Haines v. Brand et al

Filing 88

ORDER by Judge Yvonne Gonzalez Rogers granting 82 Defendants' Motion to Dismiss. The Court VACATES the hearing set 9/18/2012. (fs, COURT STAFF) (Filed on 9/13/2012)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5
6
7

MARK HAINES,

8

Plaintiff,

9

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

vs.
10

Northern District of California

United States District Court

11

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

12
13
14

Plaintiff Mark Haines (“Haines”) alleges that his Fourth and Fourteenth Amendment rights

15

were violated when he was taken into custody pursuant to California Welfare and Institutions Code §

16

5150,1 and transported to Alta Bates Medical Center for a 72-hour psychiatric hold. Haines has sued

17

Daryl Brand (“Brand”), a City of Berkeley mental health clinician who made the clinical decision to

18

detain Haines, the supervisor and managers in Brand’s reporting chain, namely David Wee (“Wee”),

19

Harvey Tureck (“Tureck”) and Fred Medrano (“Medrano”), and the City of Berkeley.2 Plaintiff’s

20

Third Amended Complaint alleges four causes of action: (1) violation of the Fourth Amendment to

21

the Constitution of the United States against Brand, in her individual and official capacities, and

22

against the City of Berkeley; (2) Deprivation of Substantive Due Process rights guaranteed by the

23

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

24
25
26
27
28

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 Brand, Wee, Tureck, and Madrano are current or former employees of the City of Berkeley,
which both operates the Berkeley Free Clinic and is a Defendant in this case. (Third Amended Complaint
(“TAC”) ¶¶ 6-10, Dkt. No. 81.)

1

offic capacity and agains Wee in his official cap
cial
y,
st
s
pacity as Bra
and’s superv
visor; (3) Den of Equal
nial

2

Prot
tection under the Fourtee
r
enth Amend
dment to the United State Constituti against T
es
ion
Tureck and

3

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

4

U.S.C. § 19833; and a state law claim fo (4) False I
l
or
Imprisonmen against Br
nt
rand in her in
ndividual

5

acity.
capa
Defenda have mo
ants
oved to dism the secon through f
miss
nd
fourth causes of action on the ground
s
ds

6
7

that the second and third cau of actio fail to stat a claim, an Brand is entitled to ab
a
uses
on
te
nd
bsolute or

8

qual
lified immun as to the fourth caus of action. Haines opp
nity
e
se
poses dismissal of his sec
cond cause of
o

9

actio but does not oppose dismissal of the third and fourth cau of action
on
n
d
d
uses
n.
Having carefully con
c
nsidered the papers subm
mitted and th pleadings in this actio and for th
he
on,
he

10

Northern District of California

4
reas
sons set forth below, the Court hereb GRANTS t Motion t Dismiss WITH PREJU
h
by
the
to
UDICE.

12

United States District Court

11

I.

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

13
14

who routinely tr
o
ravels and sleeps in his car.” (TAC ¶ 11.) At ap
c
pproximately 5:45 p.m. o Friday,
y
on

15

Dec
cember 4, 2009, Plaintiff walked into the Berkele Free Clin (“BFC”) i response t a handbill
f
o
ey
nic
in
to
l

16

adve
ertising “pee counseling (Id. ¶¶ 14, 16.) Plain
er
g.”
ntiff was suf
ffering from an upper re
m
espiratory tra
act

17

infection, fatigu hunger, fr
ue,
rustration an anxiety, an was look
nd
and
king for emot
tional suppo to speak
ort

18

abou personal emotional matters, includ
ut
e
m
ding his frus
stration and anxiety. (Id ¶¶ 19-23.) Plaintiff wa
d.
as

19

info
ormed that no peer couns
o
selor was the available, and he wait
en
,
ted. (Id. ¶¶ 2 31-32.)
27,

20

As Haines waited, police officer arrived at B
rs
BFC, one of whom prev
f
vented Plaint from
tiff

21

leav
ving and told him to “stay inside” wh Plaintiff attempted to go outside to smoke a cigarette. (I
d
hen
f
o
e
Id.

22
23
24
25
26
27
28

3

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.
U
4

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 is appropr
ion
riate for decis
sion without oral argument Accordingly, the Court VACATES the hearing set
o
t.
for September 18, 2012.
S
2

1

¶¶ 36-46.) Defendant Brand then arrived and escorted him to an interview room along with the

2

police officers. (Id. ¶¶ 50-55.) At this point Plaintiff believed he was under arrest. (Id. ¶ 53.)

3

Brand asked Plaintiff questions and informed Plaintiff that there was a concern “that [he]

4

might want to hurt [himself].” (Id. ¶ 60.) Plaintiff responded “I came here for help” and “I came

5

here to talk with a peer counselor about emotional issues.” (Id. ¶ 66.) To dispel any notion of

6

dangerousness on his part, Haines explained to Brand “I’m no danger to myself, or to you, or to

7

anyone else.” (Id. ¶ 78.) In response to continued questioning by Brand, Plaintiff asserted his right

8

to remain silent and asked to consult an attorney. (Id. ¶ 72.) Thereafter Haines refused to answer

9

further questions from Brand and refused to sign a “contract for safety” (“CFS”),5 asserting that he

10

required a lawyer before signing anything and that he had a “right to remain silent.” (Id. ¶¶ 82, 85-

11

89.)

Northern District of California

United States District Court

12

Brand advised Haines that “[u]nless you sign the CFS, you could be detained for up to

13

seventy-two (72) hours pursuant to section 5150.” (Id. ¶ 90.) Plaintiff reiterated his position “that he

14

posed ‘no danger to himself or others,’ refused to sign the CFS and restated his wish to consult an

15

attorney.” (Id. ¶¶ 96-103.) Brand informed Haines that he had “no right to an attorney,” and then,

16

“as if on cue, one of the police officers donned a pair of blue gloves.” (Id. ¶ 105.) At this point,

17

Haines was fearful of Brand’s and the police officer’s intentions, and seeking to regain his liberty,

18

Haines stated in reference to the CFS, “Alright; I’ll sign it.” (Id. ¶¶ 106-08.)
After Haines agreed to sign the CFS, Brand responded “Too late,” and then Brand applied for

19
20

Plaintiff’s involuntary psychiatric examination under California Welfare and Institutions Code §

21

5150. (Id. ¶¶ 108-113.) Plaintiff was taken to Alta Bates Hospital, where he was held, asked further

22

questions, and where staff drew his blood over his objections. (Id. ¶¶ 124-144.) Early Saturday

23

morning, December 5, 2009, Plaintiff was transferred to the John George Psychiatric Pavilion. (Id. ¶

24

148.) At about 5:30 a.m. that day, Dr. Schwartz interviewed Plaintiff and told him he was “free to

25

go.” (Id. ¶¶ 154-56.) Haines was released at 6:00 a.m. (Id. ¶ 157.)

26
27
28
5

Haines later learned that a CFS is an agreement not to commit suicide.
3

1
2

II.

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

mate
erial fact are taken as tru Erickson v. Pardus, 551 U.S. 89 94 (2007). Although “
e
ue.
n
9,
“detailed

5

factu allegatio
ual
ons” are not required, a Plaintiff’s ob
r
P
bligation to p
provide the g
grounds of h entitlemen
his
nt

6

to re
elief “require more than labels and conclusions, and a form
es
n
,
mulaic recitation of the el
lements of a

7

caus of action will not do.” Bell Atlant Corp. v. T
se
w
”
tic
Twombly, 55 U.S. 544, 555 (2007) (citations an
50
,
)
nd

8

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

9

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

10

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

11

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

12

Northern District of California

the complaint. Ileto v. Gloc Inc., 349 F.3d 1191, 1
c
I
ck.
1199-1200 (
(9th Cir. 200
03). All alleg
gations of

4

United States District Court

3

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

13

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

14

mer possibility of miscond
re
y
duct, the com
mplaint has a
alleged–but it has not ‘sh
t
how[n]’–‘tha the pleader
at
r

15

is en
ntitled to reli
ief.’” Id. (qu
uoting Twom
mbly, supra, 550 U.S. at 558-59).

16

Ordinari a pro se complaint wi be liberal construed and held to a less string standard
ily
c
ill
lly
d
o
gent
d

17

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

18

has clarified tha courts “con
at
ntinue to con
nstrue pro se filings libe
e
erally when e
evaluating th under
hem

19

Iqba While th standard is higher, our ‘obligation ’ remains, ‘w
al.
he
s
r
where the pe
etitioner is pro se,

20

part
ticularly in civil rights ca
ases, to cons
strue the plea
adings libera and to af
ally
fford the pet
titioner the

21

bene of any doubt.’” Heb v. Pliler, 627 F.3d 33 342 (9th Cir. 2010) (
efit
bbe
,
38,
h
(quoting Bre v. Kelman
etz
n,

22

773 F.2d 1026, 1027 n.1 (9t Cir. 1985) (en banc)). The Court’ obligation however, i not to
th
)
’s
n,
is

23

“sup
pply essentia elements of the claim that were no initially pl
al
o
ot
led.” Ivey v. Bd. of Rege of the
.
ents

24

Univ of Alaska, 673 F.2d 26 268 (9th Cir. 1982); see also Gh
v.
,
66,
hazali v. Mor
ran, 46 F.3d 52, 54 (9th

25

Cir. 1995) (per curiam) (“A
c
Although we construe ple
eadings liber
rally in their favor, pro s litigants ar
se
re

26

boun by the rules of proced
nd
dure.”).

27
28

4

1
2

III.

DISCUS
SSION
Plaintiff asserts that Defendant Brand subjec him to p
f
B
cted
police detent
tion and psy
ychiatric

3

eval
luation witho probable cause and in violation o his substa
out
e
i
of
antive due pr
rocess rights (TAC ¶¶
s.

4

179, 221.) Hain alleges th Brand’s refusal “to a
nes
hat
r
accept Plaint
tiff’s agreem to sign t CFS,
ment
the

5

sidering the totality of th circumsta
he
ances . . ., wa irrational, vindictive a may reas
as
,
and
sonably be
cons

6

foun to shock the conscien
nd
t
nce.” (Id. ¶ 201.) Becau Defendan do not m
2
use
nts
move to dismi the first
iss

7

caus of action and Haines does not opp
se
a
d
pose dismiss of his thir or fourth c
sal
rd
causes of action, the Cou
urt

8

will focus its an
nalysis on the sufficiency of Haines’ second caus of action f violation of
e
y
se
for
n

9

stantive due process.
subs

10

The due process clau of the Fo
use
ourteenth Am
mendment pr
rovides that no State sha “deprive
all

Northern District of California

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

12

United States District Court

11

This clause has a procedural and substan
s
l
ntive compo
onent, both o which safe
of
eguard the in
ndividual

13

agai arbitrary governmen action. While procedu due proc ensures adequate pr
inst
y
nt
W
ural
cess
s
rocedures are

14

in place before the governm may dep
t
ment
prive someon of a prote
ne
ected liberty interest, sub
bstantive due
e

15

proc prevents the govern
cess
s
nment from engaging in c
e
conduct that “shocks the conscience See Coun
t
e
e.”
nty

16

of Sacramento v. Lewis, 523 U.S. 833, 846-49 (1998 (discussin abusive conduct “that shocks the
S
v
3
8
8)
ng
t

17

cons
science” and violates the “decencies of civilized conduct”). “[C]onduct intended to injure in
d
e
s
d
t

18

som way unjus
me
stifiable by any governm interest is the sort of official act
a
ment
tion most lik to rise to
kely
o

19

the conscience-s
c
shocking lev
vel.” Id. at 840 (citing D
8
Daniels v. Wi
Williams, 474 U.S. 327, 33 (1986)).
31

20

Civil com
mmitment fo any purpo constitute a significa deprivati of liberty that must be
or
ose
es
ant
ion
y
b

21

acco
ompanied by procedural safeguards. See Adding
y
gton v. Texas 441 U.S. 4
s,
418, 425 (19
979). To

22

com
mport with du process th committin medical p
ue
he
ng
personnel mu exercise j
ust
judgment “o the basis of
on

23

subs
stantive and procedural criteria that are not subst
c
a
tantially belo the stand
ow
dards genera accepted
ally
d

24

in th medical community.” Jensen v. Lane County 312 F.3d 1
he
c
”
L
y,
1145, 1147 (9th Cir. 200
02).

25
26
27
28

Haines was detained pursuant to California W
w
d
o
Welfare and Institution C
d
Code §§ 510 et seq.,
00
whic provides, in pertinent part, that:
ch
,
t
When an person, as a result of mental disor
ny
s
m
rder, is a dan
nger to other or to hims or
rs,
self
herself, or gravely di
o
isabled, a . . . member o f the attendi staff, as d
ing
defined by
regulatio of an eva
on,
aluation facil designat by the co
lity
ted
ounty, design
nated membe of a
ers

5

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.

1
2
3
4

Cal. Welf. & Inst. Code § 5150. Haines does not allege that Brand failed to follow the procedures

5

set forth in Section 5150 or that those procedures violate constitutional norms of due process.

6

Haines’ Second Cause of Action seeks to hold Brand individually liable for “irrational and

7

vindictive depravation of substantive due process rights.” (See TAC at 20.) Haines alleges that at

8

the time Brand made the decision to civilly commit him, Brand’s judgment was impaired due to

9

personal stress, which “rendered her unfit to safely exercise the authority to cause continued

refused . . . to accept Plaintiff’s agreement to sign the CFS, considering the totality of the

12

Northern District of California

detention pursuant to” Section 5150. (Id. ¶¶ 189-98.) Furthermore, Plaintiff alleges “[t]hat BRAND

11

United States District Court

10

circumstances alleged . . ., was irrational, vindictive and may reasonably found to shock the

13

conscience.” (Id. ¶ 201.)
Defendants argue that Plaintiff’s substantive due process claim fails because a specific

14
15

constitutional right–the Fourth Amendment right to be free from unreasonable seizures–already

16

exists to protect against the challenged government action. The Court agrees.

17

Haines’ claim for injuries suffered while in custody is properly analyzed under the Fourth

18

Amendment reasonableness standard.6 Haines disputes the accuracy of Brand’s determination to

19

detain him for psychiatric evaluation and alleges that her decision was erroneous. That is, he

20

believes that the decision to detain him for psychiatric evaluation was unreasonable. Therefore,

21

Haines believes he was detained without probable cause. To hold Brand or the City of Berkeley

22

liable for any harm he suffered as a result of the detention without probable cause his claim must be

23

brought under the Fourth Amendment. That is his first cause of action.

24

Haines argues in his opposition that Brand violated substantive due process based on using

25

inappropriate clinical standards to make her assessment under Section 5150. (Pl.’s Opp’n 16, 17.)

26
27
28

6

Aside from alleging that he has a Fourth Amendment right to be free from unreasonable seizure, the only
rights identified are a “clearly established Fourteenth Amendment right to be free from coercive questioning”
(TAC ¶¶ 193-96), the “general right to refuse involuntary psychological evaluation or treatment,” and “to
refuse compelled drawing of his blood” absent medical emergency. (Pl.’s Opp’n 16 n.3, 4.)
6

1

He argues that Brand based her diagnosis of danger
a
B
r-to-self on w
whether Hain would si a contrac
nes
ign
ct

2

for safety, which he now arg
s
h
gues is not a valid diagn
nostic tool. H
However, thi is not alleg in the
is
ged

3

TAC and appea to contrad his alleg
C,
ars
dict
gations in the TAC. Wh the Cour is to constr pro se
e
hile
rt
rue

4

plea
adings libera
ally, the Cour obligatio neverthe
rt’s
on,
eless, is not t supply fac not pled. See Ivey,
to
cts

5

supr 673 F.2d at 268.
ra,
d

6

Accordin to the TA it was inappropriate for Brand to refuse to ac
ng
AC,
o
ccept Plainti
iff’s

7

agre
eement to sig the CFS, not that the use of the C is an inap
gn
CFS
appropriate d
diagnostic tool. Indeed,

8

the TAC alleges that the CF is an appr
T
s
FS
ropriate diag
gnostic tool. Plaintiff exp
plains that: “As of 2009
9,

9

such ‘contracts for safety’ had been used in a variety of settings to assess su
h
h
y
s
uicidality and determine
d

Com
mplaint to all
lege that the clinical use of a contrac for safety as a diagnos tool “sho
ct
stic
ocks the

12

Northern District of California

leve of care.” (Pl.’s Opp’n 9 n.2.) Thu Plaintiff c
el
(
us,
cannot now a
amend his T
Third Amend
ded

11

United States District Court

10

cons
science,” or “violates the decencies of civilized society.”
e
o
The Cou finds that Plaintiff has failed to st a claim u
urt
s
tate
under the Du Process C
ue
Clause.

13
14

Mor
reover, Plain has had three opport
ntiff
tunities to cu the plead
ure
ding defects for the due p
process

15

violations.
Therefor the Court GRANTS Defendants’ m
re,
t
motion to dis
smiss Plainti
iff’s Due Pro
ocess cause of
o

16
17

on
R
actio WITH PREJUDICE.

18

IV.

CONCL
LUSION

19

The Cou GRANTS the Motion to Dismiss.
urt
t
t

20

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

21

Prot
tection Viola
ation, and Fa Imprison
alse
nment are DISMISSED WITH PREJUDICE.

22

Defenda
ants’ Answer is due by no later than September 2 2012.
r
28,

23

This Ord Terminat Docket Number 82.
der
tes
N

24

IT IS SO ORDERED.

25

Date Septemb 13, 2012
ed:
ber

26
27

__
___________
__________
___________
_________
YVONNE GONZA
ALEZ ROGER
RS
UNITED ST
TATES DISTR
RICT COURT JUDGE
T

28

7