Flores v. County of Fresno

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 CLARISSA FLORES, No. 1:19-cv-01477-DAD-BAM 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANT CORIZON HEALTH INC.’S MOTION TO 14 COUNTY OF FRESNO, at al., DISMISS 15 Defendants. (Doc. No. 17) — 16 — 17 This matter is before the court on the motion to dismiss filed by defendant Corizon Health 18 Inc. (“Corizon”) on February 4, 2020. (Doc. No. 17.) On February 25, 2020, the court deemed 19 the pending motion suitable for decision on the papers pursuant to Local Rule 230(g). (Doc. No. 20 22.) For the reasons set forth below, the court will grant Corizon’s motion to dismiss. 21 BACKGROUND 22 On June 13, 2019, plaintiff Clarissa Flores filed her original complaint in this civil rights 23 action in the Fresno County Superior Court naming the following defendants: County of Fresno; 24 Sheriff Margaret Mims, in her individual and official capacities; Corizon Health, Inc.; Obadina, 25 M.D.; Newell, M.D.; Laura, R.N.; DOES 1–20 (unknown Fresno county law enforcement 26 officers); and DOES 21–100 (unknown licensed physicians employed by Corizon). (Doc. No. 127 1.) On October 17, 2019, defendants County of Fresno, Sheriff Mims, and Corizon filed a joint 28 notice of removal, removing this action to this federal court. (Doc. No. 1.) On January 16, 2020, 1 plaintiff filed a first amended complaint (“FAC”), in which she named as defendants the County 2 of Fresno, Sheriff Mims, Corizon, and DOES 1–100. (Doc. No. 14 (“FAC”).)1 3 In her FAC, plaintiff asserts four causes of action: (1) a 42 U.S.C. § 1983 claim against 4 defendants Sheriff Mims, Corizon, DOES 1–20, and DOES 21–100 for deliberate indifference to 5 her serious medical needs in violation of the Eighth Amendment of the U.S. Constitution; (2) a 6 claim under California Civil Code § 52.1, the California Bane Act, against all defendants; (3) a 7 California state law negligence claim against all defendants; and (4) a claim under California 8 Government Code § 845.6 against defendants County of Fresno, Mims, and DOES 1–20. (FAC 9 at 9–12.) Plaintiff alleges that DOES 21-100 are “employees and/or agents of defendant Corizon, 10 working as medical directors or medical providers of defendant County of Fresno’s jails, 11 responsible for overseeing and providing medical care to prisoners . . ..” (Id. at ¶ 8.) Plaintiff 12 also alleges that Corizon “provided medical and nursing care to prisoners and detainees in Fresno 13 County jails,” and Corizon and DOES 21–100 “are responsible for making and enforcing policies, 14 procedures, and training related to the medical care of prisoners and detainees . . ..” (Id. at ¶ 7.) 15 Plaintiff alleges as follows in the FAC. Due to the untimely, grossly negligent, and 16 improper medical care that plaintiff received during her incarceration in connection with a parole 17 violation at the Fresno County Jail from April through June 2018, plaintiff suffered loss of 18 eyesight and went “permanently and almost totally blind.” (Id. at ¶¶ 14–16.) Plaintiff started 19 complaining to jail officials of suffering from nausea, vomiting, and headaches on April 29 and 20 April 30, 2018, and was misdiagnosed as having the flu. (Id. at ¶ 17.) Plaintiff returned to the 21 ///// 22 ///// — 23 — 1 On October 31, 2019, Corizon filed a motion for judgment on the pleadings. (Doc. No. 6.) On 24 December 17, 2019, the court denied Corizon’s motion as prematurely filed because three of the named defendants (Obadina, M.D.; Newell, M.D.; and Laura, R.N.) had not been served with the — 25 — complaint, and thus the pleadings were not closed as required by Federal Rule of Civil Procedure 12(c). (Doc. No. 11.) In granting plaintiff’s request for leave to file an amended complaint, the — 26 — court provided plaintiff additional time to serve all defendants or request dismissal of any 27 defendants that were not served. (Id.) Plaintiff did not file with the court a request to dismiss any defendants. However, because plaintiff’s FAC no longer names Obadina, M.D.; Newell, M.D.; 28 and Laura, R.N. as defendants, the court will dismiss them from this action. 1 jail medical clinic on May 3, May 6, and May 8, 2018,2 complaining of headaches, dizziness, pain 2 in her head, neck, and back, difficulty walking, and occasional vomiting. (Id. at ¶¶ 18–20.) On 3 May 11, 2018, plaintiff returned to the clinic, complaining of pain and headaches and stating that 4 she could not walk without assistance. (Id. at ¶ 21.) Plaintiff was scheduled to see Dr. Olga 5 Bergovsky, a physician employed by Corizon, on May 12, 2018, and “[d]espite [plaintiff’s] 6 history of complaints and her presentation on that date that she had upper body weakness for over 7 the last week, that she was unable to get herself out of bed, bilateral pupil dilation, and severe 8 headaches, she was treated as a malingerer involved in drug seeking behavior.” (Id.) From that 9 point forward, according to plaintiff, her medical complaints were summarily dismissed and went 10 untreated on repeated visits. (Id. at ¶ 22.) “On her May 14, 2018 visit, she could not even walk,” 11 and on the following day, she could not walk without assistance. (Id. at ¶¶ 23, 24.) “On May 16, 12 2018, she reported that she was too weak even to come to sick call at the clinic,” and in the 13 following days, she continued to complain of severe headaches, impaired mobility, generalized 14 weakness, and upper back and neck pain. (Id. at ¶¶ 25–27.) 15 On May 23, 2018, plaintiff started complaining that she “was losing her ability to see” and 16 “that she thought she may have had a stroke.” (Id. at ¶ 28.) “According to the notes from her 17 examination, she had positive signs of cerebellar involvement, her PERRLA was sluggish, finger 18 to nose slow and difficult, and she reported total inability to see out of her right eye with limited 19 vision in her left eye. Plaintiff was dizzy and unable to walk.” (Id.) The next day, plaintiff stated 20 she was unable to walk, but her “concerns were discounted and it was noted that she was, by 21 report, able to walk earlier.” (Id. at ¶ 29.) On May 27, 2018, plaintiff’s complaints were listed as 22 “methamphetamine withdrawal complaints” although she “had been incarcerated continuously for 23 over a month and []methamphetamine withdrawal acute phase is 24 hours and total withdrawal 24 lasts less than a week.” (Id. at ¶ 30.) Plaintiff’s health worsened, “yet she received no care other 25 than Tylenol and antacids.” (Id.) “On June 4, 2018, plaintiff told medical staff that for the past 26 couple of weeks she had lost her vision,” and she “received no meaningful medical care.” (Id. at — 27 — 2 The court assumes that the dates alleged in ¶¶ 18 and 19 of the FAC—May 3, 2019 and May 6, 28 2019—are a typographical error and that plaintiff intended to allege those dates in 2018. 1 ¶ 31.) On June 13, 2018, plaintiff was taken to Community Regional Medical Center, and their 2 records state: “Today, the jail docs took patient to her first MD appointment during all this time 3 and she saw Dr. Salahuddin here at clinic who saw severe optic nerve swelling.” (Id. at ¶ 32.) 4 It is asserted in the FAC that “the lack of timely and proper medical care and attention 5 over time, resulted in plaintiff being rendered permanently and almost totally blind.” (Id. at ¶ 14.) 6 In particular, plaintiff alleges that the medical care she received at the jail “was woefully 7 negligent and lead [sic] to plaintiff suffering severe injury, including but not limited to 8 blindness.” (Id. at ¶ 35.) According to plaintiff, Corizon and DOES 21–100 “failed to follow 9 appropriate protocols for assessing, monitoring, and necessary medical treatment of plaintiff and 10 for insuring appropriate follow-up care for plaintiff,” and that their acts and omissions “were at 11 all material times pursuant to the actual customs, policies, practices, and procedures of the County 12 of Fresno and/or Corizon “ (Id. at ¶¶ 8, 10.) 13 In response to plaintiff’s FAC, Corizon filed the pending motion to dismiss on February 4, 14 2020, arguing that plaintiff has failed to state a claim against Corizon. (Doc. No. 17.) Plaintiff 15 filed an opposition to the pending motion on February 18, 2020 (Doc. No. 20), and on February 16 21, 2020, Corizon filed its reply thereto (Doc. No. 21). 17 LEGAL STANDARD 18 The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) 19 is to test the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 20 2001). A dismissal may be warranted where there is “the lack of a cognizable legal theory or the 21 absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 22 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff must allege “enough facts to state a claim to 23 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A 24 claim is plausible on its face “when the plaintiff pleads factual content that allows the court to 25 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 26 Iqbal, 556 U.S. 662, 678 (2009). 27 In determining whether a complaint states a claim on which relief may be granted, the 28 court accepts as true the allegations in the complaint and construes the allegations in the light 1 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 2 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth 3 of legal conclusions cast in the form of factual allegations. U.S. ex rel. Chunie v. Ringrose, 788 4 F.2d 638 , 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, 5 “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, — 6 — 556 U.S. at 678 . A pleading is insufficient if it offers mere “labels and conclusions” or “a 7 formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 ; see also 8 Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, supported by 9 mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to assume that the 10 plaintiff “can prove facts which it has not alleged or that the defendants have violated the . . . laws 11 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 12 Council of Carpenters, 459 U.S. 519, 526 (1983). 13 ANALYSIS 14 Corizon moves to dismiss all of plaintiff’s claims against it, arguing that: (1) plaintiff has 15 failed to sufficiently allege facts to maintain her § 1983 deliberate indifference claim against 16 Corizon under a Monell theory of liability; (2) plaintiff has failed to state a cognizable Bane Act 17 claim because she does not sufficiently allege that “threat, intimidation, or coercion” interfered 18 with her exercise of her rights or that Corizon intended to violate her rights; and (3) plaintiff’s 19 vague and conclusory allegations of Corizon’s negligence are insufficient to state a cognizable 20 negligence claim. (Doc. Nos. 17 at 5, 10; 21 at 2–7.) The court will address the arguments 21 advanced by defendant Corizon and plaintiff as to each of plaintiff’s claims in turn below. 22 A. Section 1983 Claim for Deliberate Indifference to Serious Medical Needs 23 To succeed on a § 1983 claim, a plaintiff must allege and ultimately show that: (1) the 24 conduct complained of was committed by a person acting under color of state law; and (2) the 25 conduct deprived the plaintiff of a federal constitutional or statutory right. Patel v. Kent Sch. 26 Dist., 648 F.3d 965 , 971–72 (9th Cir. 2011) (citing Tatum v. City & County of San Francisco, 441 27 F.3d 1090 , 1094 (9th Cir. 2006)). Here, plaintiff alleges that Corizon acted under color of state 28 law to deprive plaintiff of her Eighth Amendment right to be free of cruel and unusual 1 punishment, in violation of 42 U.S.C. § 1983.3 (FAC at ¶ 42.) 2 To state an Eighth Amendment claim based on alleged inadequate medical treatment in 3 prison, an inmate must allege facts showing “deliberate indifference to serious medical needs.” 4 Estelle v. Gamble, 429 U.S. 97, 104 (1976). “In the Ninth Circuit, the test for deliberate 5 indifference consists of two parts.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “First, 6 the plaintiff must show a ‘serious medical need’ by demonstrating that ‘failure to treat a 7 prisoner’s condition could result in further significant injury or the unnecessary and wanton 8 infliction of pain.’” Id. (citation omitted). “Second, the plaintiff must show the defendant’s 9 response to the need was deliberately indifferent.” Id. This second prong “may appear when 10 prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown 11 by the way in which prison physicians provide medical care.” Hutchinson v. United States, 838 12 F.2d 390, 394 (9th Cir. 1988). However, “[m]ere negligence in diagnosing or treating a medical 13 condition, without more, does not violate a prisoner’s Eighth Amendment rights.” Id. 14 Plaintiff asserts a § 1983 claim for deliberate indifference to her serious medical needs 15 against Corizon based on her allegations that Corizon acted “with deliberate indifference to [her] 16 complaints of headaches, confusion, and increasing vision problems” and “failed to attend to her 17 obvious medical needs despite a substantial risk that her condition could deteriorate to the point 18 of plaintiff becoming blind and, indeed she became blind because of the deliberate indifference to 19 her serious medical needs.” (FAC at ¶ 41.) Plaintiff contends that Corizon’s conduct resulted in 20 a direct violation of her Eighth Amendment right to be free from cruel and unusual punishment 21 3 Plaintiff also mentions the Fourteenth Amendment in her allegations, but she alleges that she was incarcerated in the county jail for a parole violation. As such, the Eighth Amendment — 22 — provides the proper standard for assessing her claim, not the Fourteenth Amendment. See Castro 23 v. County of Los Angeles, 833 F.3d 1060 , 1067–68 (9th Cir. 2016) (en banc) (“Inmates who sue prison officials for injuries suffered while in custody may do so under the Eighth Amendment’s 24 Cruel and Unusual Punishment Clause or, if not yet convicted, under the Fourteenth Amendment’s Due Process Clause.”); see also Flores v. Mesenbourg, No. 95-17241, 1997 WL 25 303277, at *1 (9th Cir. June 2, 1997) (holding that a convicted prisoner who was incarcerated for a parole violation “must rely on the Eighth Amendment to support his claim” because “[h]is — 26 — original conviction is the authority under which he was confined after his parole violation”); 27 Jensen v. County of Los Angeles, No. 16-cv-01590-CJC-RAO, 2017 WL 10574058 , at *7 (C.D. Cal. Jan. 6, 2017) (“Claims by those who have been incarcerated for parole violations arise under 28 the Eighth Amendment.”) 1 and is thus actionable under § 1983. (Id. at ¶ 42.) However, plaintiff does not allege on what 2 basis Corizon—an entity defendant—can be held liable under § 1983. Nevertheless, the court 3 notes that because Corizon contracted with the County of Fresno to provide medical care in the 4 county jail, Corizon may be held liable under a Monell theory.4 Indeed, Corizon’s arguments in 5 support of its motion to dismiss focus on plaintiff’s failure to sufficiently allege Monell liability. 6 (Doc. No. 17 at 3, 5–9.) Accordingly, the court will evaluate whether plaintiff has sufficiently 7 alleged facts in support of entity liability under Monell with respect to her § 1983 claim against 8 Corizon. 9 It is well-established that an entity “cannot be held liable solely because it employs a 10 tortfeasor—or, in other words, [an entity] cannot be held liable under § 1983 on a respondeat 11 superior theory.” Monell, 436 U.S. at 691. To establish entity liability under Monell, a plaintiff 12 must ultimately prove: “(1) that the plaintiff possessed a constitutional right of which she was 13 deprived; (2) that the [entity] had a policy; (3) that this policy amounts to deliberate indifference 14 to the plaintiff’s constitutional right; and, (4) that the policy is the moving force behind the 15 constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) 16 (citation omitted). A plaintiff can show the existence of an entity’s policy in one of three ways. 17 See Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014). First, an entity may be 18 held liable when it acts “pursuant to an expressly adopted policy.” Id. (citing Monell, 436 U.S. at 19 694). Second, an entity may be held liable for a “longstanding practice or custom.” Id. Such — 20 — 4 See Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658 (1978). The Ninth Circuit has held 21 that Monell applies to claims against private entities under § 1983. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (holding that there is “no basis in the reasoning underlying — 22 — Monell to distinguish between municipalities and private entities acting under color of state law”); 23 see also Estate of Jessie P. Contreras v. County of Glenn, No. 2:09-cv-2468, 2010 WL 4983419 , at *4 (E.D. Cal. Dec. 2, 2010) (a private entity “that contracts with the government to provide 24 medical and mental health care may be considered a state actor whose conduct constitutes state action under Section 1983”) (citing Jensen v. Lane County, 222 F.3d 570 , 574–75 (9th Cir. — 25 — 2000)). Indeed, in other lawsuits asserting § 1983 claims against Corizon, courts have found that Corizon can be held liable under Monell. See Starr v. Alameda Cty. Jail, No. 5:12-cv-04400, — 26 — 2016 WL 6161519 , at *2 (N.D. Cal. Oct. 24, 2016) (“the holdings of Monell and its progeny 27 apply to Corizon”); Johnson v. Corizon Health, Inc., No. 6:13-cv-1855, 2015 WL 1549257 , at *10 (D. Or. Apr. 6, 2015) (“An entity such as Lane County or Corizon cannot be held liable under 28 a theory of respondeat superior . . . [but] Corizon can be liable under [Monell].”). 1 circumstances may arise when, for instance, the entity “fail[s] to implement procedural 2 safeguards to prevent constitutional violations” or when it fails to adequately train its employees. 3 Tsao, 698 F.3d at 1143 (citing Oviatt v. Pearce, 954 F.2d 1470 , 1477 (9th Cir. 1992)). Third, an 4 entity may be held liable when “an official with final policy-making authority ratified a 5 subordinate’s unconstitutional decision or action and the basis for it.” Gillette v. Delmore, 979 6 F.2d 1342 , 1346–47 (9th Cir. 1992). 7 To state a Monell claim against Corizon, plaintiff “must demonstrate that an ‘official 8 policy, custom, or pattern’ on the part of [Corizon] was ‘the actionable cause of the claimed 9 injury.’” Tsao, 698 F.3d at 1143 (9th Cir. 2012) (quoting Harper v. City of Los Angeles, 533 F.3d 10 1010, 1022 (9th Cir. 2008)); see also Larry v. Corizon Health, No. 17-cv-00156-SVW-PJW, — 11 — 2018 WL 6136790 , at *3 (C.D. Cal. Feb. 2, 2018), report and recommendation adopted, 2018 12 WL 6137168 (C.D. Cal. Mar. 6, 2018) (dismissing a § 1983 claim against Corizon where the 13 plaintiff failed to set forth “the policies, practices, customs, or patterns [that] were the moving 14 force behind the alleged deprivations”); Ellis v. Corizon Inc., 787 F. App’x 453 , 453–454 (9th 15 Cir. 2019) (finding that the district court “properly granted summary judgment on Ellis’s 16 deliberate indifference claim against defendant Corizon Inc. because Ellis failed to establish a 17 genuine dispute of material fact as to whether any policy or custom of Corizon Inc. caused him to 18 suffer a constitutional injury”)5. 19 As the district court in McFarland v. City of Clovis, 163 F. Supp. 3d 798, 802 (E.D. Cal. 20 2016) explained: 21 Allegations of Monell liability will be sufficient for purposes of Rule 12(b)(6) where they: (1) identify the challenged 22 policy/custom; (2) explain how the policy/custom is deficient; (3) explain how the policy/custom caused the plaintiff harm; and (4) 23 reflect how the policy/custom amounted to deliberate indifference, i.e. show how the deficiency involved was obvious and the 24 constitutional injury was likely to occur. 25 Here, Corizon contends that although plaintiff has “vaguely alluded to Monell theories” in 26 her FAC, her allegations fail to identify “the ‘specific content’ or ‘specific nature’ of whatever — 27 — 5 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36-3(b). 1 ostensibly deficient policy or practice she is claiming” and how any such unspecified policy 2 reflects indifference by Corizon or caused any underlying rights violation. (Doc. No. 17 at 5–7) 3 (citing McFarland, 163 F. Supp. 3d at 802 ). 4 In her opposition to Corizon’s motion to dismiss, plaintiff flatly states her “contention that 5 the complaint as currently pled provides sufficient notice of her claims to survive a motion to 6 dismiss.” (Doc. No. 20 at 3.) Plaintiff points to her factual allegations regarding her complaints 7 and symptoms made in May 2018, and she contends that those allegations are sufficient to show 8 Corizon acted with deliberate indifference to her serious medical condition. (Id. at 2) (citing FAC 9 at ¶¶ 21–31). However, plaintiff does not address any of Corizon’s arguments regarding her 10 purported failure to allege Monell liability. 11 The court agrees that plaintiff has not sufficiently alleged facts addressing the requisite 12 elements for entity liability under Monell because she has not alleged the existence of a policy, 13 practice, or custom on the part of Corizon. While plaintiff’s allegations provide some specificity 14 regarding the dates of her visits to the jail medical clinic and the symptoms she complained of on 15 those days, none of those allegations describe what she was told by clinic staff during those visits 16 or what actions were—or were not—taken by clinic staff on those visits. Thus, plaintiff has not 17 even alleged what conduct Corizon employees actually engaged in during her visits to the jail 18 medical clinic, let alone that such conduct was engaged in pursuant to a Corizon policy or was 19 undertaken so consistently and frequently such that it could be deemed Corizon’s custom. See 20 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (“Liability for improper custom may not be 21 predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient 22 duration, frequency and consistency that the conduct has become a traditional method of carrying 23 out policy.”). 24 Moreover, plaintiff alleges that Corizon “failed to follow appropriate protocols for 25 assessing, monitoring, and necessary medical treatment of plaintiff and for insuring [sic] 26 appropriate follow-up care for plaintiff” (FAC at ¶ 8), but plaintiff does not allege with any 27 specificity what protocol Corizon allegedly failed to follow. Similarly, plaintiff alleges in 28 conclusory fashion that Corizon failed “to reasonably train their medical staff in the proper and 1 reasonable assessment and care of inmates” and “to implement and enforce generally accepted, 2 lawful policies and procedures at the jail,” and that these failures “reflect Corizon’s policies 3 implicitly ratifying and/or authorizing the deliberate indifference to serious medical needs by its 4 medical healthcare staff . . ..” (FAC at ¶ 36.) But, plaintiff has not set forth any factual 5 allegations regarding conduct by individual Corizon employees6 and there can therefore be no 6 inferences drawn that Corizon ratified or authorized any such unspecified conduct by unspecified 7 employees. 8 Accordingly, the court concludes that plaintiff has failed to allege the existence of a policy 9 or custom by Corizon, and thus her allegations are insufficient to show Monell liability with 10 respect to her § 1983 claim against Corizon. See Deloney v. County of Fresno, No. 1:17-cv11 01336-LJO-EPG, 2018 WL 3388921 , at *8 (E.D. Cal. July 11, 2018) (finding plaintiff’s 12 “generalized and conclusory allegations do not provide sufficient factual content to plausibly 13 infer that a Corizon policy or custom existed or that it was the ‘moving force behind the 14 constitutional violation,’ as required to state a Monell claim against an entity such as Corizon”); 15 Klahn v. Alameda Cty. Sheriff’s Dep’t, No. 16-cv-00833-JCS, 2017 WL 565050 , at *17 (N.D. 16 Cal. Feb. 13, 2017) (dismissing a deliberate indifference claim under Monell where the plaintiff 17 did “not identify expressly any Alameda County policy or custom related to medical care, and his 18 ‘failure to train’ allegations constitute the kind of improper conclusory statements and legal 19 conclusions that are insufficient to state a plausible claim”) (citing Iqbal, 556 U.S. at 678 ). 20 Therefore, the court will dismiss plaintiff’s § 1983 claim against Corizon. 21 ///// 22 ///// — 23 — 24 6 Plaintiff does not identify—through description or by name—any Corizon employee other than Dr. Olga Bergovsky, who has never been named as a defendant in this action. Indeed, the only — 25 — allegation regarding Dr. Bergovsky is that “[p]laintiff was scheduled to see a physician employed by Corizon, Dr. Olga Bergovsky, on May 12, 2018.” (FAC at ¶ 21.) Plaintiff does not allege that — 26 — she was actually seen by Dr. Bergovsky on May 12, 2018, or any other date for that matter. 27 Plaintiff also does not allege that she had any interaction with Dr. Bergovsky. Moreover, plaintiff does not allege any conduct by Dr. Bergovsky at all, let alone conduct that both purportedly 28 violated plaintiff’s rights and was ratified by Corizon. 1 B. Bane Act Claim 2 Defendant Corizon next moves to dismiss plaintiff’s claim brought under California’s 3 Bane Act, arguing that plaintiff has failed to allege an underlying violation of her Eighth 4 Amendment right as described above, and that plaintiff has not alleged any cognizable “threat, 5 intimidation, or coercion” as required by California Civil Code § 52.1. (Doc. No. 17 at 9–10.) 6 Corizon also argues that plaintiff has failed to allege Corizon had a “specific intent” to violate 7 plaintiff’s rights. (Id. at 10.) 8 The California Bane Act protects against interference “by threat, intimidation, or 9 coercion” or an attempt to do the same “with the exercise or enjoyment by any individual or 10 individuals of rights secured by the Constitution or laws of the United States, or of the rights 11 secured by the Constitution or laws of this state.” Cal. Civ. Code § 52.1 (a). The Bane Act “does 12 not extend to all ordinary tort actions because its provisions are limited to threats, intimidation, or 13 coercion that interferes with a constitutional or statutory right.” Venegas v. County of Los 14 Angeles, 32 Cal. 4th 820, 843 (2004). Thus, where the interference with a constitutional right is 15 the result of a defendant’s mere negligence, as opposed to “deliberate or spiteful” conduct, a 16 plaintiff cannot claim violation of § 52.1. Shoyoye v. County of Los Angeles, 203 Cal. App. 4th 17 947 , 957–59 (2012). 18 “[T]he relevant distinction for purposes of the Bane Act is between intentional and 19 unintentional conduct.” Dillman v. Tuolumne County, 1:13-cv-00404-LJO-SKO, 2013 WL 20 1907379, at *20 (E.D. Cal. May 7, 2013); see also Morse v. County of Merced, No. 1:16-cv21 00142-DAD-SKO, 2016 WL 4000406 , at *1–2 (E.D. Cal. July 25, 2016). A cognizable Bane Act 22 claim requires alleged conduct that is “more egregious” than “mere negligence.” Shoyoye, 203 23 Cal. App. 4th at 958. As this court has noted, district courts in California have yet to reach a 24 consensus as to whether a plaintiff bringing a Bane Act claim for deliberate indifference to 25 serious medical needs must plead threats and coercion independent of the constitutional violation 26 itself. See Atayde v. Napa State Hosp., No. 1:16-cv-00398-DAD-SAB, 2016 WL 4943959 , at *7– 27 8 (E.D. Cal. Sept. 16, 2016) (comparing M.H. v. County of Alameda, 90 F. Supp. 3d 889 , 898–99 28 (N.D. Cal. 2013) with Moreno v. L.A. Cty. Sheriff’s Dep’t, No. 2:13-cv-07570-CAS-MANx, 2015 1 WL 4652637 , at *18 (C.D. Cal. Aug. 3, 2015)). The undersigned has, however, concluded that 2 threats, coercion and intimidation are inherent in deliberate indifference claims, which “extend[] . 3 . . ‘far beyond [an] ordinary tort claim[].” Atayde, 2016 WL 4943959 , at *8 (quoting Venegas, 32 4 Cal. 4th at 843). The court premised this conclusion on the fact that “[m]ere ‘indifference,’ 5 ‘negligence,’ or ‘medical malpractice’ will not support” a claim for deliberate indifference. 6 Lemire v. Cal. Dep’t of Corr. and Rehab., 726 F.3d 1062, 1082 (9th Cir. 2013). Rather, a 7 plaintiff must allege and show “a purposeful act or failure to respond to a prisoner’s pain or 8 possible medical need . . ..” Jett, 439 F.3d at 1096 . Accordingly, plaintiffs bringing Bane Act 9 claims for deliberate indifference to serious medical needs must only allege that the defendant 10 “knowingly deprived [them] of a constitutional right or protection through acts that are inherently 11 coercive and threatening.” Atayde, 2016 WL 4943959 , at *8, n.1; see, e.g., M. H. v. County of 12 Orange, No. 19-cv-00549-JVS-ADSx, 2019 WL 4282907 , at *7 (C.D. Cal. May 31, 2019) 13 (“Intentional conduct that amounts to a threat, intimidation, or coercion, for example, may include 14 deliberate indifference to a prisoner’s serious medical needs by ‘acts that are inherently coercive 15 and threatening’ such as ‘failing to provide treatment plans.’”) (quoting Lapachet v. Cal. Forensic 16 Med. Grp., Inc., 313 F. Supp. 3d 1183, 1195 (E.D. Cal. 2018)). 17 Here, plaintiff contends that she has adequately pled her Bane Act claim against Corizon 18 because she alleges that “she was treated as a malingerer involved in drug seeking behavior” and 19 that “[s]he was discounted and ignored.” (Doc. No. 20 at 3) (citing FAC at ¶¶ 21, 31). The court 20 disagrees and finds that plaintiff has not sufficiently alleged any intentional conduct or acts that 21 are inherently coercive and threatening on the part of Corizon as required to state a cognizable 22 Bane Act claim. Although plaintiff alleges that “the actions of each Defendant were [sic] 23 intentional, wanton, and/or willful, conscience-shocking, reckless, malicious, deliberately 24 indifferent to Plaintiff’s rights, done with actual malice, grossly negligent, negligent, and 25 objectively unreasonable” (FAC at ¶ 37), plaintiff does not allege any facts to support that 26 conclusory laundry list of mental states. 27 Moreover, as explained above, plaintiff has failed to state a cognizable § 1983 claim 28 against Corizon and thus has failed to allege that Corizon has violated her constitutional rights, 1 which is a required element for a Bane Act claim. See Scalia v. County of Kern, 308 F. Supp. 3d 2 1064, 1084 (E.D. Cal. 2018) (“A plaintiff bringing a claim pursuant to the Bane Act ‘must show 3 (1) intentional interference or attempted interference with a state or federal constitutional or legal 4 right, and (2) the interference or attempted interference was by threats, intimidation or 5 coercion.’”) (quoting Allen v. City of Sacramento, 234 Cal. App. 4th 41, 67 (2015), as modified 6 on denial of reh’g (Mar. 6, 2015)); see also Jones v. Kmart Corp., 17 Cal. 4th 329, 338 (1998) 7 (interpreting the Bane Act’s use of “interferes” to mean “violates”); Brown v. County of 8 Mariposa, No. 1:18-cv-01541-LJO-SAB, 2019 WL 1993990 , at *12 (E.D. Cal. May 6, 2019) 9 (denying motion to dismiss Bane Act claim against certain defendants for whom the plaintiff had 10 adequately stated a deliberate indifference claim, but dismissing Bane Act claim against other 11 defendants for whom plaintiff’s allegations were deemed insufficient). 12 Accordingly, the court will dismiss plaintiff’s Bane Act claim against Corizon due to 13 plaintiff’s failure to state a cognizable claim. 14 C. Negligence Claim 15 In California, the elements of a cause of action for negligence are: (1) a legal duty to use 16 reasonable care; (2) breach of that duty; and (3) proximate cause between the breach and (4) the 17 plaintiff’s injury. Mendoza v. City of Los Angeles, 66 Cal. App. 4th 1333, 1339 (1998) (citation 18 omitted). 19 Corizon moves to dismiss the FAC’s negligence claim against it, arguing that plaintiff has 20 failed to allege facts that satisfy the requisite elements of a negligence claim. (Doc. No. 17 at 10– 21 11.) In her opposition to Corizon’s motion, plaintiff counters that “extraordinary specificity” 22 need not be alleged for “simple medical negligence” and that her “allegations make clear the 23 conduct Plaintiff complains of against Corizon.” (Doc. No. 20 at 4.) In its reply, Corizon 24 contends that to the contrary, plaintiff has not made clear what conduct on the part of Corizon she 25 has complained about in her FAC. (Doc. No. 21 at 6.) Corizon asserts that plaintiff “actually 26 mentions essentially no conduct, other than via vague and conclusory allegations of unspecified 27 care that, in some unspecified way, was not “meaningful” or “proper.” (Id.) Corizon emphasizes 28 that plaintiff has had her jail medical records for nearly a year and yet, she has failed to allege any 1 facts regarding: “(1) which of the dozens of care provider[s] supposedly acted negligently, (2) 2 when during Plaintiff’s pertinent months of incarceration they supposedly did so, (3) what 3 condition(s) they supposedly treated negligently, (4) what sort of care provider(s) they were, (5) 4 what care they did provide,” and (6) “what facts supposedly indicate that any aspect of their care 5 was inadequate.” (Id.; Doc No. 17 at 10–11.) Corizon argues that as a result of plaintiff’s 6 insufficient factual allegations, it cannot effectively defend itself because plaintiff “conceals the 7 identity of the allegedly negligent care provider(s), conceals what they supposedly did wrong, and 8 conceals when they supposedly acted negligently.” (Doc. No. 21 at 7.) 9 The court agrees that plaintiff has not alleged facts sufficient to state a negligence claim 10 against Corizon. The court is unable to discern from the FAC what actions Corizon allegedly 11 took or failed to take that constituted a breach of any duty owed to plaintiff. In addition, as noted 12 above, plaintiff’s allegations provide some specificity regarding the dates of her visits to the clinic 13 and the symptoms she complained of on those days, but none of those allegations describe what 14 she was told by clinic staff during those visits or what actions were—or were not—taken by clinic 15 staff on those visits. Thus, plaintiff has not alleged what conduct Corizon employees actually 16 engaged in, how that conduct constitutes a breach of their duty to use reasonable care, and how 17 that conduct caused her injury. Moreover, plaintiff’s allegations of a lack of “proper medical 18 care,” and that she received “grossly negligent care,” “substandard, negligent medical care and 19 deficient attention,” (FAC at ¶¶ 14, 15, 29, 31), are conclusory and lack sufficient factual support. 20 This is because plaintiff has provided few facts regarding the care she received. Plaintiff alleges 21 that in late April 2018 she was “misdiagnosed as having the flu,” but she does not allege who 22 gave her that diagnosis or what the proper diagnosis should have been. (See FAC at ¶ 17.) 23 Plaintiff also alleges that in late May 2018, her complaints “were listed as methamphetamine 24 withdrawal complaints” and she received “no care other than Tylenol and antacids,” but does not 25 allege that she was not experiencing such withdrawals at that time or how providing her with 26 Tylenol and antacids constituted a breach of a duty to use reasonable care. Thus, plaintiff’s 27 conclusory allegations are insufficient to state a claim for negligence against Corizon. See 28 Howard v. County of Tulare, No. 1:16-cv-00076-SAB, 2016 WL 1756877 , at *9 (E.D. Cal. May 1 3, 2016) (dismissing plaintiff’s negligence claim against Corizon because plaintiff failed “to 2 adequately allege facts which demonstrate how Corizon or Tulare County breached a duty to 3 Plaintiff”). 4 Accordingly, the court will dismiss plaintiff’s negligence claim against Corizon due to 5 plaintiff’s failure to state a claim. 6 D. Leave to Amend 7 Federal Rule of Civil Procedure 15 instructs courts to “freely give leave when justice so 8 requires” and that rule is “to be applied with extreme liberality.” Eminence Capital, LLC v. 9 Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). Nevertheless, leave to amend need not be 10 granted where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) 11 produces an undue delay in litigation; or (4) is futile. See Amerisource Bergen Corp. v. Dialysist 12 W., Inc., 465 F.3d 946, 951 (9th Cir. 2006). 13 Corizon contends that plaintiff’s claims against it should be dismissed without leave to 14 amend because the court already gave plaintiff an opportunity to amend her complaint and further 15 amendment would be futile. (Doc. No. 21 at 8.) Specifically, Corizon contends that in its motion 16 for judgment on the pleadings, Corizon detailed the deficiencies in plaintiff’ original complaint 17 and “clearly outlined black letter law showing what allegations would be necessary,” and yet 18 plaintiff’s FAC still fails to state a cognizable claim against Corizon. (Id.) This, according to 19 defendant Corizon, despite the fact that plaintiff “obtained her medical records many months 20 before filing [her FAC],” and it was on that basis that plaintiff had requested—and the court 21 granted—leave to amend her original complaint to allege additional facts in more detail. (Id.) 22 Thus, Corizon argues, if plaintiff could cure the deficiencies that Corizon has identified twice 23 now, she would have already done so. (Id.) At a minimum, Corizon argues, plaintiff would have 24 proffered additional allegations that she would include in any second amended complaint, but she 25 has not done so here. (Id.) 26 Plaintiff asserts that further leave to amend must be granted because the court has not 27 previously weighed in on the purported deficiencies identified by Corizon given that the court did 28 not rule on the merits of Corizon’s motion for judgment on the pleadings. (Doc. No. 20.) 1 While finding this to be a somewhat close call, particularly in light of plaintiff’s 2 barebones, three-page opposition to the pending motion to dismiss, the court is not persuaded that 3 granting further leave to amend would be futile. As discussed above, the undersigned has 4 concluded that the FAC is deficient due to the insufficiency of the factual allegations. However, 5 while the court expresses no opinion on the matter, it is at least conceivable that plaintiff’s claims 6 against Corizon could survive a motion to dismiss if pled sufficiently. Accordingly, the court will 7 grant plaintiff a final opportunity to amend her complaint. 8 CONCLUSION 9 For all of the reasons set forth above: 10 1. Defendant Corizon’s motion to dismiss (Doc. No. 17) is granted; 11 2. Plaintiff’s § 1983 claim for deliberate indifference to her serious medical needs, 12 Bane Act claim, and negligence claim against Corizon are dismissed with leave to 13 amend; 14 3. Any second amended complaint that plaintiff may elect to file in this action shall 15 be filed within thirty (30) days after the issuance of this order; 16 4. Defendants Obadina, M.D.; Newell, M.D.; and Laura, R.N., are dismissed from 17 this action, and the Clerk of the Court is directed to update the docket to reflect 18 their termination from this action as named defendants; and 19 ///// 20 ///// 21 ///// 22 ///// 23 ///// 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// wOAOe 4 EONAR RAINE RMU Oo POO FP Oye ti VE 1 5. Defendant Corizon’s second motion to dismiss (Doc. No. 26) is denied, without 2 prejudice to refiling, as having been rendered moot by this order granting 3 Corizon’s first motion to dismiss (Doc. No. 17) and dismissing plaintiffs claims 4 against Corizon.’ 5 | IT IS SO ORDERED. a " 6 Li. wh F Dated: _ July 28, 2020 Aa Oe 7 UNITED STATES DISTRICT JUDGE — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — 26 ’ The court notes that although Corizon styled its motion as a second motion to dismiss, the motion is based upon plaintiffs alleged failure to respond to discovery requests and thus 27 || constitutes a discovery motion. (See generally Doc. No. 26.) As such, any refiling of Corizon’s discovery motion should be noticed for hearing before the assigned magistrate judge in this 28 | action, pursuant to Local Rule 302(c)(1). — 17 —