Anderson v. Solis
Filing
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ORDER by Judge Hamilton denying 17 Motion to Dismiss. (pjhlc1, COURT STAFF) (Filed on 1/22/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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GEORGE ANDERSON,
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For the Northern District of California
United States District Court
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Plaintiff,
v.
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ORDER DENYING MOTION
TO DISMISS
JOSE SOLIS,
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No. C 12-3855 PJH
Defendant.
_____________________________/
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Defendant’s motion for an order dismissing the complaint based on qualified
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immunity came on for hearing before this court on January 16, 2013. Plaintiff appeared by
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his counsel Michael D. Meadows, and defendant appeared by his counsel Karen K.
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Lowhurst. Having read the parties’ papers and carefully considered their arguments and
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the relevant legal authority, the court hereby DENIES the motion as follows and for the
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reasons stated at the hearing.
BACKGROUND
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This is a case brought under 42 U.S.C. § 1983, seeking damages for substantive
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due process violations, arising from an assault on a mental hospital employee by a patient
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at the hospital.
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The following facts are as alleged in the complaint. From 1977 to 1985, and from
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1991 to the present, plaintiff George Anderson (“Anderson”) was employed as a
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rehabilitation therapist at Napa State Hospital (“the Hospital”), which is operated by the
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State of California. Defendant Jose Solis (“Solis”) was a manager and senior unit
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supervisor employed at the Hospital, and had the authority to determine matters such as
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whether a patient would be restrained and whether an additional staff member would be
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assigned to a patient.
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In 2010, Sean Michael Bouchie (“Bouchie”) was a patient at Napa State Hospital.
care directed that when Bouchie exhibited signs of agitation, a staff member on the ward
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was required to calm Bouchie down by giving him food. If Bouchie remained agitated, the
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staff member was required to take him for a walk on the Hospital grounds. Anderson was
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the staff member assigned on his shift to care for Bouchie, and was therefore required to
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For the Northern District of California
The treatment plan prepared by the Psychiatric Treatment Team responsible for Bouchie’s
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United States District Court
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escort him on the Hospital grounds if he became agitated.
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On Tuesday, December 7, 2010, Bouchie chased Anderson down a hall on the
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ward, threatening him with bodily harm. At the staff meeting held the following day,
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December 8, 2010, Anderson told Solis that Bouchie’s behavior had changed markedly,
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and that Bouchie was not the “good old Sean” who could be readily controlled, but had
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become dangerous and posed an increasing threat of physical harm to staff. Anderson
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pleaded for assistance from Solis.
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During that December 8, 2010 staff meeting, Anderson asked Solis to take two
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actions which had previously been employed to address threats posed by other violent
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patients. He urged Solis to authorize placing Bouchie in a “walking restraint” – a restraint
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that limits the use of the patient’s arms, effectively preventing the patient from striking a
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staff member or another patient, but which permits the patient to eat. He also urged Solis
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to authorize the assignment of two staff members to take care of Bouchie on each shift,
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rather than a single staff member.
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Anderson alleges that as the week progressed, Bouchie became more dangerous.
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At the staff meeting on December 9, 2010, Anderson again told Solis that Bouchie had
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become increasingly dangerous and posed a threat of physical harm to staff. Anderson
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again urged Solis to authorize placing Bouchie in a “walking restraint.” Anderson alleges
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that notwithstanding this request, Solis again refused to authorize the use of the “walking
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restraint” or to assign an additional staff member to Bouchie. That same day, December 9,
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2010, Bouchie attacked a janitor.
At the staff meeting on December 10, 2010, Solis was informed of the attack on the
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janitor, and Anderson again told him that Bouchie posed a danger to staff and urged that
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Bouchie be placed in a “walking restraint.” Solis again refused, and also ordered that staff
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members assigned to Bouchie (including Anderson) respond to Bouchie’s agitation by
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taking him for a walk on the Hospital grounds alone and while Bouchie was unrestrained.
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On December 11, 2010, Anderson noted that Bouchie was becoming increasingly
agitated. He understood that under the treatment plan, Bouchie was to be first offered
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For the Northern District of California
United States District Court
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food, and if that did not calm him down, to be taken for a walk on the Hospital grounds. He
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also understood that he was forbidden by Solis to place a “walking restraint” on Bouchie,
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and that he was the lone staff member assigned to Bouchie during that shift.
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Accordingly, Anderson offered food to Bouchie, and, after his agitation did not
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decrease, took him for a walk on the Hospital grounds. During this walk, Bouchie attacked
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and repeatedly pummeled Anderson. Anderson suffered a severe concussion, four
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fractures of the skull, brain injuries, and other injuries.
Anderson filed the present action on July 24, 2012, asserting a single cause of
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action under 42 U.S.C. § 1983, for violation of his Fourteenth Amendment substantive due
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process rights. Solis now seeks an order pursuant to Federal Rule of Civil Procedure
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12(b)(6), dismissing the complaint for failure to state a claim, based on qualified immunity.
DISCUSSION
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A.
Legal Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal
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sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191,
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1199-1200 (9th Cir. 2003). Review is limited to the contents of the complaint. Allarcom
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Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). To survive
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a motion to dismiss for failure to state a claim, a complaint generally must satisfy only the
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minimal notice pleading requirements of Federal Rule of Civil Procedure 8, which requires
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that a complaint include a “short and plain statement of the claim showing that the pleader
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is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the
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plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to support
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a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
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1990). The court is to “accept all factual allegations in the complaint as true and construe
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the pleadings in the light most favorable to the nonmoving party.” Outdoor Media Group,
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Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir. 2007). However, legally
conclusory statements, not supported by actual factual allegations, need not be accepted.
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For the Northern District of California
United States District Court
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Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The allegations in the complaint “must be
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enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544, 555 (2007) (citations and quotations omitted).
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A motion to dismiss should be granted if the complaint does not proffer enough facts
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to state a claim for relief that is plausible on its face. See id. at 558-59. A claim has facial
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plausibility when the plaintiff pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
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U.S. at 678 (citation omitted). “[W]here the well-pleaded facts do not permit the court to
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infer more than the mere possibility of misconduct, the complaint has alleged – but it has
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not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Id. at 679.
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B.
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Defendant’s Motion
Solis argues that the complaint must be dismissed, based on qualified immunity.
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Qualified immunity protects government officials “from liability for civil damages insofar as
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their conduct does not violate clearly established statutory or constitutional rights of which a
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reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
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The rule of qualified immunity protects “all but the plainly incompetent or those who
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knowingly violate the law;” defendants can have a reasonable, but mistaken, belief about
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the facts or about what the law requires in any given situation. Saucier v. Katz, 533 U.S.
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194, 202 (2001) (citation and quotation omitted), overruled in part on other grounds by
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Pearson v. Callahan, 555 U.S. 223 (2009).
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A public official's shield of qualified immunity is lost only if a plaintiff can establish
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both that (1) taken in the light most favorable to the party asserting injury, the facts alleged
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show that the officer's conduct violated a constitutional right, and (2) the right at issue was
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“clearly established” at the time of the defendant's alleged misconduct. Saucier, 533 U.S.
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at 201. The court may exercise its discretion in deciding which prong to address first, in
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light of the particular circumstances of each case. Pearson, 555 U.S. at 236.
failed to plead a “clearly established” constitutional right. He asserts that Anderson does
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For the Northern District of California
Here, Solis argues that the complaint should be dismissed because Anderson has
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United States District Court
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not allege that he (Solis) directly violated plaintiff's right to bodily integrity, but rather that it
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was a mentally ill patient at Napa State Hospital, for whom Anderson was responsible for
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caring, who caused the injury. He also contends that as a direct caregiver to persons with
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“mental disabilities” severe enough to warrant hospitalization, Anderson had no clearly
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established right to avoid a risk that is an inherent part of his job. Solis argues that at most,
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he himself might be considered to have been negligent in his role as supervisor, but asserts
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that such negligence does not give rise to a cause of action under § 1983.
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In response, Anderson asserts that his claim is not a claim of negligence, but rather
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is one for violation of bodily integrity under the Fourteenth Amendment's Due Process
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Clause, as permitted by the “state-created danger” exception. Anderson argues that by
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assigning him to work alone with an unrestrained and violent mental patient, and by
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refusing his requests that some safety measures be put in place, Solis used his authority to
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affirmatively create an opportunity for Bouchie to assault Anderson, and also acted with
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deliberate indifference to the danger Anderson faced, particularly in light of his (Solis')
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knowledge of the danger.
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The court finds that the motion must be DENIED. A qualified immunity defense is
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generally not amenable to dismissal under Rule 12(b)(6) because facts necessary to
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establish this affirmative defense generally must be shown by matters outside the
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complaint. See Morley v. Walker, 175 F.3d 756, 761 (9th Cir. 1999). While a ruling on
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immunity “should be made early in the proceedings so that the costs and expenses of trial
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are avoided where the defense is dispositive[,]” the court is usually “not equipped at this
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stage to determine whether qualified immunity will ultimately protect [the defendant]. Those
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issues must be resolved at summary judgment or at trial.” Saucier, 533 U.S. at 199; see
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also Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001).
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It is true that qualified immunity can in some cases be determined in a motion under
record is clear that the official had a reasonable belief that his conduct was lawful, a court
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may properly dismiss a claim on the basis of qualified immunity. See Act Up!/Portland v.
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For the Northern District of California
Rule 12(b)(6). See, e.g., Dunn v. Castro, 621 F.3d 1196, 1199 (9th Cir. 2010). When the
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United States District Court
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Bagley, 988 F.2d 868, 873 (9th Cir. 1993). Here, however, the court finds that the absence
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of a fully developed factual record makes it impossible to determine whether qualified
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immunity applies.
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It is well-established that the Constitution protects a citizen's liberty interest in his
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own bodily security. See, e.g., Ingraham v. Wright, 430 U.S. 651, 673-74 (1977); Wood v.
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Ostrander, 879 F.2d 583, 589 (9th Cir. 1989). Nevertheless, “the Fourteenth Amendment's
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Due Process Clause generally does not confer any affirmative right to governmental aid”
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and “typically does not impose a duty on the state to protect individuals from third parties.”
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Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011) (citations and alterations
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omitted).
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There are, however, two exceptions to this rule. First, there is the “special
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relationship” exception – when a custodial relationship exists between the plaintiff and the
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state such that the state assumes some responsibility for the plaintiff's safety and
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well-being. Henry A. v. Willden, 678 F.3d 991, 998 (9th Cir. 2012). Second, there is the
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“state-created danger exception” – when “the state affirmatively places the plaintiff in
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danger by acting with ‘deliberate indifference' to a ‘known and obvious danger[.]’” Id.
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(citations omitted). If either of these exceptions applies, a state's omission or failure to
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protect may give rise to a § 1983 claim. Id.
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The Ninth Circuit first recognized such “danger creation” liability in Wood. In that
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case, a state trooper determined that the driver of an automobile was intoxicated, arrested
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the driver and impounded the car. The officer's actions left Wood, a female passenger,
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stranded late at night in a known high-crime area. Subsequently, Wood accepted a ride
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from a passing car and was raped. The court held that Wood could claim § 1983 liability,
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since a jury presented with the above facts could find “that [the trooper] acted with
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deliberate indifference to Wood's interest in personal security under the fourteenth
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amendment.” Id. at 588.
of circumstances for their roles in creating or exposing individuals to danger they otherwise
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For the Northern District of California
After Wood, the Ninth Circuit found that state officials may be held liable in a variety
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United States District Court
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would not have faced. See, e.g., Munger v. City of Glasgow Police Dept., 227 F.3d 1082
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(9th Cir. 2000) (holding police officers could be held liable for the hypothermia death of a
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visibly drunk patron after ejecting him from a bar on night when the outside temperature
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was subfreezing); Penilla v. City of Huntington Park, 115 F.3d 707 (9th Cir. 1997) (holding
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as viable a state-created danger claim against police officers who, after finding a man in
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grave need of medical care, cancelled a request for paramedics and locked him inside his
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house); L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992) (“Grubbs”) (holding state employees
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could be liable for the rape of a registered nurse assigned to work alone in the medical
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clinic of a medium-security custodial institution with a known, violent sex-offender). These
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cases illustrate the principle that state actors may be held liable “where they affirmatively
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place an individual in danger,” Munger, 227 F.3d at 1086, by acting with “deliberate
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indifference to [a] known or obvious danger in subjecting the plaintiff to it,” Grubbs II, 92
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F.3d at 900.
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In Kennedy v. City of Ridgefield, 439 F.3d 1055 (9th Cir. 2006), a 13-year-old shot
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two neighbors, killing the man and severely wounding his wife, eight hours after learning
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from the police that the wife had previously reported that the 13-year-old had molested her
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9-year-old daughter, and had also warned the police about the 13-year-old's prior violent
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actions. The wife later filed a § 1983 action against the city and the police officer who had
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released the information to the 13-year-old and his mother. The district court denied
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summary judgment on qualified immunity, and the Ninth Circuit affirmed.
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The Ninth Circuit delineated a two-part test, requiring (1) official (state) action that
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affirmatively placed an individual in danger; and (2) deliberate indifference to that danger.
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Id. at 1061-62. The court held that in examining whether an officer affirmatively places an
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individual in danger, the court should not look solely to the agency of the individual, nor
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should it rest its opinion on what options may or may not have been available to the
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individual. Instead, the court must examine whether the officer left the person in a situation
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that was more dangerous than the one in which they found him.” See id. at 1062.
Evaluating the officer's motion for summary judgment, the Ninth Circuit found that by
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For the Northern District of California
United States District Court
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informing the neighbor of the allegations without first warning plaintiff, the officer involved
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“affirmatively created an actual, particularized danger [plaintiff] would not otherwise have
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faced.” Id. at 1063.
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As to the second prong, the court must decide whether the danger to which the
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defendant exposed plaintiff was known or obvious, and whether the defendant acted with
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deliberate indifference to it. Id. at 1064. “[D]eliberate indifference is a stringent standard of
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fault, requiring proof that a municipal actor disregarded a known or obvious consequence of
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his actions.” Bryan County v. Brown, 520 U.S. 397, 410 (1997). Because the evidence in
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Kennedy showed that the wife had warned the officer repeatedly about the neighbor's
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violent tendencies and specifically requested notice before the officer told the 13-year-old
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about the molestation charge, the court found that the officer's decision to proceed without
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such notice established deliberate indifference for purposes of summary judgment.
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Kennedy, 439 F.3d at 1064-65.
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Solis contends, however, that the “state-created danger” exception has not been
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found by any court within the Ninth Circuit to apply to situations such as this one, where a
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manager's “failure to adopt a plaintiff's preferred form of patient care” causes an injury at
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the hands of the patient. Solis argues that the whole point of the exception is to allow for a
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cause of action where the state official's actions created a danger or exposed an individual
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to a danger that he or she would not otherwise have faced, and that at a mental hospital,
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there is always a danger that a caregiver may be attacked by a mental patient. Solis
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asserts that the facts do not show that he took any affirmative steps that increased the
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danger normally experienced by a worker in Anderson's position – just that he exercised his
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discretion with regard to staffing decisions at the hospital.
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With regard to Solis' argument that Anderson cannot establish a constitutional
was an inherent feature of Anderson’s work with mentally ill patients, it appears that Solis
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may be attempting to read the exception out of the law. As noted above, the “state-created
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danger” doctrine provides an exception to the general rule that the Fourteenth Amendment
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For the Northern District of California
violation because Solis did nothing to place Anderson in danger, and the alleged danger
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United States District Court
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does not impose a duty on the State to protect individuals from third parties. “Thus, by its
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very nature, the doctrine only applies in situations where the plaintiff was directly harmed
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by a third party – a danger that, in every case, could be said to have ‘already existed.’”
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Henry A., 678 F.3d at 1002.
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The “dangers” examined by the Ninth Circuit in its prior cases (cited above) – such
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as the vengeful, unstable neighbor, see Kennedy, 439 F.3d 1055; the violent, predatory
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inmate, see Grubb II, 92 F.3d 894; or the rapist prowling a high-crime area late at night,
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see Wood, 879 F.2d 583 – already “existed” before the plaintiffs were harmed by them.
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The whole point of the state-created danger doctrine is that the affirmative actions of a
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state official created or exposed an individual to a danger which he or she would not have
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otherwise faced. Henry A., 678 F.3d at 1002-03 (quotations and citations omitted).
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Here, Anderson has alleged that Solis knew of the danger posed by Bouchie, and
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that Solis was also aware that Anderson had repeatedly requested additional security in the
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form of use of restraints and/or an additional staff person, and that he nonetheless acted
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with deliberate indifference by exposing Anderson to that danger and refusing to take steps
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to mitigate the risk. At the very least, the court finds that there are factual issues that need
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to be developed before any determination can be made as to whether the "state-created
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danger" doctrine applies.
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CONCLUSION
In accordance with the foregoing, defendant’s motion is DENIED, without prejudice
to raising the qualified immunity defense in a later motion for summary judgment.
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IT IS SO ORDERED.
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Dated: January 22, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge
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For the Northern District of California
United States District Court
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