Lum v. County of San Joaquin, et al.,, No. 2:2010cv01807 - Document 25 (E.D. Cal. 2010)

Court Description: ORDER granting in part and denying in part 20 Motion to Dismiss signed by Senior Judge Lawrence K. Karlton on 11/17/10. (Kaminski, H)
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Lum v. County of San Joaquin, et al., Doc. 25 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 JERRY LUM, et al., 10 NO. CIV. S-10-1807 LKK/DAD Plaintiffs, 11 v. 12 O R D E R 13 COUNTY OF SAN JOAQUIN, et al., 14 Defendants. 15 / 16 17 This is a § 1983 civil rights and state law wrongful death 18 action against San Joaquin County, the City of Lathrop, and 19 multiple city and county employees. 20 plaintiffs' son following his release from the San Joaquin County 21 Jail. Defendants County of San Joaquin ("the County") and City of 22 Lathrop 23 arresting officers") now move to dismiss portions of the first 24 amended complaint. 25 claim 26 discrimination under the ADA; and plaintiff’s sixth claim for ("the for City") unlawful and It arises out of the death of Sergeants Walters and Pease ("the The City moves to dismiss plaintiff’s first arrest; the fifth claim for disability 1 1 wrongful death. The County moves to dismiss plaintiff’s sixth claim 2 for wrongful death. The arresting officers move to dismiss the ADA 3 and 4 plaintiffs’ standing on all claims. For the reasons described 5 herein, certain of the motions are GRANTED, others DENIED, and 6 plaintiffs are GRANTED leave to amend their complaint. wrongful death claims. 9 10 defendants also challenge I. BACKGROUND 7 8 The Plaintiffs’ first amended complaint (“FAC”) makes the following allegations: A. Plaintiffs and Decedent 11 Plaintiffs, Jerry Lum and Dorothea Timmons, are the parents, 12 heirs, successors in interest, and survivors of the decedent, 13 Jeremy Lum. 14 under psychiatric care for a bipolar disorder. (FAC at ¶ 21.) 15 Decedent 16 hallucinations, which resulted in at least three admissions to St. 17 Joseph's Behavioral center in Stockton, California. (FAC at ¶ 21.) 18 Decedent used prescription medications to control his bipolar 19 disorder, including anti-seizure and anti-psychotic medications. 20 (FAC at ¶¶ 21, 42.) Despite his diagnosis, however, decedent was 21 able to maintain employment and participate in athletics. 22 ¶ 22.) (FAC at ¶ 4.) had a history At the time of his death, decedent was of psychotic episodes, including (FAC at 23 On July 8, 2009, at approximately 11:00 pm, one of decedent's 24 neighbors observed that decedent was "not in his right mind, and 25 appeared disoriented and lost". 26 barefoot and had vomit on his shirt. 2 In addition the decedent was (FAC at ¶ 27-28.) The 1 neighbor, Mr. Archuleta, contacted police after decedent came up 2 onto his porch, looking for a girl named "Adriana." (FAC at ¶¶ 27, 3 30.) 4 ¶ 27.) 5 past his line of sight as if he was looking at nothing, and pacing 6 back and forth, confused." (FAC at ¶ 28.) Mr. Archuleta did not know "Adriana" or decedent. (FAC at Mr. Archuleta also told police that decedent was "gazing 7 After leaving the Archuleta residence, decedent was seen 8 walking across the street near a local bar, crossing a busy street 9 toward the City Park, and standing "with his arms wrapped around 10 a post." (FAC at ¶ 29.) 11 encountered decedent while he was standing with his arms around the 12 post and asked decedent if he was "okay." (FAC at ¶ 29.) 13 told the bartender that he was "okay." (FAC at ¶ 29.) 14 bartender found decedent's behavior to be "unusual," but he did not 15 believe decedent to be drunk. 16 B. The Arresting Officers 17 A bartender walking home from work Decedent The (FAC at ¶ 29.) Decedent was arrested at approximately 1:00 am on July 9, 18 2009, in response to Mr. Archuleta's call. (FAC at ¶ 31.) Once 19 decedent was under police custody, Archuleta asked police "[w]hat's 20 the problem?" 21 just off his meds." 22 decedent into the San Joaquin County Jail on a "kickout” charge, 23 meaning that he would be released from jail six hours later. 24 at ¶ 31.) One of the sergeants responded, "[h]e's probably (FAC at ¶ 30.) The arresting officers booked (FAC 25 When decedent was arrested he had a laceration on his foot, 26 difficulty walking, vomit on his shirt, and was behaving strangely. 3 1 (FAC at ¶ 35.) 2 evaluate decedent's physical or mental state or inquire as to 3 whether hospitalization, or an involuntary hold, pursuant to 4 California Welfare & Institutions Code sections 5150 or 5170, was 5 necessary. 6 The arresting officers did not take any action to (FAC at ¶ 35.) According to smelled later of accounts alcohol; by however, the no arresting one 7 decedent 8 encountered decedent that night smelled alcohol on him or suspected 9 that he had been drinking. (FAC at ¶ 32.) else officers, that had Defendants tested 10 decedent's blood alcohol level and found none in his system. 11 at ¶ 33.) 12 he stood up every 30 seconds saying he saw or heard somebody who 13 was not there, but other than that, decedent was cooperative with 14 police. 15 C. The County Jail 16 (FAC Plaintiffs suspect that decedent was hallucinating as (FAC at ¶ 34.) After his arrest, decedent was booked into the San Joaquin 17 County Jail. 18 booking area when decedent was brought in for being “under the 19 influence in public" and "he specifically remember[ed] Jeremy Lum 20 telling 21 medication." 22 "bouncing off the walls and attempting to open imaginary doors and 23 speaking to himself." 24 him (FAC at ¶ 35.) that he had Officer Mendoza was working in the bipolar (FAC at ¶ 37.) disorder and takes [sic] Officer Mendoza observed decedent (FAC at ¶ 38.) While decedent was in his holding cell, he had hallucinations 25 and also suffered from a seizure. 26 did not order a medical or psychiatric evaluation or otherwise 4 (FAC at ¶ 38.) The jail staff 1 obtain medical treatment for decedent. (FAC at ¶¶ 38-39.) Decedent 2 was released from the County jail on July 9, 2010, at 7:36 am, 3 "without successful family notification, transportation, money, 4 phone, or shoes." 5 D. After Decedent's Release From County Jail (FAC at ¶ 40.) 6 By approximately 6:00 pm on July 9, 2009, decedent had not 7 returned home; his family commenced a search for him and soon 8 learned of his arrest and release from jail. 9 Later that evening, the family filed a missing person's report and 10 tried to impress upon the police decedent's need for medication. 11 (FAC at ¶ 42.) 12 5:00 pm on July 12, 2009, decedent's body was found floating in the 13 San Joaquin River, approximately two miles west of the County jail. 14 (FAC at ¶ 44.) 15 that the cause of death was accidental drowning with MDMA (ecstasy) 16 and Orphenadrine intoxication. 17 regular prescription medications were found in his system. 18 at ¶ 45.) 19 (FAC at ¶ 41.) The search was to no avail and at approximately The San Joaquin County Coroner's report concluded (FAC at ¶ 45.) None of decedent's (FAC II. STANDARD FOR A FED. R. CIV. P. 12(B)(6) MOTION TO DISMISS 20 A Fed. R. Civ. P. 12(b)(6) motion challenges a complaint's 21 compliance with the pleading requirements provided by the Federal 22 Rules. In general, these requirements are established by Fed. R. 23 Civ. P. 8, although claims that “sound[] in” fraud or mistake must 24 meet the requirements provided by Fed. R. Civ. P. 9(b). Vess v. 25 Ciba-Geigy Corp., 317 F.3d 1097, 1103-04 (9th Cir. 2003). 26 Under Federal Rule of Civil Procedure 8(a)(2), a pleading must 5 1 contain a “short and plain statement of the claim showing that the 2 pleader is entitled to relief.” The complaint must give defendant 3 “fair notice of what the claim is and the grounds upon which it 4 rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 5 (internal quotation and modification omitted). 6 To meet this requirement, the complaint must be supported by 7 factual allegations. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 8 (2009). “While legal conclusions can provide the framework of a 9 complaint,” neither legal conclusions nor conclusory statements are 10 themselves sufficient, and such statements are not entitled to a 11 presumption of truth. Id. at 1949-50. Iqbal and Twombly therefore 12 prescribe a two step process for evaluation of motions to dismiss. 13 The court first identifies the non-conclusory factual allegations, 14 and the court then determines whether these allegations, taken as 15 true and construed in the light most favorable to the plaintiff, 16 “plausibly give rise to an entitlement to relief.” Id.; Erickson 17 v. Pardus, 551 U.S. 89 (2007).1 18 “Plausibility,” as it is used in Twombly and Iqbal, does not 19 refer to the likelihood that a pleader will succeed in proving the 20 allegations. Instead, it refers to whether the non-conclusory 21 factual allegations, when assumed to be true, “allow[] the court 22 23 24 25 26 1 As discussed below, the court may consider certain limited evidence on a motion to dismiss. As an exception to the general rule that non-conclusory factual allegations must be accepted as true on a motion to dismiss, the court need not accept allegations as true when they are contradicted by this evidence. See Mullis v. United States Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987), Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). 6 1 to draw the reasonable inference that the defendant is liable for 2 the 3 plausibility standard is not akin to a 'probability requirement,' 4 but it asks for more than a sheer possibility that a defendant has 5 acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557). A 6 complaint may fail to show a right to relief either by lacking a 7 cognizable legal theory or by lacking sufficient facts alleged 8 under a cognizable legal theory. Balistreri v. Pacifica Police 9 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). misconduct alleged.” Iqbal, 129 S.Ct. at 1949. “The 10 The line between non-conclusory and conclusory allegations is 11 not always clear. Rule 8 “does not require 'detailed factual 12 allegations,' but it demands more than an unadorned, the-defendant- 13 unlawfully-harmed-me 14 (quoting Twombly, 550 U.S. at 555). While Twombly was not the first 15 case that directed the district courts to disregard “conclusory” 16 allegations, the court turns to Iqbal and Twombly for indications 17 of the Supreme Court’s current understanding of the term. In 18 Twombly, the Court found the naked allegation that “defendants 19 'ha[d] entered into a contract, combination or conspiracy to 20 prevent competitive entry . . . and ha[d] agreed not to compete 21 with one another,'” absent any supporting allegation of underlying 22 details, to be a conclusory statement of the elements of an anti- 23 trust claim. Id. at 1950 (quoting Twombly, 550 U.S. at 551). In 24 contrast, the Twombly plaintiffs’ allegations of “parallel conduct” 25 were not conclusory, because plaintiffs had alleged specific acts 26 argued to constitute parallel conduct. Twombly, 550 U.S. at 550-51, accusation.” 7 Iqbal, 129 S. Ct. at 1949 1 556. 2 Twombly also illustrated the second, “plausibility” step of 3 the analysis by providing an example of a complaint that failed and 4 a complaint that satisfied this step. The complaint at issue in 5 Twombly failed. While the Twombly plaintiffs’ allegations regarding 6 parallel conduct were non-conclusory, they failed to support a 7 plausible claim. Id. at 566. Because parallel conduct was said to 8 be ordinarily expected to arise without a prohibited agreement, an 9 allegation of parallel conduct was insufficient to support the 10 inference that a prohibited agreement existed. Id. Absent such an 11 agreement, plaintiffs were not entitled to relief. Id.2 12 In contrast, Twombly held that the model pleading for 13 negligence demonstrated the type of pleading that satisfies Rule 14 8. Id. at 565 n.10. This form provides “On June 1, 1936, in a 15 public highway called Boylston Street in Boston, Massachusetts, 16 defendant negligently drove a motor vehicle against plaintiff who 17 was then crossing said highway.” Form 9, Complaint for Negligence, 18 Forms App., Fed. Rules Civ. Proc., 28 U.S.C. App., p 829. These 19 allegations adequately “'state[] . . . circumstances, occurrences, 20 and events in support of the claim presented.'” Twombly, 550 U.S. 21 at 556 n.3 (quoting 5 C. Wright & A. Miller, Federal Practice and 22 Procedure § 1216, at 94, 95 (3d ed. 2004)). The factual allegations 23 24 25 26 2 This judge must confess that it does not appear self-evident that parallel conduct is to be expected in all circumstances and thus would seem to require evidence. Of course, the Supreme Court has spoken and thus this court's own uncertainty needs only be noted, but cannot form the basis of a ruling. 8 1 that defendant drove at a certain time and hit plaintiff render 2 plausible the conclusion that defendant drove negligently. III. ANALYSIS 3 4 Defendants move to dismiss plaintiffs' first claim, as to the 5 City; plaintiff's fifth claim as to both the City and the arresting 6 officers; and the sixth claim for relief as to the City, the 7 County, and the arresting officers for failure to state a claim for 8 relief under Rule 12(b)(6). 9 of Plaintiffs’ first through fifth and seventh claims in their Defendants also seek to dismiss each 10 entirety for lack of standing. 11 A. Plaintiff’s First Claim: 42 U.S.C. §1983 (Alleged Violation Of Decedent’s Fourth Amendment Rights) 12 Plaintiffs allege as their first claim a violation of 42 13 U.S.C. §1983 against the arresting officers, the City, and "Does 14 1-25." (FAC at ¶¶ 54-59.) Plaintiffs base this claim on their 15 assertion that the defendants unlawfully arrested decedent. (FAC 16 at ¶ 55.) Defendants contend that this claim should be dismissed 17 as to the City because plaintiffs have not established municipal 18 liability. 19 Title 42 U.S.C. § 1983 provides in relevant part: 20 21 22 23 24 "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 25 26 Because a municipality cannot be held liable for a violation 9 1 of Section 1983 solely because it employs a tortfeasor, plaintiff 2 must first show that the municipal action was taken with the 3 requisite degree of culpability and must demonstrate a causal link 4 between the municipal action and the deprivation of federal rights. 5 Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397 6 (1997). 7 conditions: 8 Plaintiffs may accomplish this by proving one of three (1) A city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity; 9 10 11 (2) The individual who committed the constitutional tort was an official with final policy-making authority and therefore the challenged action itself constituted an act of official governmental policy; or 12 13 (3) An official with final policy-making authority ratified a subordinate's unconstitutional action and the basis for it. 14 15 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 16 17 Defendants contend that plaintiffs have alleged no factual 18 predicate for inferring that the City has an official policy or 19 custom that leads to unlawful arrests. (Def’s Mtn Dis. at 7: 3-5.) 20 Plaintiffs 21 governmental policy or a longstanding practice or custom," rather 22 that the arresting officers had final policy-making authority and 23 either 24 subordinate's 25 Defendants argue that even if plaintiffs proceed under this theory, 26 they plead only conclusory factual allegations in support of their counter violated the that they are constitution unconstitutional not themselves action 10 alleging and the or "a formal ratified basis for a it. 1 proposition. 2 In order to establish municipal liability, Plaintiffs must 3 plead facts that establish a single or recurring unconstitutional 4 action by an individual with "final policy-making authority." 5 Generally speaking, whether an individual has “final policy-making 6 authority” with regard to the challenged action is a matter of 7 state law. 8 (plurality opinion) (“[T]he challenged action must have been taken 9 pursuant to St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) a policy adopted by the official or officials 10 responsible under state law for making policy in that area of the 11 city's business”). 12 The court disagrees with plaintiffs’ proposition that state 13 law is merely a “starting point” for our analysis, (see Pl’s Oppo 14 at 6, n. 3). This issue remains unresolved, but the plurality in 15 Praprotnik explicitly disagreed with this assessment. However, the 16 High Court has not precluded municipal liability in situations 17 where an official who possesses such authority delegates it and 18 creates a “custom or usage” having the force of law. Plaintiffs 19 allege that "in the City of Lathrop, police 20 sergeants, including Sergeant Walters and Pease, are invested by 21 law-or by a ‘custom or usage’ having the force of law-with ‘final 22 policymaking authority’ to effect arrests and/or ratify or sanction 23 arrests made by other officers." 24 allege, based on this assertion, that "Sergeant Walters and Pease 25 were 26 authority' when they effected and/or ratified or sanctioned Jeremy acting as municipal (FAC at ¶ 56.) officials 11 with 'final They further policymaking 1 2 Lum's arrest." (FAC at ¶ 56.) The court finds that plaintiffs have pled sufficient facts to 3 maintain a claim for municipal liability under Section 1983. 4 court is required to assume the non-conclusory factual allegations 5 of the complaint are true, and construe them in the light most 6 favorable 7 indicating, 8 arrested (decedent was booked on a public intoxication charge 9 although he did not any alcohol in his blood, while police conceded 10 to at the plaintiffs. least Plaintiffs plausibly that have decedent was pled The facts wrongfully that he was “probably just off his meds”). 11 The complaint further alleges that the decision to arrest and 12 book on a "kickout" charge, as opposed to the decision to pursue 13 other alternatives, was made by the arresting officers, and that 14 sergeants in the City of Lathrop customarily have the final 15 authority regarding these arrests. These allegations adequately 16 "'state[] . . . circumstances, occurrences, and events in support 17 of the claim presented.'" Twombly, 550 U.S. at 556 n.3 (quoting 18 Wright & A. Miller, Federal Practice and Procedure § 1216 at 94, 19 95). The factual allegations that the arresting officers made the 20 independent and seemingly discretionary decision to unlawfully 21 arrest decedent, renders plausible the conclusion that sergeants 22 generally have at least been delegated final policymaking authority 23 as to arrests in the City of Lathrop.3 24 3 25 26 At oral argument defendants has held that police sergeants do mater of law, relying on Collins v. at 341(9th Cir 1987). Collins 12 contended that the 9th Circuit not have final authority as a City of San Diego 841 F.2d 337 is clearly distinguishable, 1 The court finds that plaintiffs have pled a factual predicate 2 that gives rise to a plausible finding of municipal liability as 3 to plaintiffs' Section 1983 claim. Accordingly, defendants’ motion 4 to dismiss plaintiff’s first claim for relief for unlawful arrest 5 is DENIED. 6 Moreover, it appears to the court that the existence of a 7 "kickout" arrest suggests a policy which, under the facts and 8 circumstances of this case, perhaps raise a plausible basis for 9 municipal liability. Accordingly, if the facts support such a 10 cause of action, plaintiffs are GRANTED leave to amend their 11 complaint to state a claim under the first theory of municipal 12 liability; that the City of Lathrop had a policy or custom and 13 usage that resulted in a violation of decedent’s Fourth Amendment 14 rights. 15 B. Plaintiffs’ Fifth Claim: Violation Of The Americans With Disabilities Act (ADA) 16 Plaintiffs’ fifth claim is that the arrest and detention of 17 decedent violated the Americans with Disabilities Act. City 18 defendants argue, relying on Foley v. Klickitat County, Dec. 2009), No. 19 CV-08-3068, 2009 WL 5216992 (E.D. Wa. 30, that 20 plaintiffs’ fifth claim fails as to both the arresting officers and 21 the city because the ADA does not apply to arrests. The County is 22 not moving to dismiss the ADA claim against it. Defendants also 23 contend that even if the ADA applies to incarcerated individuals, 24 25 26 addressing as it does the question of hiring and firing. In any event, here plaintiffs rely on long-standing practice to establish authority, a matter not addressed by Collins. 13 1 the arresting officers, who are city employees, cannot be liable 2 because they no longer had custody of decedent after booking him 3 into the San Joaquin County Jail, and therefore the City also 4 cannot 5 relationship between the County jail and the City. (Def’s Mtn Dis. 6 at 11: 15-19.) be liable because there is no respondeat superior 7 Plaintiffs respond arguing that Foley is not binding on this 8 court and further, that it is not persuasive because it is merely 9 a cursory analysis of the ADA. (Pl’s Oppo at 7: 13-16.) Plaintiffs 10 base their contention on the reasoning contained within several 11 district court decisions, as well as the Ninth Circuit opinion in 12 Thompson v. Davis, 295 F.3d 890 (9th Cir. 2002) (holding that 13 decisions to parole constitute an “activity of a public entity” 14 that falls within the reach of the ADA.) 4 For the reasons discussed below, the court agrees with 15 16 plaintiffs’ assessment of the ADA. 17 the 18 defendants motion is GRANTED as to the arresting officers and 19 DENIED as to the City. ADA does not apply to However, the court finds that individual officers; therefore, 20 Title II of the ADA, 42 U.S.C. § 12132, prohibits a public 21 entity from discriminating against a qualified individual with a 22 disability on the basis of disability. Weinreich v. L.A. County 23 4 24 25 26 Plaintiffs also contend that even if the court does not find that an arrest is the type of “service, program or activity” contemplated by the ADA, this would not dispense with the entirety of plaintiffs’ fifth claim because plaintiffs are also contesting the legality of decedent’s arrest. Given the disposition above the court need not consider this argument. 14 1 Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997). To state 2 a claim of disability discrimination under Title II, the plaintiff 3 must allege four elements: 4 5 6 7 8 (1) [P]laintiff is an individual with a disability; (2) plaintiff is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) plaintiff was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability. Weinreich, 114 F.3d at 978. 9 10 The Ninth Circuit has not addressed the question of whether 11 the ADA applies to arrests. See Thompson, 295 F.3d at 897. 12 However, that court has determined that local law enforcement 13 agencies' activities fall within the statute. 42 U.S.C. § 12131(1); 14 Lee v. City of L.A., 250 F.3d 668, 691 (9th Cir. 2001) (citing 15 Gorman v. Bartch, 152 F.3d 907, 912-13 (8th Cir. 1998) (holding 16 that transportation of an arrestee to a police station is a 17 “service” under the ADA)). 18 There are two theories generally recognized by courts in 19 applying the ADA in the context of arrests. See Gohier v. Enright, 20 186 F.3d 1216, 1221 (10th Cir. 1999). 21 arrested someone with a disability because they misperceived the 22 effects of that disability as criminal activity. 23 Second, where although police have properly investigated and 24 arrested a person with a disability for a crime unrelated to that 25 disability, they failed to reasonably accommodate the person’s 26 disability in the course of investigation or arrest, causing the 15 First, where police wrongly Id. at 1220. 1 person to suffer greater injury or indignity in that process than 2 other arrestees. Id. at 1220-21 (citing Gorman, 152 F.3d at 912-13 3 (holding such claim viable); Rosen, 121 F.3d at 157-58 (suggesting 4 in dicta such claim not viable); Patrice v. Murphy, 43 F.Supp.2d 5 1156 (W.D. Wash. 1999) (holding such claim not viable.)) 6 Plaintiffs are alleging both theories, therefore, the court 7 must address the applicability of both. 8 below, the court finds that the weight of Ninth Circuit authority, 9 as well as the persuasive authority on point, leads to the 10 11 For the reasons discussed conclusion that both theories are viable under the ADA. The first scenario, where an individual is wrongfully 12 arrested, fits squarely within the ADA’s prohibition against 13 discrimination upon the basis of a disability. 14 F.3d at 978 (“in order to maintain an ADA claim, plaintiff must 15 allege that plaintiff was either excluded ... or was otherwise 16 discriminated against by the public entity.”) (emphasis added). See Weinreich, 114 17 In the event that decedents’ arrest was found lawful, the 18 second theory is equally viable, as the court finds that arrests 19 are “activities” of a public entity. 20 Research and Treatment, Inc. v. City of Antioch, the Ninth Circuit 21 interpreted Title II's “programs” and “activities” to include “ 22 ‘all of the operations of’ a qualifying local government.” 23 F.3d 725, 731 (9th Cir. 1999). In reaching this conclusion, the 24 court noted that Congress specifically rejected an approach that 25 could have left room for exceptions to § 12132's prohibition on 26 discrimination by public entities. 16 Id. In Bay Area Addiction at 732. This 179 broad 1 interpretation of the ADA was confirmed by Lee v. City of L.A. when 2 the court stressed that “[q]uite simply, the ADA's broad language 3 brings within its scope ‘anything a public entity does,’” 250 F.3d 4 at 691 (quoting Yeskey v. Pa. Dep't of Corr., 118 F.3d 168, 171 & 5 n. 5 (3d Cir. 1997), aff'd 524 U.S. 206 (1998)); see also McGary 6 v. City of Portland 7 must be construed broadly in order to effectively implement the 8 ADA's fundamental purpose”). 386 F.3d 1259, 1268 (9th Cir. 2004) (“the ADA 9 This broad interpretation of the ADA has led the Ninth Circuit 10 to additionally warn against “carving out ‘spheres in which public 11 entities 12 disability .’” McGary, 386 F.3d at 1269 (quoting Thompson, 295 F.3d 13 at 899.) In Thompson, the Ninth Circuit rejected an attempt to 14 exempt parole decisions from the ADA under the reasoning that the 15 ADA does not reach substantive decision-making in the context of 16 the criminal law. The court cited with approval the Tenth Circuit's 17 holding that the ADA applies to arrests. Id. at 897 (citing Gohier, 18 186 F.3d at 1221 (“[A] broad rule categorically excluding arrests 19 from the scope of Title II ... is not the law.”)). 20 may discriminate on the basis of an individual's The court also noted that under the ADA regulations, law 21 enforcement is obligated to modify 22 discriminatory arrests or abuse of individuals with disabilities." 23 Thompson, 295 F.3d at 897 (quoting 28 C.F.R. Pt. 35, App. A § 24 35.130 (2000)) (emphasis added). 25 Fourth Circuit’s holding in Rosen v. Montgomery County Maryland, 26 121 F.3d 154 (4th Cir. 1997), because that decision was not based 17 "policies that result in The court distinguished the 1 upon a concern that the ADA would impermissibly interfere with the 2 substantive decisions involved in arrests. Rather, reasoning that 3 the statutory text of the ADA implied voluntariness on the part of 4 the individual, it held that an arrest was not a "program or 5 activity" of the defendant County. Id. at 157-58. 6 has now been discredited by the Supreme Court. Yeskey, 524 U.S. at 7 211 ("[T]he words [of § 12132] do not connote voluntariness."). This reasoning 8 Considering the Ninth Circuit’s broad interpretation of the 9 ADA, it seems antithetical to established case law to “carve out” 10 an exception for arrests. Arrests are both subject to the ADA’s 11 prohibition against discrimination on the basis of disability and 12 the duty to provide reasonable accommodations during arrests. 13 Accordingly, the motion to dismiss plaintiff’s ADA claim is DENIED. 14 Clearly, however, the ADA, by its terms does not apply to the 15 officers. 16 C. Plaintiffs’ Sixth Claim For Wrongful Death/Negligence and the California Torts Claim Act Immunities 17 18 Plaintiffs' sixth claim alleges that the defendants were 19 negligent and are thus liable for decedent's death. 20 allege that "[t]he arresting officers ignored the laceration on 21 Jeremy's foot, Jeremy's difficulties walking, the vomit on Jeremy's 22 shirt, and Jeremy's strange behavior which a reasonable officer in 23 Defendants' position should have attributed to something other than 24 alcohol intoxication; they did not take any action to evaluate 25 Jeremy's 26 hospitalization, or an involuntary hold, pursuant to Cal. Welfare physical or mental state 18 or inquire as Plaintiffs to whether 1 & Institutions Code §§ 5150 or 5170, was necessary, instead of 2 arresting and booking Jeremy in the San Joaquin County Jail on 3 'kickout' charges." (FAC at ¶ 35.) 4 Plaintiffs further allege that the act of arresting decedent 5 created a "special relationship" and a correlating duty "not to 6 leave him in a situation that was more dangerous than the one in 7 which they found him." (FAC at ¶¶ 96-97.) 8 "defendants breached this duty by failing to give decedent a 9 medical or psychiatric evaluation and/or treatment and by deciding 10 to release him alone six miles from his home without money, shoes, 11 a cellular phone, means of transportation and without means or 12 wherewithal to get home, shelter, or assistance." (FAC at ¶ 98.) 13 Plaintiffs allege that defendants arresting officers left 14 decedent in a dangerous situation by placing him in jail on a 15 "kickout" charge because "the Arresting Officers knew or should 16 have known that the County had a policy of releasing 'kickouts' 17 after an arbitrary period of time." (FAC at ¶ 36.) 18 argue that plaintiffs' negligence and wrongful death claims fail 19 due to the "numerous and broad immunities" contained in the 20 California Torts Claim Act.5 Plaintiffs state that Defendants 21 5 22 23 24 25 26 Defendants also assert that plaintiffs' Seventh Claim for "False Arrest" is also precluded by the various immunities contained in the Torts Claim Act; however, under California law, a police officer is not granted statutory immunity for false arrest and imprisonment. See Asgari v. City of Los Angeles, 15 Cal.4th 744, 752 (1998). Government Code §820.4, which grants immunity for a public employee's “act or omission, exercising due care, in the execution or enforcement of any law,” provides that: “nothing in this section exonerates a public employee from liability for false arrest or false imprisonment.” 19 "Conceptually, 1 the question of the applicability of a 2 statutory immunity does not even arise until it is determined that 3 a defendant otherwise owes a duty of care to the plaintiff and thus 4 would be liable in the absence of such immunity." Davidson v. City 5 of Westminster, 32 Cal.3d 197, 201-02 (1982). 6 must first address whether, under California law, the defendants 7 owed a duty of care to decedent. 8 i. Defendants Owed Decedent A Duty Of Care 9 Plaintiffs argue that when the Therefore the court arresting officers took 10 decedent into custody, a special relationship and corresponding 11 duty to act reasonably to protect decedent was created. 12 The elements of a cause of action for negligence include a 13 legal duty to use due care. Evan F. v. Hughson United Methodist 14 Church, 8 Cal.App.4th 828, 834 (3d Dist. 1992). 15 a duty of care is a question of law to be determined by the court 16 alone. 17 is because "legal duties are ... merely conclusory expressions 18 that, in cases of a particular type, liability should be imposed 19 for damage done." Tarasoff v. Regents of University of California, 20 17 Cal.3d 425, 434 (1976). The existence of Ballard v. Uribe, 41 Cal.3d 564, 572, fn. 6 (1986). This 21 A person who has not created a peril is not liable in tort 22 merely for failure to take affirmative action to protect another 23 unless there is some relationship between them that gives rise to 24 a duty to act. Williams, 34 Cal.3d at 23. 25 clearly established special relationship, the court should apply 26 the multi-factor public policy analysis first articulated in 20 In the absence of a 1 Rowland v. Christian, 69 Cal.2d 108, 113 (1968). For the reasons 2 discussed below, the Court finds that there is a well-established 3 special relationship between jailers and prisoners that is equally 4 applicable to officers of the law who take arrestees into custody. 5 See Giraldo v. Cal. Dep't of Corr., 168 Cal.App.4th 231 (3d Dist. 6 2008). 7 In Giraldo, the court addressed, as an issue of first 8 impression, whether jailers have a duty to protect inmates from 9 foreseeable harm by third parties. 168 Cal.App.4th at 250. In that 10 case, plaintiff, a male-to-female transgender person, was an inmate 11 in the California prison system. 12 action 13 Rehabilitation (CDCR) and various CDCR personnel "challeng[ing] 14 prison 15 [plaintiff], who have the physical appearance of women, in the male 16 inmate population without any meaningful precaution to the obvious 17 risk of sexual assault to them." against policies the California that place Id. at 237. Department transgender Plaintiff filed an of Corrections inmates, such and as Id. 18 In finding a duty, the court reasoned that "it has been 19 observed that a typical setting for the recognition of a special 20 relationship is where 'the plaintiff is particularly vulnerable and 21 dependent' upon the defendant who, correspondingly, has some 22 control over the plaintiff's welfare." 23 at 245-46 (quoting Kockelman v. Segal, 61 Cal.App.4th 491, 499 24 (1998)). The Court cited expansive authority for finding that a 25 "special 26 including legal encyclopedias, the Restatement (Second) of Torts, relationship" existed 21 Giraldo, 168 Cal.App.4th between jailer and prisoner, 1 2 and both state and federal case law. Id. at 246-50. Ultimately, the Court based its decision on two factors, 3 foreseeability and vulnerability/dependence. 4 Court found that it was "manifestly foreseeable that an inmate may 5 be at a risk of harm [as recently passed legislation] recognizing 6 the serious problem presented by sexual abuse in the prison 7 environment." 8 arrestee who is in need of medical attention would be at risk in 9 a custodial environment or upon release into a situation made his The As here, it is reasonably foreseeable that an 10 dangerous 11 received proper medical attention. 12 by Id. Id. at 250. medical condition, or without first having Both prisoners and arrestees are equally vulnerable and 13 dependent on officers 14 "Prisoners 15 relationship between them is protective by nature, such that the 16 jailer has control over the prisoner, who is deprived of the normal 17 opportunity to protect himself." 18 purpose of arresting decedent, who was “just off of his meds,” on 19 a “kickout” charge, was at least partially for decedant’s own self 20 protection, making the restraint used by the arresting officers 21 just as “protective in nature” as the custodial relationship that 22 exists between jailer and prisoner. are and vulnerable. jailers And for safety dependent. Id. at 250. and security. Moreover, the In this case, the 23 Abiding by the precedent set in Giraldo, the court finds that 24 the jailer-prisoner relationship creates a duty of care as to the 25 County. 26 to law enforcement officers and arrestees. The court further finds the relationship to be analogous 22 Officers and jailers 1 have a duty to act with reasonable care toward those in their 2 custody. 3 i. 4 5 Government Code Section 845.8 Defendant contends that plaintiffs' sixth claim is barred by Government Code Section 845.8(a), which provides: 8 Neither a public entity nor a public employee is liable for: (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. 9 Plaintiffs make several arguments in opposition to this 6 7 10 contention. First, they argue that decedent was not a "prisoner" 11 at the time of the injury (i.e. when he drowned in the river). 12 Second, they assert that this situation is not within the scope of 13 what the legislature intended Section 845.8 to prevent. 14 they assert that even if the court finds this section to be 15 applicable, it can only apply to the County because at the time of 16 the arrest, decedent was not a prisoner. 17 with defendants' characterization of this immunity as "absolute." 18 The court finds that this immunity does not extend to the City 19 or its officers, as the statute specifically deals with decisions 20 to release prisoners, not decisions to arrest individuals or book 21 arrestees into jail. 22 proposition that this statutory immunity is not "absolute." Third, Finally, they take issue The court also agrees with plaintiffs' 23 In Johnson v. State of California, (1968), the California 24 Supreme Court discussed the scope of Section 845.8(a) immunity, in 25 the context of a claim of immunity by the state for injuries 26 arising out of the Youth Authority's decision to place a dangerous 23 1 youth who was on parole in a foster home. 69 Cal.2d 782, 784-785 2 (1968). 3 violence and cruelty to both animals and people, none of which was 4 revealed to the foster parents. 5 assaulted one of the foster parents. Id. at 785. The youth had displayed homicidal tendencies, including Id. The youth subsequently 6 The Court held that the state's decision whether to warn the 7 foster parents of the youth's dangerous propensities was not within 8 845.8(a)'s immunity for an injury resulting from a determination 9 to parole or release a prisoner because “[o]nce the proper 10 authorities have made the basic policy decision-to place a youth 11 with foster parents, for example, the role of section 845.8 12 immunity ends." 13 reasoned that there is an important distinction between basic or 14 discretionary decisions on the one hand and ministerial decisions 15 implementing the basic decision on the other hand. 16 actions implementing the basic policy decision are outside the 17 scope of the immunity. Johnson, 69 Cal.2d at 786, 799. The Court Id. That is, 18 As plaintiffs contend, that distinction applies in the instant 19 case. Plaintiffs allege that the injuries to decedent resulted from 20 "ministerial acts" made after the initial decision to release 21 decedent. 22 plaintiffs from raising a plausible claim for wrongful death 23 against the County, the City or the arresting officers under this 24 theory; however, insofar as the negligence charged is the basic 25 decision to release decedent, there can be no liability. 26 //// Government Code Section 845.8(a) does not preclude 24 1 ii. Government Code Section 846 2 Defendant contends that plaintiffs' sixth claim is also barred 3 by Government Code §846, which provides in relevant part "{n}either 4 a public entity not a public employee is liable for injury caused 5 by ... the failure to retain an arrested person in custody." 6 Defendants assert that this language is “clear” and that neither 7 the City nor the County nor its employees can be held liable for 8 the fact that they did not retain decedent in custody. Again 9 plaintiffs argue that section 846 does not apply in instances where 10 officers have a "special relationship" with the arrested person. 11 (Pl's Opp. at 17: 10-12.) 12 Plaintiffs argument is misplaced. The existence of a “special 13 relationship” is not an exception to immunity under §846. Cases 14 that discuss the issue of “special relationship” in relation to 15 government immunities do so in the context of whether there is a 16 duty of care. 17 of government immunity, see Davidson, 32 Cal.3d at 201-02, and 18 the issues are distinct. The cases that deny plaintiff recovery 19 do not do so because the courts have found governmental immunity 20 but because the applicable officers lacked a duty of care in 21 relation to the plaintiffs or victims. See Jackson v. Clements, 146 22 Cal.App.3d 983 (1st Dist. 1983); City of Sunnyvale v. Superior 23 Court, 203 Cal.App.3d 839 (6th Dist. 1988); Lehto v. City of 24 Oxnard, 171 Cal.App.3d 285 (2d Dist. 1985); Stout v. City of 25 Porterville, 148 Cal.App.3d 937 (5th Dist. 1983). 26 cases that find the immunity inapplicable, such as Morgan and The duty question is the threshold to a discussion 25 Further, the 1 Johnson do not do so on the basis of a “special relationship,” but 2 because the negligence alleged is not merely the release of a 3 violent prisoner. 4 Courts have routinely applied Section 846 immunity where 5 police officers release someone who then goes on to harm a third 6 party. See, e.g., Santa Barbara v. Superior Court, 15 Cal. App.3d 7 751 (1971). The court has not found any cases, nor has the 8 defendant cited any, in which § 846 immunity protected officers 9 from liability for injuries to the released prisoner. The purpose 10 of the statute is to prevent police from over-using their arrest 11 power merely to avoid civil liability for harm that results from 12 failure to arrest and detain. “[The power to make an arrest] is 13 strictly limited and the abuse of such power can result in civil 14 liability. It would be contrary to public policy, simultaneously 15 to permit the imposition of civil liability for a failure to 16 exercise the power. Hence the [§ 846] immunity is a logical adjunct 17 to the public policy.” Lehto v. City of Oxnard, 171 Cal.App.3d (2d 18 District, 1985). The court concludes that the purpose of the 19 statute is to provide immunity to the public entity or officer from 20 liability for any wrongdoing by a released prisoner that harms a 21 third party. See, e.g., Hernandez v. City of San Jose 14 Cal. 22 App.4th 129, 134 (1993). (“Many recent cases which have considered 23 what duty a police officers owes to members of the public have 24 concluded the police have no duty to protect individuals from 25 potential wrongdoers.” (emphasis added.)) 26 concludes that § 846 immunity does not apply in the circumstances 26 Therefore, the court 1 presented. 2 More to the point, however, plaintiffs’s wrongful death claim 3 arises from conduct by the defendant other than the mere fact that 4 they released him. Plaintiffs claims are based on false arrest and 5 a subsequent duty to provide medical care to plaintiff, or in the 6 least to assess his medical status, by virtue of the duty created 7 by defendants’ custodial relationship with decedent. These claims 8 are 9 [l]egislature has not granted immunity from liability for every act not precluded by Government Code § 846, as the “... 10 or omission following after the exercise of discretion.” 11 County of Orange, 3 Cal.App.3d 1053, 1057 (1970) (quoting Sava v. 12 Fuller, 249 Cal.App.2d 281, 284 (1967)). 13 plaintiffs seek to impose liability for the circumstances under 14 which the decedent was released, rather than the mere decision to 15 release. 16 iii. Government Code Section 855.6 17 18 Elton v. Finally, of course, Defendant contends that plaintiffs' Sixth Claim is barred by Government Code Section 855.6, which provides in relevant part: 23 "Except for an examination or diagnosis for the purpose of treatment, neither a public entity nor a public employee acting within the scope of his employment is liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination, of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others." 24 While the immunity granted under this section is broad, it has 25 been held that it does not extend to a situation where the 26 defendant fails to provide medical care for a prisoner in obvious 19 20 21 22 27 1 need of such care. 2 341, 349 (1976) 3 whether the government entity had actual or constructive knowledge 4 of such a need for medical care. California law supports this 5 conclusion. 6 1184 (1985). 7 iv. Government Code Section 855.8(a) 8 9 Lucas v. City of Long Beach, 60 Cal. App. 3d Plaintiffs argue that it is a question of fact See Zeilman v. County of Kern, 168 Cal.App.3d 1174, Defendants contend that plaintiffs' Sixth Claim is barred by Government Code Section 855.6, which provides in relevant part: 10 "(a) Neither a public entity nor a public employee acting within the scope of his employment is liable for injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental illness or addiction or from failing to prescribe for mental illness or addiction." 11 12 13 14 Plaintiffs do not argue that § 855.8(a) does not apply, but 15 contend that "even assuming that this court accepts defendants' 16 argument on this point, it does not dispense with the entirety of 17 plaintiff's sixth claim for relief." 18 Section 855.8(a) granting immunity relates to mental illness. 19 Mental illness includes “any condition for which a person may be 20 detained, cared for, or treated in a mental institution.” Gov.Code, 21 § 854.4. The court agrees. 22 This statutory immunity covers specific acts and omissions by 23 public employees for failure to diagnose and failure to prescribe. 24 (See Van Alstyne, Cal. Government Tort Liability Practice (1980) 25 § 26 subdivision (a), would protect public entities from errors in 4.48, p. 399.) Clearly, Government 28 Code section 855.8, 1 judgment as to whether a patient was mentally ill and therefore 2 should be confined, or whether the patient is not mentally ill and 3 should not be confined. Here, however, the question deals with the 4 failure to refer decedent for evaluation rather than a failure as 5 a result of diagnosis or treatment. 6 Insofar as defendants are immune from “failing to diagnose” 7 decedent, they still had a duty to act reasonably to protect him 8 while he was in their custody. Plaintiffs have alleged facts that 9 would suggest an alternate theory of liability. When decedent was 10 arrested, he had a laceration on his foot, was covered in vomit, 11 and had trouble walking. While in his holding cell, he allegedly 12 had a seizure. (FAC at ¶¶ 35, 38-39.) 13 that plaintiffs are alleging that defendants failed to render 14 medical attention to decedent and that decedent was in obvious need 15 of medical care, their claim is not dismissed. Moreover, of course 16 releasing the defendant under the conditions noted, raises further 17 nonimmune questions of liability. 18 D. Plaintiffs’ Standing as Successor in Interest Therefore, to the extent 19 At the time that they filed their complaint, plaintiffs had 20 not yet filed the affidavit required by California Code of Civil 21 Procedure § 377.32 to establish standing as decedent’s successor 22 in interest. On November 5, 2010, plaintiffs Jerry Lum and Dorthea 23 Timmons filed a declaration with the court that complies with § 24 377.32, along with a copy of the decedent’s death certificate. ECF 25 No. 23. Defendant’s motion to dismiss for lack of standing is 26 therefore DENIED. 29 IV. CONCLUSION 1 2 For the reasons discussed above, Defendant’s Motion to 3 Dismiss, ECF No. 20, is DENIED in part and GRANTED in part. The 4 court ORDERS as follows: 5 [1] Defendants’ Motion to Dismiss plaintiffs’ first claim for 6 relief is DENIED. 7 [2] Defendants’ Motion to Dismiss plaintiffs’ fifth claim for 8 relief is DENIED as to the City, and GRANTED as to the 9 individual arresting officers. 10 [3] Defendants’ Motion to Dismiss plaintiff’s sixth claim for 11 relief is GRANTED insofar as plaintiff rely on defendants’ 12 failure to diagnose decedent’s mental condition. The motion 13 to 14 decedent 15 defendants failed to render medical attention to him. 16 [4] Plaintiffs are GRANTED leave to amend their complaint. 17 [5] Defendant’s motion to dismiss the first through fifth and 18 seventh claim for relief for lack of standing is DENIED. 19 IT IS SO ORDERED. 20 DATED: dismiss is was DENIED in insofar obvious November 17, 2010. 21 22 23 24 25 26 30 need as plaintiffs of medical allege that attention, and