Quinn v. Fresno County Sheriff et al, No. 1:2010cv01617 - Document 36 (E.D. Cal. 2011)

Court Description: MEMORANDUM DECISION REGARDING MOTION TO DISMISS 30 , signed by Judge Oliver W. Wanger on 5/5/2011. ( IT IS ORDERED: 1) Plaintiffs medical care claim under Section 1983 (thirteenth cause of action) against Defendant Alanis isDISMISSED WITHOUT PRE JUDICE; 2)Plaintiffs first cause of action is DISMISSED WITH PREJUDICE; 3)Plaintiffs second cause of action is DISMISSED WITHPREJUDICE; 4)Plaintiffs third cause of action is DISMISSED WITHOUT PREJUDICE; 5) Plaintiff shall file an amended complaint wi thin fourteen (14) days of electronic service of this Memorandum Decision; Defendants shall file a esponse within ten (10) days of service of the amended complaint, and 6) Defendants shall submit a form of order consistent with this Memorandum Decision within five (5) days of electronic service of this decision.)(Gaumnitz, R)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 1:10-cv-01617-OWW-SMS JAMES LORAN QUINN, 9 MEMORANDUM DECISION REGARDING MOTION TO DISMISS (Doc. 30) Plaintiff, 10 v. 11 12 FRESNO COUNTY SHERIFF, et al., Defendants. 13 14 15 16 17 18 19 20 21 22 I. INTRODUCTION. Plaintiff James Loran Quinn Plaintiff proceeds with an action pursuant to 42 U.S.C. § 1983 against various Defendants. Plaintiff filed his third amended complaint ( TAC ) on March 2, 2011. (Doc. 27). On March 11, 2011, Defendants David Alanis ( Alanis ) and the County of Fresno ( the County ) filed a motion to dismiss the SAC. (Doc. 30). April 18, 2011. (Doc. 32). 23 24 25 26 27 Plaintiff filed opposition to the motion to dismiss on II. FACTUAL BACKGROUND. Plaintiff pled guilty to driving under the influence on September 5, 2005, and was sentenced to five years of formal probation. The terms of Plaintiff s probation require him to file a report each month with the probation department. 28 1 In October 1 2006, Alanis was designated as Plaintiff s probation officer. 2 On December 4, form 2006, for Plaintiff December personally to Alanis at delivered his 3 monthly report the probation 4 department office. 5 Plaintiff had a conversation with Alanis. 6 January 11, 2007, Plaintiff personally delivered January s monthly 7 report form to the probation department office. 8 with Alanis when he visited the probation department office to turn 9 in his January monthly report. Upon turning in his monthly report form, Sometime prior to Plaintiff spoke Plaintiff alleges that he also 10 timely submitted his February 2007 report, but the TAC does not 11 allege how or when he did so. 12 Plaintiff s Arrest 13 On February 12, 2007, Alanis caused Detective Mark VanWyhe of 14 the Fresno Police Department to arrest Plaintiff for failing to 15 submit 16 February 2007. 17 place of business and announced that he was arresting Plaintiff due 18 to 19 Plaintiff responded he had copies of the three forms in question 20 with probation department date stamps. 21 Plaintiff time to find his conformed reports, which were located in 22 another room on the premises where Plaintiff was arrested. 23 monthly Plaintiff s reports for December 2006, January 2007, and The SAC alleges that VanWyhe went to Plaintiff s failure to file three monthly report forms. VanWhye refused to give At the time of his arrest, Plaintiff was suffering from heart 24 disease and was taking several prescription medications daily. 25 During the booking process, Plaintiff told Alanis that he was a 26 cardiac patient and needed his heart medications because he had not 27 taken them 28 request. prior to his (SAC at 7). arrest. Alanis ignored Plaintiff s Additionally, as part of the booking 2 1 process, Plaintiff s prescription pain medication was taken from 2 him and never returned. 3 By 2200 hours on February 12, 2007, Plaintiff was experiencing 4 severe and increasing pain in his chest. 5 nitroglycerin, but Plaintiff informed jail personnel that it would 6 not address his medical needs. 7 grievance form on February 13, 2007, requesting medical attention 8 for his unstable heart condition. 9 Plaintiff s medication to the Fresno County Jail some time on 10 Plaintiff was offered Plaintiff submitted an inmate Plaintiff s associate delivered February 13, 2007; the medication was never given to Plaintiff. 11 Plaintiff s request for medical attention was ignored until 12 the early morning hours of February 14, 2007; by that time, 13 Plaintiff s cellmate had flagged down the nurse on duty, who 14 recognized that Plaintiff s condition was very serious. An EKG and 15 blood pressure measurement confirmed that Plaintiff was in grave 16 danger, and Plaintiff was immediately transferred to an emergency 17 room. Plaintiff was discharged from the hospital and released from 18 custody on February 17, 2007. III. LEGAL STANDARD. 19 20 Dismissal under Rule 12(b)(6) is appropriate where the 21 complaint lacks sufficient facts to support a cognizable legal 22 theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 23 Cir.1990). To sufficiently state a claim to relief and survive a 24 12(b) (6) motion, the pleading does not need detailed factual 25 allegations but the [f]actual allegations must be enough to raise 26 a right to relief above the speculative level. Bell Atl. Corp. v. 27 Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). 28 Mere labels and conclusions or a formulaic recitation of the 3 1 elements of a cause of action will not do. Id. Rather, there must 2 be enough facts to state a claim to relief that is plausible on 3 its face. Id. at 570. In other words, the complaint must contain 4 sufficient factual matter, accepted as true, to state a claim to 5 relief that is plausible on its face. Ashcroft v. Iqbal, --- U.S. 6 ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal 7 quotation marks omitted). 8 The Ninth Circuit has summarized the governing standard, in 9 light of Twombly and Iqbal, as follows: In sum, for a complaint to 10 survive a motion to dismiss, the nonconclusory factual content, and 11 reasonable 12 suggestive of a claim entitling the plaintiff to relief. Moss v. 13 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal 14 quotation marks omitted). Apart from factual insufficiency, a 15 complaint is also subject to dismissal under Rule 12(b)(6) where it 16 lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or 17 where the allegations on their face show that relief is barred 18 for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 19 910, 166 L.Ed.2d 798 (2007). inferences from that content, must be plausibly 20 In deciding whether to grant a motion to dismiss, the court 21 must accept as true all well-pleaded factual allegations in the 22 pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, 23 however, required to accept as true allegations that are merely 24 conclusory, 25 inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 26 (9th Cir.2001). When ruling on a Rule 12(b)(6) motion to dismiss, 27 if a district court considers evidence outside the pleadings, it 28 must normally convert the 12(b)(6) motion into a Rule 56 motion for unwarranted deductions 4 of fact, or unreasonable 1 summary 2 opportunity to respond. United States v. Ritchie, 342 F.3d 903, 3 907 court 4 materials-documents 5 incorporated by reference in the complaint, or matters of judicial 6 notice-without converting the motion to dismiss into a motion for 7 summary judgment. Id. at 908. (9th judgment, and Cir.2003). A must attached give may, to the nonmoving however, the party consider complaint, an certain documents IV. DISCUSSION. 8 9 it A. Preliminary Matters 10 1. Defendants Statute of Limitations Argument 11 Defendants persist asserting California Code of Civil Procedure section 474, which sets forth 14 the procedure for naming doe defendants under California law, 15 rather than the Federal Rule of Civil Procedure 15. 16 previously advised Defendants counsel that a similar statute of 17 limitations argument was frivolous, as Plaintiff s allegations 18 against 19 transactions identified in the original complaint. 20 decision regarding Defendant s motion to dismiss the second amended 21 complaint advised: clearly relate the court back to to of 13 Penner urge statute limitations Defendant Defendants frivolous 12 22 arguments. in apply The court the The memorandum Rule 15(c)(1)(B) of the Federal Rules of Civil Procedure provides in part: 23 24 25 An amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading 26 27 28 Claims arise out of the same conduct, transaction, or occurrence if they "share a common core of operative facts" such that the plaintiff will rely on the same evidence to prove each claim. Williams v. Boeing Co., 517 5 same 1 2 F.3d 1120, 1133 (9th Cir. 2008) (citing Martell v. Trilogy Ltd., 872 F.2d 322, 325-26 (9th Cir. 1989) and Percy v. S.F. Gen. Hosp., 841 F.2d 975, 978 (9th Cir. 1988))... 3 4 5 6 Contrary to Defendants frivolous argument...The SAC expressly relates back to the allegations made in Plaintiff s original complaint with respect to Plaintiff s claims arising out of Plaintiff s alleged probation violation arrest and the Fresno County Jail s failure to provide Plaintiff medical care. 7 (Doc. 21 at 7-8). Defendants statute of limitations argument is devoid of merit. The remaining question is whether Defendant s 8 9 counsel s intentional disregard of the court s prior admonition 10 should be addressed under 28 U.S.C. § 1927. 11 2. Defendants Redundancy Argument 12 Defendants assert that claims against Defendant Penner in her 13 official capacity are redundant because the County is named as a 14 Defendant. However, some of Plaintiff s claims are directed 15 against the County based on claims arising out of management of the 16 county jail, while others assert claims against the County based on 17 Penner s conduct as the Chief Probation Officer. Defendants cite 18 no authority for the proposition that the alleged redundancy they 19 complain requires dismissal of the TAC. The cases Defendants cite, 20 Center For Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff 21 Dept., 533 F.3d 780, 799 (9th Cir. 2008) and Megargee v. Wittman, 22 550 F. Supp. 2d 1190, 1206 (E.D. Cal. 2008) contain permissive, not 23 mandatory language. 24 3. State Law Immunities 25 Defendants invoke a host of state law immunities. With 26 respect to the immunities invoked on behalf of Defendant Penner in 27 her official capacity, as discussed below, the complaint does not 28 6 1 allege any cognizable claim and it is unnecessary to reach the 2 immunity issues. 3 Defendants invocation of California Penal Code section 4 847(b)(1) is premature. 5 (b)(1) provides [t]here shall be no civil liability on the part of 6 ... any peace officer ... acting within the scope of his or her 7 authority, for false arrest or false imprisonment ... [if][¶][t]he 8 arrest was lawful, or the peace officer, at the time of the arrest, 9 had reasonable cause to believe the arrest was lawful. O Toole v. 10 Superior Court, 140 Cal. App. 4th 488, 510-11 (2006). Because, for 11 reasons explained below, the TAC sufficiently alleges lack of 12 probable cause, section 847 immunity cannot be granted at this 13 stage in the proceedings. 14 15 16 Penal Code section 847, subdivision Defendants invocation of California Penal Code section 845.8 is also premature. Section 845.8 provides: Neither a public entity nor a public employee is liable for: 17 18 19 (a) Any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release 20 Nothing in the complaint indicates that Alanis made the decision to 21 arrest Plaintiff was part of Alanis decision to determine or 22 revoke Plaintiff s parole or its conditions. The provision does 23 not apply. 24 B. Federal Claims 25 1. Fourth Amendment Claim 26 Probable cause for a warrantless arrest arises when the facts 27 and circumstances within the officer's knowledge are sufficient to 28 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 cause a prudent person to believe that the suspect has committed an offense. E.g. Crowe v. County of San Diego, 593 F.3d 841, 868 (9th Cir. 2010) (citation omitted). In determining whether there was probable court cause to arrest, a reviews the totality of circumstances known to the arresting officers to determine if a prudent person would have concluded there was a fair probability that the defendant had committed a crime. Id. While evidence supporting probable cause need not be admissible in court, it must be legally sufficient and reliable. Id. Law enforcement may not disregard facts tending to dissipate probable cause. Defendants contend that the allegations Id. contained in Plaintiff s dismissed complaints establish that Alanis had probable cause to believe Plaintiff was subject to arrest under California Penal Code section 1203.2(a), which provides: [a]t any time during the probationary period of a person released on probation under the care of a probation officer pursuant to this chapter... if any probation officer or peace officer has probable cause to believe that the probationer is violating any term or condition of his or her probation or conditional sentence, the officer may, without warrant or other process and at any time until the final disposition of the case, rearrest the person and bring him or her before the court. 20 21 Cal. Pen. Code § 1203.2(a). In previous complaints, Plaintiff 22 alleged the 23 Probation System ( APS ), a computer data-base which contains 24 scanned copies of individuals monthly report forms, as well as 25 Plaintiff s 26 Plaintiff s monthly reports were missing. The TAC does not contain that Alanis physical checked probation 27 28 8 probation file, and department s discovered Adult that 1 these allegations.1 2 The TAC asserts that Plaintiff turned in his monthly reports 3 for December, January, and February, and that Alanis had personal 4 knowledge 5 reports. 6 not have probable cause to arrest Plaintiff on the basis of the 7 missing monthly reports because Alanis had actual knowledge that at 8 least two of the reports in question were timely submitted. 9 reasonable officer with Alanis alleged knowledge would have had that Plaintiff turned in his December and January Accepting the allegations of the TAC as true, Alanis did 10 reason to know that the probation department s records 11 A were inaccurate and thus insufficient to support probable cause. 12 Alanis is not entitled to qualified immunity at this time, as 13 the reasonableness of his conduct depends on questions of fact that 14 cannot be resolved by reference to allegations of the TAC. 15 reasonable officer at the time of the incident would have believed 16 that inaccurate and incomplete records could support a finding of 17 probable cause. The motion to dismiss Plaintiff s fourth amendment 18 claim against Alanis is DENIED. 19 2. Medical Treatment Claim No a. Defendant Alanis 20 21 Claims that correctional facility officials violated a 22 1 23 24 25 26 27 Contrary to Defendants argument, Plaintiff s previous allegation that Alanis checked Plaintiff s APS and physical probation file does not establish that Alanis actually did so. In any event, assuming arguendo that Plaintiff is judicially estopped from asserting that Alanis did not check Plaitniff s probation records, the TAC sufficiently alleges lack of probable cause because it alleges that Alanis had actual knowledge that Plaintiff turned in his December and January reports. No reasonable officer would rely on records he knew to be incomplete or inaccurate in ascertaining probable cause to effect an arrest. See, e.g., Crowe, 593 F.3d at 868 (officers may not ignore facts dissipating probable cause). 28 9 1 pretrial detainee s constitutional rights by failing to address 2 their medical needs are evaluated under a deliberate indifference 3 standard. 4 2010) (noting that standard is the same for pretrial detainees 5 under 6 Amendment). A correctional officer cannot be liable for deliberate 7 indifference unless she "knows of and disregards an excessive risk 8 to inmate health or safety; the official must both be aware of 9 facts from which the inference could be drawn that a substantial 10 risk of serious harm exists, and he must also draw the inference." 11 Id. (citation omitted). Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. Fourteenth Amendment as for prisoners under Eighth 12 The TAC alleges that Plaintiff told Alanis he was a cardiac 13 patient, that he needed his prescribed medications and that he had 14 not been able to take them prior to being arrested. 15 further alleges that Alanis never did anything to alert the 16 jailors to Plaintiff s pressing need...for medications. 17 the TAC alleges that Alanis knew that Plaintiff was under the care 18 of a physician and had been prescribed heart medication, 19 does not allege that Alanis knew facts sufficient to put him on 20 notice that Plaintiff s need for his medication was urgent. 21 TAC does not allege that, at the time of booking, Plaintiff was in 22 such dire 23 recognized 24 Plaintiff s behalf, Plaintiff faced a substantial risk of serious 25 harm. 26 Defendant Alanis is DISMISSED, without prejudice. 27 28 need that of medical assistance unless Alanis sought that Alanis medical The TAC Although the TAC could attention The have on Plaintiff s medical care claim under section 1983 against b. The County There are three theories of municipal liability under section 10 1 2 3 4 5 6 7 8 9 1983: First, a local government may be held liable when implementation of its official policies or established customs inflicts the constitutional injury... Second, under certain circumstances, a local government may be held liable under § 1983 for acts of "omission," when such omissions amount to the local government's own official policy. To impose liability on a local government for failure to adequately train its employees, the government's omission must amount to "deliberate indifference" to a constitutional right. This standard is met when the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need... 10 11 12 Third, a local government may be held liable under § 1983 when the individual who committed the constitutional tort was an official with final policy-making authority or such an official ratified a subordinate's unconstitutional decision or action and the basis for it. 13 14 Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249-1250 (9th 15 Cir. 2010). Unlike the deliberate indifference standard applicable 16 to individuals, the standard applicable to municipal entities is an 17 objective standard. 18 Clouthier, 591 F.3d at 1249, n.9. Plaintiff alleges that the Fresno County Jail had in place 19 policies which interfered with 20 prescription medications, and that Fresno County Jail employed a 21 policy of failing to properly train and supervise jail staff to 22 ensure provision of vital prescription medications. 23 allegations regarding the policies in place at the Fresno County 24 Jail are supported by reasonable inferences drawn from the TAC s 25 factual allegations, as the TAC alleges that persons responsible 26 for Plaintiff s custody were on notice of facts from which they 27 could infer a substantial risk of serious harm to Plaintiff but 28 11 prisoners access to vital Plaintiff s 1 deliberately chose to ignore Plaintiff s requests for help.2 2 The TAC alleges that when he arrived at the Fresno County 3 Jail, Plaintiff expressly told staff that he was a cardiac patient 4 and that he needed heart medications. 5 prescription pain medication was taken from him during the booking 6 process, and that Plaintiff s grievance form requesting medical 7 attention for his unstable heart condition was ignored.3 According 8 to the TAC, Plaintiff did not receive any medical attention until 9 his cellmate flagged down the on-duty nurse after Plaintiff s The TAC also alleges that 10 medical condition had become critical. 11 support a reasonable inference that Fresno County Jail has a policy 12 of failing to administer and/or withholding prescription medication 13 even where it appears that such medication is needed to stabilize 14 obviously serious medical conditions. 15 support the inference that Fresno County Jail fails to properly 16 train its staff regarding the urgency entailed by detainees 17 requests 18 threatening medical conditions. 19 /// 20 /// for medical attention Plaintiff s allegations The TAC s allegations also concerning potentially life- The motion to dismiss is DENIED. 21 22 23 24 25 26 2 Whether such persons actually drew the inference that Plaintiff faced a substantial risk of serious harm is a question of fact. E.g. Farmer v. Brennan, 511 U.S. 825, 842 (1994) ( [w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence...a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious). Plaintiff does not name any individual defendants in his medical care claim under section 1983, however. 3 27 28 Although the fact that Plaintiff s pain medication was taken away does not reflect deliberate indifference in and of itself, it does support an inference that the Fresno County Jail was on notice that Plaintiff was under the care of a physician. 12 1 C. State Law Claims 2 1. First Cause of Action 3 Plaintiff s first cause of action is against the County for 4 breach of its statutory duty of supervision and training. Plaintiff 5 asserts that Defendant Penner breached her duty by: 6 (a) negligently failing to enact procedures and policies guiding probation officers in the handling of minor violations of conditions of probation committed by DUI probationers with no history of violence; (b) failing to devote a reasonable and sufficient amount of time to train and supervise Alanis and other deputy probation officers so that Alanis and other deputy probation officers would employ a proper and measured response if and hen there is reason to belief that a DUI probationer with no history of violence has failed to file one or more monthly report forms and (c) failing to devote a reasonable and sufficient amount of time to train and supervise Alanis and other deputy probation officers to make them aware of the impropriety of arresting and detaining or causing the arrest and detention of such non-violent probationers based on such a belief in the absence of exigent circumstances. 7 8 9 10 11 12 13 14 15 (TAC at 9). Plaintiff s allegations assail the Probation 16 Department s substantive policies concerning when arrests are 17 appropriate; such allegations do not give rise to liability against 18 the County. Plaintiff s allegations do not allege failure to train 19 officers regarding the prerequisites to a lawful arrest, rather, 20 Plaintiff alleges failure to train officers to exercise discretion 21 not arrest probationers notwithstanding the existence of probable 22 cause. As there is no statutory basis for liability based on 23 failure to train probation officers not to effect arrests even when 24 probable cause exists, Plaintiff s supervision and training claim 25 must be dismissed.4 See, e.g., Guzman v. County of Monterey, 46 26 27 28 4 Although the TAC is sufficient to allege that Plaintiff was arrested absent probable cause, without more, a single unlawful arrest does not provide sufficient factual basis to support a claim for failure to train and supervise. 13 1 Cal. 4th 887, 897 (Cal. 2009) (public entity liability must be 2 predicated on statute). 3 The memorandum decision dismissing Plaintiff s second amended 4 complaint provided the following analysis of Plaintiff s failure to 5 train and supervise claim: 6 Under [California's] Government Claims Act (Cal. Gov. Code, § 810 et seq.), there is no common law tort liability for public entities in California; instead, such liability must be based on statute. E.g., Guzman v. County of Monterey, 46 Cal. 4th 887, 897 (Cal. 2009). Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty. Id. (citations omitted)... 7 8 9 10 11 12 California courts construe the mandatory duty requirement strictly, "finding a mandatory duty only if the enactment affirmatively imposes the duty and provides implementing guidelines.'" Id. at 898 (citations omitted). Although [California Penal Code] section 1203.71 appears to impose an affirmative duty of supervision on the probation officer, it does not provide implementing guidelines. 13 14 15 16 As section 1203.71 does not provide implementing guidelines 17 sufficient to establish a mandatory duty to train probation 18 officers not to effect arrests where probable cause exists, 19 Plaintiff s allegations do not state a claim for relief. Plaintiff 20 has had numerous opportunities to allege a cognizable failure to 21 train and supervise claim. Plaintiff s first cause of action is 22 DISMISSED WITH PREJUDICE. 23 2. Second Cause of Action 24 Plaintiff s second cause of action asserts a breach of the 25 statutory duty to maintain accurate records. 26 27 28 14 Plaintiff contends 1 that to the extent Alanis...looked in the files of Plaintiff and 2 did not find the monthly reports which were required by law to be 3 in the file, the Probation Department violated the terms of Penal 4 Code 1202.10. 5 The memorandum decision dismissing Plaintiff s second amended 6 complaint provided the following analysis of Plaintiff s records- 7 based negilgence claim: 8 9 10 11 12 13 14 Plaintiff s contention that California Penal Code section 1203.10 imposes a mandatory duty to maintain monthly reports is dubious. See Whitcombe v. County of Yolo, 73 Cal. App. 3d 698, 707 (Cal. Ct. App. 1977) ( Next, we examine appellants' contention that Penal Code section[] 1203.10 impose[s] mandatory duties upon the county...We fault the argument inasmuch as we find among other things the proximate cause requirement of section 815.6 unsatisfied by the facts in this case. ) (emphasis added). Section 1203.10 does not provide implementing guidelines for the preparation and maintenance of monthly reports. In fact, the plain language of section 1203.10 does not require the probation officer to prepare monthly reports at all...Cal. Penal Code § 1203.10. 15 16 17 18 19 20 21 22 23 24 25 To the extent section 1203.10 gives rise to a mandatory duty to prepare and maintain the monthly progress reports at issue in this case, such duty is not designed to protect against the risk of a particular kind of injury Plaintiff complains of. In supervising a person on probation, and in compiling and keeping the required records, the probation department acts as an arm of the court. County of Placer v. Superior Court, 130 Cal. App. 4th 807, 814 (Cal. Ct. App. 2005) accord McGuire v. Superior Court, 12 Cal. App. 4th 1685, 1687 (Cal. Ct. App. 1993) ( the probation officer keeps the file both for his own benefit and for the benefit of the court ). The courts role with respect to the records discussed in section 1203.10 is to review such records when exercising discretion to revoke, modify, or change the conditions of a person s probation. See, e.g., People v. Segura, 44 Cal. 4th 921, 932 (Cal. 2008). The applicable statutory framework does not suggest that records prepared pursuant to section 1203.10 are to be used by the court to protect probationers from imprudent arrests. 26 27 In opposition to the motion to dismiss, Plaintiff contends that the 28 cases cited in the memorandum decision are distinguishable and/or 15 1 inapposite. 2 As Plaintiff points out, Whitcombe did not expressly decide 3 whether section 1203.10 imposes mandatory record keeping duties on 4 probation departments because it found that Plaintiff could not 5 satisfy the proximate cause requirement of California Government 6 Code section 815.6. 7 provides that the proximate cause rationale was one of several 8 reasons plaintiff s attempt to predicate liability on section 9 1203.10, a theory that the Court held lacks merit. 73 Cal. App. 3d at 707. However, Whitcome The short 10 shrift afforded to Plaintiff s theory of liability in Whitcome 11 strongly suggests that section 1203.10 does not give rise to 12 negligence liability.5 13 Plaintiff argues that Bradford v. State, 36 Cal. App. 3d 16, 14 21 (Cal. Ct. App. 1973) supports his theory of liability. However, 15 in Bradford, the Court held that the statutes at issue were 16 clearly designed to prevent the very type of harm which befell 17 plaintiff. Here, not even Plaintiff contends that section 1203.10 18 is clearly designed to prevent the very type of harm which befell 19 him; rather, Plaintiff argues that section 1203.10 is intended at 20 least in part to protect the probationer. 21 Plaintiff 22 proposition that section 1203.10 imposes on probation departments 23 significant duties to the court and the probationer. Plaintiff s cites Placer, 130 Cal. App. (Opposition at 14). 4th at 813, for the 24 25 26 27 28 5 Plaintiff avers that Whitcombe makes no logical sense unless the court of appeal assumed...a mandatory duty. (Opposition at 4). The fact that Whitcombe quickly and efficiently disposed of the plaintiff s claim based on an obvious proximate cause deficiency while noting that proximate cause was one of several flaws in the plaintiff s theory does not suggest that the Court gave credence to the notion that section 1203.10 creates a mandatory duty sufficient to establish liability. 16 1 citation to Placer is unavailing, as Placer does not suggest that 2 the duties to...the probationer are designed to protect against 3 the injury of which Plaintiff complains. 4 clear that the purpose of section 1203.10 is to ensure that the 5 court has a sufficient factual record to properly exercise its 6 statutory parole authority. Rather, Placer makes See id. 7 It cannot be said that, in enacting section 1203.10, the 8 Legislature imposed a mandatory duty on probation departments to 9 maintain monthly progress reports in order to protect probationers 10 from imprudent arrests. 11 progress 12 implementing guidelines for the maintenance of monthly progress 13 reports. 14 monthly reports does protect the probationer from being arrested 15 for failing to file such reports, this protection is incidental to 16 the underlying requirement that the probationer file the reports in 17 the first instance. Absent the requirement--imposed not by section 18 1203.10, but rather by the discretionary policies of probation 19 departments--to file monthly progress reports, there would be no 20 need 21 probationers from imprudent arrest. 22 does not give rise to liability: 23 24 25 26 to reports at Section 1203.10 does not require monthly all; a fortiori, it does not set forth Although keeping accurate records of a probationer s keep records of such reports in order to protect Such incidental protection That the enactment confers some benefit on the class to which plaintiff belongs is not enough; if the benefit is incidental to the enactment's protective purpose, the enactment cannot serve as a predicate for liability under section 815.6. Guzman, 46 Cal. 4th 898. 27 Plaintiff requests that the court defer ruling on his claim 28 under section 1203.10 in order to afford him time to conduct 17 1 further research and present legislative history concerning section 2 1203.10. Additional time is not warranted, as Plaintiff was put on 3 notice of the deficiencies of his claim in the court s memorandum 4 decision issued on February 8, 2011. 5 ample time to identify additional authorities to support 6 claim. 7 futile, as a court must strictly construe the mandatory duty 8 requirement, "finding a mandatory duty only if the enactment 9 affirmatively 10 11 12 (Doc. 21). Plaintiff has had his Further, affording Plaintiff additional time would be imposes guidelines.'" Id. Plaintiff s the duty and provides implementing Pleading must come to an end. second cause of action is DISMISSED WITH PREJUDICE. 13 3. Third Cause of Action 14 Plaintiff s third cause of action asserts the existence of a 15 special relationship between Plaintiff and the probation department 16 sufficient to give rise to a duty of care. 17 under the totality of the circumstances it was outrageous and/or 18 unreasonable, and a breach of the duty of care, to cause Plaintiff, 19 with no record of violence, to be precipitously arrested and 20 imprisoned. Assuming arguendo that a special relationship existed 21 between the Plaintiff and the Probation Department, existence of a 22 special relationship, by itself, does not create liability; tort 23 liability for governmental entities is based upon statute. 24 Guerrero v. South Bay Union School Dist., 114 Cal. App. 4th 264, 25 269 (Cal. Ct. App. 2003). 26 statutory duty underlies Plaintiff s special relationship claim. 27 Plaintiff will be given one final opportunity to properly plead 28 this claim. Plaintiff alleges that E.g., The TAC does not clearly allege what This cause of action is DISMISSED WITHOUT PREJUDICE. 18 1 4. Fourth Cause of Action 2 The fourth cause of action asserts violation of California 3 Civil Code section 52.1. 4 Section 52.1 provides in part: If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state...Any individual whose exercise or enjoyment of [*17] rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages 5 6 7 8 9 10 11 12 Cal. Civ. Code § 52.1. 13 are: 14 15 16 17 18 19 The elements of a claim under section 52.1 (1) that the defendant interfered with or attempted to interfere with the plaintiff's constitutional or statutory right by threatening or committing violent acts; (2) that the plaintiff reasonably believed that if she exercised her constitutional right, the defendant would commit violence against her or her property; that the defendant injured the plaintiff or her property to prevent her from exercising her right or retaliate against the plaintiff for having exercised her right; (3) that the plaintiff was harmed; and (4) that the defendant's conduct was a substantial factor in causing the plaintiff's harm. 20 See Austin B. v. Escondido Union School Dist., 149 Cal. App. 4th 21 860, 882, 57 Cal. Rptr. 3d 454 (Cal. Ct. App. 2007)(citing CACI No. 22 3025). 23 The TAC sufficiently alleges that Plaintiff was arrested 24 absent probable cause. The act of placing an individual under 25 arrest is inherently coercive, and where, as here, the arrest is 26 not supported by probable cause, use of coercive physical force to 27 deprive a person of their constitutional right to freedom from 28 19 1 incarceration is sufficient to provide the basis for a section 52.1 2 claim. 3 66 Cal. Rptr. 3d 847 (Cal. Ct. App. 2007) (liability for false 4 arrest under California Civil Code section 52.1 turns on whether 5 arrest was violative of Fourth Amendment); Warner v. County of San 6 Diego, 2011 U.S. Dist. LEXIS 14312 * 15 (S.D. Cal. 2011). The 7 motion to dismiss the fourth cause of action is DENIED. See, e.g., Wood v. Emmerson, 155 Cal. App. 4th 1506, 1514, 8 5. Fifth Cause of Action 9 Plaintiff s fifth cause of action alleges false arrest and 10 false imprisonment. 11 is liable for the tort of false arrest depends on whether or not 12 probable cause existed. See, e.g., Salazar v. Upland Police Dept., 13 116 Cal. App. 4th 934, 947-48 (Cal. Ct. App. 2004) (cause of action 14 for false arrest foreclosed by existence of probable cause). The 15 TAC 16 probable cause. The motion to dismiss the fifth cause of action is 17 DENIED. sufficiently Under California law, whether a peace officer alleges that 18 Plaintiff s was arrested absent 6. Sixth Cause of Action 19 Plaintiff sixth cause of action asserts intentional 20 infliction of emotional distress. To state a claim for intentional 21 infliction of emotional distress under California law, a claimant 22 must allege the following elements: (1) extreme or outrageous 23 conduct by the defendant with the intent to cause, or reckless 24 disregard for the probability of causing, emotional distress; (2) 25 suffering of severe emotional distress by the plaintiff; and (3) 26 the plaintiff's emotional distress is actually and proximately the 27 result of the defendant's outrageous conduct. 28 Johnson, 25 Cal. 3d 932, 946, (Cal. 1978), overruled on other 20 E.g., Agarwal v. 1 grounds in White v. Ultramar, 21 Cal. 4th 563, 574 n.4 (Cal. 1999). 2 The TAC is sufficient to allege extreme conduct by Alanis that 3 proximately caused Plaintiff to suffer severe emotional distress. 4 Accepting the TAC as true, Alanis willfully caused Plaintiff to be 5 arrested for an offense Alanis knew Plaintiff had not committed. 6 Alanis is alleged to have ignored that Plaintiff s reports were 7 current and to have acted with conscious disregard to implied harm 8 to Plaintiff. 9 DENIED. The motion to dismiss the sixth cause of action is 10 7. Seventh Cause of Action 11 Plaintiff contends that Alanis owed him a duty of care based 12 on the existence of a special relationship. Under California law, 13 whether a special relationship exists is determined by examining 14 six factors: (1) the extent to which the transaction was intended 15 to affect the plaintiff; (2) the foreseeability of harm to the 16 plaintiff; (3) the degree of certainty that the plaintiff suffered 17 injury; (4) the closeness of the connection between the defendant's 18 conduct and the injury suffered; (5) the moral blame attached to 19 the defendant's conduct; and (6) the policy of preventing future 20 harm. 21 1308-1309 (E.D. Cal.1996), aff'd, 141 F.3d 1174 (9th Cir.1998). 22 The TAC is sufficient to allege a special relationship between 23 probation officer and probationer. 24 was arrested absent probable cause, the TAC sufficiently alleges a 25 negligence claim against Alanis. 26 App. 2d 742, 751 (Cal. Ct. App. 1962) (noting that probable cause 27 inquiry is essentially coextensive with negligence inquiry). 28 motion to dismiss the seventh cause of action is DENIED. E.g., Cabanas v. Gloodt Associates, 942 F.Supp. 1295, 21 As the TAC alleges Plaintiff See Bulkley v. Klein, 206 Cal. The 1 8. Eleventh Cause of Action 2 Plaintiff s eleventh cause of action asserts failure to 3 provide medical care under California Government Code section 4 845.6. 5 pertinent part: 6 California Government Code section 845.6 provides in a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care. 7 8 9 10 Cal. Gov. Code § 845.6. 11 on notice of facts which gave them reason to know that Plaintiff 12 was 13 prescription heart medication. 14 personnel failed to take reasonable action to summon the medical 15 care required by Plaintiff, and that the formal medical grievance 16 Plaintiff filed with jail staff was ignored until Plaintiff s 17 condition deteriorated so far that his cellmate had to flag down a 18 nurse. in need of The TAC alleges that jail officials were immediate medical care in the form of his The TAC also alleges that jail The TAC states a claim under section 845.6. 19 Defendants persist in asserting arguments previously disposed 20 of in the memorandum decision regarding Plaintiff s second amended 21 complaint. 22 now then they were at that time. 23 White, 24 dispatched these cases as follows: 25 26 27 28 and Defendants meritless arguments are no more persuasive Watson remain Defendants citations to Lawson, unavailing. The court previously Defendants cite Lawson v. Superior Court, 180 Cal. App. 4th 1372, 1375, 1385 (Cal. Ct. App. 2010) for the proposition that under California precedent, even if Plaintiff was denied his prescription medications, said denial, does not amount to neglect of a serious medical condition. (Motion to Dismiss at 16). Lawson is inapposite. Lawson concerned depravation of a pregnant 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 prisoner s unidentified pregnancy medications and a breast pump. Lawson did not hold that deprivation of prescription medications is never sufficient to establish liability under section 845.6 as a matter of law. Rather, in Lawson, the trial court concluded that denial of medications and a breast pump did not amount to neglect of a serious and obvious medical condition. 180 Cal. App. 4th at 1385. Here, the facts alleged in the SAC are sufficient to find that Alanis knew Plaintiff needed daily doses of prescription heart medications. Plaintiff s need for heart medication is not analogous to a pregnant women s need for a breast pump and unspecified pregnancy medications. Defendants also cite White v. Superior Court, 225 Cal. App. 3d 1505, 1509 (1990) in support of the contention that [f]ailure of a medical practitioner to prescribe or provide necessary medications or treatment to one he is summoned to assist cannot, within the plain meaning of the statutory language, constitute failure to summon medical care. (Motion to Dismiss at 16). White is not applicable to Plaintiff s allegations. Plaintiff s claim under section 845.6 is based on his allegation that medical care was not timely summoned, and that as a result, he was deprived of his medication. Plaintiff does not allege that medical practitioner was summoned to provide care, but then failed to prescribe or provide the proper medication. 15 16 17 18 19 20 21 22 23 24 25 26 Finally, Defendants cite Watson v. State of California, 21 Cal. App. 4th 836, 842 (Cal. Ct. App. 1993) and Nelson v. State of California, 139 Cal. App. 3d 72, 78-9 (Cal. Ct. App. 1982) in support of the argument that section 845.6 contains a distinction between a public entity employee who is lawfully engaged in the practice of the healing arts and an employee who is not...Defendant COUNTY cannot be vicariously liable for any alleged medical malpractice of its employees. (Motion to Dismiss at 16-17). Defendants attempt to conflate Plaintiff s cause of action under section 845.6 (fourteenth cause of action) with Plaintiff s separate claim for medical malpractice (sixteenth cause of action) is unavailing. As Defendants own authorities recognize, a claim for medical malpractice is distinct from a claim under section 845.6. See id. Section 845.6 expressly provides that a public employee, and the public entity where the employee is acting within the scope of his employment, is liable for violations of section 845.6. Cal. Gov. Code § 845.6 (emphasis added). 27 (Doc. 21 at 21-22). The TAC sufficiently alleges a claim under 28 California Government Code section 845.6. 23 The motion to dismiss 1 the eleventh cause of action is DENIED. ORDER 2 3 For the reasons stated, IT IS ORDERED: 4 1) 5 (thirteenth cause of action) against Defendant Alanis is 6 DISMISSED WITHOUT PREJUDICE; 7 2)Plaintiff s 8 PREJUDICE; 9 3)Plaintiff s Plaintiff s medical first second care cause cause of of claim under Section 1983 action is DISMISSED WITH action is DISMISSED WITH 10 PREJUDICE; 11 4)Plaintiff s third cause of action is DISMISSED WITHOUT 12 PREJUDICE; 13 5) Plaintiff shall file an amended complaint within fourteen 14 (14) days of electronic service of this Memorandum Decision; 15 Defendants shall file a response within ten (10) days of 16 service of the amended complaint, and 17 6) Defendants shall submit a form of order consistent with 18 this Memorandum Decision within five (5) days of electronic 19 service of this decision. 20 IT IS SO ORDERED. 21 Dated: hkh80h May 5, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 24