Lowe v. California Forensic Medical Group, Inc. ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 NICOLE LYNN LOWE, et al., No. 2:20-cv-01997-JAM-DMC 11 Plaintiffs, 12 v. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS 13 COUNTY OF BUTTE, through its COUNTY OF BUTTE AND KORY HONEA’S Dept. of Probation and MOTION TO DISMISS 14 Sheriff’s Dept., et al. 15 Defendants. 16 17 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND1 18 This case arises from the suicide of inmate Nathaniel Lowe. 19 The facts are taken from the Complaint and assumed to be true for 20 the purposes of this motion. On September 9, 2019, Mr. Lowe, as 21 a result of his mental illness was experiencing hallucinations, 22 paranoia, and suffered a breakdown. Compl. ¶ 31, ECF No. 1. 23 This erratic behavior caused him to be arrested by the Chico 24 Police and incarcerated as a pretrial detainee at Butte County 25 Jail, which is operated and overseen by Sheriff Honea. Id. ¶ 32. 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for March 9, 2021. 1 At booking, Mr. Lowe was noted to be suicidal, depressed, 2 hearing voices, and incapacitated by his mental illness. Id. 3 ¶ 33. Initially, he was placed in a psychiatric cell where 4 inmates are to be closely and continuously observed by custody 5 and medical staff for suicide attempts, self-harm, and harm to 6 others. Id. Mr. Lowe reported that he had attempted suicide 7 before and that he was currently suicidal. Id. ¶ 34. As a 8 result, he was placed on suicide watch and given various 9 medications. Id. ¶ 35. While on suicide watch, a noose made 10 from bed sheets was found in his cell and he expressed, on 11 multiple occasions, he wanted to take his own life. Id. ¶¶ 49, 12 50. Just six days later, however, on September 16, 2019, he was 13 discharged from suicide watch and suicide prevention. Id. ¶¶ 37, 14 51. Plaintiffs allege that after his discharge from suicide 15 watch, Mr. Lowe continued to show signs of deteriorating mental 16 health while at Butte County Jail. Id. ¶ 36. For example, he 17 engaged in self-harm, reported voices were telling him to kill 18 himself, slammed his head against the wall, and threatened 19 suicide. Id. He also asked for medications and to be placed in 20 a mental hospital. Id. 21 On November 8, 2019, Mr. Lowe was transferred from Butte 22 County Jail to the California Department of Corrections and 23 Rehabilitation (“CDCR”). Id. ¶ 52. Butte County officials 24 failed to inform CDCR of Mr. Lowe’s mental illness and suicidal 25 ideation. Id. Accordingly, he was placed in general population. 26 Id. Shortly thereafter, on November 11, 2019, he committed 27 suicide. Id. ¶ 53. 28 Mr. Lowe’s mother and children (“Plaintiffs”) then brought 1 this suit against the County of Butte, Sherriff Honea 2 (collectively “Defendants”) and others not privy to the current 3 Motion. Relevant here, Plaintiffs brought: (1) a 1983 claim 4 against Butte County and Sheriff Honea, both in his individual 5 and official capacity, for violations of the Fourth and 6 Fourteenth Amendment; (2) a 1983 failure to train and supervise 7 against Butte County and Sheriff Honea; (3) a 1983 Monell claim 8 against Butte County; (4) violation of California Civil Code 9 § 52.1 against Sheriff Honea; (5) violation of the ADA, 10 Rehabilitation Act and the California Unruh Act against Butte 11 County; (6) violation of California Government Code § 845.6 12 against Butte County and Sheriff Honea; (7) a negligence/ 13 wrongful claim against Sheriff Honea; (8) medical negligence/ 14 wrongful death claim against Butte County; and (9) a denial of 15 substantive due process right to familial relationship. See 16 Compl. 17 Butte County and Sheriff Honea (collectively “Defendants”) 18 then filed this Motion to Dismiss. Defs’ Mot. to Dismiss 19 (“Mot.”), ECF No. 17. Plaintiffs opposed this Motion, Opp’n, ECF 20 No. 29, to which Defendants replied. Reply, ECF No. 31. For the 21 reasons set forth below, Defendants’ Motion to Dismiss is GRANTED 22 IN PART and DENIED IN PART. 23 24 II. OPINION 25 A. Legal Standard 26 Dismissal is appropriate under Rule 12(b)(6) of the Federal 27 Rules of Civil Procedure when a plaintiff’s allegations fail “to 28 state a claim upon which relief can be granted.” Fed. R. Civ. 1 P. 12(b)(6). “To survive a motion to dismiss [under 12(b)(6)], 2 a complaint must contain sufficient factual matter, accepted as 3 true, to state a claim for relief that is plausible on its 4 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 5 quotation marks and citation omitted). While “detailed factual 6 allegations” are unnecessary, the complaint must allege more 7 than “[t]hreadbare recitals of the elements of a cause of 8 action, supported by mere conclusory statements.” Id. In 9 considering a motion to dismiss for failure to state a claim, 10 the court generally accepts as true the allegations in the 11 complaint, construes the pleading in the light most favorable to 12 the party opposing the motion, and resolves all doubts in the 13 pleader’s favor. Lazy Y Ranch LTD. v. Behrens, 546 F.3d 580, 14 588 (9th Cir. 2008). “In sum, for a complaint to survive a 15 motion to dismiss, the non-conclusory ‘factual content,’ and 16 reasonable inferences from that content, must be plausibly 17 suggestive of a claim entitling the plaintiff to relief.” Moss 18 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 19 B. Analysis 20 1. Compliance with Federal Rule of Civil Procedure 21 8(a)(2) 22 Defendants first argue the entire Complaint should be 23 dismissed because it “is unduly burdensome.” Mot. at 5. 24 Federal Rule of Civil Procedure 8(a)(2) “requires only a short 25 and plain statement of the claim showing that the pleader is 26 entitled to relief, in order to give the defendant fair notice 27 of the what the . . . claim is and the grounds upon which it 28 rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) 1 (internal quotation marks and citation omitted). 2 Defendants cite to McHenry v. Renne, 84 F.3d 1172 (9th Cir. 3 1996) to support their position. In that case, the Ninth 4 Circuit upheld the district court’s dismissal of a complaint 5 under Rule 8 because it did not contain a short and plain 6 statement of the claims for relief, did not give defendants a 7 fair opportunity to frame a responsive pleading, and did not 8 give the court a clear statement of the claims. Id. at 1174. 9 In affirming the dismissal, the Ninth Circuit noted that the 10 “thirty-seven page amended complaint is mostly an extended 11 narrative of the details of the various activities of plaintiff 12 McHenry, and his numerous alleged arrests” and “his claims are 13 set out in a single sentence thirty lines long, alleging 14 numerous and different violations of rights, without any 15 specification of which of the twenty named defendants or John 16 Does is liable for which of the wrongs.” Id. The district 17 court had found particularly troublesome “the impossibility of 18 figuring out which defendants were allegedly liable for which 19 wrongs.” Id. at 1175. 20 The only similarity Defendants point to between the 21 complaint in McHenry and the one at issue here, is its length. 22 Defendants state that because Plaintiffs have “filed a sixty-two 23 page complaint that includes one-hundred and forty-eight 24 paragraphs of allegations” it is “unduly burdensome and should 25 be dismissed.” Mot. at 4-5. The Court declines to do so. It’s 26 clear that the issue in McHenry was not the complaint’s length 27 but rather that it did not inform the court or defendants “of 28 the legal claims being asserted.” McHenry, 84 F.3d at 1176. 1 The district court in McHenry specifically noted that the 2 plaintiffs failed to follow “the traditional pleading style 3 which prescribes a ‘short and plain statement’ of basic 4 allegations followed by an outline of each legal claim based on 5 specific allegations of fact.” Id. 6 That is precisely what Plaintiffs do here in their 7 complaint. Plaintiffs provide a section of the general 8 allegations. Compl. ¶¶ 31-65. This is followed by an outline 9 of each legal claim and the specific facts upon which they are 10 based. Importantly, the Complaint specifies which Defendants 11 each claim is brought against. If Defendants take issue with or 12 are confused by a specific portion of the Complaint, Defendants 13 may move for a more definitive statement. However, the Court is 14 not persuaded that a general assertion that the Complaint is too 15 lengthy warrants dismissal, especially when Plaintiffs assert a 16 number of claims. Accordingly, Defendants’ Motion to Dismiss 17 the entire complaint under Rule 8 is DENIED. 18 2. Section 1983 Claim 19 Section 1983 allows for a civil action against any person 20 who, under color of law, causes the “deprivation of any rights, 21 privileges, or immunities secured by the Constitution and laws.” 22 42. U.S.C. § 1983. “Individuals in state custody have a 23 constitutional right to adequate medical treatment. For inmates 24 serving custodial sentences following a criminal conviction, 25 that right is part of the Eighth Amendment’s guarantee against 26 cruel and unusual punishment. However, pretrial detainees have 27 not yet been convicted of a crime and therefore are not subject 28 to punishment by the state. Accordingly, their rights arise 1 under the Fourteenth Amendment’s Due Process Clause.” Sandoval 2 v. Cty. of San Diego, 985 F.3d 657, 667 (9th Cir. 2021). “[T]he 3 elements of a pretrial detainee’s medical care claim against an 4 individual defendant under the due process clause of the 5 Fourteenth Amendment are: (i) the defendant made an intentional 6 decision with respect to the conditions under which the 7 plaintiff was confined; (ii) those conditions put the plaintiff 8 at substantial risk of suffering serious harm; (iii) the 9 defendant did not take reasonable available measures to abate 10 that risk, even though a reasonable official in the 11 circumstances would have appreciated the high degree of risk 12 involved — making the consequences of the defendant’s conduct 13 obvious; and (iv) by not taking such measures, the defendant 14 caused the plaintiff’s injuries.” Gordon v. Cty. of Orange, 888 15 F.3d 1118, 1125 (9th Cir. 2018). Defendants appear to argue 16 that Plaintiffs have not adequately alleged the final two 17 elements of a Fourteenth Amendment medical care claim — whether 18 Butte County officials took reasonable available measures to 19 abate the risks to Mr. Lowe, and whether the failure to take 20 those measures caused his injuries. See Mot. at 5-6. The Court 21 notes that although the Section 1983 claim is also purportedly 22 based on a violation of the Fourth Amendment, neither side 23 addresses it in their briefing.2 24 a. Reasonable Available Measures 25 A Fourteenth Amendment due process claim for lack of 26 27 2 The Court is skeptical that a Fourth Amendment claim can be sustained on such facts but refrains from addressing the issue 28 when not briefed by the parties. 1 medical treatment requires that “the defendant did not take 2 reasonable available measures to abate that risk, even though a 3 reasonable official in the circumstances would have appreciated 4 the high degree of risk involved — making the consequences of 5 the defendant’s conduct obvious.” Gordon, 888 F.3d at 1125. 6 “To satisfy [this] element, the plaintiff must show that the 7 defendant’s actions were objectively unreasonable, which 8 requires a showing of more than negligence but less than 9 subjective intent — something akin to reckless disregard.” 10 Sandoval, 985 F.3d at 669. 11 Plaintiffs allege that on September 10, 2019 Butte County 12 officials determined Mr. Lowe suffered from schizophrenia and 13 was suicidal. Compl. ¶ 48. Accordingly, he was placed on 14 suicide watch. Id. On September 12, 2019 employees discovered 15 a noose made from bed sheets in his cell. Id. ¶ 49. He also 16 expressed that he wanted to take his own life and continued to 17 suffer from hallucinations. Id. ¶¶ 49, 50. Despite this, he 18 was discharged from suicide watch on September 16, 2019. Id. 19 ¶ 51. Then upon his transfer on November 8, 2019, Butte County 20 officials failed to inform CDCR of his mental illness and 21 suicide risk. Id. ¶ 52. He was thus placed in general 22 population. Id. Shortly thereafter, on November 11, 2019, Mr. 23 Lowe hung himself. Id. ¶ 53. 24 Plaintiffs further allege that in the weeks preceding his 25 suicide and transfer, Butte County officials had notice of his 26 deteriorating mental health condition and threats of suicide. 27 Id. ¶ 36. Specifically, Mr. Lowe: engaged in self-injurious 28 behavior, reported voices were telling him to kill himself, 1 slammed his head against the wall, tied a noose made of sheets, 2 and threatened suicide. Id. He also asked for medications, or 3 to be placed in a mental hospital. Id. Yet Defendants 4 discontinued his treatment, failed to place him back on suicide 5 watch, and didn’t tell CDCR of his condition. Id. ¶ 37. 6 Defendants argue that Plaintiffs have failed to allege they 7 denied or delayed medical treatment as they “took the necessary 8 actions to abate the risk of suicide.” Mot. at 6. The Court 9 disagrees. Rather, taking Plaintiffs’ allegations as true, it 10 is plausible that it was objectively unreasonable for Butte 11 County officials to fail to place Mr. Lowe back on suicide 12 watch, in the weeks preceding his transfer, or inform CDCR of 13 his condition, given his medical history and ongoing suicidal 14 behaviors. 15 b. Causation 16 “In a 1983 action, the plaintiff must [. . .] demonstrate 17 that the defendant’s conduct was the actionable cause of the 18 claimed injury.” Harper v. City of Los Angeles, 533 F.3d 1010, 19 1026 (9th Cir. 2008). “To meet this causation requirement, the 20 plaintiff must establish both causation-in-fact and proximate 21 causation.” Id. This “causal connection can be established not 22 only by some kind of direct personal participation in the 23 deprivation, but also by setting in motion a series of acts by 24 others which the actor knows or reasonably should know would 25 cause others to inflict the constitutional injury.” Johnson v. 26 Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). 27 Defendants argue that Plaintiffs’ 1983 claims should be 28 dismissed because “it cannot be shown that Defendants’ conduct 1 was the actionable cause of the claimed injury.” Mot. at 6. 2 This argument fails for two reasons. First, Plaintiffs do not 3 have to “show” anything at the pleading stage. See Medina- 4 Velazquez v. Hernandez-Gregorat, 767 F.3d 103, 111 (1st Cir. 5 2014) (“For pleading purposes, [plaintiffs] need not establish 6 causation. The facts contained in the complaint need only show 7 that the claim of causation is plausible.”) (internal quotation 8 marks and citations omitted). Rather to survive a 12(b)(6) 9 motion to dismiss a complaint need only “contain sufficient 10 factual matter, accepted as true to state a claim for relief 11 that is plausible on its face.” Iqbal, 556 U.S. at 678 12 (internal quotation marks and citation omitted). Second, in 13 their briefing Defendants seem to imply that no Butte County 14 official could be said to be the actionable cause of Mr. Lowe’s 15 death. See Mot. at 5-6. But whether Plaintiffs have alleged 16 sufficient facts to state a plausible claim that Butte County 17 officials caused Mr. Lowe’s injury is a different question than 18 whether Defendants bringing this Motion can be held liable for 19 those acts. Assuming Defendants meant to argue that Plaintiffs 20 have not alleged a plausible claim that any Butte County 21 official caused Mr. Lowe’s injuries, the Court disagrees. 22 (i) Causation In Fact 23 To demonstrate causation-in-fact the plaintiff must 24 demonstrate that the injury would not have occurred but for 25 defendant’s unlawful conduct. White v. Roper, 901 F.2d 1501, 26 1505 (9th Cir. 1990). 27 Defendants argue that Plaintiffs “are unable to establish 28 cause-in-fact causation” because at the time of his suicide, Mr. 1 Lowe was at a different facility. Mot. at 5. But this argument 2 ignores Plaintiffs’ allegations, which must be taken as true, 3 that Butte County officials failed to keep Mr. Lowe on suicide 4 watch and failed to inform CDCR of his suicide risk prior to 5 transfer. Plaintiffs further allege that if Defendants had 6 taken these actions Mr. Lowe would have received proper care and 7 attention at CDCR that could have prevented his suicide. This 8 is enough to survive a motion to dismiss. Defendants point to 9 no persuasive authority that this is insufficient to state a 10 claim. In fact, the authority they do cite involve motions made 11 at much later stages of litigation. See Mot. at 5 (citing 12 Harper v. City of Los Angeles, 533 F.3d 1010 (9th Cir. 2008) 13 (involving a renewed motion for judgment as a matter of law 14 after a jury verdict) and Arnold v. Int’l Bus. Mach. Corp., 637 15 F.2d 1350 (9th Cir. 1981) (involving summary judgment)). 16 Defendants also argue Plaintiffs have failed to allege 17 cause-in-fact causation because the complaint claims Mr. Lowe 18 was placed in the CDCR general population both because of Butte 19 County’s failure to properly advise CDCR of his suicide risk and 20 CDCR employee’s failure to review Lowe’s medical history. See 21 Mot. at 5. But this is not contradictory as Defendants contend. 22 It can be true both that had Butte County employees warned CDCR 23 about Lowe’s condition he would not have died and had CDCR 24 employees checked his medical files he also would not have died. 25 See Harper, 533 F.3d at 1027-28. It is at least plausible that 26 but for their failure to inform CDCR about Lowe’s risk of 27 suicide CDCR would have placed him in appropriate care and he 28 would not have committed suicide. This is sufficient to survive 1 a motion to dismiss. See Medina-Velazquez, 767 F.3d at 111 2 (“For pleading purposes, [plaintiffs] need not establish 3 causation. The facts contained in the complaint need only show 4 that the claim of causation is plausible.”) (internal quotation 5 marks and citations omitted). 6 (ii) Proximate Cause 7 The defendant must also be the proximate or legal cause of 8 the injuries suffered. Arnold v. Int’l Bus. Machines Corp., 637 9 F.2d 1350, 1355 (9th Cir. 1981). An actor is the proximate 10 cause when it was reasonably foreseeable that their acts could 11 cause the injury. Id. 12 Defendants do not appear to challenge that Plaintiffs have 13 sufficiently alleged proximate cause, but for purposes of 14 completeness, the Court addresses it. See Mot. at 5-6. The 15 Court finds Plaintiffs have also sufficiently alleged proximate 16 cause. Taking the facts in the Complaint as true, it seems 17 foreseeable that failing to properly treat inmates for suicide 18 could lead to suicide and failing to inform CDCR of an inmate’s 19 suicidal condition could lead to improper housing classification 20 and care, leading to suicide. See Conn v. City of Reno, 572 21 F.3d 1047, 1061 (9th Cir. 2009), amended and superseded, 591 22 F.3d 1081 (9th Cir. 2010), vacated, 563 U.S. 915 (2011), 23 reinstated and amended, 658 F.3d 897 (9th Cir. 2011). 24 3. Supervisory Liability of Sherriff Honea 25 Liability under Section 1983 may not be predicated on 26 vicarious liability. Iqbal, 556 U.S. at 676. Instead, “a 27 plaintiff must plead that each Government-official defendant, 28 through the official’s own individual actions, has violated the 1 Constitution.” Id. A supervisor may be liable under 2 Section 1983 upon a showing of (1) personal involvement in the 3 constitutional deprivation or (2) a sufficient causal connection 4 between the supervisor’s wrongful conduct and the constitutional 5 violation. Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th Cir. 6 2012). Even if a supervisory official is not directly involved 7 in the allegedly unconstitutional conduct, “[a] supervisor can 8 be liable in this individual capacity for his own culpable 9 action or inaction in the training, supervision, or control of 10 his subordinates; for his acquiescence in the constitutional 11 deprivation; or for conduct that showed a reckless or callous 12 indifference to the rights of others.” Starr v. Baca, 652 F.3d 13 1202, 1208 (9th Cir. 2011) (citation omitted). The claim that a 14 supervisory official “knew of unconstitutional conditions and 15 ‘culpable actions of his subordinates’ but failed to act amounts 16 to ‘acquiescence in the unconstitutional conduct of his 17 subordinates’ and is ‘sufficient to state a claim of supervisory 18 liability.’” Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 19 2018) (quoting Starr, 652 F.3d at 1208). 20 In Starr v. Baca, the Ninth Circuit found that the 21 plaintiff’s allegations were sufficient to state a claim of 22 supervisory liability for deliberate indifference to an inmate’s 23 medical needs against the Sheriff when the plaintiff alleged the 24 Sheriff’s knowledge of the unconstitutional conditions in the 25 jail, coupled with his inaction, amounted to acquiescence in the 26 unconstitutional conduct of his subordinates. 652 F.3d at 1208. 27 The Court noted the complaint went well beyond reciting the 28 elements of a claim of deliberate indifference as the complaint 1 specifically alleged numerous similar incidents in which inmates 2 had been killed or injured because of the culpable actions of 3 Sheriff Baca’s subordinates. Id. at 1216. 4 Here, Plaintiffs allege that Sheriff Honea was aware of the 5 constitutionally inadequate mental health care but took no 6 action to remedy it. Compl. ¶¶ 26, 38, 40, 63, 69, 70. For 7 example, Plaintiffs state Sheriff Honea “had been repeatedly 8 alerted to the facts of this unconstitutional conduct and knew 9 the jail had become unsafe for those with serious mental health 10 needs.” Id. ¶ 26. However, unlike Starr, Plaintiffs make no 11 specific factual allegations supporting their assertion that 12 Sheriff Honea was aware of the unconstitutional conditions. In 13 Starr the plaintiff alleged, for example, that the United States 14 Department of Justice (“DOJ”) initiated an investigation into 15 the conditions of the jail and gave the Sheriff clear written 16 notice in a findings letter of a continued pattern of 17 constitutional violations. Starr, 652 F.3d at 1209. The Starr 18 plaintiff also gave detailed allegations of other similar 19 incidents that had occurred prior to his. See id. (“In 20 paragraph 39, Starr alleges that on July 6, 2002 Ramon Garcia 21 was severely beaten by a female deputy and later . . . was 22 killed in his cell at [the] county jail. [. . .] In paragraph 23 40, Starr alleges that on March 23, 2003 BACA was . . . again 24 made aware of Hispanic inmate gangs attacking African Americans 25 and the failure to provide reasonable security when the COUNTY 26 and LASD approved a settlement in a civil action where Ahmad 27 Burrell, Rory Fontanelle, and Aaron Cunningham were attacked 28 over a three day period, sustaining serious injuries.”) 1 Plaintiffs’ allegations that Sherriff Honea had knowledge 2 of the unconstitutional conditions and took no action, alone is 3 not enough to state a claim of supervisory liability for 4 inadequate medical care against the Sheriff. This assertion 5 must be supported by specific facts. See Figueira ex rel. 6 Castillo v. Cty. of Sutter, 2:15-cv-00500-KJM-AC, 2015 WL 7 6449151 at *5 (E.D. Cal. Oct 23, 2015) (finding allegations that 8 the defendants knew or should have known insufficient on its 9 own). Plaintiffs allege that Sheriff Honea should have known of 10 the conditions based on “prior reports and recommendations not 11 to rehire CFMG, ignoring judicial orders to abate or take 12 corrective action regarding to the mentally ill, notice from 13 quality assurance and death reviews, from litigation alleging 14 failure to provide reasonable medical and mental health care, 15 and from publications of endemic, ongoing and risks of injury or 16 death to inmates.” Compl. ¶ 40. But these “naked assertions 17 devoid of further factual enhancement” like dates, what the 18 publications or reports were, what they said, or any of the 19 specific circumstances regarding other incidents, has not nudged 20 Plaintiffs’ claims “across the line from conceivable to 21 plausible.” Iqbal, 566 U.S. at 678-680 (internal quotation 22 marks and citation omitted). Accordingly, Defendants’ Motion to 23 Dismiss the first and second causes of action against Sheriff 24 Honea in his individual capacity is GRANTED. These claims are 25 DISMISSED WITHOUT PREJUDICE. Plaintiffs also concede that they 26 cannot sue both Sheriff Honea in his official capacity and the 27 County. See Luke v. Abbott, 954 F.Supp. 202, 203 (C.D. Cal. 28 1997) (“when both an official and the local government entity 1 are named in a lawsuit and the officer is named in official 2 capacity [. . .] the officer is a redundant defendant and may be 3 dismissed.” ) Therefore, the first and second cause of action 4 against Sheriff Honea in his official capacity are also 5 DISMISSED WITH PREJUDICE.3 6 4. Monell Claim 7 Municipalities and local governments may be held liable 8 under Section 1983 for constitutional injuries inflicted through 9 a municipal policy or custom. Monell v. Dep’t of Soc. Servs. of 10 City of New York, 436 U.S. 658, 694 (1978). “A policy is a 11 deliberate choice to follow a course of action made from among 12 various alternatives by the official or officials responsible 13 for establishing final policy with respect to the subject matter 14 in question.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 15 (9th Cir. 2012) (internal quotation marks and citation omitted). 16 “In addition, a local governmental entity may be liable if it 17 has a ‘policy of inaction and such inaction amounts to a failure 18 to protect constitutional rights.’” Lee v. City of Los Angeles, 19 250 F.3d 668, 681 (9th Cir. 2001) (quoting Oviatt v. Pearce, 954 20 F.2d 1470, 1474 (9th Cir. 1992)). Then, a plaintiff must show: 21 (1) they were deprived of a constitutional right; (2) the 22 defendant had a policy or custom; (3) the policy or custom 23 amounted to deliberate indifference to the plaintiff’s 24 constitutional right; and (4) the policy or custom was the 25 moving force behind the constitutional violation. Dougherty v. 26 27 3 Because the Court dismisses all claims against Sheriff Honea on these grounds, it does not reach the issue of whether he is 28 entitled qualified immunity. 1 City of Covina, 654 F.3d 892, 900 (9th Cir. 2011); Mabe v. San 2 Bernardino Cty., 237 F.3d 1101, 1110-11 (9th Cir. 2001). 3 Additionally, a municipality’s failure to train its 4 employees may create Section 1983 liability where the “failure 5 to train amounts to deliberate indifference to the rights of 6 persons with whom the [employees] come into contact.” City of 7 Canton v. Harris, 489 U.S. 378, 388 (1989). “The issue is 8 whether the training program is adequate and, if it is not, 9 whether such inadequate training can justifiably be said to 10 represent municipal policy.” Long v. Cty. of Los Angeles, 442 11 F.3d 1178, 1186 (9th Cir. 2006). A plaintiff alleging a failure 12 to train must show: (1) he was deprived of a constitutional 13 right; (2) the municipality had a training policy that “amounts 14 to deliberate indifference to the [constitutional] rights of the 15 persons’ with whom [its employees] are likely to come into 16 contact;” and (3) his constitutional injury would have been 17 avoided had the municipality properly trained those employees. 18 Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 19 2007). “Only where a municipality’s failure to train its 20 employees in a relevant respect evidence a ‘deliberate 21 indifference’ to the rights of its inhabitants can such a 22 shortcoming be properly thought of as a city ‘policy or custom’ 23 that is actionable under § 1983.” City of Canton, 489 U.S. at 24 390. A “pattern of tortious conduct,” despite the existence of 25 a training program, or “highly predictable” constitutional 26 violations due to a “failure to equip [employees’ with specific 27 tools to handle recurring situations,” are circumstances in 28 which liability for failure to train may be imposed. Bd. of 1 Cty. Comm’rs v. Brown, 520 U.S. 397, 407-10 (1997). However, 2 “adequately trained officers occasionally make mistakes; the 3 fact that they do says little about the training program or the 4 legal basis for holding the [municipality] liable.” City of 5 Canton, 489 U.S. at 391. 6 In alleging a Monell claim the complaint “may not simply 7 recite the elements of a cause of action, but must contain 8 sufficient allegations of underlying facts to give fair notice 9 and to enable the opposing party to defend itself effectively.” 10 AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th 11 Cir. 2012) (internal quotation marks and citation omitted). 12 “[T]he factual allegations [. . .] taken as true must plausibly 13 suggest an entitlement to relief, such that it is not unfair to 14 require the opposing part to be subject to the expense of 15 discovery and continued litigation.” Id. 16 Plaintiffs bring a claim against Butte County based on a 17 failure to train and supervise and for an unconstitutional 18 custom or policy. See Compl. at 31-36. Defendants argue 19 Plaintiffs have not adequately alleged a policy of inaction or 20 inadequate training, as the complaint shows Defendants did 21 address Mr. Lowe’s mental health needs. Mot. at 8. 22 Specifically, the Complaint claims that around September 10, 23 2019, the day after he was booked, Butte County employees 24 determined Mr. Lowe was schizophrenic and suicidal and he was 25 placed on suicide watch. Compl. ¶ 48. Then six days later, on 26 September 16, 2019, he was discharged. Id. ¶ 51. Defendants 27 argue this shows, they “took the necessary actions to abate the 28 risk of suicide” and “no facts are alleged to support an 1 inference of unconstitutional conduct for the period of time, 22 2 days, after September 16 through November 8 when he was 3 transferred.” Mot. at 8. 4 The Court disagrees. That Defendants treated Mr. Lowe for 5 six days does not necessarily mean they provided him with 6 constitutionally adequate care. See Mendoza v. Cty. of San 7 Bernardino, EDCR 19-1056 JGB (SHKx), 2020 WL 2066142 at *6 (C.D. 8 Cal. Feb. 21, 2020) (“Providing some care is not an absolute bar 9 to a medical indifference claim, especially if the care provided 10 could have equally alerted Defendant to the existence of a 11 substantial ongoing medical risk.”) Plaintiffs allege that in 12 the weeks preceding his suicide, while he was in Butte County’s 13 custody, Mr. Lowe showed signs of deteriorating mental health. 14 Compl. ¶ 36. Specifically, Plaintiffs allege he engaged in 15 self-injurious behavior, reported voices were telling him to 16 kill himself, slammed his head against the wall, tied a noose 17 made of sheets, and threatened suicide. Id. Additionally, he 18 asked for medications, or to be placed in a mental hospital. 19 Id. However, he was not placed back on suicide watch nor did he 20 receive a higher level of care. Id. ¶¶ 36, 37. That he went 21 untreated for twenty-two days and committed suicide shortly 22 after his transfer to CDCR, supports an inference that the 23 earlier six-day treatment was insufficient. 24 As to whether Plaintiffs have pled an adequate Monell claim 25 based on a policy of inaction or failure to train, the Court 26 finds they have not. While, for the reasons described above, 27 Plaintiffs have sufficiently alleged Mr. Lowe was denied his 28 constitutional right to adequate medical care, they have not 1 pled sufficient facts to demonstrate a pattern, custom, or 2 policy. Plaintiffs allege that Defendants had a pervasive 3 custom of: (1) denying inmates psychiatric attention, continuity 4 of care, and access to higher levels of care not available at 5 the jail for those in need; (2) failing to properly classify, 6 house, and monitor inmates suffering from mental health issues; 7 (3) failing to maintain sufficient medical and mental health 8 staff; and (4) failing to use appropriate National and State 9 accepted jail minimum standards, procedures, and practices for 10 handling suicidal inmates. Id. ¶ 88. But Plaintiffs fail to 11 identify any other instances in which inmates at the County Jail 12 received substandard care in order to demonstrate that the 13 alleged custom, policy, or practice was the “standard operating 14 procedure” or that the County was deliberately indifferent to 15 the need to train. Gillette v. Delmore, 979 F.2d 1342, 1347 16 (9th Cir. 1992); see also Trevino v. Gates, 99 F.3d 911, 918 17 (9th Cir. 1996) (“Liability for improper custom may not be 18 predicated on isolated or sporadic incidents; it must be founded 19 upon practices of sufficient duration, frequency and consistency 20 that the conduct has become a traditional method of carrying out 21 policy.”) Plaintiffs only support their contention that these 22 were ‘customs’ by stating that “quality assurance, death 23 reviews, litigation, and publications demonstrate years of such 24 practices.” Id. ¶ 40. But such general, conclusory allegations 25 without any underlying facts to support them is insufficient. 26 See Starr, 652 F.3d at 1216. Because Plaintiffs have failed to 27 allege sufficient facts demonstrating a pattern, practice, or 28 custom Defendants’ Motion to Dismiss Plaintiffs’ Monell claims 1 against Butte County, the first, second, and third causes of 2 action, are GRANTED WITHOUT PREJUDICE. 3 5. California Civil Code § 52.1(b) Claim 4 The Bane Act allows an aggrieved individual to bring a 5 civil action for damages when that person’s constitutional or 6 statutory rights have been “interfered with [. . .] by threats, 7 intimidation, or coercion” or by an attempt to threaten, 8 intimidate, or coerce. Cal. Civ. Code § 52.1(a)-(b). “The 9 essence of a Bane Act claim is that the defendant, by the 10 specified improper means (i.e., ‘threats, intimidation or 11 coercion’), tried to or did prevent the plaintiff from doing 12 something he or she had the right to do under the law or to 13 force the plaintiff to do something that he or she was not 14 required to do under the law.” Cornell v. City & Cty. of San 15 Francisco, 225 Cal.Rptr.3d 356, 376 (Ct. App. 2017). 16 Defendants argue that Plaintiffs have failed to state a 17 claim under the Bane Act as they allege no facts to support Mr. 18 Lowe’s constitutional rights were interfered with by threats, 19 intimidation, or coercion. See Reply at 5. Plaintiffs contend, 20 that the Bane Act does not require allegations of threats, 21 coercion, or intimidation beyond the alleged constitutional 22 violation. Opp’n at 13. The Court agrees that plaintiffs need 23 not allege additional facts demonstrating threats, coercion, or 24 intimidation when the underlying constitutional violation 25 necessarily involves one of the above. But because failure to 26 respond to an inmate’s medical needs does not necessarily 27 involve threats, coercion, or intimidation, they were required 28 to do so here. 1 In Cornell, the California Court of Appeal recognized that 2 nothing in the text of the Bane Act “requires that the offending 3 threat, intimidation or coercion be independent from the 4 constitutional violation alleged.” 225 Cal.Rptr.3d at 383. 5 That case involved a claim for false arrest after the plaintiff 6 had been arrested without probable cause. Id. at 363-64. The 7 court found “that the use of excessive force can be enough to 8 satisfy the threat, intimidation or coercion element of Section 9 52.1.” Id. at 382. It also held “the Bane Act requires a 10 ‘specific intent to violate the arrestee’s right to freedom from 11 unreasonable seizure.’” Reese v. Cty. of Sacramento, 888 F.3d 12 1030, 1043 (9th Cir. 2018) (quoting Cornell, 225 Cal.Rptr.3d at 13 384). 14 “District courts in California have yet to reach a 15 consensus as to whether a plaintiff bringing a Bane Act claim 16 for deliberate indifference to serious medical needs must plead 17 threats and coercion independent of the constitutional 18 violation.” Lapachet v. Cal. Forensic Med. Grp. Inc., 313 19 F.Supp.3d 1183, 1195 (E.D. Cal. 2018). This Court is ultimately 20 more persuaded by Defendants’ position that claims for 21 deliberate indifference to serious medical needs must plead 22 facts showing a threat, intimidation, or coercion. The court in 23 Cornell found that the plaintiff did not have to demonstrate 24 additional coercive or threatening facts beyond the false arrest 25 claim because there is something inherently coercive about an 26 arrest. Cornell, 225 Cal.Rptr.3d at 382. Contrastingly, there 27 is nothing inherently threatening, intimating, or coercive about 28 failing to provide adequate medical care. While nothing in the 1 text of the Bane Act “requires that the offending threat, 2 intimidation or coercion be independent from the constitutional 3 violation alleged”, id. at 383, the text does require that a 4 right has been “interfered with [. . .] by threats, 5 intimidation, or coercion” or by an attempt to threaten, 6 intimidate, or coerce. Cal. Civ. Code § 52.1(a)-(b). Because 7 Plaintiffs have not alleged any facts indicating threats, 8 intimidation, or coercion, they have failed to state a plausible 9 claim under the Bane Act. Accordingly, Defendants’ Motion to 10 Dismiss the Bane Act claim against Sheriff Honea is GRANTED 11 WITHOUT PREJUDICE. Plaintiffs have also stipulated to dismiss 12 their claim under California Government Code § 845.6. Opp’n at 13 14. Accordingly, Defendants’ Motion to Dismiss this claim is 14 also GRANTED WITH PREJUDICE. 15 6. Negligence, Medical Negligence, and Wrongful 16 Death Claims 17 “The elements of a cause of action for negligence are duty, 18 breach, causation, and damages.” Melton v. Boustred, 107 19 Cal.Rptr.3d 481, 488 (Ct. App. 2010). “The elements of [a] 20 medical negligence cause of action [are]: “(1) the duty of the 21 professional to use such skill, prudence, and diligence as other 22 members of his profession commonly possess and exercise; (2) a 23 breach of that duty; (3) a proximate causal connection between 24 the negligent conduct and the resulting injury; and (4) actual 25 loss or damage resulting from the professional’s negligence.” 26 Belfiore-Braman v. Rotenberg, 235 Cal.Rptr.3d 629, 632 n.3 (Ct. 27 App. 2018) (quoting Turpin v. Sortini, 643 P.2d 954, 960 (Cal. 28 1982)). “The elements of the cause of action for wrongful death 1 are the tort (negligence or other wrongful act), the resulting 2 death, and the damages, consisting of the pecuniary loss 3 suffered by the heirs.” Lattimore v. Dickey, 239 Cal.App.4th 4 959, 968 (2015). 5 Defendants in one sentence argue that Plaintiffs are unable 6 to establish causation between the alleged actions of Sheriff 7 Honea and the suicide of Mr. Lowe. See Mot. at 12. Defendants 8 cite to no persuasive authority to support their argument. This 9 in insufficient to warrant dismissal at this stage. As 10 explained above, the Court finds Plaintiffs have adequately 11 alleged causation between the acts of Butte County employees and 12 Mr. Lowe’s death. Whether Defendants Sheriff Honea and Butte 13 County can be liable for these acts is a different question, 14 that without adequate briefing from the parties the Court 15 declines to address. Accordingly, the Court DENIES Defendants’ 16 Motion to Dismiss the seventh and eighth causes of action for 17 negligence, medical negligence, and wrongful death. 18 19 III. ORDER 20 For the reasons set forth above, the Court GRANTS IN PART 21 and DENIES IN PART Defendants’ Motion to Dismiss: 22 1. Defendants’ Motion to Dismiss the entire complaint 23 under Rule 8 is DENIED; 24 2. Defendants’ Motion to Dismiss Plaintiffs’ 1983 claims, 25 counts one and two, against Sheriff Honea in his individual 26 capacity is GRANTED WITHOUT PREJUDICE; 27 3. Defendants’ Motion to Dismiss the 1983 claims against 28 Sheriff Honea in his official capacity is GRANTED WITH PREJUDICE; 1 4. Defendants’ Motion to Dismiss the 1983 claims against 2 the County, claims one, two, and three, is GRANTED WITHOUT 3 PREJUDICE; 4 5. Defendants’ Motion to Dismiss Plaintiffs’ Bane Act 5 claim is GRANTED WTIHOUT PREJUDICE; 6 6. Defendants’ Motion to Dismiss Plaintiffs’ claim under 7 California Government Code Section 845.6 is GRANTED WITH 8 PREJUDICE; 9 7. Defendants’ Motion to Dismiss Plaintiffs’ state law 10 claims for negligence, medical negligence, and wrongful death is 11 DENIED. 12 If Plaintiffs elect to amend their complaint, they shall 13 file an Amended Complaint within twenty (20) days of this Order. 14 Defendants’ responsive pleadings are due twenty (20) days 15 thereafter. 16 IT IS SO ORDERED. 17 Dated: May 7, 2021 18 kA 19 Geren aaa pebrsacr 00k 20 21 22 23 24 25 26 27 28 25