Thao v. Lynch ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Chakong Thao, et al., No. 2:21-cv-0073 1-KJM-AC 12 Plaintiffs, ORDER 13 v. Jeff Lynch, et al., 1S Defendants. 16 17 The plaintiffs in this civil rights action are the surviving family of Tou Thao, who 18 | allegedly died at the hands of a cellmate in the California State Prison Sacramento. See First Am. 19 | Compl. 4§ 3-10, 22, 31, ECF No. 6. They filed this action against the warden, Jeff Lynch, and a 20 | psychologist within the prison, Dr. Angela Swarthout. See id. J] 11-13. They allege the warden 21 | violated prison policy by assigning Mr. Thao to the same cell as the man who later killed him, 22 | and they allege the warden was deliberately indifferent to Mr. Thao’s safety. See, e.g., id. J§ 23, 23 | 25, 28,44. They allege the psychologist did not report threats against Mr. Thao’s life, did not 24 | attempt to prevent the attack that ended his life, and even encouraged the killing. See, e.g., id. 25 | 413. The complaint also names several unknown officers and members of the prison’s staff as 26 | Doe defendants.’ See id. § 14. The plaintiffs assert a single claim against all of the defendants ‘Tf a defendant’s identity is unknown when the complaint is filed, plaintiffs have an opportunity through discovery to identify them. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1 under 42 U.S.C. § 1983 and the Fifth, Eighth and Fourteenth Amendments of the U.S. 2 Constitution. See id. ¶¶ 21–58. 3 The matter is before the court on the defendants’ motions to dismiss. See generally Mot. 4 Dismiss, ECF No. 8; Joinder, ECF No. 18. The plaintiffs oppose, see generally Opp’n, ECF 5 No. 9, and the defendants have replied, see generally Reply, ECF No. 17. The court held a 6 hearing by videoconference on October 8, 2021. See Minutes, ECF No. 20. Herman Franck 7 appeared for the plaintiffs, and Carson Niello appeared for the defendants. As explained below, 8 the motion is granted in part with leave to amend. 9 The court begins with the defendants’ argument that several of the plaintiffs may not 10 assert claims on Mr. Thao’s behalf. Although the defendants frame this question in jurisdictional 11 terms, see Mot. at 5–6, it is unclear whether the question is truly one of jurisdictional proportions, 12 see Est. of Elkins v. Pelayo, No. 13-1483, 2020 WL 2571387, at *3–4 (E.D. Cal. May 21, 2020) 13 (describing ambiguities in Ninth Circuit’s decisions). The court assumes without deciding that it 14 is. Cf. id. at *4 (deciding the issue “is jurisdictional in nature”). California federal district courts 15 use California law to decide whether a particular plaintiff can pursue a claim under § 1983 on 16 behalf of one who has died. See Hayes v. Cty. of San Diego, 736 F.3d 1223, 1229 (9th Cir. 2013). 17 “California’s statutory requirements for standing to bring a survival action are stated under 18 California Code of Civil Procedure § 377.30.” Id. Under that section, “an action may be 19 commenced by the decedent’s personal representative or, if none, by the decedent’s successor in 20 interest.” Cal. Civ. Proc. Code § 377.30. 21 Although ChaKong Thao, who is Tou Thao’s father, alleges he is a “proposed” 22 administrator of the estate, he does not claim to be Tou Thao’s personal representative under 23 section 377.30. See First Am. Compl. ¶ 3 & Ex. A. Nor does he allege compliance with 24 California Code of Civil Procedure section 377.32, which imposes certain requirements on a 25 person “who seeks to commence an action . . . as the decedent’s successor in interest.” Cal. Civ. 1980). But the court will dismiss such unnamed defendants if discovery clearly would not uncover their identities or if the complaint would clearly be dismissed on other grounds. Id. The federal rules also provide for dismissing unnamed defendants that, absent good cause, are not served within 90 days of the complaint. Fed. R. Civ. P. 4(m). 1 Proc. Code § 377.32(a). But given the complaint’s other allegations, this ambiguity is not 2 determinative of ChaKong Thao’s capacity to sue on his son’s behalf. A report attached to the 3 complaint shows Tou Thao is not survived by a spouse or issue, see id. Ex. A, so under California 4 law, his parents are his successors in interest in any event, see Cal. Civ. Proc. Code §§ 377.10 & 5 377.11; Cal. Probate Code §§ 6401, 6402. The court is therefore satisfied ChaKong Thao and 6 Kia Thao have standing to bring claims under § 1983 on their son’s behalf. The court need not 7 decide whether the remaining plaintiffs have constitutional standing. “[T]he presence of one 8 party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.” 9 Rumsfeld v. Forum for Acad. & Inst’l Rights, Inc., 547 U.S. 47, 52 n.2 (2006). 10 The warden also argues the complaint does not state a claim against him and moves to 11 dismiss under Rule 12(b)(6). See Mot. at 3–5; Joinder at 1–2. Dr. Swarthout does not make this 12 argument. “A supervisor can be liable in his individual capacity for his own culpable action or 13 inaction in the training, supervision, or control of his subordinates; for his acquiescence in the 14 constitutional deprivation; or for conduct that showed a reckless or callous indifference to the 15 rights of others.” Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011) (quoting Watkins v. City of 16 Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998)). But a plaintiff cannot state a claim under § 1983 17 by alleging only that an official is culpable. “[T]o be entitled to the presumption of truth, 18 allegations in a complaint or counterclaim may not simply recite the elements of a cause of 19 action, but must contain sufficient allegations of underlying facts to give fair notice and to enable 20 the opposing party to defend itself effectively.” Id. at 1216. 21 Here, the complaint does not include allegations explaining what the warden knew or did 22 not know about Mr. Thao or what he did or did not do to ensure Mr. Thao’s safety. The plaintiffs 23 claim only that the warden was responsible for safety and housing in the prison. See, e.g., id. 24 ¶¶ 12, 15, 23, 25–28, 42–47. Such generalized allegations do not suffice to state a claim under 25 § 1983. See, e.g., Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018); Dunsmore v. California, 26 No. 11-7141, 2012 WL 3809413, at *2 (C.D. Cal. July 26, 2012), report and recommendation 27 adopted, 2012 WL 3810255 (C.D. Cal. Sept. 4, 2012), aff’d sub nom. Dunsmore v. Cash, 28 549 F. App’x 680 (9th Cir. 2013). The court thus dismisses the claims against the warden. 1 The shortcomings summarized above could potentially be corrected in an amended 2 complaint. The motion to dismiss is therefore granted in part with leave to amend, if an 3 amendment is possible within the confines of Federal Rule of Civil Procedure 11. Specifically: 4 (1) The claims against Warden Lynch are dismissed with leave to amend; 5 (2) The claims against Dr. Swarthout may proceed as currently alleged and be 6 included in any amended complaint; 7 (3) Any second amended complaint must be filed within twenty-one days; and 8 (4) A status (pretrial scheduling) conference is set for July 14, 2022, at 2:30 p.m. 9 before the undersigned, with a joint report due twenty-one days prior. 10 This order resolves ECF No. 8. 11 IT IS SO ORDERED. 12 DATED: June 13, 2022.