Haines v. Brand et al

Filing 77

ORDER by Judge Yvonne Gonzalez Rogers granting 57 Defendants' Motion to Dismiss. The 6/19/2012 Hearing date is VACATED. (fs, COURT STAFF) (Filed on 6/14/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARK HAINES,

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Plaintiff,

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Case No.: 11-CV-01335 YGR
ORDER GRANTING DEFENDANTS’ MOTION TO
DISMISS

vs.
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DARYL B. BRAND, MFT et al.,
Defendants.

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Northern District of California

United States District Court

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Plaintiff Mark Haines alleges that his Fourth and Fourteenth Amendment rights were violated

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when he was taken into custody pursuant to California Welfare and Institutions Code § 5150,1 and

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transported to Alta Bates Medical Center for a 72-hour observation. Haines has sued Daryl Brand, a

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City of Berkeley mental health clinician who made the decision to detain Haines, the supervisor and

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managers in Brand’s reporting chain, David Wee, Harvey Tureck and Fred Medrano, and the City of

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Berkeley.2 Plaintiff’s Second Amended Complaint alleges five causes of action: (1) violation of the

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Fourth Amendment to the Constitution of the United States against Brand, in her individual and

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official capacities, and against the City of Berkeley; (2) Deprivation of Due Process under the

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Fourteenth Amendment to the United States Constitution against Brand, individually and in her

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official capacity, and against Wee in his official capacity as supervisor of Brand; (3) Denial of Equal

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Protection under the Fourteenth Amendment to the United States Constitution against Tureck and

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1

California Welfare and Institutions Code § 5150 (referred to herein as “Section 5150”) authorizes arrest where
a person poses a danger to himself or others. More specifically, pursuant to Section 5150, an individual may be
taken into custody and placed in an appropriate facility for observation and treatment when officials have
probable cause to believe that the person, “as a result of mental disorder, is a danger to others, or to himself or
herself, or gravely disabled.” Cal. Welf. & Inst. Code § 5150.

2

Defendants Daryl B. Brand, David Wee, Harvey S. Tureck, and Fred Madrano are current or former
employees of the City of Berkeley, which operates the Berkeley Free Clinic (“BFC”) and also is a Defendant in
this case. Second Amended Complaint ¶¶ 6-10.

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Med
drano in thei official cap
ir
pacities as administrator for the Cit of Berkele all pursu to 42
rs
ty
ey,
uant

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U.S.C. § 19833; and state law claims for (4) False Im
w
r
mprisonmen against Bra in her in
nt
and
ndividual

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capa
acity; and (5) Intentional Infliction of Emotional Distress ag
l
o
l
gainst Brand in her indiv
vidual capacity.
Defenda have mo
ants
oved to dism the Secon through F
miss
nd
Fifth causes of action on the grounds
n

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that the Second and Third ca
auses of acti fail to sta a claim, t Fourth c
ion
ate
the
cause of actio was alrea
on
ady

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dism
missed witho leave to amend, and the Defendan is entitled to absolute or qualified immunity as
out
a
t
ant
d
e
d
a

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to th Fourth an Fifth causes of action.
he
nd
Having carefully con
c
nsidered the papers subm
mitted and th pleadings in this actio and for th
he
on,
he

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reas
sons set forth below, the Court hereb GRANTS t Motion t Dismiss WITH LEAVE TO AMEND
h
by
the
to
E
D

4
Infli
iction of Em
motional Dist
tress is DISM
MISSED WITH PREJUDICE, again.
H
E

12
Northern District of California

the Second, Thir and Fourt Causes of Action. Pla
S
rd
th
f
aintiff’s Fifth Cause of A
h
Action for In
ntentional

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United States District Court

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I.

BACKG
GROUND
Haines, who is proce
w
eeding pro se, alleges as follows: Pl
s
laintiff is an “unemploye transient
ed

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who routinely tr
o
ravels and sleeps in his car.” Second Amended C
c
d
Complaint (“SAC”) ¶ 11 Dkt. No. 56.
1,
5

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At approximatel 5:45 p.m. on Friday, December 4, 2009, Plain walked into the Ber
a
ly
D
,
ntiff
rkeley Free

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Clin (“BFC”) in response to a handbil advertising “peer coun
nic
ll
g
nseling.” Id. ¶¶ 14, 15. P
Plaintiff was
s

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suff
fering from an upper resp
a
piratory tract infection, f
fatigue, hung frustrati and anxie and was
ger,
ion
ety,
s

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look
king for emo
otional suppo to speak about person emotiona matters, in
ort
a
nal
al
ncluding his frustration and
a

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anxi
iety. Id. ¶¶ 19-23. Plain was info
1
ntiff
ormed that n peer coun
no
nselor was av
vailable, and he waited for
d
f

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a co
ounselor. Id. ¶¶ 31-32.

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As Haines waited, police officer arrived at B
rs
BFC, one of whom Plain alleges prevented him
f
ntiff
h

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from leaving and told him to “stay insid when Pla
m
o
de”
aintiff attemp to go ou
pted
utside to smoke a cigarette.

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Sec
ction 1983 pr
rovides that:
Every per
rson who, und color of any statute, or
der
a
rdinance, regu
ulation, custom, or usage, of any
State or Territory or th District of Columbia, su
T
he
ubjects, or cau to be sub
uses
bjected, any c
citizen of
the Unite States or ot
ed
ther person within the juris
w
sdiction there to the depr
eof
rivation of an rights,
ny
privileges or immunit secured by the Constitu
s,
ties
b
ution and law shall be lia to the pa
ws,
able
arty
injured in an action at law, suit in equity, or othe proper proc
n
e
er
ceeding for re
edress.
42 U.S.C § 1983.
C.

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Pur
rsuant to Fede Rule of Civil Procedu 78(b) and Civil Local R 7-1(b), th Court finds that this
eral
C
ure
Rule
he
moti which ha been notice for hearing on June 19, 2
ion,
as
ed
g
2012, is appro
opriate for de
ecision withou oral
ut
argu
ument. Accor
rdingly, the Court VACATE the hearing set for June, 19 2012.
C
ES
g
2

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Id. ¶¶ 36-46. Defendant Da Brand th arrived a escorted him to an in
¶
aryl
hen
and
nterview roo along wit
om
th

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the officers. Id. ¶¶ 50-57. At this point Plaintiff bel
o
A
lieved he wa under arre Id. ¶ 53.
as
est.
.
Brand as
sked Plaintif questions and informe d Plaintiff th there was a concern “
ff
a
hat
“that [he]

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to ta with a pe counselor about emot
alk
eer
r
tional issues Id. ¶ 66. In response to further q
s.”
e
questioning by
b

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Bran Plaintiff asserted his right to rem silent an asked to c
nd,
main
nd
consult an at
ttorney. Id. ¶ 72.

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Thereafter Hain refused to answer fur
nes
o
rther question from Bra and refus to sign a “contract fo
ns
and
sed
or

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safe
ety,” assertin that he req
ng
quired a lawy before si
yer
igning anyth
hing and that he had a “r
t
right to rema
ain

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silen Id. ¶¶ 85-89. After further attem to enga Plaintiff in conversa
nt.”
mpts
age
f
ation and get him to sign

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the contract for safety, Bran then appli for Plaint
c
nd
ied
tiff’s involun
ntary psychi
iatric examin
nation under
r

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Cali
ifornia Welf and Insti
fare
itutions Cod § 5150. Id ¶¶ 90-113. Plaintiff a
de
d.
asserts that D
Defendant

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Northern District of California

might want to hu [himself] Id. ¶ 60. Plaintiff responded “I c
urt
f].”
came here fo help” and “I came her
or
re

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United States District Court

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Bran subjected him to police detention and psychia
nd
d
n
atric evaluat
tion without probable ca
ause. Id. ¶ 16
67.
Plaintiff was searche and escor outside t clinic to an ambulance parked ou
f
ed
rted
the
utside. Id. ¶¶
¶

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109-123. His po
ocket knife was seized. Id. ¶ 118. P
w
Plaintiff was then taken t Alta Bates Hospital,
to

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whe he was he and offer food, and where staf asked him further ques
ere
eld
red
d
ff
stions and dr his bloo
rew
od

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over his objectio
r
ons. Id. ¶¶ 124-144. He was later tr
1
e
ransferred ea Saturday morning, D
arly
y
December 5,
,

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2009 to the Joh George Ps
9,
hn
sychiatric Pa
avilion. Id. ¶ 148. At ab
bout 5:30 a.m that day, D Schwartz
m.
Dr.

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inter
rviewed Plai
intiff and tol him he wa “free to go Id. ¶¶ 15
ld
as
o.”
54-56. He w released at 6:00 a.m.
was

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Id. ¶ 157.

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II.

LEGAL STANDAR
L
RD

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A motion to dismiss under Rule 12(b)(6) tes the legal s
n
sts
sufficiency o the claims alleged in the
of
s
t

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com
mplaint. Ileto v. Glock. In 349 F.3d 1191, 1199
o
nc.,
d
9-1200 (9th Cir. 2003). All allegatio of mater
ons
rial

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fact are taken as true. Erick
s
kson v. Pardu 551 U.S. 89, 94 (200
us,
.
07). Althoug “detailed factual
gh

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alleg
gations” are not required a Plaintiff obligation to provide the grounds of his entitl
d,
f’s
n
lement to rel
lief

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“req
quires more than labels and conclusio and a fo
t
a
ons,
ormulaic rec
citation of the elements o a cause of
of
f

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actio will not do.” Bell Atl
on
d
lantic Corp. v. Twombly 550 U.S. 5
y,
544, 555 (200 (citation and
07)
ns

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quot
tations omitt
ted). In considering a motion to dism
m
miss, the Co starts by identifying the legally
ourt
y

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conc
clusory state
ements; these are not ent
e
titled to the a
assumption o truth. See Ashcroft v. Iqbal, 556
of
e

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U.S. 662, 678-79 (2009) (“legal conclus
sions can pro
ovide the fra
amework of a complaint, [but] they
,

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st
ted
al
s”). Then th court shou assume t veracity o the wellhe
uld
the
of
mus be support by factua allegations

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plea
aded factual allegations and “determi whether they plausib give rise to an entitle
a
ine
bly
ement to

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relie
ef.” Id. at 67 “[W]her the well-p
79.
re
pleaded facts do not perm the court to infer mor than the
s
mit
re

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mer possibility of miscond
re
y
duct, the com
mplaint has a
alleged – but it has not ‘s
show[n]’ – ‘t the pleader
that

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is en
ntitled to reli
ief.’” Id. (qu
uoting Twom
mbly, supra, 550 U.S. at 558-59).
Ordinari a pro se complaint will be libera construed and held to a less strin
ily,
w
ally
d
o
ngent standar
rd

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clari
ified that cou “continu to constru pro se fili
urts
ue
ue
ings liberally when evalu
y
uating them under Iqbal.

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Whi the standa is higher our ‘obliga
ile
ard
r,
ation’ remain ‘where th petitioner is pro se, p
ns,
he
r
particularly in
n

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civil rights cases, to constru the pleadin liberally and to affor the petitio
l
ue
ngs
y
rd
oner the benefit of any

12
Northern District of California

than formal plea
n
adings drafte by lawyer See Erick
ed
rs.
kson, supra, 551 U.S. at 94. The Ni
t
inth Circuit has
h

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United States District Court

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doub
bt.’” Hebbe v. Pliler, 62 F.3d 338, 342 (9th Ci 2010) (qu
e
27
,
ir.
uoting Bretz v. Kelman, 7 F.2d 102
773
26,

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1027 n.1 (9th Ci 1985) (en banc)). Th Court’s ob
7
ir.
n
he
bligation, ho
owever, is no to “supply essential
ot
y

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elem
ments of the claim that were not initi
w
ially pled.” I
Ivey v. Bd. o Regents of the Univ. of Alaska, 673
of
f

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F.2d 266, 268 (9 Cir. 1982 see also Ghazali v. M
d
9th
2);
G
Moran, 46 F.3d 52, 54 (9 Cir. 1995 (per curiam)
9th
5)

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(“Al
lthough we construe pleadings libera in their favor, pro se litigants ar bound by the rules of
c
ally
e
re

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proc
cedure.”).

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III.

SSION
DISCUS

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Plaintiff first cause of action al
f’s
e
lleges that h was arrest pursuant to Section 5
he
ted
5150 without
t

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prob
bable cause. Judge Chen previously held that Pl
n
y
laintiff stated a Fourth A
d
Amendment c
claim on this
s

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basi and Defen
is
ndants do not move to dis
t
smiss the cla here.
aim

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A.

SECOND CAU OF ACTI – DUE P ROCESS (AG
USE
ION
GAINST DEF
FENDANTS BR
RAND AND
WEE)

The due process clau of the Fo
use
ourteenth Am
mendment pr
rovides that no State sha “deprive
all
any person of lif liberty, or property, without due p
fe,
o
w
process of la
aw.” U.S. CONST. AMEN . XIV, § 1.
ND
1
s
l
ntive compo
onent, both o which safe
of
eguard the in
ndividual
This clause has a procedural and substan
agai arbitrary governmen action. While procedu due proc ensures adequate pr
inst
y
nt
W
ural
cess
s
rocedures are
in place before the governm may dep
t
ment
prive someon of a prote
ne
ected liberty interest, sub
bstantive due
e
proc prevents the govern
cess
s
nment from engaging in c
e
conduct that “shocks the conscience See Coun
t
e
e.”
nty
4

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of Sacramento v. Lewis, 523 U.S. 833, 846-49 (1998) (discussing abusive conduct “that shocks the

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conscience” and violates the “decencies of civilized conduct”).
The Due Process violation alleged in the Second Cause of Action is predicated on the Fourth

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Amendment claim, alleging that Plaintiff has a due process right to be free from unreasonable

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seizures. It is not clear whether Haines’ claim arises under the procedural or substantive component

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of the due process clause. Haines merely alleges that “BRAND failed and refused to protect

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Plaintiff[’s] . . . right to be free from unreasonable search and seizures,” and therefore, Brand

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“deprived him of due process under the Fourteenth Amendment.” SAC ¶¶ 186-87. Plaintiff also

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alleges that Brand owed a duty to protect Plaintiff from injury while he was in custody, including

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protection from unreasonable use of wrist restraints and unreasonable drawing of blood.
Civil commitment for any purpose constitutes a significant deprivation of liberty that must be

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Northern District of California

United States District Court

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accompanied by procedural safeguards. See Addington v. Texas, 441 U.S. 418, 425 (1979).

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Procedural due process does not guarantee that the assessment is correct, only that the decision to

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order emergency commitment be made in accordance with a fair decision-making process.
Haines was detained pursuant to California Welfare and Institution Code §§ 5100 et seq.,

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which provides, in pertinent part, that:
When any person, as a result of mental disorder, is a danger to others, or to himself or
herself, or gravely disabled, a ... member of the attending staff, as defined by
regulation, of an evaluation facility designated by the county, designated members of a
mobile crisis team provided by Section 5651.7, or other professional person designated
by the county may, upon probable cause, take, or cause to be taken, the person into
custody and place him or her in a facility designated by the county and approved by the
State Department of Mental Health as a facility for 72-hour treatment and evaluation.

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Cal. Welf. & Inst. Code § 5150. No judicial hearing or similar proceeding is required to initiate a 72hour hold. Haines does not allege that the procedural safeguards set forth in Section 5150 violate
constitutional norms of due process.
There is no suggestion that either Brand (or Wee) failed to follow any requisite procedure.5 In

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fact, the SAC alleges that Brand went through a custodial checklist, and recited in “phonetic fashion,”
“Dee tee ess,” “Dee tee Oh,” and “Gee Dee,” which Defendants explain correspond to Danger to Self
5

The only allegation in the SAC that any procedure may not have been followed consists of the allegation that
Plaintiff was at Alta Bates Medical Center for several hours before he was advised that he could make a
telephone call. SAC ¶ 144.
5

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(DTS), Danger to Others (DTO), and Gravely Disabled (GD). They argue that Brand followed the

2

standard evaluation process in making her assessment that the Section 5150 statutory criteria applied.

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Defs.’ Mot. 7 (quoting SAC ¶ 111). Thus, Plaintiff fails to state a procedural due process claim.

4

To the extent this claim is brought as a substantive due process claim, because Plaintiff’s

properly analyzed under the Fourth Amendment. As Defendants correctly argue, “where a particular

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amendment provides an explicit textual source of constitutional protection against a particular sort of

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government behavior, that Amendment, not the more generalized notion of substantive due process,

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must be the guide for analyzing a plaintiff’s claims.” Patel v. Penman, 103 F.3d 868, 874 (9th Cir.

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1996) (citations, internal quotations, and brackets omitted), overruled in part on other grounds as

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recognized by Nitco Holding Corp. v. Boujikian, 491 F.3d 1086 (9th Cir. 2007); see also County of

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Northern District of California

claim is for injuries suffered as a result of an alleged arrest without probable cause, the claim is

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United States District Court

5

Sacramento v. Lewis, 523 U.S. 833, 841-42 (1998); Galbraith v. County of Santa Clara, 307 F.3d

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1119, 1127 (9th Cir. 2002). Thus, if Plaintiff seeks to hold Brand or the City of Berkeley liable for

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any harm he suffered as a result of the arrest, it is properly analyzed under the Fourth Amendment,

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which, as stated above, remains a viable claim under the First Cause of Action.

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The Court finds that Plaintiff has failed to state a claim under the Due Process Clause.

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Plaintiff already had an opportunity to cure the pleading defects for the due process violations alleged

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in his FAC. Nevertheless, the Court will provide Plaintiff with one last opportunity to allege a due

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process violation.

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Based on the foregoing analysis, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s
Due Process cause of action WITH LEAVE TO AMEND.
B.

THIRD CAUSE OF ACTION – EQUAL PROTECTION (AGAINST DEFENDANTS TURECK
AND MEDRANO)

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny
to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. AMEND XIV, § 1.
Plaintiff’s third cause of action alleges that Defendants Tureck and Medrano violated the
Equal Protection Clause of the Fourteenth Amendment because Tureck and Medrano did not
discipline Wee, Brand’s supervisor, for Wee’s failure to train or discipline Brand adequately. SAC ¶
197. Haines alleges that because Defendants Tureck and Medrano failed to discipline Wee, they

6

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adopted or ratified a policy, practice or custom of the City of Berkeley to detain homeless people

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within the Telegraph area pursuant to Section 5150 to induce homeless people to stay away from the

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Telegraph area during the Christmas holiday season.
Liberally construing the allegations in the SAC, Plaintiff alleges that there is a longstanding

4
5

practice or policy of subjecting homeless people to involuntary psychiatric evaluation to induce

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homeless people to leave the Telegraph Area of the City of Berkeley during the Christmas holiday

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shopping season. See SAC ¶¶ 162, 170, 198, 206. In dismissing Haines’ Equal Protection claim in

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the FAC, Judge Chen advised Plaintiff that in order to plead a violation of the Equal Protection

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Clause, he must allege discriminatory intent. Specifically, Judge Chen explained that

12

Plaintiff has alleged no discriminatory intent in his FAC. He makes conclusory
allegations that Defendants targeted “impoverished, hungry and transient persons of
low social status within the Telegraph area,” FAC ¶ 249, but provides no factual
assertions supporting a claim that any such targeting was “at least in part ‘because of,’
not merely ‘in spite of,’ its adverse effects upon an identifiable group.”

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Order Granting in Part and Denying in Part Motion to Dismiss First Amended Complaint, Dkt. No. 44

14

(quoting Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001)).

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Northern District of California

United States District Court

11

In the SAC, Plaintiff now alleges that the failure to discipline Wee for failing to discipline

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16

Brand for applying inappropriate clinical standards was pursuant to an official practice, policy, and/or

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custom motivated “at least in part because of rather than in spite of the discriminatory effect” on

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homeless people. SAC ¶¶ 196-98. This conclusory allegation is insufficient to support an equal

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protection claim. While the Court recognizes that Plaintiff has made an effort to follow Judge Chen’s

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instructions and has made an attempt to cure the deficiencies in the FAC, the SAC has not cured those

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deficiencies. These new allegations are not “facts,” they are legal conclusions.6 Plaintiff still

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“provides no factual assertions supporting a claim that any such targeting was “at least in part

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‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Lee, supra, 250

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F.3d at 687.

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26
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28

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For example, Plaintiff’s first cause of action alleges a Fourth Amendment violation based on lack of probable
cause to detain him – that is the legal conclusion. The facts that support the claim include that Plaintiff was
detained at Alta Bates and John George Mental Health Pavilion for nearly twelve hours even though he did not
evince signs of disordered thinking, verbal or physical outbursts, or signs of previous or current attempts to
harm himself.
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1

To state an equal protection claim under this theory, Plaintiff will need to allege that detention

2

pursuant to Section 5150 is being used as a pretext to remove homeless people from the Telegraph

3

area. At best, Plaintiff alleges that Brand’s belief that homeless people are more likely to be mentally

4

ill increases the risk of an erroneous determination under Section 5150. Simply alleging that Tureck

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and Medrano did not discipline Wee for not disciplining Brand does not allege that the decision to

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place homeless people under 72-hour hold is motivated by a discriminatory purpose.

7

Nevertheless, this raises the possibility that Plaintiff may be able to allege facts to support an

8

equal protection claim. For that reason, the Court will permit Plaintiff to amend the SAC if facts exist

9

to support an equal protection claim. As pled, it appears that the decision to place homeless people

others, which does not support an equal protection claim. However, if Plaintiff has facts to support an

12
Northern District of California

under a 72-hour hold is based on a determination that they pose a risk of danger to themselves or

11

United States District Court

10

allegation that the City of Berkeley places homeless people under 72-hold pursuant to Section 5150 as

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a means to clear the Telegraph area of homeless people during the Christmas holiday shopping

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season, then he might be able to state an equal protection claim.

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16

Based on the foregoing analysis, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s
Equal Protection cause of action WITH LEAVE TO AMEND.

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C.

FOURTH CAUSE OF ACTION – FALSE IMPRISONMENT (AGAINST DEFENDANT BRAND)

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“False imprisonment is the unlawful violation of the personal liberty of another.” Cal. Penal

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Code § 236. The elements for a tort claim of false imprisonment are: “‘1) the nonconsensual,

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intentional confinement of a person, 2) without lawful privilege, and 3) for an appreciable period of

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time, however brief.’” Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1205

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(9th Cir. 2003) (quoting Easton v. Sutter Coast Hosp., 80 Cal. App. 4th 485, 496 (Cal. Ct. App. 2000)

23

Plaintiff alleges that Brand restricted Plaintiff’s freedom of movement by use of duress,

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“Plaintiff did not consent to ‘medical clearance’ or psychiatric evaluation,” “Plaintiff was harmed,”

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and “BRAND’s conduct was a substantial factor in causing Plaintiff’s harm.” SAC ¶¶ 201-4.

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Brand argues that she is entitled to statutory immunity insofar as the state tort claims relate to

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the commitment itself because California, by statute limits liability for a Section 5150 commitment.

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See Cal. Gov’t Code §§ 856(a) and 855.6; Cal. Welf. & Inst. Code § 5278. California Government

8

1

Code Section 856, subdivision (a), in pertinent part, provides: “Neither a public entity nor a public

2

employee acting within the scope of his employment is liable for any injury resulting from

3

determining in accordance with any applicable enactment: (1) Whether to confine a person for mental

4

illness or addiction.”7 Similarly, Section 855.6 provides immunity to a public employee acting within

5

the scope of her employment “for injury caused by the failure . . . to make an adequate . . . mental

6

examination.” Additionally, California Welfare and Institutions Code § 5278 provides that

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“[i]ndividuals authorized to detain a person for treatment and evaluation” under Section 5150 “shall

8

not be held either criminally or civilly liable for exercising this authority in accordance with law.”8
By way of his fourth cause of action, Haines seeks to hold Brand liable for false imprisonment

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Brand’s exercise of statutory authority to detain him, and not any conduct during his detention, all

12
Northern District of California

for failing to assess accurately probable cause to detain Haines. Because Haines allegations concern

11

United States District Court

10

three sources of immunity shield Brand from liability for the decision to confine Haines pursuant to

13

Section 5150. Accordingly, the allegations in the SAC do not overcome Brand’s immunity for the

14

state law tort of false imprisonment.
Based on the foregoing analysis, the Court GRANTS the Motion to Dismiss Plaintiff’s False

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Imprisonment cause of action WITH LEAVE TO AMEND.
Plaintiff may replead his claim for false imprisonment to allege facts that Brand’s decision to

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18

detain Haines was not based on a clinical determination pursuant to Section 5150, but rather that

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detention pursuant to Section 5150 “was a pretext that she asserted based upon Plaintiff’s

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homelessness,” see SAC ¶ 169, or some other nonclinical reason, if such facts exist.

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7

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Subdivision (c) provides that “Nothing in this section exonerates a public employee from liability for injury
proximately caused by his negligent or wrongful act or omission in carrying out or failing to carry out: (1) A
determination to confine or not to confine a person for mental illness or addiction.” Cal. Gov’t Code §
856(c)(1).

8

Section 5291.1 of the Code provides that “[a]ny individual who is knowingly and willfully responsible for
detaining a person in violation of the provisions of this article is liable to that person in civil damages.”
Construing Sections 5278 and 5291.1 in pari materia, California does not recognize negligence liability for a
Section 5150 commitment, but it does recognize tort liability for knowing and willful violations of the law.
Carlson v. San Mateo County, 103 F.3d 137 (9th Cir. 1996) (Table Text). The claim alleges that there was not
probable cause to detain Plaintiff but Plaintiff does not allege that the decision to detain him was not done in
accordance with law.
9

D.

1

FIFTH CAUSE OF ACTION – INTENTI
E
N
IONAL INFLI
ICTION OF EMOTIONAL DISTRESS
(AGAINST DEFENDANT BRAND)
E

Judge Ch previous dismissed Plaintiff’s claim for in
hen
sly
ntentional inf
fliction of em
motional

2
3

distr with pre
ress
ejudice on th basis that the Brand is immune fro this state tort law cla
he
s
om
e
aim; Plaintiff
ff

4

did not seek leav to replead this cause of action.
n
ve
d
o
Therefor Plaintiff’s claim for intentional in
re,
nfliction of e
emotional di
istress, which already wa
h
as

5
6

dism
missed with prejudice, is DISMISSED WITH PREJ
p
JUDICE, agai
in.

7

IV.

CONCL
LUSION

8

The Cou GRANTS the Motion to Dismiss.
urt
t
t

9

Plaintiff Second, Third, and Fo
f’s
T
ourth Causes of Action f Due Proc Violatio Equal
s
for
cess
on,

10
11

Northern District of California

United States District Court

12
13
14

Prot
tection Viola
ation, and Fa Imprison
alse
nment are DISMISSED WITH LEAVE TO AMEND.
E
D
Plaintiff Fifth Causes of Action for Intenti onal Inflictio of Emotional Distress is DISMISS
f’s
n
on
SED
WIT PREJUDIC .
TH
CE
By no la than July 16, 2012, Plaintiff sha file either: (i) a Third Amended C
ater
y
P
all
d
Complaint, or
o
(ii) a statement that he will not file a Th Amende Complaint
t
n
hird
ed
nt.

15

Defenda
ants’ respons
se(s) will be due 20 days from servic of one the above.
s
ce
e

16

This Ord Terminat Docket Number 57.
der
tes
N

17

IT IS SO ORDERED.

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19

Date June 14, 2012
ed:
__
___________
__________
___________
_________
YVONNE GONZA
ALEZ ROGER
RS
UNITED ST
TATES DISTR
RICT COURT JUDGE
T

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25
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