Benally v. Coconino, County of

1 WO JL [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Renalda Benally, No. CV-24-08049-PCT-MTL (MTM) 10 Plaintiff, 11 v. ORDER [12] Coconino County, et al., [13] Defendants. [14] 15 On March 12, 2024, Plaintiff Renalda Benally, on her own behalf and on behalf of 16 the estate of Gibson Benally, filed a Complaint asserting claims under § 1983 and related 17 state-law claims regarding the death of her father, Gibson Benally (“Benally”), while he 18 was in the custody of Navajo and Coconino Counties.1 (Id.) On July 12, 2024, certain 19 Defendants filed a Motion to Dismiss the Complaint for failure to state a claim pursuant to 20 Federal Rule of Civil Procedure 12(b)(6). (Doc. 58.) 21 On July 30, 2024, Plaintiff filed a First Amended Complaint (FAC) asserting § 1983 [22] 23 1 Defendants are Coconino County, Coconino County Jail District, Sheriff James Driscoll, Chief Deputy Sheriff Bret Axlund, and Sergeant O'Brien; AB Staffing Solutions [24] LLC and the following employees of AB Staffing Solutions and/or Coconino County: 25 Medical Director Lindsey Robbins, Nurse Supervisor Lisa Hirsch, and Nurses Leann James, Sheila Lawver, Shelly Cersosimo, Summer Wolfe, Fatimah Lah, Dayne Heath, [26] Janeen Fraser, and Tate; Navajo County, the Navajo County Jail District, Sheriff David 27 Clouse, Chief Deputy Sheriff Ernie Garcia, Sheriff David Clouse; Advanced Correctional Healthcare, Inc., USA Medical & Psychological Staffing, S.C., Wexford Health Sources, 28 Inc., and Nurses Deborah Williams, Desiree Shields, and April Perkins. (Doc. 1.) 1 medical care claims and related state-law claims of medical malpractice, survival, wrongful 2 death, and intentional infliction of emotional distress.2 (Doc. 65.) On August 13, 2024, 3 Defendants Coconino County, Coconino County Jail District, Navajo County, Navajo 4 County Jail District, Axlund, Cersosimo, Clouse, Driscoll, Fraser, Garcia, Hirsch, James, 5 Lawver, O’Brien, and Wolfe filed a Motion to Dismiss the First Amended Complaint for 6 failure to state a claim. (Doc. 74.) Plaintiff requested and was granted leave to file an 7 omnibus Response to Defendants’ Motions to Dismiss. (Docs. 87, 88.) The Motions are 8 fully briefed. (Doc. 91, 92.) 9 The Court will deny the Motion to Dismiss the original Complaint as moot. The 10 Court will grant the Motion to Dismiss the FAC in part and will deny it in part. The Court 11 will also sua sponte dismiss Defendants Robbins and Williams for failure to serve. 12 I. Legal Standards 13 Dismissal of a complaint, or any claim within it, for failure to state a claim under 14 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable 15 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 16 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116 , 1121–22 (9th Cir. 2008) (quoting 17 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining 18 whether a complaint states a claim under this standard, the allegations in the complaint are 19 taken as true and the pleadings are construed in the light most favorable to the nonmovant. 20 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A 21 pleading must contain “a short and plain statement of the claim showing that the pleader is 22 entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the 23 statement need only give the defendant fair notice of what . . . the claim is and the grounds 24 upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation [25] 2 On August 13, 2024, Defendant Wexford Health Sources, Inc., filed an Answer to 26 the FAC, and on August 15, 2024, Defendants Advanced Correctional Healthcare, Inc.; 27 USA Medical & Psychological Staffing; S.C., Perkins; and Shields filed an Answer. (Docs. 75, 76.) On September 3, 2024, Defendants AB Staffing Solutions, Heath, Lah, and 28 Tate filed an Answer. (Doc. 90.) 1 omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible 2 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. 3 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 4 pleads factual content that allows the court to draw the reasonable inference that the 5 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 . 6 When deciding a Rule 12(b)(6) motion, the court generally considers only the face 7 of the complaint and documents attached thereto. Van Buskirk v. Cable News Network, 8 Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner & Co., 9 Inc., 896 F.2d 1542 , 1555 n.19 (9th Cir. 1990). If a court considers evidence outside the 10 pleading, it must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary 11 judgment. United States v. Ritchie, 342 F.3d 903 , 907–08 (9th Cir. 2003). A court may 12 consider documents incorporated by reference in the complaint or matters of judicial notice 13 without converting the motion to dismiss into a motion for summary judgment. Id. 14 II. Plaintiff’s Allegations 15 The following facts are taken from the well-pleaded allegations of the FAC. They 16 are presumed to be true for the purposes of analyzing the operative Motion to Dismiss. 17 On March 4, 2022, Benally was arrested and brought to the Navajo County Jail. 18 (FAC ¶ 28.) During intake, Benally told jail staff he had high blood pressure and chronic 19 back pain. (Id. ¶ 29.) Benally mentioned that he was being treated with medication for 20 both conditions. (Id.) He also gave staff the name of his primary-care physician. (Id.) 21 This information was recorded on Benally’s intake form. (Id.) Jail staff did not take 22 Benally’s blood pressure or fill his prescriptions. (Id. ¶ 32.) 23 After several days of delay verifying Benally’s medications, Navajo County Jail 24 staff, including Defendant Nurses Perkins, Shields, and Williams, administered his 25 medications “sporadically.” (Id. ¶ 34.) Benally went days at a time without receiving any 26 medications, including for high blood pressure. (Id.) Without his medications, Benally’s 27 health deteriorated. (Id.) He lost weight, had sunken eyes, lost color in his face, and 28 experienced a great deal of pain and discomfort. (Id. ¶ 35.) 1 On March 24, 2022, Benally was transferred to the Coconino County Jail. (Id. ¶ 2 37.) On intake, Coconino County Jail staff took Benally’s blood pressure, which was 3 166/117. (Id.) Benally told Defendant Nurses James and Lawver that he suffered from 4 high blood pressure and back pain and that he took several medications to treat his medical 5 conditions. (Id. ¶ 38.) Defendant James and Lawver communicated Benally’s condition 6 to Defendants Cersosimo and Wolfe and Nurse Lah. (Id. ¶ 41.) 7 Around 7:00 p.m. on April 17, 2022, Benally reported problems with dizziness and 8 shortness of breath and saw Nurse Heath. (Id. ¶ 44.) Shortly after midnight on the morning 9 of April 18, 2022, Coconino County Jail correctional staff called Nurse Heath to Benally’s 10 bunk. (Id. ¶ 45.) Benally told Nurse Heath that he was feeling very weak and dizzy. (Id.) 11 Benally’s heart rate was elevated, and his blood pressure was 142/106. (Id.) Nurse Heath 12 told Benally to rest on his left side and notify medical staff if his symptoms changed. (Id.) 13 In the afternoon of April 18, 2022, Benally tried but could not stand up from his 14 bunk. (Id. ¶ 46.) Another detainee contacted Defendants O’Brien and Fraser. (Id.) 15 Defendant Fraser came to Benally’s pod, and Benally told Fraser that he was short of breath 16 and dizzy. (Id. ¶ 47.) Defendant Fraser saw that other detainees were trying to help Benally 17 by placing wet washcloths on his head and chest. (Id.) Defendant Fraser took Benally’s 18 vital signs, which were normal. (Id. ¶ 48.) Defendant Fraser told Benally to drink more 19 water and watched as Benally was escorted to a pod table to eat dinner. (Id.) 20 Almost immediately, at the pod table, Benally became dizzy. (Id. ¶ 49.) Other 21 detainees on the pod came to help him and contacted Defendant O’Brien. (Id.) Defendant 22 O’Brien called Defendant Fraser back to the pod. (Id.) Defendant Fraser “was told” that 23 Benally could not stand up and was dizzy and had begun placing a wet washcloth on his 24 head. (Id. ¶ 50.) Defendant Fraser began to examine Benally at the table. (Id. ¶ 51.) 25 Benally placed his head on the table multiple times and began hyperventilating. (Id.) 26 Defendant Fraser took Benally’s vital signs, which showed dramatically increased blood 27 pressure and oxygen saturation of 92%, a sign of hypoxia, or lack of oxygen entering the 28 blood stream. (Id. ¶ 52.) Defendant Fraser repeatedly instructed Benally to slow down his 1 breathing. (Id. ¶ 53.) Benally did so, and Defendant O’Brien assisted Benally to his bunk. 2 (Id. ¶ 54.) Defendant Fraser left the pod without providing any further treatment or 3 assessment. (Id. ¶ 55.) 4 A few minutes later, Benally began breathing loudly at his bunk. (Id. ¶ 56.) Another 5 detainee pressed the emergency call button and told Defendant O’Brien that Benally’s 6 chest pains were getting worse. (Id.) Defendant O’Brien relayed this information to the 7 medical unit, and another nurse—either Defendant James, Nurse Heath, or Nurse Tate— 8 entered the pod. (Id. ¶ 57.) 9 Defendant O’Brien and the nurse took Benally to the medical unit for monitoring. 10 (Id. ¶¶ 58, 62.) There, Benally was not attended by medical personnel, no monitoring 11 devices were placed on him, and he was given no medical interventions, such as oxygen. 12 (Id. ¶ 61.) Rather, Benally was placed in a cell and monitored through “occasional” cell 13 checks. (Id. ¶ 62.) Benally was left unattended for around twenty minutes after arriving 14 at the medical unit. (Id. ¶ 63.) 15 At 6:03 p.m., a guard arrived on the medical unit to conduct cell checks. (Id. ¶ 68.) 16 When the guard looked into Benally’s cell, he noticed Benally face-down and tried to get 17 his attention. (Id.) Benally was unresponsive, and the guard called a “Code 3.” (Id.) Staff 18 arrived and attempted to revive Benally but were unsuccessful. (Id.) Benally was 19 pronounced dead shortly thereafter. (Id.) An autopsy determined his cause of death was 20 pulmonary thromboembolism due to deep vein thrombosis. (Id.) 21 The FAC makes the following additional allegations. Defendant Fraser knew that 22 chest pain and shortness of breath, accompanied by the other symptoms that Benally had 23 reported, was an emergent medical issue that required immediate evaluation and treatment 24 in an emergency-room setting. (Id. ¶ 64.) Despite this knowledge, Defendant Fraser failed 25 to take (or instruct jail staff to take) any meaningful response to Benally’s medical 26 emergency. (Id. ¶ 65.) She did not instruct the jail staff to transport Benally to the 27 emergency room where he could be evaluated, closely monitored, and treated with 28 supplemental oxygen, anti-coagulation, medication or other methods to stabilize his 1 condition. (Id.) Instead, Fraser told Benally to calm down and repeatedly tried to leave 2 his side, even though non-medical staff could see his life was in serious danger. (Id.) 3 Defendant Fraser’s command that Benally calm down and slow his breaching put his life 4 further in danger, as his oxygen saturation indicated that he would not be able to receive 5 sufficient oxygen if he slowed down his breathing. (Id. ¶ 66.) Defendant James and Nurses 6 Heath and Tate, who were on duty, aware of Benally’s medical condition, and who 7 communicated with Defendant Fraser at the time, failed to intervene to secure appropriate 8 medical care for Benally. (Id. ¶ 67.) 9 III. Section 1983 Medical Care Claims –Counts One and Two3 10 A. Respondeat Superior (Individual Capacity) 11 Defendants argue that Plaintiff’s claims against Defendants Driscoll, Axlund, 12 Clouse, Garcia, and Hirsch in their individual capacities fail because Plaintiff did not plead 13 any underlying factual allegations against them. (Doc. 74 at 9.) Defendants contend 14 Plaintiff has not made any allegations that “create a plausible inference” that Defendants 15 Driscoll, Axlund, Clouse, Garcia, and Hirsch personally participated in any violation of 16 Benally’s rights. (Id.) 17 In her Response, Plaintiff asserts that Defendants Driscoll, Axlund, Clouse, Garcia, 18 and Hirsch supervised the correctional officers and jail staff of their respective counties, 19 and they may be held liable for carrying out the policies and practices of their respective 20 counties. (Doc. 91 at 11-12.) Plaintiff “alleges that there exists within the jail policies and 21 practices where healthcare staff disregard patients’ objectively serious medical needs, 22 refuse to treat these needs, fail to provide continuity of care for these needs, fail to obtain [23] 24 3 Although Plaintiff only specifically designates Navajo County as the Defendant in 25 the heading for Count One and Coconino County as the Defendant in the heading for Count Two, Plaintiff asserts an official-capacity claim against Defendant Clouse, as well as 26 individual-capacity claims against Defendants Clouse and Garcia in Count One. (Doc. 65 27 at 13-14.) In Count Two, Plaintiff asserts an official-capacity claim against Defendant Driscoll, as well as individual-capacity claims against Defendants Driscoll, Axlund, 28 Hirsch, James, Lawver, Cersosimo, Wolfe, Fraser, and O’Brien. (Doc. 65 at 14-17.) 1 emergency outside care for these needs, and fail to appropriately staff medical units.” (Id. 2 at 12.) She contends “[i]t is enough at this juncture for purposes of Section 1983 to allege 3 that these supervisors knew or should have known of this unconstitutional conduct which 4 resulted in Mr. Benally’s death.” (Id.) 5 To state a valid claim under § 1983, plaintiffs must allege that they suffered a 6 specific injury as a result of specific conduct of a defendant and show an affirmative link 7 between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362 , 8 371-72, 377 (1976). There is no respondeat superior liability under § 1983, and therefore, 9 a defendant’s position as the supervisor of persons who allegedly violated Plaintiff’s 10 constitutional rights does not impose liability. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 11 (1978); Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). However, a plaintiff may assert 12 a claim against a supervisor “for deliberate indifference based upon the supervisor’s 13 knowledge of and acquiescence in unconstitutional conduct by his or her subordinates.” 14 Starr, 652 F.3d at 1207-08 . A supervisor may be liable “if he or she was personally 15 involved in the constitutional deprivation or a sufficient causal connection exists between 16 the supervisor’s unlawful conduct and the constitutional violation.” Lemire v. California 17 Dep’t of Corrs. and Rehab., 726 F.3d 1062 , 1074–75 (9th Cir. 2013) (quoting Lolli v. Cnty. 18 of Orange, 351 F.3d 410 , 418 (9th Cir. 2003)). 19 Supervisory liability is direct liability, which requires the plaintiff to allege that a 20 supervisor breached a duty to the plaintiff and was the proximate cause of the injury. Starr, [21] 652 F.3d at 1207 . A causal connection can be “an affirmative link” between a 22 constitutional deprivation and “the adoption of any plan or policy by [a supervisor,] express 23 or otherwise showing [his or her] authorization or approval of such misconduct.” Rizzo, [24] 423 U.S. at 371 . In other words, a supervisor can be liable for creating policies and 25 procedures that violated a plaintiff’s constitutional rights. See Hydrick v. Hunter, 669 F.3d 26 937, 942 (9th Cir. 2012). 27 Plaintiff has not alleged that Defendants Clouse, Driscoll, Garcia, Axlund, and 28 Hirsch personally participated in a deprivation of Benally’s constitutional rights. Plaintiff 1 also has not alleged the requisite causal connection between any conduct by Driscoll, 2 Axlund, Clouse, Garcia, and Hirsch and Benally’s death. Plaintiff’s general reference to 3 “policies” is insufficient to support an inference that a particular Defendant created a policy 4 or procedure that violated Benally’s rights. Thus, the Court will dismiss the individual 5 capacity claims against Defendants Clouse, Driscoll, Garcia, Axlund, and Hirsch. 6 B. Medical Care 7 The Ninth Circuit Court of Appeals has held that “claims for violations of the right 8 to adequate medical care ‘brought by pretrial detainees against individual defendants under 9 the Fourteenth Amendment’ must be evaluated under an objective deliberate indifference 10 standard.” Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (quoting 11 Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016)). To state a medical 12 care claim, a pretrial detainee must show 13 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those 14 conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable [15] available measures to abate that risk, even though a reasonable 16 official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the [17] defendant’s conduct obvious; and (iv) by not taking such 18 measures, the defendant caused the plaintiff’s injuries. [19] Id. at 1125 . “With respect to the third element, the defendant’s conduct must be objectively 20 unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each 21 particular case.’” Castro, 833 F.3d at 1071 (quoting Kingsley v. Hendrickson, 576 U.S. 22 389, 397 (2015); Graham v. Connor, 490 U.S. 386, 396 (1989)). 23 The “‘mere lack of due care by a state official’ does not deprive an individual of 24 life, liberty, or property under the Fourteenth Amendment.” Castro, 833 F.3d at 1071 25 (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). A plaintiff must “prove more 26 than negligence but less than subjective intent—something akin to reckless disregard.” Id. 27 A mere delay in medical care, without more, does not state a claim against prison officials 28 for deliberate indifference. See Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 1 404, 407 (9th Cir. 1985). 2 1. Defendants Lawver, Cersosimo, and Wolfe 3 Plaintiff alleges that Defendants Lawver, Cersosimo, and Wolfe knew Benally had 4 serious medical conditions (high blood pressure and back pain), he was not receiving his 5 medications as prescribed, and he was feeling and looking unwell and experiencing other 6 serious symptoms, including dizziness and shortness of breath. (FAC ¶ 42.) Despite this 7 knowledge, Defendants Lawver, Cersosimo, and Wolfe did not contact Benally’s doctor or 8 “take the necessary action” to ensure that Benally received prompt medical attention for 9 his emergent symptoms. (Id. ¶ 43.) 10 In their Motion, Defendants argue that Plaintiff alleges only that Defendants 11 Cersosimo, Lawver, and Wolfe knew about Benally’s medical history and that they were 12 on duty. (Doc. 74 at 10.) Defendants contend that Plaintiff does not allege that Defendants 13 Cersosimo, Lawver, and Wolfe “ever personally attended to or saw [Benally] for his 14 medical needs.” (Id.) Defendants assert that even construing the allegations in the light 15 most favorable to Plaintiff, the allegations do not support an inference of deliberate 16 indifference by Defendants Cersosimo, Lawver, and Wolfe where none of them are alleged 17 to have personally participated in Benally’s care. (Id.) 18 In her Response, Plaintiff argues that Defendants Lawver, Cersosimo, and Wolfe 19 were each aware of Benally’s medical condition and symptoms. (Doc. 91 at 11.) Plaintiff 20 contends that when Defendants Lawver and James took Benally’s blood pressure on intake, 21 it was high enough to be considered a hypertensive emergency, but they took no action to 22 obtain review by a qualified medical professional for diagnosis and treatment. (Id.) 23 As noted, Plaintiff alleges in the FAC that on March 24, 2022, jail staff took 24 Benally’s blood pressure, which was 166/117, and that that once Benally was at the 25 Coconino County Jail, he told Defendant Lawver that he suffered from high blood pressure 26 and back pain and was on several medications to treat these medical conditions. However, 27 Plaintiff does not allege that Defendant Lawver was one of the “Coconino County Jail 28 staff” who took Benally’s blood pressure on March 24, 2022. 1 Plaintiff further asserts that Lawver “communicated” Benally’s condition to 2 Defendants Cersosimo and Wolfe, but she does not allege when or how Lawver 3 communicated Benally’s condition to Cersosimo and Wolfe. Similarly, Plaintiff alleges 4 that Defendants Lawver, Cersosimo, and Wolfe knew Benally was not receiving his 5 medications as prescribed, was feeling and looking unwell, and was experiencing other 6 serious symptoms, but she does not allege how these Defendants obtained any of this 7 knowledge. Plaintiff does not describe any visits Benally had with Defendants Lawver, 8 Cersosimo, or Wolfe or allege that he interacted with these Defendants at all between his 9 intake and the time of his death. Plaintiff fails to state a claim in Count One against 10 Defendants Lawver, Cersosimo, and Wolfe. The Court will grant Defendants’ Motion to 11 Dismiss as to Defendants James, Lawver, Cersosimo, and Wolfe. 12 2. Defendant O’Brien 13 Plaintiff alleges that although Defendant Sergeant O’Brien assisted in transporting 14 Benally from the pod to the medical unit and was aware that Benally’s alarming symptoms 15 were being ignored by the jail’s medical staff, O’Brien did not intervene and obtain medical 16 help for Benally. (FAC ¶ 62.) Defendants argue that Plaintiff’s allegation that Defendant 17 O’Brien was aware of Benally’s serious medical needs “is nothing more than a conclusory 18 allegation, which is insufficient to state a claim against” him. (Doc. 74 at 7.) Defendants 19 also contend that Plaintiff does not allege that Defendant O’Brien “has any medical 20 education, training, or experience such that it is plausible to infer that he knew [Benally] 21 was experiencing a serious medical need based on the symptoms [Benally] presented with.” 22 (Id. at 7-8.) Defendants also assert that Plaintiff does not plead sufficient factual 23 allegations to create a plausible inference that O’Brien failed to take available measures to 24 abate any risk to Benally. (Id. at 8.) 25 In response, Plaintiff argues that “[t]hrough the time frame in question,” Defendant 26 O’Brien “repeatedly saw that Mr. Benally was in need of serious medical care, yet delayed 27 meaningfully assisting until it was too late.” (Doc. 91 at 9.) Plaintiff contends Defendant 28 O’Brien saw that Benally could not stand on his own, saw detainees placing wet washcloths 1 on Benally’s head, and saw Defendant Fraser “make no attempts to identify or treat these 2 symptoms.” (Id.) Plaintiff asserts that Defendant O’Brien also saw Benally become dizzy 3 and unable to stand only 15 minutes later, saw Benally hyperventilating, and saw 4 Defendant Fraser take Benally’s vital signs but take no steps to identify or treat Benally’s 5 symptoms. (Id.) Finally, Plaintiff argues that Defendant O’Brien was told of Benally’s 6 chest pain and shortness of breath but did not conduct regular cell checks on Benally at the 7 medical unit. (Id.) 8 Plaintiff’s allegations do not support that O’Brien intentionally disregarded a 9 substantial risk of serious harm to Benally. O’Brien’s first alleged involvement in 10 Benally’s medical condition was at 4:55 p.m. on the afternoon of April 18, 2022, when 11 another detainee contacted O’Brien, who contacted Defendant Fraser. (FAC ¶ 46.) 12 Defendant Fraser entered the pod at 5:05 p.m. and left at 5:10 p.m. (Id. ¶¶ 47-48.) Benally 13 “almost immediately” became dizzy at the pod table, detainees again contacted O’Brien, 14 and O’Brien called Defendant Fraser back to the pod. (Id. ¶ 49.) Defendant Fraser returned 15 to the pod at 5:13 p.m., three minutes after she had left. (Id.) After Defendant Fraser 16 examined Benally and took his vital signs and Benally’s hyperventilation had slowed, 17 Defendant O’Brien helped Benally to his bunk. (Id. ¶ 54.) This took less than eight 18 minutes. (Id.) Defendant Fraser left the pod at 5:21 p.m. (Id.) Eleven minutes after that, 19 at 5:32 p.m., a detainee pressed the emergency call button and told O’Brien that Benally’s 20 chest pains were getting worse. (Id. ¶ 56.) O’Brien relayed the information to the medical 21 unit. (Id. ¶ 57.) At 5:36 p.m., another nurse entered the pod. (Id.) In other words, in the 22 41 minutes between the time Plaintiff alleges O’Brien first became aware of Benally’s 23 condition, O’Brien responded to three calls for aid for Benally, summoned Defendant 24 Fraser twice, and relayed information to the medical unit regarding Benally’s worsening 25 chest pain, which prompted a different nurse to go to the pod. 26 Citing two non-binding, extra-circuit decisions and a California district court 27 decision, Plaintiff contends that Defendant O’Brien “may not escape liability based on the [28] 1 argument that he lacks medical training.” (Id. at 9-10.)4 Contrary to Plaintiff’s assertions, 2 as a correctional officer and not a medical provider, Defendant O’Brien was not required 3 to question or overrule Defendant Fraser’s treatment decisions. As Defendants point out, 4 Plaintiff has not alleged that Defendant O’Brien had any relevant medical training, and her 5 allegations show that O’Brien took “reasonable available measures” to abate the risk to 6 Benally by repeatedly summoning medical aid as soon as O’Brien became aware of 7 Benally’s medical need. Gordon, 888 F.3d at 1125 . Moreover, Plaintiff has not alleged 8 that Benally suffered injury because of any delay in O’Brien summoning medical aid. See, 9 e.g., Cravotta v. Cnty. of Sacramento, 717 F. Supp. 3d 941 , 955 (E.D. Cal. 2024) (“Given 10 the nature of the injuries it is not obvious that medical intervention by the Officer 11 Defendants (as opposed to trained medical personnel) would have made a difference in 12 terms of the outcome”); Hertig v. Cambra, No. 1:04-CV-5633-ROS, 2009 WL 62126 , at 13 *4 (E.D. Cal. Jan. 8, 2009) (“[A] delay in receiving medical care, without more, is 14 insufficient to state a claim against a jailor for deliberate indifference unless the plaintiff 15 can show that the delay in treatment harmed him.”); Ortiz v. City & Cnty. of San Francisco, 16 No. 18-cv-07727-HSG, 2020 WL 2793615 , at *3–4 (N.D. Cal. May 29, 2020) (holding 17 plaintiff failed to demonstrate the third and fourth elements of his deliberate indifference 18 claim when defendant officers promptly summoned medical care after plaintiff was beaten 19 despite their failure to take any other precautionary actions, and plaintiff failed to plead 20 any injury caused by a delay in receiving treatment). And although Plaintiff claims that 21 O’Brien failed to conduct regular checks while Benally was in the medical unit, that 22 allegation contradicts her allegation that Benally was monitored through “occasional” cell [23] 4 Short v. Hartman, 87 F.4th 593 , 613 (4th Cir. 2023); Howell v. NaphCare, Inc., 67 [24] 4th 302, 315-16 (6th Cir. 2023); Cravotta v. Cnty. of Sacramento, 717 F. Supp. 3d 941 25 (E.D. Cal. 2024). In Cravotta, the district court concluded that the plaintiff had not stated a Fourteenth Amendment claim against officers for failing to administer CPR or other life26 saving measures because the plaintiff failed to allege that the officers were trained in and 27 could have reasonably provided CPR or other life-saving measures, that is, that those measures were “reasonably available” and failed to allege that his injury could have been 28 alleviated had CPR or other life-saving measures been administered swiftly. Id. at 955. 1 checks. Plaintiff has not alleged sufficient facts to support a reasonable inference that 2 O’Brien was the officer responsible for conducting checks on detainees in the medical unit. 3 On the facts alleged, Defendant O’Brien’s actions were not objectively unreasonable. See 4 Castro, 833 F.3d at 1071 . Plaintiff fails to state a claim in Count Two against Defendant 5 O’Brien. The Court will grant Defendants’ Motion to Dismiss as to Defendant O’Brien. 6 3. Defendant Fraser 7 Plaintiff alleges that when Defendant Fraser first saw Benally on the afternoon of 8 April 18, 2022, Benally told Fraser that he was short of breath and dizzy. At that time, 9 Benally’s vital signs were normal. When Defendant O’Brien summoned Defendant Fraser 10 back to the pod less than five minutes after she left, Fraser was told Benally could not stand 11 up and was dizzy. Benally began “vigorously” hyperventilating. Fraser took Benally’s 12 vital signs, which showed “dramatically increased blood pressure” and an oxygen 13 saturation of 92%, which is a sign of hypoxia. Defendant Fraser left the dorm eight minutes 14 later without trying to determine the cause of Benally’s symptoms, seeking emergency 15 assistance, or ordering monitoring. (Id. ¶ 55.) 16 Defendants argue that Plaintiff’s own allegations show Defendant Fraser 17 immediately responded to Benally’s pod twice on April 18, 2022, and took several actions 18 to address Benally’s condition, including taking his vital signs, instructing him to drink 19 more water, making sure he could eat dinner, conducting an examination, and instructing 20 him to slow down his breathing. (Doc. 74 at 11.) Defendants contend that Plaintiff has 21 alleged no more than negligence by Defendant Fraser. (Id.) 22 A medical provider can be deliberately indifferent even if she takes some action to 23 address a detainee’s condition. Here, Plaintiff alleges that Defendant Fraser ignored 24 Benally’s dramatically increased blood pressure, hypoxia, and dizziness and failed to 25 determine the cause of Benally’s symptoms, seek emergency assistance, or order 26 monitoring. Plaintiff’s allegations are sufficient to state a Fourteenth Amendment claim 27 against Defendant Fraser. The Court will deny Defendants’ Motion to Dismiss as to the 28 Fourteenth Amendment medical care claim in Count Two against Defendant Fraser. 1 4. Defendant James 2 Plaintiff alleges that when Defendant O’Brien called the medical unit the third time 3 on the afternoon of April 18, 2022, a nurse—either Defendant James, Nurse Heath, or 4 Nurse Tate—took Benally to the medical unit for monitoring but did not attempt to 5 diagnose the cause of Benally’s condition or obtain emergency help for him. (FAC ¶¶ 58, 6 62.) Plaintiff claims Benally was left unattended at the medical unit for twenty minutes, 7 no monitoring devices were placed on him, he was given no medical interventions, and he 8 was monitored only through “occasional” cell checks. (Id. ¶¶ 61-63.) Plaintiff alleges that 9 Defendant James and Nurses Heath and Tate, who were on duty, aware of Benally’s 10 medical condition, and who communicated with Defendant Fraser at the time, failed to 11 intervene to secure appropriate medical care for Benally. (Id. ¶ 67.) 12 Defendants argue that Plaintiff has not alleged the identity of the “different 13 detention nurse” who responded to Benally’s pod, and in any event, even if it was 14 Defendant James, James “clearly was not deliberately indifferent” to Benally because that 15 “different detention nurse” merely transported Benally to the medical unit in a wheelchair. 16 (Doc. 74 at 10.) Defendants assert that Plaintiff has not alleged that any of the named 17 nurses was qualified to diagnose Benally’s condition or determine that his symptoms 18 warranted review by a medical professional who could diagnose Benally’s condition. (Id.) 19 Defendants also contend that Plaintiff has alleged, at most, a mere lack of due care by 20 Defendant James, which is not sufficient to state a Fourteenth Amendment violation. (Id.) 21 In her Response, Plaintiff argues Defendant James was aware of Benally’s medical 22 condition and symptoms. (Doc. 91 at 11.) Plaintiff asserts Defendant James conducted 23 Benally’s intake when he arrived at Coconino County jail and documented that his high 24 blood pressure and back pain both required medications, and when James took Benally’s 25 blood pressure, it was high enough to be considered a hypertensive emergency, but she 26 “did not act in response.” (Id.) Plaintiff also contends that when Defendant James 27 responded to Benally’s pod due to his worsening medical condition, James did not attempt 28 to identify or treat Benally’s symptoms or contact emergency services, although James 1 “heard [Benally] hyperventilating loudly all the while.” (Id.) Plaintiff further argues that 2 Defendant James saw Benally’s worsening condition upon his arrival in the medical unit, 3 but she made no attempts to contact emergency services.5 (Id.) 4 Accepted as true, Plaintiff’s allegations are sufficient state a Fourteenth Amendment 5 medical care claim against Defendant James. The Court will deny Defendants’ Motion to 6 Dismiss as to Defendant James. 7 C. Official-Capacity Claims 8 Defendants argue that Plaintiff’s official-capacity claims against Defendants 9 Driscoll and Clouse duplicate her claims against Coconino County and Navajo County and 10 the Court should dismiss the counties because Driscoll and Clouse are the proper 11 Defendants for Plaintiff’s Monell claims. (Doc. 74 at 4-5.) In response, Plaintiff contends 12 that under Monell, a litigant may sue an individual official, a municipality, or both, and 13 each is considered a suit against the municipality for its own actions. (Doc. 91 at 17.) 14 Plaintiff is correct. A suit against a defendant in his or her official capacity is 15 another way of pleading an action against the entity that employs the defendant. Kentucky [16] 5 In their Reply, Defendants assert that Plaintiff includes factual allegations in her 17 Response that she did not plead in the FAC. (Doc. 92 at 5.) They contend that Plaintiff now claims in her Response that when Defendants Lawver and James took Benally’s blood [18] pressure, “it was high enough to be considered a hypertensive emergency, but they did not 19 act in response” and that they “communicated” Benally’s condition to Defendants Cersosimo and Wolfe, yet none of them made any attempts to ensure that Benally received [20] his medication. (Id. at 6.) Defendants argue Plaintiff did not make either allegation in the 21 FAC. (Id.) They further assert that Plaintiff now claims in her Response that “‘Defendant James entered Mr. Benally’s pod at approximately 5:36 p.m. on April 18, 2022 in response [22] to his worsening medical condition, yet James did not attempt to identify or treat Mr. 23 Benally’s symptoms, and she did not contact emergency services.’” (Id.) (quoting Response, Doc. 91 at 11.) Defendants contend “[t]his is a blatant attempt to modify or [24] amend [the] FAC” because the “actual allegations” in the FAC do not specifically identify 25 Defendant James as the nurse who entered Benally’s pod at approximately 5:36 p.m. on April 18, 2022, and to the contrary, the FAC alleges that a “different detention nurse” 26 entered the pod and that it might have been any one of three different detention nurses who 27 were on duty at the jail at the time. (Id.) Defendants’ point is well-taken; however, for purposes of this Order, Plaintiff’s mischaracterization of the allegations in the FAC is 28 irrelevant because the Court only considers the allegations as made in the FAC. 1 v. Graham, 473 U.S. 159, 165 (1985). The real party in interest is not the named defendant, 2 but the entity that employs the defendant. Id. To bring a claim against an individual in his 3 official capacity, a plaintiff must show that the constitutional deprivation resulted from the 4 entity’s policy, custom, or practice. Id.; Monell, 436 U.S. at 694 . Although the real party 5 in interest for the official-capacity claims against Defendant Driscoll and Clouse are the 6 respective counties that employ them, that is not a basis for dismissing the counties as 7 Defendants. 8 D. Navajo County 9 1. Allegations Specific to Navajo County 10 In Count One, Plaintiff alleges Nurses Williams, Shields, and Perkins failed to 11 provide Benally with proper medical care or access to medical care, and their misconduct 12 was objectively unreasonable and undertaken intentionally, with malice, and/or with 13 reckless indifference to Benally’s rights. (FAC ¶¶ 72-73.) Alternatively, Plaintiff asserts 14 Nurses Williams, Shields, and Perkins were deliberately indifferent to Benally’s serious 15 medical needs, and their actions were undertaken intentionally, with malice, and/or with 16 reckless indifference to Benally’s health and safety. (Id. ¶ 74.) As a third alternative 17 theory, Plaintiff claims that pursuant to Navajo County Jail policies and widespread 18 practices (1) healthcare staff commonly disregards reports by patients of objectively 19 serious medical needs; (2) healthcare staff refuses to provide adequate treatment to patients 20 complaining of serious medical conditions or in need of medications; (3) healthcare staff 21 fails to ensure continuity of care among medical and correctional staff; (4) employees 22 prioritize profits and maintaining a competitive edge as a low-cost vendor at the expense 23 of constitutionally adequate care; (5) inadequate levels of health care staffing are provided, 24 including inadequately qualified staff; and (6) healthcare staff fail or refuse to arrange for 25 detainees to be treated in outside facilities, even when an outside referral is necessary or 26 proper. (Id. ¶ 76.) Plaintiff contends these policies and practices flourished because 27 Defendants Navajo County, Navajo County Jail District, Clouse, and Garcia were 28 indifferent to them. (Id. ¶ 77.) Plaintiff asserts these Defendants “directly encouraged the 1 very type of misconduct at issue,” failed to provide adequate training and supervision of 2 healthcare and correctional employees and failed to adequately punish and discipline prior 3 instances of similar misconduct. (Id.) 4 2. Parties’ Arguments 5 Defendants argue that Plaintiff “fails to create a plausible inference that any policy, 6 custom, or practice was the moving force behind any violation of [Benally’s] rights.” (Doc. 7 74 at 12.) First, they contend that Plaintiff fails to set out the text of a specific written 8 policy. (Id. at 13.) Second, Defendants assert that Plaintiff’s allegations “are insufficient 9 to state a Monell claim based on a theory that Navajo Entity Defendants maintained 10 longstanding practices or customs” because Plaintiff fails to “delineate any other instances 11 of alleged unconstitutional conduct by Navajo Entity Defendants and/or their employees.” 12 (Id.) Third, Defendants argue that Plaintiff’s claim based on a failure-to-train theory fails 13 because Plaintiff fails to allege any other instances of alleged constitutional violations by 14 untrained Navajo Entity Defendants’ employees to plausibly allege that Navajo Entity 15 Defendants were on notice of any deficiency in their training program. (Id. at 14-15.) 16 Plaintiff responds that she has adequately pleaded a Monell claim because she 17 “alleges that the jails maintain policies and practices that allow healthcare staff to disregard 18 patients’ objectively serious medical needs, refuse to treat these needs, fail to provide 19 continuity of care for these needs, fail to bring emergency, outside care for these needs, 20 and fail to appropriately staff medical units.” (Doc. 91 at 14.) Plaintiff argues she also 21 plausibly alleged that “the County was on notice for deficiencies in its training programs” 22 because of “the number of cases where jail staff failed to appropriately respond to serious 23 medical needs.” (Id. at 15.) 24 3. Analysis 25 a. Deliberately Indifferent Policy or Practice 26 To state a claim based on a policy, practice, or custom of Navajo County, Plaintiff 27 must allege facts (1) that Benally’s constitutional rights were violated by an employee or 28 employees of Navajo County; (2) that Navajo County has customs or policies that amount 1 to deliberate indifference; and (3) that the policies or customs were the moving force 2 behind the violation of Benally’s constitutional rights in the sense that the Navajo County 3 could have prevented the violation with an appropriate policy. Mabe v. San Bernardino 4 Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1110 (9th Cir. 2001). 5 The Court need not determine whether Plaintiff alleges facts to support a 6 constitutional violation by employees of Navajo County because Plaintiff fails to allege 7 facts to support that Navajo County had a policy, custom, or practice that amounted to 8 deliberate indifference. A policy is “a deliberate choice to follow a course of action” made 9 by the officials or entity “responsible for establishing final policy with respect to the subject 10 matter in question.” Oviatt v. Pearce, 954 F.2d 1470 , 1477 (9th Cir. 1992). A policy can 11 be one of action or inaction. Long v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). 12 A “custom” for purposes of municipal liability is a “widespread practice that, 13 although not authorized by written law or express municipal policy, is so permanent and 14 well-settled as to constitute a custom or usage with the force of law.” City of St. Louis v. 15 Praprotnik, 485 U.S. 112, 127 (1988). The Ninth Circuit has identified three ways to show 16 a policy or custom of a municipality: (1) by showing a “longstanding practice or custom 17 which constitutes the ‘standard operating procedure’ of the local government entity;” 18 (2) “by showing that the decision-making official was, as a matter of state law, a final 19 policymaking authority ‘whose edicts or acts may fairly be said to represent official policy’ 20 in the area of decision”; or (3) “by showing that an official with final policymaking 21 authority either delegated that authority to, or ratified the decision of, a subordinate.” 22 Ulrich v. City & Cnty. of S.F., 308 F.3d 968 , 984–85 (9th Cir. 2002). 23 “Liability for improper custom may not be predicated on isolated or sporadic 24 incidents; it must be founded upon practices of sufficient duration, frequency and 25 consistency that the conduct has become a traditional method of carrying out policy.” 26 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). While one or two incidents are 27 insufficient to establish a custom or practice, the Ninth Circuit has not established what 28 number of similar incidents would be sufficient to constitute a custom or policy. See 1 Oyenik v. Corizon Health Inc., No. 15-16850, 2017 WL 2628901 , at *2 (9th Cir. June 19, 2 2017) (a reasonable jury could conclude that at least a dozen instances of defendant Corizon 3 denying or delaying consultations and radiation treatment for cancer patient over a year 4 amount to a custom or practice of deliberate indifference) (citing Oviatt, 954 F.2d at 1478). 5 But “[t]here is no case law indicating that a custom cannot be inferred from a pattern of 6 behavior toward a single individual.” Id. Whether actions by entity officers or employees 7 amount to a custom “depends on such factors as how longstanding the practice is, the 8 number and percentage of officials engaged in the practice, and the gravity of the conduct.” 9 Mi Pueblo San Jose, Inc. v. City of Oakland, C-06-4094 VRW, 2006 WL 2850016 , at *4 10 (N.D. Cal. Oct. 4, 2006). 11 Plaintiff does not identify a written Navajo County policy that allegedly resulted in 12 Benally’s death, and she only alleges facts regarding Benally; she does not allege facts 13 regarding any other similar incidents in Navajo County that would support an inference 14 that Defendants’ conduct in this case reflects “a traditional method of carrying out policy.” 15 See Trevino, 99 F.3d at 918 . Following the Supreme Court’s decision in Iqbal, the Ninth 16 Circuit has clarified that for a Monell claim to survive a motion to dismiss, the complaint 17 (1) “may not simply recite the elements of a cause of action but must contain sufficient 18 allegations of underlying facts to give fair notice and to enable the opposing party to defend 19 itself effectively” and (2) “the factual allegations that are taken as true must plausibly 20 suggest an entitlement to relief, such that it is not unfair to require the opposing party to be 21 subjected to the expense of discovery and continued litigation.” AE ex rel. Hernandez v. 22 County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr, 652 F.3d at 1216 ). 23 Even accepting Plaintiff’s factual allegations as true, she does not allege sufficient facts to 24 “suggest an entitlement to relief” based on a widespread custom or practice. And Plaintiff 25 does not allege facts to support the existence of a widespread custom or practice based 26 solely on the events that resulted in Benally’s death. According to Plaintiff’s allegations, 27 Benally was in Navajo County custody for 20 days. On intake, Benally told jail staff he 28 had high blood pressure and suffered from back pain, for which he took medication, and 1 he gave jail staff the name of his primary-care physician, but staff did not take Benally’s 2 blood pressure or fill his prescriptions. Plaintiff claims that after several days of delay in 3 verifying Benally’s medications, Navajo County Jail staff administered his medications 4 “sporadically,” Benally went days at a time without receiving any of his medications, 5 including his blood pressure medication. Without his medications, Benally’s health 6 deteriorated. These allegations are too vague to infer a widespread custom from jail staff’s 7 behavior toward Benally alone. Thus, Plaintiff fails to state a claim against Navajo County 8 based on the existence of a written or unwritten policy. 9 Plaintiff also fails to state a claim based on Defendant Clouse’s policy-making 10 authority. She alleges no facts to support that Defendant Clouse made any decisions 11 concerning Navajo County’s policies with respect to medical care. And as discussed 12 below, Plaintiff has not alleged facts to support a claim based on ratification. 13 b. Failure to Train or Supervise 14 To support a Monell claim for failure to train under § 1983, a plaintiff must allege 15 facts demonstrating that the local government’s failure to train amounts to “deliberate 16 indifference to the rights of persons with whom the [untrained employees] come into 17 contact.” Connick v. Thompson, 563 U.S. 51 , 61 (2011) (citing City of Canton v. Harris, [18] 489 U.S. 378, 388 (1989)). A plaintiff must allege facts to support that the alleged failure 19 amounted to deliberate indifference. Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 20 1998). Specifically, a plaintiff must allege facts to support that not only was particular 21 training or supervision inadequate, but also that such inadequacy was the result of “a 22 ‘deliberate’ or ‘conscious’ choice” on the part of the defendant. Id. at 1213-14 ; see Clement 23 v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (a plaintiff must allege facts to support that 24 “in light of the duties assigned to specific officers or employees, the need for more or 25 different training is obvious, and the inadequacy so likely to result in violations of 26 constitutional rights, that the policy[]makers . . . can reasonably be said to have been 27 deliberately indifferent to the need.” (quoting City of Canton, 489 U.S. at 390 )). A plaintiff 28 must also show a “sufficient causal connection between the supervisor’s wrongful conduct 1 and the constitutional violation.” Redman v. County of San Diego, 942 F.2d 1435 , 1446 2 (9th Cir. 1991) (citations omitted). A “decision not to train certain employees about their 3 legal duty to avoid violating citizens’ rights may rise to the level of an official government 4 policy for purposes of § 1983.” Connick, 563 U.S. at 61. 5 Here, Plaintiff alleges no facts regarding any purported failure by Navajo County to 6 train or supervise its employees with respect to recognizing, treating, or obtaining medical 7 attention for detainees’ serious medical needs. Plaintiff also fails to allege facts to support 8 the existence of a pattern of similar incidents that would make the need for more or different 9 training obvious. See Clement, 298 F.3d at 905 . Plaintiff therefore fails to state a Monell 10 claim against Navajo County based on failure to train or supervise. 11 c. Ratification 12 A municipality can be liable “for an isolated constitutional violation if the final 13 policymaker ‘ratified’ a subordinate’s actions.” Christie v. Iopa, 176 F.3d 1231, 1238 (9th 14 Cir. 1999). To show ratification, a plaintiff must prove that authorized policymakers knew 15 of a subordinate’s actions “before the alleged constitutional violations ceased,” and that 16 they “made a deliberate choice to endorse” the subordinate’s actions “and the basis” for 17 them. Id. at 1239 (quoting Praprotnik, 485 U.S. at 127 ). “A mere failure to overrule a 18 subordinate’s actions, without more, is insufficient to support a § 1983 claim.” Lytle v. 19 Carl, 382 F.3d 978, 987 (9th Cir. 2004). “In other words, in order for there to be 20 ratification, there must be ‘something more’ than a single failure to discipline or the fact 21 that a policymaker concluded that the defendant officer’s actions were in keeping with the 22 applicable policies and procedures.” Garcia v. City of Imperial, No. 08cv2357 BTM(PCL), [23] 2010 WL 3911457 at *10 (S.D. Cal 2010). 24 Here, Plaintiff alleges no facts regarding any ratification of any subordinate’s 25 misconduct by any authorized policymaker before the alleged constitutional violation 26 ceased. Plaintiff fails to state a claim against Navajo County based on ratification. 27 For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss as to 28 Count One. 1 E. Coconino County 2 1. Allegations Specific to Coconino County 3 In Count Two, Plaintiff alleges that Defendants James, Lawver, Cersosimo, Wolfe, 4 Fraser, and O’Brien were aware of Benally’s serious medical needs and the risk of harm to 5 Benally if he did not receive appropriate medical care, but despite that knowledge, 6 Defendants failed to provide Benally with proper medical care or access to medical care or 7 intervene to provide such care. (FAC ¶ 79.) Alternatively, Plaintiff claims Defendants 8 were deliberately indifferent to Benally’s objectively serious medical needs, and their 9 actions were undertaken intentionally, with malice, and/or reckless indifference to 10 Benally’s health and safety. (Id. ¶ 82.) As a third alternative, Plaintiff alleges that 11 Benally’s injuries were caused by policies and practices of Defendants Coconino County, 12 Coconino County Jail District, Driscoll, Axlund, and Hirsch. (Id. ¶ 83.) Plaintiff contends 13 Coconino County has policies and widespread practices pursuant to which detainees 14 receive unconstitutionally inadequate healthcare, including policies and practices pursuant 15 to which (1) healthcare staff commonly disregards reports by patients of objectively serious 16 medical needs; (2) healthcare staff refuses to provide adequate treatment to patients 17 complaining of serious medical conditions or in need of medications; (3) healthcare staff 18 fails to ensure continuity of care among medical and correctional staff; (4) inadequate 19 levels of health care staffing are provided, including inadequately qualified staff; and (5) 20 healthcare staff fails or refuses to arrange for prisoners to be treated in outside facilities, 21 even when an outside referral is necessary or proper. (Id. ¶ 84.) Plaintiff asserts these 22 policies and practices were allowed to flourish because Defendants Coconino County, 23 Coconino County Jail District, Driscoll, Axlund, and Hirsch were indifferent to them. (Id. 24 ¶ 91.) Plaintiff further claims these Defendants “directly encouraged the very type of 25 misconduct at issue,” failed to provide adequate training and supervision of healthcare and 26 correctional employees, failed to adequately punish and discipline prior instances of similar 27 misconduct, and enacted the policies described elsewhere in the FAC. (Id.) [28] 1 2. Analysis 2 As noted, Plaintiff cannot state a claim against Coconino County for the alleged 3 unreasonable conduct or deliberate indifference of its employees to Benally’s serious 4 medical needs. Plaintiff therefore cannot state a claim against Coconino County on her 5 first two alternative theories of liability. The Court will evaluate whether she has stated a 6 claim based on improper policy or custom, inadequate training and supervision, or 7 ratification. 8 a. Policy or Custom 9 Plaintiff cites four examples of detainees who died between January 2019 and 10 February 2022 in the Coconino County Jail to support her claim of a pattern of deliberate 11 indifference. In January 2019, a 20-year-old man, Kyle Martinson, died from pneumonia 12 caused by strep throat. (Id. ¶ 87.) Martinson complained that his back was tender to the 13 touch, but jail staff dismissed his complaint as “exaggerated.” (Id.) Martinson complained 14 that he could not breathe for days before his death and could barely walk just prior to his 15 death. (Id.) On the day of this death, Martinson was seen hyperventilating in his cell, and 16 his vital signs reflected a critically low oxygen level. (Id.) 17 On September 12, 2019, Floyd Jackson was transferred to the Coconino County Jail 18 with “symptoms so concerning that he was housed in a cell by himself.” (Id. ¶ 88.) On 19 September 15, 2019, Jackson died from peptic ulcer disease as he was being examined by 20 Coconino County jail medical staff. (Id.) 21 On July 29, 2020, a man was arrested and exhibited alarming medical symptoms 22 during the booking process but refused to answer medical questions. (Id. ¶ 89.) Officers 23 saw a laceration on his arm that appeared red, swollen, and hot to the touch. (Id.) On July 24 31, 2020, the man had a catastrophic medical emergency and died “despite an emergency 25 surgery.” (Id.) 26 On February 14, 2022, a man died in the Coconino County Jail from an apparent 27 suicide. (Id. ¶ 90.) Officers found the man hanging from a bedsheet in his cell during a 28 routine cell check. (Id.) 1 Defendants argue that none of Plaintiff’s cited cases is similar enough to Benally’s 2 case to put Coconino County on notice of a pattern of unconstitutional conduct that 3 amounted to a custom or practice. (Doc. 74 at 14.) In response, Plaintiff contends that in 4 each of the cited cases, Coconino County Jail staff and medical providers “saw detainees 5 with emergent symptoms deteriorate over the course of several days without intervention,” 6 and “[e]ach case illustrates that a serious medical condition was allowed to worsen, and 7 jail staff made no effort to call emergency services until it was too late.” (Doc. 91 at 14.) 8 The Court concludes that three of Plaintiff’s cited cases are too factually dissimilar 9 to support notice of the existence of a pattern of constitutional violations. Regarding Floyd 10 Jackson, because it is unclear what symptoms Jackson reported on intake and what medical 11 treatment, if any, Jackson received between his intake and his death three days later, while 12 medical staff were examining him. The July 2020 death is not sufficiently similar because 13 it involved an individual who refused to answer medical questions on intake died two days 14 after intake due to a nonspecific “catastrophic medical emergency,” and it is unclear 15 whether he ever reported any symptoms or requested medical care. The last case does not 16 support the existence of a policy because it involved an individual who committed suicide 17 and there are no facts regarding the individual’s medical treatment. 18 Plaintiff has not alleged sufficient similar incidents that would have put Coconino 19 County on notice of a pattern of similar incidents of constitutional violations. “Courts 20 require a plaintiff to plead multiple incidents of alleged violations in order to allow a 21 Monell claim based on policy, practice, or custom to proceed.” Hyer v. City & Cnty. of 22 Honolulu, No. CV 19-00586 HG-RT, 2020 WL 7038953 , at *8 (D. Haw. Nov. 30, 2020) 23 (“Prior to 2009, the Ninth Circuit . . . regularly held that a claim of municipal liability under 24 Section 1983 was sufficient to withstand a motion to dismiss based on nothing more than 25 bare allegations of an unconstitutional policy, practice, or custom. The low pleading 26 threshold was rejected by the United States Supreme Court in [Iqbal]. Since Iqbal, courts 27 in the Ninth Circuit have repeatedly rejected Monell claims based on conclusory allegations 28 that lack factual content from which one could plausibly infer municipal liability.”) 1 (citations omitted). Plaintiff therefore has not alleged facts to support the existence of an 2 improper practice or custom of Coconino County. See Praprotnik, 485 U.S. at 127 ; 3 Trevino, 99 F.3d at 918 . 4 Moreover, even if Plaintiff had alleged the existence of a Coconino County policy, 5 custom, or practice, she fails to allege facts to support that the policy, custom, or practice 6 was the “moving force” behind the violation of Benally’s constitutional rights. See Mabe, [7] 237 F.3d at 1110 . To establish that a policy or custom is the “moving force” behind a 8 constitutional violation, a plaintiff must allege a direct causal link between the policy or 9 custom and the constitutional deprivation. See Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. 10 v. Brown, 520 U.S. 397, 404 (1997). 11 As discussed above, Plaintiff plausibly alleges a Fourteenth Amendment claim 12 against Defendants Fraser and James. However, Plaintiff does not allege any facts to 13 support that Defendants Fraser and James made treatment decisions pursuant to a 14 Coconino County policy, custom, or practice. Plaintiff fails to allege a causal link between 15 a Coconino County policy, custom, or practice and Benally’s death. 16 For the foregoing reasons, Plaintiff fails to state a § 1983 policy, custom, or practice 17 claim against Coconino County. 18 b. Training and Supervision 19 Plaintiff alleges no facts regarding any purported failure by Coconino County to 20 train or supervise its employees with respect to recognizing, treating, or obtaining medical 21 attention for detainees’ serious medical needs. Plaintiff fails to state a Monell claim against 22 Coconino County based on failure to train or supervise. 23 c. Ratification 24 Plaintiff alleges no facts regarding any ratification of any subordinate’s misconduct 25 by any authorized policymaker before the alleged constitutional violation ceased. Plaintiff 26 fails to state a claim against Coconino County based on ratification. 27 For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss 28 Count Two as to Coconino County. 1 IV. State Law Claims 2 Plaintiff concedes she does not intend to pursue state-law claims against the County 3 Defendants and does not oppose dismissal of those claims. (Doc. 91 at 17.) The Court 4 will therefore grant Defendants’ Motion to Dismiss as to Counts Three through Six. 5 V. Defendants Robbins and Williams 6 As noted, Plaintiff filed the original Complaint on March 12, 2024. Plaintiff 7 subsequently sought and was granted two extensions of time to serve the unserved 8 Defendants. (Docs. 38, 42, 56, 57.) After Plaintiff filed her First Amended Complaint, she 9 requested and was granted a third extension of time, until August 27, 2024, to serve the 10 unserved Defendants. (Docs. 66, 67.) Plaintiff failed to serve Defendants Robbins and 11 Williams. The Court will therefore dismiss Defendants Robbins and Williams for failure 12 to serve pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. 13 IT IS ORDERED: 14 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 15 Motion to Dismiss the Complaint for Failure to State a Claim (Doc. 58) and Motion to 16 Dismiss the First Amended Complaint for Failure to State a Claim (Doc. 74). 17 (2) Defendants’ Motion to Dismiss the Complaint (Doc. 58) is denied as moot. 18 (3) Defendants’ Motion to Dismiss the First Amended Complaint (Doc. 74) is 19 granted in part and denied in part. The Motion is denied as to the Fourteenth 20 Amendment medical care claim in Count Two against Defendants Fraser and James. In all 21 other respects, the Motion is granted. 22 (4) Count One of the First Amended Complaint is dismissed without prejudice. 23 (5) Defendants Navajo County, Navajo County Jail District, Coconino County, 24 Coconino County Jail District, Driscoll, Axlund, Clouse, Garcia, Lawver, Cersosimo, 25 Wolfe, O’Brien, and Hirsch are dismissed without prejudice. 26 (6) Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, Defendants 27 Robbins and Williams are dismissed for failure to serve. 28 . . . . 1 (7) All other matters remain with the Magistrate Judge for disposition as appropriate. 3 Dated this 17th day of March, 2025. [4] Michel T. dg ‘b urge Michael T, Liburdi 7 United States District Judge