizarraga’s and
Kuich’s challenge to plaintiffs’ Fourteenth Amendment claims against them. And, as with the
Eighth Amendment supervisory claims, the court has already held similar pleadings in the FAC
sufficiently stated a claim for deprivation of familial relations against defendant Lizarraga. (ECF
No. 41 at 11-12.)
15
10

1

supervisors: Leidner, Ceballos, Tebrock, Robinson, Heatley, C. Smith, Kernan, Diaz, Toche,

2

Gipson,11 Brizendine, Ponciano, Rekart, Kuich, Brockenborough, Lizarraga, and Adams. (ECF

3

No. 44 at 53.) Plaintiffs allege that these individuals engaged in a “conspiracy within CDCR to

4

base decisions for care of mentally ill inmates on ways to best make it appear they are complying

5

with the Court orders to provide a minimal constitutional level of care.” (ECF No. 44 at 53.)

6

Defendants allegedly carried out this conspiracy by reporting fraudulent metrics inflating their

7

appearance of compliance with mandated EOP psychiatric visits by extending the time between

8

psychiatric evaluations by 50%. (Id. at 38-39, 53.) All defendants named in this count move to

9

dismiss this cause of action for failure to allege that Decedent was a member of a protected class,

10

for lack of specific factual allegations of conspiracy, and because defendants are entitled to

11

qualified immunity. (ECF Nos. 63.1 at 13; 65; 68.)
“Section 1985 proscribes conspiracies to interfere with certain civil rights.” Karim-Panahi

12
13

v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). To state a claim under

14

§ 1985(3), plaintiffs must allege four elements: “(1) a conspiracy; (2) for the purpose of

15

depriving, either directly or indirectly, any person or class of persons of the equal protection of

16

the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of

17

this conspiracy; (4) whereby a person is either injured in his person or property or deprived of any

18

right or privilege of a citizen of the United States.” Sever v. Alaska Pulp Corp., 978 F.2d 1529,

19

1536 (9th Cir. 1992) (citation omitted).
For the first element, a § 1985 claim “must allege facts to support the allegation that

20
21

defendants conspired together. A mere allegation of conspiracy without factual specificity is

22

insufficient.” Karim-Panahi, 839 F.2d at 626. Under the second element, in addition to

23

identifying a legally protected right, a plaintiff must demonstrate a deprivation of that right

24

motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory animus

25

behind the conspirators’ action.” Griffith v. Breckenridge, 403 U.S. 88, 102 (1971). In the Ninth

26

Circuit, § 1985(3) is extended beyond race “only when the class in question can show that there

27
28

11

The SAC misspells defendant Connie Gipson’s last name as “Gibson,” throughout.
16

1

has been a governmental determination that its members ‘require and warrant special federal

2

assistance in protecting their civil rights.’” Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir.

3

1985) (citation omitted); see also McCalden v. California Library Ass’n, 955 F.2d 1214, 1223

4

(9th Cir. 1990) (plaintiff must be a member of a class that requires special federal assistance in

5

protecting its civil rights). “More specifically, we require ‘either that the courts have designated

6

the class in question a suspect or quasi-suspect classification requiring more exacting scrutiny or

7

that Congress has indicated through legislation that the class required special protection.’” Sever,

8

978 F.2d at 1536 (quoting Schultz, 759 F.2d at 718). Importantly, the defendants’ actions must

9

have been “motivated by invidiously discriminatory animus” against that protected class. Orin v.

10

Barclay, 272 F.3d 1207, 1217 (9th Cir. 2001) (internal quotation omitted). These limitations exist

11

to support the background rule that § 1985 “is not to be construed as a general federal tort law.”

12

Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1518-19 (9th Cir. 1987).

13

Plaintiffs’ § 1985(3) cause of action, as currently pled, is subject to dismissal for at least

14

two reasons. First, plaintiffs have not alleged that the deprivation Decedent suffered was

15

motivated by discriminatory animus against the allegedly protected class to which Decedent

16

belonged. Section 1985(3) was enacted as the Ku Klux Klan Act of 1871, and its original

17

purpose “was to enforce the rights of African Americans and their supporters.” Holgate v.

18

Baldwin, 425 F.3d 671, 676 (9th Cir. 2005). Plaintiffs may be correct that § 1985(3) protection

19

nevertheless extends to Decedent because Congress “has indicated through legislation,” Sever,

20

978 F.2d at 1536, that people with mental illnesses, like Decedent, require special protections.

21

(See ECF No. 75 at 24-25 (discussing the Protection and Advocacy for Individuals with Mental

22

Illness Act, 42 U.S.C. § 10801).) But the court need not resolve at this juncture whether

23

Decedent was a member of a class protected by § 1985(3) because nothing in the SAC remotely

24

implies—much less alleges—that defendants’ actions were “motivated by invidiously

25

discriminatory animus” against people with mental illnesses. See Orin, 272 F.3d at 1217. The

26

only motivation plaintiffs identify for extending the time between Decedent’s psychiatric visits,

27

which allegedly contributed to his declining mental health, is so that defendants might be

28

“relieved of Court monitoring.” (ECF No. 44 at 53; see id. at 38-39.) The SAC nowhere
17

1

suggests that the named defendants harbored any ill will toward their inmate patients because

2

they suffered mental illnesses, or that visit frequencies were lowered in order to harm these

3

patients. See Manistee Town Ctr. v. City of Glendale, 227 F.3d 1090, 1095 (9th Cir. 2000) (“A

4

cause of action under the first clause of § 1985(3) cannot survive a motion to dismiss absent an

5

allegation of class-based animus.”).
Second, plaintiffs’ § 1985(3) claim must be dismissed because it contains insufficient

6
7

specific factual allegations supporting the existence of the claimed conspiracy. See Karim-

8

Panahi, 839 F.2d at 626. Plaintiffs do allege certain actions by a handful of defendants, alleging,

9

for instance, that Dr. Ceballos made the decision to extend the time between visits, and that

10

Tebrock submitted fraudulent data to the court. (ECF No. 44 at 17-18.) But the SAC contains no

11

factual allegations suggesting that there was an agreement or other “meeting of the minds”

12

between or among the named defendants to violate Decedent’s rights. See Olsen v. Idaho State

13

Bd. of Med., 363 F.3d 916, 929-30 (9th Cir. 2004) (dismissing § 1985(3) claim when plaintiff’s

14

complaint was “devoid of any discussion of an agreement . . . to violate her constitutional

15

rights”).12 And plaintiffs fail to allege facts showing how most of the defendants named in this

16

cause of action participated in the alleged conspiracy at all.

17
18

Accordingly, the § 1985(3) cause of action is subject to dismissal. Plaintiffs are, however,
granted leave to amend this claim.

19

E.

20

Plaintiffs’ Sixth and Seventh Causes of Action (which appear to be duplicates of each

Failure to Prevent a Conspiracy under 42 U.S.C. § 1986

21

other) assert a failure to prevent the above-described conspiracy, in violation of 42 U.S.C. § 1986,

22

by all defendants except the CDCR, Dr. DeNigris, Sergeant Brunkhorst, and Officers Asman and

23

Bradley. (ECF No. 44 at 54-55.)

24

////

25
26
27
28

“Since it is often difficult to show direct evidence of a combination or conspiracy, concerted
action may be inferred from circumstantial evidence of the defendant’s conduct and course of
dealings.” Dimidowich v. Bell & Howell, 803 F.2d 1473, 1479 (9th Cir. 1986), reh’g denied and
modified on other grounds, 810 F.2d 1517 (9th Cir. 1987). Plaintiffs also have not provided
sufficient specific circumstantial evidence to supply an inference of a conspiracy.
18
12

1

“Section 1986 imposes liability on every person who knows of an impending violation of

2

section 1985 but neglects or refuses to prevent the violation.” Karim-Panahi, 839 F.2d at 626

3

(citation omitted). A plaintiff can only state a claim under § 1986 if the plaintiff alleges a valid

4

claim under § 1985. Id. Because plaintiffs fail to allege a valid § 1985 claim, their § 1986 claim

5

also fails. Trerice v. Pedersen, 769 F.2d 1398, 1403 (9th Cir. 1985) (“[The Ninth Circuit has]

6

adopted the broadly accepted principle that a cause of action is not provided under 42 U.S.C.

7

§ 1986 absent a valid claim for relief under section 1985.”).

8
9

Accordingly, plaintiffs’ Sixth and Seventh Causes of Action for violation of § 1986 are
dismissed. Plaintiffs are, however, granted leave to amend these claims as well.

10

F.

11

Plaintiffs’ Thirteenth Cause of Action is against only the CDCR for violating Title II of

Disability Discrimination under the ADA & RA

12

the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“RA”).

13

Plaintiffs allege that CDCR violated the ADA and RA by failing to provide services or reasonably

14

accommodate Decedent with access to CDCR programs and services; failing to properly train and

15

supervise its staff and officers on how to “appropriately treat, monitor, and interact with” people

16

with disabilities; and discriminating against Decedent by “limiting his benefits and privileges

17

based solely on his need for antipsychotic medications.” (ECF No. 44 at 61.) Plaintiffs assert

18

that Decedent was “‘stuck’ in his cell because of the ‘heat meds’” and that Decedent “was

19

discriminated against because of his mental illness and his use of antipsychotic medications, in

20

that he suffered from conditions in which a person, as a result of a mental disorder, is unable to

21

provide for his basic personal needs and to protect himself from self-harm.” (Id. at 39, 62.)

22

Title II of the ADA provides that “no qualified individual with a disability shall, by reason

23

of such disability, be excluded from participation in or be denied the benefits of the services,

24

programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

25

42 U.S.C. § 12132. To state a claim under Title II of the ADA, the plaintiff must allege: “(1) he

26

is an individual with a disability; (2) he is otherwise qualified to participate in or receive the

27

benefit of some public entity’s services, programs, or activities; (3) he was either excluded from

28

participation in or denied the benefits of the public entity’s services, programs, or activities, or
19

1

was otherwise discriminated against by the public entity; and (4) such exclusion, denial of

2

benefits, or discrimination was by reason of [his] disability.” Simmons v. Navajo Cty., 609 F.3d

3

1011, 1021 (9th Cir. 2010). The RA provides “identical remedies, procedures and rights.” Vos v.

4

City of Newport Beach, 892 F.3d 1024, 1036 (9th Cir. 2018). Both the ADA and RA apply to

5

state prisons like MCSP. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998); Pierce v. Cty.

6

of Orange, 526 F.3d 1190, 1214 (9th Cir. 2008).

7

Defendants acknowledge that Decedent satisfies the first two elements as a qualified

8

individual with a disability, but they dispute the sufficiency of plaintiffs’ allegations as to the

9

third and fourth elements. (ECF No. 63.1 at 28.) The court agrees with defendants that the SAC

10

fails to allege what specific benefits Decedent was being denied, or that such denial was because

11

of his disability. Although plaintiffs sometimes plead in a conclusory fashion that Decedent was

12

deprived of the unspecified benefits at MCSP “because of his mental illness,” they

13

simultaneously emphasize that the alleged discrimination was “based solely on his need for

14

antipsychotic medications.” (ECF No. 44 at 61-62.) To the extent plaintiffs assert that Decedent

15

received substandard medical care which failed to lessen his psychoses or protect him from self-

16

harm, their allegations cannot support an ADA or RA claim. “The ADA prohibits discrimination

17

because of a disability, not inadequate treatment for a disability.” Simmons, 609 F.3d at 1022

18

(rejecting plaintiffs’ argument that defendant violated the ADA by “depriving [the deceased

19

prisoner] of ‘programs or activit[ies] to lessen his depression’”).
Accordingly, plaintiffs’ Thirteenth Cause of Action is dismissed. Plaintiffs are, however,

20
21

granted leave to amend this claim. Because this count is being dismissed, the court has no

22

occasion to rule on defendants’ request to strike plaintiffs’ demand for punitive damages as to this

23

cause of action.13 (ECF No. 63.1 at 38.)

24

////

25

////

26
27
28

13

The court cautions plaintiffs, however, that punitive damages are not available for violations of
the ADA or RA. Barnes v. Gorman, 536 U.S. 181, 189 (2002); Mark H. v. Lemahieu, 513 F.3d
922, 930 (9th Cir. 2008).
20

1

G.

State Law Claims Against Public Officials & Employees

2

The SAC’s remaining causes of action all arise under California state law. Plaintiffs

3

assert survivorship claims on behalf of Decedent’s estate for negligent supervision and training,

4

common law negligence, failure to summon medical care, violations of California Civil Code

5

§ 52.1 (the “Bane Act”), medical battery, and assault; and they assert claims on their own

6

behalves for wrongful death and negligent infliction of emotional distress.14 (ECF No. 44

7

at 56-64.)

8

1. The Survivorship Causes of Action Against Government Defendants

9

The CDCR defendants move to dismiss each of plaintiffs’ survivorship causes of action

10

on the grounds that plaintiffs have not complied with the California Government Claims Act

11

(“GCA”). (ECF No. 63.1 at 29.)
Under the GCA, set forth in California Government Code sections 810 et seq.,15 a plaintiff

12
13

may not (subject to certain inapplicable exceptions) bring a suit for monetary damages against a

14

public employee or entity unless the plaintiff first timely presented the claim to the California

15

Victim Compensation and Government Claims Board (“Government Claims Board” or “Board”),

16

and the Board acted on the claim, or the time for doing so expired. See Munoz v. California,

17

33 Cal. App. 4th 1767, 1776 (1995) (“The Tort Claims Act requires that any civil complaint for

18

money or damages first be presented to and rejected by the pertinent public entity.”). The

19

purpose of this requirement is “to provide the public entity sufficient information to enable it to

20

adequately investigate claims and to settle them, if appropriate, without the expense of litigation.”

21

City of San Jose v. Superior Court, 12 Cal. 3d 447, 455 (1974) (citations omitted). Compliance

22
23
24
25
26
27
28

14

The SAC is somewhat ambiguous as to whether plaintiffs intend to assert their negligent
infliction of emotional distress claim (the Sixteenth Cause of Action) on their own behalf or on
behalf of Decedent’s estate. The cause of action heading cites the California statute authorizing
survival actions, but the substantive allegations only refer to the “severe emotional distress” of the
plaintiffs themselves. (ECF No. 44 at 63-64.) Going with substance over form, the court thus
construes this claim as belonging to plaintiffs themselves, not to their son’s estate.
Traditionally known as the California “Tort Claims Act,” California courts now refer to these
sections more broadly as the Government Claims Act. See City of Stockton v. Superior Court, 42
Cal. 4th 730, 741-42 & n.7 (Cal. 2007).
21
15

1

with this “claim presentation requirement” constitutes an element of a cause of action for

2

damages against a public entity or official. State v. Superior Court (Bodde), 32 Cal. 4th 1234,

3

1244 (2004).

4

Thus, consistent with state court practice, id. at 1239, federal courts require compliance

5

with the GCA for pendent state law claims that seek damages against California state public

6

employees or entities. Willis v. Reddin, 418 F.2d 702, 704 (9th Cir. 1969); Mangold v.

7

California Public Utilities Commission, 67 F.3d 1470, 1477 (9th Cir. 1995). Such state claims

8

included in a federal action may proceed only if the claims were first presented to the state in

9

compliance with the GCA’s claim presentation requirement. United States v. California, 655

10

F.2d 914, 918 (9th Cir. 1980); Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627 (9th

11

Cir. 1988); Butler v. Los Angeles Cty., 617 F. Supp. 2d 994, 1001 (C.D. Cal. 2008).

12

Broadly speaking, to comply with the claim presentation requirement, claimants must file

13

with the Board a written claim containing specific required information, see Cal. Gov’t Code

14

§ 910; they must file the claim within 6 months of the “accrual of the cause of action,” Cal. Gov’t

15

Code § 911.2 (although there are mechanisms for permitting late claim filing); and they must then

16

file suit within 6 months of receiving notice of the Board’s rejection of their claim, Cal. Gov’t

17

Code § 945.6(a)(1). See Cal. Gov’t Code § 950.2 (cause of action against public employee or

18

former public employee is barred if action against employing public entity is barred). The CDCR

19

defendants, joined by defendants Kuich and Lizarraga as to the claims against them, contest

20

plaintiffs’ compliance with the GCA. They primarily argue that, because plaintiffs failed to file a

21

separate government claim identifying Decedent or Decedent’s estate as the claimant, all the

22

survivorship claims brought on behalf of his estate are barred by the GCA. (ECF No. 63.1 at 30.)

23

The court agrees.
As alleged in the SAC, “Plaintiffs Thomas Schmitz, Dianne Mallia and Estate of William

24
25

Schmitz filed governmental claims” with the Board in July 2019. (ECF No. 44 at 9.) Plaintiffs

26

did not attach a copy of their government claim to the SAC, but the CDCR defendants have

27

////

28

////
22

1

provided a copy of both the claim and the Board’s rejection notice.16 On July 16, 2019, the

2

Government Claims Program received plaintiffs’ government claim, completed on the state’s

3

standard claim form. (ECF No. 63.2 at 10.) The first line of the “Claimant Information” section

4

lists plaintiff Thomas J. Schmitz (Decedent’s father) as the claimant, along with a reference to

5

Attachment A, which lists six people as “Intestate Heirs”: plaintiff Dianne Mallia (Decedent’s

6

mother) as well as Decedent’s two brothers, two sisters, and his grandmother. (Id. at 10, 12.)

7

Decedent’s name does not appear. The fifth line of the Claimant Information section requests an

8

“Inmate or patient number, if applicable,” next to which plaintiffs provided Decedent’s inmate

9

number G35384. (Id. at 10.)

10

In the section for Claim Information, plaintiffs requested $10,015,000, comprising

11

“1.5 million lost future wages, 15,000 funeral expenses, 8.5 million loss of companionship.” (Id.)

12

They indicated that the claim was being filed against numerous state employees, many of whom

13

are named as defendants in the SAC. (Id. at 13-14.) Plaintiffs described the injury as Decedent’s

14

death while in CDCR custody. (Id. at 11.) Plaintiffs asserted that the state was responsible

15

because “William’s death was caused by the state’s gross negligence. This negligence includes,

16

but is not limited to, medical malpractice, transferring [Decedent] to CCCMS from EOP, stopping

17

needed medications and failing to reasonably monitor and care for [Decedent’s] health and well

18

being on January 21, 2019.” (Id.) On July 31, 2019, the Government Claims Program notified

19

plaintiffs by letter that the claim was rejected. (Id. at 15.)
California courts have interpreted the GCA to require that “a plaintiff must ordinarily file

20
21

his or her own claim, and may not sue to recover for his or her own injury in reliance on a claim

22

filed by another injured party, even if the plaintiff’s injury was caused by the same transaction

23

that injured the other party.” California Rest. Mgmt. Sys. v. City of San Diego, 195 Cal. App. 4th

24

1581, 1597 (Ct. App. 2011); see Nelson v. Cty. of Los Angeles, 113 Cal. App. 4th 783, 796 (Ct.

25

App. 2003) (“Where two or more persons suffer separate and distinct injuries from the same act

26

16

27
28

The court grants defendants’ request to take judicial notice of these documents. (ECF
No. 63.2.) See Lawrence v. City of San Bernardino, No. CV04-00336 FMC SGLX, 2005 WL
5950105, at *3 (C.D. Cal. July 27, 2005) (noting that a government claim is a public record that
does not convert a motion to dismiss into a motion for summary judgment).
23

1

or omission, each person must submit a claim, and one cannot rely on a claim presented by

2

another.”). “Unlike a cause of action for wrongful death, a survivor cause of action is not a new

3

cause of action that vests in the heirs on the death of the decedent. It is instead a separate and

4

distinct cause of action which belonged to the decedent before death but, by statute, survives that

5

event.” Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th 1256, 1264 (Ct. App. 2006); see Cal.

6

Code Civ. Proc. § 377.30 (survivorship statute). Thus, a successor in interest pleading a

7

survivorship cause of action in addition to her own personal tort claims acts in two separate

8

capacities. Quiroz, 140 Cal. App. 4th at 1278 (because the “survivor claim, which plaintiff

9

pursued as the decedent’s successor in interest, pleaded injury to the decedent,” and plaintiff’s

10

“wrongful death claim pleaded only injury to plaintiff, acting for herself, as the decedent’s heir,”

11

“these distinct claims are technically asserted by different plaintiffs and they seek compensation

12

for different injuries”).

13

Defendants argue that because the July 2019 government claim does not list “William

14

Thomas Schmitz” or the “Estate of William Thomas Schmitz” as a claimant—and no separate

15

claim was filed by any so-named claimant—all the survivorship causes of action are barred under

16

the GCA. (ECF No. 63.1 at 30-31.) Although defendants cite no California case prohibiting a

17

single government claim from encompassing both a survivor’s and a decedent’s claims arising

18

from the same course of events,17 the court agrees that in this case the July 2019 government

19

claim was inadequate to notify the state that survivorship causes of action would be filed, in

20

addition to wrongful death claims.

21

California courts have proved open to the idea that a single form can sufficiently present

22

both survivorship and individual claims in the right set of circumstances. See Nelson, 113 Cal.

23

App. 4th at 796-98 & n.10 (considering, but ultimately rejecting, the argument that decedent’s

24

mother’s government claim, alone, presented both sets of claims); White v. Moreno Valley

25

Unified Sch. Dist., 181 Cal. App. 3d 1024, 1031-32 (Ct. App. 1986) (concluding that claim form

26

17

27
28

Defendants cite only Quiroz, 140 Cal. App. 4th 1256, a California Court of Appeal case which
establishes that a plaintiff acts in two separate capacities when pursuing a survivor claim in
addition to her own personal claims, while saying nothing about how that principle translates onto
the GCA claim presentation requirement—which was not raised in that case. Id. at 1278.
24

1

submitted by parents on behalf of their minor child adequately presented both the parents’ claim

2

for medical expenses and the child’s other damages). In Nelson, the court of appeal held that the

3

survivorship causes of action had not been properly presented under the GCA because the

4

decedent’s estate did not file a claim, and “since there is nothing in [decedent’s representative’s]

5

claim to suggest it was filed in anything other than her individual capacity, and since the damages

6

described in the claim were for ‘the loss of a son’ (with no mention of any damage incurred by

7

[decedent] before his death).” 113 Cal. App. 4th at 797. The court further noted that the “claim

8

form did not identify the estate and did not identify [plaintiff] as [decedent’s] personal

9

representative,” nor did it “identify any damages recoverable by the estate (e.g., predeath medical

10

expenses or other expenses suffered by [the decedent] before his death).” Id. at 797 n.10.

11

These same problems doom plaintiffs’ government claim here, too. Although the

12

numerous relatives listed as claimants on the claim form suggest that Thomas J. Schmitz

13

(Decedent’s father) was filing in a representative capacity, there is no suggestion that he was

14

filing as a representative of his son or his son’s estate, as opposed to some quasi-class of

15

“intestate heirs.” (ECF No. 63.2 at 10, 12.) The appearance of Decedent’s inmate number on the

16

form’s Claimant Information section makes it a closer question, but the court is not persuaded

17

that this identifier alone would be sufficient to put the state on notice that it should investigate

18

survivorship causes of action. The strongest evidence that plaintiffs’ claim did not present the

19

instant survivorship causes of action is that the claim does not obviously “identify any damages

20

recoverable by the estate.” Nelson, 113 Cal. App. 4th at 797 n.10. The claim simply lists three

21

general categories of damages: “1.5 million lost future wages, 15,000 funeral expenses,

22

8.5 million loss of companionship.” (ECF No. 63.2 at 10.) Each of these types of damages are

23

recoverable in wrongful death actions in California. None describe damages that would only be

24

recoverable by Decedent’s estate, i.e., through a survivorship action.

25

This is because “[s]ection 377.34 [of the California Code of Civil Procedure] limits

26

damages in survival actions to the victim’s pre-death economic losses.” Chaudhry v. City of Los

27

Angeles, 751 F.3d 1096, 1104 (9th Cir. 2014) (citing People v. Runyan, 54 Cal. 4th 849, 862

28

(2012)). Damages recoverable in survival actions in California include the decedent’s “lost
25

1

wages, medical expenses, and any other pecuniary losses incurred before death,” as well as

2

punitive or exemplary damages. Cty. of Los Angeles v. Superior Court (Schonert), 21 Cal. 4th

3

292, 304 (1999) (emphasis added). Accordingly, “[i]n cases where the victim dies quickly there

4

will often be no damage remedy at all under § 377.34.” Chaudhry, 751 F.3d at 1104.

5

The state would have no reason to interpret the $1.5 million requested for “lost future

6

wages” as referring to the amount Decedent might have earned during the day of his death;

7

instead, that amount could most reasonably be viewed as referring to the damages Decedent’s

8

designated survivors might recover in a wrongful death action. See Garcia v. Superior Court, 42

9

Cal. App. 4th 177, 186-87 (Ct. App. 1996) (under California’s wrongful death statutes,

10

“designated surviving relatives or the decedent’s heirs at law can recover pecuniary losses caused

11

by the death, including pecuniary support the decedent would have provided them”). And the

12

other two categories of damages—for “funeral expenses” and “loss of companionship”—certainly

13

would not arise in a survival action, since they are not injuries or expenses Decedent himself

14

suffered before his death. See Quiroz, 140 Cal. App. 4th at 1263-65 (distinguishing wrongful

15

death actions from survivor actions, and noting that the purpose of the California wrongful death

16

statute is “to compensate specified persons—heirs—for the loss of companionship and for other

17

losses suffered as a result of a decedent’s death”). Thus, like the claim in Nelson, plaintiffs’

18

government claim here cannot be construed as presenting both their individual claims and the

19

survivorship claims of Decedent’s estate.

20

Far from strictly applying the GCA to “snare the unwary,” Stockett v. Ass’n of Cal. Water

21

Agencies Joint Powers Ins. Auth., 34 Cal. 4th 441, 446 (2004) (claims statute “should not be

22

applied to snare the unwary where its purpose has been satisfied”), the court reaches this

23

conclusion because the July 2019 government claim did not satisfy the GCA’s purpose: “to

24

provide the public entity sufficient information to enable it to adequately investigate claims and to

25

settle them, if appropriate, without the expense of litigation.” Connelly v. Cty. of Fresno, 146

26

Cal. App. 4th 29, 37-38 (Ct. App. 2006). Plaintiffs’ government claim did not adequately inform

27

the state that plaintiffs contemplated bringing not only a wrongful death action but also a

28
26

1

survivorship action on behalf of Decedent’s estate, preventing the state from adequately assessing

2

its settlement options before plaintiffs filed this suit.

3

Plaintiffs argue that they substantially complied with the GCA, and that defendants cannot

4

now challenge the sufficiency of their claim on a ground which the Government Claims Board

5

did not raise itself. (ECF No. 75 at 33.) But neither argument is availing because, as just

6

discussed, no government claim has been filed for Decedent or Decedent’s estate. See Abrego v.

7

City of Los Angeles, No. CV 15-00039-BRO-JEMx, 2016 WL 9450679, at *10 (C.D. Cal.

8

Sept. 23, 2016) (concluding that GCA substantial compliance doctrine could not save

9

survivorship claims where the problem was “not that Plaintiffs’ government forms were

10

defective, but rather that no government claim at all was filed by or on behalf of Decedent’s

11

estate”); Garber v. City of Clovis, 698 F. Supp. 2d 1204, 1217 (E.D. Cal. 2010) (“Only a ‘claim

12

presented’ triggers the [Cal. Gov’t Code § 911] duty to notify the claimant of defects or

13

omissions.” (quoting Page v. MiraCosta Cmty. Coll. Dist., 180 Cal. App. 4th 471, 493 (Ct. App.

14

2009))).

15

Plaintiffs’ failure to demonstrate compliance with the GCA’s claim presentation

16

requirement with respect to their survivorship claims subjects these causes of action to dismissal

17

for failure to state a claim. State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1243 (2004).

18
19

a. Leave to Amend Certain Claims
The survivorship claims against most of the public employee defendants named in the

20

Eighth, Tenth, Eleventh, and Twelfth Causes of Action should be dismissed with prejudice

21

because the time for filing a claim on behalf of Decedent or Decedent’s estate with respect to the

22

conduct underlying those claims has lapsed—except, as will be discussed, conduct related to the

23

newly discovered endoscopy.

24

As mentioned at the outset, the GCA requires personal injury claims to be filed with the

25

Board “not later than six months after the accrual of the cause of action.” Cal. Gov’t Code

26

§ 911.2. The general rule is that a cause of action accrues when it is “complete with all of its

27

elements.” Norgart v. Upjohn Co., 21 Cal. 4th 383, 397 (1999). January 21, 2019, the date of

28

Decedent’s death, is the latest potential accrual date for the state law survivorship claims for
27

1

negligent supervision and training (Eighth Cause of Action), negligence (Tenth Cause of Action),

2

failure to summon medical care (Eleventh Cause of Action), and Bane Act violations (Twelfth

3

Cause of Action)—again, except as to those claims against the endoscopy defendants for reasons

4

yet to be discussed. Because no claim on behalf of Decedent or Decedent’s estate was presented

5

to the Board within 6 months of that date, plaintiffs would have to resort to the GCA’s various

6

provisions for filing a late claim or being excused from claim filing.

7

Review of these provisions, however, reveals that none would apply to plaintiffs’ present

8

circumstance. Claim amendment would be of no use because amendment must occur before the

9

expiration of § 911.2’s six-month deadline. See Cal. Gov’t Code § 910.6 (governing claim

10

amendment). The time to apply for leave to present a late claim has long passed. See Cal. Gov’t

11

Code § 911.4(b) (requiring late-claim application to be filed “within a reasonable time not to

12

exceed one year after the accrual of the cause of action,” subject to inapplicable provisions for not

13

counting certain periods). And, for the same reason, the time for seeking judicial relief from the

14

claim presentation requirement has run, too. See Cal. Gov’t Code § 946.6 (permitting courts to

15

relieve a petitioner from claim presentation in certain specific situations, if a late-claim

16

application was made within a reasonable time not to exceed that specified in § 911.4(b), i.e.,

17

within one year of accrual); Munoz v. State of California, 33 Cal. App. 4th 1767, 1779 (1995)

18

(“Filing a late-claim application within one year after the accrual of a cause of action is a

19

jurisdictional prerequisite to a claim-relief petition. When the underlying application to file a late

20

claim is filed more than one year after the accrual of the cause of action, the court is without

21

jurisdiction to grant relief under Government Code section 946.6.”). Thus, the court can see no

22

way for plaintiffs to overcome the GCA bar with respect to these claims.

23

Accordingly, the claims against all defendants—except the four endoscopy defendants

24

discussed next—set forth in the Eighth, Tenth, Eleventh, and Twelfth Causes of Action should be

25

dismissed without leave to amend. Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir.

26

2010) (“A district court may deny a plaintiff leave to amend if it determines that allegation of

27

other facts consistent with the challenged pleading could not possibly cure the deficiency . . . .”).

28

////
28

1

With respect to the claims against the defendants involved in the endoscopy—asserted as

2

part of the Eighth, Tenth, Twelfth, Fourteenth, and Fifteenth Causes of Action—plaintiffs argue

3

in their opposition that on September 4, 2020, they submitted a new government claim describing

4

the endoscopy after discovering evidence of that procedure on or around May 26, 2020. (ECF

5

No. 75 at 35-36.) Initially, asserting this argument in opposition briefing cannot cure the SAC’s

6

failure to allege an essential element of their survivorship causes of action against the public

7

employees, i.e., adequate presentation of the estate’s claims. But, even assuming the truth of this

8

argument, filing a new government claim after filing the SAC on July 16, 2020 still would not

9

serve the purpose of claim presentation, as the state still had no pre-suit opportunity to consider

10

the claims related to the endoscopy. See Bodde, 32 Cal. 4th at 1239 (“[F]ailure to timely present

11

a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that

12

entity.”). Nevertheless, it appears that plaintiffs could in a subsequent amended complaint allege

13

timely presentation of a government claim by Decedent’s estate as to the conduct surrounding the

14

endoscopy because of their delayed discovery of those related causes of action.18 Therefore, the

15

causes of action arising from the endoscopy are dismissed with leave to amend.
Accordingly, the SAC’s Eighth Cause of Action should be dismissed with prejudice as to

16
17

all defendants named therein, except Dr. C. Smith, against whom the claims are dismissed with

18
19
20
21
22
23
24
25
26
27
28

Under California law, the “discovery rule” is the “most important” exception to the general rule
that a cause of action accrues when it is complete. Norgart, 21 Cal. 4th at 397. The discovery
rule “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover,
the cause of action.” Id. Taking plaintiffs at their word that they only discovered the occurrence
of the “fraudulent endoscopy” on or around May 26, 2020 after receiving discovery materials
from defendants, it appears that a government claim filed on September 4, 2020 would fall well
within the GCA’s 6-month window for claim filing. See Cal. Gov’t Code § 911.2 (requiring
claim presentation within 6 months of the “accrual of the cause of action”); Garber v. City of
Clovis, 698 F. Supp. 2d 1204, 1212 (E.D. Cal. 2010) (discussing Norgart in determining date of
accrual of cause of action under GCA).
The undersigned expresses no opinion on the sufficiency of any state law claims plaintiffs
may choose to pursue against the endoscopy defendants in a Third Amended Complaint. The
court merely observes that amendment of the causes of action against these four defendants
would not necessarily be futile under the GCA. See City of Stockton v. Superior Court, 42 Cal.
4th 730, 747-48 (2007) (modifying judgment of dismissal to provide opportunity to amend
complaint to meet defendants’ GCA defense where complaint did not “on its face foreclose any
reasonable possibility of amendment”).
29
18

1

leave to amend. The SAC’s Tenth Cause of Action should be dismissed with prejudice as to all

2

defendants named therein, except Drs. Ashe, Rudas, and C. Smith; the claims against these three

3

defendants are dismissed with leave to amend.19 The SAC’s Eleventh Cause of Action should be

4

dismissed in its entirety with prejudice. The SAC’s Twelfth Cause of Action should be dismissed

5

with prejudice as to all defendants named therein, except Drs. Ashe, Rudas, and C. Smith; the

6

claims against these three defendants are dismissed with leave to amend. And the claims in the

7

SAC’s Fourteenth and Fifteenth Causes of Action against Drs. Ashe, Rudas, and C. Smith are

8

dismissed with leave to amend.
Based on this resolution, the court does not address the motion to dismiss plaintiffs’

9
10

prayers for punitive damages against the state health care provider defendants in these counts.

11

However, should plaintiffs reassert the Eighth, Tenth, Twelfth, Fourteenth, or Fifteenth Causes of

12

Action against the endoscopy defendants in a subsequent amended complaint, any prayer for

13

punitive damages therein will be subject to California Civil Procedure Code § 425.13 (see Section

14

I.2, infra).

15

2. Personal Causes of Action Against Government Officials
The SAC’s Ninth and Sixteenth Causes of Action assert plaintiffs’ personal state law

16
17

claims for wrongful death and negligent infliction of emotional distress. (ECF No. 44 at 56-57,

18

63-64.)
a. Negligent Infliction of Emotional Distress (“NIED”)

19
20

The Sixteenth Cause of Action names only Sergeant Brunkhorst, asserting that he

21

negligently reported to the Coroner “a false history that [Decedent] had [a] history of drug

22

smuggling,” which foreseeably caused plaintiffs severe emotional distress.” (Id. at 63-64.)

23

Defendant Brunkhorst argues this cause of action should be dismissed for failure to state a claim

24

because plaintiffs have not alleged that he owed them a duty of care. (ECF No. 63.1 at 34-36.)

25

See Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 984 (1993) (in California, there is no

26
27
28

19

The court will separately address the sufficiency of these claims as to Dr. DeNigris, the only
endoscopy defendant who was not a public employee during the relevant period, and thus has not
moved to dismiss based on the GCA.
30

1

independent tort of NIED, just the general tort of negligence “a cause of action in which a duty to

2

the plaintiff is an essential element”). Plaintiffs have not responded to this argument in their

3

opposition, so the court considers it conceded that Brunkhorst owed plaintiffs no legal duty

4

concerning their emotional condition or otherwise. See Greenawalt v. Ricketts, 943 F.2d 1020,

5

1027 (9th Cir. 1991) (party conceded issue by failing to respond to it in answering brief on

6

appeal). Because the court can envision no circumstance in which Sergeant Brunkhorst might

7

plausibly owe plaintiffs such a duty, the Sixteenth Cause of Action for NIED should be dismissed

8

with prejudice for failure to state a claim.

9

b. Wrongful Death

10

The SAC’s Ninth Cause of Action asserts wrongful-death claims under Cal. Code Civ.

11

Proc. § 377.60 et seq. against all defendants except the CDCR and Sergeant Brunkhorst. (ECF

12

No. 44 at 56.) A subset of the CDCR defendants move to dismiss this cause of action based on

13

various theories which the court will address in turn.

14

First, defendants argue that the SAC fails to plead the elements of a wrongful-death claim

15

against (i) Officer Bradley; (ii) CDCR officials Ceballos and Leidner; and (iii) Drs. Ashe, Rudas,

16

and C. Smith. California Code of Civil Procedure § 377.60 gives plaintiffs like Decedent’s

17

parents standing to bring “[a] cause of action for the death of a person caused by the wrongful act

18

or neglect of another.” Thus, “[t]he elements of the cause of action for wrongful death are the tort

19

(negligence or other wrongful act), the resulting death, and the damages, consisting of the

20

pecuniary loss suffered by the heirs.” Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th 1256,

21

1263-64 (Ct. App. 2006). The elements of the tort of negligence are “a legal duty to use due care,

22

a breach of such legal duty, and the breach as the proximate or legal cause of the resulting

23

injury.” Vasilenko v. Grace Family Church, 3 Cal. 5th 1077, 1083 (2017).

24

The same causation element is missing from the SAC’s wrongful-death claims against

25

each of these sets of defendants. As to Officer Bradley, just as with the deliberate indifference

26

claim against him, plaintiffs have failed to plead how his allegedly wrongful act (the failure to

27

remove a cell window obstruction) caused Decedent’s death which seems to have occurred hours

28

earlier. As to defendants Ceballos and Leidner, the SAC’s only allegations directed to them
31

1

assert that these two CDCR officials changed the requirement that EOP patients like Decedent

2

receive psychiatric evaluations every 30 days, extending it up to 60 days between visits. (ECF

3

No. 44 at 16-18, 21.) According to plaintiffs, this “change was in effect from December 2016 to

4

April 2017.” (Id. at 16.) Again, plaintiffs fail to show the causal connection between this brief

5

policy change and Decedent’s death almost two years later. Although plaintiffs assert that

6

Decedent continually did not receive frequent enough psychiatric visits, which led to his

7

worsening mental state, there is no allegation that defendants Ceballos and Leidner caused a

8

decrease in the frequency of Decedent’s visits past April 2017. And as to Drs. Ashe, Rudas, and

9

C. Smith, although the Ninth Cause of Action does not specify their particular wrongful conduct,

10

the court infers that plaintiffs include them in this count due to their involvement in Decedent’s

11

May 2018 endoscopy. Plaintiffs only directly allege that the false diagnosis of end stage liver

12

disease and the performance of the endoscopy increased Decedent’s suffering and worsened his

13

mental state, not that they caused his death some six months later. Accordingly, the wrongful-

14

death claims against defendants Ashe, Bradley, Ceballos, Leidner, Rudas, and C. Smith are

15

dismissed with leave to amend.

16

Second, the CDCR defendants urge dismissal of the wrongful-death claims (and the other

17

state law claims) against defendants Diaz, Gipson, Kernan, Tebrock, and Toche—who are all

18

publicly appointed officials—under California Government Code section 951. Section 951

19

provides: “[A]ny complaint for damages in any civil action brought against a publicly elected or

20

appointed state or local officer, in his or her individual capacity . . . shall allege with particularity

21

sufficient material facts to establish the individual liability of the publicly elected or appointed

22

state or local officer.” Cal. Gov’t Code § 951. As defendants point out, the only allegations

23

about CDCR Secretary Scott Kernan, CDCR Acting Secretary Ralph Diaz, CDCR Director of

24

Adult Institutions Connie Gipson, and CDCR Undersecretary of Health Care Services Diana

25

Toche appear in the Parties identification section of the SAC. (ECF No. 44 at 4-5.) Plaintiffs

26

generally recite each of these defendants’ supervisory responsibilities for setting and enforcing

27

CDCR policies and ensuring adequate provision of mental health care to inmates. (Id. at 4-5.)

28

And the only additional allegations against CDCR Deputy Director of SMHP Katherine Tebrock
32

1

are that she “knowingly presented fraudulent data” regarding psychiatrist staffing levels to the

2

court in March 2017. (Id. at 7, 17-18, 39.) These allegations do not satisfy § 951’s requirement

3

to plead “with particularity” facts showing that these defendants are liable for Decedent’s January

4

2019 death. Plaintiffs must do more than simply assert that these defendants held leadership roles

5

during the time that Decedent received less than the constitutional standard of medical care.

6

Accordingly, these claims are dismissed with leave to amend.

7

Third, the CDCR defendants argue that California Government Code section 820.8 bars

8

the wrongful-death claims against both the above publicly appointed defendants and the

9

following supervisory defendants: Adams, Brizendine, Brockenborough, Heatley, Ponciano,

10

Rekart. (ECF Nos. 63.1 at 32, 68.) The same argument applies to supervisory defendants Kuich

11

and Lizarraga, who join the motion. (ECF No. 65.)

12

Section 820.8 states in relevant part: “Except as otherwise provided by statute, a public

13

employee is not liable for an injury caused by the act or omission of another person.” Cal. Gov’t

14

Code § 820.8. Section 820.8 essentially immunizes public employees from vicarious liability.

15

Weaver By and Through Weaver v. State of California, 63 Cal. App. 4th 188, 203 (1998). It does

16

not apply where a plaintiff seeks to hold a defendant “personally liable for his conduct as a

17

supervisor.” Johnson v. Baca, No. CV 13-04496 MMM (AJWx), 2014 WL 12588641, at *17

18

(C.D. Cal. Mar. 3, 2014); see also Doe v. Regents of Univ. of Cal., No. CIV. S-06-1043

19

LKK/DAD, 2006 WL 2506670, at *5 (E.D. Cal. Aug. 29, 2006) (denying motion to dismiss

20

based on § 820.8 when liability was premised on defendant supervisor’s direct actions).

21

Taking the SAC as a whole, it does not seem that plaintiffs seek to hold any of these

22

supervisors liable for Decedent’s wrongful death simply because they supervised others whose

23

actions harmed him. But given the dearth of factual allegations explaining each of these

24

individuals’ personal involvement in the circumstances surrounding plaintiff’s care and treatment,

25

that is the distinct impression one gets. Again, in the Parties identification section, plaintiffs

26

allege several of these supervisors’ general oversight responsibilities, but most of these

27

individuals’ names never appear again in the SAC—or, if they do, it is only in passing. (See ECF

28

No. 44 at 6-8.) For instance, the only allegations the court can identify for Dr. Jacob Adams, who
33

1

was a Senior Psychiatrist Specialist on the CDCR Mental Health Quality team, is that Adams was

2

responsible for “overseeing the psychiatric care of inmate patients at MCSP” and discussed

3

Decedent’s care with Decedent’s brother once in June 2017. (Id. at 6-7, 24.) Because the SAC

4

describes no other conduct by Dr. Adams, it looks to the court like plaintiffs’ theory of liability

5

must rest on Adams’ mere status as a supervisor of other psychiatrists whose actions are

6

described in the SAC. Section 820.8 forbids this. The same issue plagues the other supervisory

7

defendants as well.

8
9
10

Based on the current pleadings, the Ninth Cause of Action are dismissed against
defendants Adams, Brizendine, Brockenborough, Heatley, Kuich, Lizarraga, Ponciano, and
Rekart. But plaintiffs are granted leave to amend the SAC to address this deficiency.20

11

H.

12

The SAC’s Ninth, Tenth, Twelfth, Fourteenth, and Fifteenth Causes of Action assert state

State Law Claims Against Dr. DeNigris

13

law personal and survivorship claims against Dr. DeNigris which are not subject to the

14

Government Claims Act because Dr. DeNigris is a private doctor, not a public employee.

15

Dr. DeNigris moves to dismiss only the Twelfth, Fourteenth, and Fifteenth Causes of Action

16

which assert violations of the Bane Act, medical battery, and assault based on the allegedly

17

unnecessary endoscopy. (ECF Nos. 64, 64.1 at 7-9.)

18

1. Bane Act Violation
The SAC’s Twelfth Cause of Action includes a survivorship claim against Dr. DeNigris

19
20

for violating California Civil Code section 52.1 (“the Bane Act”), which imposes liability on a

21

person who “interferes by threat, intimidation, or coercion, or attempts to interfere by threat,

22

intimidation, or coercion, with the exercise” of an individual’s constitutional rights. Cal. Civ.

23

Code § 52.1(b). Plaintiffs allege that Dr. DeNigris and the three other state doctors “coerced

24

[Decedent] into a fraudulent procedure” by giving Decedent a false diagnosis of liver disease and

25
26
27
28

20

The same deficiency also exists with respect to the other state law causes of action, which the
court does not discuss substantively because they are currently barred by the Government Claims
Act.
34

1

claiming he “risked death from bleeding into his throat” if he refused the procedure. (ECF No. 44

2

at 59-60.)

3

The allegations in the SAC do not support the conclusory statement that Dr. DeNigris

4

coerced Decedent into undergoing the endoscopy. A plaintiff bringing a claim under the Bane

5

Act “must show (1) intentional interference or attempted interference with a state or federal

6

constitutional or legal right, and (2) the interference or attempted interference was by threats,

7

intimidation or coercion.” Allen v. City of Sacramento, 234 Cal. App. 4th 41, 67 (Ct. App.

8

2015), modified on denial of reh’g (Mar. 6, 2015). Plaintiffs simply have not pleaded facts that

9

make it plausible that Dr. DeNigris coerced Decedent. According to the SAC, Dr. DeNigris saw

10

Decedent on one occasion to perform the endoscopy, after plaintiff had been informed of and

11

agreed to the procedure. (ECF No. 44 at 40.) There is no suggestion that at that appointment

12

Dr. DeNigris threatened, intimidated, or coerced Decedent. Therefore, the Twelfth Cause of

13

Action against Dr. DeNigris should be dismissed. Plaintiffs are granted leave to amend this claim

14

against Dr. DeNigris, however, in case they can supplement the pleadings as to Dr. DeNigris’s

15

coercive actions.

16
17

2. Medical Battery and Assault
The SAC’s Fourteenth and Fifteenth Causes of Action include survivorship claims against

18

Dr. DeNigris for medical battery and assault. (ECF No. 44 at 62-63.) Plaintiffs allege that

19

Decedent’s consent to the May 4, 2018 endoscopy was “based on fraud and invalid,” and that

20

Dr. DeNigris performed the endoscopy despite knowing that Decedent did not need it, in order to

21

generate medical fees. (Id. at 39-40, 62-63.)

22

Under California law, civil assault is a demonstration of intent to inflict immediate injury

23

on the person of another then present and is based on an invasion of a person’s right to live

24

without being put in fear of personal harm. See Lowry v. Standard Oil Co. of Cal., 63 Cal.

25

App. 2d 1, 6-7 (1944); Cal. Civil Code § 43 (general personal rights). A classic example of an

26

assault is the pointing of a gun at another in a threatening manner. See Lowry, 63 Cal. App. 2d

27

at 7. The SAC’s allegations are insufficient to establish the tort of assault because plaintiffs have

28

not alleged any action by Dr. DeNigris that placed Decedent in fear of immediate bodily injury.
35

1

Plaintiffs state that Decedent only consented to the procedure because he was told his alternative

2

was “potentially dying from bleeding into his throat.” (ECF No. 44 at 63.) But that is far from

3

alleging that, for instance, Dr. DeNigris put Decedent in fear that Dr. DeNigris was about to cause

4

Decedent’s throat to bleed. The SAC’s Fifteenth Cause of Action against Dr. DeNigris is thus

5

subject to dismissal. Plaintiffs are granted leave to amend this claim, in case they can assert

6

additional facts from the endoscopy appointment that would show some conduct by Dr. DeNigris

7

that made Decedent fear for his personal safety.

8
9

The court reaches the same conclusion for the Fourteenth Cause of Action for battery. In
California, “battery is any intentional, unlawful and harmful contact by one person with the

10

person of another.” Ashcraft v. King, 228 Cal. App. 3d 604, 611 (Ct. App. 1991). In the medical

11

context, battery “occurs when a doctor performs a procedure without obtaining any consent.”

12

Saxena v. Goffney, 159 Cal. App. 4th 316, 324 (Ct. App. 2008). In his motion to dismiss,

13

Dr. DeNigris relies on the California Supreme Court case Cobbs v. Grant, which holds that

14

“[w]here a doctor obtains consent of the patient to perform one type of treatment and

15

subsequently performs a substantially different treatment for which consent was not obtained,

16

there is a clear case of battery.” 8 Cal. 3d 229, 239 (1972). Dr. DeNigris argues that the SAC

17

contains no facts showing that he knew Decedent did not need the endoscopy, nor does it allege

18

that the procedure he performed was substantially different from the one to which Decedent

19

consented. (ECF No. 64.1 at 9.) Plaintiffs counter that because Decedent’s consent was

20

fraudulently induced, there was no valid consent to the endoscopy. (ECF No. 75 at 39-40.)

21

The court is only partially persuaded by Dr. DeNigris’ arguments. Initially, “battery

22

requires no showing of ‘scienter’ or any intent to do wrong—only an intent to cause the harmful

23

unconsented touching,” in this case the endoscopy. Freedman v. Superior Court, 214 Cal. App.

24

3d 734, 739-40, (1989) (citing Rest. 2d Torts (1965) § 13). So Dr. DeNigris’ knowledge of the

25

procedure’s necessity or unnecessity might seem to be irrelevant. But here the question of

26

whether plaintiffs have adequately pleaded lack of consent turns on such knowledge.

27
28

“The element of lack of consent to the particular contact is an essential element of
battery.” Rains v. Superior Court, 150 Cal. App. 3d 933, 938 (1984). Dr. DeNigris argues
36

1

essentially that because plaintiff consented to an endoscopy, and an endoscopy is what he got,

2

there can be no battery. This is an overly simplistic view of consent, as shown by the cases

3

plaintiffs cite. California case law is clear that a doctor’s fraudulent misrepresentations about the

4

therapeutic nature of a proposed procedure can vitiate a patient’s consent. Rains, 150 Cal. App.

5

3d at 936-42 (psychiatric patients agreed to beat each other up after defendants fraudulently

6

represented to them this “sluggo therapy” would have a therapeutic benefit). As the court

7

observed in Rains, “[i]f a physician, for the sole secret purpose of generating a fee, intentionally

8

misrepresented to a patient that an unneeded operation was necessary, it is beyond question that

9

the consent so obtained would be legally ineffective.” Id. at 941. That is precisely the scenario

10

presented in the SAC: that, in an attempt to generate medical fees, prison doctors told Decedent

11

he required an endoscopy as part of the treatment for his supposed end stage liver disease, when

12

in fact (according to plaintiffs) he had no signs of liver disease and there was no therapeutic

13

purpose for the endoscopy. (ECF No. 44 at 34-35, 39-40.) These allegations place plaintiffs’

14

battery claim on par with the battery claim accepted as sufficient to defeat a motion to dismiss in

15

Rains because the “therapeutic versus nontherapeutic purpose” of the objectionable procedure

16

“goes to the ‘essential character of the act itself’ and thus vitiates consent obtained by fraud as to

17

that character.” 150 Cal. App. 3d at 941 (quoting Prosser on Torts (4th ed. 1971) § 18).

18

But there remains a critical flaw in the SAC’s pleadings on this point, nonetheless. For

19

the same reason that the court concluded plaintiffs have failed to allege deliberate indifference by

20

Dr. DeNigris and the three prison doctors in recommending and performing the endoscopy,

21

plaintiffs have failed to assert facts supporting their theory that defendants’ actions were based on

22

fraud. As to Dr. DeNigris, specifically—the only doctor not subject to the current Government

23

Claims Act bar—the SAC includes no allegation plausibly suggesting that he knew there was no

24

medical purpose for the endoscopy, or that he performed the procedure purely for financial gain.

25

The only applicable allegations are that a more thorough review of Decedent’s medical file would

26

have shown that Decedent had no history of cirrhosis, making an endoscopy unnecessary, and

27

that Dr. DeNigris later assigned an incorrect billing code for the procedure. (ECF No. 44

28

at 39-40.) This is not enough to support plaintiffs’ position that “fraud is the most likely
37

1

conclusion” and that Dr. DeNigris therefore performed the endoscopy without Decedent’s

2

consent.

3

Accordingly, the Fourteenth Cause of Action against Dr. DeNigris is also subject to

4

dismissal. Plaintiffs are granted leave to amend this claim to assert additional facts showing that

5

Decedent’s consent to the endoscopy was based on fraudulent misrepresentations. The court

6

notes that Dr. DeNigris has not challenged plaintiffs’ Tenth Cause of Action against him for

7

negligence, recovery for which does not require showing a lack of consent based on fraud.

8

I.

9

Finally, the moving defendants challenge plaintiffs’ requests for punitive damages in

Requests for Punitive Damages

10

certain of their state law causes of action. (ECF Nos. 63, 64.) Based on the court’s current

11

resolution of the above causes of action, only two of the challenged punitive damages requests

12

require addressing: (1) those sought in the Ninth Cause of Action for wrongful death, where

13

undismissed claims remain against ten defendants, and (2) those sought in the Tenth Cause of

14

Action for negligence where only the claims against Dr. DeNigris remain active.

15

1. Punitive Damages for Wrongful Death Claims Are Barred

16

Punitive damages are not recoverable for the Ninth Cause of Action for Decedent’s

17

wrongful death. (See ECF No. 44 at 57.) In California, punitive damages may only be recovered

18

for wrongful death against a person convicted of a felony homicide in the decedent’s death. Cal.

19

Civ. Code § 3294(d). Other than that statutory exception, punitive damages are not recoverable

20

in a wrongful death action. Tarasoff v. Regents of the Univ. of Calif., 17 Cal. 3d 425, 450 (1976).

21

Because no defendant in this case has been convicted of a felony homicide, punitive damages are

22

not recoverable for Decedent’s wrongful death. Plaintiffs do not argue otherwise. Therefore, the

23

motion to dismiss plaintiffs’ wrongful-death punitive damages claims against the moving

24

defendants should be granted and the claims dismissed with prejudice.

25
26

2. Punitive Damages for Negligence Claim Against Dr. DeNigris
Dr. DeNigris seeks to dismiss plaintiffs’ claims for punitive damages arising from the

27

Tenth Cause of Action against him for medical negligence, on the ground that plaintiffs have not

28

complied with California Civil Procedure Code § 425.13, a state court rule requiring plaintiffs to
38

1

obtain leave of court to seek punitive damages from a healthcare provider on a claim for

2

professional negligence. (ECF No. 64.1 at 9-10.)

3

Unlike the CDCR defendants who challenge the punitive damages requests under

4

Rule 12(b)(6), (ECF No. 63 at 3), Dr. DeNigris moves to strike plaintiffs’ prayer for punitive

5

damages under Rule 12(f). (ECF No. 64 at 2.) But the Ninth Circuit has held that “Rule 12(f)

6

does not authorize a district court to strike a claim for damages on the ground that such damages

7

are precluded as a matter of law.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 971,

8

974-75 (9th Cir. 2010). This alone is grounds to deny Dr. DeNigris’ motion to strike. See Fed.

9

R. Civ. Pro. 12(f) (permitting the court to strike from a pleading only “an insufficient defense or

10

any redundant, immaterial, impertinent, or scandalous matter”); Estate of Prasad ex rel. Prasad v.

11

Cty. of Sutter, 958 F. Supp. 2d 1101, 1128 (E.D. Cal. 2013) (denying motion to strike prayer for

12

punitive damages where defendant had not shown Rule 12(f) to be an authorized or proper

13

vehicle for such relief). But, given that plaintiffs have briefed the substance of the punitive

14

damages challenge in their opposition, the undersigned will construe Dr. DeNigris’ motion to

15

strike as a motion to dismiss, as other courts have sometimes done in similar situations. See

16

Rhodes v. Placer Cty., No. 2:09-CV-00489-MCE-KJN, 2011 WL 1302240, at *20 & n.18 (E.D.

17

Cal. Mar. 31, 2011) (collecting cases), report and recommendation adopted, 2011 WL 1739914

18

(E.D. Cal. May 4, 2011).

19

Section 425.13 provides, as relevant:

20

In any action for damages arising out of the professional negligence
of a health care provider, no claim for punitive damages shall be
included in a complaint or other pleading unless the court enters an
order allowing an amended pleading that includes a claim for
punitive damages to be filed.

21
22
23

Cal. Civ. Proc. Code § 425.13(a). And before the court can permit the punitive damages request

24

the plaintiff must establish a “substantial probability that [she] will prevail on the claim pursuant

25

to Section 3294 of the Civil Code.” Id. Section 3294, in turn, permits recovery of punitive

26

damages for negligence only where there is “clear and convincing evidence that the defendant has

27

been guilty of oppression, fraud, or malice.” Cal. Civ. Code § 3294(a).

28

////
39

1

There is a great jurisdictional split on whether this statute applies in federal court, a

2

question which the Ninth Circuit has not addressed. See Scalia v. Cty. of Kern, 308 F. Supp. 3d

3

1064, 1091 (E.D. Cal. 2018); Gomez v. Madden, No. 16-CV-2316-WQH(WVG), 2020 WL

4

4336094, at *11 (S.D. Cal. July 28, 2020), report and recommendation adopted, 2020 WL

5

5363301 (S.D. Cal. Sept. 8, 2020). Even within this district, courts have drawn different

6

conclusions. Compare Shekarlab v. Cty. of Sacramento, No. 2:18-CV-00047-JAM-EFB, 2018

7

WL 1960819, at *2-4 (E.D. Cal. Apr. 26, 2018) (finding § 425.13 applicable in federal court);

8

Elias v. Navasartian, No. 11:5-CV-01567-LJO-GSA PC, 2017 WL 1013122, at *5 (E.D. Cal. Feb.

9

17, 2017) (collecting Eastern district cases applying § 425.13), report and recommendation

10

adopted, 2017 WL 977793 (E.D. Cal. Mar. 13, 2017), with Scalia, 308 F. Supp. 3d at 1090-91

11

(finding § 425.13 procedural and inapplicable in federal court); Estate of Prasad, 958 F. Supp. 2d

12

at 1119-20 (collecting cases across California district courts and finding § 425.13 inapplicable

13

because of conflict with Fed. R. Civ. P. 8(a)(3)).

14

In resolving state law diversity claims, federal courts apply procedural rules as stated in

15

the Federal Rules of Civil Procedure, but under the Erie exception apply the substantive law of

16

the forum state. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). “Courts applying [§ 425.13]

17

either have found it to be ‘intimately bound’ to state substantive law and therefore a substantive,

18

rather than procedural rule, or have found the plaintiff’s punitive damages claims largely arise

19

under state law and the state law should therefore apply.” Elias, 2017 WL 1013122, at *5

20

(collecting cases). Dr. DeNigris urges the application of § 425.13 to strike plaintiffs’ request for

21

punitive damages against him in the negligence count (ECF Nos. 64.1 at 9-10, 78 at 3-4), while

22

plaintiffs rely on the cases finding § 425.13 inapplicable as a procedural rule (ECF No. 75

23

at 40-42). The undersigned agrees with Dr. DeNigris and those courts applying § 425.13 as a

24

substantive rule that should govern state law claims even when brought in federal court.

25

Section 425.13 does not simply govern the timing or order of requesting punitive damages

26

for medical negligence claims. Instead, it requires a plaintiff to show a “substantial probability”

27

of prevailing on a claim for punitive damages under the heightened standard set forth in

28

California Civil Code § 3294(a). See Cal. Civ. Proc. Code § 425.13(a). Assessing whether such
40

1

a showing has been made necessarily requires analyzing the strength of the substance of

2

plaintiffs’ claims of professional negligence. Here, plaintiffs claim that the endoscopy performed

3

by Dr. DeNigris was unnecessary and harmful, and that his actions were “malicious, wanton, and

4

oppressive.” (ECF No. 44 at 58.) An inquiry into the strength of such claims—as required by

5

§ 425.13 and § 3294—cannot be done without inquiring into the substantive law of the cause of

6

action, the nature and extent of the endoscopy, and its medical indications.

7

Indeed, § 425.13 was enacted to establish precisely this sort of judicial screening of such

8

claims. Cent. Pathology Serv. Med. Clinic, Inc. v. Super. Ct., 3 Cal. 4th 181, 189 (1992)

9

(“[B]ecause it was concerned that unsubstantiated claims for punitive damages were being

10

included in complaints against health care providers, the [California] Legislature sought to

11

provide additional protection by establishing a pretrial hearing mechanism by which the court

12

would determine whether an action for punitive damages could proceed.”). The § 425.13 inquiry

13

“requires courts to examine the substance of a plaintiff’s claims and block unsubstantiated

14

pursuits of punitive damages early in litigation.” Shekarlab, 2018 WL 1960819, at *4. See Allen

15

v. Woodford, No. 1:05-CV-01104-OWW-LJO, 2006 WL 1748587, at *22 (E.D. Cal. June 26,

16

2006) (granting motion to strike punitive damages and holding that, because § 425.13 is so

17

“intimately bound up” with the substantive law of the underlying state law claims arising from the

18

rendering of professional medical services, it must be applied by federal courts when addressing

19

the issue of punitive damages against medical providers for state law claims); Thomas v.

20

Hickman, No. CV F 06-0215 AWI SMS, 2006 WL 2868967, at *38-41 (E.D. Cal. Oct.6, 2006).

21

The undersigned is not persuaded by the reasoning of other sister district courts that have

22

held § 425.13 “is essentially a method of managing or directing a plaintiff’s pleadings, rather than

23

a determination of substantive rights” and have declined to apply it because “federal courts

24

readily accomplish the purposes contemplated by section 425.13 through their case management

25

procedures.” Jackson v. E. Bay Hosp., 980 F. Supp. 1341, 1352-53 (N.D. Cal. 1997); see Scalia,

26

308 F. Supp. 3d at 1091 (adopting Jackson’s logic and holding that § 425.13 “does not affect the

27

substance of the negligence claim or burden of proof for punitive damages but merely manages

28

the pleadings by dictating how and when a plaintiff may plead the request”). The undersigned
41

1

fails to see how “the federal courts’ authority to manage their own calendars obviates the

2

propriety of respecting [the] legislative balancing” achieved through § 425.13. Shekarlab, 2018

3

WL 1960819, at *4.

4

Plaintiffs have neither requested nor obtained an order from the court allowing for

5

recovery of punitive damages. Therefore, the court grants the motion to dismiss plaintiffs’

6

request for punitive damages against defendant DeNigris in the Tenth Cause of Action for

7

medical negligence. The punitive damages claim is dismissed without prejudice, however. If

8

plaintiffs wish to pursue punitive damages from Dr. DeNigris on this count, they will have 30

9

days from the date of the district court’s forthcoming resolution of the enclosed findings and

10

recommendations to file documents attempting to make the “substantial probability” showing

11

required under California Civil Procedure Code § 425.13.

12

J.

13

If the court finds that a complaint or claim should be dismissed for failure to state a claim,

Leave to Amend

14

the court has discretion to dismiss with or without leave to amend. Leave to amend should be

15

granted if it appears possible that the defects in the complaint could be corrected, especially if a

16

plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); Cato v.

17

United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to

18

amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that

19

the deficiencies of the complaint could not be cured by amendment.” (citing Noll v. Carlson, 809

20

F.2d 1446, 1448 (9th Cir. 1987))). However, if, after careful consideration, it is clear that a claim

21

cannot be cured by amendment, the Court may dismiss without leave to amend. Cato, 70 F.3d

22

at 1105-06. As discussed above and detailed in the below order, the court dismisses some claims

23

with leave to amend, and recommends dismissing others without leave to amend.

24

Any Third Amended Complaint plaintiffs might choose to file shall be limited to the

25

defendants named and causes of action asserted in the SAC, unless plaintiffs first obtain leave

26

of court. Further, plaintiffs are cautioned that renewed claims against the dismissed defendants

27

that are identical or substantially similar to those contained in their SAC will likely be subject to

28

dismissal without leave to amend. If plaintiffs find that they cannot sufficiently plead a certain
42

1

claim against certain defendants, they are instructed to follow Federal Rule of Civil Procedure 41

2

concerning voluntary dismissals of actions without prejudice.

3

Plaintiffs are additionally cautioned that the court cannot refer to a prior complaint or

4

other filing in order to make their amended complaint complete. Local Rule 220 requires that an

5

amended complaint be complete in itself without reference to any prior pleading. As a general

6

rule, an amended complaint supersedes the original complaint, and once an amended complaint is

7

filed, the prior complaint no longer serves any function in the case.

8
9
10

Alternatively, should plaintiffs wish to simply proceed on the surviving claims in the
SAC, this action would go forward with the following claims, subject to the district court’s
adoption of these findings and recommendations:

11

1. Eighth Amendment claims of deliberate indifference against defendants Andaluz,

12

Branman, J. Johnson, R. Johnson, Ramkumar, Robinson, and M. Smith;

13

2. Eighth Amendment claims of deliberate indifference against all supervisors named

14

in the Second and Third Causes of Action;

15

3. Fourteenth Amendment claims of deprivation of familial relations against

16

defendants Adams, Andaluz, Branman, Brizendine, Brockenborough, Ceballos,

17

Diaz, Gipson, Heatley, J. Johnson, R. Johnson, Kernan, Kuich, Leidner, Lizarraga,

18

Ponciano, Ramkumar, Rekart, Robinson, M. Smith, Tebrock, and Toche;

19

4. Wrongful death claims against defendants Andaluz, Asman, Branman, DeNigris,

20

J. Johnson, R. Johnson, Ramkumar, Robinson, M. Smith, and Wanie; and

21

5. A negligence claim against Dr. DeNigris, without punitive damages.

22

If plaintiffs prefer to proceed on these claims, rather than file a Third Amended

23

Complaint, they should so notify the court within thirty (30) days of the date of the District

24

Judge’s forthcoming order regarding the enclosed findings and recommendations.

25

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26

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27

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28

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43

1

CONCLUSION
For the reasons set forth above, it is HEREBY ORDERED that:

2

1. Defendants’ motions to dismiss (ECF Nos. 63, 64) are GRANTED IN PART and

3

DENIED IN PART:

4

a. The motions to dismiss the First Cause of Action for deliberate indifference by

5
6

Drs. Ashe, DeNigris, Rudas, and C. Smith arising from their actions related to the

7

May 2018 endoscopy are GRANTED, and those claims are dismissed with leave

8

to amend;

9

b. To the extent defendants Lizarraga and Kuich move for dismissal of the Second,

10

Third, and Fourth Causes of Action against them, their motion is DENIED;

11

c. The motions to dismiss the Fourth Cause of Action for deprivation of familial

12

relations by Drs. Ashe, DeNigris, Rudas, and C. Smith arising from their actions

13

related to the May 2018 endoscopy are GRANTED, and those claims are

14

dismissed with leave to amend;
d. The motions to dismiss the Fifth, Sixth, and Seventh Causes of Action for

15
16

violations of 42 U.S.C. §§ 1985(3) and 1986 are GRANTED, and those claims are

17

dismissed in their entirety, with leave to amend;

18

e. The motion to dismiss the Eighth Cause of Action for negligent supervision by

19

Dr. C. Smith arising from his actions related to the May 2018 endoscopy is

20

GRANTED, and those claims against him are dismissed with leave to amend;
f. The motions to dismiss the Ninth Cause of Action for wrongful death by all

21
22

defendants named therein are GRANTED, and those claims are dismissed in their

23

entirety, with leave to amend;

24

g. The motion to dismiss the Tenth Cause of Action for negligence by Drs. Ashe,

25

Rudas, and C. Smith is GRANTED, and the claims against them are dismissed

26

with leave to amend;

27

////

28

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44

1

h. The motions to dismiss the Twelfth Cause of Action for violations of California

2

Civil Code § 52.1 by Drs. Ashe, DeNigris, Rudas, and C. Smith are GRANTED,

3

and the claims against them are dismissed with leave to amend;

4

i. The motion to dismiss the Thirteenth Cause of Action for violations of the

5

Americans with Disabilities Act and the Rehabilitation Act is GRANTED, and

6

those claims are dismissed in their entirety, with leave to amend;

7

j. The motions to dismiss the Fourteenth Cause of Action for medical battery are

8

GRANTED, and all claims are dismissed with leave to amend; and

9

k. The motions to dismiss the Fifteenth Cause of Action for assault are GRANTED,

10

and all claims are dismissed with leave to amend.

11

2. Dr. DeNigris’ motion to strike plaintiffs’ punitive damages claims in the Tenth Cause of

12

Action, construed as a motion to dismiss under Rule 12(b)(6), is GRANTED. Plaintiffs’

13

claims and prayer for punitive damages in the Tenth Cause of Action as against Dr.

14

DeNigris are dismissed without prejudice. If plaintiffs wish to pursue punitive damages

15

from Dr. DeNigris on this count, they will have fifteen (15) days from the date of the

16

District Judge’s forthcoming order regarding the enclosed findings and recommendations

17

to file documents attempting to make the “substantial probability” showing required under

18

California Civil Procedure Code § 425.13.
3. Within thirty (30) days of the date of the District Judge’s forthcoming order regarding

19
20

the enclosed findings and recommendations plaintiffs shall file an amended complaint,

21

which shall be captioned “Third Amended Complaint,” or shall notify the court that they

22

wish to proceed on the non-dismissed causes of action asserted in their Second Amended

23

Complaint.

24

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25

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26

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27

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28

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45

1
2

Additionally, IT IS HEREBY RECOMMENDED that:
1. Defendants’ motions to dismiss (ECF Nos. 63, 64) be GRANTED IN PART:

3

a. The motion to dismiss the First Cause of Action for deliberate indifference be

4

granted as to defendants Asman, Bradley, and Wanie, and those claims be

5

dismissed with prejudice;

6

b. The motion to dismiss the Fourth Cause of Action for deprivation of familial

7

relations be granted as to defendants Asman, Bradley, and Wanie, and those claims

8

be dismissed with prejudice;

9

c. The motion to dismiss the Eighth Cause of Action for negligent supervision and

10

training be granted as to all defendants named therein except Dr. C. Smith, and

11

those claims be dismissed with prejudice;

12

d. The motion to dismiss the Tenth Cause of Action for negligence be granted as to

13

all moving defendants except Drs. Ashe, Rudas, and C. Smith, and those claims be

14

dismissed with prejudice;

15
16
17

e. The motion to dismiss the Eleventh Cause of Action be granted, and the claims be
dismissed in their entirety with prejudice;
f. The motion to dismiss the Twelfth Cause of Action for violations of California

18

Civil Code § 52.1 be granted as to all defendants named therein except Drs. Ashe,

19

DeNigris, Rudas, and C. Smith, and those claims be dismissed with prejudice;

20

g. The motion to dismiss the Sixteenth Cause of Action for negligent infliction of

21

emotional distress be granted, and the claims be dismissed in their entirety with

22

prejudice; and

23

h. The motion to dismiss plaintiffs’ punitive damages claim in the Ninth Cause of

24

Action for wrongful death be granted, and those claims be dismissed with

25

prejudice.

26

These findings and recommendations are submitted to the United States District Judge

27

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14)

28

days after being served with these findings and recommendations, any party may file written
46

1

objections with the court and serve a copy on all parties. Such a document should be captioned

2

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

3

shall be served on all parties and filed with the court within fourteen (14) days after service of the

4

objections. The parties are advised that failure to file objections within the specified time may

5

waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th

6

Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

7

Dated: November 13, 2020

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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