Marisol Vivanco v. Cdcr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARISOL VIVANCO, Individually and as No. 19-16490
Successor in Interest of Solton Vivanco
Gonzalez, deceased, D.C. No. 1:17-cv-00434-BAM
Plaintiff-Appellant,
MEMORANDUM * P0FP0F P
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION; SCOTT
FRAUENHEIM, Warden,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Barbara McAuliffe, Magistrate Judge, Presiding
Submitted July 15, 2020* *
P P1FP1F P
San Francisco, California
Before: SILER,** * TALLMAN, and LEE, Circuit Judges.
P P2FP2F P
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Marisol Vivanco appeals from the district court’s order granting summary
judgment for the California Department of Corrections and Scott Frauenheim, the
Pleasant Valley State Prison warden. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo the district court’s grant of summary judgment. Devereaux v.
Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc). We affirm.
1. Eighth Amendment Claim. There is no evidence in the record that
Frauenheim, or any CDCR staff, knew of decedent Solton Gonzalez’s heightened
risk of suicide and was deliberately indifferent to it. See Estelle v. Gamble, 429 U.S.
15T 15T
97, 104 (1976). Two days before his suicide, Gonzalez reported that his depression
was at a 4/10, and CDCR Staff Psychologist Dr. Lee noted that he did not exhibit
suicidal thoughts or behaviors. The day before Gonzalez’s suicide, Dr. Lee again
reported that Gonzalez did not exhibit suicidal thoughts or behaviors. While CDCR
staff knew of Gonzalez’s prior suicide attempts, those suicide attempts occurred in
2012 and 2014.
In addition, Vivanco stipulated that Pleasant Valley State Prison’s policies
and procedures complied with the court’s orders in Coleman v. Brown, 28 F. Supp.
3d 1068 (E.D. Cal. 2014). It is also undisputed that Frauenheim consulted with
mental health professionals and considered Gonzalez’s mental health when deciding
he should remain in short-term restricted housing. See Peralta v. Dillard, 744 F.3d
1076, 1086–87 (9th Cir. 2014) (en banc) (concluding that prison administrator
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relying on treatment plan signed off on by medical officials was not aware of risk of
harm).
2. Fourteenth Amendment Claim. There is no evidence that Frauenheim
acted arbitrarily or with deliberate indifference that shocks the conscience. See
County of Sacramento v. Lewis, 523 U.S. 833, 846–47 (1998). Vivanco stipulated
that Frauenheim complied with Coleman. Vivanco also stipulated that she had “no
evidence to support her claim that Defendant Frauenheim’s conduct was motivated
by a purpose to cause harm to [decedent] unrelated to his incarceration.”
3. State Law Claim. Under California law, a public employee is liable for
failing to obtain medical care “if the employee knows or has reason to know that the
prisoner is in need of immediate medical care and he fails to take reasonable action
to summon such medical care.” Cal. Gov. Code § 845.6. Vivanco’s arguments
involve CDCR staff’s decisions about Gonzalez’s care, not a failure to summon care.
See Castaneda v. Dep’t of Corr. & Rehab., 151 Cal. Rptr. 3d 648, 663–64 (2013).
4. Doe Defendants. Because Vivanco did not amend her complaint to name
the Doe defendants or serve the unknown defendants, the district court properly
exercised its authority to dismiss the Doe defendants sua sponte. See Craig v. United
States, 413 F.2d 854, 856 (9th Cir. 1969); see also Bryant v. Ford Motor Co., 886
F.2d 1526, 1532–33 (9th Cir. 1989) (rejecting argument that “action against the doe
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defendants was still pending when the district court entered summary judgment
against” the named defendant).
AFFIRMED.
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