Luis v. County of San Diego et al

Filing 18

ORDER on Motion to Dismiss [Doc. No. 9 ]. Signed by Judge Cathy Ann Bencivengo on 4/24/2018. (All non-registered users served via U.S. Mail Service)(jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MORRIS LUIS individually and as
successor in interest to JORDAN LUIS,

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ORDER ON MOTION TO DISMISS
[Doc. No. 9]

Plaintiff,

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Case No.: 3:18-cv-0246-CAB-(JMA)

v.
COUNTY OF SAN DIEGO; CASA DE
AMPARO, DOES 1 THROUGH 20; and
ESTEE URAM-JARIVS,
Defendants.

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This matter comes before the Court on Defendant County of San Diego’s (“County”)

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motion to dismiss. [Doc. No. 9.] The motion has been fully briefed and the Court finds it

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suitable for determination on the papers submitted and without oral argument in

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accordance with Civil Local Rule 7.1(d)(1). For the following reasons, the motion is

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granted.

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I.

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Allegations of the Complaint
Plaintiff alleges that Defendants violated his and his deceased son’s civil rights.

[Doc. No. 1-2.]

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Jordan Luis, Plaintiff’s deceased son, and Calvin Glass were in the care and custody

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of the County of San Diego Social Services Foster Care system and Casa de Amparo
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(“Casa”). [Id. at ¶¶ 14, 15, 17.] The two young men were placed at the Shadow Ridge

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Apartment complex by Defendant Casa. [Id. at ¶ 17.] Casa is contracted through the

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County to place individuals who are in the care and custody of the County of San Diego

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Social Services Foster Care system in housing. [Id.]

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On multiple occasions Jordan Luis, and others on his behalf, complained to the

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employees of Casa and the County about the increasing hostility between Luis and Glass

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and demanded Luis be moved. [Id. at ¶¶ 18, 19.] County and Casa were aware of the

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likelihood that Glass would be violent towards Luis and “affirmatively chose to continue

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to room” them together. [Id. at ¶ 20.] On July 26, 2015, Glass shot and killed Luis. [Id.

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at ¶ 16.]

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Plaintiff asserts claims against County and “County Employee Does” under 42

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U.S.C. § 1983 for three separate Fourteenth Amendment violations related to his son’s

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death, namely: state created danger/failure to protect; loss of parent-child relationship

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without due process; and deprivation of life without due process (federal survivorship

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claim). [Id. at 9-13.1] Additionally, Plaintiff brings a failure to adequately train claim

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under 42 U.S.C. § 1983 against County. [Id. at 14.] Plaintiff also brings California state

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law claims for negligence and wrongful death against both County and Casa. [Id. at 15-

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17.] In his prayer for relief, Plaintiff requests $10,000,000.00 in punitive damages from

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all defendants. [Id. at 17.]

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II.

Procedural Background

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Plaintiff filed his original complaint in district court on July 21, 2017, Luis v. County

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of San Diego, Case Number 3:17-cv-01486-CAB-JMA, (“17cv1486”), asserting claims

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against all Defendants under 42 U.S.C. § 1983 and California state law claims for

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negligence and wrongful death against Casa. [See Doc. No. 1 on the docket of 17cv1486].

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Document numbers and page references are to those assigned by CM/ECF for the docket entry.
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On October, 2, 2017, Defendant Casa filed a motion to dismiss that was fully briefed.

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[Doc. Nos. 8, 10, 11 on the docket of 17cv1486.] On November 13, 2017, the Court

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dismissed without prejudice the federal claims against Defendant Casa. [Doc. No. 13 on

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the docket in 17cv1486.] Further, in the absence of the federal claims, the Court declined

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to exercise supplemental jurisdiction over the remaining state law claims. [Id.] Plaintiff

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did not amend his complaint.

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Meanwhile, on November 3, 2017, concerned that the other two Defendants had not

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been served with a copy of the complaint, the Court issued an order to show cause, to which

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Plaintiff responded. [Doc. Nos. 12, 14 on the docket of 17cv1486.] On November 30,

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2017, the Court extended the deadline for County to answer or otherwise respond to the

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Complaint. [Doc. No. 16 on the docket of 17cv1486.]

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On January 11, 2018, Plaintiff voluntarily dismissed without prejudice the complaint

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against County and Estee Uram-Jarvis. [Doc. No. 20 on the docket in 17cv1486.] On

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December 7, 2017, before filing his notice of dismissal in 17cv1486, Plaintiff filed a

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complaint in the Superior Court of California, County of San Diego, against Casa and

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County. [Doc. No. 1-2.] The state court complaint is substantially similar to the one filed

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in the 17cv1486 action, the only notable differences are that Plaintiff no longer asserts

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constitutional claims against Casa and the state law claims are now waged against both

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Casa and County.

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On February 2, 2018, the County removed the state court complaint to district court.

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[Doc. No. 1.] Along with the Notice of Removal, County filed a notice of related case

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which resulted in the case being transferred from the Honorable Gonzalo Curiel to the

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undersigned. [Doc. Nos. 1-5, 8.]

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On February 9, 2018, Defendant Casa filed a motion to dismiss the punitive damages

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claim in the sixth cause of action, and requested the Court strike Plaintiff’s pleas for

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punitive damages from the Pray for Relief. [Doc. No. 7.] On April 6, 2018, Plaintiff filed

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a Notice of Non-opposition to Defendant Casa De Amparo’s Motion to Dismiss and Strike

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Plaintiff’s Request for Punitive Damages. [Doc. No. 14.] On April 16, 2018, the Court
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granted Casa’s motion and struck the requests for punitive damages from the complaint.

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[Doc. No. 17.]

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On February 9, 2018, Defendant County filed its motion to dismiss seeking dismissal

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on a myriad of grounds, including challenging the sufficiency of the complaint under

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Federal Rule of Civil Produce Rule 12(b)(6). [Doc. No. 9.] Plaintiff filed his opposition

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to the motion [Doc. No. 13] and County filed a reply [Doc. No. 16].

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III.

Judicial Notice

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At the motion to dismiss stage a court may consider materials incorporated into the

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complaint or matters of public record, without converting the motion to dismiss into a

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motion for summary judgment. Coto Settlement v. Eisenberg. 593 F.3d 1031, 1038 (9th

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Cir. 2010) (citation omitted); U.S. v. Ritchie, 432 F.3d 903, 908 (9th Cir. 2003) (“The

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defendant may offer such a document, and the district court may treat such a document as

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part of the complaint, and thus may assume that its contents are true for purposes of a

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motion to dismiss under Rule 12(b)(6).”).

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“incorporation by reference” doctrine to take into account documents “whose contents are

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alleged in a complaint and whose authenticity no party questions, but which are not

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physically attached to the [plaintiff’s] pleading.” Id.; See Knievel v. ESPN, 393 F.3d 1068,

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1076 (9th Cir. 2005); see also Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002);

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Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998). The court may disregard

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allegations in a complaint that are contradicted by matters properly subject to judicial

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notice. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).

The Ninth Circuit has extended the

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Here, County requests the Court take judicial notice of: (1) the Complaint filed on

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July 21, 2017, in 17cv1486; (2) the Order on Motion to Dismiss filed on July 17, 2017, in

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17cv1486; (3) the conformed copy of Order of Dismissal dated October 22, 2017, attaching

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Minute Order dated September 27, 2017, in Morris v. San Diego County Department of

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Social Services, No. 37-2016-00022280-CU-PO-NC (“37-2016-22280”) filed in the

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Superior Court of California; (4) conformed copy of Notice of Ex Parte Petition and Ex

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Parte Petition for Order Relieving Petitioner From Provisions of Government Code Section
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945.4 and Declaration of Case C. Barnett, Esq., filed on June 28, 2016, in 37-2016-22280;

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(5) Defendant Casa’s Notice of Motion and Motion to Dismiss and Strike Pursuant to

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FRCP 12(B)(6) and 12(F), filed on October 2, 2017, in 17cv1486; (6) a Minute Order dated

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December 1, 2017, in 17cv1486 dismissing Defendant Casa from the lawsuit; (7) Plaintiff’s

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Notice of Dismissal of Action, Without Prejudice, filed on January 11, 2018, in 17cv1486;

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(8) conformed copy of the County’s Opposition to Petitioner’s Motion for Relief From

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California Government Claims Filings Statute, filed August 26, 2016, in 37-2016-22280;

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(9) a copy of Clerk’s Certificate By Mail that a copy of the Superior Court’s ruling was

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mailed to Plaintiff’s counsel on September 27, 2016; (10) a copy of Notice of Dismissal

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that was mailed to Plaintiff’s counsel on November 9, 2017 in 37-2016-22280. [Doc. No.

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9-2.]

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County moves for judicial notice under Federal Rule of Evidence 201(b) because all

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of the documents are true and correct copies of official records of United States District

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Court for the Southern District of California and Superior Court of California, County of

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San Diego. Plaintiff has not opposed the use of these documents or challenged their

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authenticity. Accordingly, the Court takes judicial notice of Exhibits A-J filed in support

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of the motion to dismiss. [Doc. No. 9-2.]

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IV.

Legal Standard

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Under Rule 12(b)(6), a party may bring a motion to dismiss based on the failure to

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state a claim upon which relief may be granted. A Rule 12(b)(6) motion challenges the

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sufficiency of a complaint as failing to allege “enough facts to state a claim to relief that is

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plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For purposes

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of ruling on a Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint

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as true and construe[s] the pleadings in the light most favorable to the non-moving party.”

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Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

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Even under the liberal pleading standard of Rule 8(a)(2), which requires only that a

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party make “a short and plain statement of the claim showing that the pleader is entitled to

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relief,” a “pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
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elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Twombly, 550 U.S. at 555). “[C]onclusory allegations of law and unwarranted

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inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d

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1179, 1183 (9th Cir. 2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)

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(“[A]llegations in a complaint or counterclaim may not simply recite the elements of a

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cause of action, but must contain sufficient allegations of underlying facts to give fair

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notice and to enable the opposing party to defend itself effectively.”). “Determining

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whether a complaint states a plausible claim for relief . . . [is] a context-specific task that

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requires the reviewing court to draw on its judicial experience and common sense.” Iqbal,

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556 U.S. at 679.
V.

Discussion

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Defendant County moves to dismiss Plaintiff’s federal causes of action for failure to

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state a claim under Federal Rule of Civil Procedure 12(b)(6) and on collateral estoppel

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grounds. County also argues for dismissal of the state law claims because they were are

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barred by the California Tort Claims Act and were previously adjudicated in state court.

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The Court will first address the arguments related to the federal claims before turning to

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the state law claims.

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1. Applicability of Collateral Estoppel to the Four 42 U.S.C. § 1983 Claims

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Under the doctrine of collateral estoppel “once an issue is actually and necessarily

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determined by a court of competent jurisdiction, that determination is conclusive in

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subsequent suits based on a different cause of action involving a party to the prior

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litigation.” Montana v. U.S., 440 U.S. 147, 153 (1979). Application of the doctrine

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“preclude[s] parties from contesting matters that they have had a full and fair opportunity

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to litigate [and] protects their adversaries from the expense and vexation attending multiple

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lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing

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the possibility of inconsistent decisions.” Id. at 153-154. However, the doctrine will not

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apply “when the party against whom the earlier decision is asserted did not have a ‘full and

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fair opportunity to litigate the claim or issue.” Kremer v. Chemical Const. Corp., 456 U.S.

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461, 480-481 (1982) (citations omitted).

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An issue cannot be re-litigated if “(1) the issue decided in the prior adjudication is

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substantially identical to the issue in the subsequent action; (2) there was a final judgment

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on the merits; an (3) the party against who the estoppel is asserted was a party to or in

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privity with a party in the first action. Durkin v. Shea & Gould, 92 F.3d 1510, 1516 (9th

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Cir. 1996) (citation omitted). The party asserting the estoppel bears the burden of pleading

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and proving what issues were decided in his favor in the previous action. Hernandez v.

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City of L.A., 624 F.2d 935, 937 (9th Cir. 1980). If there is doubt collateral estoppel will

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not be applied. Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir. 1980).

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Here, the parties dispute whether any of the elements of issue preclusion are present.

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County argues that the Court’s dismissal of Plaintiff’s 42 U.S.C. § 1983 claims against

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Casa in 17cv1486 estops Plaintiff from reasserting them in the case at bar. In support,

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County asserts that the §1983 claims Plaintiff asserted in the case at bar are virtually

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identical to those raised in the 2017 suit and that Plaintiff’s failure to amend his complaint

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following the dismissal of the federal claims against Casa made this Court’s judgment final.

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Plaintiff counters that no final judgment was entered and that the claims against the County

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have not been previously litigated. The Court agrees with Plaintiff.

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In the 2017 case, this Court dismissed the three 42 U.S.C § 1983 substantive due

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process claims and one failure to train claim against Casa. [Doc. No. 9-2 at 22-39.] In so

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finding, the Court considered not only the alleged violation but also whether the alleged

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deprivation was committed by a person acting under color of state law. The Court

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concluded that not only were the constitutional violations not pled with the requisite

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specificity, it also determined Plaintiff had failed to allege sufficient facts to demonstrate

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that, as a private corporation, Casa was acting under color of state law such that it was

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properly subject to suit under § 1983. However, the same cannot be said for County and

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County Employee Does. Neither party dispute that the County is a municipal actor and,

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therefore, subject to suit under 42 U.S.C. §1983. Thus, the rationale the Court used in

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reaching its decision on the federal claims is not applicable to all Defendants.

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In addition, the merits of the claims brought against County and County Employee

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Does were not addressed in the Court’s order of dismissal because, at the time of its

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issuance, County had not filed a response to the pleading or joined in Casa’s motion. The

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order dismissing Plaintiff’s federal claims against Casa gave Plaintiff leave to amend, with

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the Court declining supplemental jurisdiction over the state law claims, therefore, at no

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point has the Court addressed the merits of the state law claims. Meaning, Plaintiff was

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not given a “full and fair opportunity to litigate the claim[s] or issue[s]” it had brought

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against County or the state law claims against the Defendants. Kremer, 456 U.S. at 480-

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481. Finally, the Court is cognizant of the fact that the claims against County, County

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Employee Does and Estee Uram-Jarvis were voluntarily dismissed by Plaintiff before a

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responsive pleading to the complaint was filed by County, which prompted the clerk of

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court to close the case. [Doc. No. 9-2 at 128-29.] The Court does not consider this to be

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entry of a final judgment on the merits. Accordingly, the Court finds no reason to dismiss

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Plaintiff’s claims based on the doctrine of collateral estoppel.

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2. The Fourteenth Amendment Substantive Due Process Claims

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The Fourteenth Amendment provides that no state can “deprive any person of life,

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liberty, or property, without due process of law; nor deny to any person within its

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jurisdiction the equal protection of the laws.” Plaintiff brings suit for violation of his and

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his deceased son’s Fourteenth Amendment due process rights pursuant to 42 U.S.C. § 1983.

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While § 1983 creates a private right of action against individuals who, acting under color

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of state law, violate federal constitutional or statutory rights it “is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks

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and citation omitted); see also Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001).

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In order “[t]o establish § 1983 liability, a plaintiff must show both (1) deprivation of a right

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secured by the Constitution and laws of the United States, and (2) that the deprivation was
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committed by a person acting under color of state law.” Tsao v. Desert Place, Inc., 698

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F.3d 1128, 1138 (9th Cir. 2012).

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“[P]laintiffs who seek to impose liability on local governments under § 1983 must

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prove that ‘action pursuant to official municipal policy’ caused their injury.” Connick v.

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Thompson, 563 U.S. 51, 60-61 (2011) (quoting Monell v. Dep’t of Soc. Servs. of City of

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New York, 436 U.S. 658, 692 (1978)) (“Congress did not intend § 1983 liability to attach

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where . . . causation is absent.”). In order to allege a claim for municipality liability,

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Plaintiff must include in his pleading enough “factual content” to support a reasonable

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inference to show that: (1) he was deprived of a constitutional right; (2) the county and city

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had a policy; (3) the policy amounted to deliberate indifference to his constitutional right;

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and (4) the policy was “the moving force behind the constitutional violation.” Van Ort v.

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Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996); see also Iqbal, 556 U.S. at 678;

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Monell, 436 U.S. at 690 (plaintiff must allege facts to show that a constitutional deprivation

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was caused by the implementation or execution of “a policy statement, ordinance,

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regulation, or decision officially adopted and promulgated by that body’s officers.”).

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A. Deprivation of a Constitutional Right

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“The first inquiry in any § 1983 suit . . . is whether the plaintiff has been deprived of

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a right ‘secured by the Constitution and laws.’” Baker v. McCollan, 443 U.S. 137, 140

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(1979). Here, Plaintiff claims his and his son’s Fourteenth Amendment rights were

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violated in three ways. The Court will look to each in turn to see if Plaintiff has met the

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pleading standards to state each § 1983 claim.

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i.

Fourteenth Amendment Due Process Claim for Failure to
Protect

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First, Plaintiff alleges a violation of his son’s, Jordan Luis, Fourteenth Amendment

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substantive due process rights against Defendant County and County Employee Does

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asserting they deliberately placed Jordan Luis in a dangerous position that led to his death.

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[Doc. No. 1 at 7-8.] Defendant County seeks dismissal of this claim on the grounds that if

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fails to state a claim. [Doc. No 9-1 at 21-23.]
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It is well established that the Constitution protects a citizen’s liberty interest in her

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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). It is also generally established that, “the

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Fourteenth Amendment’s Due Process Clause . . . does not confer any affirmative right to

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governmental aid” and “typically does not impose a duty on the state to protect individuals

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from third parties.” Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011) (citations

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and alterations omitted). However, there are two exceptions to this rule, the “special

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relationship exception” and the “state-created danger exception.” See generally, Henry A.

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v. Willden, 678 F.3d 991, 998 (9th Cir. 2012).2 “If either exception applies, a state’s

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omission or failure to protect may give rise to a § 1983 claim.” Id. at 998 (quoting Patel,

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648 F.3d at 972).

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Here, Plaintiff brings a claim under the state-created danger exception which

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imposes liability “for failing to protect an individual from harm by third parties where the

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state action affirmatively places the plaintiff in a position of danger, that is, where the state

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action creates or exposes an individual to a danger which he or she would not have

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otherwise faced.” Henry A., 687 F.3d at 1002 (internal quotation marks and citations

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omitted). In determining whether an official affirmatively placed an individual in danger,

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courts consider: (1) whether any affirmative actions of the official placed the individual in

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danger he otherwise would not have faced; (2) whether the danger was known or obvious;

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and (3) whether the official acted with deliberate indifference to that danger.” Kennedy v.

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City of Ridgefield, 439 F.3d 1055, 1062-64 (9th Cir. 2006). Deliberate indifference

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requires the state actor “must recognize an unreasonable risk and actually intend to expose

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The special relationship exception applies “‘when a ‘special relationship’ exists between the plaintiff
and the state.” Patel, 648 F.3d at 971. The exemption applies “when a state takes a person into its custody
and holds him there against his will” because “a state cannot restrain a person’s liberty without assuming
some responsibility for the person’s safety and well-being.” Id. at 971 (quoting DeShaney v. Winnebago
Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989)). The state-created danger exception applies
“when the state affirmatively places the plaintiff in danger by acting with ‘deliberate indifference’ to a
‘known or obvious danger.’” Id. at 971-72 (citing L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)).
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the plaintiff to such risks without regard to the consequences to the plaintiff.” Patel, 648

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F.3d at 974 (internal quotation marks, changes and citation omitted). The Ninth Circuit

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has made clear that negligence, or even gross negligence, is not enough for deliberate

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indifference, deliberate indifference requires a culpable mental state. L.W. v. Grubbs, 92

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F.3d 894, 898-900 (9th Cir. 1996). “[T]he deliberate indifference standard, as applied to

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foster children, requires a showing of an objectively substantial risk of harm and a showing

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that the officials were subjectively aware of facts from which an inference could be drawn

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that a substantial risk of serious harm existed and that either the official actually drew that

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inference or that a reasonable official would have been compelled to draw that inference.”

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Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 845 (9th Cir. 2010).

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Plaintiff alleges that his son, Jordan Luis, was in the care and custody of the County

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and Casa. [Doc. No. 1-2 at ¶ 14.] Plaintiff also alleges that Jordan Luis had a liberty

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interest in his own bodily security. [Id. at ¶ 23.] Plaintiff asserts that Defendants

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affirmatively placed Jordan Luis in a dangerous position that he otherwise would not have

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been by choosing to not modify his son’s living arrangements after receiving multiple

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requests to do so while knowing of Glass’ violent propensities and the increasing hostility

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between the roommates. [Id. at ¶¶ 18-20, 22, 25-27.] Additionally, Plaintiff complains

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that County’s actions “constituted outrageous behavior that is shocking to the conscience,”

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and that the refusal was made with deliberate indifference to his son’s personal and

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physical safety. [Id. at ¶¶ 22, 25.]

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County does not dispute that Jordan Luis was in the custody of the County of San

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Diego Social Services Foster Care system, was being housed at a facility run by Casa and

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was harmed by a third party, Calvin Glass. Rather, County asserts that Plaintiff has not

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pled conduct or facts necessary to state a claim and has simply made cursory statements

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regarding County’s actions. The Court concurs. The complaint suffers from the same

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deficiencies at its predecessor in the earlier action, in that it fails to allege

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any facts that show the danger that Glass posed was known or obvious to
anyone at [County], nor identified any employees working for [County] who
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received the complaints regarding the growing hostility between the
roommates. Additionally, Plaintiff has not sufficiently alleged that [County]
knew that something was going to happen between Glass and Jordan Luis but
ignored the risk and exposed Jordan Luis to the danger. Patel, 648 F.3d at
974. All that has been offered are conclusions and a formulaic recitation of
the elements of the cause of action…

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[Doc. No. 9-2 at 28:16-22.] Accordingly, the Court finds that Plaintiff has failed to
plausibly allege that Defendant County or its Doe Employees created or exposed Jordan
Luis to a danger which he would not have otherwise faced or that it acted with the necessary
deliberate indifference to the danger.
ii.

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Fourteenth Amendment Substantive Due Process Claim for
Loss of Parent-Child Relationship

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Second, Plaintiff alleges that the unlawful killing of his son, Jordan Luis, deprived

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both him and his son of their parent-child relationship, which was guaranteed to them under
the Fourteenth Amendment. [Doc. No. 1-2 at 11-12.] Defendant County seeks dismissal
of this claim on the grounds that Plaintiff “only offers legal conclusions to support his
claims, instead of facts.” [Doc. No 9-1 at 24:10-11.]
“It is well established that a parent has a fundamental liberty interest in the

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companionship and society of his or her child and that the state’s interference with that
liberty interest without due process of law is remediable under 42 U.S.C. § 1983.” Lee v.
City of L.A., 250 F.3d 668, 685 (9th Cir. 2001) (internal citations, quotations, and
alterations omitted).3 To prevail on such a substantive due process claim requires a parent
demonstrate the liberty deprivation was caused by the government “in such a way that
shocks the conscience or interferes with rights implicit in the concept of ordered liberty.”

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See also Robbins v. City of Hanford, Nos. CIV F F 04-6672 AWI SMS, CV F 05-0147 OWW SMS,
2006 WL 1716220, at *14 (E.D. Cal. June 19, 2006) (citing Gausvik v. Perez, 392 F.3d 1006, 1008 (9th
Cir. 2004) (“[w[here a claim for interference with familial relationships is integrally predicated upon, or
entwined with, other conduct that is alleged to be unconstitutional, a finding that the other conduct was
constitutional generally will preclude recovery for interference with familial relationship.”).
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Nunez v. City of L.A., 147 F.3d 867, 871 (9th Cir. 1998); see also Schwartz v. Lassen

2

County ex rel. Lassen Cnty. Jail, No. 2:10-cv-03048-MCE-CMK, 2013 WL 5375588, at

3

*5 (E.D. Cal. Sept. 24, 2013) (citations omitted) (“to prevail on a Fourteenth Amendment

4

claim arising out of the loss of familial relationship, a plaintiff must show that the

5

defendant’s conduct shocks the conscience.”). “This means the conduct must more than

6

offend some fastidious squeamishness or private sentimentalism, but offend even hardened

7

sensibilities.” Ramirez v. Escondido Unified Sch. Dist., Case No. 11cv1823 DMS (BGS),

8

2013 WL 12191986, at *2 (S.D. Cal. Apr. 8, 2013) (internal quotation marks and citation

9

omitted); see also Kim v. City of Santa Clara, No. C 09-00025 RS, 2010 WL 2034774, at

10

*6 (N.D. Cal. May 19, 2010) (“What state of mind shocks the conscience depends on the

11

circumstances of a particular case.”). As the Ninth Circuit has explained, conduct that

12

“shocks that conscience” is that which “either consciously or through complete

13

indifference disregards the risk of an unjustified deprivation of liberty.” Tatum v. Moody,

14

786 F.3d 806, 820-21 (9th Cir. 2014).

15

Here, Plaintiff has alleged a liberty interest that, upon the death of his son, he was

16

deprived of his son’s society, solace and comfort, companionship.” [Doc. No. 1-2 at ¶ 34.].

17

Further, Plaintiff alleges that County’s decision not to remove Jordan Luis from a

18

dangerous situation that resulted in Glass killing him “was done intentionally and in a

19

manner that constituted a deliberate indifference to and reckless regard” of Jordan Luis’

20

life and the parent-child relationship which “constituted outrageous behavior that is

21

shocking to the conscience.” [Id. at ¶ 33.] But, similar to the 2017 complaint, aside from

22

these conclusory statements, Plaintiff does not allege any facts showing conduct that

23

shocks the conscience. Plaintiff has only presented facts that County did not transfer one

24

of the roommates, and that County knew of Glass’ violent propensities and the increasing

25

hostility between the two young men. But no further details are provided. Without more,

26

this does not rise to the level of egregious official conduct that shocks the conscience. See

27

generally, Cnty. of Sacramento v. Lewis, 523 U.S. 833, at 846-847 (1998) (collecting cases

28

illustrating what conduct shocks the conscience and violates the decencies of civilized
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conduct). Accordingly, the Court concludes that Plaintiff has not alleged facts sufficient

2

to support a Fourteenth Amendment Loss of Parent-Child Relationship Claim.

3

iii.

4

Fourteenth Amendment Due Process Claim for Deprivation
of Life

5

Finally, Plaintiff alleges that Defendants County and County Employee Does

6

deprived his deceased son of his life without due process of law under the Fourteenth

7

Amendment. [Doc. No. 1-2 at 12-13.] Plaintiff is bringing this cause of action as a

8

“Federal Survivalship Claim via Cal. Civ. Proc. Code § 377.30” pursuant to the state-

9

created danger doctrine. [Id. at 12; Doc. No. 13 at 7.] Defendant County seeks dismissal

10

of this cause of action on the grounds that it also fails to state a claim. [Doc. No. 9-1 at

11

24.]

12

A survival action is an action by a decedent’s estate to recover damages on behalf of

13

the decedent for injuries the decedent sustained. Hayes v. Cnty. of San Diego, 736 F.3d

14

1223, 1228-1229 (9th Cir. 2013) (citation omitted). In order to recover damages under 42

15

U.S.C. § 1983 as a successor in interest, the successor must sufficiently allege that

16

defendants deprived the deceased of a constitutional right while acting under color of state

17

law. See Tatum v. City & Cnty. of S.F., 441 F.3d 1090, 1094 (9th Cir. 2006) (citing

18

Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir. 2001). The party seeking to bring a

19

survival action must demonstrate “that a particular state’s law authorizes a survival action

20

and that the plaintiff meets that state’s requirements for bringing a survival action.”

21

Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998) (citation

22

omitted); see also Robertson v. Wegmann, 436 U.S. 584, 589 (1978) (state law governs

23

who receives a decedent’s § 1983 claim). Under California law, “a cause of action for . . .

24

a person is not lost by reason of the person’s death, but survives. CAL. CIV. PROC. CODE §

25

377.20(a). In California any person seeking to commence an action pursuant to section

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28
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377.30 must execute and file an affidavit setting forth that person’s qualifications as a

2

successor. CAL. CIV. PROC. CODE § 377.32.4

3

Here, Defendant County does not dispute that Morris Luis, as Jordan’s father and

4

within his capacity as successor in interest, has alleged sufficient facts and filed the

5

affidavit necessary under California law5 to demonstrate he has standing to commence a

6

survival action based on the violation of the decedent’s constitutional rights. Rather,

7

County asserts that the claim “is duplicative of his first and second causes of action and

8

fails for the same reasons” and “does not allege facts sufficient to state the ‘state-created

9

danger exception.’” [Doc. No. 9-1 at 24.] The Court is not persuaded that the loss of parent-

10

child relationship claim is duplicative of the survival action. The relationship claim is

11

based on personal injuries Plaintiff suffered resulting from the death of his son, whereas

12

the survival action is being brought on behalf of Jordan Luis, based on the injuries he

13

suffered. See Hayes, 736 F.3d at 1229 (9th Cir. 2013) (“wrongful death actions [] are based

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23
24
25
26
27
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4

See also Nishimoto v. Cnty. of San Diego, Case No.: 3-16-cv-01974-BEN-JMA, 2016 WL 8737349, at
*4 (S.D. Cal. Nov. 4, 2016) (finding that plaintiff had sufficiently alleged she had standing to bring claims
as successor in interest for her deceased son to withstand a motion to dismiss because she had submitted
a declaration that complied with the requirements of California Code Civil Procedure section 377.32);
Wishum v. State of Cal., Case No. 14-cv-01491-JST, 2014 WL 3738067, at *2 (N.D. Cal. July 28, 2014)
(“Where there is no personal representative for the estate, the decedent’s ‘successor in interest’ may
prosecute the survival action if the party purporting to act as successor in interest satisfies the requirements
of California law.”).
5
A person who seeks to commence an action or proceeding as a decedent’s successor in interest must
execute and file an affidavit or declaration under penalty of perjury stating: (1) decedent’s name; (2) the
date and place of decedent’s death; (3) that “no proceeding is now pending in California for administration
of the decedent’s estate;” (4) if the decedent’s estate was administered, a copy of the final order showing
the distribution of the decedent’s cause of action to the successor in interest; (5) either of the following,
as appropriate, with facts in support thereof: (A) “The affiant or declarant is the decedent’s successor in
interest (as defined by Section 377.11 of the California Code of Civil Procedure) and succeeds to the
decedent’s interest in the action or proceeding.” (B) the affiant or declarant is authorized to act on behalf
of the decedent’s successor in interest (as defined by Section 377.11 of the California Code of Civil
Procedure) with respect to the decedent’s interest in the action or proceeding.”; (6) “No other person has
a superior right to commence the action or proceeding or to be substituted for the decedent in the pending
action or proceeding;” (7) “The affiant or declaration affirms or declares under penalty of perjury under
the laws of the State of California that the foregoing is true and correct. CAL. CIV. PROC. CODE §
377.32(a)
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on personal injuries resulting from the death of another, [whereas] survival actions . . . are

2

based on injuries incurred by the decedent.”). However, to the extent that Plaintiff is

3

seeking to bring two separate claims, one for failure to protect and one for loss of life, the

4

claims overlap somewhat, in that both are being brought on behalf of Plaintiff’s deceased

5

son and are premised upon his death.

6

Regardless, as explained in more detail above, Plaintiff has not sufficiently alleged

7

any facts sufficient to warrant application of one of the exceptions to the general rule that

8

the Fourteenth Amendment’s Due Process Clause does not require government actors to

9

protect individuals from third parties. See Patel, 648 F.3d 965. Similar to the other

10

substantive due process claims, Plaintiff simply offers conclusory statements that

11

“Defendants acted with deliberate indifference for DECENDENT’S reasonable security,

12

in that they ignored/and or failed to remove DECEDENT from an obviously dangerous

13

environment” and that County’s actions and omissions regarding Jordan Luis’ physical

14

safety and life “were done intentionally, maliciously, recklessly, sadistically, oppressively,

15

outrageously and with deliberate indifference and a reckless disregard” of Jordan Luis’

16

constitutional rights. [Doc. No. 1-2 at ¶¶ 37, 39.] But again, all that has been offered are

17

conclusions and a formulaic recitation of the elements of the cause of action. Plaintiff

18

pleads no specific facts about the County’s alleged knowledge of Calvin Glass’ violent

19

propensities, makes no attempt to identify any County employee to whom the complaints

20

about Glass was made, and provides no detail as to what the “growing hostilities” were or

21

the history between the roommates. In sum, while Plaintiff has standing to bring a survivor

22

claim, he has failed to allege with the required specificity the constitutional violation on

23

which it rests.

24

//

25

//

26

//

27

//

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B. Municipality Liability

2

Here, there is no question that County is a municipal actor.6 Therefore, County may

3

be held liable for the alleged violations only if the Employee Does’ conduct was the product

4

of a County policy or custom. Monell, 436 U.S. 658. County cannot, however, be held

5

liable under § 1983 “solely because it employs a tortfeasor – or, in other words, a

6

municipality cannot be held liable under § 1983 on a respondent superior theory.” Id. at

7

691 (emphasis in original).

8

A plaintiff may show a policy or custom of a municipality either: “(1) by showing a

9

longstanding practice of custom which constitutes the standard operating procedure of the

10

local government entity; (2) by showing that the decision-making official was, as a matter

11

of state law, a final policymaking authority whose edicts or acts may fairly be said to

12

represent official policy in the area of a decision; or (3) by showing that an official with

13

final policymaking authority either delegated that authority to, or ratified the decision of, a

14

subordinate.” Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (internal

15

quotation marks and citations omitted).

16

Here, it is alleged that the Doe Defendants “are Supervisory personnel and/or policy

17

making and/or final policy making officials with Defendant COUNTY and/or Defendant

18

CASA DE AMPARO,” who were responsible for or “otherwise caused the actions

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22
23
24
25
26
27
28

6

Further, the Court notes that Plaintiff has failed to provide any identifying information regarding the
individuals acting on behalf of County whose conduct may have violated his or his son’s constitutional
rights. Rather, Plaintiff simply makes general references to “Defendants” without specifying who did
what and when or providing any details regarding the knowledge the County Employee Does and County
Officials had regarding the situation between Jordan Luis and Calvin Glass. There is a complete absence
of factual allegations linking any specific individual to any of Plaintiff’s claims regarding the purported
constitutional violations. If Plaintiff chooses to amend he is cautioned that more facts must be alleged.
See, e.g., Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71
(1976)) (as a required element of a § 1983 claim “the inquiry into causation must be individualized and
focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged
to have cause a constitutional deprivation.”); Ellis v. Foulk, No. 2:14-cv-00802 AC P, 2015 WL 4662766,
at *7 (E.D. Cal. Aug. 5, 2015) (“vague and conclusory allegations concerning the involvement of official
personnel in civil rights violations are not sufficient.”).

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complained of by Plaintiff . . . such as via Supervisory Liability (i.e. failure to properly

2

supervise, improperly directing subordinate employees, approving unlawful actions of

3

subordinate employees, failing to intervene in and stop unlawful actions of their

4

subordinates.)” [Doc. No. 1-2 at ¶ 11.] Further, it is alleged that these Doe Defendants

5

were “acting pursuant to their authority as Supervisory personnel.” [Doc. No. 1-2 at ¶¶ 11,

6

12.] Absent from the complaint is any reference to a municipal custom, practice or plan.

7

These vague allegations do not give rise to the plausible inference that there was a

8

municipal policy or custom in place or that any County employee with the requisite

9

authority acted with deliberate indifference. Plaintiff does not allege with any degree of

10

specificity that the County employee/s who committed the alleged constitutional violations

11

were officials with final policy-making authority nor that the challenged action itself was

12

therefore an act of government policy. See Pembaur v. City of Cincinnati, 475 U.S. 469,

13

483 (1986) ([M]unicipal liability under § 1983 attaches where- and only where-a deliberate

14

choice to follow a course of action is made from among various alternatives by the official

15

or officials responsible for establishing final policy with respect to the subject matter in

16

questions”). Neither has Plaintiff alleged that the decision to maintain the roommate

17

arrangement that housed Jordan Luis and Calvin Glass together was ratified by an official

18

with final policy-making authority. See Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir.

19

1999) (to plausibly plead ratification the plaintiff must alleged facts that show that “the

20

authorized policymakers approve a subordinate’s decision and the basis for it.”).

21

Moreover, even assuming that a violation of Plaintiff’s and his son’s due process rights

22

occurred, Plaintiff has not demonstrated the existence of a municipal policy, practice or

23

custom, he has only alleged a single occurrence of unconstitutional action. See McDade v.

24

West, 223 F.3d 1135, 1141 (9th Cir. 2000) (citation omitted) (“[o]nly if a plaintiff shows

25

that his injury resulted from a permanent and well settled practice may liability attach for

26

injury resulting from a local government custom.”); Davis v. City of Ellensburg, 869 F.2d

27

1230, 1233-34 (9th Cir. 1989) (“A plaintiff cannot prove the existence of a municipal

28
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policy or custom based solely on the occurrence of a single incident of unconstitutional

2

action by a non-policymaking employee.” (italics in original).

3

As currently pled, Plaintiff has failed to allege any facts which “might plausibly

4

suggest” that he or his son were subject to a constitutional deprivation pursuant to any

5

municipal custom, policy, or practice implemented or promulgated with deliberate

6

indifference to his constitutional rights, or that such a policy was the “moving force” or

7

cause of his injury. See Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012)

8

(applying Iqbal’s pleading standards to Monell claims.)

9

C. Conclusion Regarding Fourteenth Amendment Claims

10

Although Plaintiff may have viable §1983 Fourteenth Amendment substantive due

11

process claims against County, they have not been pled with the requisite specificity.

12

Accordingly, the Court GRANTS Defendant County’s motion and DISMISSES

13

WITHOUT PREJUDICE Plaintiff’s Fourteenth Amendment substantive due process

14

claims. If Plaintiff intends to amend his complaint to assert these claims, he is advised that

15

he must allege claims that comport with the aforementioned legal standard.

16

3. Failure to Adequately Train Claim Under 42 U.S.C. § 1983

17

Defendant County seeks dismissal of this cause of action on the grounds that it also

18

fails to state a claim. [Doc. No. 9-1 at 25.]

19

A local government body may be held liable for its failure to train employees or

20

failure to provide a different kinds of training if the failure causes a constitutional violation,

21

and the failure amounts to deliberate indifference to the rights of individuals who come

22

into contact with the employees. See City of Canton v. Harris, 489 U.S. 378, 388-89 (1989)

23

(“[I]t may happen that in light of the duties assigned to specific officers or employees the

24

need for more or different training is so obvious, and the inadequacy so likely to result in

25

the violation of constitutional rights, that the policymakers of the city can reasonably be

26

said to have been deliberately indifferent to the need. In that event, the failure to provide

27

proper training may fairly be said to represent a policy for which the city is responsible,

28

and for which the city may be held liable if it actually causes injury”).
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3:18-cv-0246-CAB-(JMA)

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In order to allege a claim for failure to properly train, Plaintiff must include in his

2

pleading enough “factual content” to support a reasonable inference to show that: (1) he

3

was deprived of a constitutional right; (2) the municipality had a training policy that

4

amounts to deliberate indifference to the constitutional rights of the persons’ with whom

5

the employee are likely to come into contact; and (3) his constitutional injury would have

6

been avoided had the municipality properly trained those employees. Blakenhorn v. City

7

of Orange, 485 F.3d 463, 484 (9th Cir. 2007); Lee, 250 F.3d at 681. However, “[m]ere

8

negligence in training or supervision . . . does not give rise to a Monell claim.” Doughterty

9

v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). “Only where a municipality’s failure

10

to train its employees in a relevant respect evidences a ‘deliberate indifference’ to the rights

11

of its inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom’

12

that it actionable under § 1983.” City of Canton, 489 U.S. at 391.

13

Here, like the 2017 complaint, Plaintiff merely makes the boilerplate assertion that

14

Defendants’ training policies “were not adequate to train its employees to handle the usual

15

and recurring situations with which they must deal, such as the increasing hostility between

16

JORDAN LUIS and Calvin Glass.” [Doc. No. 1-2 at ¶ 42.] As the Court explained in the

17

Order of Dismissal in the 2017 case

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25
26
27
28

[e]ven assuming that a violation of Plaintiff’s due process rights occurred, the
situation concerning Plaintiff’s son and Glass does not demonstrate the
existence of a municipal policy or custom, it simply alleges a single
occurrence of unconstitutional action. See McDade v. West, 223 F.3d 1135,
1141 (9th Cir. 2000) (citation omitted) (“[o]nly if a plaintiff shows that his
injury resulted from a permanent and well settled practice may liability attach
for injury resulting from a local government custom). Furthermore, Plaintiff
has not alleged facts to support the proposition that Defendants were
deliberately indifferent with respect to the training or that known or obvious
consequences were disregarded. See, e.g., Connick v. Thompson, 563 U.S.
51, 62 (2011) (“Deliberate indifference is a stringent standard of fault
requiring proof that a municipal actor disregarded a known or obvious
consequence of his action.”). Neither has Plaintiff alleged facts that
Defendants failure to train its employees on how to deal with increasing
hostility between roommates in foster care actually caused the shooting of
Jordan Luis.
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[Doc. No. 9-2 at 36:7-19.]
All that is tendered are “naked assertion[s] devoid of further factual enhancement.”
Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted). Plaintiff has not
“identified the challenged policy/custom, explained how the policy/custom was deficient,
explained how the policy/custom caused the plaintiff harm, and reflected how the
policy/custom amounted to deliberate indifference, i.e. explained how the deficiency
involved was obvious and the constitutional injury was likely to occur.” Young v. City of
Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. Aug. 18, 2009) (identifying the allegations
the Ninth Circuit in Lee, 250 F.3d 668, determined would rise above the level of ‘bare
allegations” sufficient to state a Monell claim under Iqbal). As a consequence, the Court
DISMISSES WITHOUT PREJUDICE the failure to adequately train claim against
County.
4. State Law Claims
Defendant County seeks dismissal of the state law causes of action on the grounds
that Plaintiff has failed to satisfy the requirements of California’s Tort Claims Act and
failed to state claims for negligence and wrongful death. [Doc. No. 9-1 at 25-31.]
The California Tort Claims Act sets forth the procedure a litigant must follow when
seeking money or damages from a public entity in California. It requires a written claim
must first be filed with, and subsequently acted upon, by the public entity before a suit may
be initiated. See Cal. Gov. Code § 945.4. A failure on the part of the litigant to comport
with the Act’s requirements “bars the plaintiff from bringing suit against that entity.” State
of California v. Superior Court (Bodde), 32 Cal.4th 1234, 1240–44 (2004); Hacienda La
Puente Unified Sch. Dist. v. Honig, 976 F.2d 487, 494 (9th Cir. 1992) (“[c]ompliance with
the claims statute is mandatory and failure to file a claim is fatal to the cause of action.”)
The bar applies “even when the state-law claims are brought alongside federal claims in
federal court. “ Mergen v. City of L.A., Case 2:112-cv-00311-SVW-SHx, 2012 WL
12882418, at *2 (C.D. Cal. Aug. 30, 2012) (citation omitted). To ensure compliance with
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1

the Act in federal court, a litigant bringing such claims must allege facts that either

2

demonstrate or excuse compliance with the California Tort Claims Act. A failure to do so

3

will subject the state law claims to dismissal. See Mangold v. Cal. Pub. Utils. Comm'n, 67

4

F.3d 1470, 1477 (9th Cir.1995); Karim–Panahi v. L.A. Police Dep't, 839 F.2d 621, 627

5

(9th Cir.1988).

6

Here, the Complaint is silent as to whether Plaintiff submitted the tort claims to

7

County or that any of the prerequisites of maintaining a suit against a public entity in

8

California have been met. However, evidence has been provided that Plaintiff did not

9

timely submit a written claim to County regarding the death of his son7, and in fact sought

10

leave to present a late claim. [Doc. No. 9-2 at 41-46.] Both the County and Superior Court

11

of California, County of San Diego denied Plaintiff’s request for relief from the Act’s

12

requirements. [Id.] Therefore, the Court concludes that Plaintiff has neither demonstrated

13

compliance with, nor excusal from, the California Tort Claims Act requirements.

14

Furthermore, Plaintiff has not opposed County’s motion to dismiss the fifth and sixth

15

causes of action for the state law torts. In light of these circumstances, the Court grants

16

County’s motion and DISMISSES WITH PREJUDICE the state law claims brought

17

against it.

18

VI.

Conclusion

19

In sum, Plaintiff has failed to assert facts sufficient to demonstrate a constitutional

20

violation of the Fourteenth Amendment and fails to connect the County to the execution of

21

a policy or custom necessary to establish a Monell claim. As a consequence, Plaintiff has

22

failed to state § 1983 claims upon which relief can be granted. With regard to the state law

23

claims, Plaintiff has failed to comply with the mandatory California Tort Claim Act

24

requirements. Accordingly, the Court GRANTS IN PART AND DENIES IN PART

25

Defendant’s motion to dismiss [Doc. No. 9] and hereby ORDERS as follows:

26
27
7

28

Pursuant to the Act, claims relating to a cause of action for death or for injury to a person must be
presented not later than six months after the accrual of the cause of action. See Cal. Gov. Code § 911.2.
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1. The First through Fourth Causes of Action under 42 U.S.C. § 1983 are

2

DISMISSED WITHOUT PREJUDICE. Plaintiff has up to and including May

3

15, 2018, to file an amended complaint addressing the issues noted above. If

4

Plaintiff intends to file an amend complaint that reasserts these claims, Plaintiff

5

shall file a notice with the Court stating that intention on or before May 1, 2018.

6

2. The Fifth and Sixth causes of action for violation of California state law against

7

Defendant County are DISMISSED WITH PREJUDICE.

8

3. If Plaintiff chooses not to amend and does not file the required Notice of Intent

9

to do so by May 1, 2018, the Court shall remand the remaining state law causes

10

of action against Defendant Casa to state court. See 28 U.S.C. § 1447(c) (“[i]f at

11

any time before final judgment it appears that the district court lacks subject

12

matter jurisdiction, the case shall be remanded.”).

13
14

It is SO ORDERED.
Dated: April 24, 2018

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