Estate of Jessie Paul Contreras et al v. County of Glenn et al, No. 2:2009cv02468 - Document 36 (E.D. Cal. 2010)

Court Description: ORDER granting in part and denying in part 28 Motion to Dismiss, signed by Judge John A. Mendez on 12/1/10; and the second amended complaint must be filed within 20 days of the date of this order. (Kastilahn, A)
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Estate of Jessie Paul Contreras et al v. County of Glenn et al Doc. 36 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 ESTATE OF JESSIE P. CONTRERAS, by and through his Special Administrator, LEONOR CONTRERAS; and LEONOR CONTRERAS, individually, mother of JESSIE CONTRERAS, deceased, Plaintiffs, 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) v. COUNTY OF GLENN; GLENN COUNTY SHERIFF’S DEPARTMENT; LARRY JONES, individually and in his official capacity as GLENN COUNTY SHERIFF; LT. TIM ASBURY; LT. REVOLINSKI; LT. WARREN; SGT. WHITE, individually and in their official capacities as COMMANDERS, SUPERVISORS and/or SUPERVISORS OF PERSONNEL OF GLENN COUNTY JAIL; DEE DEE NELSON, individually and in her official capacity as GLENN COUNTY CORRECTIONAL OFFICER; E. CHAVEZ, individually and in his official capacity as GLENN COUNTY CORRECTION OFFICER; GLENN MEDICAL CENTER INC., J.A.L.A., a minor daughter of JESSIE CONTRERAS, and DOES 1-50, Defendants. Case No. 2:09-CV-2468-JAM-EFB ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT GLENN MEDICAL CENTER’S MOTION TO DISMISS 1 1 This matter comes before the Court on Defendant Glenn Medical 2 Center, Inc.’s (“Defendant’s”) Motion to Dismiss (Doc. 28) 3 Plaintiffs’ Estate of Jessie P. Contreras, by and through his 4 Special Administrator, Leonor Contreras, and Leonor Contreras 5 individually, mother of Jessie P. Contreras (“Plaintiffs”) First 6 Amended Complaint (“FAC”) (Doc. 6) for failure to state a claim 7 pursuant to Federal Rule of Civil Procedure. 8 motion. 9 and ordered submitted on the briefs.1 10 Plaintiffs oppose the The matter was calendared for hearing on August 18, 2010, For the reasons set forth below, Defendant’s motion is granted in part, and denied in part. 11 12 I. 13 FACTUAL AND PROCEDURAL BACKGROUND Decedent Jessie P. Contreras (“Decedent”) was an inmate in 14 Glenn County Jail (“the jail”) at the time of his death on August 15 6, 2008. 16 offenses on July 30, 2008. 17 indicated at the time of his intake at the jail, and thereafter, 18 that he was mentally unstable and suicidal. 19 a single cell with sheets and a bed, and no video camera for 20 monitoring the cell. 21 in a computer log that Decedent had advised he was suicidal, yet no 22 mental health or other health care was provided, Decedent was not 23 placed in a safety or isolation cell, nor was he monitored on a 24 suicide watch program. 25 his cell, hanging from a bed sheet. 26 and died in the hospital on August 6, 2008. Decedent was admitted to the jail for misdemeanor Plaintiffs allege that Decedent Decedent was placed in Plaintiffs allege that a jail officer noted On August 4, 2008, Decedent was found in He was taken to the hospital Plaintiffs bring 27 1 28 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). 2 1 survivor claims for civil rights violations under 42 U.S.C. § 1983, 2 and pendent state law survivor claims. 3 ask for leave to amend the FAC to include Decedent’s minor 4 daughter, J.A.L.A., as a plaintiff. 5 Defendant bears responsibility for Decedent’s death, because 6 Defendant is the contracted medical care provider for the jail, and 7 is responsible for providing medical and mental health training to 8 staff at the jail. 9 on motions to dismiss by defendants County of Glenn, Glenn County Additionally, Plaintiffs Plaintiffs allege that The Court has previously ruled (Docs. 30, 31) 10 Sheriff’s Department, Sheriff Larry Jones, and officers Timothy 11 Asbury, Philip Revolinsky, Richard Warren, Harold White, Dee Dee 12 Nelson and Emmanuel Chavez. 13 County of Glenn, 2010 WL 2816378 (E.D. Cal. July 16, 2010); Estate 14 of Contreras, ex rel. Contreras v. County of Glenn, 2010 WL 2816246 15 (E.D. Cal. July 16, 2010). 16 will be filing a Second Amended Complaint within twenty (20) days 17 of the date of this Order. See Contreras, ex rel. Contreras v. Pursuant to those orders, Plaintiffs 18 19 II. OPINION 20 A. Legal Standard 21 Motion to Dismiss 22 A party may move to dismiss an action for failure to state a 23 claim upon which relief can be granted pursuant to Federal Rule of 24 Civil Procedure section 12(b)(6). 25 dismiss, the court must accept the allegations in the complaint as 26 true and draw all reasonable inferences in favor of the plaintiff. 27 Scheuer v. Rhodes, 416 U.S. 232, 236 (1975), overruled on other 28 grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 3 In considering a motion to 1 U.S. 319, 322 (1972). 2 conclusions,” however, are not entitled to the assumption of truth. 3 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), citing Bell Atl. 4 Corp. v. Twombly, 550 U.S. 544, 555 (2007). 5 dismiss, a plaintiff needs to plead “enough facts to state a claim 6 to relief that is plausible on its face.” 7 570. 8 claim supportable by a cognizable legal theory. 9 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 10 Assertions that are mere “legal To survive a motion to Twombly, 550 U.S. at Dismissal is appropriate where the plaintiff fails to state a Balistreri v. Upon granting a motion to dismiss for failure to state a 11 claim, the court has discretion to allow leave to amend the 12 complaint pursuant to Federal Rule of Civil Procedure section 13 15(a). 14 appropriate unless it is clear . . . that the complaint could not 15 be saved by amendment.” 16 316 F.3d 1048, 1052 (9th Cir. 2003). “Dismissal with prejudice and without leave to amend is not Eminence Capital, L.L.C. v. Aspeon, Inc., 17 Section 1983 18 To prevail in a 42 U.S.C. § 1983 civil action against state 19 actors for the deprivation of “rights, privileges, or immunities 20 secured by the Constitution and laws, a plaintiff must show that 21 (1) acts by the defendants (2) under color of state law (3) 22 deprived him of federal rights, privileges or immunities and (4) 23 caused him damage. 24 substantive rights, but merely provides a method for vindicating 25 federal rights elsewhere conferred. 26 complained of must have deprived the plaintiff of some right, 27 privilege or immunity protected by the Constitution or laws of the 28 United States.” Section 1983 is not itself a source of Accordingly, the conduct Thornton v. City of St. Helens, 425 F.3d 1158, 4 1 1163-64 (9th Cir. 2005) (internal citations omitted). 2 Standing 3 As an initial matter, Defendant challenges Leonor Contreras’ 4 standing in her individual capacity to bring the first and second 5 claims for relief under 42 U.S.C. § 1983. 6 Leonor Contreras’ lack of individual standing in its previous 7 orders. 8 Estate of Contreras, ex rel. Contreras, 2010 WL 2816246 at *2. 9 the reasons stated in the Court’s previous orders, Leonor Contreras The Court addressed See Contreras, ex rel. Contreras, 2010 WL 2816378 at *2; For 10 in her individual capacity lacks standing to bring the first and 11 second claims, and lacks standing to bring the survival action 12 portions of the fifth, sixth, seventh and eighth claims for relief. 13 14 B. 15 1. 16 17 Claims for Relief Fourteenth Amendment Violation, First Claim for Relief The first claim for relief alleges a violation of 42 U.S.C. 18 § 1983, based on deliberate indifference to serious medical needs, 19 health and safety, in violation of Decedent’s Fourteenth Amendment 20 substantive due process rights. 21 should be dismissed, because the Eighth Amendment, not the 22 Fourteenth Amendment, applies to inmates such as Decedent. 23 alleges that Decedent was serving jail time for misdemeanor 24 offenses. 25 Defendant argues that this claim The FAC FAC ¶17. The status of a detainee determines the appropriate standard 26 for evaluating allegations of deliberate indifference. 27 Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987). 28 to provide care for serious medical needs, when brought by a 5 Gary H. v. “Claims of failure 1 detainee . . . who has been neither charged nor convicted of a 2 crime, are analyzed under the substantive due process clause of the 3 Fourteenth Amendment.” 4 *5 (E.D. Cal. Oct. 8, 2010) (quoting Lolli v. County of Orange, 351 5 F.3d 410, 418-419 (9th Cir. 2003). 6 convicted prisoners, whereas the Fourteenth Amendment standard 7 applies to conditions of confinement when detainees have not been 8 convicted. 9 Lanier v. City of Fresno, 2010 WL 3957472, The Eighth Amendment applies to Hegstrom, supra. Plaintiffs do not specifically address Defendant’s motion to 10 dismiss the first claim for relief. 11 the first and second claims for relief, arguing that neither should 12 be dismissed. Plaintiffs focus their argument on the second claim 13 for relief, and offer no opposition to Defendant’s argument that 14 the allegations of the FAC indicate that Decedent was not a 15 pretrial detainee subject to the Fourteenth Amendment protections, 16 but rather an inmate serving his sentence, thus subject only to 17 Eighth Amendment protection. 18 Instead, Plaintiffs combine Taking the allegations of the FAC as true, and drawing all 19 inferences in favor of Plaintiffs, as the Court is required to do, 20 the Court finds that the First Claim for Relief in the FAC fails to 21 state a section 1983 claim for violation of the Fourteenth 22 Amendment. 23 jail time for misdemeanor offenses, he is protected by the Eighth 24 Amendment rather than the Fourteenth Amendment. 25 motion to dismiss the First Claim for Relief is GRANTED WITH 26 PREJUDICE. 27 28 Given the FAC’s allegations that Decedent was serving 2. Accordingly, the Eighth Amendment Violation, Second Claim for Relief The Second Claim for Relief alleges a violation of 42 6 1 U.S.C. § 1983 based on deliberate indifference to serious medical 2 needs, health and safety, in violation of Decedent’s Eighth 3 Amendment right to protection from cruel and unusual punishment. 4 The FAC alleges that Defendant is under contract with the jail to 5 provide medical care and mental health care, including implementing 6 a system of screening for mental health needs and delivering mental 7 health care to inmates. 8 his suicidal inclination, and this was noted in his record by jail 9 employees, yet no steps were taken to provide him with any mental The FAC further alleges Decedent indicated 10 health care, place him in a special cell, or monitor him. 11 Defendant argues that the FAC contains no allegation of wrongdoing 12 by any of Defendant’s employees. 13 FAC does not make any allegation that Defendant or its employees 14 were aware of Decedent or his medical and mental health needs, 15 therefore Defendant lacks the requisite intent required for 16 deliberate indifference. 17 Defendant also argues that the Under 42 U.S.C. § 1983, to maintain an Eighth Amendment claim 18 based on prison medical treatment, an inmate must show deliberate 19 indifference to serious medical needs. 20 1091, 1096 (9th Cir. 2006)(internal citations omitted). 21 Ninth Circuit, the test for deliberate indifference consists of two 22 parts. 23 demonstrating that failure to treat a prisoner’s condition could 24 result in further significant injury or the unnecessary and wanton 25 infliction of pain. 26 defendant’s response to the need was deliberately indifferent. 27 This second prong-defendant’s response to the need was deliberately 28 indifferent-is satisfied by showing (a) a purposeful act or failure Jett v. Penner, 439 F.3d In the First, the plaintiff must show a serious medical need by Second, the plaintiff must show the 7 1 to respond to a prisoner’s pain or possible medical need and 2 (b) harm caused by the indifference.” 3 Amendment violation is comprised of both an objective component and 4 a subjective component. 5 (E.D. Cal. 1995). 6 deprivation of a particular medical need is sufficiently serious. 7 Id. 8 question of law and fact, and may turn on whether the mental health 9 care delivery system in place at a jail facility was so deficient Id. Accordingly, an Eighth Coleman v. Wilson, 912 F. Supp. 1282, 1298 The objective component turns on whether the The objective component of deliberate indifference is a mixed 10 that it deprived seriously mentally ill inmates of access to 11 adequate health care. 12 test to determine if a mental health care delivery system is 13 minimally adequate. 14 an official cannot be found liable under the Eighth Amendment for 15 denying an inmate humane conditions of confinement unless the 16 official knows of and disregards an excessive risk to inmate health 17 or safety; the official must be aware of facts from the inference 18 could be drawn that a substantial risk of serious harm exists, and 19 he must also draw the inference. 20 evidence before the district court proves the objective component 21 of an Eighth Amendment violation, the defendants could not 22 plausibly persist in claiming lack of awareness any more than 23 prison officials who state during litigation that they will not 24 take reasonable measures to abate an intolerable risk of which they 25 are aware could claim to be subjectively blameless for purposes of 26 the Eighth Amendment.” Id. Id. Courts then utilize a six component With respect to the subjective component, Id. at 1299. However, “where the Id. 27 Additionally, a private entity that contracts with the 28 government to provide medical and mental health care may be 8 1 considered a state actor whose conduct constitutes state action 2 under Section 1983. 3 (9th Cir. 2000). 4 determining whether an individual or entity’s actions are state 5 action. 6 Jensen v. Lane County, 222 F.3d 570, 574-575 Courts have developed various tests for Id. The FAC alleges that Defendant employs a psychiatrist and 7 other medical personnel to treat jail inmates pursuant to a 8 contract with the jail. 9 Defendant maintains a contract with the jail to implement delivery According to the allegations of the FAC, 10 of physical and mental health services to inmates, and the contract 11 called for Defendant to regularly schedule trainings for all 12 security and health services staff, including identification and 13 management of suicidal behavior. 14 contract called for potentially suicidal inmates to be placed on 15 suicide watch and monitored by security staff every 15 minutes, by 16 health care staff every 8 hours, and by mental health staff within 17 24 hours. According to Plaintiffs, Defendant did not develop or 18 provide the trainings and programs for jail personnel. 19 24. 20 The FAC further alleges that the FAC ¶¶ 23- Defendant argues that the FAC fails to allege that Defendant 21 or any of its employees were aware of Decedent’s substantial 22 medical need and purposefully failed to provide medical care to 23 address that need. 24 refer to “defendants” as having become aware of Decedent’s suicidal 25 inclinations, which Defendant contends is an attempt to lump Glenn 26 Medical Center staff together with jail officials, and attribute 27 facts known to individual jail officials to Glenn Medical 28 personnel, without any basis. The FAC and the opposition brief continually 9 1 At this stage in the pleadings, the Court will not engage in 2 an extensive analysis of the adequacy of the mental health system 3 in place at the jail. 4 this stage to permit the Court to infer that Defendant’s actions 5 qualify as state action under section 1983, and that Plaintiffs 6 have plead a plausible Eighth Amendment claim. 7 sufficiently alleged that Defendant employs a psychiatrist and 8 other staff to treat jail inmates, and was charged with 9 implementing the delivery of medical and mental health care to The allegations of the FAC are sufficient at The FAC has 10 inmates. 11 that after it was noted in Decedent’s file that he was suicidal, 12 Defendant may bear some responsibility for the failure to provide 13 care which led to Decedents’ death. 14 dismiss the second claim for relief is DENIED. 15 16 17 Thus the Court may infer from the allegations of the FAC 3. Accordingly, the motion to Fourteenth Amendment Violation, Third Claim for Relief The third claim for relief is plead on behalf of Leonor 18 Contreras in her individual capacity as Decedent’s mother. The 19 claim is brought under 42 U.S.C. § 1983 and alleges violation of 20 Leonor Contreras’s substantive due process rights under the 21 Fourteenth Amendment, for loss of the parent/child relationship. 22 “It is well established that a parent has a fundamental 23 liberty interest in the companionship and society of his or her 24 child and that the state’s interference with that liberty interest 25 without due process of law is remediable under 42 U.S.C. § 1983.” 26 Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). 27 constitutional interest in familial companionship and society 28 protects against deprivations that are a result of unwarranted 10 “The 1 state interference.” 2 *14 (E.D. Cal. June 19, 2006) (internal citations omitted). 3 a claim for interference with familial relationships is integrally 4 predicated upon, or entwined with, other conduct that is alleged to 5 be unconstitutional, a finding that the other conduct was 6 constitutional generally will preclude recovery for interference 7 with familial relationship. 8 9 Robbins v. City of Hanford, 2006 WL 1716220 Where Id. Here, the third claim for relief is predicated upon a finding that Decedent’s rights were violated by Defendant’s deliberate 10 indifference and cruel and unusual punishment. 11 that because Plaintiffs’ first and second claims for violation of 12 the Fourteenth and Eighth Amendments fail, so to must the third 13 claim for relief fail. 14 dismissing the Eighth Amendment claim, this claim may serve as a 15 basis for Leonor Contreras to maintain the third claim for relief. 16 Accordingly, the motion to dismiss the third claim for relief is 17 DENIED. 18 19 20 4. Defendant alleges However, because the Court is not Municipal/Supervisory Liability, Fourth Claim for Relief The fourth claim for relief alleges municipal and 21 supervisory liability under 42 U.S.C. § 1983. Defendant argues that 22 this claim is duplicative of the other section 1983 claims, as it 23 is unclear what Plaintiffs are pleading. 24 order dismissed the fourth claim for relief with leave to amend. 25 See Estate of Contreras ex rel. Contreras, 2010 WL 2816246 at *2. 26 For the reasons set forth in the previous order, this claim is 27 DISMISSED, with leave to amend. 28 11 The Court’s previous 1 5. 2 3 Wrongful Death/Professional Negligence/Medical Malpractice, Fifth Claim for Relief Plaintiffs’ fifth claim for relief is captioned as a claim for 4 wrongful death, professional negligence and medical malpractice. 5 The claim is brought on behalf of the Estate of Jessie P. 6 Contreras, and on behalf of Leonor Contreras. 7 that this claim should be dismissed because the FAC lacks 8 allegations of a duty owed by Defendant to Decedent. 9 noted in Plaintiffs’ opposition, the allegations that Defendant was Defendant argues However, as 10 responsible for providing medical and mental health care for 11 incarcerated individuals such as Decedent, provide the allegations 12 of a duty. 13 In a medical malpractice action, the plaintiff must establish: 14 “1) the duty of the professional to use such skill, prudence, and 15 diligence as other members of his profess commonly possess and 16 exercise; (2) a breach of that duty; (3) a proximate causal 17 connection between the negligent conduct and the resulting injury; 18 and (4) actual loss or damage resulting from the professional’s 19 negligence.” 20 2009). 21 that medical service providers exercise that degree of skill, 22 knowledge and care ordinarily possessed and exercised by members of 23 their profession under similar circumstances. 24 negligence claim likewise requires the same standard of care. 25 Flowers v. Torrance Memorial Hospital Medical Center, 8 Cal. 4th 26 992, 998 (1994). 27 28 Johnson v. Vo, 2009 WL 840398, *3 (E.D. Cal. Mar. 30, The standard of care in a medical malpractice case requires Id. A professional Plaintiffs have alleged in the FAC that Defendant owed a duty to Decedent to provide medical and mental health care, and that 12 1 failure to provide this care when Decedent needed it caused his 2 death. 3 between Defendant’s employees and Decedent. 4 allegations of the FAC that Defendant employed a psychiatrist and 5 other medical personnel to treat inmates, Plaintiffs have 6 sufficiently plead a duty to provide care that was breached. 7 allegations are sufficient at this stage of the pleadings to 8 support a claim for medical malpractice/professional negligence. 9 Accordingly, the motion to dismiss the fifth claim against Defendant argues that the FAC does not allege any contact However, given the The 10 Defendant is DENIED. 11 clarification requested in its previous order applies to this order 12 as well. 13 2816246 at *2-3. 14 and eighth claims to clarify that Leonor Contreras brings the 15 claims only in her capacity as administrator of the estate of 16 Jessie P. Contreras, and not in her individual capacity. 17 Plaintiffs will amend to clarify who is bringing the wrongful death 18 survivor action portion of these claims. 19 20 21 However, the Court notes that the See Estate of Contreras ex rel. Contreras, 2010 WL 6. Plaintiffs will amend the fifth, sixth, seventh Further, Wrongful Death, Negligence, Negligence Per Se, Sixth Claim for Relief Plaintiffs’ sixth claim alleges that all defendants, 22 including Defendant Glenn Medical Center, had a duty to manage the 23 jail in a manner so as to prevent what happened to Decedent, and 24 they breached that duty. 25 by California State Law, law enforcement standards, administrative 26 regulations and medical standards.” 27 the FAC alleges that Defendant breached its duty to provide medical 28 and mental health care to Decedent when he was incarcerated and The FAC states that “Said duty is defined 13 FAC. ¶51. As discussed above, 1 needed such care. 2 Plaintiffs did not name specific statutes or regulations that were 3 allegedly violated. 4 addresses only the negligence per se aspect of the claim, and not 5 the wrongful death or general negligence aspects. 6 further argue that they are not required to name specific statutes 7 that were violated in order to plead a negligence per se claim. 8 9 Defendant contends that the claim fails because Plaintiffs contend that this argument Plaintiffs Negligence per se is not an independent cause of action. Rather, negligence per se is an evidentiary doctrine that 10 establishes a presumption of negligence based on the violation of a 11 statute. 12 1161-62 (E.D. Cal. 2009). 13 addresses negligence per se, providing that a presumption of 14 failure to exercise due care exists if (1) defendant violated a 15 statute, ordinance, or regulation of a public entity, (2) the 16 violation proximately caused death or injury to person or property, 17 (3)the death or injury resulted from an occurrence of the nature 18 which the statute, ordinance or regulation was designed to prevent, 19 and (4) the person suffering the death or injury to his person or 20 property was one of the class of persons for whose protection the 21 statute, ordinance or regulation was adopted. 22 Supp. 2d at 1162. 23 negligence must be viable before the presumption of negligence of 24 Evidence Code Section 669 can be employed. 25 omitted). 26 are (1) a legal duty to use reasonable care, (2) breach of that 27 duty, and (3) proximate cause between the breach and (4) the 28 plaintiff’s injury. Spencer v. DHI Mortg. Co., Ltd., 624 F. Supp. 2d 1153, California Evidence Code Section 669(a) Spencer, 624 F. Additionally, an underlying claim of ordinary Id. (citations The elements of a cause of action for general negligence Id. at 1161. 14 The existence of a legal duty to 1 use reasonable care in a particular factual situation is a question 2 of law for the court to decide. 3 Investments, Inc., 118 Cal.App.4th 269, 278 (2004)). 4 Id. (citing Vasquez v. Residential Here, Plaintiffs have not stated which statute or regulation 5 was allegedly violated, thus the Court cannot determine whether 6 they have adequately plead facts to support a claim of negligence 7 per se. 8 DISMISSED, with leave to amend if Plaintiffs can identify a 9 specific statute or regulation that was violated. Accordingly, the negligence per se aspect of this claim is As to the 10 ordinary negligence aspect of the claim, the FAC pleads adequate 11 facts to maintain a claim for ordinary negligence at this early 12 stage of the pleadings. 13 negligence portion is DENIED. 14 the sixth claim is GRANTED in part and DENIED in part, with leave 15 to amend. 16 17 18 7. Defendant’s motion to dismiss the ordinary Thus, Defendant’s motion to dismiss Negligent Supervision, Training, Hiring and Retention, Seventh Claim for Relief The seventh claim for relief alleges that Defendant was 19 negligent in its supervision, training, hiring and retention of 20 employees at the jail. 21 dismissed because the FAC does not allege the involvement of any of 22 Defendant’s employees in caring for Decedent. 23 note that the FAC alleged that Defendant employs a psychiatrist and 24 medical personnel to treat jail inmate. 25 Defendant’s negligence in hiring, training, supervising and 26 retaining these individuals harmed Decedent. 27 alleges that Defendant was under contract to develop a training 28 program to identify and treat potentially suicidal inmates. Defendant argues that this claim should be 15 However, Plaintiffs Plaintiffs argue that The FAC further 1 Plaintiffs contend that the negligent delivery of these suicide 2 prevention services and treatment injured Decedent. 3 An employer may be liable to a third person for the employer’s 4 negligence in hiring or retaining an employee who is incompetent or 5 unfit. 6 1556, 1565 (1996). 7 employer knew or should have known that hiring the employee created 8 a particular risk or hazard and that particular harm materializes. 9 Doe v. Capital Cities, 50 Cal.App.4th 1038, 1054 (1996). 10 Roman Catholic Bishop v. Superior Court, 42 Cal.App.4th Liability is based upon the facts that the While the FAC raises broad allegations of negligence, it does 11 not raise allegations that Defendant knew or should have known of 12 the particularized risk of hiring or retaining specific employees. 13 As to the negligent supervision claim, the FAC likewise lacks 14 allegations that Defendant knew or should have known that is was 15 negligent in supervising or training specific employees. 16 Accordingly, the motion to dismiss the seventh claim is GRANTED, 17 with leave to amend. 18 19 20 8. Wrongful Death, Failure to Furnish/Summon Medical Aid, Eighth Claim for Relief The FAC alleges that Defendant failed to summon medical 21 care upon discovering Decedent hanging in his cell (but alive and 22 with a pulse), in violation of “California State Law and 23 specifically California Government Code 845.6.” 24 California Government Code § 845.6 states that a public employee or 25 public entity where the employee is acting within the scope of 26 his/her employment is liable if the employee knows or has reason to 27 know that a prisoner is in need of immediate medical care and fails 28 to take reasonable action to summon such care. 16 FAC ¶57. Liability under 1 section 845.6 is limited to public employees or public entities. 2 Johnson v. City of Los Angeles, 143 Cal.App.3d 298, 317 (1983). 3 However, Defendant is an independent contractor with the jail, and 4 independent contractors are not employees subject to liability 5 under code sections such as § 845.6 that provide for liability 6 against public employees. 7 Gov. Code 810.2; 811.4. Plaintiffs argue that liability is not contingent on a finding 8 that Defendant is liable under § 845.6, because the claim also 9 alleges in general terms that Defendant violated California state 10 law. However, as Defendant is not subject to liability under 11 § 845.6, and the FAC does not articulate what other state law 12 Plaintiffs’ are referring to, the claim is DISMISSED, with leave to 13 amend. 14 15 16 17 III. ORDER For the reasons set forth above, Defendant’s motion to dismiss is GRANTED in part and DENIED in part. 18 The motion to dismiss the first claim is GRANTED WITH 19 PREJUDICE. 20 The motion to dismiss the second claim is DENIED. 21 The motion to dismiss the third claim is DENIED. 22 The motion to dismiss the fourth claim is GRANTED, with 23 leave to amend. 24 The motion to dismiss the fifth claim is DENIED. 25 The motion to dismiss the sixth claim is GRANTED, with 26 leave to amend as to negligence per se, and DENIED as to 27 ordinary negligence. 28 The motion to dismiss the seventh claim is GRANTED, with 17 1 leave to amend. 2 The motion to dismiss the eighth claim is GRANTED, with 3 leave to amend. 4 Plaintiffs 5 eighth claims to clarify that Leonor Contreras brings the 6 claims 7 estate of Jessie P. Contreras, and not in her individual 8 capacity. 9 is bringing the wrongful death survivor action portion of 10 will only in amend her the fifth, capacity as sixth, seventh administrator of and the Further, Plaintiffs will amend to clarify who these claims. 11 12 13 The Second Amended Complaint must be filed within twenty (20) days of the date of this order. 14 15 IT IS SO ORDERED. 16 17 Dated: December 1, 2010 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 18