Cavanaugh et al v. County of San Diego et al, No. 3:2018cv02557 - Document 68 (S.D. Cal. 2020)

Court Description: ORDER Granting: (1) Defendant's Motion 56 Plaintiff's Second Amended Complaint With Prejudice; (2) Joint Motion 61 to Dismiss Defendants Brett Germain and Michael Pacheco. Signed by Judge Roger T. Benitez on 11/12/2020. (mme)

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Cavanaugh et al v. County of San Diego et al Doc. 68 1 2 3 4 5 6 - - - - , 1----~··--· - ----------- ---------- UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) ) ) ) Plaintiffs, ) v. ) ) COUNTY OF SAN DIEGO, a municipal ) Corporation; SHERIFF BILL GORE, ) individually and in his official capacity as ) Sheriff for the County of San Diego; ) KEVIN KAMOSS, in his individual and ) offical capacity; STANLEY DIXON, in ) his individual and official capacity; ) JOSEPH REYES, in his individual and ) official capacity; and DOES 1-50 ) inclusive, ) Defendants. SHANE CAVANAUGH, an individual and as personal representative and successor in interest of the Estate of RICHARD BOULANGER; the Estate of RICHARD BOULANGER, I. Case No.: 3:18-cv-02557-BEN-LL ORDER GRANTING: (1) DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT WITH PREJUDICE (2) JOINT MOTION TO DISMISS BRETT DEFENDANTS MICHAEL GERMAIN AND PACHECO [ECF Nos. 56, 59, 61, and 63] INTRODUCTION Plaintiff Shane Cavanaugh, an individual and as personal representative and successor in interest of the Estate of Richard Boulanger along with the Estate of Richard Boulanger (collectively, "Plaintiffs") brings this wrongful death action against -13: 18-cv-02557-BEN-LL Dockets.Justia.com 1 2 3 4 5 6 Defendants COUNTY OF SAN DIEGO, a municipal Corporation; SherriffBILL GORE individually and in his official capacity as Sherriff for the County of San Diego; KEVIN KAMOSS, in his individualand official capacity; STANLEY DIXON, in his individual and official capacity; JOSEPH REYES, in his individual and official capacity; and JAMES PARENT, in his individual and official capacity (collectively, "Defendants"). ECFNo. 55. ___ 7_ _ ~-Before the_CourLis-Defendants'-Motion-to-Dismiss-and-Strike-J>-laintiffs'---Sec0nd- - -~ 8 Amended Complaint (the "Motion"). ECF No. 56. Plaintiffs opposed. ECF No. 59. 9 Defendants filed a reply brief. ECF No. 63. The Court also considers the Joint Motion 1O to Dismiss Defendants Brett Germain and Michael Pacheco with prejudice. ECF No. 61. 11 The motions were submitted on the papers without oral argument pursuant.to Civil 12 Local Rule 7.l(d)(l) and Rule 78(b) of the Federal Rules of Civil Procedure ("FRCP"). 13 ECF No. 64. After considering the papers submitted, supporting documentation, and l4 applicable law, the Court GRANTS the Joint Motion as well as Defendants' Motion t_o l5 Dismiss the Second Amended Complaint without leave to amend. 16 II. 17 BACKGROUND A.. Statement of Facts 1 18 19 20 21 22 23 24 25 26 27 28 The majority of the facts set forth are taken from the operative complaint, and for purposes of ruling on Defendants' motion to dismiss, the Court assum.es the truth of the allegations pied and liberally construes all allegations in favor of the non-moving party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Additional facts were also taken from Plaintiff's Ex Parte Motion for Order Appointing Cavanaugh. ECFNo. 20; see Rosen v. Uber Techs., Inc., 164 F. Supp. 3d 1165, 1171 (N.D. Cal. 2016) (providing that "[f]or purposes of a Rule 12(b)(6) motion ...the court can [also] 'augment' the facts and inferences from the body of the complaint with 'data points gleaned from documents incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial notice"'); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) ("Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document on which it relied"); United States v. Wilson, 631 F.2d 118, 119 (9th Cir.1980) (providing that "a court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases"). -23: 18-cv-02557-BEN-LL 1 2 3 4 This case arises out of the death of Richard Boulanger ("Decedent" or "Mr. Boulanger") on February 14, 2016 in the San Diego County Central Jail ("SDCCJ"), at the age of 51 years old. Second Amended Complaint, ECF No. 55 ("SAC") at 12-15; ECF No. 20 at 9, ,r,r 2-4. His son, Shane Cavanaugh ("Mr. Cavanaugh"), as administrator of 5 Mr. Boulanger's estate, brings this action both on Mr. Boulanger's behalf as his personal 6 representative as well as on behalf of himself as Mr. Boulanger's heir. Id. at 3:1-5. The _ __._____:7_ -record-indicat€s -Mr~Boulanger-died-intestate-and-had-at-least-one-other-ehild:--Besiree- - ·_J. 8 Boulanger. Declaration of Shane Cavanaugh, ECF No. 20 at 9-10. This is significant, as 9 will be seen later. 10 On February 9, 2016, Mr. Boulanger was arrested for a non-violent crime and placed 11 in the San Diego County Central Jail ("SDCCJ"). SAC at 7: 19-23. At the time of his 12 arrest, Mr. Boulanger was a known opiate user and suffering from withdrawal symptoms. l3 Id. at 7:21-23. During the booking process, Mr. Boulanger (1) tested positive for narcotics, 14 including cocaine and heroin; (2) "told jail staff' he used heroin and drank alcohol on a l5 daily basis; (3) was observed as experiencing withdrawal symptoms; (4) was noted as 16 having a history of mental illness; and (5) was provided medication for his withdrawal 17 symptoms. Id. at 7:24-8:3. Later, Mr. Boulanger was placed in jail cell 4B 1 "FOUR- 18 BAKER." Id. at 8:4. 19 On February 12, 2016, at 5:19 p.m., Defendant Deputy Joseph Reyes ("Deputy 20 Reyes") performed a soft count,2 which is required by the San Diego County Sheriffs 21 Detention Policy. 3 SAC at 17:7-17. Video surveillance shows Deputy Reyes closing Mr. 22 23 Boulanger' s cell door and walking past the next four cells without stopping or peering into 24 2 According to the complaint, a soft count "is an inmate count that 'verifies each 25 inmate's well-being through verbal or physical acknowledgement from the inmate."' SAC at 15:15-20. These "[s]oft counts are specifically to show there is proof oflife." Id. at 16:8. 26 3 Sheriffs Detentions Policy 1.43, INMATE COUNT PROCEDURE, "establishes a 27 uniform procedure for physically counting and verifying the well-being of all inmates" by requiring detentions staff to verify "each inmate's well-being through verbal or physical 28 acknowledgment from the inmate." SAC at 15:28-16:5. -33: 18-cv-02557-BEN-LL 1 the cells. Id. at 17:11-17. During the soft count at approximately 5:25 p.m., video 2 surveillance shows Deputy Reyes "walking up to each cell and peering in for 3 approximately 1 second before proceeding to the next cell." Id. at 17:18-21. SDCCJ's 4 Green Sheet Policy requires .that soft counts are "conducted at the beginning and end of 5 [e]very shift, and that a printed Operations Report (Count Sheet) is utilized while 6 conducting these 'Soft Counts."' Id. at 16:12-17. At 6:00 p.m., at the end ofDeputy Reyes' - -7---1. -shift,suFVeiHanee-vide0-als0·sh0ws-him-performing-a-security-chedc{also-krrown as a neacl 8 count), rather than a soft count, by peering into each cell for only one second and without 9 lO consulting paperwork. Id. at 17:26-18:4; see also Defendants' Opposition to Plaintiffs' Motion for Leave to File Second Amended Complaint, ECF No. 35-1 at 14. 11 That same day, at an unknown time, Deputy James Parent ("Deputy Parent") was 12 stationed in the watchtower and "took over watch" for approximately one hour for a deputy 13 working before Defendant Deputy Stanley Dixon ("Deputy Dixon") started his shift. SAC l4 at 13:25-28. While Deputy Parent was filling in for the deputy, he muted the Emergency l5 Intercom System. Compare SAC at 11 :22-25 (alleging that "[w]hen DIXON started his 16 shift on February 12, 2016, he essentially walked in, turned everything off, and disregarded 17 18 all inmates and medical issues or emergencies they may have had") with SAC at 13:2514:8 (pleading that "[jJ]rior to DIXON starting his shift," Deputy Parent chose "to not 19 perform any of his duties correctly, ie muting the Emergency Intercom System to shut out . 20 inmate calls for help and/or immediate assistance"); id. at 14:4-20 (alleging that "DIXON 21 and/or PARENT intentionally manipulated the emergency intercom system"); ECF No. 22 35-1 at 14 (noting in the County of San Diego Citizens' Law Enforcement Review Board 23 ("CLERB"), that "Deputy 1 ... reported that sometime prior to his shift, the audio alert 24 function of the inmate intercom system had been muted, with the volume turned all the 25 way down"). 4 However, Sheriffs Detentions Policy I.I requires alarm buttons in inmate 26 27 28 4 Although there are conflicting allegations as to who muted the intercom, where the allegations ofa complaint conflict, the Court is not required to accept those aUegations as true, Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998), and the -43:18-cv-02557-BEN-LL 1 cells to be connected to a central control area to ensure constant monitoring of the alarms 2 with appropriate, timely assistance dispatched to the scene of any alarm. SAC at 9:16-27. 3 Also, on February 12, 2016, at an unknown time likely between 5:30 p.m. and 6:00 4 p.m., 5 Mr. Boulanger's cellmate woke up to find Mr. Boulanger hanging from the bunk 5 bed with what appeared to be a rope fabricated from a sheet around Mr. Boulanger's neck. 6 SAC at 8:5-9; ECF No. 35-1 at 13-14. Mr. Boulanger's cellmate called for help four to ten ____7__ --times-using~an-inten::omsystem-in-eaeh-eeH,-butno-one-responded-;--S-A:E:-at-8:lOccl8-:---A:fter ,____, 8 no one responded to the calls via the intercom, the cellmate started banging on the doors 9 10 11 majority of Plaintiffs' own allegations, SAC at 14:4-8, along with the CLERB Report, which the Court takes judicial notice of as a public record, Wilson, 631 F.2d at 119, indicate 12 Deputy Parent, rather than Deputy Dixon, muted the intercom. 13 5 The SAC does not allege whether Mr. Boulanger's death took place while Deputy Reyes was working. However, the reasonable inference is that at 6:00 p.m., a shift change 14 took place. See SAC at 17:26-27 (pleading that "[s]urveillance video from the 6:00 end of 15 shift count documents REYES walking"); id. at 13:25 (noting that "[p]rior to DIXON starting his shift," Deputy Parent took over watch for the deputy working before Deputy 16 Dixon); id. at 10:21-24 (alleging that "[v]ideo surveillance shows ... inmates ... banging 17 on their cell door until deputies discovered Boulanger randomly during an opening shift count); id. at 11:12-13 (alleging that Deputy Dixon "described how he was informed of 18 Boulanger's emergency," indicating he was working at the time Mr. Boulanger was 19 discovered, although not necessarily when he first attempted suicide). Thus, the Court finds a reasonable inference is that at 6:00 p.m., a shift change occurred, and Deputy Dixon 20 came on shift while Deputy Reyes ended his shift. See id. at 17:26-27, 13:25, 10:21-24, 21 11:12-13. Further, if Deputy Dixon was working when Mr. Boulanger was discovered, another reasonable inference is that Deputy Reyes was no longer working at that time. Id. 22 The SAC and CLERB also indicate that after Mr. Boulanger attempted suicide, it took 23 somewhere between 10 to 30 minutes to discover his body. SAC at 8:21-23, 9:1-4, 11 :1421; ECF No. 35-1 at 14. As a result, if Mr. Boulanger's body was discovered during the 24 opening shift count for the 6:00 p.m. shift, and it took 10 to 30 minutes to discover his 25 body, another reasonable inference is that Mr. Boulanger attempted suicide somewhere between 5:30 p.m. and 6:00 p.m., and his body was discovered sometime between 6:00 26 p.m. and 6:30 p.m. As pled, however, Mr. Boulanger's time of death is unknown, and the 27 SAC does not allege that Deputy Dixon was working at the time Mr. Boulanger was discovered. See generally SAC. That this is not clearly pled in the SAC is indicative of 28 the insufficiency of the factual allegations in the SAC. -53:18-cv-02557-BEN-LL 1 of his cell. Id. at 8:19-21. Somewhere between 10 to 30 minutes 6 passed before Deputies 2 Michael Pacheco and Brett Germain "randomly discovered" Mr. Boulanger during an 3 4 5 6 opening shift count. See SAC at 10 :21-24. Deputies Pacheco and Germain notified Deputy Dixon, who was working at the watchtower, by radio that Mr. Boulanger had hung himself. Id. at 8:21-23, 9:1-4, 11:14-21. It was not until that point in time that Deputy Dixon discovered the intercom had been muted. See id. at 11:15-21 ("once they ... got there ... 7~ and1t passeclword tlrrough tne raaio that we got a hanger, llien I was li e o ay, et me 8 check, make sure to see if anybody called ... that's when I seen something kind of flashing 9 and all that ... that's when I knew"). 10 As soon as they discovered Mr. Boulanger's body, deputies temporarily resuscitated 11 and revived Mr. Boulanger, and he was transported to UCSD Medical Center. SAC at 9:5- 12 8. However, on February 14, 2016, two days later, Mr. Boulanger developed multisystem 13 failure and died. Id. at 9:8-19. 14 Plaintiffs assert that Defendants violated Mr. Boulanger's rights by, inter alia, 15 failing to ( 1) keep him in a safe and secure environment where he could be kept free from 16 injury, harm, and death and (2) provide him with adequate medical care and attention, in 17 violation of the Fourth, Eighth, and Fourteenth Amendments to the United States 18 Constitution. See ECF. No. 17. Plaintiffs further allege that Defendants' (1) deliberate 19 indifference to Mr. Boulanger' s serious medical needs violated Mr. Boulanger's civil rights 20 and (2) "failure to train, supervise and/or take other measures at the Central Jail to prevent 21 the conduct that caused the untimely and wrongful death of Richard Boulanger deprived 22 Plaintiffs of their liberty interest in the parent-child relationship in violation of their 23 24 substantive due process rights as defined by the First and Fourteenth Amendments to the 25 6 26 27 28 Compare at SAC at 8:21-23, 9:1-4, 11:14-21 (alleging that "[i]t took over a halfhour before any deputies arrived") with ECF No. 35-1 at 14 (noting in the CLERB Report that "[p]er the cellmate's account, it took approximately 10 to 20 minutes before deputies arrived"). Although for purposes of a motion to dismiss, the Court must construe all facts in the light most favorable to Plaintiffs, the Court may also take judicial notice of inconsistent facts in the record. Wilson, 631 F .2d at 119. -63: 18-cv-02557-BEN-LL 1 United States Constitution." SAC at 30:27-31 :8. 2 3 4 5 6 Mr. Boulanger's death certificate indicates that the immediate cause of death was (a) acute diffuse anoxic/ischemic encephalopathy,7 but the certificate instructed the individual completing it to "[e]nter the chain of events that directly caused death," and as such, (b) resuscitated cardiac arrest and (c) ligature hanging were also listed. ECF No. 20 at 16. When asked to describe how the injury occurred, the certificate states "HANGED - - 7- · SEtF-WITl'I STRIPs-oF-SHEETATTACHED-TO73EU-PUI:E"7a. at 16. Manner of 8 death is listed as "suicide," on February 12, 2016, with the hour listed as unknown. Id. 9 B. Procedural History 10 On February 9, 2018, Plaintiff filed this lawsuit against Defendants County of San 11 Diego and Sheriff William Gore ("Sheriff Gore") in the San Diego Superior Court, 12 alleging causes of action for violation of his civil rights pursuant to 42 U.S.C. § 1983 for 13 (1) violation of Plaintiffs Eighth and Fourteenth Amendment rights; (2) deliberate 14 15 indifference to the decedent's medical needs; (3) wrongful death; (4) loss of familial relationship; (5) pain and suffering (survival action); and (6) Monell municipal liability'. 16 17 See Notice of Removal, ECF No. 1-4. 18 served with the complaint, ECF No. 10 at 2:4-5, and on March 22, 2018, they filed an 19 answer, ECFNo. 4 at 33-37. However, on November 8, 2018, Defendants County of San 20 Diego and Sheriff Gore filed a Notice of Removal, removing this case to the Southern 21 District of California. ECF No. 1. On December 4, 2018, Defendants filed their Answer. 22 23 ECF No. 3. On December 5, 2018, Plaintiffs filed a Motion for Remand, ECF No. 4, On February 27, 2018, Defendants County of San Diego and Sheriff Gore were 7 24 25 26 27 28 Anoxic brain injury is an injury caused by a lack of oxygen. See June Mary Zekan Makdisi, Nutrition and Hydration Under Ohio's Dpah: Judicial Misconstruction Threatens the Right to Choose Death with Dignity, 38 Clev. St. L. Rev. 279,289 (1990) ("Anoxia is a condition where the oxygen supply has been cut off, such as when respiration ceases or the heart stops pumping blood through the lungs and to the brain."). Similarly, hypoxic ischemic encephalopathy is defined as "generally permanent brain injury resulting from a lack of oxygen or inadequate blood flow to the brain." Hypoxic Ischemic Encephalopathy, Stedmans Medical Dictionary, 289320, (2014). -73: l 8-cv-02557-BEN-LL 1 2 3 4 5 6 8 9 which this Court denied on July 16, 2019, due to the case involving federal claims under 42 U.S.C. § 1983, ECF No. 10. On August 25, 2019, Plaintiffs filed their first motion to amend the complaint, which included the same claims but sought to add Defendants Kevin Kamoss, Michael Pacheco, Brett Germain, Stanley Dixon, and Joseph Reyes as defendants as well as plead additional facts. ECF No. 17. The following day, on August 26, 2019, Plaintiff also filed an Ex Parte ·Mutiun~to~AppoinLPlatntiff ShaneCavanaugli as Successor-m-Interest to tlieEstate o f ~... Richard Boulanger, noting he had discovered he had a half-sister, Desi.ree Boulanger, with whom he could no longer get in contact. ECF No. 20 at 8-11 (declaring his father died lO 11 intestate). On October 10, 2019, this Court granted both motions. ECF Nos. 29, 30. 12 13 the same six claims for relief, adding the aforementioned defendants, and demanding a jury trial. ECF No. 31. A mere week after filing the FAC, Plaintiff filed a Motion for leave to 14 file a Second Amended Complaint ("SAC"), seeking to plead additional factual allegations 15 as well as add two new parties: Deputy William Zepeda and Deputy James Parent. ECF 16 No.32atl:18-24. On October 17, 2019, Plaintiff filed the First Amended Complaint ("FAC") alleging 17 Meanwhile, on October 31, 2019, Defendants County of San Diego, Sheriff Gore, 18 Kevin Kamoss, Michael Pacheco, Brett Germain, Stanley Dixon, and Joseph Reyes filed a 19 20 Motion to Dismiss the FAC, or in the alternative, to strike portions thereof. ECF No. 33. 21 Motion for Leave to File the SAC and (2) denied Defendants' Motion to Dismiss the F AC 22 as moot (due to the Court's decision to allow Plaintiffs to file the SAC). ECF No. 54. The 23 Court allowed Plaintiffs to add Deputy Parent as a defendant but did not permit Plaintiffs 24 to add Deputy Zepeda as a defendant due to his death before being named in the lawsuit. 25 Id. at 13:1-6. On August 24, 2020, this Court (1) granted in part and denied in part Plaintiffs 26 On August 31, 2020, Plaintiffs filed the operative complaint, the SAC, against 27 28 Defendants County of San Diego, Sheriff Gore, Kevin Kamoss, Michael Pacheco, Brett -83: l 8-cv-02557-BEN-LL 1 2 3 4 Germain, Stanley Dixon, Joseph Reyes, and James Parent, alleging claims for reliefil arising under 42 U.S.C. § 1983 for: (1) wrongful death; (2) deliberate indifference to Decedent's medical needs; (3) loss of familial relationship/loss of association; (4) failure to properly train; (5) Monell entity liability; and (6) a survival action. ECF No. 55. 5 On September 14, 2020, Defendants filed a Motion to Dismiss the SAC and Strike 6 Portions thereof pursuant to Rule 12(b)(6) and (f). ECF No. 56. On September 28, 2020, 1- ·~Plainfiffsfilecrth:e1r oppositiori~CF~~59~-on October 9~2U2U~Defendants filecl their 8 reply brief. ECF No. 63. 9 On September 28, 2020, Defendants also filed an Ex Parte Motion to Continue or 1O Vacate All Remaining Pre-Trial Motion Deadlines and Mandatory Settlement Conference 11 Dates While Defendants' Motion to Dismiss is Pending. ECF No. 58. On September 29, 12 2020, Plaintiffs opposed this Ex Parte. ECF No. 60. On October 5, 2020, Magistrate Judge 13 Linda Lopez granted in part and denied in part Defendants' Ex Parte Motion, which 14 ordered, inter alia, that (1) all pretrial motions be filed by November 9, 2020, and (2) the 15 16 pretrial conference would take place on March 8, 2021. ECF No. 62. 17 Dismiss Defendants Pacheco and Germaine from this lawsuit. ECF No. 61. 18 III. On October 5, 2020, Plaintiffs and Defendants also submitted a Joint Motion to LEGAL STANDARD 19 A. Motion to Dismiss 20 Under FRCP 12(b)(6), a complaint must be dismissed when a plaintiff's allegations 21 fail to set forth a set of facts which, if true, would entitle the complainant to relief. Bell 22 23 8 24 25 26 27 28 Plaintiffs' SAC uses the term "cause of action." This Court will refer to Plaintiffs' "causes of action" as "claims for relief." Nagrampa v. Mai/Coups, Inc., 469 F.3d 1257, 1264-70, n. 2 (9th Cir. 2006) (providing that "[a] 'cause of action' under California law is equivalent to a 'claim' under federal law, although the California system is based upon the old code pleading system, ... [u]nder the federal system, 'the word "claim" denotes the allegations that give rise to an enforceable right to relief'"); see also FED. R. Crv. P. 8 (requiring a pleading to contain "a short and plain statement of the claim showing that the pleader is entitled to relief'). -93: l 8-cv-02557-BEN-LL 1 At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 679 2 (2009) (holding that a claim must be facially plausible to survive a motion to dismiss). The 3 pleadings must raise the right to relief beyond the speculative level; a plaintiff must provide 4 "more than labels and conclusions, and a formulaic recitation of the elements of a cause of 5 action will not do." Twombly, 550 U.S. at 555 (citing Papasan v, Allain, 478 U.S. 265, 6 286 (1986)). On a motion to dismiss, a court accepts as true a plaintiff's well-pleaded ____7_. _factuaLallegations-and-constmes-all-faetual-inferenees-in-the-light-most-favorable-to-the- 8 plaintiff. See Manzarekv. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 9 2008). A court is not required to accept as true legal conclusions couched as factual 10 allegations. Iqbal, 556 U.S. at 678. 11 "Generally, unless the court converts the Rule 12(b)(6) motion into a summary 12 judgment motion, it cannot consider material outside the complaint (e.g., facts presented 13 in briefs, affidavits or discovery materials)." Phillips & Stevenson, California Practice 14 Guide: Federal Civil Procedure Before Trial § 9:211 (The Rutter Group April 2020). 15 Thus, in evaluating a Rule 12(b)(6) motion, review is ordinarily limited to the contents of 16 the complaint and material properly submitted with it. 17 Network, Inc., 284 F.3d 977,980 (9th Cir. 2002);Hal Roach Studios, Inc. v. Richard Feiner 18 & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Under the incorporation by 19 reference doctrine; the court may also consider documents "whose contents are alleged in 20 a complaint and whose authenticity no party questions, but which are not physically 21 attached to the pleading" without converting a motion to dismiss to a motion for summary 22 judgment. Branch v. Tunnell, 14 F.3d 449,454 (9th Cir. 1994), overruled on other grounds 23 by Galbraith v. Cnty. ofSanta Clara, 307 F.3d 1119, 1121 (9th Cir. 2002). The court may 24 treat such a document as "part of the complaint, and thus may assume that its contents are 25 true for purposes of a motion to dismiss under Rule 12(b)(6)." United States v. Ritchie, 26 342 F.3d 903, 908 (9th Cir. 2003). "Plaintiffs may plead themselves out of court by 27 attaching exhibits inconsistent with their claims because the court may disregard 28 contradictory allegations." Phillips, § 9:212a; Johnson v. Fed. Home Loan Mortg. Corp., Van Buskirk v. Cable News -103:18-cv-02557-BEN-LL - 1 793 F.3d 1005, 1007-08 (9th Cir. 2015) (noting that courts "need not accept as true 2 allegations contradicting documents that are referenced in the complaint"). 3 also consider any statements made in a pleading or motion, including concessions made in 4 plaintiffs response to the motion to dismiss as well as in response to any other pleading or 5 motion. FED. R. CIV. P. l0(c). 6 Courts may When a motion to dismiss is granted, the court must decide whether to grant leave -~~7 . to amend~The_Ninth_Circ_Uit_has_aJiheraLpolicy_fay:oring_amendments,-and-thus,Jea¥e-to-.<-------' 8 amend should be freely granted. See, e.g., DeSoto v. Yellow Freight System, Inc., 957 F.2d 9 655, 658 (9th Cir. 1992). However, a court need not grant leave to amend when permitting 10 a plaintiff to amend would be an exercise in futility. See, e.g., Rutman Wine Co. v. E. & J 11 Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) ("Denial ofleave to amend is not an abuse 12 of discretion where the pleadings before the court demonstrate that further amendment 13 would be futile."). 14 B. Motion to Strike 15 FRCP 12(£) allows a court to "strike from a pleading an insufficient defense or any 16 redundant, immaterial, impertinent, or scandalous matter." Immaterial matters are "those 17 which ha[ve] no essential or important relationship to the claim for relief or the defenses 18 being pleaded." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on 19 other grounds, 510 U.S. 517 (1994) (internal quotation marks omitted). Impertinent 20 matters "do not pertain, and are not necessary, to the issues in question." Id. (internal 21 quotation marks omitted). 22 The purpose of a Rule 12(f) motion "is to avoid the expenditure of time and money 23 that must arise from litigating spurious issues by dispensing with those issues prior to trial." 24 Whittles tone, Inc. v. Handi-Craft Co., 618 F .3d 970, 973 (9th Cir. 2010) (internal quotation 25 marks omitted). "Motions to strike are generally disfavored and 'should not be granted 26 unless the matter to be stricken clearly could have no possible bearing on the subject of the 27 litigation."' Lu:x:ul Tech. Inc. v. NectarLu:x:, LLC, 2015 WL 4692571, at *3 (N.D. Cal. Aug. 28 6, 2015) (quoting Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. -113: 18-cv-02557-BEN-LL 1 Cal. 2004)). The decision to grant a motion to strike ultimately lies within the discretion 2 of the trial court. Rees v. PNC Bank, N.A., 308 F.R.D. 266, 271-72 (N.D. Cal. 2015) (citing 3 Whittlestone, 618 F.3d at 973). 4 IV. DISCUSSION 5 Defendants move to dismiss Plaintiffs SAC under FRCP 12(b)(6) and (t). 6 Defendants argue for dismissal of the SAC by contending that (1) as to Defendants ~ - - -7- ·-Ranmss,Reyes, and Dixon,PHunttffs'-allegat10ns, even 1f assumed true, do not amount to 8 a violation of Mr. Boulanger' s constitutional rights, and in .the absence of a violation of a 9 constitutional right, a case brought pursuant to 42 U.S.C. § 1983 ("Section 1983") will fail 1O as a matter of law; (2) if Deputies Reyes and Dixon-the individuals who Plaintiffs allege 11 were improperly trained and supervised-never violated Mr. Boulanger's constitutional 12 rights, there can be no claims against Sheriff Gore, Lieutenant Kamoss, and the County of 13 San Diego for improperly training or supervising them; (3) even if Plaintiffs could establish 14 Defendants violated Mr. Boulanger's constitutional rights, Defendants are entitled to 15 qualified immunity; and (4) Plaintiffs fail to set forth a county-wide policy of violating 16 constitutional rights in order to establish liability against the County of San Diego given 17 the SAC alleges the actions Plaintiffs take issue with violated county policy, and as such, 18 could not possibly have been the policy. Motion, ECF No. 56-1 at 8:3-9: 13. 19 Defendants also ask the Court to strike ( 1) the claims against Lieutenant Kamoss and 20 Sheriff Gore (collectively, the "Supervisory Defendants") in their official capacity (as 21 opposed to their individual capacity) as duplicative, Mot. at 19:9-11, (2) paragraphs 148, 22 150-152, and 155-156, alleging "a litany of systematic deficiencies not relevant to the 23 allegations in the SAC or the circumstances that led to Mr. Boulanger's suicide," id. at 24 24: 19-25:9, and (3) the first and sixth claims for relief as duplicative of the second, third, 25 fourth claims for relief, id. at 26:17-28. 26 In their Opposition to the Motion, Plaintiffs spend the first five pages of the 27 opposition, rather than addressing the merits of the Motion, copying and pasting 28 -123: l 8-cv-02557-BEN-LL 1 2 3 4 5 6 ~. \ approximately two pages of this Court's previous orders 9 while using the other three pages to criticize Defendants and discuss statistics on jailhouse suicides. See generally Opposition, ECF No. 59 at 10-14. Instead of setting forth case law supporting why their factual allegations state a claim for relief under Section 1983, Plaintiffs spend another more than four pages copying and pasting the very same factual allegations sections from the SAC that Defendants contend inadequately state a claim for relief. Id. at 15-19. When ·-P.laintiffs-finally aclclress-the-merits,they-argue-that-''fijt-is-obvious-that-Richard-Bouhm~~ 8 9 had serious medical needs," id. at 20:4, and "[t]he SAC adequately alleges facts to satisfy all Gordon elements," id. at 25:11-13. However, Plaintiffs' Opposition cites no analogous 1O binding case law holding deputies liable for inadequate monitoring resulting in delayed 11 medical care to an inmate after a suicide attempt where there are no allegations that the 12 deputies monitoring the inmate knew the inmate was at risk of suicide. See generally Oppo. 13 Plaintiffs also conclusorily argue that (1) their third claim for relief for loss of familial 14 15 relationship is adequately pied, Oppo. at 26:1-6, (2) "[t]he SAC sufficiently alleges GORE and KAMOSS failed to train and failed to supervise their deputies," id. at 28:1-2, (3) 16 Defendants are not entitled to qualified immunity because they "knew or should have 17 known ofBoulanger's serious medical needs during his stay," id. at 31:13-15, (4) "it is 18 plausible to conclude that the facts stated in the SAC, paired with CLERB's findings, are 19 more than sufficient for a valid Monell claim, id. at 34:6-8, and (5) the wrongful death and 20 21 survival actions are not duplicative, and as such, should not be stricken, id. at 34:9-20. 9 22 23 24 25 26 27 28 Plaintiffs argue that "[r]eading between the lines [of the Court's order on Defendant's Motion to Dismiss the FAC], and taking all of Section 2(B) of the Court's ORDER into context, Plaintiffs interpret the Court's explanation in Section 2(B) to direct Defendants that a Motion to Dismiss should not be filed again and/or would be denied." ECF No. 59 at 12:5-8. However, in the order Plaintiffs refer to, the Court denied the previous motion to dismiss as moot based on its decision to grant Plaintiffs leave to file an amended complaint. ECF No. 54 at 12. Thus, contrary to Plaintiffs' argument, the Court's previous order contained no language prohibiting a motion to dismiss subsequent complaints, and instead, merely denied the previous motion to dismiss as moot due to the Court's decision to allow Plaintiffs to file a new amended complaint. Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). -133:18-cv-02557-BEN-LL 1 2 3 4 5 6 In their reply brief, Defendants first, clarify that their position as to the wrongful death and survival claims is not that they are identical to one another-as Plaintiffs alluded to in their Opposition, but rather that a wrongful death claim is not cognizable under Section 1983 while the survival claims are duplicative of Plaintiffs' second, fourth, and fifth claims brought under Section 1983. Reply, ECF No. 63 at 2:16-3:9. Second, Defendants point out that "Plaintiffs' allegations surrounding Mr. Boulanger's 'serious · meclical neeo' have never been clear," ana~Plaintiffs now try to argue he had a known 8 9 10 11 suicide risk by stating facts in their opposition not contained in the SAC. Id. at 3:11-4:12. Third, Defendants argue that while Plaintiffs argue Defendants were deliberately indifferent, the SAC actually "pleads that as soon as Defendants learned Mr. Boulanger attempted suicide, Deputies took appropriate action to provide him with care." Id. at 4:20- 12 21. They further point out that (1) Plaintiffs' allegations as to who turned off the intercom 13 system are inconsistent, id. at 6:15-25, and (2) while Plaintiffs allege Deputy Reyes 14 "conducted a procedurally improper end-of-shift inmate check at 6:00 p.m.," Plaintiffs fail 15 to "allege that Mr. Boulanger was experiencing medical distress at that point (or at any 16 17 point prior) ... while Deputy Reyes was present or working at all," id. at 7:5-9. Thus, Defendants argue that Plaintiffs' allegations against Defendants, at most, sound in 18 negligence, which does not meet the standard for deliberate indifference. Id. at 7:15-24. 19 Fourth, Defendants argue that the Court should grant their request that all of Plaintiffs' 20 claims against the individual defendants in their official capacities be dismissed or stricken 21 as "duplicative of Plaintiffs' claims against the County" because Plaintiffs failed to address 22 that argument in their Opposition. Id. at 8:1-15. Fifth, Defendants note that "[a]lthough 23 Plaintiffs' opposition contains multiple pages setting forth the qualified immunity standard, 24 Plaintiffs fail to identify a single case (let alone controlling precedent) involving a 25 constitutional violation by jail deputies (or their supervisors) facing sufficiently similar 26 circumstances." Id. at 9:18-26. Thus, Defendants argue Plaintiffs have not met their 27 burden of identifying controlling "clearly established law" to defeat Defendants' 28 entitlement to qualified immunity. Id. at 10:1-3. Sixth, Defendants point out that -143: 18-cv-02557-BEN-LL 1 2 3 4 5 6 7 8 9 "Plaintiffs concede that if no individual Defendants violated Mr. Boulanger's constitutional rights, then all of Plaintiffs' municipal civil-rights claims are moot." Id. at 10:6-9 (citing ECF No. 59 at 31 :23-26). They also argue that while Plaintiffs argue in their Opposition that the County maintained an unconstitutional policy that allowed deputies and medical staff to deny medical care to inmates, the SAC "affirmatively alleges that Defendants acted contrary to express County policy," meaning that Plaintiffs' own allegations "defeattheir unsupporte accusation that a County policy directed the individual Defendants to violate the Constitution." Id. at 10:14-24. Defendants conclude by noting that Plaintiffs never allege any of the deputies knew Mr. Boulanger was in any 1O type of medical distress until he was discovered, at which time, he was given medical care. 11 Reply at 11 :5-16. 12 Plaintiffs have pied the bare elements of a claim for relief under Section 1983. The 13 . problem lies in the fact that since the Supreme Court's decision in Twombly in 2007, a 14 plaintiff must provide "more than ... a formulaic recitation of the elements of a cause of 15 action." 550 U.S. at 555. Here, Plaintiffs' SAC fails for several reasons: First, Plaintiffs' 16 own inconsistent allegations make the constitutional violations they allege implausible. 17 Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir.), opinion amended on 18 denial of reh'g, 275 F.3d 1187 (9th Cir. 2001) ("We have held that a plaintiff can-as 19 Sprewell has done here-plead himself out of a claim by including unnecessary details 20 contrary to his claims."); see also Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295- 21 96 (9th Cir. 1998) ("[W]e are not required to accept as true conclusory allegations which 22 are contradicted by documents referred to in the complaint."). Second, to the extent that 23 Plaintiffs' wrongful death and survival actions are state law claims, Plaintiffs never alleged 24 compliance with California's Government Claims Act. 25 improperly appointed as successor-in-interest, and until he can submit an amended 26 affidavit, he may not properly pursue claims on behalf of the estate. Third, Mr. Cavanaugh was 27 In sum, this Court grants Defendants' Motion to dismiss the SAC because, as 28 analyzed below, as pied, Plaintiffs' claims fail as a matter oflaw. Because the facts of this -153:18-cv-02557-BEN-LL 1 case indicate that Plaintiffs' legal theories fail, and Plaintiffs' three attempts at pleading 2 the claims have still not produced a viable complaint, the Court also denies leave to amend. 3 A. 4 "Every person who, under color of any statute, ordinance, regulation, custom, or 5 usage, of any State ... subjects, or causes to be subjected, any citizen of the United States 6 ... to the deprivation of any rights, privileges, or immunities secured by the Constitution Plaintiffs' Motion to Dismiss Claims Under Section 1983 1ll1d~laws, slraltbeliableto the party mJured in an action at law." 42 U.S.C. § 1983. Thus, 8 to state a claim under Section 1983, a plaintiff must allege (1) the violation of a right 9 secured by the Constitution and laws of the United States and (2) that the alleged 10 deprivation was committed by a person acting under color of state law. Id.; see also West 11 v. Atkins, 487 U.S. 42, 48 (1988); Belgau v. lnslee, 975 F.3d 940 (9th Cir. 2020). "Section 12 1983 'is not itself a source of substantive rights,' but merely provides 'a method for 13 vindicating federal rights elsewhere conferred."' Albright v. Oliver, 510 U.S. 266, 271 14 (1994). 15 Here, Plaintiffs' SAC, upon first glance, pleads (1) violation ofa constitutional right 16 and (2) state action. However, as analyzed further, although Plaintiffs have met the initial 17 hurdle of pleading the requisite elements, those allegations, when considered together as 18 well as under the relevant law fail to state plausible claims for relief. 19 1. Deprivation ofa Constitutional Right 20 "The first step in any such [1983] claim is to identify the specific constitutional right 21 allegedly infringed." Albright, 510 U.S. at 271. As to the first prong, the SAC alleges 22 violations of (1) Mr. Boulanger's First, Fourth, Eighth, and Fourteenth Amendment rights, 23 SAC at 23:24-24:8, 31: 1-8, and (2) Mr. Cavanaugh's rights "to the society and 24 companionship of his son [sic] which is protected by the substantive due process clause of 25 the Fourteenth Amendment," id. at 31: 14-18. Thus, on first glance, Plaintiffs have pied a 26 violation of constitutional rights; however, the Court analyzes whether those allegations 27 create a plausible claim for relief belief. 28 First, the Court notes that Plaintiffs make allegations of violations under the First -163:18-cv-02557-BEN-LL 1 2 3 4 and. Fourth Amendment. SAC at 23:27-28. However, the Court disregards these allegations because Plaintiffs set forth no factual allegations which would support a plausible theory of liability for violation of the (1) First Amendment rights to freedom of religion, speech, press, and assembly/petition and/or (2) Fourth Amendment rights to be 5 free from unreasonable searches and seizures. Compare U.S. CONST. amends. I and IV 6 with SAC, ECF No. 55. Plaintiffs also allege violation of Mr. Boulanger's Eighth - 7bn1!ndment~rights, SACat 24:2-3~h:owever, as a pre-trialaetainee, lvlr~Bou anger a no 8 Eighth Amendment rights. Compare SAC at 7:18-23 (alleging Mr. Boulanger's arrest 9 only-the SAC contains no allegations of a conviction) with Mendiola-Martinez v. Arpaio, lO 11 836 F.3d 1239, 1246 n.5 (9th Cir. 2016) ("Eighth Amendment protections apply only once a prisoner has been convicted of a crime, while pretrial detainees are entitled to the 12 potentially more 13 Fourteenth Amendment."). 10 Thus, as currently pied, the only plausible theory of liability 14 for a violation of constitutional rights that has been adequately pied stems from the 15 violation of Mr. Boulanger' s and Mr. Cavanaugh's Fourteenth Amendment rights. 11 expansive protections of the Due Process Clause of the 16 17 18 19 20 21 22 23 24 25 26 27 28 10 In fact, pretrial detainees, like Mr. Boulanger, actually "possess greater constitutional rights than prisoners." Stone v. City & Cty. ofSan Francisco, 968 F.2d 850, 857 (9th Cir. 1992), as amended on denial ofreh 'g (Aug. 25, 1992). Thus, while prisoners may be subjected to punishment, so long as it is not cruel and unusual in violation of the Eighth Amendment, the Due Process Clause of the Fourteenth Amendment protects pretrial detainees from any punishment at all before being proven guilty. Bell v. Wolfish, 441 U.S. 520, 535 (1979) ("For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.") 11 Plaintiffs allege that "Defendant deputies deprived Richard Boulanger of his rights under the United States Constitution to be free from cruel and unusual punishment and punishment without due process." ECF No. 55 at 24:20-23. To the extent the Court liberally construes Mr. Boulanger's allegations in his favor to mean that he was subjected to any punishment at all in violation of his Fourteenth Amendment rights to Due Process, these allegations fail as well. "For a particular governmental action to constitute punishment, ( 1) that action must cause the detainee to suffer some harm or 'disability,' and (2) the purpose of the governmental action must be to punish the detainee." Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004) (citing Bell, 441 U.S. at 538). Even if Mr. Boulanger alleged that the wrongful conduct he alleges (e.g., inadequate cell checks and -173: I 8-cv-02557-BEN-LL 1 2 3 4 5 6 The Due Process Clause of the Fourteenth Amendment provides: "No State shall .. . deprive any person oflife, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. The Due Process Clause "provides heightened protection against government interference with certain fundamental rights and liberty interests." Washington v. Glucksberg, 521 U.S. 702, 720 (1997). In light of the lack of applicability of the Eighth Amendment to Mr. Boulanger, - - ~ 7~ ~p1aintiffs'7rllegedconsttmtional violations as to Mr. Boulanger's rigfits are unc ear at est. 8 However, the Court liberally construes them as a violation of his Fourteenth Amendment 9 right to be free from deprivation of life without due process of law (e.g., a procedural due lO process claim). To plead a procedural due process violation, a plaintiff must allege (1) the ll 12 plaintiff has "a liberty or property interest which has been interfered with by the State" and 13 insufficient. Ky. Dep't. of Corr. v. Thompson, 490 U.S. 454,460 (1989). Again, liberally 14 construing Plaintiffs' SAC, it alleges (1) Defendants interfered with his right to life and (2) 15 the procedures used to deprive Mr. Boulanger of his right (e.g., the inadequate cell checks 16 and muting of the intercom) were constitutionally insufficient. 17 although these allegations are only arguably adequately pied, they ultimately fail as a 18 matter of law. (2) the procedures used to deprive the plaintiff of liberty or property were constitutionally As analyzed below, 19 As to Mr. Cavanaugh, the SAC alleges that Defendants deprived "Boulanger's son, 20 Shane Cavanaugh, to the society and companionship of his son [sic] which is protected by 21 the substantive due process clause of the Fourteenth Amendment." SAC at 31 :14-18; see 22 also id. at 32:4~8 (pleading that Defendants "deprived Plaintiffs of their liberty interest in 23 the companionship and society [of] one another"). Courts have held that "a child has a 24 25 substantive due process right in her relationship with her parents which may be vindicated 26 27 28 muting the intercom) caused his harm, he has not alleged that the purpose of Defendants' government action (e.g., the inadequate cell checks and muted intercom) was to punish Mr. Boulanger. Thus, the allegations pertaining to any constitutional rights against punishment are not plausible. -183: 18-cv-02557-BEN-LL 1 2 3 4 5 6 through a Section 1983 action." MH v. Cty. ofAlameda, 62 F. Supp. 3d 1049, 1095 (N.D. Cal. 2014). Thus, these allegations pass muster on a preliminary review. 2. State Action Action under color of state law is a jurisdictional prerequisite to a Section 1983 action because the Eleventh Amendment prohibits United States citizens from suing states. U.S. CONST., AMENDMENT XI; West, 487 U.S. at 46. As such, "[n]either a state nor state ·uffrcials~actingiITth~irofth:iat capacities are 'persons' amenable to smt for damages un er 8 9 42 U.S.C. § 1983." Munoz v. Ko/ender, 208 F. Supp. 2d 1125, 1150-51 (S.D. Cal. 2002). "The traditional definition of acting under color of state law requires that the defendant in 1 O a § 1983 action have exercised power possessed by virtue of state law and made possible 11 only because the wrongdoer is clothed with the authority of state law." West, 487 U.S. at 12 49. Hence, to constitute state action, the deprivation at issue "must be caused by the 13 exercise of some right or privilege created by the State ..• or by a person for whom the 14 State is responsible." Id. Essentially, the acts of the defendant in a Section 1983 action 15 that are at issue must have been done while abusing power given to the defendant by the 16 State. Id. Thus, "[t]he purpose of§ 1983 is to deter state actors from using the badge of 17 their authority to deprive individuals of their federally guaranteed rights and to provide 18 relief to victims if such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992) 19 20 (citing Carey v. Piphus, 435 U.S. 247, 254-57 (1978)). 21 See, e.g., SAC at 29:16-25 (alleging that "[a]cting under color of law, defendants failed to 22 provide this care" and "deprive[d] the DECEDENT of urgently needed medical care in 23 violation of his rights under the Fourteenth Amendment"). As such, Plaintiffs have As to the second prong, Plaintiffs allege Defendants acted under color of state law. 24 plausibly alleged state action. 25 26 B. Plaintiffs' Second Claim for Relief for Deliberate Indifference Against Defendants Dixon, Reyes, Parent, and Kamoss. 27 Plaintiffs' second claim for relief alleges that the Defendants Joseph Reyes, Stanley 28 Dixon, James Parent, and Lieutenant Kamoss (collectively "Deputy Defendants") violated -193:18-cv-02557-BEN-LL -~ 1 Mr. Boulanger's Fourteenth Amendment right to medical care• because they "were 2 deliberately indifferent to Richard Boulanger's serious medical need, which caused harm 3 to the decedent." SAC at 27:12-14. 4 Defendants argue that even though "Plaintiffs allege that Deputy Joseph Reyes 5 performed his cell checks too quickly and that Deputy Stanley Dixon failed to hear the 6 calls made by Mr. Boulanger's cellmates because the intercom was muted, ... there is no L ~allegation-that-Mr~Boulangerwas ~in-any-form.Jf-distress~herrthe deputy tReyes] was 8 · performing his cell check." Mot. at 8: 13-19. Defendants also argue that "Deputy Dixon's 9 alleged failure to hear the intercom because it was muted is not a Constitutional violation." lO 11 Id. at 8:19-21. 12 plaintiff must allege facts showing that (1) the plaintiff has actually suffered an extreme 13 deprivation or is placed at a substantial risk of suffering a significant injury (e.g., a serious In order to establish a Section 1983 claim based on conditions of confinement, a 14 medical need) and (2) the defendants acted with a sufficiently culpable state of mind 15 (deliberate indifference). Wilson v. Seiter, 501 U.S. 294,298 (1991); May v. Baldwin, 109 16 F. 3d 557, 565 (9th Cir. 1997); see also Mot. at 11: 17-19 (citing Estelle v. Gamble, 429 17 18 U.S. 97, 105-06 (1976). 19 because Plaintiffs have failed to plead facts sufficient to create a plausible claim that 20 Defendants were deliberately indifferent under the law. 21 22 As analyzed below, this Court finds that Plaintiffs' SAC fails as a matter of law 1. Serious Medical Need Plaintiffs' Opposition conclusorily states that "[i]t is obvious that Richard Boulanger 23 had serious medical needs." Oppo. at 20:4. Defendants' reply correctly notes that 24 "Plaintiffs' allegations surrounding Mr. Boulanger's 'serious medical need' have never 25 been clear, even though the present Complaint is now Plaintiffs' third bite at the apple." 26 Reply at 3:14-16. Notably, the Court agrees with Defendants that Plaintiffs' SAC makes 27 numerous references to "Boulanger's serious medical needs" but never actually alleges 28 what that serious medical need was. SAC at 13:15, 14:11, 19:5, 26:7-8, 26:22-25. The -203: 18-cv-02557-BEN-LL 1 2 3 4 5 6 Court finds that this alone begs the question of whether Plaintiffs' third attempt at pleading their claims has failed. However, interpreting the complaint liberally and in Plaintiffs' favor, the Court reads the SAC as alleging that the serious medical need was "access to medical care" to prevent "his death." See, e.g., SAC at 19: 12-14 ("REYES was deliberately indifferent to Richard Boulanger's serious medical need" when he "disregarding the risk, delayed, denied, or obstructed Boulanger's access to medical care and thus caused his --- --7- -~death-;-''J~However,utlrer allegations inclicate the serious medical need may be suicioe ris . 8 9 10 11 See SAC at 19:9-11 (pleading that "[t]he Ninth Circuit has held that a suicide risk or an attempted suicide is a serious medical need"). Later, the SAC suggests the serious medical need was a "failure to promptly treat his noose injury." Id. at 27:7-11 (pleading that "Defendant deputies knew or should have known that Richard Boulanger' s condition was 12 serious, ... he was in significant pain, and that failure to promptly treat his noose injury 13 could result in further significant injury and unnecessary and wanton infliction of pain"). 14 "A 'serious' medical need exists if the failure to treat a prisoner's condition could 15 result in [1] further significant injury or [2] the 'unnecessary and wanton infliction of 16 pain."' McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other 17 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en bane) (quoting 18 Estelle, 429 U.S. at 104); see also Edmo v. Corizon, Inc., 935 F.3d 757, 785 (9th Cir. 19 2019), cert. denied sub nom. ID Doc., et. al. v. Edmo, No. 19-1280, 2020 WL 6037411 20 (U.S. Oct. 13, 2020) (internal quotations omitted). Such serious medical needs include the 21 (a) "existence of an injury that a reasonable doctor or patient would find important and 22 worthy of comment or treatment;" (b) "presence of a medical condition that significantly . 23 affects an individual's daily activities;" or (c) existence of chronic and substantial pain." 24 McGuckin, 974 F.2d at 1059; see also ECF No. 59 at 19:20-25. 25 "A heightened suicide risk or an attempted suicide is a serious medical need." Conn 26 v. City ofReno, 59 l F .3d 1081, 1095 (9th Cir. 2010), cert. granted, judgment vacated sub 27 nom. City of Reno, Nev. v. Conn, 563 U.S. 915 (2011), and opinion reinstated, 658 F.3d 28 897 (9th Cir. 2011). "Drug withdrawal [also] constitutes a serious medical need requiring -213: l 8-cv-02557-BEN-LL 1 2 3 4 5 6 appropriate medical care." Villarreal v. Cty. ofMonterey, 254 F. Supp. 3d 1168, 1184-86 (N.D. Cal. 2017) (citing, inter alia, Hernandez v. Cty. of Monterey, 110 F. Supp. 3d 929, 948 (N.D. Ca. 2015) ("Withdrawal is a serious and potentially deadly medical condition, with symptoms including seizures, hallucinations, agitation and increased blood pressure."). "It is not necessary, moreover, that a serious medical need imminently result in death-an attempted suicide is sufficient." Id. at 1096. However, "[t]he fact that a · ~erson-is-.-. . suffering-from mental problems more generally does not mean that officia s 8 are constitutionally required to anticipate and guard against suicide." Moriarty v. Cty. of 9 San Diego, No. 17CV1154-LAB (AGS), 2019 WL 4643602, at *7-9 (S.D. Cal. Sept. 24, lO 2019) (Burns, J.) (holding sergeant was entitled to qualified immunity where an inmate 11 committed suicide using two shirts but examination notes only indicated the individual was 12 13 homicidal, not suicidal). 14 15 serious medical need was (e;g., whether it was medical care to prevent his death, suicide prevention, or both). 12 Nonetheless, construing Plaintiffs' SAC in the light most favorable 16 to Plaintiff, the Court assumes for purposes of evaluating Defendants' Motion, that 17 Plaintiffs alleged a serious medical need (whatever that need may be). Here, the Court finds that Plaintiffs' SAC fails to adequately plead what the alleged 18 2. Deliberate Indifference 19 "Upon demonstration of a serious medical need, the plaintiff must then show that 20 the defendant's response was deliberately indifferent." J.K.J. v. City ofSan Diego, No. 19- 21 CV-2123-CAB-RBB, 2020 WL 738178, at *6-8 (S.D. Cal. Feb. 13, 2020) (Bencivenga, 22 23 J.) (citing Edmo, 935 F.3d at 785). Thus, "[a] § 1983 action premised on violation of the 24 12 25 26 27 28 Defendants argue that "Plaintiffs admitted that the medical need at issue was NOT Mr. Boulanger [sic] heightened risk of suicide," Mot. at 13:4-5, citing to Plaintiffs' Opposition to Defendants' Motion to Dismiss and Strike the First Amended Complaint, ECF No. 34 at 17:9-12; however, in Plaintiffs' Opposition, ECF No. 34 at 17:9-12, Plaintiffs state that "[t]he serious medical need in this case is Boulanger's suicide attempt." That the serious medical need is even a point of contention indicates the inadequacy of the SAC, despite it being Plaintiffs third attempt at pleading the claims at issue in this case. -223: 18-cv-02557-BEN-LL 1 2 3 4 Fourteenth Amendment for inadequate medical care requires allegations that each defendant acted with deliberate indifference to the decedent's serious medical needs." Scalia v. Cty. ofKern, 308 F. Supp. 3d 1064, 1072 (E.D. Cal. 2018). "Because pretrial detainees' rights under the Fourteenth Amendment are 5 comparable to prisoners' rights under the Eighth Amendment," courts "apply the same 6 standards." Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998); Scalia, 308 F. Supp. 3d 1- ·-a:t-10',2-."Deltberate inotfference is a nigh-legal stanaara~"~Taguchi v.T:hung, 39lr.3o 8 1041, 1060 (9th Cir. 2004), involving an examination of two elements: "(1) the seriousness 9 of the prisoner's medical need and (2) the nature of the defendant's response to that need," lO 11 McGuckin, 974 F.2d at 1059. "A defendant is deemed 'deliberately indifferent' to a 12 take reasonable measures to address the danger." Castro v. Cnty. a/Los Angeles, 797 F.3d 13 654, 666 (9th Cir. 2015). "[M]ere indifference [or] negligence ... is not enough to 14 constitute deliberate indifference." Edmo v. Corizon, Inc., 949 F.3d 489, 495 (9th Cir. 15 2020). "Even gross negligence is insufficient to establish deliberate indifference." Id. substantial risk of serious harm when he knew of the risk but disregarded it by failing to 16 With respect to pre-trial detainees, like Mr. Boulanger, in 2018, the Ninth Circuit 17 announced "that claims for violations of the right to adequate medical care 'brought by 18 pretrial detainees against individual defendants under the Fourteenth Amendment' must be 19 evaluated under an objective deliberate indifference standard." Gordon v. Cty. of Orange, 20 21 888 F.3d 1118, 1124-25 (9th Cir. 2018), cert. denied sub nom. Cty. of Orange, Cal. v. Gordon, 139 S. Ct. 794 (2019) (citing Castro v. County of Los Angeles, 833 F.3d 1060, 22 1070 (9th Cir. 2016)); cf Narcisse v. Tafesse, No. 5:16-CV-00682-EJD, 2019 WL 23 4417635, at *5 (N.D. Cal. Sept. 16, 2019) (holding that Gordon focused only on the 24 requisite state of mind for a defendant's conduct and did not eliminate the requirement that 25 plaintiffs also show the existence of a serious medical need). Under this objective standard, 26 "the elements of a pretrial detainee's medical care claim against an individual defendant 27 under the due process clause of the Fourteenth Amendment" require a plaintiff to prove (1) 28 the defendant officer made an intentional decision with respect to the conditions under -233: 18-cv-02557-BEN-LL 1 2 3 4 5 6 7 which the detainee was confined; (2) "those conditions put the plaintiff at substantial risk of suffering serious harm"; (3) "the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved-making the consequences of the defendant's conduct obvious"; and (4) "by not taking such measures, the defendant caused the plaintiffs injuries." Gordon, 888 F.3d at 1125; see also Mot. at 12:6-15 (citing the objective standard under Gordon); Oppo. at 21:4-11 (same). As analyzed below, the Court finds that Plaintiffs' SAC fails to plead facts sufficient 9 10 11 to create a plausible claim that Defendants' were deliberately indifferent under any of the Gordon factors. a. Intentional decision with respect to conditions ofconfinement 12 The first factor requires the Court to determine Defendants acted intentionally with 13 respect to Mr. Boulanger's conditions of confinement. Gordon, 888 F.3d at 1125. "For 14 instance, if the claim relates to inadequate monitoring of the cell, the question is whether 15 the officer chose the monitoring practice, rather than having just suffered an accident or 16 sudden illness that made him unable to monitor the cell." Germaine-Mciver v. Cty. of 17 Orange, No. SACV 16-01201-CJC(GJSx), 2018 U.S. Dist. LEXIS 223891, at *26-27 18 (C.D. Cal. Oct. 31, 2018). Further, "[l]iability under§ 1983 must be based on the personal 19 involvement of the defendant." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) 20 (providing that "[a] plaintiff must allege facts, not simply conclusions, that show that an 21 individual was personally involved in the deprivation of his civil rights"). 22 Plaintiffs' SAC conclusorily alleges that "Defendant deputies acted intentionally or 23 with reckless disregarded, [sic] denied, delayed, and/or interfered with Richard 24 Boulanger's receipt of medical care" and "failed to properly conduct cell checks required 25 to verify an inmate's safety and welfare." SAC at 27:15-20. These conclusory allegations 26 fail to plead facts sufficient to create a plausible claim that Defendants intentionally chose 27 the conditions of confinement (e.g., improper shift counts and muting the intercom). First, 28 the SAC itself is inconsistent as to whether Deputy Dixon or Deputy Parent muted the -243: 18-cv-02557-BEN-LL 1 2 3 4 5 6 intercom system. Given these inconsistencies showing it is unclear who actually muted the intercom system, the allegations that Deputy Dixon intentionally muted it become implausible, or at a minimum, must be disregarded. Compare SAC at 11 :22-25 with SAC at 14:4-20; see also Sprewell, 266 F.3d at 988-89 (holding that plaintiffs may plead themselves out of a claim by including details contrary to their claims); lleto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (noting that courts "do not accept any unreasonable 7- inferences or assume tlie trutli oflegal conclusions cast m the form of factual allegations.") 8 Second, as to Deputy Reyes, Plaintiffs conclusorily allege that he "was deliberately 9 indifferent to the medical needs of Boulanger, in that his approximate 1 second 'check' 10 [sic] sufficient to verify 3 inmates wellbeing." SAC at 19:5-8. However, Plaintiffs never 11 make any sort of allegation to indicate that Deputy Reyes' less than thorough shift counts 12 were the result of an intentional decision rather than mere or even gross negligence or 13 oversight. Edmo, 949 F.3d at 495. 14 Third, to the extent Plaintiffs attempt to allege that Defendants knowingly delayed 15 medical care to Mr. Boulanger, Defendants correctly note that "[d]eputies cannot be l6 deliberately indifferent to a medical need that is hidden or unknown." Mot. at 14:27-28. 17 There is no suggestion in the SAC (at least not a plausible one) that Deputy Defendants 18 19 knew Mr. Boulanger was attempting suicide and deliberately ignored him or intentionally 20 that within a half hour Deputies Pacheco and Germain "randomly discovered" Mr. 21 Boulanger during an opening shift count. See SAC at 10:21-24. Further, upon discovering 22 Mr. Boulanger, they notified Deputy Dixon, who was working at the watchtower, by radio 23 that Mr. Boulanger had hung himself. Id. at 8:21-23, 9:1-4, 11 :14-21; ECF No. 35°1 at 14. 24 They also rendered aid to him, even temporarily reviving him. SAC at 9: 1-6. chose to sit on their hands and wait before rendering aid to him. Instead, the SAC alleges 25 The allegations of the SAC make implausible any conclusion that the muting of the 26 intercoms or less than thorough soft counts was intentional (rather than negligent), much 27 less intended to specifically allow Mr. Boulanger to commit suicide and/or delay his 28 medical care if he attempted to do so. In sum, the Court agrees that "the SAC lacks any -253:18-cv-02557-BEN-LL 1 2 3 4 [plausible] allegations that deputy defendants intentionally denied or delayed Mr. Boulanger access to medical care." Mot. at 13:19-20. Thus, the SAC fails to plead facts creating a plausible claim that Defendants' intentional conduct, rather than mere negligence, caused Decedent's harm. 5 b. 6 Conditions of confinement placed the inmate at substantial risk ofsuffering serious harm. As to the second factor, the SAC also fails to allege the time Mr. Boulangecdied,~8 and as a result, fails to plead that the confinement conditions (e.g., improper soft counts 9 and muted intercoms) put Mr. Boulanger at a substantial risk of harm because it fails to 10 establish they were present at the time of his death. Gordon, 888 F.3d at 1125. For 11 instance, even if Deputy Reyes' soft counts were inadequate, if Mr. Boulanger attempted 12 suicide after those inadequate checks when another deputy was on duty, then, even if 13 Deputy Reyes' checks were improper, they did not put Mr. Boulanger at a substantial risk 14 of suffering. 15 "Although an inmate is required to show awareness of the risk, 'a factfinder may 16 conclude that a prison official knew of a substantial risk from the very fact that the risk 17 was obvious."' Cotta v. Cty. of Kings, 79 F. Supp. 3d 1148, 1162 (E.D. Cal. 2015), on 18 reconsideration in part, No. 1:13-CV-359-LJO-SMS, 2015 WL 521358 (E.D. Cal. Feb. 9, 19 2015), aff'dinpart, rev'dinpart, 686 F. App'x467 (9th Cir. 2017). For example, where 20 "an inmate presents evidence of very obvious and blatant circumstances indicating that the 21 prison official knew the risk existed, then it is proper to infer that the official must have 22 known of the risk." Id. (internal quotations omitted). 23 Defendants correctly argue that "[p]rior to the man down call, there is no allegation 24 that any of the individual defendants in this case had any interaction with or information 25 about Mr. Boulanger." Mot. at 13:10-11; see also SAC. If none of the Deputy Defendants 26 had an individual encounter with Mr. Boulanger, there is no reason to suspect they could 27 possibly be aware of his suicide risk. Defendants also point out that the "SAC does not 28 suggest that Mr. Boulanger had any known history of suicide attempts or ideations." Id. at ' -263: 18-cv-02557-BEN-LL 1 13: 14-15. Instead, the SAC merely alleges that "San Diego jail staff employees are aware 2 that white, male, opiate users that are incarcerated while detoxing are known to be an 3 extremely high risk of suicide." SAC at 15:9-14. A general awareness of the high risk of 4 suicide in a certain population in no way imputes knowledge that a specific defendant was 5 at risk of committing suicide. See Neil Through Cyprian v. Modesto City Sch. Dist., No. 6 1:17-CV-0256-LJO-SKO, 2017 WL 4652744, at *4-6 (E.D. Cal. Oct. 17, 2017) (holding ·~that generalizecl knowledge concernmg smcfcle m schools was insufficient to establish 8 knowledge of a substantial risk of serious harm against school district defendants after a 9 student committed suicide). To take matters even further, Plaintiffs' premise that 1O knowledge should be imputed to Deputy Defendants-because they should know white, 11 male opiate users are at an increased risk of suicide-fails to create a plausible claim for 12 relief because the SAC fails to allege anywhere that any of the individual Deputy l3 14 Defendants knew Mr. Boulanger was a drug user. See generally SAC. Even though 15 never allege any of the individual Deputy Defendants were involved in the booking l6 process. SAC at 7:24-8:2. Further, even if Plaintiffs had alleged that Deputy Defendants l7 knew Mr. Boulanger was an opiate user and had a history of mental illness, that alone l8 would still not impute knowledge upon them that Mr. Boulanger was a suicide risk. See, 19 e.g., Moriarty, 2019 WL 4643602 at *7 (reiterating that knowledge an inmate "is suffering 20 from mental problems more generally does not meant that officials are constitutionally 21 required to anticipate and guard against suicide"). Absent an allegation that any of the 22 Deputy Defendants had any reason to know Mr. Boulanger had a heightened risk of 23 committing suicide, this Court finds that it is implausible to conclude that they (1) 24 somehow disregarded a known risk Mr. Boulanger would commit suicide, (2) intentionally 25 chose to turn off the intercom system and/or perform proper proof of life checks to allow 26 Mr. Boulanger time and space to commit suicide, and/or (3) intentionally delayed rendering 27 medical care in the hopes that Mr. Boulanger would succeed in his suicide attempt. As 28 Defendants point out, the gist of Plaintiffs' SAC comes down to an allegation that "five Plaintiffs allege Mr. Boulanger' s drug use was revealed in the booking process, Plaintiffs -273:18-cv-02557-BEN-LL 1 2 3 4 5 jail deputies, one jail lieutenant, and even the Sheriff himself' violated the Constitution and caused "Mr. Boulanger to hang himself." Mot. at 8: 11-13. While the muting of the intercoms coupled with Deputy Reyes less than thorough soft counts was unfortunate, it is still unclear to this Court that Deputy Reyes' soft counts occurred during Mr. Boulanger's suicide attempt and/or contributed to causing it. 6 Plaintiffs contend that "[t]he objective reality Defendants refuse to acknowledge is: 7 ~ -__,. Boulanger_J,\'~ imnronerlx housed on intakt)_"_be_cause_''hefore_his_suicide,-Boulanger-'s- ~ 8 9 friends called the jail to inform them he was a suicide risk (he told friend [sic] he would kill himself ifhe had to go back because he had been orally raped in prison before), which 1 O the County ignored." Oppo. at 25 :5-11. In their Reply brief, Defendants correctly point 11 out that Plaintiffs' sudden argument that Mr. Boulanger' s friends called the jail to warn of 12 a suicide risk is not in the complaint and cannot cure an insufficient pleading. Reply at 13 3:23-4:8 (quoting Schneider v. Cal. Dep'tofCorr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) 14 ("In determining the propriety of a Rule l 2(b )(6) dismissal, a court may not look beyond 15 the complaint to a plaintiffs moving papers, such as a memorandum in opposition to a 16 defendant's motion to dismiss .... The focus of any Rule 12(b)(6) dismissal-both in the 17 trial court and on appeal-is the complaint.")). "More importantly, Plaintiffs have not 18 alleged (or even stated in their opposition) that this purported call to the jail was made 19 known to any Defendant in this case." Reply at 4:6-8. Allowing a plaintiff to escape a 20 motion to dismiss by suddenly alleging new facts in opposition to a motion to dismiss that 21 the plaintiff had failed to plead in the three complaints on file would not only be improper 22 but also prejudicial. 13 23 13 24 25 26 27 28 Plaintiffs also allege that"[o]nee discovered and taken out of his cell, deputies went to use an AED defibrillator to revive Boulanger[, bJut, the jail did not properly maintain their emergency equipment, such as AED defribillators, and when they went to use it, it · would not work." Oppo. at 23:28-24:3 (citing SAC at ,r 77). However, the entirety of paragraph 77 of the SAC cited by Plaintiffs for this allegation merely alleges that: "40 inmates have died by suicide in San Diego County jails since 2009." As such, the paragraph cited by Plaintiffs contains no such allegations and does not stand for what Plaintiffs say it does. Further, even if the Court considered allegations regarding the -283: 18-cv-02557-BEN-LL 1 2 3 4 5 6 8 9 Plaintiffs argue that "[t]his court has already ruled that failure to perform a proper counting procedure is deliberately indifferent as well." Oppo. at 23:15-18 (citing Victorianne v. County of San Diego, Case No. 14cv2170 WQH, Dkt. 151, page 37, lines 3-22). However, in Estate of Victorianne v. Cty. of San Diego, No. 14CV2170 WQH (BLM), 2016 WL 411292, at *5 (S.D. Cal. Feb. 3, 2016) (Hayes, J.), an inmate was found dead in his cell seven days after ingesting large amounts of methamphetamine, had been ··huspitalizedafter-his arresrouroefore being oookecl, ana-liaa been under meclical treatment during his incarceration. Prison policy required "deputies to receive verbal or physical acknowledgment from an inmate who might be in medical distress." Id. at *5. However, • 1O when two officers came in to serve a meal, one officer told another officer, "The guy's not 11 moving," to which the other responded, "Okay, he twitched," at which point the officers 12 left the tray of food, closed the door, and left. Id. The inmate was found dead in his cell 13 three hours later. Id. As a result, the court denied the motion to dismiss for deliberate 14 indifference to serious medical needs where the inmate was not moving, and the officers 15 left the cell. Id. at *21. However, not only is Victorianne not binding on this Court, but it 16 17 defibrillator, "neither a public entity nor a public employee is liable ... for failure to provide sufficient equipment, personnel or facilities therein." CAL. Gov'T CODE§ 845.2. 19 As such, at least with respect to Plaintiffs' state law claims, Defendants cannot be held liable for inadequate maintenance of the defibrillator as a matter of law. 20 Plaintiffs also conclusorily argue that "Boulanger had a serious medical need and 21 was denied medical treatment when booked, after booked when his friends called the jail, during his suicide by ignoring the pleas for help, and after the deputies discovered him and 22 tried to use a broken AED on him." Oppo. at 24:7-10. Again, the SAC, contrary to 23 Plaintiffs' allegations does not allege that (1) when Mr. Boulanger was booked, he was denied medical treatment--on the contrary, it alleges he was given medication for 24 withdrawal; (2) Mr. Boulanger's friends called the jail; (3) during his suicide, he pied for 25 help; or (4) the AED was broken. Accordingly, these facts are not considered by the Court when ruling on Defendants' motion to dismiss. Schneider, 151 F.3d at 1197 n.1. Further, 26 even if the Court did consider such allegations, Plaintiffs fail to argue any of these actions 27 were done intentionally. Absent intentional conduct, there is no deliberate indifference. Edmo, 949 F.3d at 495. Thus, even if the Court permitted leave to amend to include those 28 allegations, those allegations would still not save the subsequent complaint. 18 -293: I 8-cv-02557-BEN-LL 1 2 3 4 5 6 is also inapposite and in no way created a bright line rule that soft counts· of one second or less always show deliberate indifference. More importantly, unlike the officers in Victorianne, who performed cursory soft counts despite knowing the inmate was on medical watch, based on the SAC, Deputy Defendants had no reason to suspect Mr. Boulanger was at risk of suicide when Deputy Reyes performed his short soft counts. Defendants argue Plaintiffs have not sufficiently alleged any of the Deputy __7_,. -Defondants-had-any-reason-to-suspeet-that-Mr-c-Boulanger-intended-to-harm-himselP.'-R~ply-'--__,, 8 at 4:9-10. The Court agrees that as pied, the SAC does not allege Deputy Defendants had 9 10 any reason to suspect that the conditions of confinement they created put Mr. Boulanger a substantial riskof serious harm. For instance, Plaintiffs allege that during the soft count at 11 approximately 5:25 p.m., video surveillance shows Deputy Reyes "walking up to each cell 12 and peering in for approximately 1 second before proceeding to the next cell." SAC at 13 17:18-21. However, Plaintiffs fail to plead that Deputy Reyes' cursory examination of the 14 cells was unwarranted: For example, Sherift's Detention Policy 1.43 only required 15 "detentions staff to verify 'each inmate's well-being through verbal or physical 16 acknowledgement from the inmate." 17 surveillance shows Deputy Reyes merely "peering in for approximately 1 second before 18 proceeding to the next cell," id. at 17: 18-21, does not necessarily mean the checks were 19 inadequate, or that proof of life was not obvious, even from 3-4 feet away, such as where 20 21 the inmates in those cells may have been moving around and obviously alive. It is also not Id. at 15:28-16:5. Thus, the fact that video unreasonable to imagine a scenario where the inmates, being accustomed to these checks 22 and seeing the officer walking through the corridors to do them, might give the officer a 23 physical gesture, such as a wave, to provide the requisite physical acknowledgement of 24 their well-being. For purposes of this Motion, the Court refrains from speculating that this 25 was the case. However, as pied, Plaintiffs' SAC shows that Mr. Reyes did, in fact, perform 26 the checks and fails to plead sufficient facts to indicate that the checks were inadequate. 27 While the Court, when ruling on a motion to dismiss, must liberally construe all allegations 28 in a plaintift' s favor as well as draw all reasonable inferences in the light most favorable -303: 18-cv-02557-BEN-LL 1 2 3 to the non-moving party, Manzarek, 519 F.3d at 1031, construing the allegations in the SAC as showing "a substantial risk of harm" exceeds the scope of drawing all reasonable inferences and crosses the line into making assumptions on Plaintiffs' behalf. 4 5 6 Thus, even though the SAC fails to plausibly allege the conditions of confinement at issue were intentional, even if it did, Deputy Defendants would not have reason to suspect that cursory checks or muting the intercom would create a substantial risk that Mr. 'l~ ·~Boulanger would attempt smci e. c. 8 9 Failure to take reasonable available measures to abate the risk when a reasonable official would have done so 1o With respect to the third Gordon factor, the SAC also fails to plausibly allege that 11 Deputy Defendants did not take reasonable measures to abate the risk that Mr. Boulanger 12 13 might not receive prompt medical care "even though a reasonable official in the circumstances would have appreciated the high degree of risk involved-making the 14 consequences of the defendant's conduct obvious." Gordon, 888 F.3d at 1125. Again, 15 Defendants argue that "[n]o reasonable official under these circumstances would have 16 appreciated that Mr. Boulanger was at a high risk of suicide.'' Mot. at 15:24-25. 17 Defendants elaborate that "it does not matter that Deputy Dixon failed to hear the intercom 18 because it was muted or that Deputy Reyes' cell check did not last a little longer than it 19 did" because "[n]either of them knew or had reason to suspect that Mr. Boulanger had a 20 heightened risk of suicide or was suffering from any other serious medical need." Id. at 21 15:25-16:1. Defendants argue that "[t]o allow Plaintiffs to proceed with this claim under 22 these circumstances would tum deliberate indifference into strict Constitutional liability 23 anytime there is a jail suicide.'' Id. at 16: 1-4. Meanwhile, Plaintiffs conclusorily argue, 24 "We know that muting the emergency intercom system was objectively unreasonable." 25 Oppo. at 21 :27-28. 14 26 27 28 14 Plaintiffs also noted that "Defendants['] expert Robert Ponzi recently testified under oath that muting the system was not reasonable.'' Oppo. at 22:3-4. Again, this is improper information for the Court to consider when determining a motion to dismiss as it was not -313:18-cv-02557-BEN-LL 1 2 3 4 5 6 "With respect to the third element, the defendant's conduct must be objectively unreasonable, a test that will necessarily tum on the facts and circumstances of each particular case." Gordon, 888 F.3d at 1125 (internal quotations omitted). "The mere lack of due care by a state official does not deprive an individual of life, liberty, or property under the Fourteenth Amendment." Id. (quoting Daniels v. Williams, 474 U.S. 327, 33031 (1986)). Thus, the plaintiff must "prove more than negligence but less than subjective · intent 8 something-akin to reckless aisregarct"-7a.-"Afi inadvertent failure to prov1 e adequate medical care does not, by itself, state a deliberate indifference claim for § 1983 9 purposes." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (emphasis in original) 10 (quotation marks omitted). "A court must make this determination from the perspective of 11 12 13 a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight." Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). For instance, in 2010, in Conn v. City ofReno, 15 the Ninth Circuit held the officers 14 had been deliberately indifferent where a woman committed suicide after the officers had 15 reason to suspect she was a suicide risk. 591 F.3d at 1090. In Conn, while transporting a 16 detainee "to civil protective custody, two Reno police officers witnessed her wrap a seatbelt 17 around her neck in an apparent attempt to choke herself and then scream that they should 18 kill her or else she would kill herself" Id. at 1090. "The officers failed to report the 19 incident to jail personnel or take her to a hospital," and the woman was released from 20 protective custody a few hours later. Id. at 1090-91. However, the next day, the police 21 detained the woman on a misdemeanor charge, and less than 48 hours after the suicide 22 threats, she "hanged herself in her cell." Id. at 1091. The court held "that, on the facts 23 presented, a reasonable jury could find that the defendant police officers are liable under 42 24 25 U.S.C. § 1983 for their deliberate indifference to Clustka's serious medical need, and that 26 27 28 alleged in the SAC. As such, the Court disregards this when ruling on this Motion. However, under Gordon, unreasonable actions do not per se show deliberate indifference. 15 Although Conn was before the Ninth Circuit's decision creating the objective standard for deliberate indifference under the Gordon factors, Conn's analysis on deliberate indifference is helpful nonetheless. -323: 18-cv-02557-BEN-LL 1 2 3 4 5 their actions were a cause in fact and a proximate cause of her suicide." Id. at 1091. On the other hand, in 2019, the Ninth Circuit reversed the district court's denial of qualified immunity to an officer in Horton by Horton v. City ofSanta Maria, 915 F.3d 592, 601 (9th Cir. 2019), determining that based on the facts as well as the law at the time of the incident, including Conn, "a reasonable officer would not have known that failing to 6 attend to Horton immediately would be unlawful." Id. at 601. In Horton, an eighteenyear-oh:l~boy'FmOther, acting as guarclian acl~litem, also filed smnillegmg (TJ neghgence, 8 (2) Section 1983 liability on the part of the officers, (3) liability on the part of the municipal 9 defendants under Monell, and (4) liability under California Government Code,§ 845.6 on lO the part of all defendants. Id. at 598. The plaintiffs son had been arrested, taken to the 11 local police department, and detained in a temporary holding cell. Id. at 596. Even though 12 the officer knew he was a suicide risk, he left the detainee unattended for approximately a 13 half hour while he spoke with the detainee's mother and completed paperwork. Id. at 596. 14 In that time, the detainee "removed his belt, fed it through the cell door bars, and hanged 15 himself, causing permanent and severe damage." Id. As stated, the Ninth Circuit 16 determined that based on the facts as well as the law at the time of the incident, including 17 Conn, "a reasonable officer would not have known that failing to attend to Horton 18 19 immediately would be unlawful." Id. at 601. 20 deliberately indifferent under the Gordon factors in JK.J v. City ofSan Diego. 2020 WL 21 738178 at *8. The JK.J detainee had been arrested and started vomiting while in the 22 patrol car on the way to the police station. Id. at *1. When the officers asked if she was 23 suffering from withdrawal, she told them she was sick and pregnant. Id. As a result, the 24 officers did not take the woman to a hospital, took her fingerprints, and then, placed her 25 back into the patrol car. Id. at *2. When they returned to check on her, the officer could 26 not verify if the woman was breathing and summoned medical attention. Similarly, in 2020, this district court held that two police officers had not been Id. 27 Unfortunately, the woman went into a coma and died. Id. In granting the defendants' 28 motion to dismiss the complaint, the Court evaluated the second Gordon factor and -333:18-cv-02557-BEN-LL 1 2 3 4 5 6 determined that the complaint did "not adequately allege a serious medical need based on what any of the officers knew at the time." Id. at *7. Instead, the detainee's "vomit and pleas for help, without more, and particularly in light of [her] ... statement that the vomit was the result of a pregnancy and illness, would not have caused a reasonable officer in the circumstances to have appreciated that there was a high degree of risk in not taking her to a hospital or calling an ambulance." 2020 WL 738178 at *8. "Only with the 20/20 vision 7 - - - ~ ·of~ninclsignroasecl on the tragic outcome could~ifoe foun t at a reasonable officer . . . 8 would have known that, assuming the truth of all of the factual allegations about Jenkins' 9 condition during the traffic stop and on the ride to police headquarters, proceeding to the 10 station instead of to a hospital would have obvious serious medical consequences." Id. 11 Thus, the Court found that the complaint also failed under the third Gordon factor, and 12 therefore, did not state a claim for denial of medical care in violation of Fourteenth 13 Amendment Due Process rights. Id. 14 Here, the SAC pleads that Decedent (1) was arrested for a non-violent crime, SAC 15 at 7:21-23; (2) was a known opiate user and was suffering from withdrawal symptoms, id. 16 at 7:21-23; (3) tested positive for narcotics, including cocaine and heroin; (4) told staff he 17 used heroin and drank alcohol on a daily basis; ( 5) was observed as experiencing 18 withdrawal symptoms; (6) was noted as having a history of mental illness; and (7) was 19 provided medication for his withdrawal symptoms, id. at 7:24-8:3. The SAC also alleges 20 that "Defendant deputies knew or should have known" (1) Mr. Boulanger "faced a serious 21 medical and/or mental health need while at San Diego County Central Jail," id. at 25:25- 22 28; (2) Mr. Boulanger "was a heroin addict who had taken opiates less than 24 hours before 23 his booking," id. at 26: 1-2; (3) Mr. Boulanger had a "condition [that] was serious, and that 24 he was in significant pain, and that failure to promptly treat his noose injury could result in 25 further significant injury and unnecessary and wanton infliction of pain," id. at 27:7-11; 26 (4) Mr. Boulanger "was in medical distress," id. at 27:21-23; (5) "that a significant number 27 of inmates booked in Central Jail suffered from drug intoxication," id. at 28:1-3; (6) "that 28 the policies they had implemented with respect to medical care of inmates suffering suicide -343:18-cv-02557-BEN-LL 1 attempts was grossly inadequate," SAC at 28:4-7; and (7) "of the disproportionately high 2 number of deaths in San Diego County Jails," id. at 28:8-10. However, the SAC never 3 pleads facts making it plausible that Deputy Defendants were made aware of any of the 4 aforementioned facts. Without facts showing, for example, that one of the Deputy 5 Defendants performed the booking, or that all deputies are informed of every fact learned 6 during booking by the officer doing the booking, the aforementioned allegations are ~·nothing more ilian the conclusory allegations Twomb7ylioI s msufficient. 8 As a comparison, in both J.K.J. and Horton, the courts did not find deliberate 9 indifference even though in J.K.J., the officers knew the detainee had some medical needs lO 11 (e.g., had been vomiting), 2020 WL 738178 at *7-8, and in Horton, the officer had been 12 found deliberate indifference after the detainee had previously attempted suicide in front 13 of officers, was arrested again, and hanged herself in the cell, 591 F.3d at 1090-91, the 14 SAC has no allegations that Deputy Reyes or Deputy Dixon knew Mr. Boulanger had any 15 medical issues or even know ofhis withdrawal or mental health issues. Thus, if the officers 16 in J.K.J. and Horton were not held liable for detainee suicides despite knowledge of some 17 level of medical risk, this Court finds that in the absence of facts pleading the individual 18 deputies knew Mr. Boulanger had any level of risk, the SAC's claim for relief is not 19 plausible. Accordingly, beyond their conclusory allegations that Defendants acted with 20 deliberate indifference, the SAC fails to set forth any specific allegations as to (1) what 21 reasonable available measures to abate the risk of suicide Deputy Defendants should have 22 taken; (2) whether reasonable officers would have taken those reasonable available 23 measures; and/or (3) if Deputy Defendants had taken such reasonable available measures, 24 26 it would have prevented the harm to Mr. Boulanger. d. Failure to take reasonable available measures caused the iniuries. Plaintiffs conclusorily allege that "[t]he failures of Reyes were a significant cause of 27 the delay in discovering Boulanger's suicide attempts and a proximate cause of his death," 28 SAC at 19: 1-3, and "[a]s a direct and proximate result of all Defendants' conduct, Richard 25 informed the detainee was suicidal, 915 F.3d at 601. Further, unlike Conn, where the court -353:18-cv-02557-BEN-LL 1 Boulanger experienced physical pain, severe emotional distress, and mental anguish, as 2 well as loss of his life and other damages alleged herein," id. at 28:25-28. 3 Defendants argue that "[e]ven assuming for the sake of argument some suicidal risk 4 was known to the deputies, Mr. Boulanger's decision to take his own life is a superseding 5 cause that broke the chain of causation." Mot. at 17: 17-28 (citing Lucas v. City of Long 6 Beach, 60 Cal.App.3d 341, 351 (1976)). Plaintiffs argue that "Defendant Deputies['] . . _7_ -decision-to-interfere,deny,and-delay-medieal-eare-was-a-substantial-factor-in-causing- 8 Boulanger's suffering and death." Oppo. at 24:22-24. Again, the SAC fails to allege 9 10 sufficient facts to show that the any delay in medical care was the result of any intentional decision by Deputy Defendants. 11 Defendants also correctly point out that although Plaintiffs allege that Deputy Parent 12 "had knowledge of Boulanger's serious medical needs," they not only fail to allege any 13 facts to make such an allegation plausible but also allege that it was Deputy Dixon in the 14 tower when Mr. Boulanger's cellmate activated the intercom. Mot. at 13:21-27 (citing 15 SAC, ECF No. 55 at ff 37, 52). If Deputy Parent was not even in the cell tower at the time 16 medical care was allegedly delayed, how he could have delayed medical care (much less 17 intentionally done so) is unclear at best. See, e.g., Arnold v. Int'! Bus. Machines Corp., 18 637 F.2d 1350, 1355 (9th Cir. 1981) (providing that the "[t]he requisite causal connection 19 can be established not only by some kind of direct personal participation in the deprivation 20 but also by setting in motion a series of acts by others which the actor knows or reasonably 21 should know would cause others to inflict the constitutional injury") (citing Johnson v. 22 Dujjj;, 588 F.2d 740, 743-44 (9th Cir. 1978)). 23 Plaintiffs respond that Mr. Boulanger would not have suffered and died but for 24 Defendants' (1) "failure to provide medical care" and (2) "muting and unplugging speakers 25 in the watch tower, ignoring flashing red light, and ignoring, the distress pleas for urgent 26 medical assistance." Oppo. at 24:24-25: 1. They elaborate that "[t]he objective reality 27 Defendants refuse to acknowledge is: Boulanger was improperly housed on intake; ... 28 REYES did not properly check on Boulanger; [and] DIXON ignored everything." Id. at -363:18-cv-02557-BEN-LL 1 25:5-11. 2 Conspicuously absent from Plaintiffs' SAC is an allegation at what time Mr. 3 Boulanger (1) made his suicide attempt and (2) was discovered by deputies. Plaintiffs 4 make numerous allegations about when the soft counts were done and whether they were 5 done properly. However, if the soft counts were done improperly, but those improperly 6 done soft counts occurred before Mr. Boulanger's attempts, then, even if the soft counts 7 had been performed properly, the)' would not have had an impact on Mr. Boulanger~s,_,__ _. 8 suicide attempt. Plaintiffs' SAC similarly fails to allege the time period during which the 9 intercom was muted, although it is pied that it was muted while Mr. Boulanger made his 10 suicide attempt. See SAC at 8:27-28 (pleading that "[n]o one in the jail answered these 11 calls either because defendant deputy DIXON in the control tower muted all inmate alerts 12 and calls"). ----I 13 Thus, the primary allegations arise from Deputy Reye's failure to perform long 14 enough cell checks and the muting of the intercom (although it is unclear who muted it). 15 However, the focus of a Section 1983 action "is on whether a reasonable officer would 16 have known that the deputies' conduct violated" an inmate's federal statutory or 17 constitutional rights rather than a prison policy. See, e.g., Case v. Kitsap Cty. Sheriff's 18 Dep't, 249 F.3d 921, 929 (9th Cir. 2001). Thus, even where deputies violate a prison 19 policy-such as the allegations that Deputies Reyes and Dixon violated prison policy 20 regarding the intercom and soft counts, the violation of a prison policy does not per se give 21 rise to liability under Section 1983. See id. at 930 (citing Gardner v. Howard, 109 F.3d 22 427, 430 (8th Cir.1997) (holding that the defendants were entitled to qualified immunity 23 because "there is no§ 1983 liability for violating prison policy"; rather, a plaintiff "must 24 prove that [the official] violated his constitutional right")). Here, while Plaintiffs' SAC 25 includes general conclusory allegations of violation of constitutional rights, the facts 26 supporting those allegations do not give rise to a plausible claim that Deputy Defendants 27 were deliberately different. At best, their alleged conduct amounts to mere negligence, 28 which fails to establish a Section 1983 claim. See, e.g., Castro, 833 F.3d at 1071 (noting -373: 18-cv-02557-BEN-LL 1 that the Supreme Court has instructed that "mere lack of due care by a state official" does 2 not '"deprive' an individual of life, liberty, or property under the Fourteenth 3 Amendment."); see also Daniels v. Williams, 474 U.S. 327, 329-30 (1986) (concluding "in 4 any given § 1983 suit, the plaintiff must still prove a violation of the underlying 5 constitutional right; and depending on the right, merely negligent conduct may not be 6 enough to state a claim"). ----7-e-----------,.~laintiff.s-e-ite-var-i0us-e-ases-1§-t0-support-the"argument-that-''ft]he-Ninth-eircuit-Iras8 found, [sic] 'access to medical staff is meaningless unless that staff is competent and can 9 render competent care."' Oppo. at 22-23. The Court does not dispute Plaintiffs' contention 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 Plaintiffs attempt to establish deliberate indifference here by citing to a number of cases that in no way factually resemble this case. See, e.g., Oppo. at 22-23 (citing Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2001) (holding that deliberate indifference had been established where an inmate, although receiving some medical treatment, was denied his full caloricrequirements and was not provided with follow-up appointments); Caldwell v. Bannister, 763 F.3d 1060 · (9th Cir. 2014) (finding deliberate indifference had been established where an inmate was provided optometry appointments but was denied cataract surgery because he had one good eye); Snow v. McDaniel, 681 F.3d 978, 986 (9th Cir. 2012) (holding that medical staff was deliberately indifferent to a prisoner's serious medical needs by denying him a hip surgery even though he was provided medical care and pain medications); Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th Cir. 1999) (holding plaintiff had pied a claim for deliberate indifference when a prisoner receiving mental illness medication was not given the medication upon release from incarceration because a prison official ignored the instructions of the prisoner's treating physician); Jackson v. McIntosh, 90 F.3d 330 (9th Cir. 1996) (holding the issue of deliberate indifference triable when jail doctors denied a kidney transplant for an inmate on dialysis); Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (holding medical staff deliberately indifferent when they prescribed an inmate sedatives despite knowledge that the inmate had suffered a head injury and the inmate was exhibiting complications that had been indicated on his medical chart)). In all of these cases, the inmates had received previous medical treatment, meaning the prison-staff knew of a medical need. However, this case does not involve.medicalstaff. Further, none of the cases cited by Plaintiffs hold that prison staff is deliberately indifferent by failing to check on an inmate more frequently than every half hour or checking on them for more than a few seconds when the prison official had no specific knowledge the inmate was at risk of suicide. None of these cases hold that an inadvertent delay in medical care constitutes deliberate indifference. As such, these cases do not save Plaintiffs' inadequately pied claims. -383:18-cv-02557-BEN-LL 1 that "[d]eliberate indifference may be demonstrated when prison officials 'deny, delay or 2 intentionally interfere with medical treatment."' Id. at 23: 17-20. However, again, the issue 3 here is that separate and aside from Plaintiffs' wholly conclusory allegations, the facts pied 4 do not plausibly indicate that any delay in medical care was intentional. Thus, beyond their 5 conclusory allegations that Defendants acted with deliberate indifference, the SAC fails to 6 set forth any specific allegations that any failure to render prompt medical care, perform -~--'---'· mora..thorouglLchecks,-or-keep-the-intercom-s:y:stem-unmuted-was-the-result-0fdeliber.ate- ~ 8 indifference. Ashcroft, 556 U.S. at 678, citing Twombly, 550 U.S. at 557. 9 "Causation is, of course, a required element of a§ 1983 claim." Estate ofBrooks v. IO United States, 197 F.3d 1245, 1248 (9th Cir. 1999). Defendants argue that Plaintiffs accuse 11 Defendants of "causing Mr. Boulanger to hang himself." Mot. at 1: 11-13. This Court 12 recognizes that "[s]uicide is the leading cause of death in jails, yet many jails and 13 municipalities have insufficient policies for preventing inmate suicide." Kyla Magun, A 14 Changing Landscape for Pretrial Detainees? The Potential Impact of Kingsley v. 15 Hendrickson on Jail-Suicide Litigation, 116 Colum. L. Rev. 2059 (2016). However, 16 generally, the law does not hold third parties liable for another person's intentional acts. 17 C.T. Drechsler, Annotation, Civil Liability for Death by Suicide, 11 A.L.R.2d 751 18 (Originally published in 1950) (noting that "[o]nly recently does any attempt appear to 19 have been made to hold a defendant civilly liable for causing suicide of another" while 20 "earlier cases seem to hold, as a matter of law, that suicide is an independent intervening 21 cause, so that there can be no liability for acts, whether done with intent to injure or 22 negligently, that cause suicide") (citing Tate v. Canonica, 180 Cal. App. 2d 898 (1960)). 23 Suicide, although certainly tragic, is undeniably an intentional act. See Coleman v. Brown, 24 No. CIV S-90-0520 KJM KJN PC, 2016 U.S. Dist. LEXIS 86352, at *82 (E.D. Cal. Mar. 25 29, 2016) ("A suicide attempt is an intentional act that is deliberately designed to end one's 26 own life"); King v. United States, 756 F. Supp. 1357, 1361 (E.D. Cal. 1990) 27 ("The intentional act of a third person is a superseding cause of harm and relieves the 28 original actor ofliability unless such act was reasonably foreseeable or the failure to foresee -393: 18-cv-02557-BEN-LL 1 such act was a factor in the original negligence"); Esurance Ins. Co. v. Streeter, No. 2: 192 CV-2065-JAR-JPO, 2019 U.S. Dist. LEXIS 121419, at *7 (D. Kan. July 22, 2019) 3 ("suicide is an intentional act"). Only in rare cases can a person cause another individual 4 to take his or her life-such as exceptional cases where one encourages an individual to 5 commit suicide. 17 Failure to hold one person liable for another person's suicide also stems 6 from the common law rule that there is no duty to rescue. See, e.g., Verdugo v. Target ___7_. _Carp.,_7_10E.1cL1201, .1222.(9.th.Cir..20.lAJ.{pro:v:iding_that-''asa.generaLrule,-an-individual ,____. 8 or entity does not have a duty under the common law to come to the aid of another person 9 whom the individual or entity has not injured"). 10 For example, in a similar case, Lucas v. City of Long Beach, 60 Cal. App. 3d 341 11 (1976), "the defendant police department placed a teenage individual in a juvenile 12 detention center without supervision, in spite of their suspicion that he was under the 13 influence of drugs." King, 756 F. Supp. at 1361. While the juvenile had been detained, he 14 committed suicide, but when the mother sued for wrongful death, the court found that 15 proximate cause was not established against the police. Lucas, 60 Cal. App. 3d at 351. The 16 court held that "[t]he intentional act of a third person is a superseding cause of harm and 17 relieves the original actor of liability unless such act was reasonably foreseeable or the 18 failure to foresee such act was a factor in the original negligence." Id. at 351 (citing Rest. 19 2d Torts). It "observed that 'the most that can be said concerning [the police's] negligence 20 is that it provided a greater opportunity than already existed for [the decedent to] act." Id. 21 22 23 24 25 26 27 28 17 For example, in Commonwealth v. Carter, 481 Mass. 352,371, 115 N.E.3d 559,574 (2019), a recent, highly publicized case, the Supreme Judicial Court of Massachusetts affirmed a judgment of involuntary manslaughter against the defendant, Michelle Carter, finding that "[t]he·evidence against the defendant proved that, by her wanton or reckless conduct, she caused the victim's death by suicide." The court reasoned that "an ordinary person under the circumstances would have realized the gravity of the danger posed by telling the victim, who was mentally fragile, predisposed to suicidal inclinations, and in the process of killing himself, to get back in a truck filling with carbon monoxide." Id. at 566. "[T]he defendant-the victim's girl friend, with whom he was in constant and perpetual contact--on a subjective basis knew that she had some control over his actions." Id. -403: l 8-cv-02557-BEN-LL 1 at 351. The juvenile's "death, however, required the intervention of an additional 2 independent force, to wit, [his own] intentional act." Id. at 351. 3 Here, Mr. Cavanaugh seeks to hold the deputies, Sheriff, and County of San Diego 4 liable for his father's tragic, albeit, intentional act-his decision to commit suicide. See 5 generally SAC. Had Mr. Cavanaugh's father died and been discovered immediately, there 6 would be no dispute as to a lack ofliability. However, regrettably, it took deputies between 7 10 to 30 minutes to discover Mr. Boulanger's distress. 8 discovered, they were able to revive Mr. Boulanger and transport him to a hospital where 9 he survived for two days before dying. Id. at 8-9. That Mr. Boulanger survived for two 10 days begs the questions of why it took so long to discover Mr. Boulanger and whether, if 11 he had been discovered earlier, he would have survived rather than died. 18 In other words, 12 whether the failure to discover Mr. Boulanger and/or the delay in providing medical care 13 was an intervening and superseding cause in Mr. Boulanger's death. Nonetheless, this 14 Court finds that this is not the rare case where any of the defendants "egged on" Mr. 15 Boulanger by encouraging him to commit suicide. 16 Commonwealth, 343 Mass. 19, 23, 175 N.E.2d 387,390 (1961) (upholding the defendant's 17 murder conviction where after the defendant's wife threatened to commit suicide, he 18 taunted her by saying she was "chicken-and wouldn't do it," loaded a rifle, handed it to SAC at 8-9. When it was . See, e.g., Persampieri v. 19 20 21 22 23 24 25 26 27 28 18 The Court notes that in case before the United States Supreme Court, it was noted that "cells in the cerebral hemispheres are destroyed if they are deprived of oxygen for as few as 4 to 6 minutes." Cruzan by Cruzan v. Dir., Missouri Dep'tofHealth, 497 U.S. 261, 310, n.8 (1990) (citing Cranford & Smith, Some Critical Distinctions Between Brain Death and the Persistent Vegetative State, 6 Ethics Sci. & Med. 199, 203 (1979)); see also 16 Am. Jur. 2d ProofofFacts§ 87 (Originally published in 1978) (providing that "the human brain, deprived of its normal, oxygenated blood flow, dies in stages beginning first with the cortex, the site of the highest centers involved with thinking, emoting, and consciousness, and leads then to the brain stem, which controls respiration, heart rate, and blood pressure," but that "if the individual's brain is deprived of oxygen for five minutes, there will be death in all probability to the cortex"). Thus, it appears that Mr. Boulanger would have needed to be discovered in six minutes or less for it to have been probable that he would have survived. -413: 18-cv-02557-BEN-LL ' 1 her, and when she had difficulty firing the rifle, told her to take off her shoes and reach the 2 trigger that way). Rather, Mr. Boulanger made the tragic, but intentional, decision to hang 3 himself in his cell while his cellmate slept. SAC at 8:5-9. While the muting of the 4 intercoms is suspicious, there is no allegation in Plaintiffs' SAC that this act was intended 5 to allow for Mr. Boulanger's suicide and untimely discovery (e.g., there are no allegations 6 it was done with the intent of either giving him time to commit suicide or hoping he would -~~'----'··•.succ.eed_i£he triec.Lby.cdela.ying-medical-care~~As-pled,without-sueh-an-aHegation,Heputy '-----' 8 Dixon's actions amount to mere negligence, which is not enough to state a claim under 9 Section 1983. There is also no allegation that when Deputy Reyes conducted the allegedly 10 improper cell checks, that Mr. Boulanger was attempting or had attempted suicide, and 11 thus, could have been discovered by· Deputy Reyes if he had performed more thorough 12 checks. As a result, the allegations against Deputy Reyes are also insufficient. 13 As pied, the SAC pleads the requisite elements for deliberate indifference, but those 14 conclusory allegations, when read in conjunction with the facts of the complaint, fail to 15 create a plausible claim for relief under the Twombly/Iqbal standard. 16 C. 17 Plaintiffs' Third Claim for Relief for Loss of Familial Relationship Against Defendants Dixon, Reyes, Parent, and Kamoss 18 Plaintiffs' Third Claim for Relief alleges that Deputy Defendants "deprived 19 Plaintiffs of their liberty interest in the companionship and society [of] one another," which 20 "shocks the conscious and was a due process violation." SAC at 32:4-8. 21 Defendants argue that because there is no evidence suggesting Defendants acted 22 with deliberate indifference, there are no "facts alleged against the deputies [that] 'shock 23 the conscience"' required to establish a claim for loss of familial relationship. Mot. at 24 18:13-16. They also argue that "because Reyes and Dixson did not violate the Constitution, 25 the claims against their supervisors fail as well." Id. at 8:22-25. Plaintiffs respond that the 26 third claim for relief "is not duplicative of the deliberate indifference because it relates to 27 rights and injuries suffered by different parties-Plaintiff Shane Cavanaugh, Richard 28 Boulanger's son." Oppo. at 26:1-4. However, Plaintiffs' SAC fails to show deliberate -423:18-cv-02557-BEN-LL 1 · indifference towards Mr. Cavanaugh, as Mr. Boulanger's son. 2 3 4 5 6 "Substantive due process protects individuals from arbitrary deprivation of their liberty by government." Villarreal, 254 F. Supp. 3d at 1182 (citing Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006)). "A child's interest in her relationship with a parent is sufficiently weighty by itself to constitute a cognizable liberty interest." Smith v. City of Fontana, 818 F .2d 1411, 1419-20 (9th Cir. 1987), overruled by Hodgers-Durgin v. de la · ~Vina,199~p~3d~10'.l,~(<;>th~er.1999t(holcling thaC"the same allegation of excessive orce 8 9 lO 11 12 13 giving rise to Mr. Smith's substantive due process claim based on his loss oflife also gives the children a substantive due process claim based on their loss of his companionship"). 19 Thus, "[p]arents and children may assert Fourteenth Amendment substantive due process claims if they are deprived of their liberty interest in the companionship and society of their child or parent through official conduct." Lemire v. Cal. Dept. of Corr. & Rehab., 726 F.3d 1062, 1075 (9th Cir. 2013). This allows "[t]he child of an individual killed through 14 state action [to] . . . assert a substantive due process claim based on their loss of 15 companionship." C. W v. Asuncion, No. 219CV02225RGKGJS, 2020 WL 2028531, at *4 16 17 (C.D. Cal. Mar. 16, 2020), motion for relief from judgment denied sub nom. C. W v. Asuncion, No. 219CV02225RGKGJS, 2020 WL 4873565 (C.D. Cal. June 29, 2020) (citing 18 19 19 Courts must evaluate "whether the alleged interference with the children's protected liberty interest rises to the level of a substantive, as opposed to a procedural, due process 21 violation." Smith, 818 F.2d at 1419. "[W]hether a particular interference with a liberty interest constitutes a substantive or a procedural due process violation depends on whether 22 the interference was 'for purposes of oppression,' rather than for the purpose of furthering 23 legitimate state interests." Id. (internal citations omitted). "When the state has a legitimate interest in interfering with a parent-child relationship, for example, where the best interest 24 of the child arguably warrants termination of the parent's custodial rights, the state may 25 legitimate~y interfere so long as it provides 'fundamentally fair procedures."' Id. (citing Kramer, 455 U.S. at 754 (emphasis added)). "However, the state has no legitimate interest 26 in interfering with this liberty interest through the use of excessive force by police officers." 27 Id. at 1419-20. "Such an action constitutes the very sort of affirmative abuse of government power which the substantive protections of the due process clause are designed to prevent." 28 Id. at 1420. 20 -433: 18-cv-02557-BEN-LL 1 2 3 4 5 6 Morelandv. Las Vegas Metropolitan Police, 159 F.3d 365,371 (9th Cir. 1998)). This right "derives from the decedent's constitutional rights." Id. "The Ninth Circuit has stated that 'to establish a constitutional violation based on substantive due process, [a plaintiff] must show both [1] a deprivation of her liberty and [2] conscience-shocking behavior by the government."' Villarreal, 254 F. Supp. 3d at 1182; see also Asuncion, 2020 WL 2028531, at *4. "Just as the deliberate indifference of 7 _ _ __, prison officials to the medical needs of prisoners ma support Eighth Amendment liability, ~ 8 such indifference may also rise to the conscience-shocking level required for a substantive 9 due process violation." Villarreal, 254 F. Supp. 3d at 1182 (citing lO 11 Lemire, 726 F.3d at 1075); see also Kelson v. City of Springfield, 767 F.2d 651,654 (9th Cir. 1985), overruled on other grounds by Smith, 818 F.2d at 1419 (noting that "[t]he 12 Supreme Court has repeatedly reaffirmed the existence of a constitutional right to the 13 maintenance of a parent-child relationship"); Porter v. Osborn, 546 F.3d 1131, 1137 (9th 14 Cir. 2008); Cty. ofSacramento v. Lewis, 523 U.S. 833, 846-47 (1998). As with claims for 15 deliberate indifference to medical needs, children bringing Section 1983 claims for 16 violation of their substantive due process right to the child-parent relationship may not 17 establish their claims by alleging mere negligence. Neil, 2017 WL 4652744 at *4-6 ("Mere 18 negligence or liability grounded in tort does not meet the standard for a 19 substantive due process decision.") (citing Lewis, 523 U.S. at 848-49). "A Plaintiff can 20 satisfy the 'shocks the conscience' standard either by (1) showing that a state official acted 21 with 'deliberate indifference,' or (2) showing that a state official 'acted with a purpose to 22 harm."' Id. (citing Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)). "A [jail] 23 official's deliberately indifferent conduct will generally 'shock the conscience' so as long 24 as the [jail] official had time to deliberate before acting or failing to act in a deliberately 25 indifferent manner." Lemire, 726 F.3d at 1075. However, "[t]here is no respondeat 26 superior liability under section 1983." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 27 "A supervisor is only liable for constitutional violations of his subordinates if the 28 supervisor participated in or directed the violations, or knew of the violations and failed to -443: l 8-cv-02557-BEN-LL 1 2 3 4 5 6 act to prevent them." Id. To demonstrate deliberate indifference to the risk of a suicide, a plaintiff must show:. "(1) an unusually serious risk of harm, (self-inflicted harm in a suicide case), (2) defendants' actual knowledge of (or, at least, willful blindness to) that elevated risk, and (3) defendants' failure to take obvious steps to address that known, serious risk." L. W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996). r<!xample, in an analogous case involving a student smcioe after expulsion om 8 her school, the court dismissed a parent's claim and held that the student's parent had failed 9 "to state a claim for a violation of substantive due process rights under the First and lO Fourteenth Amendments to a familial relationship with her daughter pursuant to§ 1983." 11 Neil, 2017 WL 4652744, at *4-6. In Neil, the parent alleged that the school's expulsion of 12 her daughter had caused the daughter to commit suicide. Id. at *1. Although the court 13 conceded the parent had standing to bring a substantive due process claim, it found the 14 parent had failed to establish deliberate indifference. Id. The court noted that generally, 15 courts conclude that a state's "failure to protect an individual against private violence 16 simply does not constitute a violation of the Due Process Clause." Id. at *5; see also 17 DeShaney v. Winnebago Cty. Dep 't of Soc. Servs., 489 U.S. 189, 197 (1989). 18 Thus, "[b]ecause Defendants did not actually inflict the ultimate harm, Plaintiff must establish 19 that defendants, as supervisors, acted with deliberate indifference in failing to prevent 20 Neil's suicide." Id. at *5 (citing Harry A. v. Duncan, 234 Fed.Appx. 463, 465 (9th Cir. 21 2007)). However, the plaintiffs basis for alleging the defendants had knowledge, and 22 therefore, acted with deliberate indifference was (1) an allegation of a warning from a 23 friend a week prior and (2) conclusory statements that the defendant had some knowledge 24 the student was suicidal and distraught, and therefore, knew she was more likely to commit 25 suicide after harsh discipline. Id. at *6. The basis for this "generalized knowledge" was 26 "warnings and publications contained in the California Department of Education website 27 concerning suicide prevention in schools." Id. at *5. The court reasoned that generalized 28 allegations in the SAC regarding knowledge from national studies and publications were -453:18-cv-02557-BEN-LL 1 insufficient "to establish knowledge of 'unusually serious risk' of harm in this particular 2 case." Id. 3 In Villarreal v. Cty. ofMonterey, the sons of a deceased arrestee brought a lawsuit 4 against, inter alia, the county, county sheriff, sheriffs deputies, and various doe defendants 5 pursuant to Section 1983, alleging claims for failure to summon medical care, medical 6 malpractice, battery, wrongful death, negligence supervision, and negligence. 254 F. Supp. ____7---1- 3d at 1184-86. In Villarreal, tht)_polic_e_arrested_the_plaintiffs'.-.mother-after-receiv.ing-calls->--_, 8 reporting that she was walking in and out of traffic. Id. at 1174. At the time of booking, 9 the arrestee "suffered from lacerations to her head, hands, and wrists." Id. She was placed 1O in a safety cell, and plaintiffs allege she was not given medical attention, food, or more 11 than a single cup of water over the next 28 hours. Id. While in the safety cell, she behaved 12 erratically and yelled for help but was not provided medical attention. Id. The day after 13 her arrest, she was found unresponsive in her cell covered in feces and moaning. Id. at 14 1175. A nurse notified a doctor, who told nursing staff to send the arrestee to the hospital 15 for drug detoxification. Id. Unfortunately, the mother never regained consciousness and 16 died two weeks later. Id. 17 The plaintiffs alleged that at the time of their mother's "arrest and death, the County 18 had a policy of ignoring inmates' serious medical needs." Id. at 1185. The court 19 determined that the plaintiffs had sufficiently pled "a policy or practice of providing 20 inadequate medical care for inmates as they detoxify," and that "the County's deficient 21 policies led to Decedent's death." Id. In doing so, the court noted that Plaintiffs had alleged 22 that their mother "showed clear signs of drug withdrawal" that "were repeatedly ignored 23 as were her direct pleas for help." Id. at 1185. It pointed out that "[d]rug withdrawal 24 constitutes a serious medical need requiring appropriate medical care under the Eighth 25 Amendment." Id. As a result, "the County's allegedly deficient screening and medication 26 protocols for drug withdrawal 'may constitute deliberate indifference to a serious 27 healthcare need."' Id. Thus, the court concluded that "based on the allegations in the 28 complaint, it was 'reasonably foreseeable' that the County's deficient policies for -463:18-cv-02557-BEN-LL 1 2 3 4 5 6 managing opiate detoxification would lead to the alleged deficient treatment of ... and subsequent death" of the plaintiffs' mother. Id. at 1185 (citing Kwai Fun Wong v. United States, 373 F.3d 952, 966 (9th Cir. 2004)). Here, the Court agrees that if the Court concludes Mr. Boulanger's constitutional rights were not violated, as it has, Mr. Boulanger's son's claims for loss of his familial relationship with his father must also fail. Mr. Cavanaugh's allegations that Defendants · ·krrew·Mr~Buulnngerhadall:ign risk of suici:ae largely stem from allegations of statistics 8 regarding other jailhouse suicides. · SAC at 20. These allegations are more akin to the 9 allegations of general knowledge based on publications and other suicides like the Neil 10 case, which the court found did not establish an unusually serious risk of harm. Further, 11 unlike Villarreal, where the inmate behaved erratically at the time of arrest, had lacerations 12 on her hands and wrists (which were likely indicative of previous suicide attempts), and 13 yelled for help, here, the SAC is devoid of any allegations that any of the individually 14 named defendants had a reason to suspect Mr. Boulanger specifically was at risk of suicide. 15 In this claim for relief, Mr. Cavanaugh also alleges that "[t]here was no legitimate 16 penological interest in denying access to medical care to an inmate in obvious medical 17 distress leaving him hung in his cell, with deliberate indifference." SAC at 31:9-13. 18 However, again, although the SAC alleges he was noted to be suffering from withdrawal 19 and had a history of mental illness upon booking, id. at 7:24-8:2, there are no allegations 20 the individually named defendants were privy to these facts. There are also no allegations 21 that when Mr. Boulanger committed suicide, any of the individually named defendants 22 knew he was in distress and simply left him there. On the contrary, the allegations of 23 wrongful conduct arise out of claims that their negligence caused them to be unaware of 24 the fact that Mr. Boulanger needed attention. Further, Mr. Cavanaugh alleges his father 25 was denied access to medical care, SAC at 31 :9-12, which is not plausible in light of the 26 allegation that he was given medical care upon admission in the form of medication for 27 withdrawal symptoms, id. at 8:1-2, as well as when deputies discovered him, which 28 ultimately, resulted in him being revived, id. at 9: 1-5. As pled, the SAC simply fails to -473: 18-cv-02557-BEN-LL 1 2 3 4 5 6 state a plausible claim for relief for loss of familial relationship. Because the facts pled in the SAC and previous two complaints have also failed to create a plausible claim for relief, this Court finds that granting leave to amend would only prove to be an exercise in futility. D. Plaintiffs' Fourth Claim for Relief for Failure to Properly Train Against Defendants County of San Diego, William Gore, and Kevin Kamoss. Plaintiffs' Fourth Claim for Relief for Failure to Properly Train alleges that ~--7 . Defendants Counj:y of San Diego. Sheriff Gore, and LieutenantKamoss.'...failedJo.."properLy_ ~-8 train their deputies and officers to properly monitor and/or inspect the well being of 9 irurtates," which caused Mr. Boulanger to suffer unconstitutional treatment and inhumane 10 conditions during his detention. SAC at 34:28-35:8. 11 Defendants argue that "because Reyes and Dixon did not violate the Constitution, 12 the claims against their supervisors fail as well." Mot. at 8:22-25. Defendants also point 13 out that Plaintiffs have sued "every individual defendant in both their individual and 14 official capacity." Id. at 19. They argue that to the extent the defendants are sued under 15 Section 1983 in their official capacity, such claims must be dismissed. Id. at 19: 1-11. In 16 response, Plaintiffs argue that their naming of Gore and Kamoss is not duplicative because 17 "[i]t is well-established that supervisors, in their supervisory role, can be held personally 18 liable under a § 1983 claim in their individual capacity for their participation in the 19 deprivation of a constitutional right if there is a sufficient causal connection between the 20 supervisor's wrongful conduct and the constitutional violation." Oppo. at 26:13-20 (citing 21 Phillips v. City of Fairfield, 406 F.Supp.2d 1101 (E.D. Cal. 2005); Brown v. County of 22 Kern, 2008 U.S. Dist. LEXIS 14216 (E.D. Cal. 2008)). This Court does not dispute this 23 proposition. However, the problem lies in that the SAC fails to allege sufficient facts to 24 indicate any direct participation by Supervisory Defendants. As an initial matter, however, 25 the Court addresses the fact that, as Defendants have pointed out, Plaintiffs have named 26 every defendant in both their individual and official capacity. 27 28 1. Claims against Supervisory Defendants in their Official Capacity Section 1983 provides a means to sue individuals acting under color of state law in -483: l 8-cv-02557-BEN-LL 1 2 3 4 5 6 their individual, but not official capacity. See, e.g., Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) (providing that "persons" under Section 1983 means only "state and local officials sued in their individual capacities, private individuals and entities which act under color of state law, and/or the local governmental entity itself'); Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) ("Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal ·-cunstitutimmlorstatutory riglrts.'')-...[S]tate officials actmg m therr official capacities are 8 9 [not] 'persons' amenable to suit for damages under 42 U.S.C. § 1983." Munoz, 208 F. Supp. 2d at 1150-51. "A suit against a governmental officer in his official capacity is 1 O equivalent to a suit against the governmental entity itself." Larez v. City of Los Angeles, 11 946 F.2d 630, 646 (9th Cir. 1991). "In an official-capacity suit, the government entity is 12 the real party in interest and the plaintiff must show that the entity's policy or custom 13 played a part in the federal law violation." Vance, 928 F. Supp. at 996 (holding that "[t]he 14 Court follows other District Courts in holding that if individuals are being sued in their 15 official capacity as municipal officials and the municipal entity itself is also being sued, 16 17 then the claims against the individuals are duplicative and should be dismissed"). "In 18 state officer for actions taken under the color of state law." Vance, 928 F. Supp. at 996. contrast, in a personal-capacity suit, the plaintiff is trying to place liability directly on the 19 Here, Plaintiffs have already pled a separate claim against the County of San Diego, 20 making the official capacity allegations duplicative. The Court acknowledges that not just 21 Supervisory Defendants but also all individual defendants have been sued in their 22 individual and official capacity, which is incorrect given Section 1983's purpose is to 23 provide a mechanism to sue individuals acting under color of state law in their individual 24 capacity. Thus, the Court agrees with Defendants and dismisses all defendants to the extent 25 they are sued in their official capacity, leaving only the allegations against them in their 26 individual capacity. 27 The Court notes, sua sponte, that the SAC also includes allegations against Does 1 28 -493: 18-cv-02557-BEN-LL 1 2 3 4 5 through 50. This is improper. 20 A Section 1983 action must allege how each individual defendant directly participated in the violation of the plaintiff's rights. By virtue of including doe allegations, this feat is impossible. Given two and a half years have passed and Plaintiffs have had three attempts to frame the complaint, it seems unlikely that Plaintiffs are still looking for unnamed defendants believed to have violated Mr. 6 Boulanger's rights. As such, Does 1 through 50 are dismissed. 2. 7 8 9 lO Claims against Supervisory Defendants in their Individual Capacity Having dismissed all claims against all defendants to the extent those claims are brought against those defendants in their official capacity, the Court examines the claims against Supervisory Defendants in their individual capacity. 11 Defendants argue that the Fourth Claim for Relief fails for several reasons: First, 12 "[t]o the extent Plaintiffs seek to proceed against Supervisory Defendants in their 13 individual capacity, Plaintiffs have not alleged sufficient facts to state a claim" because 14 Plaintiffs do not allege either Supervisory Defendant had any direct involvement with Mr. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 The FRCP neither authorize nor prohibit the use of fictitious parties; however, FRCP 10 does require a plaintiff to include the names of all parties in his complaint. See Keavney v. Cty. of San Diego, No. 319CV01947AJBBGS, 2020 WL 4192286, at *4-5 (S.D. Cal. July 21, 2020) (Battaglia, J.) (citing FED. R. CIV. P. l0(a)). Plaintiffs' SAC includes allegations against Does 1 through 50. Naming doe defendants further implicates Rule 4 of the FRCP requiring service of the complaint. Id. (noting that "it is effectively impossible for the United States Marshal or deputy marshal to fulfill his or her duty to serve an unnamed defendant"); Finefeuiaki v. Maui Cmty. Corr. Ctr. Staff & Affiliates, 2018 WL 3580764, at *6 (D. Haw. July 25, 2018) (same). "A plaintiff may refer to unknown defendants as Defendant John Doe 1, John Doe 2, John Doe 3, and so on, but he must allege specific facts showing how each particular doe defendant violated his rights." Keavney, 2020 WL 4192286 at *4-5. Where a "[p]laintiff fails to link any particular constitutional violation to any specific, individual state actor," or seeks "to even minimally explain how any of the unidentified parties he seeks to sue personally caused a violation of his constitutional rights," the court must dismiss those individuals, especially when they have not been served. See, e.g., FED. R. CIV. P. 4(m) (providing that "[i]f a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time."); see also S.D. Cal. Civ. R. 41.l(a); Keavney, 2020 WL 4192286 at *4-5 (dismissing the plaintiff's first amended complaint). Thus, all doe defendants are dismissed without prejudice for want of prosecution pursuant to Rule 4(m). -503: 18-cv-02557-BEN-LL 1 Boulanger, and supervisors cannot be held liable under Section 1983 for the actions of their 2 subordinates. Mot. at 8:12-28. Defendants are correct that a supervisor may only be held 3 liable in an action brought pursuant to Section 1983 for a subordinate's constitutional 4 violations "if the supervisor participated in or directed the violations, or knew of the 5 violations and failed to act to prevent them." Maxwell v. Cty. ofSan Diego, 708 F.3d 1075, 6 1086 (9th Cir. 2013). This is because "[t]here is no respondeat superior liability under 7 1983 ." TaJJlouz.-1ist,880-F~d-1040;-104S{9tl:fCir.1989). Second, Plaintiffs' Fourth l~~----0:-+1-~~~, 8 Claim for Relief for failure to train against Supervisory Defendants contains no allegations 9 that either Supervisory Defendant actually personally participated in the training of any of lO the Deputy Defendants. Id. at 19:24-20:2. Third, even if Supervisory Defendants had 11 participated in the training of Deputy Defendants, Deputy Defendants' inmate checks "did 12 not cause Mr. Boulanger's suicide." Mot. at 20:5-7. Fourth, to the extent that the Deputy 13 14 Defendants have not violated Mr. Boulanger's constitutional rights, "there can be no 15 "(A] federal official's liability 'will only result from his own neglect in not properly 16 superintending the discharge' of his subordinates' duties." Iqbal, 556 U.S. at 676 (citing supervisor liability when there has been no constitutional deprivation." Id. at 20:9-12. 17 Dunlop v. Munroe, 11 U.S. 242,269 (1812)). Thus, "(u]nderSection 1983, supervisory 18 officials are not liable for actions of subordinates on any theory of vicarious liability." 19 Hansen v. Black, 885 F.2d 642, 645---46 (9th Cir. 1989). To hold a supervisor liable under 20 Section 1983, a plaintiff must show (1) "personal involvement in the constitutional 21 deprivation" or (2) "a sufficient causal connection between the supervisor's wrongful 22 conduct and the constitutional violation." Henry A. v. Willden, 678 F .3d 991, 1003-04 (9th 23 Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). 24 supervisors did not directly participate in the alleged wrongful conduct, as was the case 25 here, a plaintiff must plead facts showing the supervisor defendants "implement[ed] a 26 policy so deficient that the policy itself is a repudiation of constitutional rights and is the 27 moving force of the constitutional violation." Hansen, 885 F.2d at 646 (internal quotations 28 marks omitted). "The inquiry into causation must be individualized to focus on the duties Where the -513:18-cv-02557-BEN-LL 1 2 3 4 5 6 and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); see also Starr, 652 F .3d at 1207. "[A] plaintiff must show the supervisor breached a duty to plaintiff which was the proximate cause of the injury." Starr, 652 F.3d at 1207. A plaintiff may establish the requisite causal connection by showing ( 1) "a series of acts by others" or (2) a knowing refusal "to terminate a series of acts by others, which [the 7~ supervisor] knew or reasonable snoulcl nave known would cause others to mflict a 8 constitutional injury." Starr, 652 F.3d at 1207-08 (citing Dubner v. City & Cnty. of San 9 Francisco, 266 F.3d 959, 968 (9th Cir. 2001)). As the Supreme Court held in Ashcroft v. lO 11 Iqbal, "[b]ecause vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must 12 actions, has violated the Constitution." 556 U.S. 662, 676 (2009) (holding that the plaintiff l3 14 had failed to state a claim in his Bivens action against his jailers and various officials for 15 16 Mueller personally liable for unconstitutional discrimination if they did not themselves 17 18 their subordinates' violation, which Bivens and§ 1983 do not allow.") 19 culpable action or inaction in the training, supervision, or control of subordinates; (2) their 20 acquiescence in the complained-of constitutional deprivation; and (3) conduct that showed 21 a reckless or callous indifference to the rights of others.'" Shqfer v. City of Boulder, 896 22 F. Supp. 2d 915, 935 (D. Nev. 2012) (quoting Cunningham v. Gates, 229 F.3d 1271, 1292 23 (9th Cir. 2000)); see also Starr, 652 F.3d at 1205-09. Where a plaintiff seeks to hold a 24 supervisor liable in a Section 1983 claim for lack of training, the requisite state of mind is 25 "deliberate indifference" to the right of citizens whom the untrained officers are likely to 26 encounter. See, e.g., City of Canton, Ohio v. Harris, 489 U.S. 378,388 (1989). Under this 27 standard, a plaintiff must allege facts to show that the County and officers "disregarded the 28 known or obvious consequence that a particular omission in their training program would plead that each Government-official defendant, through the official's own individual unconstitutional discrimination; "[h]olding Attorney General Ashcroft and Director have a discriminatory purpose would be equivalent to finding them vicariously liable for Thus, "[i]n § 1983 lawsuits, 'supervisors can be held liable for: (1) their own -523: 18-cv-02557-BEN-LL 1 cause [municipal] employees to violate citizens' constitutional rights." Flores v. Cty. of 2 Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014). "To meet this standard, "[a] pattern of 3 similar constitutional violations by untrained employees is ordinarily necessary to 4 demonstrate deliberate indifference for purposes of failure to train." Connick v. Thompson, 5 563 U.S. 51, 62 (2011) (internal quotation omitted). Liability for failure to train officers 6 could conceivably arises from a single incident only where "in light of the duties assigned to specific officers ... the need or more or different training is so obvious, and the 8 inadequacy so likely to result in the violation of constitutional rights, that the policymakers 9 ... can reasonably be said to have been deliberately indifferent to the need." Canton, 489 lO U.S. at 390; see also Figueira by & through Castillo v. Cty. ofSutter, No. 2:15-CV-00500- ll 12 KJM•AC, 2015 WL 6449151, at *8 (E.D. Cal. Oct. 23, 2015) (dismissing claim for municipal liability with leave to amend and noting "[plaintiffs] suicide alone does not 13 plausibly establish that Yuba and Sutter County provided employees with inadequate 14 training by de facto policy" despite pleading two other deaths in the previous three years). 15 For instance, in Vance, the court dismissed the plaintiffs cause of action as to 16 individual defendants with leave to amend (albeit cautioning that the plaintiffs were being 17 given "one last attempt") so they could "identify how each of the individual defendants is 18 alleged to have violated the Plaintiffs' civil rights." 928 F. Supp. at 997. The court noted 19 that "Plaintiffs must allege with at least some degree of particularity overt acts in which 20 these Defendants engaged." Id. (citing Jones v. Community Redevelopment Agency, 733 21 F.2d 646, 651 (9th Cir. 1984)). The court noted that it "does not require proof as to the 22 events in question, but merely Plaintiffs' factual allegations." Id. "The Plaintiffs must 23 frame their Complaint with "clear and concise averments stating which defendants are 24 liable to plaintiffs for which wrongs." Id. (citing McHenry v. Renne, 84 F.3d 1172, 1175 25 (9th Cir. 1996)). 26 Returning to the Neil case, the court there noted that the SAC never (1) alleged 27 whether either supervisor "had a suicide prevention training or policy in place"; (2) 28 established a causal connection between any of the defendants and the events surrounding -533: l 8-cv-02557-BEN-LL 1 the student's suspensions, expulsion, and suicide; (3) alleged the supervisory defendants 2 "were aware of or participated in any of the circumstances as specifically related to the 3 decisions concerning" the student's discipline at either school; or (4) alleged the defendants 4 implemented any policies. 2017 WL 4652744 at *9. Instead, the only references to the 5 supervisory defendants "are generalized allegations of knowledge as to unconstitutional 6 suspension policies and conclusory statements as to failure to train . . . and suicide 7 · prevention as e cause of Neil's suicide." Id. However, "[a] pleading that offers labels 8 and conclusions or a formulaic recitation of the elements of a cause of action will not 9 do." Id. (citing Iqbal, 556 U.S. at 678 (internal citations omitted)). "General allegations 1O that do not establish a link between the conduct alleged and specific defendants do not meet 11 the minimal pleadings required to defend against a Rule 12(b)(6) motion and allegations 12 of what Defendants in general knew or did lacks the requisite specificity." Id. (internal 13 quotations omitted). Thus, the Court dismissed "the SAC's allegations with respect to the 14 supervisory defendants." Id. at * 10. 15 Similar to the SAC in Neil, the SAC here likewise fails to allege (1) that either 16 supervisor had a suicide prevention training or policy in place; (2) any causal connection 17 existed between the defendants named in the Third Claim for Relief and Mr. Boulanger's 18 injuries; (3) Supervisory Defendants were aware of or participated in the events 19 surrounding Mr. Boulanger's death-such as by approving of them or failing to terminate 20 them; or (4) Supervisory Defendants implemented any policies that caused Mr. 21 Boulanger' s death. As pied, the general allegations in the SAC, like the general allegations 22 in the Neil SAC, "do not establish a link between the conduct alleged and specific 23 defendants" such as would "meet the minimal pleadings required to defend against a Rule 24 12(b)(6) motion." Neil, at *9. 25 In dismissing the allegations against the supervisory defendants, the Neil court 26 analyzed the case of Vivanco v. California Dep 't of Corr. & Rehab., No. 27 117CV00434LJOBAM, 2017 WL 2547026, at *4 (E.D. Cal. June 13, 2017). In Vivanco, 28 a plaintiff-mother brought suit after her son committed suicide while incarcerated. Id. at -543:18-cv-02557-BEN-LL 1 * 1. The plaintiffs son "suffered from mental health issues, including severe depression." 2 Id. Staff where he was incarcerated called the son names; forced him to wear a straight 3 jacket; and deprived him of hygiene products as well as reading, writing, and entertainment 4 materials. Id. at * 1. Like the SDCCJ in this case, "regulations mandated visual welfare 5 checks of inmates every 30 minutes," but the plaintiff alleged that "prison staff regularly 6 confirmed checks without observing the inmate." Id. at *2. On the day the inmate ~ - -7~,. e0mmitted-suieide,an-offieer-saw-the-inmate-braitlingilis--sheetsauring a wel are c ec 8 and upon seeing this, said, '"we got a faker, and continued his rounds without removing 9 the sheets or alerting any other staff member." Id. at *2. When another officer conducted lO the next welfare check, an inmate told the officer he heard a struggle in the inmate's cell. 11 Id. at *2. Upon investigation, that officer discovered the inmate hanging from his sheet, 12 and the cause of death was declared suicide by hanging. Id. 13 asserted that various defendants failed to adequately supervise employees, which 14 constituted deliberate indifference. Id. at *2. It also included allegations that "customs, 15 practices or policies" at the state prison led to the inmate's suicide including the "failures 16 to establish a suicide prevention program, provide staff and training in order to offer 17 adequate psychiatric care, to implement sufficient safety and suicide prevention guidelines, 18 and to properly classify and house suicidal inmates." Id. at *4. However, the court held 19 those allegations were not sufficient to establish individual liability under Section 1983 to 20 survive a motion to dismiss. 21 demonstrating the supervisor defendant's role in any alleged deprivations. Id. at *4. There 22 was no allegation that the supervisory defendant "personally participated in any alleged 23 conduct" or was aware the staff was not adhering to policy regarding welfare checks. Id. 24 at *4. Thus, because "any potential liability is based upon ... [the supervisory defendant's] 25 actions, Plaintiff must allege with specificity what he knew and did, not what Defendants 26 in general knew and did." Id. at *4. Thus, the claim at issue was dismissed with leave to 27 amend. Id. at *4. 28 Id. The Vivanco complaint The complaint did not "plead specific facts" Even in the face of the egregiously improper soft count in Vivanco, the supervisory -553: l 8-cv,Q2557-BEN-LL 1 defendants were still not held liable because the plaintiff failed to plead the defendant's 2 role in the alleged constitutional violations (beyond mere conclusory allegations). The 3 Third Claim for Relief in Plaintiffs' SAC suffers from the same deficiencies. 4 Plaintiffs rely on Larez v. City ofLos Angeles, 946 F .2d 630 (9th Cir. 1991) for the 5 proposition that supervisory liability may be imposed in this case. However, in Larez, even 6 though the court held that to be held liable, a supervisor need not be "directly and ~-·~"/- persona ly mvoived7.n the same way as are the individual officers who are on the scene 8 inflicting constitutional injury," it still required participation, which could include the 9 supervisor's "own culpable action or inaction in the training, supervision, or control of his 10 subordinates," "acquiescence in the constitutional deprivations of which the complaint is 11 made," or "conduct that showed a reckless or callous indifference to the rights of others." 12 946 F.2d 630, 645-46 (internal citations omitted). Thus, Larez in no way means that 13 supervisors may be held liable without any involvement at all. 14 Plaintiffs also cite to Leon v. Cty. of San Diego, 115 F. Supp. 2d 1197, 1203 (S.D. 15 Cal. 2000), arguing that the case "rejected the argument that the Sheriff must have some 16 personal involvement with the decedent's death." ECF No. 59 at 28:21-22. However, not 17 only is this notthelaw, but Leon is also a pre-Twombly/Iqbal case. As a result, even though l8 the Court found the allegations of failure to train and supervise were sufficient to survive 19 a motion to dismiss, that court was applying an outdated legal standard that no longer 20 applies and does not apply to Defendants' Motion to Dismiss Plaintiffs' SAC. 21 Plaintiffs also cite to Shafer v. City ofBoulder, 896 F. Supp. 2d 915 (D. Nev. 2012) 22 for the proposition that supervisory defendants need not be physically present in order to 23 be held liable. Oppo. at 28:24-29:3. It may be that supervisors need not be physically 24 present to be held liable; however, just because a supervisor does not need to be physically 25 present does not mean he is alleviated from the requirement that he personally participate 26 in the alleged constitutional violations in some fashion. For example, in Shafer, even 27 though the supervisor was out of town, the court noted that ifhe approved of or condoned 28 of the acts at issue, he could still be held liable. 896 F. Supp. 2d at 936. Nonetheless, the -563: 18-cv-02557-BEN-LL 1 Court denied the motion for summary judgment because it found that a reasonable juror 2 could conclude that the police chief did not ratify the alleged unlawful actions, and as such, 3 did not violate a constitutional right. 896 F. Supp. 2d at 936. Thus, Shafer comports with 4 other case law by still requiring supervisor defendants to participate in the alleged unlawful 5 conduct, regardless of the whether the supervisors are physically present or not. 6 Finally, Plaintiffs rely on the case of Starr v. Baca for the proposition that a - - -7--1. .".supervis0r~need~n0t~be-directly-and~ersonaHy-involved~iirthe-same way as are tne 8 individual officers who are on the scene inflicting constitutional injury." Oppo. at 29:3-6 9 (citing Starr, 652 at 1205). Again, it may be that supervisor defendants need be "involved 1O in the same way as are the individual officers on the scene." However, those officers must 11 be involved in some capacity in order to be held liable. In Starr, a prisoner brought a 12 Section 1983 suit for damages from an attack he allegedly suffered while he was an inmate 13 in the county jail, and the district court dismissed the prisoner's supervisory liability claims 14 for deliberate indifference against the sheriff in his individual capacity. 652 F.3d at 1204. l5 On appeal, the Ninth Circuit held that the prisoner had sufficiently alleged a supervisory 16 liability claim of deliberate indifference against the sheriff in violation of the Eighth and I7 Fourteenth Amendments based on allegations that the sheriff failed to act to protect inmates 18 despite knowledge of them being in danger. Id. at 1208. The court noted holding a 19 supervisor liable on this basis still required "[a] showing that a supervisor acted, or failed 20 to act, in a manner that was deliberately indifferent," and that "the supervisor is being held 21 liable for his or her own culpable action or inaction, not vicariously liable for the culpable 22 action or inaction of his or her subordinates." Id. at 1206-07. On that basis, the court 23 concluded that under Iqbal, "a plaintiff may state a claim against a supervisor for deliberate 24 indifference based upon the supervisor's knowledge of and acquiescence in 25 unconstitutional conduct by his or her subordinates." Id. at 1207. Thus, the plaintiff's 26 "allegations that the actions or inactions of the person 'answerable for the prisoner's safe- 27 keeping' [e.g., the sheriff] caused his injury" were "sufficient to state a claim of supervisory 28 liability for deliberate indifference." Id. at 1208. -573: l 8-cv-02557-BEN-LL 1 As to Sheriff Gore, Plaintiffs allege that he "oversees the San Diego Central Jail and 2 ensuring [sic] compliance with all ofits policies and procedures including those mentioned 3 herein." SAC at 21:1-4. They further allege that he "was aware of a systemic problem 4 within his jail of failing to [a] prevent suicides because of inadequate staffing, ... [b] follow 5 policy and procedure, ... [c] identify at risk suicide candidates, ... [d] provide medical 6 aid to inmates detoxing from opiate addiction, ... [and] [e] provide medical care and access , - ~ ~7- to71Iental~healthclrugs m inmates w1tfilaiown or obvious suicidal ideations." Id. at 21 :48 11. Plaintiffs then conclusorily allege that "[t]he acts and/or omissions of SHERIFF were 9 a proximate cause of Richard Boulanger's death" without actually alleging what the acts IO 11 of Sheriff Gore were. 21 Id. at 21:13-14. While actions that shock the conscience show 12 deliberate indifference towards jail inmates such as Boulanger shocks the conscious," SAC 13 at 21 :15-17, do not create a plausible claim for relief. Iqbal, 556 U.S. at 676. deliberate indifference, conclusory allegations such as the allegation that "SHERIFF's 14 As to Lieutenant Kamoss, Plaintiffs' allegations boil down to pleading that Deputy 15 Dixon "worked under the direction and supervision ofKAMOSS, who set the policies and l 6 procedures with respect to inmate safety and security." SAC at 11 :4-7. Plaintiffs further 17 allege that Lieutenant Kamoss "failed to properly supervise deputy DIXON," id. at 13 :1, 18 19 21 As previously discussed, first, Plaintiffs' allegations of a failure to prevent suicides because of inadequate staffing are implausible because nowhere in the SAC do Plaintiffs 21 plausibly allege that Mr. Boulanger's death was caused, in part, due to inadequate staffing. Second, Plaintiff's allegations of a failure to follow policy and procedure fail because while 22 Plaintiffs' conclusorily allege Sheriff Gore was aware deputies failed to follow policy and 23 procedure, there are no allegations as to how he knew this, when he was informed of it, any basis for this knowledge, or which policies he knew were being violated. Thus, such '24 generalized allegations of knowledge fail to meet the Iqbal standard. Neil, 2017 WL 25. 4652744 at *9. Third, Plaintiffs' allegations of a failure to provide medical aid to inmates detoxing from opiate addiction fail in light of the fact that Mr. Boulanger was given 26 medication to detox upon booking. SAC at 8:2-3. Fourth, Plaintiffs' allegations ofa failure 27 to provide medical care and access to mental health drugs in inmates with known or obvious suicidal ideations also fail because the Court has already concluded that Mr. 28 Boulanger's suicidal intentions were neither known nor obvious. 20 -583:18-cv-02557-BEN-LL l and "[i]t is highly probable that had KAMOSS properly supervised DIXON, DIXON 2 would not have turned off everything in the watchtower." Id. at 11 :1-4. Plaintiffs also 3 point out that "Lieutenant Defendant KAMOSS reviewed the video of REYES performing 4 his alleged 'Soft Count' of Richard Boulanger ... and said it was not a sufficient 'life 5 check' because REYES did not have a count sheet with him and did not check wrist 6 bangs." Id. at 18:9-15. In fact, he stated he "would initiate an investigation for a policy ----"/- violation." Id. at 18:15-17. This Court finds that the fact that an investigation for a policy 8 violation would be initiated shows that inadequate proof of life checks were not part of 9 their official policy and were not approved ofby Lieutenant Kamoss. 10 Defendants also argue that Plaintiffs' allegations against the County fail "because 11 Plaintiffs specifically allege that Deputies Reyes and Dixon acted contrary to written policy 12 and there are no allegations of facts establishing a pattern of similar constitutional 13 violations." Mot. at 9:5-9. As they stated, "Simply referencing other jail suicides is not 14 enough since each instance involves [a] unique set of circumstances and none involve a 15 situation like this where thete was no known information suggesting a heightened risk of 16 suicide." Id. at 9:9-12. Plaintiffs respond that "it is very foreseeable that purposefully 17 muting out and ignoring inmate distress calls for immediate medical treatment could result 18 in a constitutional injury." Oppo. at 27:26-28. However, there is no allegation in the SAC 19 that either of Supervisory Defendants and/or the County had any idea calls were being 20 muted or ignored, much less if they did, that they failed to do anything about it. Plaintiffs 21 allege that Lieutenant Kamoss "developed and oversaw policies and procedures which 22 affect administrative activities as well as the care of patients in the County's detention 23 facilities." SAC at 33:8-16. They also argue "[a]ll Deputy Defendants worked under the 24 direction ofKAMOSS and GORE." Id. at 33:15. Plaintiffs also allege that "[t]here has 25 been an official policy of acquiescence in the wrongful conduct," and "Defendants failed 26 to promulgate corrective policies and regulations in the face of repeated Constitutional 27 violations." Id. at 34:7-10. Despite these allegations, Plaintiffs never allege any specific 28 previous incidences were Supervisory Defendants were made aware of either (1) muting -593: 18-cv-02557-BEN-LL 1 2 the intercom and/or (2) inadequate soft counts, and nonetheless, failed to do anything about it. 3 In King v. United States, 756 F. Supp. 1357, 1358-1359 (E.D. Cal. 1990), a plaintiff 4 wife brought a wrongful death suit after her husband, a Staff Sergeant in the Army and Air 5 Force, committed suicide after having a meeting with his Colonel, who told him about his 6 wife's arrest for suspected shoplifting. Ultimately, the court concluded that the wife "failed 7- to and is unable to show proximate cause [because] she is unable to establish the existence 8 of this element so completely essential to her case." Id. at 1360. As a result, the court 9 granted the government's partial summary judgment motion and dismissed the wrongful 10 death count of her complaint. Id. at 1361. In arriving at this decision, the court reiterated 11 how a "condition necessary for a finding of negligent liability requires a determination that 12 the ... supervisor's conduct 'proximately caused' [the inmate] ... to commit suicide." Id. 13 "Courts have long held that when, after a defendant's conduct occurs, an independent 14 intervening act operates to produce injury, the chain of causation may be broken." Id. at 15 1361. "The test is whether 'a reasonable [person] knowing the situation existing when the 16 act of the third person was done would not regard it as highly extraordinary that the third 17 person had so acted."' Id. (citing Rest. 2d, Torts,§ 447(b)). The court determined that 18 when it looked back at the death, "it would have appeared highly extraordinary that the 19 isolated event of his wife's arrest for suspected shoplifting would have brought about his 20 suicide." Id. 21 independent force-his own intention to kill himself." Id. at 1361. Further, his "meeting 22 with his superiors would also have been an independent intervening event, breaking the 23 chain of causation." Id. As a result, "the most that can be said concerning negligence is 24 that it provided a greater opportunity than already existed for [the decedent to] act." Id. at 25 1361. However, his death "required the intervention ofan additional independent force, to 26 wit, [his own] intentional act." Id. Thus, the Sergeant's "tragic death had to have involved an intervening, 27 Similar to the King plaintiff, Plaintiffs fail to and are unable to show Supervisory 28 Defendants' conduct proximately caused Mr. Boulanger's suicide. Plaintiffs never allege -603:18-cv-02557-BEN-LL 1 that Deputy Defendants were (1) in any way trained to mute the intercom or (2) perform 2 cursory checks of inmates. See generally SAC. Their allegations that "[t]he failure of 3 KAMOSS and GORE to properly train deputy Defendants was a proximate cause of his 4 death," id. at 19:33-5, are nothing more than conclusory allegations that fail to state a 5 plausible claim for relief, especially considering that there are no facts pied to show that 6 either Sherijf Gore or Lieutenant Kamoss trained Deputy Reyes or Dixon to violate policy-only that Deputy Defendants' conduct did, in fact, violate policy. In fact, Plaintiffs 8 plead no facts showing what kind of training the deputies did receive. There are also no 9 facts pied indicating whether the training was inadequate and/or whether there was never 10 any training in the first place. Certainly, if there was training, it would negate a general 11 failure to train claim in favor of an inadequate training claim. 12 E. 13 Defendants argue that even if Plaintiffs had alleged a constitutional violation, all of 14 the individuals would still be entitled to qualified immunity because there was no clearly 15 established law holding that "a defendant is found to violate the Constitution in a jail 16 suicide case where there is no information to even suspect the inmate has a heightened risk 17 of suicide." Mot. at 8:25-9:4, 15:13-18. Plaintiffs respond that "[t]his court has held 18 Qualified Immunity does not apply in situations such as those that gave rise to this lawsuit." 19 Oppo. at 30:20-21. However, Plaintiffs never allege the special issues in this particular 20 lawsuit are clearly established. See generally SAC. Qualified Immunity. 21 In the wake of George Floyd, "[t]he doctrine of qualified immunity has become the 22 subject of intense debate, as American policing has gone under the microscope." Mitch 23 Zamoff, Determining the Perspective of a Reasonable Police Officer: An Evidence-Based 24 Proposal, 65 Viii. L. Rev. 585, 596 (2020); see also Baxter v. Bracey, 140 S. Ct. 1862, 25 1865 (2020) (Thomas, J., dissenting) ("I continue to have strong doubts about our§ 26 1983 qualified immunity doctrine."). This Court lacks the power to overturn Supreme 27 28 -613: !8-cv-02557-BEN-LL 1 2 3 4 5 6 Court precedent and makes no comment about the propriety of doing so. 22 However, like many legal doctrines, quality immunity began with laudable purposes. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982) (recognizing "the general costs of subjecting officials to the risks of trial-distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service"). While police misconduct is unquestionably intolerable, courts must also acknowledge that 7 for every instance of such behavior, thousands of police officers put their lives on the line 8 on a daily basis in order to protect and serve the citizens of this country. Zamoff, 65 Vill. 9 L. Rev. 606-07 (noting that (1) "police officers operate in a work environment that is 10 fraught with risk," (2) "each year a large number of U.S. law enforcement officers are the 11 victims of assault," and (3) "many officers will have exposure (often repeated exposure) to 12 dangerous situations involving a risk of death or serious bodily harm"). If each officer 13 could be personally and individually sued in the line of duty, hardly anyone would want to 14 assume the risk of personal liability by serving as a police officer. While training of 15 officers could always be improved-just as, this Court suspects, training could be 16 improved in any profession, abrogating qualified immunity would not only open every 17 police officer up to personal liability, but would also open the floodgates to lawsuits for 18 any pre, during, or post-arrest condition not to a defendant's liking when our courts are 19 20 already overburdened. 21 22 22 23 24 25 26 27 , 28 "The U.S. House of Representatives recently adopted the 'George Floyd Justice in Policing Act of 2020' that would, among other things, eliminate qualified immunity as a defense in cases alleging excessive force by the police." Zamoff, 65 Vill. L. Rev. at 596. However, "Senate Republicans have characterized the eradication of qualified immunity as a 'non-starter' or 'poison pill' that will not be a feature of any police reform legislation endorsed by the Republican-controlled Senate." Id. Further, "although Supreme Court Justices from both ends of the ideological spectrum have expressed skepticism about the judicially manufactured doctrine of qualified immunity, the Court recently declined to hear a case that would have provided it with an opportunity to revisit the validity of the doctrine." Id. at 597-98. As a result, "absent additional developments in the political or judicial arenas, the qualified immunity defense will remain available to police defendants." Id. at 598. -623: l 8-cv-02557-BEN-LL 1 2 3 4 5 For now, absent congressional action or a Supreme Court decision abandoning the doctrine, qualified or absolute immunity remains an affirmative defense for government officials sued in their individual capacities in a Section 1983 action. Spoklie v. Montana, 411 F.3d 1051, 1060 (9th Cir. 2005). "Qualified immunity shields government officials performing discretionary functions from liability for civil damages unless their 6 conduct clearly established or _ constitutional rights a reasonable -L _ _ _violates ____ _____"'.__ _ _ _ _statutory _ __.__ _ _ _ ___..,,_ _of _which ___ _ _ _ _t-----l ~- - 7 person would have known." Estate ofLopez ex rel. Lopez v. Torres, 105 F. Supp. 3d 1148, 8 1164 (S.D. Cal. 2015) (citing Anderson v. Creighton, 483 U.S. 635, 638-40 (1987)); accord 9 Horton, 915 F.3d at 599. "This privilege is 'an immunity from suit rather than a mere 10 defense to liability; and like an absolute immunity, it is effectively lost if a case is 11 erroneously permitted to go to trial.'" Torres, 105 F. Supp. at 1164 (citing Saucier v. Katz, 12 533 U.S. 194, 200-01 (2001)). "Thus, the Supreme Court 'repeatedly [has] stressed the 13 importance of resolving immunity questions at the earliest possible stage in litigation."' 14 Torres, 105 F. Supp. at 1164 (declining to decide the issue of qualified immunity where 15 the court had already decided the complaint must be dismissed for other reasons) (citing 16 Saucier, 533 U.S. at 201); Kwai Fun Wong v. United States, 373 F.3d 952, 957 (9th Cir. 17 2004) (recognizing that a motion to dismiss on qualified immunity grounds puts the court 18 in the difficult position of deciding "far-reaching constitutional questions on a non-existent 19 factual record" and that while "government officials have the right . . . to raise . . . the 20 qualified immunity defense on a motion to dismiss, the exercise of that authority is not a 21 wise choice in every case"). However, "[w]hen qualified immunity is asserted at the 22 pleading stage, the precise factual basis for the plaintiffs claim or claims may be hard to 23 identify." Pearson v, Callahan, 555 U.S. 223, 238-39 (2009) (noting that "several courts 24 have recognized that the two-step inquiry 'is an uncomfortable exercise where ... the 25 answer [to] whether there was a violation may depend on a kaleidoscope of facts not yet 26 fully developed' and have suggested that '[i]t may be that Saucier was not strictly intended 27 to cover' this situation."). 28 The doctrine of qualified immunity attempts to balance two important and -633: 18-cv-02557-BEN-LL 1 2 3 4 5 6 sometimes competing interests: (1) "the need to hold public officials accountable when they exercise power irresponsibly" as well as (2) "the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson, 555 U.S. at 231. It must take into account the real-world demands on officials in order to allow them to act "swiftly and firmly" in situations where the rules governing their actions are often "voluminous, ambiguous,and contradictory." Mueller v. Auker, 576 F.3d 979, · 993-(9th-Cir:-2009}-tcitatimrumi:ttmt)-."The purpose oflnis doctrine 1s to recogmze tliat 8 holding officials liable for reasonable mistakes might unnecessarily paralyze their ability 9 to make difficult decisions in challenging situations, thus disrupting the effective lO performance of their public duties." Id. Thus, plaintiffs bringing a Section 1983 claim 11 against individual officers and seeking to avoid the defense of qualified immunity must 12 "demonstrate that (1) a federal right has been violated and (2) the right was clearly 13 established at the time of the violation." Horton, 915 F.3d at 599 (citing Pearson, 555 U.S. 14 at 232). A district court may address these questions in the order most appropriate to "the 15 circumstances in the particular case at hand." Pearson, 555 U.S. at 236, 242. 16 1. Violation of Constitutional Right 17 First, a court must determine whether, when construing all facts in the most favorable 18 light to the non-moving party, as required under the standard mandated by Rule 12(b)(6), 19 the plaintiff has made "out a violation ofa constitutional right." Pearson, 555 U.S. at 232. 20 21 As stated, this Court finds that in the absence of allegations that the individual defendants knew Mr. Boulanger was a suicide risk, neither an inadvertent muting of an intercom nor 22 improper soft counts-even where they may have unintentionally caused a delay in 23 rendering care-constitutes a constitutional violation. Although not· required to continue 24 to the next step if a violation of a constitutional right has not been established, see, e.g., 25 Saucier, 533 U.S. at 201 (providing that ifa court determines that Plaintiffs allegations do 26 not support a statutory or constitutional violation, "there is no necessity for further inquiries 27 concerning qualified immunity"), because the Court is dismissing the entire SAC, the 28 Court, nonetheless, continues onto the second step. -643: l 8-cv-02557-BEN-LL 1 2. Clearly Established Law 2 If a court decides that the facts a plaintiff has alleged show "a violation of a 3 constitutional right," Pearson, 555 U.S. at 232, "[t]he plaintiff bears the burden of showing 4 that the right he alleges to have been violated was clearly established," Collins v. Jordan, 5 110 F.3d 1363, 1369 (9th Cir. 1996). A right is clearly established "[i]fthe only reasonable 6 conclusion from binding authority [was] that the disputed right existed," Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997), and "every reasonable official would have 8 understood that what he is doing violates that right." Horton, 915 F.3d at 599 (citing 9 Isayeva v. Sacramento Sheriff's Dep 't, 872 F.3d 938, 946 (9th Cir. 2017) (quoting Mullenix IO v. Luna, 577 U.S. 7, 11 (2015))). Generally, "[i]f the controlling law is not clearly 11 established, a reasonable person would not be expected to know how to structure his 12 conduct in order to avoid liability." Romero v. Kitsap County, 931 F.2d 624, 628 (9th Cir. 13 1991 ). "This is not to say that an official action is protected by qualified immunity unless 14 15 the very action in question has previously been held unlawful[.]" Hope v. Pelzer, 536 U.S. 16 to a hitching post as punishment, even though no earlier cases had materially similar facts). 17 Only "when the defendants' conduct is so patently violative of the constitutional right that 18 reasonable officials would know without guidance from the courts that the action was 19 unconstitutional, closely analogous pre-existing case law is not required to show that the 20 law is clearly established." Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994). This is 21 an "exacting standard" which "gives government officials breathing room to make 22 reasonable but mistaken judgments by protect[ing] all but the plainly incompetent or those 23 who knowingly violate the law." City and County of San Francisco, Cal v. Sheehan, 575 24 U.S. 600, 135 S. Ct. 1765, 1774 (2015) (alteration in original; internal quotation marks 25 omitted). If the officer makes a reasonable mistake as to what the law requires, then, the 26 right is not clearly established, and the officer is entitled to immunity. Torres, I 05 F. Supp. 27 3d at 1164. 28 730, 739 (2002) (denying qualified immunity to prison guards who handcuffed an inmate Thus, Plaintiffs must show that, given the available case law at the time of Mr. -653: l 8-cv-02557-BEN-LL I 2 Boulanger's attempted suicide, a reasonable officer, knowing what Deputies Reyes and Dixon knew, would have understood that they created a substantial risk of harm to Mr. 3 Boulanger such that their the failure to act was unconstitutional by (I) muting the intercom 4 and (2) failing to check on Mr. Boulanger more than visual glances every half hour or more. 5 The Court now turns to the directly applicable case law on point, which is sparse. 6 At the time of Mr. Boulanger's incident, the Ninth Circuit had held that officers who 9- · failed to provide medical assistance to a detainee should have known that their conduct 8 was unconstitutional in two instances, neither of which resemble the facts in this 9 case. See Clouthier v. County of Contra Costa, 591 F.3d 1232, 1244-45 (9th Cir. IO II 2010), overruled by Castro, 833 F.3d at 1244-45; Conn, 591 F.3d 1081. 12 Section 1983, alleging a mental health specialist, two sheriffs deputies, and the County of 13 Contra Costa violated the Fourteenth Amendment due process right of their son by failing 14 to prevent his suicide while he was in pretrial detention. 591 F.3d at 1236. After filling 15 out a mental health questionnaire, the detainee was evaluated by a mental health specialist In Clouthier, the plaintiffs and parents of a detainee brought a lawsuit pursuant to I 6 and told her several times he was suicidal and "wanted to be 'unconscious for the rest of -· 17 his life."' Id. at 1237. The specialist's notes indicated the detainee had made numerous 18 19 past suicide attempts. Id. Later that day, the detainee informed the specialist that he was 20 medications, and a psychiatrist prescribed anti-depressants and Trazodone to help the 21 detainee sleep. Id. at 1237-38. The psychiatrist also recommended that the detainee be 22 placed in a housing section for unstable inmates, which was done. Id. at 1238. Around 23 7:00 p.m. that evening, a different mental health worker went to speak with the detainee 24 for less than five minutes, and on the basis of that brief conversation, informed a deputy 25 that the detainee could be given regular prison clothes and a blanket but not any utensils or 26 personal hygiene items and removed from the observation room. Id. Before he was moved, 27 he had been documented as skipping meals and free time. Id. at 1238-39. After dinner on 28 the day he was moved, a deputy came to let the detainee's roommate out for recreational not feeling suicidal anymore. Id. Nonetheless, the specialist persuaded him to consider -663: 18-cv-02557-BEN-LL 1 time and told the detainee he would return to take him out for recreational time later. Id. 2 at 1240. The detainee' s roommate testified that although the deputy claimed he did not see 3 the knotted sheet, when the roommate left the room, "he saw the sheet, still knotted, sitting 4 on the edge of the bed, hanging over slightly," and although the deputy did not ~ay anything 5 about the sheet, "he sure should have been able to see it." Id. at 1240. Roughly thirty 6 minutes later, the deputy and a nurse went into the detainee's cell and discovered him ------1- 7 hanging by the neck from the knotted sheet. Id. Like Deputy Defendants here, the deputy 8 administered CPR, and the detainee was taken to the hospital, where he died after being 9 removed from life support ten dates later. Id. The detainee's parents sued alleging that the 10 deputies and county had violated his constitutional rights under the Fourteenth Amendment 11 due to the officials' deliberate indifference to the detainee's serious medical needs. Id. 12 "They also alleged that Clouthier's death was caused by the C:ounty's established policies, 13 its failure to train employees, and its ratification of the officials' illegal actions." Id. "After 14 discovery, the defendants moved for summary judgment, which the district court granted 15 on the merits as to each defendant." Id. 16 Although Clouthier applied a no longer applicable subjective standard, the analysis 17 is still insightful. The Clouthier court concluded that as to the mental health specialist, she 18 was not entitled to qualified immunity where she instructed officials to remove the detainee 19 from suicide monitoring and return his clothes and bedding despite (1) knowing that the 20 detainee was suicidal and had attempted suicide multiple times and (2) another staff 21 member placing the detainee in a suicide smock and warning he needed constant 22 monitoring to ensure his safety. Id. at 1238-43. 23 As to the deputy, however, the Clouthier court concluded that "the evidence adduced 24 by the Clouthiers is insufficient to allow a jury to conclude that Foley knew Clouthier was 25 suicidal and deliberately ignored that risk." Id. at 1247. It noted that there were no 26 allegations that the deputy "had in fact seen the knotted sheet," and the parents "adduced 27 no evidence to that effect." Id. at 1248-49. Thus, the deputy's testimony that "he did not 28 see the knotted sheet is therefore undisputed." Id. at 1249. Further, even though the deputy -673:18-cv-02557-BEN-LL 1 had been told the inmate "was suicidal, had 'numerous prior attempts' at suicide, and 2 needed to be on IS-minute checks," he "had no other information regarding Clouthier's 3 mental state" as he "did not have access to ... notes or [the inmate's] ... medical chart, 4 and he had not seen Clouthier's health questionnaire detailing his mental health history." 5 Id. at 1247. Further, to the deputy, the inmate's "removal from the Observation Log meant 6 he could be moved out ofan Observation Room and into M---Module's general population, 7 and in his "experience, inmates having extremel~s_erious_mental-health-i-ssues-wmtld-be-~~ 8 transferred to the County's Psychiatric Emergency Services." Id. at 1247. As a result, the 9 district court did not err by granting summary judgment because the record included 1O insufficient evidence to create a genuine issue of material fact as to whether the deputy was 11 deliberately indifferent to a substantial risk of serious harm to the detainee, and thus, was 12 entitled to qualified immunity. Id. at 1247. In the absence of deliberate indifference, the 13 plaintiffs could not establish a constitutional violation to show liability under Section 1983 14 or why the deputy should not receive the benefit of qualified immunity. IS Returning to Conn, however, the Ninth Circuit denied qualified immunity at the 16 summary judgment stage to officers who did not render help to the pre-trial detainee who, 17 while being transported, wrapped a seatbelt around her neck in an apparent attempt to 18 choke herself and threatened to commit suicide. 591 F.3d at 1090, 1102. After being 19 released. and re-arrested the following day, she committed suicide in her cell. Id. at 1091. 20 The court reasoned that "[w]hen a detainee attempts or threatens suicide en route to jail, it 21 is obvious that the transporting officers must report the incident to those who will next be 22 responsible for her custody and safety." Id. at 1102. 23 Finally, in Horton, the Ninth Circuit found an officer entitled to qualified immunity. 24 915 F.3d at 599-602. Although the Ninth Circuit decided Horton in 2019, after Mr. 25 Boulanger's suicide attempt, and as such, it could not have served as "clearly established 26 law" at the time of the incident, the analysis is, nonetheless, inciteful as its facts more 27 closely resemble this case. In Horton, an eighteen-year-old boy was arrested, taken to the 28 local police department, and detained in a temporary holding cell. Id. at 596. The officer -683: i 8-cv-02557-BEN-LL 1 2 3 4 explicitly asked the detainee whether he was having any medical issues, and the detainee responded in the negative. Id. at 601. However, from speaking with the detainee's mother, the officer was aware that the detainee had been suicidal two weeks before his arrest, and she thought he remained a suicide risk. Id. The officer also spoke with the detainee's 5 girlfriend who informed the officer of the detainee's previous violent episodes but did not 6 indicate any present suicidal intentions. Id. at 601. The officer left the detainee unattended 7 for approximately a half hour while he spoke with the detainee's mother and completed 8 paperwork. Id. at 596. During that time, the detainee "removed his belt, fed it through the 9 cell door bars, and hanged himself, causing permanent and severe damage." Id. The lO 11 defendant's mother, acting as guardian ad litem, filed suit alleging (1) negligence, (2) § 12 under Monell, and (4) liability under California Government Code,§ 845.6 on the part of 13 all defendants. Id. at 598. 1983 liability on the part of the officers, (3) liability on the part of the municipal defendants 14 On appeal, the Ninth Circuit determined that based on the facts as well as the law at 15 the time of the incident, including Conn, "a reasonable officer would not have known that 16 failing to attend to Horton immediately would be unlawful." Horton, 915 F.3d at 601. The l7 court noted that the detainee had neither attempted suicide in the presence of the officer, 18 like the detainee in Conn, 501 F.3d at 1102, nor had he attempted suicide multiple times, 19 been placed with significant suicide prevention measures, and had those measures removed 20 like the detainee in Clouthier, 591 F.3d at 1245. "In short, whether or not Officer Brice 21 was in fact deliberately indifferent to a substantial risk that Horton would attempt suicide 22 in the time before he was checked, there was no case law at the time of the incident clearly 23 establishing that a reasonable officer should have perceived the substantial risk." Horton, 24 915 F.3d at 601. Thus, the case law at the time of the suicide attempt "was simply too 25 sparse and involved circumstances too distinct from those in this case, to establish that a 26 reasonable officer would perceive a substantial risk that Horton would imminently attempt 27 suicide." Id. at 601-02. 28 Here, the deputies named in this lawsuit did not witness Mr. Boulanger attempt -693: 18-cv-02557-BEN-LL 1 2 suicide in their presence prior to the alleged wrongful acts in this case, like the Conn detainee. 501 F.3d at 1102. The deputies also did not have knowledge of significant 3 · suicide prevention measures previously having been in place, like the detainee in Clouthier, 4 as none had been in place here. 591 F.3d at 1245. Further, in Horton, even where the 5 officers were explicitly told the detainee was a suicide risk by the detainee's mother, the 6 Ninth Circuit still held that the officer was entitled to qualified immunity. 915 F.3d at 601. ~ - __7_ · ~Jfthe~officersinHorton 8 received tfie ene 1t of qualified immunity despite being explicitly told the detainee was a suicide risk, then, even if Plaintiffs had alleged Deputies Dixon and 9 Reyes were told Mr. Boulanger was a suicide risk, this Court would agree with the Horton 1O court by likewise finding that the officers should still receive the benefit of qualified 11 immunity. 12 Defendants assert that the objective standard under Gordon does not apply because 13 that standard was established in 2018, and the Court must determine qualified immunity 14 based on the clearly established law at the time of the incident, in 2016. Mot. at 22:5-12 15 (citing Horton, 915 F .3d at 601 (providing that the new objective standard "has no bearing 16 on the question of whether [the individual defendants] would have known that [their 17 conduct] violated a clearly established right at the time of the incident")). Defendants argue 18 that "[i]f Plaintiffs cannot identify any such case [in which a defendant is found to violate 19 the Constitution in a jail suicide case where there is no information to even suspect the 20 inmate has a heightened risk of suicide], then the individual defendants are entitled to 21 qualified immunity." Mot. at 22:17-18. This Court concludes that Plaintiffs have not 22 identified any clearly established Supreme Court or Ninth Circuit case law prior to the 23 February 12, 2016 incident that would warrant overcoming qualified immunity. No cases 24 have held or suggested that deputies in a correctional setting should be liable for the suicide 25 attempt of an inmate where according to the SAC, someone-although not necessarily the 26 deputies accused of wrongful conduct-knew a detainee had a history of mental illness and 27 was going through withdrawal but had, nonetheless, been given medical care (e.g., 28 medication) for that withdrawal. There are also no cases that have held or suggested that -703:18-cv-02557-BEN-LL 1 2 deputies should be held liable for muting an intercom-whether intentionally or unintentionally-where it has not been shown that the muting of the intercom was done to 3 intentionally ignore pleas by others for medical care to an inmate attempting suicide. As 4 such, this Court concludes that Deputies Reyes and Dixon along with Supervisory 5 Defendants are entitled to qualified immunity, particularly, in the absence of Plaintiffs' _ _ _6 7 that supervisors may not be held liable under Section 1983 "where no injury or 8 constitutional violation has occurred"). Therefore, the claims against Deputy Defendants 9 and Supervisory Defendants are dismissed with prejudice. _J 10 11 ability to plead a constitutional violation. See, e.g., JK.J, 2020 WL 73 8178 at *8 (holding F. Plaintiffs' Fourth and Fifth Claims for Relief Under Monell Against the County of San Diego. 12 As stated, Plaintiffs' Fourth Claim Relief included the County of San Diego in its 13 allegations of failure to train. Plaintiffs' Fifth Claim for Relief for Monell Municipal 14 Liability alleges "Defendant County of San Diego maintained an unconstitutional policy, 15 ordinance or regulation which allowed their deputies and medical staff to deny medical 16 care to inmates," which violated "substantive guaranties of the Fourth, Eighth[,] and 17 Fourteenth Amendments to the U.S. Constitution." SAC at 35:16-19, 40:1-17. Plaintiffs 18 allege "the permanent, widespread, well-settled practice or custom of Defendant was to 19 deny treatment to inmates in serious medical distress and to place inmates in administrative 20 segregation instead of the medical ward when inmates are in need of medical care when 21 they request medical attention and denying them access to medical care." SAC at 36:4-10. 22 Here, the SAC contains no allegations that Mr. Boulanger was denied medical care; rather 23 24 25 26 27 28 the allegations seem to be that his access to medical care was delayed. In fact, the SAC alleges he was given medical care. SAC at 8:1-3, 9:1-6. The SAC also has no allegations pertaining to whether Mr. Boulanger was placed in administrative segregation, had requested medical care, and/or had asked to be placed in the medical ward. Thus, the other allegations appear to lack relevance to the facts pertaining to Mr. Boulanger. Defendants argue that Plaintiffs' claims against the County fail for three reasons: -713:18-cv-02557-BEN-LL 1 2 3 4 5 6 First, because the individual defendants did not violate Plaintiffs' constitutional rights, the municipal claim is moot because "[a] prerequisite to any municipal civil rights claim is proof that a municipal employee violated at least one of the plaintiffs constitutional rights." Mot. at 23:2-9 (citing Forrester v. City of San Diego, 25 F .3d 804, 808 (9th Cir. 1994); Los Angeles v. Heller, 475 U.S. 796, 799 (1986). Second, Defendants argue that "Plaintiffs do not seem to be suggesting that a County policy directed the allegedly - ~ ~7---'-'· _offending_conducti;..i]nstead,-Eiaintiffs_affirmati¥el3/-allege-that-Deputy-Re.ye.s-and-Di*0n-'----' 8 9 [were] acting contrary to or inconsistent with existing County Policy." Mot. at 16:26-17:2. As such, the policy itself could not be unconstitutional if the alleged wrongful conduct 1O involved violating the policy. Third, Defendants argue that even though the SAC 11 references other jail deaths in an attempt "to suggest a widespread pattern of deficient 12 training ... Plaintiffs cannot meet their burden ... because they cannot establish there was 13 a pattern of prior constitutional violations, i.e. where a County employee was found liable 14 for violating the inmate's constitutional rights." Id. at 25:10-18 (citing Fernandez v. 15 District of Columbia, 382 F. Supp.2d 63, 77-78 (D.D.C. 2005)). Plaintiffs respond that 16 "[t]he SAC scrupulously alleges a widespread unconstitutional pattern in San Diego Jails." 17 Oppo. at 34:4-5. Thus, "it is plausible to conclude that the facts in the SAC, paired with 18 19 CLERB's findings, are more than sufficient for a valid Monnell claim." Id. at 34:5-8. 20 municipality or local government may be held liable for constitutional violations under § 21 1983. 22 under§ 1983 solely because it employs a tortfeasor--or, in other words, a municipality 23 cannot be held liable under§ 1983 on a respondeat superior theory.'" Scalia, 308 F. Supp. 24 3d at 1077-79 (citing Monell, 436 U.S. at 691); see also Horton, 915 F.3d at 603 ("A 25 municipality may not, however, be sued under a respondeat superior theory"). "Instead, a 26 municipality can only be held liable for injuries caused by the execution of its policy or 27 custom or by those whose edicts or acts may fairly be said to represent official policy." 28 Scalia, 308 F. Supp. 3d at 1078 (citing Monell, 436 U.S. at 694). A "policy" is a "deliberate In Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978), the Supreme Court held a Id. "Monell is clear, however, that 'a municipality cannot be held liable -723:18-cv-02557-BEN-LL 1 choice to follow a course of action ... made from among various alternatives by the official 2 or officials responsible for establishing final policy with respect to the subject matter in 3 question." Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). "[A] local governmental 4 entity may be liable if it has a 'policy of inaction and such inaction amounts to a failure to 5 protect constitutional rights."' Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 6 2001) (quoting Oviatt v: Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)). Accordingly, a plaintiff seeking to hold a municipality liable must show: (1) the plaintiff was deprived of 8 a constitutional right; (2) the defendant-municipality had a policy or custom; (3) the 9 defendant's policy or custom amounted to deliberate indifference to the plaintiffs lO constitutional right; and (4) the policy or custom was the moving force behind the 11 constitutional violation. Mabe v. San Bernardino Cty., 23 7 F .3d 1101, 1110-11 (9th Cir. 12 2001); see also Estate of Wilson by & through Jackson v. Cty. of San Diego, No. 20-CV- 13 457-BASsDEB, 2020 WL 3893046, at *5 (S.D. Cal. July 10, 2020) (quoting Anderson v. 14 Warner, 451 F.3d 1063, 1070 (9th Cir. 2006)). "Although the requisites for municipal 15 liability under§ 1983 can be stringent, municipalities sued under§ 1983, unlike 16 individuals, are not entitled to immunity, qualified or otherwise, and so, unlike individuals, 17 18 can never be immune from trial." Horton, 915 F.3d at 603. 19 20 21 22 23 24 25 26 27 28 1. Plaintiffs Failed to Sufficiently Allege a Constitutional Violation by the Individuals With respect to the first requirement for municipal liability, "[n]either a municipality nor a supervisor, however, can be held liable under§ 1983 where no injury or constitutional violation has occurred." J.K.J., 2020 WL 738178 at *8 (dismissing the claim for municipal liability because the plaintiff had failed to state a claim for relief for violation of the plaintiffs constitutional rights, and as such, the claim for municipal liability must fail) (quoting Jackson v. City of Bremerton, 268 F.3d 646, 653-54 (9th Cir. 2001); see also Forrester, 25 F .3d at 808 ("[None] of our cases authorizes the award of damages against a municipal corporation based on the actions of one of its officers if in fact the jury has concluded that the officer inflicted no constitutional harm"). In this case, because Plaintiffs -733: l 8-cv-02557-BEN-LL 1 have failed to plead a deprivation of a constitutional right, the Monell claim fails as a matter 2 of law due to their failure to describe deliberate indifference. However, because the Court 3 is dismissing the entire complaint, the Court continues its analysis to show why even if 4 Plaintiffs described a deliberate violation of a constitutional right, the Court would still 5 dismiss the claims against the County. 2. Plaintiffs Pied the County Had a Custom or Practice 6 -~~7--l---~~---:----:-----:--=----:---:-:---:-:--:--------=------:-:--:--:----:-----:-:----_-:--:_-::------i-~1 With regard to the second factor, "municipalities may be liable under§ 1983 for 8 constitutional injuries pursuant to: (1) an official policy; (2) a pervasive practice or custom; 9 (3) a failure to train, supervise, or discipline; or (4) a decision or act by a final 10 policymaker." Horton, 915 F.3d at 602-03. 11 Here, Plaintiffs' allegations focus on a "pervasive practice of custom." While 12 Plaintiffs alleged the County had a custom or policy, SAC at 11, 17, in satisfaction of the 13 second factor, they fail to plausibly plead that that custom or practice proximately caused 14 a violation of Plaintiffs' constitutional rights, as analyzed below. 15 16 3. The SAC Fails to Plausible Plead the County's Custom or Practice Amounted to Deliberate Indifference to Constitutional Rights With regard to the third element (e.g., the policy was the moving force behind the 17 18 constitutional violation), "[a] plaintiff must ... show "deliberate action attributable to the 19 municipality [that] directly caused a deprivation of federal rights." Horton, 915 F.3d at _20 603 (quotingBd. ofCty. Comm'rs v. Brown, 520 U.S. 397,415 (1997)). "Where a court 21 22 fails to adhere to rigorous requirements of culpability and causation, municipal liability 23 As stated, "[a] policy can be one of action or inaction," Long v. County of Los 24 Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006), which "can be formal or informal." Scalia, 25 308 F. Supp. 3d at 1078 (citing City ofSt. Louis v. Praprotnik, 485 U.S. 112, 131 (1988)). 26 "A county's failure adequately to train its employees to implement a facially valid policy 27 can amount to deliberate indifference." Long, 442 F .3d at 1188. "In limited circumstances, 28 a local government's decision not to train certain employees about their legal duty to avoid collapses into respondeat superior liability." Brown, 520 U.S. at 415. -743: 18-cv-02557-BEN-LL 1 violating citizens' rights may rise to the level of an official government policy for purposes 2 of§ 1983." Connickv. Thompson, 563 U.S. 51, 61 (2011). "A municipality's culpability 3 for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." 4 Connick, 563 U.S. at 61; see also Oklahoma City v. Tuttle, 471 U.S. 808, 822-823 (1985) 5 (plurality opinion) ("[A] policy of inadequate training is far more nebulous, and a good 6 deal further removed from the constitutional violation, than was the policy in Monell") ----I 7 (internal quotations omitted). However, "[w]hile inadequacy of training may constitute a 8 'policy' giving rise to Monell liability, 'adequately trained [employees] occasionally make 9 mistakes; the fact that they do says little about the training program or the legal basis for IO holding the [municipality] liable."' Scalia, 308 F. Supp. 3d at 1078 (quoting City ofCanton 11 v. Harris, 489 U.S. 378, 379 (1989)). "Therefore, a claim of inadequate training is only 12 cognizable under§ 1983 'where [the County]'s failure to train reflects deliberate 13 indifference to the constitutional rights of its inhabitants."' Scalia, 308 F. Supp. at 1078 14 (citing Harris, 4889 U.S. at 392). "Only then can such a shortcoming be properly thought 15 of as a city policy or custom that is actionable under§ 1983." Connick, 563 U.S. at 61 16 (internal quotations omitted). 17 to deliberate indifference, it is 'ordinarily necessary' to demonstrate 'a pattern of similar 18 constitutional violations by untrained employees."' Scalia, 308 F. Supp. at 1078 (quoting 19 Connick, 563 U.S. at 62. "In certain cases, however, a showing of 'obviousness ... can 20 substitute for the pattern of violations ordinarily necessary to establish municipal 21 liability."' Id. (quoting Connick, 563 U.S. at 63). "In order to show that a failure to train amounts 22 "In resolving the issue of a city's liability, the focus must be on adequacy of the 23 training program in relation to the tasks the particular officers must perform." Canton, 489 24 U.S. at 390). "That a particular officer may be unsatisfactorily trained will not alone suffice 25 to fasten liability on the city, for the officer's shortcomings may have resulted from factors 26 other than a faulty training program." 27 Kibbe, 480 U.S., at 268 (O'CONNOR, J., dissenting); Oklahoma City v. Tuttle, supra, 471 28 U.S., at 821 (opinion of REHNQUIST, J.)). "It may be, for example, that an otherwise Id. at 390-91 (1989) (citing Springfield v. -753: l 8-cv-02557-BEN-LL I sound program has occasionally been negligently administered." Canton, 489 U.S. at 391. 2 "Neither will it suffice to prove that an injury or accident could have been avoided if an 3 officer had had better or more training, sufficient to equip him to avoid the particular injury- 4 causing conduct." Id. "Such a claim could be made about almost any encounter resulting 5 in injury, yet not condemn the adequacy of the program to enable officers to respond 6 properly to the usual and recurring situations with which they must deal." Id. ,~~~-7-,,-~~~H~ere_,_aKeYidence-o:l'-the-G0unty-'-s-failure-to--traimmu-Mwre/tiia6ility,Plamt1ffs rely 8 only on evidence concerning two employees, Deputies Dixon and Reyes, which is not 9 enough to constitute a program-wide policy of deliberate indifference. See, e.g., IO 11 Blankenhorn v. City or Orange, 485 F.3d 463, 484 (9th Cir. 2007} ("[E]vidence of the 12 policy."). "[A]bsent evidence ofa program-wide inadequacy in training, any shortfall in a 13 single [employee's] training can only be classified as negligence on the part of the 14 municipal defendant-a much lower standard of fault than deliberate indifference." Id. 15 Here, the Court finds the alleged shortfalls in only one employee's training regarding soft 16 counts and another employee's training regarding watchtower duty similarly falls under 17 18 the concept of simple negligence, not deliberate indifference. Because the connection 19 20 both unidentified and are far too tenuous to satisfy the high Monell standard, as pied, the 21 For example, in Villarreal, the court considered the defendants' motion to dismiss 22 the plaintiffs' claims for deliberate indifference of the prison officials to the medical needs 23 of prisoners alleged against the County. 254 F. Supp. 3d at 1185. The court noted that 24 "the deliberate indifference of prison officials to the medical needs of prisoners may . . 25 . 'rise to the conscience-shocking level' required for a substantive due process 26 violation.'" 27 indifferent conduct will generally 'shock the conscience" so as long as the prison official 28 had time to deliberate before acting or failing to act in a deliberately indifferent failure to train a single officer is insufficient to establish a municipality's deliberate between the County's alleged failure to train and the alleged constitutional violations are Court must grant Defendants' motion to dismiss such claims. Id. (citing Lemire, 726 F.3d at 1075). "A prison official's deliberately -763:18-cv-02557-BEN-LL 1 2 3 4 5 manner." Id. The County, however, did not argue that it "lacked the time to deliberate before acting or failing to act." Id. Instead, the complaint alleged "that the County was on notice of its deficient policies as early as 2007, which is 8 years before Gillis's death." Id. at 1185. As a result, the court determined the plaintiffs had "sufficiently alleged that the County was deliberately indifferent to Gillis's serious medical needs" as well as _ _ _6_. "'conscience-shocking' conduct as required for Plaintiffs' claim for substantive due,____., 7 process violations." Id. (citing See Lemire, 726 F.3d at 1085). Accordingly, the court 8 denied the County's motion to dismiss the claims against it. Id. at 1186. Here, similar to 9 the Villarreal plaintiffs, Plaintiffs allege "[d]eaths of 60 inmates in the San Diego County IO jails in a span of five years," SAC at 37:9-10, "supports an inference that Defendants are 11 12 promoting and maintaining a culture of deliberate indifference to human life at the Jail," id. at 37:16-20. However, unlike the Villarreal plaintiffs, Plaintiffs' claims here are not 13 plausible because they (1) fail to cite that any of the other deaths at the SDCJ resulted from l4 the same causes as Mr. Boulanger's death and (2) lack plausibility in light of allegations 15 that Mr. Boulanger did, in fact, receive medical care. SAC at 8:3, 9: 1-4. 16 In Clouthier, the court granted summary judgment with respect to the claims against 17 the County because the plaintiffs "failed to adduce sufficient evidence to create a genuine 18 issue of material fact as to whether Clouthier's death was due to a long-standing custom or 19 practice, an act of omission that amounted to deliberate indifference, or actions the County ; 20 adopted as policy when it failed to discipline its employees." 591 F.3d at 1254. Here, 21 Plaintiffs have alleged Mr. Boulanger's death was "the proximate result of a custom, 22 policy, pattern or practice of deliberate indifference by COUNTY to the repeated violations ' 23 of the constitutional rights of citizens by Sheriff deputies working at the San Diego County 24 Jail." SAC at 38:14-39:3. However, similar to the Clouthier plaintiffs, Plaintiffs fail to 25 plead sufficient facts to create a plausible claim for relief under any of these legal theories. 23 26 27 28 23 First, Plaintiffs allege that "[t]here was a custom and practice of not properly counting, checking on, and/or monitoring the wellbeing of inmates, including those incarcerated going through heroin withdrawal." SAC at 36:11-14. However, the SAC also -773: 18-cv-02557-BEN-LL 1 In this case, the SAC alleges that "Sheriffs Detentions Policy, I.I, Emergency Alarms 2 Systems, provides a means for detention facility staff and inmates to summon emergency 3 medical assistance." SAC at 9:17-23 (elaborating that "[a]larm buttons that are located in 4 5 alleges that Mr. Boulanger was counted as well as checked on, albeit that Deputy Reyes may not have done proper checks. SAC at 17:4-17. The SAC also fails to allege that other 6 deputies have performed improper checks, such that it was a "custom and practice," rather 1--------~~----,. th.aILjusLan_oy_ersighLby-Deputy-Reyes~-~eGend,P.laintiffs-aHege-there-was-''ft]here-wascr custom and practice of failing to communicate the immediate medical needs of inmates 8 experiencing a medical emergency." Id. at 36: 15-17. However, here, the SAC alleges that 9 as soon as deputies discovered Mr. Boulanger, they immediately notified Deputy Dixon by radio. Id. at 11: 12-22. Further, to the extent this allegation pertains to the muting of the 1O radios, there are no allegations that this was a pattern or practice that had ever been done 11 before. Third, Plaintiffs allege that "[t]here was a custom and practice of not properly checking on the welfare of inmates, even those inlilates known to have serious physical or 12 psychiatric needs." Id. at 36: 18-20. Again, these allegations fail to create a plausible claim 13 for relief as to a policy of not properly checking on the welfare of inmates "known to have serious physical or psychiatric needs" given the SAC is devoid of allegations showing that 14 the deputies who were supposed to be checking on Mr. Boulanger knew he had physical 15 or psychiatric needs. Fourth, Plaintiffs allege the County had "a custom and practice of failing to conduct proper cell checks as required by County's own written policies." Id. at 16 36:21-23. In other words, Plaintiffs seem to allege there wa1>a County custom and practice 17 of violating the County's own written policies. Not only is this allegation not plausible, but it also belied by the facts alleging checks were performed, id. at 17:4-17, and that when 18 supervisors took issue with the manner in which the checks were performed, they advised 19 they would initiate aninvestigation, id. at 18:16-17. Fifth, Plaintiffs allege that "[t]here was a custom and practice of not properly investigating misconduct of deputies within 2 County jail system." Id. at 36:24-26. These allegations are likewise implausible in light 21 of Plaintiffs' own allegatiqns that both forms of alleged misconduct were investigated. See, e.g., id. at 18:15-17 (alleging that "Lieutenant Defendant KAMOSS stated it was a poor 22 quality check and would initiate an investigation for a policy violation"); id. at 18:25-28 23 (pleading that "[t]his case was heavily investigated by CLERB"). Thus, it appears Plaintiffs' own allegations are contradicted by other portions of the SAC alleging the 24 conduct here was "heavily investigated." Id. at 18:25. Sixth, Plaintiffs allege that "[t]here 25 was a custom and practice of falsifying information during investigations of misconduct and misleading the investigations by the independent citizens' review board." Id. at 36:2726 37: 1. However, other than alleging that Deputy Reyes said he performed soft counts, which 27 based on the lack of thoroughness of his cell checks, those soft counts were deemed to be another form of inmate check as opposed to an official "soft count," id. at 16:24-17:17, 28 Plaintiffs fail to plead any facts showing how or why the County falsified information. ° -783: 18-cv-02557-BEN-LL 1 inmate cells are required to be connected to a central control area to ensure constant 2 monitoring of the alarms with appropriate, timely assistance dispatched to the scene of any 3 alarm"); see also SAC at 10:1-4 (alleging that "COUNTY jail systemsare installed with 'a 4 call button inside cells that inmates can press at any point so they can speak directly with 5 a deputy who can summon help"'). The SAC further pleads that "COUNTY jail systems _ _ _6 re uire call buttons in cells because 'if there is a medical or mental health emer ency,~an-=...,_ ___. 7 inmate can request that correctional or medical staff help them get immediate medical _1. 8 treatment."' SAC at 10:4-10. As such, clearly, the County had a policy in place to provide 9 for emergency medical assistance. The SAC also alleges that Deputy Dixon "was tasked 1O to monitor this alarm system and is required to dispatch medical assistance when the alarm 11 is activated during the INCIDENT" but "did not do so." Id. at 9:23-26. 12 The SAC also alleges that Sheriffs Detentions Policy 1.43, INMATE COUNT 13 PROCEDURE, "establishes a uniform procedure for physically counting and verifying the 14 well-being of all inmates" by requiring detentions staff to verify "each inmate's well-being l5 through verbal or physical acknowledgment from the inmate." SAC at 15:2816 16:5. SDCCJ's Green Sheet Policy requires these soft counts occur "at the beginning and 17 18 end of [e]very shift, and that a printed Operations Report (County Sheet) is utilized while conducting these 'Soft Count."' Id. at 16:12-17. The SAC also alleges the "COUNTY 19 requires the Control deputy in the Central Jail 'shall log into the Jail Information 20 Management System (JIMS) all alarms indicating date, time, location, and 21 disposition."' Id. at 10:11-14. "The Control Deputy shall test each system at the beginning 22 of each shift." Id. 10:14-15. Thus, according to the SAC, the County had a policy in place 23 to verify the well-being of inmates. 24 In this case, first, the Court agrees with Defendants' argument that the municipal 25 claim is moot in light of Plaintiffs' failure to plead sufficient claims as to the individual 26 defendants. See Mot. at 23 :2-9; see also Forrester v. City of San Diego, 25 F .3d 804, 808 27 (9th Cir. 1994) ("[None] of our cases authorizes the award of damages against a municipal 28 corporation based on the actions of one of its officers if in fact the jury has concluded that -793: 18-cv-02557-BEN-LL 1 the officer inflicted no constitutional harm"). The Court also agrees that a plausible reading 2 of the SAC indicates that Plaintiffs' allegations are not that the County had a policy 3 directing that deputies mute the intercoms and perform only cursory checks on inmates; 4 rather, Plaintiffs take issue with the fact that the alleged wrongful cmiduct was done in 5 violation of County policy. Id. at 16:26-17:2. lfthe problem was that Deputies Dixon and 6 Reyes violated County policy, the County should not be held liable unless it knowingly_~~ •~--- 7-,. turned a~blind.eye~t0~sueh~behavior:-Wni1e llie SAC makes conclusory allegations that the 8 County had "a custom, policy or repeated practice of condoning and tacitly encouraging 9 the abuse of police authority, and disregard of constitutional rights of citizens," SAC at 1O 38:2-12, Plaintiffs plead no factual allegations that would support this or make it plausible. 11 Third, Defendants argue that even though the SAC references other jail deaths in an attempt 12 to suggest a pattern of inadequate training, Plaintiffs cannot meet their burden of showing 13 14 rather, they need to show that those suicides were also held to be constitutional violations. 15 Id. at 25:10-18. Absent allegations of other instances where Deputy Dixon muted the 16 intercom and Deputy Reyes performed cursory cell checks, there are no allegations of a 17 pattern in the SAC. See Scalia, 308 F. Supp. at 1078 (noting that ordinarily plaintiffs must 18 allege a pattern of similar constitutional violations by untrained officers). 19 20 21 22 23 24 25 26 27 28 a pattern of similar constitutional violations by merely showing other jailhouse suicides; 4. Plaintiffs Have Failed to Plausible Plead the Custom or Practice Caused the Constitutional Violation A plaintiff attempting to hold a county liable pursuant to Section 1983 under Monell "must demonstrate that, through its deliberate conduct, the municipality was the 'moving force' behind the injury alleged." J.K.J., 2020 WL 738178 at *9-10. Here, at best, Plaintiffs' allegations are that the County "tacitly encouraged" or condoned constitutional violations. SAC at 38:2-12. However, again, these conclusory allegations are not plausible in the absence of facts pled to support them. Further, in J.K.J., the Court likewise noted that "[t]he complaint does not adequately allege a specific official municipal policy that caused any of the constitutional violations (inadequately) alleged in the complaint." 2020 -803: 18-cv-02557-BEN-LL 1 2 3 4 WL 738178 at *9-10. The court examined the complaint and noted that "[t]he vague purported 'policies' listed in paragraph 65 of the complaint and relied on in the opposition by Plaintiff are merely conclusory statements that, if sufficient, would effectively hold the City liable simply for employing Officers ... and simply because Jenkins' constitutional 5 rights were allegedly violated." Id. at *9. Similar to this case, the J.K.J. plaintiffs alleged 6 ~~~ _J. that the first u orted unconstitutional "policy" was that various officer.s~er.e~noJ ,___.___,, 7 following written official policies, implying that if the City's policies had been followed, 8 the alleged constitutional violations would not have occurred." Id. at *9. However, 9 because "[m]ere negligence in training or supervision ... does not give rise to Monell 10 claims, . . . even if the complaint stated a plausible claim for violation of Jenkins' 11 constitutional rights, the Monell claims would be subject to dismissal." Id. at *9. After 12 dismissing the federal claims, the court also declined to exercise "supplemental jurisdiction 13 over the state law claims [rather] than to wade into the plainly state law issues." Id. at* 10. 14 Just as the plaintiffs in J.K.J. failed to plausibly plead that the County caused the alleged 15 constitutional violations, Plaintiffs here likewise fail to do the same. The SAC contains 16 17 nothing more than conclusory recitals meant to trigger the elements of the claim pied 18 19 without any factual support. G. Plaintiffs' First Claim for Relief (Wrongful Death) and Sixth Claim for Relief (Survival Action) 20 Plaintiffs' First Claim for Relief for a wrongful death claim pleads, inter alia, that 21 "Defendant deputies committed wrongful acts which proximately caused the death of 22 Richard Boulanger," including but not limited to by depriving Mr. Boulanger "of his rights 23 under the United States Constitution to be free from cruel and unusual punishment without 24 due process." SAC at 24:9-12, 20-23. Plaintiffs' Sixth Claim for Relief for a survival 25 action alleges that Mr. Boulanger "was forced to endure great and conscious pain and 26 suffering because of the Defendants" and "did not file a legal action before his death." Id. 27 at 41:7-12. Plaintiffs further allege in that claim, that Mr. Cavanaugh, "as personal 28 representative and successor in interest of the Estate of Richard Boulanger claims damages -813:18-cv-02557-BEN-LL 1 2 3 for the conscious pain and suffering incurred by Richard Boulanger, as provided under 42 U.S.C. § 1983." Notably, Plaintiff does not allege a violation of any amendment to the United States Constitution in the Sixth Claim for Relief. 4 Defendants argue that "Plaintiffs' first and sixth claims are for 'wrongful death' and 5 'survival action,"' but to the extent these claims are directed against (1) the individual 6 . deputy defendants, "they are duplicative of Plaintiffs' second claim for deliberate 7 indifference," (2) supervisory defendants, they "are duplicative of Plaintiffs' fourth claim 8 for failure to train," and (3) "the County, they are duplicative of Plaintiffs' third and fourth 9 claims for municipal liability." Mot. at 26:17-28. Plaintiffs respond that their wrongful 10 death and survival actions are not duplicative because "they both have different legal 11 elements" as "[w]rongful death laws allow the Estate to bring the lawsuit in the first place" 12 while "damages in a survival action covers [sic] the conscious pain Boulanger suffered 13 before his death, whereas wrongful death may not." Oppo. at 34:9-20. Defendants respond 14 by noting that "wrongful death actions by a surviving relative cannot be brought under 15 Section 1983, as constitutional rights cannot be vicariously asserted." Reply at 3:2-3. 16 Defendants elaborate that "Plaintiffs' assertion of 'survival rights' in cause of action six is 17 subsumed by claims two, four, and five, brought under Section 1983," but that the claim 18 "is grounded in Mr. Boulanger's 'conscious pain,' which is already the subject of Plaintiffs' 19 othercausesofaction." Id. at3:5-9. 20 As analyzed below, the Court finds that Plaintiffs' first and sixth claims must be 21 dismissed. Plaintiffs' First Claim for Relief fails because a wrongful death claim must be 22 brought by a decedent's dependents for injuries they suffered as a result of the decedent's 23 death. Here, however, Plaintiffs' First Claim for Relief is essentially an improperly pied 24 survival claim that seeks losses for injuries suffered by Mr. Boulanger, not his son, Mr. 25 Cavanaugh. Further, to the extent that Plaintiffs bring the First Claim for Relief as a 26 wrongful death claim under Section 1983, "Section 1983 actions may only be survival 27 actions," and a survival action may only be brought by a decedent's successor in interest. 28 J.K.J, 2020 WL 738178 at *4. · Here, the First Claim for Relief is brought by "All -823: l 8-cv-02557-BEN-LL 1 2 3 Plaintiffs" when it may only be brought by Mr. Cavanaugh, as Decedent's dependent. Plaintiff's Sixth Claim for Relief likewise fails because it (1) fails to allege any constitutional violation, which is a prerequisite for a survival action, and (2) has not been 4 established that Mr. Cavanaugh is the appropriate party to bring the survival action. 5 Additionally, this claim is also brought by "All Plaintiffs" when it may not be brought by 6 Mr. Cavanaugh and may only be brought the Estate. Further, because Section 1983 actions 7 mayurrly be survivalacfions, Claims Two through Five may only be brought by the Estate 1 ~ ~ ~~,--1 8 as well, rather than by Mr. Cavanaugh. Further, the state law claims are barred for failing 9 to comply with California's claim filing requirements. 1. First Claim for Relief(Wrongful Death) 1o 11 Under California state law, CAL. CIV. PROC. CODE§ 377.60, et seq., a wrongful death 12 action allows the close family members of a deceased individual to bring an action to 13 compensate them for their own losses as a result of the decedent's death, meaning that 14 damages for pain and suffering of the decedent or punitive damages on the decedent's 15 behalf are not recoverable. See, e.g., CAL. CIV. PROC. CODE § 377.60(a) (providing that 16 "[a] cause of action for the death of a person caused by the wrongful act or neglect of 17 another may be asserted by ... the decedent's personal representative on their behalf," 18 including but not limited to "[t]he decedent's surviving ... children"); CAL. CIV. PROC. 19 CODE § 377.61 ("In an action under this article, damages may be awarded that, under all 20 the circumstances of the case, may be just, but may not include damages recoverable under 21 Section 377.34"); see also CAL. CIV. PROC. CODE § 377.34 (setting forth the damages 22 recoverable in a survival action). 23 compensate the families of a decedent for the decedent's death." David J. Bederman, May 24 25 26 27 28 "A cause of action for wrongful death seeks to the Estates of High-Seas Air Crash Victims Recover Damages for Their Victims' PreDeath Pain and Suffering?, 7 Preview of United States Supreme Court Cases 431, 433 (1998). "Damages in a wrongful death case can be pecuniary, e.g., funeral costs and the victim's lost income, or nonpecuniary, e.g., a survivor's loss of companionship occasioned by the death." Id. -833: l 8-cv-02557-BEN-LL 1 2 3 4 5 6 However, a decedent's children may only bring such an action "if they were dependent on the decedent." CAL. Crv. PROC. CODE§ 377.60(b)(l); see also Little v. City of Manhattan Beach, 21 F. App'x 651, 652 (9th Cir. 2001) (holding that Decedent's mother, however, does not have standing to assert his Fourth Amendment rights because she has failed to meet her statutory burden of demonstrating that she was dependent on Little") (citing CAL. Crv. PROC. CODE§ 377.60(b); Moreland, 159 F.3dat369). The family of a decedent must file a wrongful death action within two years of the wrongful death. 8 9 See, e.g., CAL. Crv. PROC. CODE§ 335.1. In this case, Mr. Boulanger died on February 14, 2016, so the wrongful death claim needed to be filed by February 14, 2018. Plaintiffs filed IO suit on February 9, 2018. Thus, Plaintiffs filed within the applicable statute oflimitations. 11 However, as discussed below, Plaintiffs have not pied that they complied with California's 12 claim filing requirements before filing suit. 13 Such a plaintiff seeking to maintain a wrongful death action for any pecuniary loss 14 15 sustained by the loss ofa decedent's companionship has standing to sue for damages under Section 1983 pursuant to 42 U.S.C. § 1988 ("Section 1988"). See, e.g., Galindo v. 16 Brownell, 255 F. Supp. 930, 931 (S.D. Cal. 1966) (denying the defendants' motion to 17 dismiss the amended complaint, noting that "Plaintiff herein, who, judging from her 18 amended complaint, seeks only to maintain a wrongful death action for any pecuniary loss 19 sustained by loss of her son's society, comfort, attention, services and companionship, has 20 standing as an heir of the decedent to sue for damages for his wrongful death, or so we 21 must assume for purposes of passing upon a motion to dismiss") (internal citations 22 omitted). Section 1988(a) provides that "[t]he jurisdiction ... conferred on the district 23 courts ... for the protection of all persons in the United States in their civil rights ... shall 24 be exercised and enforced in conformity with the laws of the United States." However, 25 where federal law is "deficient in the provisions necessary to furnish suitable remedies and 26 punish offenses against law, ... statutes of the State wherein the court having jurisdiction 27 of such civil ... cause is held ... shall be extended to and govern the said courts ..." 42 28 U.S.C. § 1988(a). -843: 18-cv-02557-BEN-LL 1 2 3 4 5 6 ----I 7 8 9 In sum, "[i]n a wrongful death action, ... the decedent's dependents may only pursue claims for personal injuries they have suffered as a result of a wrongful death." Davis v. . Bender Shipbuilding& Repair Co., 27 F.3d426, 429 (9th Cir. 1994); see also J.K.J., 2020 WL 738178 at *3-4. As a result, a wrongful death action brought by the estate seeking to assert violation of the deceased's rights under Section 1983 is not cognizable; rather, it must be brought by the decedent's dependents. J.K.J., 2020 WL 738178 at *4. Here. under Plaintiffs' first claim for relief for wrongful death arising out of violation of Section 1983, both Plaintiffs (e.g., the Estate and Mr. Cavanaugh, as an individual) allege that all defendants violated their rights under the Fourth, Eighth, and Fourteenth Amendments. 1O SAC at 23-24. However, this claim suffers fatally from several flaws. Further, while 11 Section 1988 provides standing, it also requires the parties to look to state law for their 12 remedies. As such, all plaintiffs pursuing a such claim only benefit from standing pursuant 13 to Section 1988 to the extent that state law allows for such a claim. 14 First, the wrongful death claim is brought pursuant to Section 1983, but "Section 15 1983 actions may only be survival actions." See Estate of Lopez v. Torres, 105 F. Supp. 16 3d 1148, 1159-60 (S.D. Cal. 2015) (granting the defendant's motion to dismiss the 17 wrongful death claims brought under Section 1983 and holding that heirs may not pursue 18 a separate, federal cause of action for wrongful death under Section 1983); see also Herd 19 v. County of San Francisco, 311 F. Supp. 3d 1157, 1163-64 (C.D. Cal. 2018) (dismissing 20 a child's individual Section 1983 claim for excessive force and denial of medical treatment 21 arising out of the shooting of her father by police, stating that the child "may not bring 22 these claims personally because she was not directly subjected to excessive force or denied 23 medical treatment."); J.K.J., 2020 WL 738178, at *4 (holding that "to the extent the four 24 federal claims, each brought under42 U.S.C. § 1983, are intended to be wrongful death 25 claims seeking damages for J.K.J. 's injuries, they are dismissed with prejudice."). "Thus, 26 wrongful death actions by a surviving relative cannot be brought under Section 1983, as 27 constitutional rights cannot be vicariously asserted." J.K.J., 2020 WL 738178, at *4 28 (quoting Hernandez-Cortina v. Cty. ofRiverside, No. EDCV1801579DDPSPX, 2019 WL -853:18-cv-02557-BEN-LL 1 403957, at *3 (C.D. Cal. Jan. 30, 2019)); see also Rose v. City ofLos Angeles, 814 F. Supp. 2 878, 881 (C.D. Cal. 1993) ("It is well established that the federally protected rights that are 3 enforceable under§ 1983 are 'personal' to the injured party."); Alderman v. United States, 4 394 U.S. 165, 174 (1969) (reiterating "the general rule that Fourth Amendment rights are 5 personal rights which, like some other constitutional rights, may not be vicariously 6 asserted"); Dohaish v. Tooley, 670 F.2d 934, 936 (10th Cir. 1982) ("[T]he § 1983 civil 7 1 - ~ ~-,., rights-action-is-al)ersonal suit-.Itcloes no accrue to a relative .... "); Torres, 105 F. Supp. 8 3d at 1159-60 (S.D. Cal. 2015) (noting that "[t]he confusion seems to be in that some 9 courts (primarily in unpublished dispositions) have allowed claims for wrongful death 1O under § 1983 to proceed," but " [w]hat is clear from these cases is that even if the claim was 11 described in the pleadings as a wrongful death claim under section 1983," and even where 12 they alleged Fourteenth Amendment claims, "the courts only allowed such claims to be 13 maintained if they were construed as Fourth Amendment excessive force claims."). In 14 sum, while Mr. Cavanaugh may bring a survival action under Section 1983 to vindicate 15 Mr. Boulanger's constitutional rights, his heirs may not pursue a separate, federal claim 16 17 under Section 1983 for wrongful death. Torres, 105 F. Supp. 3d at 1160. 18 show that Defendants violated Mr. Boulanger's constitutional rights, the claim would still 19 fail. Third, to the extent the Estate, on Decedent's behalf, brings a wrongful death claim 20 for violation of Mr. Boulanger's constitutional rights, the claims are improperly brought 21 and must be dismissed with prejudice. See, e.g., Estate of Wilson by & through Jackson v. 22 Cty. of San Diego, No. 20-CV-457-BAS-DEB, 2020 WL 3893046, at *6 (S.D. Cal. July 23 10, 2020) (Bashant, J.) (noting that "[a] wrongful death claim ... must be brought by the 24 decedent's dependents, and is limited to 'claims for personal injuries they have suffered as 25 a result of a wrongful death"' before dismissing the claim as brought by the estate; "the 26 claim is now only brought by Plaintiff Jackson"). Only the decedent's heirs may bring a 27 wrongful death claim. Id. Fourth, to the extent that these claims are asserted by Mr. 28 Cavanaugh, the SAC fails to allege facts within the first claim for relief as to the injuries Second, even if a wrongful death claim were proper, where Plaintiffs have failed to -863:18-cv-02557-BEN-LL 1 2 3 4 5 6 Mr. Cavanaugh suffered as a result of Decedent's wrongful death. Thus, the wrongful death claim is dismissed as to Mr. Cavanaugh. Finally, as discussed below, any state law claims against governmental entities may .be subject to California's claim filing requirements. CAL. Gov'T CODE§§ 815, et seq. The J.K.J. court addressed a similar situation and held that "to the extent the four federal claims, each brought under 42 U.S.C. § 1983, are intended to be wrongful death 7 claims seeking damages for J.K.J. 's injuries, they are dismissed with prejudice.'; 2020 WL 8 738178, at *4. The court noted that to the extent state law authorized a wrongful death 9 claim (e.g., as a claim authorized under state law and not as a Section 1983 claim), the 10 issue of whether the child was the appropriate party to bring those claims was a novel issue 11 of state law. Id. (noting that "California's intermediate appellate court recently held that 12 the term 'children' as used in Section 377.60(a) is ambiguous," and in that case, "the fact 13 that [the decedent] is her biological father, without more, is not enough to create wrongful 14 death standing") As such, the court declined to exercise supplemental jurisdiction over the 15 state wrongful death claims. Id. 16 As discussed below, while normally, the Court would dismiss the state law claims 17 without prejudice, it dismisses them with prejudice here because the Court denies leave to 18 amend due to the fact that, inter alia, even though Mr. Cavanaugh could plead sufficient 19 facts to state a claim for relief under California's wrongful death laws, in light of the failure 20 to plead cognizable claims for relief under Section 1983, the Court finds that state law 21 claims predominate, and the Court should decline exercising supplemental jurisdiction. 22 See, e.g., Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (noting that "in 23 the usual case in which federal-law claims are eliminated before trial, the balance of factors 24 . . . will point toward declining to exercise jurisdiction over the remaining state-law 25 claims"). Further, the Court has also determined that Mr. Boulanger's constitutional rights 26 27 were not violated, and all individual defendants were entitled to qualified immunity. 2. Sixth Claim for Relief(Survival Action) 28 "A claim under 42 U.S.C. § 1983 survives the decedent if the claim accrued before -873: 18-cv-02557-BEN-LL I the decedent's death, and if state law authorizes a survival action." Tatum v. City & Cty. of 2 San Francisco, 441 F .3d I 090, I 094 (9th Cir. 2006); see also Smith v. City of Fontanta, 3 818 F.2d 1411, 1416, overruled on other grounds by Hodgers Durgin v. de la Vina, 199 4 F.3d 1037, 1041 n. I (9th Cir. 1999) (providing that "[u]nder section 1988, a section 1983 5 claim that accrued before death survives the decedent when state law authorizes a survival 6 action as a "suitable remed[y] ... not inconsistent with the Constitution and laws of the 8 90 (1978)). "The party seeking to bring a survival action bears the burden of demonstrating 9 that a particular state's law authorizes a survival action and that the plaintiff meets that 10 state's requirements for bringing a survival action." Hayes v. Cty. ofSan Diego, 736 F.3d II 1223, 1228-29 (9th Cir. 2013) (citation omitted). Hence, to survive the motion to dismiss 12 Plaintiffs' survival claim, the SAC must satisfy California's requirements. 13 California law authorizes a survival action by the decedent's personal representative 14 for the purpose of compensating the estate for the losses suffered by the decedent prior to 15 death, or damages that "survive" the decedent's death, including but not limited to punitive 16 damages, medical bills, lost wages, etc. 17 (providing that "[a] cause of action that survives the death of the person entitled to 18 commence an action ... passes to the decedent's successor in interest, ... and an action 19 may be commenced by the decedent's personal representative"); CAL. CIV. PROC. CODE§ 20 3 77.34 (providing that "[i]n an action or proceeding by a decedent's personal representative 21 ... on the decedent's cause of action, the damages recoverable are limited to the loss or 22 damage that the decedent sustained or incurred before death, including any penalties or 23 punitive or exemplary damages that the decedent would have been entitled to recover had 24 the decedent lived, and do not include damages for pain, suffering, or disfigurement"); 25 CAL. CIV. PROC. CODE § 377.20(a) (providing that "[e]xcept as otherwise provided by 26 statute, a cause of action for or against a person is not lost by reason of the person's death, 27 but survives subject to the applicable limitations period"); CAL. CIV. PROC. CODE § 366.1 28 (providing that "[i]f a person entitled to bring an action dies before the expiration of the See, e.g., CAL. CIV. PROC. CODE § 377.30 -883: 18-cv-02557-BEN-LL 1 2 3 4 applicable limitations period, and the cause of action survives, an action may be commenced before ... the later of. .. (a) [s]ix months after the person's death [or] ... (b) [t]he limitations period that would have been applicable if the person had not died"). "In a survival action, a decedent's estate may recover damages on behalf of the decedent for 5 injuries that the decedent has sustained." Davis v. Bender Shipbuilding & Repair Co., 27 6 F.3d 426,429 (9th Cir. 1994); see also.J.K.J., 2020 WL 738178 at *3. "[U]nlike a wrongful ---,-' death action, a survival action is a cause of action that existed while the decedent is alive 8 and survives the decedent." J.K.J., 2020 WL 73 8178 at *3 (citing Adams v. Superior 9 Court, 196 Cal. App. 4th 71, 78-79 (2011)). 10 "It is undisputed that survival actions are permitted under§ 1983 if authorized by 11 the applicable state law." Byrd v. Guess, 137 F.3d 1126, 1131 (9th Cir. 1998), superseded 12 by statute as stated in Nicholson v. City ofLos Angeles, 935 F.3d 685,696 (9th Cir. 2019) 13 (applying California law). "It is also undisputed that California law applies to this case, 14 and permits survival actions to be brought by the personal representative of the estate of · l5 the deceased or by the deceased's successors in interest." Id. Thus, any claims Mr. 16 17 Boulanger may have had arising out of the Fourteenth Amendment, in theory, would 18 at 1416-17 (noting that "the Supreme Court has held that 'Fourth Amendment rights are 19 personal rights which ... may not be vicariously asserted,"' and as such, the decedent's 20 "children were not directly subjected to the excessive use of state force and therefore cannot 21 maintain personal causes of action under section 1983 in reliance on this Fourth 22 Amendment theory"). survive and be capable of being maintained by his personal representative. Smith, 818 F .2d 23 In this case, Plaintiff's Sixth Claim for Relief for a survival action fails for two 24 principal reasons. First, Plaintiff's Sixth Claim for Relief does not allege a constitutional 25 violation. Because this claim for relief was brought under Section 1983, it requires 26 allegations of a constitutional violation. 42 U.S.C. § 1983. Without them, it fails as a 27 matter oflaw. 28 Second, even if the Sixth Claim for Relief pied a constitutional violation, "only a -893: l 8-cv-02557-BEN-LL I Decedent's personal representative or successor in interest may assert a survival claim 2 under§ 377.30." Cotta, 79 F. Supp. 3d at 1161; see also Bederman, at 433 (noting that 3 "[a] survival cause of action, as noted, is brought by the personal representative or estate 4 of the decedent to recover damages the decedent could have recovered but for his or her 5 death."). "Damages in a survival action usually relate to the victim's pain and suffering 6 incurred just before death." Bederman, at 433. Under California Code of Civil Procedure, 7 _section_3-7-'Z.32-{'Section~'7-7--c-J2"k-an-individuaI-seekingto commence a awsmt as a i ~ - - ----1 8 decedent's successor in interest must execute and file a declaration, under penalty of 9 perjury, stating, among other things: (I) whether a proceeding is pending in California for IO administration of the decedent's estate; (2) "if the estate was administered," and if so, 11 attaching "a copy of the final order showing the distribution of the decedent's cause of 12 action to the successor in interest"; (3) the declarant is the decedent's successor in interest 13 and succeeds to the decedent's interest in the action; and (4) "[n]o other person has a 14 superior right to commence an action or proceeding or to be substituted for the decedent in 15 the pending action or proceeding." See also J.K.J., 2020 WL 738178 at *3 (dismissing 16 any claims arising out of a survival action "because Plaintiff has not satisfied the 17 requirements for bringing a survival action"-namely, proving that Plaintiff was the 18 successor in interest) (citing CAL. CIV. PROC. CODE§ 377.32(4)-(5)). For purposes of filing 19 20 a survival action, a successor in interest "means the beneficiary of the decedent's estate or 21 property that is the subject of a cause of action." CAL. CIV. PROC. CODE § 377.11. Where 22 a decedent dies without a will, as was the case here, the "beneficiary of the decedent's 23 estate," is defined as "all of the persons who succeed to a cause of action, or to a particular 24 item of property that is the subject of cause of action, under Sections 6401 and 6402 of the 25 Probate Code." CAL. CIV. PROC. CODE§ 377.I0(b). Section 6402 of California's Probate 26 Code, governing an intestate estate where the decedent was not married, provides that 27 where there is no surviving spouse, an intestate estate passes "to the issue of the decedent, 28 the issue taking equally if they are all of the same degree of kinship to the decedent." other successor in interest who succeeds to a cause of action or to a particular item of the -903:18-cv-02557-BEN-LL 1 Here, Mr. Cavanaugh submitted a declaration on August 26, 2019, advising that: (1) 2 Mr. Boulanger had died intestate; (2) "[n]o proceeding is now pending in California for 3 administration of the decedent's estate"; but not whether one had been pending and 4 concluded or might be initiated; and (3) he was "the decedent's successor in interest and 5 succeed[ed] to the decedent's interest in this action." ECF No. 20 at 10:12-23. However, 6 this declaration also advised that: (1) his father had never married; (2) he had been told by 7 his father that his father had another child; (3) a detective located Desiree Boulan er his 8 half-sister, who said she did not want to be a part of their lives; and (4) he has no way of 9 contacting her now. Id. at 9:16-10:3. Based on these facts, it would appear that Desiree 1O Boulanger is entitled to take equally under Mr. Boulanger's estate as his other child. Thus, 11 even though the Court granted Mr. Cavanaugh's application for.order appointing him as 12 Mr. Boulanger's successor in interest on October 10, 2019, this was in error. "The law of 13 the case doctrine generally precludes a court from 'reconsidering an issue that already has 14 been decided by the same court, or a higher court in the identical case."' Cotta, 79 F. Supp. 15 3d at 1159 (citing United States v. Alexander, 106 F.3d 874,876 (9th Cir.1997)). "The law 16 of the case doctrine has three exceptions that may permit departure from the law of the case 17 when: (1) the original decision is clearly erroneous and its enforcement would work a 18 manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, 19 or (3) substantially different evidence was adduced at a subsequent trial." Cotta, 79 F. 20 Supp. 3d at 1159-60 (citing Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002)). 21 Here, it would appear that the Court's decision was clearly erroneous and warrants 22 reconsideration. Mr. Boulanger must submit a declaration from his half-sister, Desiree 23 Boulanger, disclaiming her interest in the estate and/or this lawsuit. Otherwise, existing 24 case law indicates this case must be dismissed. However, because the Court is dismissing 25 the federal claims, which as a matter of law, are also survival actions, on the merits, the 26 Court also dismisses the sixth claim for relief styled as a survival action. 27 In J.K.J., a similar situation arose, and the court also dismissed the plaintiffs' 28 survival action because it concluded the plaintiffs declaration did not comply with the -913:18-cv-02557-BEN-LL 1 requirements under Section 377.32, governing survival actions. 2020 WL 738178 at *3. 2 After the first dismissal, the plaintiff, suing as the decedent's son's guardian ad !item, filed 3 a new declaration, which much like Mr. Cavanaugh' s declaration here, conclusorily alleged 4 the elements required by Section 377.32. JK.J. v. City of San Diego, No. 19-CV-2123- 5 CAB-RBB, 2020 WL 2522045, at *3 (S.D. Cal. May 18, 2020). However, the Court noted 6 that "Section 3 77.32(5) requires the declaration to include 'facts in support' of statements -~~-7_,_ that the olaintiff is th_e_gu_c_c.ess.orJnjnteresLand-succeed1l-to-the-decedent-'s-interest~in-the-<------11 8 lawsuit." Id. at *3. There, the only fact in the declaration supporting the statement that the 9 son was the successor in interest to the decedent was that the son was the decedent's 10 "biological son." Id. The court reasoned that if the son was the decedent's "only child, the 11 Court might be satisfied that the declarations are sufficient and that J.K.J. has standing to 12 bring a survivor action by himself," but there was no dispute that the decedent "had two 13 other biological children," who "Plaintiff rightly concedes ... have an equal right as a 14 successor in interest to the survival claims asserted in this action." Id. (citing CAL. PROB. 15 CODE § 6402). As a result, the court noted that "if the FAC could otherwise avoid 16 dismissal, the Court would solicit briefing from the parties concerning whether Ms. 17 Jenkins' other children are required parties who must be joined under Federal Rule of Civil 18 Procedure 19." Id. Nonetheless, it found such briefing unnecessary because the FAC in 19 that case did "not remedy the deficiencies of the original complaint and is dismissed with 20 prejudice for failure to state a claim." Id. Thus, the court dismissed the amended complaint 21 with prejudice. Id. 22 Here, the Court finds that this Court must follow the JK.J court and dismiss the 23 survival action because Mr. Cavanaugh has failed to provide the Court with sufficient facts 24 showing he is Mr. Boulanger's successor in interest. In doing so, the Court reverses its 25 order appointing Mr. Cavanaugh as successor in interest Cotta, 79 F. Supp. 3d at 1159. 26 27 28 H. Plaintiffs' Failure to Comply with Government Claims Act Requirements with Respect to the State Law Claims Although Defendants failed to raise this issue, the Court raises it sua sponte given it -923: 18-cv-02557-BEN-LL 1 2 factors into the Court's decision on whether to dismiss this case with prejudice. The California Government Claims Act (also known as the California Tort Claims 3 Act) (the "CGCA") immunizes public entities from tort liability unless a particular statute 4 has explicitly created liability. CAL. Gov'T CODE § 815(a). In order to bring a suit for 5 money damages against a public entity or its employees, the CGCA requires that prior to 6 filing suit, a claimant must file and present a written claim to the public entity, and that the 8 CAL. Gov'T CODE § 905 (providing that "all claims for money or damages against local 9 public entities" must "be presented in accordance with ... Section 910," except for certain 10 exceptions, none of which apply in this case); CAL. Gov'T CODE§ 910 (setting forth the 11 requirements for the contents of a claim against a local public entities). A claim relating 12 to personal injury, such as Plaintiffs' claims, must be presented within six months after the 13 accrual of the cause of action. CAL. Gov'TCODE § 911.2(a). However, a party may make 14 an application to present such a claim after the expiration of the six month period, provided 15 the claimant presents an application to present a late claim within a reasonable time period, 16 not to exceed one year after the accrual of the cause of action, CAL. Gov'TCODE § 91 l.4(a)- l7 (b ), and which includes one of the listed reasons for late presentation of the claim, including 18 but not limited to excusable neglect, CAL. Gov'T CODE § 911.6(6)(1). Compliance with 19 the CGCA is mandatory, rather than a simple procedural requirement, and failure to comply 20 may prove fatal to a cause of action. See Mangold v. Cal. Pub. Utilities Comm 'n, 67 F.3d 21 1470, 1477 (9th Cir. 1995) (noting that the CGCA requires the timely presentation and 22 filing of a written claim, and a rejection of that claim in whole or in part, "as a condition 23 precedent to suit against a public entity"); Lindsay v. Fryson, 2011 U.S. Dist. LEXIS 24 62834, 27-28, 2011 WL 2444813 (E.D. Cal. June 14, 2011) (while "[a] plaintiff's 'failure 25 to allege facts demonstrating or excusing compliance with the claims presentation 26 requirement subjects a claim against a public entity' to dismissal for failure to state a 27 claim," a court need not resolve factual disputes regarding actual compliance with the 28 CGCA whenruling on a Rule 12(6)(6) motion). -933: ! 8-cv-02557-BEN-LL 1 As stated, the CGCA immunizes public entities from tort liability unless a particular 2 statute explicitly creates liability. CAL. GoV'T CODE § 815(a). As pertains to this case, 3 Section 844.6 of California's Government Code generally immunizes public entities from 4 liability for injuries to prisoners. CAL. Gov'T CODE § 844.6(a) (providing that ''except as 5 provided in this section and in Section ... 845 .6," a public entity, like the County of San 6 Diego, "is not liable for" an injury (1) "proximately caused by any prisoner" or (2) "to any 7 . prisoner"); see also CAL.JiQ\T'LCODE~~84.•L~defining."pr.isonef"...as~~inmate~ofa~prison,<----t 8 jail, or penal or correctional facility."). This immunity from liability for public entities and ------t 9 employees includes the failure of an employee to "to furnish or obtain medical care for a 1O prisoner in his custody." CAL. GOV'T CODE § 845.6. Here, Plaintiffs seek to sue a public 11 entity and public employees for injuries to a prisoner by a prisoner. Further, Plaintiffs' 12 allegations also plead that Mr. Boulanger's self-inflicted injuries worsened due to a delay 13 in medical care. However, Section 845.6 seems to immunize the employees for liability 14 for failure to furnish or obtain medical care. As pied, it would appear the CGCA immunizes 15 the County and Deputy Defendants from liability. However, this immunity does not 16 exonerate "a public employee from liability for injury proximately caused by his negligent 17 or wrongful act or omission." CAL. GoV'T CODE § 844.6(d). Section 845.6, however, 18 contains another exception to this general immunity providing: "[A] public employee, and 19 the public entity where the employee is acting within the scope of his employment, is liable 20 if [1] the employee knows or has reason to know that the prisoner is in need of immediate 21 medical care and [2] he fails to take reasonable action to summon such medical care." CAL. 22 Gov'T CODE § 845.6; see also Palacios v. Cty. of San Diego, No. 20-CV-450-MMA 23 (DEB), 2020 WL 4201686, at * 17-19 (S.D. Cal. July 22, 2020) (holding that the deputies 24 and the County were immune from suit under Section 845.6 where the detainee had been 25 receiving care for suicidal ideations but, nonetheless, committed suicide in his cell, while 26 under observation). Here, however, Plaintiffs SAC does not plausibly plead that Deputy 27 Defendants, Supervisor Defendants, or the County knew or had reason to know Mr. 28 Boulanger was in need ofimmediate care and failed to take action to summon care. Instead, -943: l 8-cv-02557-BEN-LL 1 2 3 4 5 6 7 it alleges certain information was revealed during booking (although not necessarily to any of the named defendants), which Plaintiffs believe should have caused reason to know Mr. Boulanger was at risk of suicide. After Mr. Boulanger attempted suicide, the SAC alleges he was provided medical care as soon as he was discovered, which resulted in his resuscitation. Further, even though unlike a claim against a public entity, a claim against a current or former public employee "for injury resulting from an act or omission in the scope of his --~~I 8 9 10 11 employment "need not be presented as a prerequisite to the maintenance of an action against" that employee, CAL. Gov'T CODE § 950, that cause of action against the public employee "is barred if an action against the employing public entity for such injury is barred." CAL. Gov'T CODE § 950.2. "Generally, a public employee is acting in the course 12 and scope of her employment when she is engaged in work she was employed to perform, 13 or when the act is an incident to her duty and was performed for the benefit of her employer 14 and not to serve her own purposes or convenience." Asuncion, 2020 WL 2028531 at *4-6 15 (granting summaryjudgment on Plaintiffs claims for wrongful death negligence because 16 one plaintiffs claim was rejected and the lawsuit was filed more than six months later 17 18 while another Plaintiff never alleged he submitted any claim related to the suicide or that 19 comply with the CGCA). Accordingly, and as discussed below, because the claim against 20 the County is barred so are any claims against the deputies, who were public employees 21 acting within the scope of their employment. he was exempt from the claim-filing requirements, and as such, that plaintiff had failed to 22 For example, inKarim-Panahi v. Los Angeles Police Department, 839 F.2d 621,627 23 (9th. Cir. 1988), abrogated in part as stated in Boarman v. County of Sacramento, 2013 24 U.S. Dist. LEXIS 46326, 2013 WL 1326196, 7 (E.D. Cal. Mar. 29, 2013), the Ninth Circuit 25 held that PlaintiffKarim-Panahi's amended complaint failed to allege compliance with the 26 CGCA procedures, and as a result, it concluded the lower court appropriately dismissed 27 his state law tort claims. It found Karim-Panahi's pendent state law claims against both 28 individual and public entity defendants barred absent proof he presented them to the city -953: 18-cv-02557-BEN-LL 1 and the police department before commencing suit. Id. (citing Cal. Gov't Code §§ 905, 2 945.4, 950.2); see also Ortega v. O'Connor, 764 F.2d 703, 707 (9th Cir. 1985), rev'd on 3 other grounds, 480 U.S. 709 (1987) (a plaintiff's failure to comply with the CGCA's filing 4 requirements bars pendent state claims). However, while the Court concluded that the 5 lower court erred by failing to instruct Karim-Panahi on the necessity of alleging 6 compliance with the exhaustion requirements, it also held that leave to amend is 7 unnecessary where it is clear the deficiencies of the e_ompliant_cannot-be-cured-by-~1-~~cc-1 8 amendment. See 839 F.2d at 627. 9 Here, the County of San Diego is a public entity. See Cal. Gov't Code § 811.2 1O ("'Public entity' includes the state ... a county, city, district, public authority, public II agency, and any other political subdivision or public corporation in the State."); see also 12 Willis v. Reddin, 418 F.2d 702, 704 (9th Cir. 1969) (holding that Cal. Gov. Code section 13 950.2 bars action against a public employee where failure to comply with the presentation 14 requirement bars action against public entity for same injuries). Thus, because Defendants 15 qualify as a public entity, like the plaintiff in Karim-Panahi, Plaintiff's state law claims are l 6 subject to the claim presentation requirements of the CGCA. C.f Daluise v. Mccauley, No. l7 215CV02701CASJEMX, 2015 WL 7573649, at *3 (C.D. Cal. Nov. 24, 2015) ("Because 18 the County has rejected her claims, plaintiff is now entitled to proceed in court on those 19 claims."). Also similar to Karim-Panahi, Plaintiff's SAC failed to allege compliance with 20 these requirements. Although a court could grant leave to amend to allege compliance with 21 those requirements, because the rest of his federal claims fail to state a claim for relief as a 22 matter of law, doing so would be futile. Karim-Panahi, 839 F.2d at 627. To the extent 23 Plaintiffs never filed a claim, they are barred from doing so at this point because the period 24 to fili;, a late application has expired. The one year time period within which to make an 25 application to present a late claim has passed. See CAL. Gov. CODE§ 91 l.4(a)-(b). Thus, 26 even if they could plead excusable neglect, they are also well past the one year deadline. 27 In sum, the CGCA "establishes certain conditions precedent to the filing of a lawsuit 28 against a public entity." Asuncion, 2020 WL 2028531 at *4-6 (granting summary judgment -963: 18-cv-02557-BEN-LL 1 2 3 4 5 6 on Plaintiffs claims for wrongful death and holding that Plaintiff failed to comply with the CGCA where "Plaintiff does not aver that he submitted any claim regarding Wagner's suicide, nor does he contend that he was somehow exempt from complying with this requirement") (citing California Rest. Mgmt. Svs. v. City ofSan Diego, 195 Cal. App. 4th 1581, 1591 (2011)). "The 'failuretotimelypresentaclaimformoneyordamagesto a public entity bars a plaintiff from filing a lawsuit against that entity."' Id. (citing State of _ _ _7_, Cali ornia v. Su er. Crt. 32 Cal. 4th 1234 1239 (2004))~Here,J>laintiffs_'_wrongfuLdeath_~8 claim arises under state law. Plaintiffs also allege that Defendants owed a duty under 9 Government Code 845.6 to recognize the suicidal potential of high risk inmates and IO provide prompt medical care to opiate inmates in a state of detox. SAC at 29:8-25. 11 Accordingly, because Plaintiffs sued the County of San Diego as well as public employees, 12 they had a duty to present the claim as well as allege compliance with the claim presentation 13 requirements of the CGCA in their complaint. Plaintiffs failed to include any such 14 allegations. 15 Accordingly, the Court grants Defendants' motion to dismiss Plaintiffs' state law 16 claims with prejudice due to the fact the presentation requirement of the CGCA bars 17 Plaintiff from amending their complaint to allege damages arising from personal injury 18 19 against public entities and employees because the period to present late claims has expired. I. Motion to Strike 20 Because the Court has granted Defendants' Motion to Dismiss in full and is denying 21 leave to amend, the Court concludes the Motion to Strike is moot. See, e.g., Tur v. 22 YouTube, Inc., 562 F.3d 1212, 1214 (9th Cir. 2009) (concluding that "an issue is moot 23 24 when deciding it would have no effect within the confines of the case itself'). J. Leave to Amend 25 Courts have broad discretion to grant leave to amend a complaint. Nguyen v. 26 Endologix, Inc., 962 F.3d 405, 420 (9th Cir. 2020). This discretion includes the right to 27 deny leave to amend where amendment may prove to be an effort in futility. Moore v. 28 Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989). Here, the Court notes that -973: l 8-cv-02557-BEN-LL 1 Plaintiffs filed this case on February 9, 2018. ECF No. 1. Thus, the case has been ongoing 2 for two and a half years; yet, it remains in the pleading stage. 3 In determining whether a plaintiff should be granted leave to amend, courts consider 4 "the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure 5 deficiencies by previous amendments, undue prejudice to the opposing party and futility 6 of the proposed amendment." Moore, 885 F.2d at 538. "[W]here the plaintiff has 7 . previously been granted leave to amend and..has~subsequentl~~failed~to.add~th~requisit~~~ ~~~--; 8 particularity to its claims, the district court's discretion to deny leave to amend is 9 particularly broad." Nguyen, 962 F.3d at 420 (holding that the district court did not err by 10 denying leave to amend "because it was clear that the plaintiff had made her best case and 11 had been found wanting") (internal quotations omitted). For example, in Parents for 12 Privacy v. Barr, 949 F.3d 1210, 1239 (9th Cir. 2020), the Ninth Circuit affirmed the district 13 court's denial of leave to amend because "[f]urther amendment would simply be a futile 14 exercise." In doing so, the Court noted that "[t]he problem with Plaintiffs' complaint, 15 however, is not the sufficiency of their factual allegations" but "[r]ather, as we have 16 explained above, Plaintiffs' legal theories fail." Id. There, "[a]mending the complaint will 17 not change, for example, the extent of the rights that are protected by the Fourteenth 18 Amendment's Due Process Clause." Id. 19 deficiencies. Plaintiffs' allegations suffer from the same 20 Likewise, in J.KJ., the court noted that the plaintiffs first amended complaint did 21 "not remedy the defects from the original complaint with respect to allegations of a specific 22 municipal policy or custom that caused any of the constitutional violatici,ns (inadequately) 23 alleged in the complaint." 2020 WL 2522045, at *8. Further, "[t]he addition of allegations 24 concerning the training Officers Durbin and Taub received in accordance with ... the San 25 Diego Police Department Policy Manual are not sufficient to save this claim from 26 dismissal'' because the allegations undermined the claim by implying "that the individual 27 officers did not follow San Diego Police Department policy and their training." Id. "In 28 other words, City policy was not the 'moving force' behind Ms. Jenkins' injuries because, -983: 18-cv-02557-BEN-LL 1 according to the F AC, had the individual defendants complied with the policies in question, 2 Ms. Jenkins' constitutional rights would not have been violated." Id. 3 Similarly, here, Plaintiffs have had "three bites at the apple." Yet, two and a half 4 years and three attempts later, Plaintiffs have failed to state a plausible claim for relief. If 5 Plaintiffs have some missing facts that would transform the complaint into a plausible 6 claim for relief, such facts should have been included in the previous three complaints. - - · ._7_. Further althou h the last sentence of the_Qpp.osition...r.e.quests.JeaY:e_to_amend,-Elaintiffs-1------1 8 fail to state how or why leave to amend would cure the inadequacies pointed out by 9 Defendants. Even if the Court considered the facts stated in the Opposition which had not 1O been alleged in the SAC, they are still not enough to create a cognizable legal theory. 11 "[R]epeated failure to cure deficiencies by previous amendments" is one of the factors 12 courts should considered when evaluating leave to amend. Further, this Court finds that 13 the facts, as pied, simply do not give rise to a violation of Section 1983. As such, further 14 amendment would prove futile. Thus, because Plaintiffs have been granted leave to amend, 15 yet still failed to add the requisite particularity, they have made their best case. Nguyen, 16 962 F.3d at 420. Accordingly, as in Barr, "[t]urther amendment would simply be a futile 17 exercise" because Plaintiffs' legal theories fail as a matter oflaw. 949 F.3d at 1239. Thus, 18 the court exercises its broad discretion to deny leave to amend. Nguyen, 962 F.3d at 420. 19 V. CONCLUSION 20 For the above reasons, the Court ORDERS as follows: 21 1. 22 23 ECF No. 61, is GRANTED. 2. 24 25 26 27 28 The Joint Motion to Dismiss Defendants Brett Germain and Michael Pacheco, Defendant's Motion to Dismiss Plaintiffs' SAC is GRANTED as follows: a. All Defendants are dismissed to the extent they are sued in their official b. All Doe Defendants are dismissed for want of prosecution pursuant to capacity. Rule 4(m) of the Federal Rules of Civil Procedure. c. Plaintiffs' first claim for relief for wrongful death under 42 U.S.C. § -993:18-cv-02557-BEN-LL 1 1983 is DISMISSED WITH PREJUDICE as it is not a cognizable claim under Section 2 1983, which only allows for survival actions. 3 d. Plaintiffs' second claim for relief (deliberate indifference to medical 4 needs), third claim for relief (loss of familial relationship), fourth claim for relief (failure 5 to properly train), and fifth claim for relief (Monell liability) are DISMISSED WITH 6 PREJUDICE for failure to plead facts that could state a plausible claim for relief. 7 e. Plaintiffs' sixth claim for relief for a survival action is also~~~ g~ DISMISSED WITH PREJUDICE because Mr. Cavanaugh has failed to show he (1) is 9 the successor in interest and (2) complied with the claim-filing requirements of the CGCA. 10 3. 11 IT IS SO ORDERED. 12 DATED: . Novembey'.A_, 2020 Defendants' Motion to Strike is DENIE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1003: I 8-cv-02557-BEN-LL

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