Ager v. Hedgepath et al
Filing
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Order by Hon. Edward J. Davila granting in part and denying in part 17 Motion to Dismiss.(ejdlc2, COURT STAFF) (Filed on 8/24/2012)
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UNITED STATES DISTRICT COURT
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United States District Court
For the Northern District of California
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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DANIEL AGER, ET AL.
v.
Plaintiffs,
ANTHONY HEDGPETH, ET AL.,
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Defendants.
Case No.: 11-CV-6642 EJD
ORDER GRANTING-IN-PART AND
DENYING-IN-PART DEFENDANTS’
MOTION TO DISMISS
Before this court is Defendant Anthony Hedgpath, Defendant B. Hedrick, and Defendant D.
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Spencer’s motion to dismiss Plaintiff Daniel Ager, Plaintiff Kathryn Ager, and Plaintiff Elizabeth
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Ager’s Complaint. For the reasons stated below, Defendants’ motion is GRANTED IN PART with
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leave to amend and DENIED IN PART.
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I. BACKGROUND
Plaintiffs in this case are the children and sole surviving heirs of Alan Ager (“Ager”), who
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was sentenced on January 16, 2008, to 16 years in state prison for violation of Cal. Penal Code §
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288.5, continuous sexual abuse of a child under 14 years of age. Compl. ¶ 9. Ager was transferred
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from Marin County Jail to San Quentin State Prison on January 29, 2008. Id. ¶ 10. Ager was at the
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Case No.: 5:11-CV-6642 EJD
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS’ MOTION TO
DISMISS
1
time 60 years of age and 5’4” tall, weighing 135 lbs. Id. Upon transfer, he requested special
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housing because he feared assault by other inmates. Id. Plaintiffs allege, as a matter of “common
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knowledge,” that inmates convicted of sexual abuse of minors are routinely segregated and given
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special housing for their safety, and that Defendants knew such offenders are vulnerable to attack
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by other inmates. Id. ¶ 11.
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In September 2008, Ager was transferred to Salinas Valley State Prison. Id. ¶ 12. While in
Salinas Valley State Prison, Ager filed numerous complaints and appeals regarding the treatment
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he received, alleging that prison staff revealed his conviction to other prisoners, failed to provide
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adequate medical care, threatened and assaulted him, and denied his request to be housed in a
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United States District Court
For the Northern District of California
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single cell for his safety. Id. On April 29, 2009, a correctional officer who had received one of
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Ager’s complaints claimed Ager was resisting an escort and “guided” him to the ground. Id. ¶ 13.
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This incident resulted in a broken nose and face lacerations. Id. The broken nose was not treated
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until July 2009, when Ager was transferred to a local hospital and the fracture was diagnosed. Id. ¶
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14. Ager was assaulted at least four times during the last year of his life, by three different
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prisoners, including his cell mate, and by one staff member. Id. ¶ 15.
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At some time prior to April 6, 2010, Ager was placed in a cell with inmate Beaver. Id. ¶ 16.
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Plaintiffs allege that inmate Beaver had a history of violence, that Acting Chief Warden B. Hedrick
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(“Hedrick”) participated in the cell assignment, and that Warden Anthony Hedgpeth (“Hedgpeth”)
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acquiesced in the assignment. Id. ¶¶ 16, 18. At about 2:20 a.m. on April 6, 2010, Correctional
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Officer D. Spencer, who was assigned to monitor Ager’s unit, discovered Beaver trying to cover
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Ager with a mattress. Id. ¶ 19. Ager was motionless with blood trickling from his mouth, a ligature
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tied tightly around his neck. Id. ¶¶ 19, 20. He was moved to Salinas Valley Medical Hospital. Id. ¶
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21. He did not regain consciousness. Id. ¶ 22. On April 16, he was removed from a ventilator and
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passed away. Id. The cause of death was determined to be Ischemic-Anoxic Encephalopathy due to
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Ligature Strangulation. Id.
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Plaintiffs filed this action in this court on December 23, 2011. Compl. Plaintiffs pleaded
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three causes of action, all based on 42 U.S.C. § 1983: (1) that Defendants’ actions formed a pattern
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Case No.: 5:11-CV-6642 EJD
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS’ MOTION TO
DISMISS
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of retaliation against Ager for complaints he made while in prison that were protected by the First
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Amendment; (2) that Defendants showed deliberate indifference to the risks Ager faced in prison,
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causing his death; and (3) that Defendants’ actions deprived Plaintiffs of the familial relationship
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with their father in violation of the First and Fourteenth Amendments. The first and second claims
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are survival actions; the Plaintiffs assert them as Ager’s successors in interest. Defendants filed the
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present motion to dismiss on April 11, 2012. Docket No. 17.
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II. LEGAL STANDARD
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On a Rule 12(b)(6) motion to dismiss for failure to state a claim, the complaint is construed
in the light most favorable to the non-moving party, and all material allegations in the complaint
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United States District Court
For the Northern District of California
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are taken to be true. Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir. 1986); see Fed. R. Civ. P.
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12(b)(6)). This rule does not apply to legal conclusions—“[t]hreadbare recitals of the elements of a
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cause of action, supported by mere conclusory statements, do not suffice” to state a claim. Ashcroft
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v. Iqbal, 556 U.S. 662, 663 (2009). While a complaint does not need detailed factual allegations to
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survive a 12(b)(6) motion, plaintiffs must provide grounds demonstrating their entitlement to relief.
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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the plaintiff must allege
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sufficient factual allegations “to raise a right to relief above the speculative level.” Id. This
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threshold is reached when the complaint contains sufficient facts to allow the court to draw a
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reasonable inference that the defendant is liable for the alleged misconduct. Iqbal, 556 U.S. at 678.
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III. DISCUSSION
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Defendants seek dismissal of the Complaint on the grounds that (1) Plaintiffs fail to state
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whether they are suing Defendants in their individual or their official capacity; (2) Plaintiffs lack
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standing to bring the First Amendment retaliation and deliberate indifference claims; (3) the
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Complaint does not allege facts sufficient to support a claim against Hedgpeth 1 in his supervisorial
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capacity; (4) the First Amendment claim does not allege a sufficient nexus between Ager’s
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protected activity and Defendants’ conduct; and (5) the Fourteenth Amendment does not permit
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Plaintiffs’ claims.
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Counsel has spelled Hedgpeth’s named a variety of ways. For this order, the court adopts the
spelling used by Defendants’ counsel.
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Case No.: 5:11-CV-6642 EJD
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS’ MOTION TO
DISMISS
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A. Eleventh Amendment Bar on Claims for Damages Against Government Officials Acting
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in Their Official Capacity
Defendants note, and Plaintiffs concede, that the Complaint fails to specify whether
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Defendants are being sued in their individual or their official capacity. Mot. Dismiss at 16; Opp’n
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Mot. Dismiss at 12. A suit against state officials acting in their official capacity is treated as a suit
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against the state. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). The Eleventh Amendment
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provides immunity to states from suits in federal court by private persons for damages, unless the
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state has waived its sovereign immunity and consented to suit. Alabama v. Pugh, 438 U.S. 781, 782
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(1978); U.S. Const. amend. XI (“The Judicial power of the United States shall not be construed to
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United States District Court
For the Northern District of California
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extend to any suit in law or equity, commenced or prosecuted against one of the United States by
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Citizen of another State, or by Citizens or Subjects of any foreign state.”).
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Here, Plaintiffs concede that the Complaint fails to state in what capacity the Defendants
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are being sued. In opposition to the motion to dismiss, Plaintiffs argue that they seek relief from
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Defendants in their individual, not their official, capacities. “If state officials are named in
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complaint which seeks damages under § 1983, it is presumed for Eleventh Amendment purposes
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that officials are being sued in their individual capacities.” Shoshone-Bannock Tribes v. Fish &
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Game Com'n, Idaho, 42 F.3d 1278, 1284 (9th Cir. 1994). The court presumes that Defendants are
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being sued in their individual capacities and the claims therefore are not barred by the Eleventh
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Amendment.
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Accordingly, Defendants’ motion to dismiss all claims in the Complaint on this basis is
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DENIED.
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B. Plaintiffs’ Standing to Bring Claims for Retaliation and Deliberate Indifference
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In California, with certain exceptions and limitations, causes of action survive death. Cal.
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Civ. Proc. Code § 377.20. At issue in the present case is whether Plaintiffs have complied with the
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requirement to file a declaration or affidavit containing certain information and a certified copy of
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the decedent’s death certificate. 2 Plaintiffs did not submit the required declaration when they filed
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Section 377.32 states in relevant part:
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Case No.: 5:11-CV-6642 EJD
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS’ MOTION TO
DISMISS
1
the Complaint. After Defendants noted the omission in their motion to dismiss, Plaintiffs filed a
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declaration. Mot. Dismiss at 7-8; Decl. Succs. Interest, Docket No. 22. The declaration lacked a
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death certificate and a statement that no other person has a superior right to file the instant claims.
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Id. at 1-2.; see Civ. Proc. §§ 337.32(a)(6), (c). On May 8, 2012, Plaintiffs supplemented the
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declaration with a death certificate. Suppl. Decl. Succs. Interest, Docket No. 23. After Defendants
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noted that the declaration still lacked one required statement, Plaintiffs further amended the
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declaration. Reply Opp’n. Mot. Dismiss at 3:8-11, Docket No. 26; Am. Suppl. Decl. Succs. Interest
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¶ 5, Docket No. 27.
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The result is that the amended declaration now complies with statute. The question is
United States District Court
For the Northern District of California
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therefore whether Plaintiffs’ earlier failure to meet the requirements of Section 377.32 is fatal to
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the claims on which their standing as successors in interest depends. Defendants cite orders in
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which courts dismissed survival actions for failure to fully comply with section 377.32. Riggi v.
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City of Placerville, No. 2:11-cv-00753-MCE-DAD, 2011 U.S. Dist. LEXIS 41260, at *3 (E.D. Cal.
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Apr. 15, 2011) (dismissing without prejudice); Smith-Downs v. City of Stockton, No. 2:10-cv-
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02495-MCE-GGH, 2011 U.S. Dist. LEXIS 61918, at *4 (E.D. Cal. June 9, 2011) (dismissing with
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leave to amend even after plaintiffs had twice been ordered, and had twice failed, to comply).
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These courts, however, also granted plaintiffs leave to amend. Here, Plaintiffs are already in full
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compliance with the statute. Consequently, Defendants’ motion to dismiss the first two causes of
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action on this basis is DENIED.
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C. Hedgpeth’s Liability as a Supervisor
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Hedgpeth asks the court to dismiss all claims against him on the grounds that Plaintiffs fail
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to state sufficient facts to establish his liability as a supervisor. Mot. Dismiss at 9-11. Plaintiffs
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“(a) The person who seeks to commence an action or proceeding or to continue a pending action or
proceeding as the decedent’s successor in interest under this article, shall execute and file an
affidavit or a declaration under penalty of perjury under the laws of this state stating all of the
following:
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(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.’
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(c) A certified copy of the decedent's death certificate shall be attached to the affidavit or
declaration.”
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Case No.: 5:11-CV-6642 EJD
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS’ MOTION TO
DISMISS
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argue that they sufficiently alleged that (1) Hedgpeth acquiesced in the face of an obvious risk to
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Ager’s safety by allowing him to be celled with Beaver, and (2) Hedgpeth’s failure to train,
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supervise, and control subordinates caused Defendants to act with deliberate indifference when
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they assigned Ager to Beaver’s cell. Opp’n Mot. Dismiss at 6-9.
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The parties agree that there is no vicarious liability under § 1983 that would make a
supervisor automatically liable for a subordinate’s actions. Mot. Dismiss at 9; Opp’n at 5-6; see
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Hydrick v. Hunter, 669 F.3d 937, 940 (9th Cir. 2012). A supervisor, however, may be liable for his
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“own culpable action or inaction in the training, supervision, or control of his subordinates, his
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acquiescence in the constitutional deprivations of which the complaint is made, or conduct that
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United States District Court
For the Northern District of California
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showed a reckless or callous indifference to the rights of others.” Starr v. Baca, 652 F.3d 1202,
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1205-1206 (9th Cir. 2011) (internal quotation marks and citation omitted). To be liable for a failure
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to prevent harm, a prison official “must both be aware of facts from which the inference could be
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drawn that a substantial risk of serious harm exists, and must also draw the inference.” Mooring v.
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S.F. Sheriff’s Dep’t, 289 F. Supp. 2d 1110, 1116 (N.D. Cal. 2003) (citing Farmer v. Brennan, 511
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U.S. 825, 833-834 (1994)).
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Here, the Complaint alleges that “Warden Hedgpeth caused the death of Dr. Ager for his
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action and inaction in the training, supervision, and control of his subordinates, for his
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acquiescence in the cell assignment of Dr. Ager, and for conduct that showed a reckless and callous
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indifference to the rights of others.” Compl. ¶ 18. In support of this conclusory allegation, the
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Complaint alleges that Hedpeth was responsible for providing for the safety of inmates and staff
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and for the training and supervision of staff. Id. The Complaint also alleges that “[D]efendants
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knew that inmates with certain convictions, such as sexual abuse of a minor, are vulnerable to be
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attacked and killed by other inmates.” Compl. ¶ 11.
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In opposition to this motion to dismiss, Plaintiffs argue many facts that are not alleged in
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the Complaint. For example, Plaintiffs claim that (1) Defendants knew Ager was a child molester,
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(2) because of Ager’s conviction, age, and size he was vulnerable to being attacked or killed by
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other inmates, (3) as of December 11, 2009, Ager had been attacked by three different inmates, one
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Case No.: 5:11-CV-6642 EJD
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS’ MOTION TO
DISMISS
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of whom was a cellmate, (4) Defendants knew that Beaver had a history violence (he was a
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convicted murderer serving a sentence of life without the possibility of parole), and (5) despite the
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obvious risk Beaver posed to Ager’s safety, Defendants double-celled Ager with Beaver or failed
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to protect Ager from that risk by removing him from the cell or adequately monitoring it. Opp’n
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Mot. Dismiss at 7. Although the Complaint alleges these underlying facts, the Complaint does not
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allege Hedgpeth’s knowledge of these facts. Compl. ¶¶ 9-11, 15-16, 18. Thus, the Complaint does
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not allege sufficient facts to show that Hedgpeth failed to adequately train, supervise, or control the
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officers who made the decision to cell Ager with Beaver or that he acquiesced to the cell
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assignment. Thus, Defendants’ motion to dismiss the claims against Hedgpeth on this basis is
United States District Court
For the Northern District of California
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GRANTED with leave to amend.
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D. First Amendment Retaliation Cause of Action
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Defendants argue that the Complaint fails to plead facts showing a causal connection
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between Ager’s exercise of his First Amendment right of free speech and any adverse action
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against Ager by Defendants. Mot. Dismiss at 11-13. Such a causal connection is a required element
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of a retaliation claim in the prison context. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.
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2005) (“Within the prison context, a viable claim of First Amendment retaliation entails five basic
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elements: (1) an assertion that a state actor took some adverse action against an inmate; (2) because
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of; (3) that inmate’s protected conduct; (4) that such action chilled the inmate’s exercise of his First
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Amendment rights; and (5) the action did not reasonably advance a legitimate correctional goal.”).
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Specifically, Defendants argue that Plaintiffs fail to establish a temporal connection
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between the protected activity and the alleged retaliatory conduct that resulted in Ager’s death
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because Plaintiffs do not state when the grievances were filed, id. at 12-13, and that it cannot
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plausibly be inferred that Defendants were aware of the grievances because none of Ager’s
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grievances were directed to or concerned any named Defendant, id. at 13. Plaintiffs argue that the
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“escalating mistreatment” of Ager, Ager’s repeated complaints, and the decision to house Ager
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with Beaver allow a reasonable inference that Defendants denied Ager protection because of his
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complaints. Opp’n Mot. Dismiss at 10. Although the Complaint alleges Ager was attacked by both
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Case No.: 5:11-CV-6642 EJD
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS’ MOTION TO
DISMISS
1
inmates and prison staff, it does not allege that these attacks or other mistreatment escalated soon
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after complaints were filed or otherwise show how the timing of the attacks related to Ager’s
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complaints. Compl. ¶¶ 12-16 (listing several topics of complaints filed by Ager; two attacks on
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Ager; an incident in which Ager was injured by a guard; an allegation that Ager was the victim of
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“at least four assaults” in the last year of his life; an allegation of delayed medical care; and the
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decision to double-cell Ager with inmate Beaver). Defendants therefore are correct that the
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Complaint fails to establish a temporal connection between Ager’s complaints and his
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mistreatment. Furthermore, as Defendants note, Plaintiffs do not allege facts showing Defendants
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knew about Ager’s protected speech. Mot. Dismiss at 13. Because Ager has not pleaded facts
United States District Court
For the Northern District of California
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demonstrating that Defendants took an adverse action against Ager because of Ager’s protected
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conduct, Ager has not pleaded a plausible claim for retaliation. For these reasons, the motion to
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dismiss the First Amendment retaliation claim is GRANTED with leave to amend.
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E. Deliberate Indifference Cause of Action
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As to the claim of deliberate indifference, Defendants fault the Complaint for failing to
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allege whether relief is being sought under the Eighth Amendment prohibition on cruel and unusual
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punishment or the Fourteenth Amendment guarantee of due process. Mot. Dismiss at 14; Reply
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Opp’n Mot. Dismiss at 10-11. The court agrees that the Complaint is deficient in this regard.
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Section 1983 does not confer substantive rights, but only provides an avenue by which
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plaintiffs may seek relief for the deprivation of rights conferred elsewhere in federal law. Graham
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v. Connor, 490 U.S. 386, 393-94 (1989). The plain language of the statute necessitates that
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Plaintiffs name the federal right of which they were deprived. Gomez v. Toledo, 446 U.S. 635,
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640 (1980) (“By the plain terms of § 1983, two—and only two—allegations are required in order
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to state a cause of action under that statute. First, the plaintiff must allege that some person has
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deprived him of a federal right. Second, he must allege that the person who has deprived him of
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that right acted under color of state or territorial law.”); Shakespeare v. Wilson, 40 F.R.D. 500,
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503-04 (S.D. Cal. 1966) (requiring that a § 1983 claim “set forth with some specificity . . . the
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nature of the Constitutional rights involved”) . See also Federal Judicial Center, Section 1983
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Case No.: 5:11-CV-6642 EJD
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS’ MOTION TO
DISMISS
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Litigation 6 (Martin A. Schwartz and Kathryn R. Urbonya, eds., 2d ed. 2008) (“The plaintiff must
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establish . . . a deprivation of a federally protected right”). Plaintiffs, for the first time in the
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parties’ Joint Case Management Statement, state that they are seeking relief under both the Eighth
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and the Fourteenth Amendments. Docket No. 11 at 5. Because the Complaint does not specify the
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source of the right Plaintiffs are seeking to vindicate, Defendants’ motion to dismiss the deliberate
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indifference claim on this basis is GRANTED with leave to amend. Plaintiffs may amend the
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Complaint in order to state a case under the specific constitutional provision or provisions they
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believe were violated.
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V. CONCLUSION
United States District Court
For the Northern District of California
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Defendants’ motion to dismiss is GRANTED as to the First Amendment retaliation claim,
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the deliberate indifference claim, and the claims against Defendant Hedgpeth. Defendants’ motion
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is DENIED as to Plaintiffs’ deprivation of familial relationship claim against Hedrick and Spencer.
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Plaintiffs are given leave to amend the Complaint in order to correct the infirmities described
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above. Any amended complaint must be filed within thirty days of the date this order is issued.
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IT IS SO ORDERED.
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Dated: August 24, 2012
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_________________________________
EDWARD J. DAVILA
United States District Judge
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Case No.: 5:11-CV-6642 EJD
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS’ MOTION TO
DISMISS
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