Brown v. County of Mariposa ( 2019 )

2 3 UNITED STATES DISTRICT COURT 4 FOR THE EASTERN DISTRICT OF CALIFORNIA 5 6 JEFFREY BROWN, 1:18-cv-01541-LJO-SAB 7 Plaintiff, MEMORANDUM DECISION AND ORDER RE DEFENDANT JOHN C. 8 v. FREMONT HEALTHCARE’S MOTION TO DISMISS SECOND AMENDED 9 COUNTY OF MARIPOSA; DOUG COMPLAINT (ECF No. 32) BINNEWIES; CODY HART; SEAN LAND; 10 JOHN C. FREMONT HEALTHCARE DISTRICT; and DOES 1-30, 11 Defendants. 12 13 I. INTRODUCTION 14 Plaintiff Jeffrey Brown (“Plaintiff”) was injured during the course of his arrest and was taken to 15 the Mariposa County Jail, where he alleges that he was denied necessary medical care for more than five 16 months. Plaintiff brings this case against the County of Mariposa; County employees Cody Hart, Sean 17 Land, and Doug Binnewies; John C. Fremont Healthcare District (“Fremont”); and Does 1-30, alleging 18 deliberate indifference under 42 U.S.C. § 1983, a related municipal liability claim premised upon Monell 19 v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), and a state law cause of 20 action under California’s Bane Act, Cal. Civ. Code § 52.1, et seq. 21 Before the Court for decision is Defendant Fremont’s motion to dismiss the Monell claim and the 22 punitive damages prayer from the Second Amended Complaint. ECF No. 32. Plaintiff opposed. ECF 23 No. 35. Defendant replied. ECF No. 36. This matter is suitable for disposition without oral argument. 24 See Local Rule 230(g). 25 2 On July 2, 2017, Plaintiff was injured while being arrested and was taken to the Mariposa 3 County Jail. ECF No. 31, Second Amended Complaint (“SAC”) ¶¶ 1, 16. He suffered injuries to his face 4 that broke and splintered the bones around his right eye and cheek creating “deformity, swelling[,] and 5 pain.” Id. at ¶ 17. He also suffered injuries to his jaw. Id. In addition, his right shoulder was injured, 6 including a broken bone and tearing to his cartilage, tendons, and ligaments, resulting in “swelling, 7 deformity, limitation of movement[,] and pain.” Id. 8 Defendants Hart and Land were at all relevant times correctional lieutenants/commanders of the 9 Mariposa County Jail. Id. ¶¶ 7-8. Mariposa County contracted with Defendant Fremont to provide on- 10 site medical services to the Mariposa County Jail. Id. ¶ 11. The orthopedist who evaluated Plaintiff’s 11 shoulder injury and the “multiple doctors or surgeons” who examined Plaintiff’s facial injuries informed 12 Fremont, Hart, Land, Does 1-20, and Mariposa County that Plaintiff needed immediate surgeries and 13 that delay would result in additional medical procedures, more complicated medical procedures, or both, 14 which would likely result in worse outcomes than if medical care were rendered sooner. Id. ¶ 20. 15 Despite being aware of the doctors’ recommendations, these Defendants refused to allow Plaintiff to 16 have the surgeries. Id. ¶ 21. 17 Plaintiff remained in the Mariposa County Jail until he was tried and acquitted of all felony 18 charges arising from the arrest. Id. ¶ 28. He was released on November 14, 2017. Id. Plaintiff had the 19 first set of surgical procedures to address his facial fractures on December 15, 2017, and he underwent 20 shoulder surgery on May 5, 2018. Id. ¶¶ 29, 30. The shoulder surgery was “only a partial success” due to 21 improper healing resulting from Defendants’ delay, and the facial surgery likewise was more 22 complicated and less successful than it would have been had it taken place in a timely manner. Id. As a 23 24 1 Unless otherwise noted, the facts are taken from the SAC, ECF No. 31. For purposes of Defendant’s motion to dism iss, all alleged material facts are construed in the light most favorable to the Plaintiff. 25 2 and shoulder. Id. ¶ 31. 3 \\\ 4 III. LEGAL STANDARD 5 Dismissal is appropriate under Rule 12(b)(6) of the Federal Rules of Civil Procedure when a 6 plaintiff’s allegations fail “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A 7 dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory or the absence of 8 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 9 696, 699 (9th Cir. 1990). In considering a motion to dismiss for failure to state a claim, the court 10 generally accepts as true the allegations in the complaint, construes the pleading in the light most 11 favorable to the party opposing the motion, and resolves all doubts in the pleader’s favor. Lazy Y Ranch 12 LTD. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). 13 Rule 8(a)(2) “requires only ‘a short and plain statement of the claim showing that the pleader is 14 entitled to relief’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon 15 which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 16 U.S. 41, 47 (1957)). To overcome a Rule 12(b)(6) challenge, the complaint must allege “enough facts to 17 state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A claim is plausible on its 18 face when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that 19 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A 20 plausible claim is one which provides more than “a sheer possibility that a defendant has acted 21 unlawfully.” Id. A claim which is possible, but which is not supported by enough facts to “nudge [it] 22 across the line from conceivable to plausible . . . must be dismissed.” Twombly, 550 U.S. at 570. 23 A complaint facing a Rule 12(b)(6) challenge “does not need detailed factual allegations [but] a 24 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and 25 conclusions, and a formulaic recitation of the element of a cause of action will not do.” Id. at 555 2 allegations respecting all the material elements necessary to sustain recovery under some viable legal 3 theory.” Id. at 562. To the extent that any defect in the pleadings can be cured by the allegation of 4 additional facts, the plaintiff should be afforded leave to amend, unless the pleading “could not possibly 5 be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 6 911 F.2d 242, 247 (9th Cir. 1990). 7 IV. DISCUSSION 8 Fremont moves to dismiss the Monell claim, the only claim leveled against Fremont. The Monell 9 claim was previously dismissed with leave to amend. In a May 6, 2019 Order, this Court set forth the 10 applicable standards: 11 . . . Monell, [] 436 U.S. 658 [], [] provides that municipalities may be liable for unconstitutional acts under § 1983. Monell is clear, however, 12 that “a municipality cannot be held liable under § 1983 solely because it employs a tortfeasor—or, in other words, a municipality cannot be held 13 liable under § 1983 on a respondeat superior theory.” 436 U.S. at 691. Instead, a municipality can only be held liable for injuries caused by the 14 execution of its policy or custom or by those whose edicts or acts may fairly be said to represent official policy. Id. at 694. A “policy” is a 15 “deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing 16 final policy with respect to the subject matter in question.” Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). “In addition, a local 17 governmental entity may be liable if it has a ‘policy of inaction and such inaction amounts to a failure to protect constitutional rights.’” Lee v. City 18 of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)). More generally, a plaintiff 19 must show the following: (1) the plaintiff was deprived of a constitutional right; (2) the defendant had a policy or custom; (3) the policy or custom 20 amounted to deliberate indifference to the plaintiff’s constitutional right; and (4) the policy or custom was the moving force behind the 21 constitutional violation. Mabe v. San Bernardino County, 237 F.3d 1101, 1110-11 (9th Cir. 2001). 22 A policy or custom may be shown under Monell by establishing the 23 existence of: (1) conduct pursuant to a formal or expressly adopted official policy; (2) a longstanding practice or custom which constitutes the 24 “standard operating procedure” of the local government entity; (3) the decision of a decision-making official who was, as a matter of state law, a 25 final policymaking authority and whose edicts or acts may fairly be said to final policymaking authority either delegated that authority to, or ratified 2 the decision of, a subordinate. See Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014); Price v. Sery, 513 F.3d 962, 966 (9th Cir. 3 2008). A policy is “deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for 4 establishing final policy with respect to the subject matter in question.” Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see 5 also Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008) (same). “In addition, a local governmental entity may be liable if it has a ‘policy of 6 inaction and such inaction amounts to a failure to protect constitutional rights.’” Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001) 7 (quoting Oviatt, 954 F.2d at 1474). A custom is “a widespread practice that, although not authorized by written law or express municipal policy, 8 is so permanent and well-settled as to constitute a custom or usage with the force of law.” St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Los 9 Angeles Police Protective League v. Gates, 907 F.2d 879, 890 (9th Cir. 1990). An unwritten policy or custom must be so “persistent and 10 widespread” that it constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691 (internal quotation marks omitted). “Liability for 11 improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and 12 consistency that the conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). However, 13 “contemporaneous or subsequent conduct cannot establish a pattern of violations that would provide ‘notice to the [municipality] and the 14 opportunity to conform to constitutional dictates.’” Connick v. Thompson, 563 U.S. 51, 63 n.7 (2011). 15 Additionally, a municipal defendant is liable only where the 16 municipality’s policies or customs “evince a ‘deliberate indifference’ to the constitutional right and are the ‘moving force’ behind the 17 constitutional violation.” Edgerly v. City & County of San Francisco, 599 F.3d 946, 960 (9th Cir. 2010). Deliberate indifference exists “when the 18 need for more or different action ‘is so obvious, and the inadequacy [of the current procedure] so likely to result in the violation of constitutional 19 rights, that the policymakers . . . can reasonably be said to have been deliberately indifferent to the need.’” Oviatt, 954 F.2d at 1477 (quoting 20 City of Canton v. Harris, 489 U.S. 378, 390 (1989)). The deliberate indifference standard for municipalities is an objective one. Castro, 833 21 F.3d at 1076. To show that a policy or custom is the “moving force” behind a violation, a plaintiff must allege facts proving that the policy or 22 custom was “closely related to the ultimate injury,” City of Canton, 489 U.S. at 391, that is, the constitutional violation was caused by the 23 municipal policy or custom. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985). 24 Allegations concerning Monell liability based on the existence of a policy 25 are subject to the pleading requirements of Twombly/Iqbal. As the Ninth “may not simply recite the elements of a cause of action, but must contain 2 sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively,” and “the factual 3 allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be 4 subjected to the expense of discovery and continued litigation.” AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) 5 (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). While the Ninth Circuit previously had a liberal pleading standard for Monell claims, 6 “[c]ourts in this circuit now generally dismiss claims that fail to identify the specific content of the municipal entity’s alleged policy or custom.” 7 Little v. Gore, 148 F. Supp. 3d 936, 957 (S.D. Cal. 2015) (citation omitted). 8 ECF No. 30 at 14-17. 9 In its May 6, 2019 Order, the Court indicated that the then-operative First Amended Complaint 10 (“FAC”) hedged on the theory of Monell liability it relied on, citing both a potential express written 11 policy or a longstanding unwritten practice or custom, but found that the “thrust of the FAC is that the 12 named Defendants failed to establish written policies, leading to an unwritten practice that permitted 13 correctional officers to deny Plaintiff access to medically necessary surgeries.” ECF No. 30 at 18. The 14 Court explained that this type of claim required allegations that the “facts available to [entity] 15 policymakers put them on actual or constructive notice that the particular omission is substantially 16 certain to result in the violation of the constitutional rights of their citizens,” and was evaluated under 17 the Monell practice or custom framework, which requires proof of practices of a sufficient duration that 18 the conduct can be said to form a traditional method of carrying out policy at the entity. Id. (reviewing 19 relevant caselaw). Judged against this standard, the FAC’s allegations, which were devoid of any 20 allegations of similar incidents, were deemed insufficient. Id. at 18-19. 21 This time around, the SAC attempts to shift gears by abandoning any attempt to demonstrate a 22 custom or practice and instead indicating that Defendants “have adopted a policy of giving non- 23 medically trained correctional staff the authority to make the final determination about an inmate 24 receiving medically necessary treatment.” SAC ¶ 37. As mentioned, a policy or custom may be shown 25 2 official policy,” but the SAC’s allegations of the existence of a formal policy are entirely conclusory. In 3 order to withstand a motion to dismiss for failure to state a claim, a Monell claim must consist of more 4 than mere formulaic recitations of the existence of an unlawful policy. AE ex rel. Hernandez v. County 5 of Tulare, 666 F.3d 631, 637 (9th Cir. 2012). As one district court observed: “[w]hile the Court 6 recognizes the inherent difficulty of identifying specific policies absent access to discovery, that is 7 nonetheless the burden of plaintiffs in federal court.” Jones v. Cty. of Contra Costa, No. 13-CV-05552- 8 TEH, 2016 WL 1569974, at *2 (N.D. Cal. Apr. 19, 2016). That burden is particularly important where it 9 is “facially implausible” that the municipal defendant maintains the policy as alleged. Id. Jones 10 concerned an extreme example of an allegation that a municipal defendant maintained a policy that 11 required police officers to attack people during traffic stops without justification. Id. While the alleged 12 policy in the instant case is not quite as patently absurd, it is not far off. The allegation in question – that 13 the Mariposa County Jail maintained a municipal policy giving non-medically trained correctional staff 14 authority to make the final determination about an inmate receiving medically necessary treatment – is 15 facially implausible. Therefore, the Court cannot accept the formulaic recitation of the existence of such 16 a policy. The Court acknowledges that Plaintiff has attached to his complaint documents that indicate 17 someone at the Jail told Dr. Julian, one of Plaintiff’s medical providers, that a surgery Dr. Julian deemed 18 medically necessary “sounded more cosmetic” and that Dr. Julian noted in response that it “[s]ounds like 19 corrections officers are practicing medicine and deciding on what treatment should or could be 20 provided.” SAC, Attachment A. The SAC also contains allegations that non-medical jail staff rejected 21 the recommendations of multiple medical personnel in connection with Plaintiff’s care. SAC, ¶¶ 20-25. 22 But this is the kind of circumstantial evidence that might contribute to a custom or policy claim. It does 23 nothing to establish the existence of a “formal or express” policy, especially in light of the facial 24 implausibility of such a policy actually existing. 25 The Monell claim is DISMISSED. Because Plaintiff already has been given an opportunity to 2 discovery reveal evidence to support the existence of this facially implausible allegation, Federal Rule of 3 Civil Procedure 15 provides a remedy for such a circumstance by way of a motion to amend. 4 Fremont also moves to remove the request for punitive damages from the SAC. In his 5 opposition, Plaintiff indicates that punitive damages are asserted against only the individual, non-entity 6 defendants. Therefore, the motion is DENIED AS MOOT both because the punitive damages prayer is 7 not directed at Fremont and because Fremont is no longer a Defendant. 8 V. CONCLUSION AND ORDER 9 For the foregoing reasons, IT IS HEREBY ORDERED that Defendant Fremont’s Motion to 10 Dismiss (ECF No. 32) is GRANTED IN PART and DENIED IN PART AS MOOT: 11 1. Fremont’s motion to dismiss Plaintiff’s second cause of action for Monell liability is 12 GRANTED WITHOUT LEAVE TO AMEND; 13 2. Fremont’s motion to dismiss any punitive damages prayer against it is DENIED AS MOOT; 14 3. The Clerk of Court is directed to TERMINATE Fremont as a Defendant; and 15 4. This case shall remain OPEN. 16 17 IT IS SO ORDERED. 18 Dated: October 8, 2019 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 19 20 21 22 23 24 25