Avalos v. Cedana

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 VANESSA AVALOS, Individually and as No. 2:22-cv-00861-TLN-KJN Successor in Interest TO THE ESTATE 12 OF ERNESTO ISAIAH AVALOS, DECEASED, 13 ORDER Plaintiff, [14] v. [15] COUNTY OF SAN JOAQUIN, et al., [16] Defendants. [17] 18 This matter is before the Court on Defendants County of San Joaquin (the “County”); 19 Patrick Withrow (“Withrow”); Mary Cedana, R.N. (“Cedana”); Sarai Hardwick, L.V.N. 20 (“Hardwick”); Mandeep Kaur, R.N. (“Kaur”); Robyn Mendoza (“Mendoza”); Andrea Lopez 21 (“Lopez”); and Sgt. Izaguirre’s (“Izaguirre”) (collectively, “Defendants”) Motion to Dismiss.1 22 (ECF No. 9.) Plaintiff Vanessa Avalos (“Plaintiff”) filed an opposition. (ECF No. 10.) 23 Defendants filed a reply. (ECF No. 12.) For the reasons set forth below, the Court GRANTS 24 Defendants’ motion. 25 /// 26 /// [27] 1 Defendant Johnnie Morris has not been served with notice of Plaintiff’s lawsuit and does 28 not join in the instant motion. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 On July 25, 2021, Ernesto Isaiah Avalos (“Avalos”) was taken into custody at the San 3 Joaquin County Jail and was found hanging from his bunk less than 24 hours later. (ECF No. 1 at 4 ¶¶ 57, 58.) Custody staff cut Avalos down and performed cardiopulmonary resuscitation until an 5 ambulance arrived and transported him to St. Joseph’s Medical Center, where he was pronounced 6 dead. (Id. at ¶ 58.) Plaintiff alleges Avalos was “coming down from Percocet and fentanyl” 7 while in custody and “pressed the call button in his cell several times and requested to be seen by 8 a nurse for pain.” (Id. at ¶¶ 60, 61.) Plaintiff further alleges Avalos was suffering from drug 9 withdrawal and medical staff failed to provide Avalos with necessary medical care. (Id. at ¶ 62.) 10 Plaintiff is Avalos’s mother and claims to be his successor in interest.2 (Id.) Plaintiff filed 11 the instant action on May 20, 2022, alleging the following claims: (1) a 42 U.S.C. § 1983 (“§ 12 1983”) claim for deliberate indifference to serious medical needs in violation of the Fourteenth 13 Amendment against all Defendants; (2) a § 1983 supervisory liability claim against the County 14 and Withrow; (3) a § 1983 Monell claim against the County; (4) a claim for failure to summon 15 medical care pursuant to California Government Code § 845.6 against the County, Withrow, 16 Mendoza, Kaur, Hardwick, and Cedana; (5) a negligence/wrongful death claim against all 17 Defendants except the County; (6) a medical negligence/wrongful death claim against the County, 18 Withrow, Mendoza, Kaur, Hardwick, and Cedana; (7) a § 1983 claim for violation of substantive 19 due process rights to familial association against all Defendants; (8) a § 1983 claim for failure to 20 protect against the County, Izaguirre, Morris, and Lopez; and (9) a survival claim under 21 California Civil Code § 52.1 against all Defendants. (Id. at 22–46.) Defendants filed the instant 22 motion to dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) on September 23 26, 2022. (ECF No. 9.) [24] 2 Defendants argue Plaintiff lacks standing to bring her claims based on allegations in the [25] Complaint referring to Avalos as a “son/father.” (See ECF No. 1 at ¶¶ 103, 114.) In opposition, Plaintiff states those allegations were made in error, as Avalos “was not a father and did not have [26] children.” (ECF No. 10 at 7.) Plaintiff argues she has standing to proceed with this action as 27 Avalos’s biological mother and is his successor in interest. (Id. at 24.) Because the Court is dismissing the Complaint on other grounds, the Court need not address this issue and instead will 28 allow Plaintiff to make this clarification in an amended complaint. 1 II. STANDARD OF LAW 2 A motion to dismiss for failure to state a claim upon which relief can be granted under 3 Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th 4 Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the claim 5 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a); see also Ashcroft v. Iqbal, 556 6 U.S. 662 , 677–78 (2009). Under notice pleading in federal court, the complaint must “give the 7 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic 8 v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotations omitted). “This simplified 9 notice pleading standard relies on liberal discovery rules and summary judgment motions to 10 define disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz v. Sorema 11 N.A., 534 U.S. 506, 512 (2002). 12 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 13 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every 14 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 15 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746 , 753 n.6 (1963). A plaintiff need not allege 16 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 17 relief.” Twombly, 550 U.S. at 570 (internal citation omitted). 18 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 19 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638 , 643 n.2 (9th Cir. 1986). 20 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 21 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 22 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 23 elements of a cause of action.” Twombly, 550 U.S. at 555 ; see also Iqbal, 556 U.S. at 678 24 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 25 statements, do not suffice.”). Thus, ‘[c]onclusory allegations of law and unwarranted inferences 26 are insufficient to defeat a motion to dismiss for failure to state a claim.” Adams v. Johnson, 355 27 F.3d 1179, 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the 28 plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws 1 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 2 Council of Carpenters, 459 U.S. 519, 526 (1983). 3 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 4 facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 . “A claim 5 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 6 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 7 680. While the plausibility requirement is not akin to a probability requirement, it demands more 8 than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility 9 inquiry is “a context-specific task that requires the reviewing court to draw on its judicial 10 experience and common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or 11 her] claims . . . across the line from conceivable to plausible[,]” is the complaint properly 12 dismissed. Id. at 680 (internal quotations omitted). 13 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 14 amend even if no request to amend the pleading was made, unless it determines that the pleading 15 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122 , 16 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). 17 III. ANALYSIS 18 Defendants move to dismiss all of Plaintiff’s claims. (ECF No. 9.) The Court will 19 address each claim in turn. The Court notes Defendants address Claims One and Eight together, 20 and the Court will do so as well. 21 A. Claims One and Eight 22 Claims One and Eight, for failure to provide medical care and failure to protect in 23 violation of § 1983, both appear to be based on Defendants’ deliberate indifference to Avalos’s 24 need for medical care while in custody. In moving to dismiss these claims, Defendants argue 25 Plaintiff fails to allege facts showing Avalos had a serious medical need or that Defendants acted 26 with deliberate indifference. 3 (ECF No. 9 at 13–15.) [27] 3 Because the Court concludes Plaintiff has not sufficiently alleged deliberate indifference, [28] 1 To adequately plead deliberate indifference, Plaintiff must allege facts showing that: “(1) 2 [t]he defendant made an intentional decision with respect to the conditions under which 3 [decedent] was confined; (2) [t]hose conditions put the [decedent] at substantial risk of suffering 4 serious harm; (3) [t]he defendant did not take reasonably available measures to abate that risk, 5 even though a reasonable officer in the circumstances would have appreciated the high degree of 6 risk involved — making the consequences of defendant’s conduct obvious; and (4) [b]y not 7 taking such measures, the defendant caused the [decedent’s] injuries.” Gordon v. Cnty. of 8 Orange, 888 F.3d 1118, 1125 (9th Cir. 2018) (applying deliberate indifference standard to a 9 failure to provide medical care claim); Castro v. Cnty. of L.A., 833 F.3d 1060, 1071 (9th Cir. 10 2016) (applying deliberate indifference standard to a failure to protect claim). 11 Defendant argues Plaintiff does not allege sufficient facts to establish any elements of 12 deliberate indifference. (ECF No. 9 at 13–18.) In opposition, Plaintiff argues, without citing 13 specific portions of the Complaint, that Defendants: (1) did not properly screen and classify 14 Avalos; (2) failed to provide medical care after Avalos complained and requested medical 15 attention several times; and (3) the correctional staff failed to provide the necessary safety checks 16 to ensure Avalos’s safety. (ECF No. 10 at 16.) Plaintiff further states she “can amend the claim 17 to eliminate the County and clear up the specific failures by each individual [D]efendant.” (Id.) 18 Absent citations to the allegations in the Complaint or any meaningful analysis from Plaintiff, the 19 Court finds Plaintiff fails to allege deliberate indifference. 20 As such, the Court GRANTS Defendants’ motion to dismiss Claims One and Eight with 21 leave to amend. 22 /// 23 /// [24] the Court need not and does not decide whether Plaintiff sufficiently alleged Avalos had a serious [25] medical need. However, the Court notes that Plaintiff alleges Avalos was suffering from drug withdrawal. (ECF No. 1 at ¶ 62.) Some courts have found “[d]rug withdrawal constitutes a [26] serious medical need requiring appropriate medical care.” Villarreal v. Cnty. of Monterey, 254 F. 27 Supp. 3d 1168, 1184–86 (N.D. Cal. 2017) (citing Hernandez v. Cnty. of Monterey, 110 F. Supp. 3d 929, 948 (N.D. Cal. 2015) (“Withdrawal is a serious and potentially deadly medical condition, 28 with symptoms including seizures, hallucinations, agitation and increased blood pressure.”)). 1 B. Claim Two 2 Defendants move to dismiss Claim Two because Plaintiff fails to allege facts to support 3 claims that Withrow was aware of constitutional violations or that his actions or omissions were 4 connected to the purported constitutional violations. (ECF No. 9 at 21.) Plaintiff agrees to 5 dismiss this claim against the County but argues there are sufficient allegations to support a 6 supervisory liability claim against Withrow. (ECF No. 10 at 17–18.) 7 To establish supervisory liability under § 1983, there must exist either “(1) [the official’s] 8 personal involvement in the constitutional deprivation, or (2) a sufficient causal connection 9 between the supervisor’s wrongful conduct and the constitutional violation.” Rodriguez v. City of 10 L.A., 891 F.3d 776, 798 (9th Cir. 2018). “The causal connection is established ‘by setting in 11 motion a series of acts by others or by knowingly refus[ing] to terminate a series of acts by others, 12 which [the supervisor] knew or reasonably should have known would cause others to inflict a 13 constitutional injury.’” Id. Thus, a supervisor can be individually liable for action or inaction in 14 the training, supervision, or control of his subordinates; for his acquiescence in the constitutional 15 deprivation; or for conduct that showed a reckless or callous indifference to the rights of others. 16 Starr v. Baca, 652 F. 3d 1202, 1206 (9th Cir. 2011). 17 The Court agrees with Defendants that Plaintiff fails to plead sufficient facts showing a 18 causal connection between Withrow’s conduct and the infringement of Plaintiff’s constitutional 19 rights. See Sanchez v. Sacramento, No. 2:19-cv-01545-MCE-AC, 2021 WL 4066262 , at *6 (E.D. 20 Cal. Sept. 7, 2021) (holding a plaintiff’s § 1983 claim against a supervisory defendant in his 21 individual capacity did not survive a motion to dismiss because the complaint was devoid of 22 factual allegations the defendant was personally involved in, knew of, or refused to stop the 23 actions of his subordinate officers in a way that caused the infringement of plaintiff’s 24 constitutional rights). Even though Plaintiff alleges Defendants knew or should have known 25 about their subordinates’ conduct, “bare allegations that a supervisor ‘knew or should have 26 known’ of misconduct are conclusory, and therefore not entitled to the presumption of truth.” 27 Est. of Alejandro Sanchez v. Cnty. of Stanislaus, No. 1:18-CV-00977-DAD-BAM, 2019 WL 28 1745868, at *6 (E.D. Cal. Apr. 18, 2019); see Tennyson v. Cnty. of Sacramento, No. 19-0429, [1] 2020 WL 4059568 , at *4 (E.D. Cal. July 20, 2020) (dismissing a supervisory liability claim that 2 contained “nothing more than bare recitals and conclusory allegations as to [the supervisor’s] 3 knowledge or involvement in the underlying conduct”); see also Estate of William Hennefer v. 4 Yuba Cnty., No. 2:22-cv-00389-TLN-KJN, 2023 WL 4108077 , at *5 (E.D. Cal. June 21, 2023) 5 (dismissing a supervisory liability claim for failing to allege a “causal connection between 6 [d]efendant’s alleged wrongful conduct and the alleged constitutional violation”). 7 Accordingly, the Court GRANTS Defendants’ motion to dismiss Claim Two with leave to 8 amend. 9 C. Claim Three 10 Defendants move to dismiss Claim Three because Plaintiff fails to allege sufficient facts 11 to establish Monell liability. (ECF No. 9 at 21–24.) In opposition, Plaintiff argues she pleaded an 12 adequate Monell claim based on a policy of inaction or failure to train. (ECF No. 10 at 21.) 13 It is well-established that municipalities cannot be held liable under § 1983 for 14 unconstitutional torts of their employees based solely on respondeat superior. Monell v. Dep’t of 15 Soc. Servs. of City of N.Y., 436 U.S. 658 , 693–94 (1978). Pursuant to Monell, a municipality is 16 only liable under § 1983 when its own illegal acts are a “moving force” in the constitutional 17 violation. Id. A plaintiff may assert Monell liability based on: (1) an official policy; (2) a 18 “longstanding practice or custom which constitutes the standard operating procedure of the local 19 government entity”; (3) the act of an “official whose acts fairly represent official policy such that 20 the challenged action constituted official policy”; or (4) where “an official with final policy21 making authority ‘delegated that authority to, or ratified the decision of, a subordinate.’” Price v. 22 Sery, 513 F.3d 962, 966 (9th Cir. 2008) (citations omitted). 23 Plaintiff argues she has pleaded an adequate Monell claim based on a policy of inaction or 24 failure to train. (ECF No. 10 at 21.) More specifically, Plaintiff cites allegations about prior 25 inmate suicides and deaths at San Joaquin County jail that she argues demonstrate the County’s 26 pattern, custom, or policy of providing substandard care. (Id. (citing ECF No. 1 at ¶¶ 34–35).) 27 Those allegations are: (1) an inmate died of suicide in 2019; (2) an inmate died in 2018, and it 28 was alleged in a subsequent lawsuit the inmate was denied referrals to medical specialists for 1 treatment of long-standing health problems; (3) two inmates were found dead in custody in 2015; 2 (4) an inmate hung himself in 2012 and another inmate hung himself in 2010 after not receiving 3 treatment or care for their mental illnesses. (ECF No. 1 at ¶¶ 34–35.) Plaintiff argues these facts 4 allege more than sporadic incidents and establish that Defendants had a pervasive custom of: (1) 5 denying inmates psychiatric attention, continuity of care, and access to higher levels of care not 6 available at the jail for those in need, which caused death; (2) failing to properly classify, house, 7 and monitor inmates suffering from mental health issues; (3) failing to maintain sufficient 8 medical and mental health staff; and (4) failing to use appropriate National and State accepted jail 9 minimum standards, procedures, and practices for handling suicidal inmates. (ECF No. 10 at 22.) 10 The Court agrees with Defendants that Plaintiff fails to draw a link between the prior 11 deaths and allegedly insufficient policies regarding failure to provide necessary screening, 12 classification, treatment, and care. The six incidents Plaintiff cite took place over the course of 13 twelve years prior to Avalos’s death. Not only does the Court have doubts as to whether the 14 incidents are of “sufficient duration, frequency, and consistency” to show a custom or practice, 15 but the allegations about the incidents are too vague to show the purported custom or practice 16 caused Avalos’s injury. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Moreover, Plaintiff’s 17 arguments in opposition are conclusory and devoid of meaningful analysis as to how these 18 specific instances support a Monell claim. 19 Thus, the Court GRANTS Defendants’ motion to dismiss Claim Three with leave to 20 amend. 21 D. Claim Four 22 To prove a claim under California Government Code § 845.6 (“§ 845.6”), a prisoner must 23 establish three elements: “(1) the public employee knew or had reason to know of the need (2) for 24 immediate medical care, and (3) failed to reasonably summon such care.” Jett v. Penner, 439 25 F.3d 1091 , 1098–99 (9th Cir. 2006). 26 Defendants move to dismiss Claim Four because Plaintiff does not allege facts to support 27 the contention that any Defendant knew or had reason to know of Avalos’s need for immediate 28 medical care, as required for a § 845.6 claim. (ECF No. 9 at 25.) In opposition, Plaintiff states 1 she “agree[s] to dismiss this claim to the extent it is limited to medical care after Decedent was 2 found to be hanged.” (ECF No. 10 at 22.) In reply, Defendants point out the Complaint did not 3 limit Claim Four to Avalos’s access to medical care after committing suicide. (ECF No. 12 at 4.) 4 Based on the lack of clarity from Plaintiff and what appears to be Plaintiff’s non5 opposition to dismissing Claim Four in its entirety, the Court GRANTS Defendants’ motion to 6 dismiss Claim Four with leave to amend. 7 E. Claims Five and Six 8 The elements of a negligence claim under California law are duty, breach, causation, and 9 injury. Vasilenko v. Grace Family Church, 3 Cal. 5th 1077, 1083 (2017). “Medical negligence is 10 one type of negligence, to which general negligence principles apply.” Martin v. United States, 11 No. 2:14-CV-02214-TLN-KJN, 2017 WL 2881103 , at *3 (E.D. Cal. July 6, 2017) (citation 12 omitted). 13 Defendants move to dismiss Claims Five and Six because Plaintiff fails to: (1) specify 14 which Defendant committed which negligent act, or how the negligent act proximately caused 15 Avalos’s injuries; (2) allege a breach of duty; (3) establish causation; and (4) address Defendants’ 16 immunity from liability under California Government Code §§ 820.2, 844.6, 845.6, 855.6, and 17 855.8. (ECF No. 9 at 26–27.) In opposition, Plaintiff fails to respond to Defendants’ arguments. 18 Instead, Plaintiff restates the elements of the claims, string cites various citations in the Complaint 19 without providing any discussion as to how those allegations satisfy each element of the claims, 20 argues in a conclusory fashion that the Complaint placed Defendants on notice of the claims, and 21 does not address Defendants’ immunity arguments. (ECF No. 10 at 23–24.) 22 As with the other claims, Plaintiff’s allegations and arguments as to Claims Five and Six 23 lack clarity. Absent meaningful analysis from Plaintiff, the Court cannot say Plaintiff has stated 24 viable negligence claims. See Destfino v. Reiswig, 630 F.3d 952, 958 (9th Cir. 2011) (affirming a 25 district court’s dismissal of an entire complaint that made “everyone did everything allegations” 26 without leave to amend because “[t]he district court made clear . . . that plaintiffs must amend 27 their ‘shotgun pleading’ to ‘state[ ] clearly how each and every defendant is alleged to have 28 violated plaintiffs’ legal rights,” and plaintiffs failed to do so). 1 Accordingly, the Court GRANTS Defendants’ motion to dismiss Claims Five and Six 2 | with leave to amend. 3 F. Claims Seven and Nine 4 Defendants move to dismiss Claim Seven because Plaintiff fails to state a plausible 5 | substantive due process claim for loss of familial relationship. (ECF No. 9 at 27-28.) Defendants 6 || move to dismiss Claim Nine because Plaintiff fails to allege Defendants used threats, 7 | intimidation, or coercion to violate Avalos’s constitutional rights. Ud. at 28-29.) Plaintiff fails to 8 || address Defendants’ arguments as to Claims Seven and Nine in opposition. (See ECF No. 10.) 9 Based on Plaintiff's failure to oppose dismissal of these claims, the Court GRANTS 10 | Defendants’ motion to dismiss Claims Seven and Nine. Although Plaintiff did not address these 11 claims or indicate she could cure the deficiencies cited by Defendants, the Court will allow 12 | Plaintiff an opportunity to amend based on the liberal standard in favor of granting leave to 13 | amend. Lopez, 203 F.3d at 1130 . 14 IV. CONCLUSION 15 For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss with leave 16 | toamend. (ECF No. 9.) Plaintiff shall file an amended complaint not later than thirty (30) days 17 | from electronic filing date of this Order. Defendants shall file their responsive pleading not later 18 | than twenty-one (21) days thereafter. If Plaintiff does not file an amended complaint, the Court 19 || will dismiss this action and close the case. 20 IT IS SO ORDERED. 21 | Date: August 4, 2023 { J) /) 23 “ ! J Vu 24 Troy L. Nuhlep> 25 United States District Judge