Bernard et al v. Myers et al
Filing
37
OPINION & ORDER: Defendants motion to dismiss 27 and motion to strike 27 are DENIED. See 13-page opinion & order attached. Ordered by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
DIANE BERNARD,
Personal representative for the
Estate of Robert Haws, DIANE
BERNARD,
No. CV-11-608-HZ
Plaintiff,
v.
SHERIFF JASON MYERS,
SERGEANT JOHN McOMBER,
LIEUTENANT STEELE,
DEPUTY VAUGHN,
SERGEANT GERRY ADCOCK,
FSA II HILGERS,
SENIOR DEPUTY PETE DODSON,
SENIOR DEPUTY DONNA HEFTY,
SENIOR DEPUTY ERIK DOUGLASS,
DEPUTY KELLOGG,
DEPUTY PETERSON,
SERGEANT JAMES COLEMAN,
DEPUTY HARTL,
SERAGEANT JERRY HOGUE,
SENIOR DEPUTY DAN WITT,
DEPUTY ADAM GARNER,
NURSE GAGE,
NURSE DONNA KENDALL,
1 - OPINION & ORDER
OPINION & ORDER
Dr. RENDLEMAN,
OFFICER HAYMAN,
JOHN and JANE DOES #1-10,
employees of Marion County Jail, and
MARION COUNTY, by and through
the Marion County Jail,
Defendants.
Michelle R. Burrows
Sara K. Staggs
MICHELLE R. BURROWS, PC
618 NW Glisan
Suite 203
Portland, OR 97209
William A. Barton
BARTON & STREVER PC
214 SW Coast Highway
P.O. Box 870
Newport, OR 97365
Attorneys for Plaintiff
Kirstin E. Lurtz
MARION COUNTY LEGAL COUNSEL
555 Court Street, N.E.
P.O. Box 14500
Salem, Or 97309
Attorney for Defendant
Marion County
Jamie E. Valentine
Lindsey Harris Hughes
KEATING JONES HUGHES PC
One SW Columbia, Suite 800
Portland, OR 97258
Attorneys for Defendant
Neil Rendleman, M.D.
2 - OPINION & ORDER
HERNANDEZ, District Judge:
Robert Haws (“Haws” or “Decedent”) died while he was an inmate at Marion County
Jail. Compl., ¶ 1. Plaintiff Diane Bernard (“Plaintiff” or “Bernard”) brings this action in her
individual capacity and in the capacity as the personal representative of the Estate of Haws. The
Complaint names twenty-one defendants and ten “John and Jane Does” (collectively,
“Defendants”).1 Id., ¶¶ 7-27.
Plaintiff asserts seven claims for relief, five of which she asserts against Neil Rendleman,
M.D. (“Rendleman” or “Defendant”), one of the named health care providers. Id., ¶ 23. The five
claims for relief asserted against Defendant are as follows: (1) violation of 42 U.S.C. § 1983 for
deprivation of Decedent’s rights pursuant to the Eighth and Fourteenth Amendments to the
United States Constitution for delay and denial of medical care; (2) violation of 42 U.S.C. § 1983
for deprivation of Decedent’s rights pursuant to the Eighth and Fourteenth Amendments for
failure to protect Decedent; (3) violation of 42 U.S.C. § 1983 for deprivation of Decedent’s
rights pursuant to the Eighth and Fourteenth Amendments for supervisory liability; (4) violation
of 42 U.S.C. § 1983 for deprivation of Decedent’s substantive due process rights pursuant to the
Fourteenth Amendment and for parental loss; and (5) a supplemental state law claim for medical
negligence.
Now before me is the motion to dismiss the Complaint (doc. #27) pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure (“Rule”).2 Also before me is the motion to
1
The Complaint names as defendants seventeen “law enforcement officers,” three “health
care providers,” Marion County, and ten John and Jane Does. Compl., ¶¶ 7-27.
2
Defendant erroneously refers to Rule 12(b)(6) as Rule 12(6) throughout his briefs. See
Mot. to Dismiss and Strike Pursuant to FRCP 12 (“Mot. to Dismiss”), p. 2; Mem. in Supp. of
3 - OPINION & ORDER
strike paragraphs 47 and 48 of the Complaint (doc. #27) pursuant to Rule 12(f). For the reasons
that follow, Defendant’s motion to dismiss (doc. #27) and motion to strike (doc. #27) are
DENIED.
BACKGROUND
The following allegations in the Complaint are accepted as true for the purpose of
evaluating Defendants’ motions to dismiss:
Around 9:30 a.m. on July 13, 2010, Decedent was playing basketball with other inmates
in the Marion County Jail courtyard. Id., ¶ 30. While playing basketball, Decedent became
involved in a verbal altercation with Robert Dailey (“Dailey”), another inmate at Marion County
Jail. Id., ¶¶ 31-32. During the altercation, Daily punched Decedent in the jaw, knocking him
unconscious and causing him to hit his head on the concrete. Id., ¶ 32. Dailey and the other
inmates in the area dispersed. Id., ¶ 33. None of the guards, however, witnessed the altercation
or Decedent as he laid unconscious on the basketball court for approximately fifteen minutes
because they were watching their computers instead of the recreational yard. Id., ¶¶ 33, 41.
At some point, Dailey and a few other inmates returned to check on Decedent. Id., ¶ 34.
They dragged Decedent over to one of the poles of the basketball nets and propped him up
against it. Id. Decedent was barely conscious, was vomiting and urinating over himself, and was
bleeding out of his nose. Id., ¶¶ 34-36. Without any interference from the guards, one of the
inmates made several trips to the laundry room, replacing Decedent’s soiled, bloody clothing
with clean clothing from the laundry room. Id., ¶¶ 34-35.
Mot. to Dismiss, pp. 2, 4.
4 - OPINION & ORDER
Around 10:40 a.m., Decedent was noticed on a visual monitor. Id., ¶ 36. When law
enforcement officers finally reached Decedent, he was disoriented and could not respond to any
of their questions. Id. Decedent was handcuffed, and around 11:15 a.m., was put in a wheelchair
and taken to the segregation unit of the Marion County Jail. Id., ¶¶ 36-37. Although Decedent
continued to vomit and bleed out of his mouth and nose, he was placed in leg iron restraints. Id.,
¶¶ 37-38.
Sometime after 11:15 a.m., a 9-1-1 call was made. Id., ¶ 38. Emergency medical
technicians (“EMTs”) arrived at Marion County Jail around 11:30 a.m. Id. Although
unsupported “by [Decedent’s] medical history or symptoms,” the medical staff and security
officers told the EMTs that Decedent probably had a seizure and that his recent depression
indicated his state could be connected with a suicide attempt. Id. At no time did they discuss the
possibility of head trauma. Id.
Decedent arrived at the emergency room around 12:00 p.m. Id., ¶ 39. His condition,
however, “was not classified [as] a true emergency based on the false and contrived information
provided by [D]efendants” and as such, Decedent remained chained to a gurney in the emergency
room until the evening. Id. Around 6:00 p.m., an x-ray was performed indicating Decedent had
a subdural hematoma. Id. Decedent was taken in for surgery, which lasted approximately five
hours. Id. Decedent emerged from surgery in a coma and died seven days after the surgery. Id.,
¶ 40.
///
///
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5 - OPINION & ORDER
STANDARDS
I. Motion to Dismiss Pursuant to Rule 12(b)(6)
To survive a Rule 12(b)(6) dismissal for failure to state a claim, a complaint must contain
more than a “formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). It must contain factual allegations sufficient to “raise a
right to relief above the speculative level.” Id. To raise a right to relief above the speculative
level, “[t]he pleading must contain something more . . . than . . . a statement of facts that merely
creates a suspicion [of] a legally cognizable right of action.” Id. (citation omitted). “In sum, for
a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable
inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to
relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009) (citing Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009)).
“In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained
in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial
notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). A court “must presume all
factual allegations of the complaint to be true and draw all reasonable inferences in favor of the
nonmoving party.” Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987). The court
“presume[s] that general allegations embrace those specific facts that are necessary to support the
claim.” Nat’l Org. for Women v. Scheidler, 510 U.S. 249, 256 (1994) (citation omitted). The
court need not, however, “assume the truth of legal conclusions merely because they are cast in
the form of factual allegations.” W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
///
6 - OPINION & ORDER
II. Motion to Strike
Rule 12(f) provides that district courts “may strike from a pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter” on their own initiative or
pursuant to a party’s motion. Fed. R. Civ. P. 12(f). The disposition of a motion to strike is
within the discretion of the district court. See Fed. Sav. & Loan Ins. Corp. v. Gemini Mgmt., 921
F.2d 241, 244 (9th Cir. 1990). “Motions to strike are disfavored and infrequently granted. A
motion to strike should not be granted unless it is clear that the matter to be stricken could have
no possible bearing on the subject matter of the litigation.” E.g., Bassett v. Ruggles, No. CV-F09-528 OWW/SMS, 2009 WL 2982895, at *24 (E.D. Cal. 2009).
DISCUSSION
I. Motion to Dismiss
Defendant seeks an order dismissing all of the claims asserted against him pursuant to
Rule 12(b)(6).3 Mot. to Dismiss, p. 2. Defendant contends the Complaint does not allege he was
personally involved with Decedent’s care and argues that paragraphs 38, 41, 42, and 43 of the
Complaint fail to “mention or make reference to defendant Dr. Rendleman” and fail to allege
Defendant was “at the jail on the day in question.” Mem. in Supp. of Mot. to Dismiss, p. 3;
Reply in Supp. of Mot. to Dismiss (“Reply”), pp. 2, 5, 6. He also asserts there are “no
3
Defendant also appears to seek an order dismissing just the in-concert allegations
asserted against him. He expressly “moves to dismiss [P]laintiff’s claims for concerted liability
against defendant Rendleman from each of the claims for relief.” See Mot. to Dismiss, p. 2
(emphasis added). Defendant, however, cites no authority supporting his proposition that Rule
12(b)(6) allows a party to dismiss only specific allegations within a claim. Id. To the extent
Plaintiff’s motion to dismiss seeks to dismiss only select allegations from each of the claims, his
motion is denied.
7 - OPINION & ORDER
allegation[s] of fact that would support a finding that [he] had supervisory authority over the
nursing staff.” Reply, p. 3. Defendant’s assertions, however, are unavailing.
The level of specificity Defendant seeks here is not required under Rule 8(a)(2), which
requires only that a complaint contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see also Iqbal, 129 S. Ct. at 1949 (a
complaint must simply “include sufficient facts to state a claim to relief that is plausible on its
face” – “detailed factual allegations are not required”) (internal quotation marks and citations
omitted). Indeed, Plaintiff has alleged sufficient facts from which a reasonable inference can be
drawn that Defendant was involved with Decedent’s medical care at the time of his injury. Moss
v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (“[F]or a complaint to survive a motion to
dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must
be plausibly suggestive of a claim entitling the plaintiff to relief.”) For example, Plaintiff alleges
that “at all material times” Defendant “was a health care provider, working under the color of law
for the Marion County Jail.” Compl., ¶ 23. Paragraph 38 of the Complaint alleges “[t]he
medical staff . . . told the EMS workers that Plaintiff . . . probably had a seizure . . . and indicated
that his state could be connected with a suicide attempt . . . .” Id., ¶ 38. Paragraph 41 of the
Complaint alleges that “[n]o jail staff called medical [sic] or transported Plaintiff for over an
hour after he was hit, and [the jail staff] provided false information to the paramedics.” Id., ¶ 41.
Paragraph 42 of the Complaint alleges that “[i]f Defendants, especially the medical staff, had
considered the symptoms[,] . . . Plaintiff could have been evaluated for head trauma as soon as he
reached the emergency room.” Id., ¶ 42 (emphasis added). It also alleges “Defendants
abandoned Plaintiff . . . [and] slowly responded to his substantial injury.” Id. Paragraph 43 of
8 - OPINION & ORDER
the Complaint alleges “[t]he delay and denial of Plaintiffs medical care by the Defendants . . .
caused Haws death.” Id., ¶ 43. Finally, the Complaint alleges “Rendleman . . . . [was] on duty”
“[a]t all material times.” Id., ¶ 77. Construing the Complaint in the light most favorable to
Plaintiff, I conclude it can reasonably be inferred from the factual allegations that Defendant was
involved with Decedent’s medical care at the time he was injured on July 13, 2010.
With respect to Defendant’s supervisory authority, the Complaint specifically alleges
“Rendleman . . . w[as] employed by Marion County in a supervisory capacity[,] . . . had duties to
manage and direct subordinate staff in the carrying out of their duties and responsibilities[,] . . .
[and was] directly involved in the decisions to respond to the situation . . . .” Id., ¶¶ 57-58.
Defendant’s assertion that there are no allegations of fact supporting a finding that Defendant had
supervisory authority belies the allegations in the Complaint.
Defendant also contends the allegations in paragraph 47 of the Complaint is a
“conclusion of law and . . . should be disregarded.” Reply, p. 2. He further contends the
Complaint fails to allege how he acted in concert with the other Defendants and that he cannot be
held liable for each and every act of his co-defendants.
Courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Iqbal, 129 S. Ct. at 1949-50. Here, paragraph 47 of the Complaint alleges, “In
situations involving multiple defendant actors who act together to violate an individual’s
protected constitutional rights, each defendant is held liable for all the acts of each of the other
defendants.” Id., ¶ 47. Plaintiff’s allegation amounts to a legal conclusion that I am not required
to accept as true for the purpose of this motion to dismiss. Iqbal, 129 S. Ct. at 1949-50. Other
allegations in the Complaint, however, sufficiently plead that the acts of Defendant, in concert
9 - OPINION & ORDER
with those of the other Defendants, contributed to Decedent’s death. Compl., ¶¶ 48, 50. For
example, paragraph 48 of the Complaint alleges “Defendants, individually and in concert with
each other” failed to provide for Decedent’s “medical needs for over an hour after he suffered the
injury.” Id., ¶ 48.
In addition, Plaintiff’s in-concert allegations are not the sole basis of any of the five
claims asserted against Defendant.4 With respect to Plaintiff’s first claim for relief, it alleges
violations of 42 U.S.C. § 1983 for deprivation of Decedent’s rights under the Eighth and
Fourteenth Amendments for delay and denial of medical care. Id., ¶ 44. It asserts wrongdoing by
Defendant both “individually” and “in concert” with other Defendants where Defendants
“contrived facts to protect themselves[,] . . . failed to treat [Decedent] as a medical patient . . .,
[and] put him in solitary confinement [after his injury.]” Id., ¶ 48. It also alleges Defendant
“failed to provide the EMT’s [with] accurate information and . . . fabricated a story which was
then conveyed to the hospital resulting in a seven hour delay of life saving treatment for
[Decedent].” Id.
Plaintiff’s second claim for relief alleges violations of 42 U.S.C § 1983 for deprivation of
Decedent’s rights under the Eighth and Fourteenth Amendments for failure to protect Decedent.
It expressly “realleges paragraphs 1 through 50” and alleges “the named [D]efendants” failed to
“respond to the . . . medical needs of [Decedent],” failed “to document accurately the actions and
investigation taken when addressing the needs of a clearly injured inmate,” and failed “to call
emergency transport.” Id., ¶¶ 51, 53. It further alleges Defendant intentionally “delay[ed] the
4
Only Plaintiff’s first claim for relief expressly alleges in-concert actions by Defendants.
Compl., ¶¶ 47-48. Plaintiff’s remaining claims for relief simply “reallege” all the allegations in
the preceding paragraphs of the Complaint. Id., ¶¶ 47-48, 51, 57, 62, 76.
10 - OPINION & ORDER
transport and evaluation of [Decedent],” provided “false and contrived information to medical
personnel thus interfering with the treatment of [Decedent],” and provided “false and contrived
information to emergency medical officers which was documented and provided to medical staff
at the hospital.” Id., ¶ 53.
Plaintiff’s third claim for relief alleges violations of 42 U.S.C § 1983 for deprivation of
Decedent’s rights pursuant to the Eighth and Fourteenth Amendments for supervisory liability.
Id., ¶ 57. Like the first and second claims for relief, it simply “realleges” all the allegations in the
preceding paragraphs. Id. It also alleges “Rendleman . . . [was] employed by Marion County in a
supervisory capacity . . . [and] had duties to manage and direct subordinate staff in the carrying
out of [his] duties and responsibilities.” Id., ¶ 58. It further alleges Defendant was “directly
involved in the decisions to respond to the situation” and “appear[ed] to allow a malicious,
callous and institutional disregard for serious medical issues suffered by prisoners to the extent
[he] . . . participate[d] in depriving [Decedent] of medical care, delay[ed] transport, cover[ed] up
misconduct by staff[,] and provide[d] false statements . . . .” Id. Finally, Plaintiff’s third claim
for relief alleges Defendant “fail[ed] to provide timely and adequate emergency care for
inmates.” Id., ¶ 61.
Plaintiff’s fourth claim for relief alleges violations of 42 U.S.C § 1983 for deprivation of
Decedent’s substantive due process rights pursuant to the Fourteenth Amendment and for
parental loss. Id., ¶ 62. It “realleges” all allegations stated in the preceding paragraphs and
asserts Defendant delayed Decedent’s medical care. Id., ¶¶ 62, 67.
Lastly, Plaintiff’s seventh claim for relief alleges a supplemental state law claim for
medical negligence. Id., ¶ 76. It “realleges” all the allegations asserted in the preceding
11 - OPINION & ORDER
paragraphs of the Complaint and asserts Defendant was “on duty” when Decedent was injured.
Id., ¶ 77. It alleges Defendant “fail[ed] to recognize and treat” Decedent and failed to provide
Decedent with “timely access to hospital and emergency medical care.” Id., ¶ 79. It further
alleges Defendant failed to “take the urgent action that Plaintiff’s condition clearly required,”
“interfered with medical care needed by [Decedent,]” and “provided false and misleading
information to medical staff resulting in extensive delays of treatment.” Id., ¶ 80.
When read in its entirety, the Complaint here satisfies the liberal pleading standard set
forth in Rule 8(a)(2) and provides Defendant with “fair notice” of what the claims are and “the
grounds upon which [they] rest[].” Twombly, 550 U.S. at 555; see also Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (“[T]he complaint should be read as a whole, not
parsed piece by piece to determine whether each allegation, in isolation, is plausible.”).
Accepting the allegations of material fact in the Complaint as true and construing those
allegations in the light most favorable to Plaintiff, I conclude Plaintiff pleads sufficient facts
supporting his claims against Defendant. See Haddock v. Bd. of Dental Exam’rs of Cal., 777
F.2d 462, 464 (9th Cir. 1985) (“[A] complaint should not be dismissed if it states a claim under
any legal theory, even if the plaintiff erroneously relies on a different legal theory.”).
Defendant’s motion to dismiss Plaintiff’s first, second, third, fourth, and seventh claims
for relief is denied.
II. Motion to Strike
In the alternative, Defendant moves to strike Plaintiff’s allegations of in-concert liability
set forth in paragraphs 47 and 48 of the Complaint. Under Rule 12(f), a “court may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
12 - OPINION & ORDER
matter.” Fed. R. Civ. P. 12(f). “The function of a 12(f) motion to strike is to avoid the
expenditure of time and money that must arise from litigating spurious issues by dispensing with
those issues prior to trial . . . .” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th
Cir. 2010) (citation omitted).
Plaintiff argues that the allegations in paragraphs 47 and 48 are not redundant, immaterial,
impertinent, or scandalous. I agree. Furthermore, as noted above, motions to strike are
disfavored and infrequently granted. Lastly, I find Plaintiff’s allegations regarding in-concert
liability may later prove relevant to her claims and damages. Accordingly, Defendant’s motion
to strike paragraphs 47 and 48 of the Complaint is denied.
CONCLUSION
Based on the foregoing reasons, Defendant’s motion to dismiss (doc. #27) and motion to
strike (doc. #27) are DENIED.
IT IS SO ORDERED.
Dated this 20th
day of October, 2011.
/s/ Marco A. Hernandez
Marco A. Hernandez
United States District Judge
13 - OPINION & ORDER
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