(PS) Schmitz v. Asman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS SCHMITZ, et al., No. 2:20-cv-00195-JAM-CKD PS 12 Plaintiffs, 13 v. ORDER 14 A. ASMAN, et al., (ECF Nos. 22, 23, 33) 15 Defendants. 16 17 Presently before the court are defendants’ motions to dismiss, to which plaintiffs have 18 responded, as well as plaintiffs’ motion to reconsider the Clerk’s denial of plaintiffs’ request to 19 enter default against defendant Golding.1 (ECF Nos. 22, 23, 33.) A hearing on these motions was 20 held on June 17, 2020. (ECF No. 40.) Plaintiffs appeared at the hearing individually, and Jennifer 21 Nygaard appeared for defendants. As set forth below, the court GRANTS IN PART and DENIES 22 IN PART defendants’ motions to dismiss and DENIES plaintiffs’ motion to reconsider. 23 //// 24 //// 25 //// 26 27 1 Plaintiffs are proceeding pro se, and this action is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). 28 1 BACKGROUND2 2 This matter concerns the death of William Schmitz (“Decedent”) while incarcerated at Mule 3 Creek State Prison (“MCSP”). Generally, plaintiffs—Decedent’s mother and father—allege that 4 Decedent was removed from critical antipsychotic medications and the prison’s Enhanced 5 Outpatient Program (EOP)—a high-level outpatient psychiatric care program—and that these two 6 decisions resulted in Decedent’s death via methamphetamine overdose on January 21, 2019.3 (ECF 7 No. 6 at 3-4.) 8 Decedent had a long history of mental illness and schizophrenia, conditions which led him 9 into withdrawal and to self-medicate with illicit drugs. (Id. at 3, 14.) Decedent was incarcerated 10 for shooting and killing a man while in a psychotic state; he was in CDCR custody from February 11 2009 until his death. (Id. at 14.) From the start of his incarceration until May 2018 Decedent was 12 in EOP—the highest level of outpatient psychiatric care for mentally disordered inmate-patients. 13 (Id.) Around June 2014 Decedent was prescribed, and responded well to, Clozapine, a medication 14 used to treat psychotic disorders that are not adequately treated with “other safer antipsychotics.” 15 (Id. at 15.) However, Decedent’s prescription to Clozapine was stopped as a result of Decedent 16 developing hepatitis. (Id. at 16.) Decedent was then prescribed Paliperidone, to which he also 17 responded well. (Id. at 17.) 18 In May 2017, Decedent was transferred to dormitory housing “despite recommendations 19 against dormitory housing by mental health providers.” (Id.) This change was stressful for 20 Decedent and caused his psychosis to worsen. (Id.) 21 On September 1, 2017, Decedent received a disciplinary action for possession of drug 22 paraphernalia. (Id. at 21.) The mental healthcare team did not know of this incident until five 23 2 Unless otherwise indicated, the factual background is taken from plaintiffs’ First Amended 24 Complaint. (ECF No. 6.) 25 3 It is unclear whether plaintiffs assert Decedent’s death was an accidental overdose or a suicide. (See ECF No. 6 at 31 (“[Decedent’s] death seemed to meet CDCR[’s] definition of suicide ‘an 26 intentional self-injurious behavior that causes or leads to one’s own death.’ However, the most 27 convenient scenario for MCSP was to have [Decedent’s] death be an accident due to drug smuggling, for the drugs to be provided by an outside visitor and to avoid any mention of his 28 severe mental illness.”).) 1 months later. (Id.) From plaintiffs’ complaint, it appears that Decedent began treating with Dr. 2 Robinson around January 2018, who noted that Decedent’s “chronic risk of suicide was high and 3 acute risk of suicide was moderate.” (Id.) Dr. Robinson also noted that Decedent was experiencing 4 anxiety and was non-compliant with medication. (Id.) 5 On January 31, 2018, Decedent was treated by psychiatrist Dr. Ramkumar. (Id. at 22.) 6 Because Decedent was caught with drug paraphernalia, as mentioned above, Dr. Ramkumar 7 ordered Decedent to take a drug screening, which Decedent refused. (Id.) Dr. Robinson and 8 Decedent subsequently discussed Decedent’s drug use, his continued enrollment in EOP, and his 9 “low treatment adherence.” (Id. at 22-23.) Dr. Robinson was “focused on moving [Decedent] to a 10 lower level of care[,] not treating his mental illness or drug dependence.” (Id. at 23.) Decedent 11 was subsequently transferred “to a lower level of psychiatric care” with the stated reason being that 12 Decedent had poor attendance in EOP groups. (Id.) However, Decedent’s poor attendance was a 13 result of him “decompressing as his psychiatric medications were lowered.” (Id. at 24.) 14 Decedent’s records reflect a notation on April 12, 2018 that Decedent stopped taking 15 medications, although he subsequently restarted. (Id.) Although Decedent wished to remain in 16 EOP, he was transferred from EOP to Correctional Clinical Case Management Systems 17 (“CCCMS”) because it would “help CDCR look better on their healthcare monitoring metrics and 18 give the appearance of better care than actually provided.” (Id. at 24-25.) 19 Following Decedent’s transfer, Dr. R. Johnson “completely stopped [Decedent’s] 20 antipsychotic medications.” (Id. at 26.) Dr. M. Smith diagnosed Decedent with “antisocial and 21 borderline personality disorder,” noting the medications “Invega, Thorazine, Haldol, Lithium, 22 Clozaril, Zyprexa, Depakote, Wellbutrin, Topamax, and Trileptal” were “noteworthy for their 23 ineffectiveness.” (Id. at 26-27.) This was contrary to Decedent’s medical history. (Id.) Dr. M. 24 Smith’s “misdiagnosis poisoned [Decedent’s] medical record for future providers.” (Id.) 25 On July 2, 2018, Eric Branman reported that Decedent was able to sleep after being awake 26 for two days, and that the staff suspected Decedent was abusing drugs. (Id.) On December 7, 2018, 27 Decedent had his first visit with Dr. Andaluz, who noted that Decedent originally refused his 28 appointment, had limited engagement, and had been prescribed multiple psychiatric medications 1 but none of them were effective. (Id. at 27-28.) Subsequently, on January 4, 2019, Dr. Andaluz 2 noted that Decedent was “worried about losing dorm exclusion” and that Decedent stated he “deals 3 with a lot of paranoia and psychosis.” (Id. at 28.) Dr. Andaluz did not make any recommendation 4 for increased monitoring or to restart antipsychotics; rather, the medication Dr. Andaluz prescribed 5 Decedent may cause hallucinations. (Id.) 6 On January 17, 2019, Decedent met with social worker Violka Wanie. (Id at 29.) Wanie 7 noted that Decedent denied that his psychosis was substance induced, but Decedent told her that he 8 “self-medicated when [he] started hearing voices to help [him] deal with them.” (Id.) Wanie took 9 no action as a result of these reports from Decedent. (Id.) 10 Decedent’s last reported interaction was with Officer Asman, who questioned Decedent 11 after Asman saw water flowing from Decedent’s cell. (Id.) Asman did not inspect Decedent’s cell 12 or investigate further. (Id.) Decedent’s body was found approximately eight hours later, on January 13 21, 2019; Decedent’s apparent cause of death was methamphetamine overdose. (Id.) 14 Plaintiffs’ First Amended Complaint (“FAC”) includes various acts and omissions that 15 plaintiffs allege demonstrate a cover-up to deflect from the true cause of Decedent’s death. (See 16 id. at 30-31.) Plaintiffs also assert that Decedent’s “death occurred at a particularly inconvenient 17 time for MCSP” as it was “desperately trying to get out from under the court injunction as a result 18 of [the] Coleman v. Brown lawsuit.” (Id. at 31.) 19 Plaintiffs filed the present suit on January 27, 2020 and filed their FAC on February 26, 20 2020. (ECF Nos. 1, 6.) Defendants filed motions to dismiss on May 4, 2020 and May 15, 2020, 21 which are presently before the court. (ECF Nos. 22, 23.)4 22 LEGAL STANDARDS 23 In considering a motion to dismiss for failure to state a claim upon which relief can be 24 granted, the court must accept as true the allegations of the complaint in question, Erickson v. 25 Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the pleading in the light most favorable to the 26 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 27 4 Also before the court is plaintiffs’ motion to reconsider the denial of their motion for default 28 against defendant Michael Golding, discussed below. (ECF No. 33.) 1 In order to avoid dismissal for failure to state a claim a complaint must contain more than 2 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 3 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 4 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements 5 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the 6 court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial 7 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 8 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 9 DISCUSSION 10 A. DEFENDANTS’ MOTIONS TO DISMISS 11 Defendants move to dismiss plaintiffs’ FAC in its entirety. (ECF Nos. 22, 23.) Because 12 the court grants defendants’ motions as to some defendants and denies their motions as to others, 13 and also dismisses some causes of action entirely and not others, the court will address defendants’ 14 arguments in the order presented. 15 1. Deliberate Indifference 16 In their motions to dismiss, defendants generally assert that plaintiffs have not sufficiently 17 pleaded that defendants’ responses were deliberately indifferent, and they argue that defendants’ 18 actions did not cause Decedent’s death. Plaintiffs concede that the FAC fails to state a claim as to 19 some defendants,5 but argue that their complaint is sufficiently pleaded as to the remaining 20 defendants named in this cause of action.6 Plaintiffs request leave to amend as to the defendants 21 they concede they have failed to state a claim against and to the extent the court grants defendants’ 22 motions. 23 24 25 5 “Plaintiff's concede the issue based on the FAC in regards to Dr. Aamot, Dr. Ashe, Brunkhorst, Burns, Dr. Heatley, Dr. J. Johnson, Dr. C. Smith and Campbell and request leave to amend 26 against these Defendants.” (ECF No. 34 at 2.) 27 6 The remaining defendants in this count, not voluntarily dismissed by plaintiffs, are Dr. Robinson, Dr. Ramkumar, Dr. R. Johnson, Dr. M. Smith, Dr. Andaluz, Wanie, Asman, and 28 Bradley, which the court addresses in order. 1 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 2 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 3 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for 4 deliberate indifference requires the plaintiff to show (1) “a ‘serious medical need’ by demonstrating 5 that failure to treat a prisoner’s condition could result in further significant injury or the 6 ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was 7 deliberately indifferent.” Jett, 439 F.3d at 1096; Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th 8 Cir. 2012). 9 Deliberate indifference is shown where the official is aware of a serious medical need and 10 fails to adequately respond. Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1018 (9th Cir. 2010). 11 “Deliberate indifference is a high legal standard,” Simmons, 609 F.3d at 1019; Toguchi v. Chung, 12 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was a “purposeful act or failure to 13 respond to a prisoner’s pain or possible medical need” and the indifference caused harm, Jett, 439 14 F.3d at 1096. The prison official must be aware of facts from which he could make an inference 15 that “a substantial risk of serious harm exists” and he must make the inference. Farmer v. Brennan, 16 511 U.S. 825, 837 (1994). 17 Finally, plaintiffs alleging deliberate indifference must also demonstrate that the 18 defendants’ actions were both an actual and proximate cause of their injuries. Lemire v. California 19 Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). 20 Dr. Robinson7 21 Plaintiffs’ FAC alleges that during a three-month period in early 2018 Dr. Robinson 22 “pushed” decedent from EOP into CCCMS. (ECF No. 6 at 24.) Dr. Robinson noted that Decedent 23 had “declining percentage of group attendance[,]” was informed that Decedent was caught with 24 drug paraphernalia around September 2017, and in March 2018 was told that Decedent refused a 25 drug screen. (Id. at 21-22.) Plaintiffs also note that it was improper for Dr. Robinson, and other 26 27 7 Although plaintiffs refer to defendant as Dr. Robinson, they also claim she is a “non-medically 28 trained, unlicensed intern.” (ECF No. 6 at 24.) 1 defendants, to not inform them of Decedent’s drug use, as plaintiffs were a positive influence on 2 Decedent and could have helped him. (Id. at 23.) 3 Reading the allegations in the light most favorable to plaintiffs, the court concludes that 4 plaintiffs have sufficiently alleged that Dr. Robinson was deliberately indifferent to Decedent’s 5 medical needs and was subjectively aware of the substantial risk of his potential suicide or drug 6 overdose. Specifically, it is clear that Dr. Robinson knew of Decedent’s serious medical condition, 7 and the FAC alleges that Dr. Robinson moved Decedent from EOP to CCCMS due to systemic 8 pressure, not because Decedent completed the program or any medically valid reason, ignoring 9 Decedent’s paranoia and drug use. Given the stage of litigation and the allegations contained in 10 the FAC, plaintiffs have sufficiently pleaded a claim of deliberate indifference against Dr. 11 Robinson. 12 Dr. Ramkumar 13 Plaintiffs’ FAC alleges that approximately five months after Decedent was caught with 14 paraphernalia Dr. Ramkumar ordered a drug screen, and later sent a correspondence to Dr. 15 Robinson stating that Decedent refused the screen. (ECF No. 6 at 22.) There are no allegations in 16 the FAC that raise a plausible inference that Dr. Ramkumar knew, or should have known, of a 17 substantial risk of harm to Decedent by ordering a drug screen and then reporting that Decedent 18 refused the screen. Moreover, there are no allegations in the FAC demonstrating that Dr. 19 Ramkumar denied Decedent necessary medical treatment. Plaintiffs’ claims against Dr. Ramkumar 20 are therefore subject to dismissal. 21 Dr. R. Johnson 22 Plaintiffs claim that Dr. R. Johnson discontinued Decedent’s antipsychotic medications 23 despite clear medical records that demonstrated Decedent’s positive response to the drugs. (ECF 24 No. 6 at 26.) Defendants claim that this is a mere difference in medical opinion which cannot be 25 the basis for a deliberate indifference claim. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 26 1996). However, reading the pleadings in the light most favorable to plaintiffs, it is clear that 27 Decedent suffered from extreme psychotic episodes that were controlled only through specific 28 medications; the cessation of those medications, plaintiffs assert, resulted in the death of Decedent. 1 Additionally, and of note, the cases cited by defendants holding that a difference in medical opinion 2 is insufficient for a deliberate indifference claim arise in the context of a motion for summary 3 judgment, not the present procedural posture. See Jackson, 90 F.3d at 332; Sanchez v. Vild, 891 4 F.2d 240, 242 (9th Cir. 1989); but see Smith v. County of San Diego, 2012 WL 628307, at *5 (S.D. 5 Cal. Feb. 27, 2012) (denying motion to dismiss where court was able to draw reasonable inference 6 that defendants exhibited deliberate indifference by failing to provide decedent “proper medical 7 treatment and medications to control his serious mental issues” causing decedent’s violent death by 8 choking asphyxiation by prison officers). In the present case, the record, viewed in the light most 9 favorable to plaintiffs, does not reflect a clear difference in medical opinion. Accordingly, the court 10 finds the plaintiffs have sufficiently pleaded a claim of deliberate indifference against Dr. R. 11 Johnson. 12 Dr. M. Smith 13 Plaintiffs allege that Dr. M. Smith misdiagnosed Decedent with “antisocial and borderline 14 personality disorder” and incorrectly noted that Decedent’s record was “absent of any mention of 15 thought disorder, mania, or depression” when in fact Decedent’s record was, or should have been, 16 replete with those disorders. (ECF No. 6 at 26-27.) Defendants argue that this is a mere 17 misdiagnosis or a difference of medical opinion, and therefore cannot form the basis of a deliberate 18 indifference claim. See Estelle, 429 U.S. at 106. The analysis of this claim is the same as the 19 analysis of the claim against Dr. R. Johnson: given the allegations against Dr. M. Smith and the 20 current procedural posture, the court finds that plaintiffs have sufficiently pleaded a claim of 21 deliberate indifference against Dr. M. Smith. 22 Dr. Andaluz 23 Plaintiffs allege that Decedent met with Dr. Andaluz on December 7, 2018, and January 4, 24 2019, and that Dr. Andaluz took insufficient notes, misdiagnosed Decedent, and prescribed 25 Decedent medication that caused hallucinations. (ECF No. 6 at 27-28.) As with Drs. M. Smith and 26 R. Johnson, given Decedent’s severe mental issues, Dr. Andaluz’s alleged misdiagnosis and 27 dangerous prescription, both of which exacerbated Decedent’s symptoms, and the current stage of 28 1 litigation, the court finds that plaintiffs have sufficiently pleaded a claim of deliberate indifference 2 against Dr. Andaluz. 3 Defendant Wanie 4 Plaintiffs allege that Decedent and defendant Wanie had a conversation in which Decedent 5 denied that his psychosis was substance induced, but rather that he “self-medicated when [he] 6 started hearing voices to help [him] deal with them,” and that Wanie took no action as a result of 7 these reports from Decedent. (Id. at 29.) These allegations fail to demonstrate that defendant Wanie 8 willfully ignored Decedent’s medical needs, or that Decedent was harmed by her indifference. 9 Plaintiffs’ claims against defendant Wanie are therefore subject to dismissal. 10 Defendant Asman 11 Plaintiffs allege that Decedent’s last reported interaction was with Officer Asman, who 12 questioned Decedent after Asman saw water flowing from Decedent’s cell, and that Asman did not 13 inspect Decedent’s cell or investigate further. (Id. at 29.) These allegations fail to demonstrate that 14 Defendant Asman willfully ignored Decedent’s medical needs or that Decedent was harmed by his 15 indifference. Plaintiffs’ claims against defendant Asman are therefore subject to dismissal. 16 Defendant Bradley 17 Plaintiffs allege that defendant Bradley could not see Decedent when he walked past 18 Decedent’s cell approximately fifteen minutes before Decedent’s body was found. (Id. at 29-30.) 19 Plaintiffs also allege that when responding to calls for help from another inmate, Bradley found 20 Decedent’s body slumped over the toilet. (Id. at 30.) These allegations fail to demonstrate that 21 defendant Bradley willfully ignored Decedent’s medical needs or that Decedent was harmed by his 22 indifference. Plaintiffs’ claims against defendant Bradley are therefore subject to dismissal. 23 Conclusion 24 Plaintiffs have sufficiently pleaded deliberate indifference counts against the following 25 defendants: Drs. Robinson, M. Smith, R. Johnson, and Andaluz. Plaintiffs have not sufficiently 26 pleaded that the remaining defendants were deliberately indifferent and therefore those defendants 27 are subject to dismissal. However, as discussed below, plaintiffs will be granted leave to amend as 28 to the dismissed defendants. 1 2. Supervisory Liability 2 Plaintiffs’ second cause of action alleges supervisory liability based on customs, practices, 3 and policies against defendants Dr. Heatley, Brockenborough, Lizarraga, Dr. Ceballos, Dr. 4 Golding, and Katherine Tebrock, who are the Chief Medical Officer Executive, Chief Executive 5 Officer-Health Care, Warden, Mental Health Administrator of Quality Management, Chief 6 Psychiatrist for CDCR, and Deputy Director of CDCR’s Statewide Mental Health Program, 7 respectively. (ECF No. 6 at 36.) Plaintiffs third cause of action asserts failure to supervise against 8 the same defendants, excluding Tebrock. 9 Under § 1983, a supervisor may be liable if there exists either “(1) his or her personal 10 involvement in the constitutional deprivation or (2) a sufficient causal connection between the 11 supervisor’s wrongful conduct and the constitutional violation.” Mackinney v. Nielsen, 69 F.3d 12 1002, 1008 (9th Cir. 1995) (internal citations and quotations omitted). Supervisory liability can 13 exist in the present case if defendants implemented “a policy so deficient that the policy itself is a 14 repudiation of constitutional rights and is the moving force of the constitutional violation.” Id. 15 Failure to train or to supervise may amount to “deliberate indifference” if the need for 16 training or supervision was obvious and the failure to do so made a constitutional violation likely. 17 Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). Mere negligence in training or 18 supervision, however, does not rise to the level of deliberate indifference. Id. 19 Plaintiffs allege that the supervisor defendants were aware of “systemic-wide 20 unconstitutional mental health care that started prior to and continued to persist throughout 21 [Decedent’s] time at MCSP.” (ECF No. 34 at 10.) More specifically, plaintiffs point to the 22 Coleman case, in which testimony was given that leadership prevented “adequate care for a large 23 majority of CDCR mental health patients.” (ECF No. 6 at 32.) Plaintiffs assert that due to 24 Decedent’s clear mental illnesses he was directly affected by these policies, and that understaffing, 25 lack of drug-control policy, and pushing mentally ill patients to the lowest levels of care were all 26 policies implemented by defendants that were constitutionally deficient. (ECF No. 34 at 10.) 27 Considering plaintiffs’ allegations as well as the procedural posture of this matter, the court 28 finds that plaintiffs have sufficiently pleaded their second and third causes of action. Plaintiffs have 1 adequately alleged system-wide constitutional deprivations and failure to adequately train and 2 supervise those tasked with safeguarding Decedent’s constitutional rights. Additionally, although 3 plaintiffs’ allegations against specific defendants may be sparse, “[the] level of particularity and 4 notice is sufficient where . . . it may be fairly assumed that Defendants have access to past events 5 and to statements of policy that will either prove or disprove Plaintiffs’ allegations.” Estate of 6 Duran v. Chavez, 2015 WL 8011685, at *9 (E.D. Cal. Dec. 7, 2015) (quoting Phillips v. Cnty. of 7 Fresno 2013 WL 6243278, at *10 (E.D. Cal. Dec. 3, 2013)). Accordingly, defendants’ motions to 8 dismiss will be denied to the extent they seek dismissal of the defendants named in the second and 9 third causes of action. 10 3. Fourteenth Amendment Familial Relations 11 Plaintiffs’ fourth cause of action asserts a deprivation of their Fourteenth Amendment Right 12 to familial relations against every named defendant except Branman and Tebrock. 13 Under the Fourteenth Amendment, “official conduct that ‘shocks the conscience’ in 14 depriving [family members] of [a liberty interest in the companionship and society of a family 15 member] is cognizable as a violation of due process.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th 16 Cir. 2010). In determining whether excessive force shocks the conscience, the court must first 17 ask whether the circumstances are such that actual deliberation [by the officer] is 18 practical. Where actual deliberation is practical, then an officer’s “deliberate indifference” may suffice to shock the conscience. On the other hand, where a law 19 enforcement officer makes a snap judgment because of an escalating situation, his conduct may only be found to shock the conscience if he acts with a purpose to harm 20 unrelated to legitimate law enforcement objectives. For example, a purpose to harm might be found where an officer uses force to bully a suspect or “get even.” 21 22 Id. (internal citations omitted.) 23 As discussed in the previous two sections, plaintiffs have failed to plead that defendants 24 Asman, Bradley, Burns, Brunkhorst, Campbell, Wanie, Branman, Dr. Ashe, Dr. Ramkumar, Dr. 25 Aamot, Dr. C. Smith, and Dr. J. Johnson were deliberately indifferent to Decedent’s medical needs 26 and therefore have insufficiently pleaded that their actions “shocked the conscience.”8 Conversely, 27 8 Plaintiffs again concede this point as to Dr. Aamot, Dr. Ashe, Dr. J. Johnson, Dr. C. Smith, 28 Brunkhorst, Burns, and Campbell. (ECF No. 34 at 14.) 1 plaintiffs have sufficiently shown that the remaining defendants9 acted with deliberate indifference, 2 either in their individual or supervisory capacities, and therefore have also pleaded a Fourteenth 3 Amendment cause of action against them. Accordingly, defendants’ motions will be granted to the 4 extent they seek to dismiss the FAC’s fourth cause of action against defendants Asman, Bradley, 5 Burns, Brunkhorst, Campbell, Wanie, Branman, Dr. Ashe, Dr. Ramkumar, Dr. Aamot, Dr. C. 6 Smith, and Dr. J. Johnson, and will be denied as to the remaining defendants. 7 4. Right to Medical Care: California Constitution Article 1, Section 17 8 Plaintiffs’ fifth cause of action alleges defendants violated Decedent’s right to medical care 9 under California Constitution Article 1, Section 17. 10 The California Court of Appeals has held that “there is no basis to recognize a claim for 11 damages” under this constitutional provision. Giraldo v. Cal. Dep’t of Corr. & Rehab., 168 Cal. 12 App. 4th 231, 256 (2008). Federal courts have repeatedly concurred with this conclusion. See, 13 e.g., Asberry v. Relevante, 2018 WL 4191863, at *7 (E.D. Cal. Aug. 31, 2018) (analyzing Giraldo 14 in detail and concluding that “Article I, Section 17 provides no private right of action for damages”), 15 adopted, 2018 WL 4616383 (Sept. 24, 2018); Hicks v. Hamkar, 2016 WL 5847011, at *8 (E.D. 16 Cal. Oct. 6, 2016) (“[U]nder Article I, § 17 of the California Constitution, which prohibits cruel or 17 unusual punishment, . . . no private cause of action for damages exists.”). 18 Plaintiffs partially concede this point, agreeing to dismiss all defendants except Dr. 19 Robinson. (ECF No. 34 at 16.) Plaintiffs, however, seek to amend this cause of action to assert a 20 Bane Act violation against Dr. Robinson. (Id. at 17.) Given the authority cited above, plaintiffs 21 are precluded from asserting a cause of action for money damages premised on California 22 Constitution Article 1, Section 17. Accordingly, this cause of action will be dismissed. Plaintiffs 23 will, however, be granted leave to amend, discussed below, and are free to assert their Bane Act 24 claim in their amended complaint. 25 ///// 26 27 9 This includes Dr. Heatley, whom plaintiffs voluntarily dismissed as to the first cause of action 28 but remained in the second and third causes of action. 1 5. Wrongful Death 2 There is some confusion about plaintiffs’ final cause of action for wrongful death. In their 3 opposition, plaintiffs attempt to clarify that this cause of action is comprised of three distinct counts: 4 wrongful death, survival claim for negligence and medical malpractice, and survival action for 5 failure to summon and failure to furnish medical care. (ECF No. 34 at 18-19.) 6 Due to plaintiffs’ failure to provide defendants with fair notice of this cause of action, it too 7 will be dismissed, but with leave to amend. Because this count will be dismissed, the court does 8 not address defendants’ request to strike plaintiffs’ demand for punitive damages as to this cause 9 of action. (ECF No. 22-1 at 32.) 10 B. LEAVE TO AMEND 11 If the court finds that a complaint or claim should be dismissed for failure to state a claim, 12 the court has discretion to dismiss with or without leave to amend. Leave to amend should be 13 granted if it appears possible that the defects in the complaint could be corrected, especially if a 14 plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); Cato v. 15 United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to amend 16 his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the 17 deficiencies of the complaint could not be cured by amendment.” (citing Noll v. Carlson, 809 F.2d 18 1446, 1448 (9th Cir. 1987))). However, if, after careful consideration, it is clear that a claim cannot 19 be cured by amendment, the Court may dismiss without leave to amend. Cato, 70 F.3d at 1105-06. 20 As discussed above, plaintiffs have sufficiently pleaded claims against the following 21 defendants in their first, second, third, fourth, and/or sixth causes of action: Brockenborough, 22 Lizarraga, Katherine Tebrock, Dr. Robinson, Dr. M. Smith, Dr. R. Johnson, Dr. Andaluz, Dr. 23 Heatley, Dr. Ceballos, and Dr. Golding. Plaintiffs request leave to amend as to the remaining 24 defendants—those they concede they failed to state a claim against and those the undersigned finds 25 subject to dismissal.10 Considering that this is plaintiffs’ first request to amend their complaint 26 since defendants responded, plaintiffs’ pro se status, and most importantly the court’s uncertainty 27 10 Plaintiffs also request leave to amend their claims against defendant Branman, who is not listed 28 or mentioned in any cause of action. (ECF No. 34 at 18.) This request is granted. 1 as to whether plaintiffs’ claims against the dismissed defendants can be cured by amendment, the 2 court will allow plaintiffs to assert claims against the dismissed defendants in their Second 3 Amended Complaint. However, plaintiffs are cautioned that renewed claims against the dismissed 4 defendants that are identical or substantially similar to those contained in their FAC will likely be 5 subject to dismissal without leave to amend. If plaintiffs find that they cannot sufficiently plead 6 claims against any of the named defendants, they are instructed to follow Federal Rule of Civil 7 Procedure 41 concerning voluntary dismissals of actions without prejudice. 8 Plaintiffs are additionally cautioned that the court cannot refer to a prior complaint or other 9 filing in order to make their amended complaint complete. Local Rule 220 requires that an amended 10 complaint be complete in itself without reference to any prior pleading. As a general rule, an 11 amended complaint supersedes the original complaint, and once an amended complaint is filed, the 12 prior complaint no longer serves any function in the case. 13 C. MOTION TO RECONSIDER DEFAULT 14 Plaintiffs move for reconsideration of the Clerk’s decision to deny entry of default against 15 defendant Golding. (ECF No. 33.) Plaintiffs’ return of service indicates that a copy of the 16 complaint and summons were left at Golding’s dwelling house or usual place of abode with 17 “Cordelia” on April 8, 2020. (ECF No. 14.) Golding filed a motion to dismiss on May 15, 2020. 18 (ECF No. 23.) On May 20, 2020, plaintiffs requested default against Golding due to his untimely 19 motion to dismiss without any indication of good cause, which the Clerk denied. (ECF Nos. 26, 20 27.) 21 Federal law allows service of process by leaving a copy of the summons and complaint at 22 the individual defendant’s dwelling house or usual place of abode or delivery to an authorized 23 agent. Fed R. Civ. P. 5(b). Under C.C.P. § 415.20, substituted service may be made in California 24 by leaving a copy of the summons and complaint at the individual defendant’s office, dwelling 25 house, usual place of abode, usual place of business, or “usual mailing address other than a United 26 States Postal Service post office box.” “For substituted service to be reasonably calculated to give 27 an interested party notice of the pendency of the action and an opportunity to be heard, service must 28 be made upon a person whose relationship to the person to be served makes it more likely than not 2 OU VM EY EAINTT NS INES MAURO Sot POO ee PAY tw I A 1 | that they will deliver process to the named party.” Bonita Packing Co. v. O’Sullivan, 165 F.R.D. 2 | 610, 614 (C.D. Cal. 1995) (internal quotations and citation omitted). “The law does not favor 3 | defaults; therefore, any doubts as to whether a party is in default should be decided in favor of the 4 | defaulting party.” Id. 5 Here, plaintiffs’ return of service is insufficient to establish that they properly served 6 | Golding. Of note, their return does not list an address where the documents were delivered, nor 7 | does it list a last name for “Cordelia” or indicate her relationship with Golding. (See ECF No. 14.) 8 | Given these deficiencies, the court’s disfavor for defaults, and Golding having already filed a 9 | motion to dismiss, the court DENIES plaintiffs’ motion to reconsider. 10 CONCLUSION 11 For the reasons set forth above, it is HEREBY ORDERED that: 12 1. Defendants’ motions to dismiss (ECF Nos. 22, 23) are GRANTED IN PART and 13 DENIED IN PART. 14 2. Plaintiffs’ claims against defendants Asman, Bradley, Burns, Brunkhorst, Campbell, 15 || Wanie, Branman, Dr. Ashe, Dr. Ramkumar, Dr. Aamot, Dr. C. Smith, and Dr. J. Johnson are 16 || DISMISSED from this action, but with leave to amend. 17 3. Within twenty-one (21) days of the date of this order plaintiffs shall file an amended 18 | complaint, which shall be captioned “Second Amended Complaint.” Failure to file a second 19 | amended complaint will be construed as a voluntary dismissal of the claims and defendants listed 20 | above, and the case will proceed on the FAC. 21 4. Plaintiffs’ motion to reconsider (ECF No. 33) is DENIED. 22 | Dated: June 25, 2020 dp. A. fe 28 CAROLYN K. DELANEY 24 UNITED STATES MAGISTRATE JUDGE 25 26 | 16.schm.195 27 28 15