Rachel Lewis v. County of San Bernardino , 558 F. App'x 735 ( 2014 )

FILED
NOT FOR PUBLICATION FEB 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RACHEL LEWIS; et al., No. 12-55058
Plaintiffs - Appellants, D.C. No. 5:11-cv-01594-VAP-OP
v.
MEMORANDUM*
COUNTY OF SAN BERNARDINO;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted February 4, 2014
Pasadena, California
Before: SCHROEDER and CLIFTON, Circuit Judges, and TUNHEIM, District
Judge.**
Plaintiffs Rachel Lewis and R.L. appeal the dismissal of this § 1983 action
regarding the suicide of decedent David Lewis. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John R. Tunheim, District Judge for the United States
District Court for the District of Minnesota, sitting by designation.
In general, the government owes no due process duty to protect an individual
from private action. DeShaney v. Winnebago County Department of Social
Services, 489 U.S. 189, 197 (1989); see also Henry A. v. Willden, 678 F.3d 991,
998 (9th Cir. 2012). There are two exceptions to this rule. First, the special
relationship exception applies when “a custodial relationship exists between the
plaintiff and the State such that the State assumes some responsibility for the
plaintiff’s safety and well-being.” Henry A., 678 F.3d at 998. Second, the state
created or enhanced danger exception applies when the state affirmatively
“exposes an individual to a danger which he or she would not have otherwise
faced.” Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006).
Plaintiffs have failed to plausibly plead a claim under either exception. As to
the State Defendants, the complaint fails to plausibly allege that California
Highway Patrol Officer Bissett knew of or was deliberately indifferent to
decedent’s fragile mental condition. Erratic driving and materials in the car
suggesting suicide (such as books and medications) are insufficient to plausibly
allege that an officer conducting a routine DUI arrest was deliberately indifferent
to a suicidal arrestee, particularly where there are no allegations that the officer
read the book cover, inspected the medications, or would have understood the
significance of the medications had he inspected them. Cf. Ashcroft v. Iqbal, 556
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U.S. 662, 680-81 (2009). Nor are there any plausible allegations that Officer
Bissett left decedent in a worse position than when Bissett found him in the process
of “committing suicide.” Plaintiffs therefore have failed to allege that the State
Defendants created or enhanced the danger.
As to the County Defendants, Plaintiffs’ allegations fall short because
decedent killed himself 12 hours after he was released from custody and had
returned home to Las Vegas, where he presumably had access to medications and
other help. Hence, at the time decedent committed suicide, there was no special
relationship to take this case out of the general rule that the government owes no
duty to protect against private action. DeShaney, 489 U.S. at 197; see also Patel v.
Kent School District, 648 F.3d 965, 973-74 (9th Cir. 2011) (explaining that under
DeShaney’s analysis of custody, this Court is concerned only with whether liberty
is so restrained that persons (or, in the case of minors, their parents) cannot care for
themselves). Conn v. City of Reno is inapposite because the decedent there was in
custody at the time he killed himself. 591 F.3d 1081, 1091 (9th Cir. 2010),
reinstated in part and vacated in part on other grounds by 658 F.3d 897 (9th Cir.
2011). Likewise, Plaintiffs have failed to plausibly allege that the County
Defendants placed decedent in a worse position than before his detention and thus
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have failed to state a claim that the County Defendants created or enhanced the
danger.
We also affirm the district court’s denial of leave to amend. Appellants’
counsel’s various new suggestions to amend could have been pleaded in the
original complaint. Moreover, many of the possible new allegations, such as an
allegation that the County Defendants worsened decedent’s condition by denying
him medication, are arguably inconsistent with the specific allegation that decedent
was already in the process of committing suicide when he was apprehended. It was
therefore not an abuse of discretion for the district court to deny leave to amend as
futile. See R.P. ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1123-24
(9th Cir. 2011) (affirming denial of leave to amend where plaintiffs sought to add
“claims that were substantially different from their original claims” that could have
been pleaded in the original complaint).
AFFIRMED.
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