Dunham v. Najem

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 JOHN F. DUNHAM, Case No.18-cv-04467-EDL 8 Plaintiff, ORDER RE DEFENDANT 9 v. CALIFORNIA FORENSIC MEDICAL GROUP, INC.’S MOTION TO DISMISS 10 COUNTY OF MONTEREY, et al., FIRST AMENDED COMPLAINT 11 Defendants. Re: Dkt. No. 51 [12] 13 In this civil rights action, Defendant California Forensic Medical Group, Inc. (“CFMG”) 14 moves to dismiss the First Amended Complaint (“FAC”) against it for failure to state a claim 15 pursuant to Federal Rule of Civil Procedure 12(b)(6). Having heard oral argument on August 13, 16 2019, and having considered the papers filed in support of and in opposition to the motion, the 17 Court hereby GRANTS the Motion to Dismiss. 18 I. FACTUAL BACKGROUND 19 Plaintiff claims that at the time of his arrest on August 20, 2016, he was suffering from 20 alcohol withdrawal or at high risk for withdrawal. FAC ¶¶ 10-11. He had been fighting alcohol 21 addiction and habitually consumed approximately 2 liters of liquor per day. Id. at ¶ 11. Plaintiff 22 alleges that despite this severe alcohol problem, the deputies who performed the intake interviews 23 and screening of Plaintiff concluded that Plaintiff showed no signs of drug or alcohol use. Id. at 24 ¶¶ 13-14. 25 On the night of August 23, 2016, while in pre-trial detention at Monterey County Jail, 26 Plaintiff claims he displayed clear signs of untreated severe alcohol withdrawal, including 27 hallucinations, severe anxiety, disorientation to time and place and incoherent mumbling. FAC 1 repeatedly to get him a bedroll and a cup for water. Id. When Defendants encountered Plaintiff, 2 he was in a hallucinogenic state. Id. at ¶ 22. Defendants claim Plaintiff began acting and speaking 3 irrationally and threatened to harm himself. Def.’s Mot. Strike 2, Dkt. No. 47. The responding 4 Monterey County Sheriff’s Deputies determined Plaintiff posed a danger to himself and should be 5 psychologically evaluated. Id. The deputies attempted to move Plaintiff from his cell to a safety 6 cell or the jail infirmary. Id. Defendants claim Plaintiff refused to cooperate, and when the 7 deputies entered into Plaintiff’s cell, Plaintiff violently resisted them for an extended period of 8 time. Id. Defendants claim Plaintiff kicked, hit, and attempted to bite the deputies. Id. at 3. 9 Plaintiff claims that the responding Monterey County Sheriff’s Deputies violently and repeatedly 10 beat and tased him. Compl. 6. 11 Following the August 23, 2016 incident, Plaintiff was admitted to Natividad Medical 12 Center Emergency Department. FAC ¶ 28. In addition to his head injuries and multiple chipped 13 teeth, Plaintiff was diagnosed with paranoid psychosis and severe alcohol withdrawal delirium. 14 Id. at ¶ 31. On August 24, 2016, Plaintiff was discharged from the emergency department, but 15 Plaintiff remained admitted at Natividad Medical Center for acute alcohol withdrawal. Id. at ¶ 34. 16 Plaintiff was treated in the ICU and then later discharged on August 27, 2016. Id. Plaintiff was 17 subsequently released from custody on August 29, 2016. Compl. 1. 18 II. PROCEDURAL HISTORY 19 On July 24, 2018, Plaintiff filed the original Complaint pro se against defendants Shannon 20 Anadon, Justin Holloway, Joshua D. Gardepie, Ala H. Najem, Zachariah Swift, and D.E. Vargas 21 (collectively, “Defendants”), alleging two separate causes of action for excessive force pursuant to [22] 42 U.S.C. §1983 . Compl., Dkt. No. 1. The Complaint alleged that on or around August 23, 2016, 23 he was assaulted in his cell at the Monterey County Jail by the named defendant deputies and 24 “brutally beaten and tased numerous times.” Id. at 6 . The Complaint stated that Plaintiff was 25 simply requesting a bedroll and was not a danger to himself or anyone else during this incident. [26] Id. 27 On January 28, 2019, Plaintiff obtained counsel. Dkt. No. 27. On May 29, 2019, Plaintiff 1 § 1983 claim of deliberate indifference to serious medical needs pursuant to Monell v. Department 2 of Social Services of the City of New York, 436 U.S. 658 (1978). FAC ¶¶ 54-59. 3 On July 3, 2019, CFMG filed the present Motion to Dismiss the First Amended Complaint, 4 arguing that Plaintiff’s FAC is barred by the statute of limitations and does not relate to the 5 original Complaint, and thus, Plaintiff’s FAC fails to state a claim pursuant to Federal Rule of 6 Civil Procedure 12(b)(6). Dkt. No. 51. On July 17, 2019, Plaintiff filed his opposition, arguing 7 that the requirements under Rule 15(c)(1)(C) for relation back have been satisfied and that the 8 statute of limitations should be tolled pursuant to California Code of Civil Procedure § 352.1 and 9 the doctrine of equitable tolling. Dkt. No. 55. On July 24, 2019, CFMG filed its reply and argued 10 again that the FAC is barred by the statute of limitations and does not relate back to the original 11 Complaint. Dkt. No. 57. 12 On August 13, 2019, the Court heard oral argument and ordered the parties to submit 13 further briefing regarding the issue of tolling. Dkt. No. 61. On August 20, 2019, CFMG filed a 14 supplemental brief, arguing that California Code of Civil Procedure § 352.1 provides no express 15 tolling of the statute of limitations for Plaintiff and that the claim against CFMG should not be 16 tolled by equity because, inter alia, CFMG did not receive timely notice of Plaintiff’s claim. Dkt. 17 No. 62. On August 27, 2019, Plaintiff filed his reply to the supplemental briefing, conceding that 18 § 352.1 does not apply but arguing that equitable tolling should apply because, inter alia, notice 19 should be imputed to CFMG as an agent of Monterey County. 20 III. LEGAL STANDARD 21 Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed for “failure to 22 state a claim upon which relief can be granted.” Fed. R. Civ. P. 12. To survive a motion to 23 dismiss, a complaint must contain sufficient factual allegations, which when accepted as true, 24 “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 25 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[T]he court must construe the 26 complaint in the light most favorable to the plaintiff, taking all her allegations as true and drawing 27 all reasonable inferences from the complaint in her favor.” Doe v. United States, 419 F.3d 1058 , 1 however, are not entitled to the presumption of truth. Iqbal, 556 U.S. at 681 . 2 IV. DISCUSSION 3 The parties do not dispute that, absent relation back and tolling, the statute of limitations 4 on Plaintiff’s § 1983 claim against CFMG had expired at the time Plaintiff filed the First 5 Amended Complaint. Def. Mot. 3-4; Pl. Opp. 3. The parties also now agree that statutory tolling 6 does not apply. Def. Supp. Br. 1-3; Pl. Supp. Br. 1. Instead, the parties dispute (1) whether 7 Plaintiff’s FAC relates back to his original Complaint, (2) whether equitable tolling applies, and 8 (3) whether CFMG’s statute of limitations defense is properly raised by a motion for summary 9 judgment rather than dismissal. The Court addresses each below. 10 A. Relation Back 11 Plaintiff argues that his FAC relates back to his original Complaint, so his § 1983 claim 12 against CFMG is not timed barred. Under Federal Rule of Civil Procedure Rule 15, a new 13 defendant may be made party to an existing complaint if (1) the claim arose out of the same 14 conduct, transaction, or occurrence; (2) the new defendants received sufficient notice of the 15 original action within 120 days so as not to be prejudiced in defending on the merits; and (3) the 16 new defendants knew or should have known that “but for a mistake concerning the proper party’s 17 identity” the complaint would have included them. Fed. R. Civ. P. 15(c)(1)(C); Krupski v. Costa 18 Crociere S. p. A., 560 U.S. 538, 545 (U.S. 2010). 19 1. Same Conduct, Transaction, or Occurrence 20 Rule 15 provides in relevant part that an amended pleading “relates back to the date of the 21 original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, 22 transaction, or occurrence set out—or attempted to be set out—in the original pleading.” Fed. R. 23 Civ. P. 15(c)(1)(B). The Ninth Circuit looks to whether the original and amended claims “share a 24 common core of operative facts” and applies the standard “liberally.” ASARCO, LLC v. Union 25 Pac. R. Co., 765 F.3d 999, 1004 (9th Cir. 2014). However, as explained by the Ninth Circuit, 26 there are limits to the doctrine. For example, an amended claim must be amenable to proof “by 27 the ‘same kind of evidence’ offered in support of the original pleading,” Percy v. S.F. Gen. Hosp., 1 discrimination unrelated to [existing] promotion, hostile work environment, and retaliation 2 claims” did not relate back even where both the new and existing claims were based on alleged 3 racial discrimination, Williams v. Boeing Co., 517 F.3d 1120 , 1133 & n.10 (9th Cir. 2008). 4 Here, the two claims do not arise from the same conduct, transaction, or occurrence set out 5 or attempted to be set out in the original pleading. In his original Complaint, Plaintiff alleges 6 excessive force by the sheriff’s deputies and makes no reference to his medical condition, except 7 for stating that he was never a threat to himself, other inmates, or deputies. See Compl. 4-8. The 8 Complaint alleges that Plaintiff was beaten in response to his “making numerous attempts to 9 request a bed roll and a cup.” Compl. 6. Although Plaintiff now amends his allegations to assert 10 that the incident was caused by delirium tremens which resulted from untreated alcohol 11 withdrawal, none of these facts were outlined in the original Complaint. See, e.g., FAC ¶¶ 18-22. 12 Furthermore, Plaintiff’s new claim against CFMG is based on events that occurred leading up to 13 the excessive force incident that implicate CFMG’s policies, procedures, and training for 14 screening and treating inmates suffering from alcohol withdrawal or at high risk of alcohol 15 withdrawal. See, e.g., FAC ¶¶56-58; Pl. Opp. 5. These allegations do not concern whether the 16 deputies subsequently used excessive force when restraining Plaintiff. 17 Plaintiff contends that his medical records can be used to prove both his original excessive 18 force claims and his amended claim against CFMG for deliberate indifference. Pl. Opp. 4-5. 19 CFMG counters that other additional evidence will be necessary to prove the medical deliberate 20 indifference claim, such as medical policies and procedures related to alcohol withdrawal, expert 21 witnesses on correctional medicine and addiction, CFMG healthcare providers, and different 22 medical records. Def. Mot. 4. Conversely, the evidence proving plaintiff’s excessive force claim 23 would likely consist of Monterey County and Sheriff’s policies and procedures regarding the use 24 of force, expert witnesses on correctional justice, the lay testimony of deputies and inmates who 25 witnessed the use of force incident, and medical records of his injuries but not of his alcohol 26 dependency. Id. Neither claim will be proven by the medical records alone, so the medical 27 records are insufficient to establish that the claims arise out of the same conduct, transaction, or 1 For the reasons stated above, the newly added § 1983 claim against CFMG in the FAC 2 does not arise out of the same conduct, transaction, or occurrence set forth or attempted to be set 3 out in the original Complaint. 4 2. Notice and Prejudice 5 Rule 15(c)(1)(C) requires that “within the period provided by Rule 4(m) for serving the 6 summons and complaint,” the new defendant “received such notice of the action that it will not be 7 prejudiced in defending on the merits.” F.R.C.P. 15(c)(1)(C). “Informal notice is sufficient if it 8 allows the defendant the opportunity to prepare a defense.” Abels v. JBC Legal Grp., P.C., 229 9 F.R.D. 152 , 158 (N.D. Cal.2005) (citing Craig v. United States, 479 F.2d 35, 36 (9th Cir.1973)). 10 “Notice can be imputed if there is sufficient agency or ‘community of interest’ between the 11 defendant served and the new defendant.” Id. (quoting G.F. Co. v. Pan Ocean Shipping Co., Ltd., [12] 23 F.3d 1498, 1501 (9th Cir.1994)). Notice is only imputed to a “sufficiently related party.” 13 Sciavone v. Fortune, 106 S.Ct.2379, 2384 (1986), citing Hernandez Jimenez v. Calero Toledo, 604 14 F.2d 99 (1st Cir. 1979). Sciavone based its language on Hernandez Jimenez. In Hernandez 15 Jimenez, the First Circuit explains the basis for the “related party” language and defines the 16 “identity of interests concept” which provides: 17 The identity of interests concept, a judicial gloss on Rule 15(c)(1), provides that the institution of the action serves as constructive notice 18 of the action to the parties added after the limitations period expired, when the original and added parties are so closely related in business 19 or other activities that it is fair to presume the added parties learned of the institution of the action shortly after it was commenced. The 20 identity of interest principle is often applied where the original and added parties are a parent corporation and its wholly owned 21 subsidiary, two related corporations whose officers, directors, or shareholders are substantially identical and who have similar names 22 or share office space, past and present forms of the same enterprise, or co-executors of an estate. [23] 24 Hernandez Jimenez v. Calero Toledo, 604 F.2d at 102-103 (citations omitted). 25 With regard to notice, CFMG argues it had no notice of Plaintiff’s claim prior to the filing 26 and service of the FAC. Def. Mot. 10. Plaintiff argues that an inference should be made in his 27 favor that CFMG had the requisite notice, since “CFMG worked hand-in-hand with the Jail, 1 there is no basis to infer Monterey County gives its contracted businesses notice of legal claims 2 when those claims are outside the scope of the contracted services. According to CFMG, although 3 these entities share physical space in the jail, they occupy two entirely different realms of 4 government function. Def. Reply 7, Dkt. No. 57. The original claims against Monterey County 5 Sheriff’s deputies were for excessive force, and the allegations did not raise any issues with 6 medical or mental health services to inmates. As a result, there is no basis to infer that CFMG had 7 notice of any claims of misconduct related to the medical care Plaintiff received. Accordingly, the 8 Court finds that there was no actual or imputed notice to CFMG based on CFMG’s relationship 9 with the jail. 10 With regard to prejudice, CFMG argues that it is prejudicial to force it to defend this case 11 when the litigation appears largely complete. Def. Mot. 11. While CFMG correctly points out 12 that the original Complaint was filed on July 24, 2018, discovery has commenced, and certain 13 defendants have filed for summary judgment, the Court disagrees that the litigation is largely 14 complete. The Case Management and Pretrial Order, entered on February 25, 2019, allowed the Type text here 15 parties to join other parties no later than April 22, 2019. Dkt. No. 36. The parties stipulated to 16 allow Plaintiff to file an amended complaint by May 29, 2019, since the other defendants required 17 additional time to respond to Plaintiff’s discovery. Dkt. No. 43. Plaintiff filed his FAC by May 18 29, 2019, and CFMG filed its motion to dismiss on July 3, 2019. Dkt. No. 51. Fact discovery 19 does not close until December 13, 2019, and the dispositive motion hearing is February 11, 2020. 20 Thus, CFMG still has time to defend against the FAC. 21 Case scheduling aside, CFMG does not argue that it would be prejudiced in defending the 22 case or in terms of gathering evidence and preparing its case. Accordingly, the prejudice to 23 CFMG is minimal. 24 3. Mistake Concerning the Proper Party’s Identity 25 Finally, Rule 15(c)(1)(C) requires that the newly added defendant knew or should have 26 known (within the Rule 4(m) period) that, “but for a mistake concerning the proper party’s 27 identity,” they would have been named in the original pleading. F.R.C.P. 15(c)(1)(C). The 1 F.R.C.P. 15(c)(1)(C)(ii). “Rule 15(c)(1)(C)(ii) asks what the prospective defendant knew or 2 should have known during the Rule 4(m) period, not what the plaintiff knew or should have 3 known at the time of filing her original complaint.” Krupski, 560 U.S. at 548 (U.S. 2010) 4 (emphasis in original). If a plaintiff makes a deliberate choice to sue a certain defendant and not 5 another, “while fully understanding the factual and legal differences between the two parties,” 6 Rule 15(c)(1)(C)(ii) cannot be satisfied. Id. However, a “deliberate but mistaken choice” by the 7 plaintiff does not foreclose a finding that Rule 15(c)(1)(C)(ii) has been satisfied. Id. at 549 (“As 8 noted, a plaintiff might know that the prospective defendant exists but nonetheless harbor a 9 misunderstanding about his status or role in the events giving rise to the claim at issue, and she 10 may mistakenly choose to sue a different defendant based on that misimpression.”). 11 Plaintiff contends that there is no evidence that Plaintiff was aware of the different roles 12 between CFMG and Monterey County Jail, or that CFMG existed. Pl. Opp. 7. As a result, 13 Plaintiff’s “deliberate but mistaken choice” in not including CFMG in the original Complaint does 14 not foreclose a finding that Rule 15(c)(1)(C)(ii) is satisfied. However, Plaintiff fails to establish 15 that CFMG knew or should have known that but for such a mistake in identity, Plaintiff would 16 have named CFMG in the original pleading. As explained above, the allegations of excessive 17 force do not relate to newly added claims concerning CFMG’s policies, procedures, and training 18 for screening and treating inmates suffering from alcohol withdrawal or at high risk of alcohol 19 withdrawal. Thus, there is no adequate basis to impute or infer knowledge to CFMG based on the 20 original Complaint. 21 Accordingly, the Rule 15(c) factors have not been satisfied and the newly added claim 22 against CFMG in the FAC does not relate back to the original Complaint. 23 B. Equitable Tolling 24 Plaintiff also argues that the statute of limitations as to his claims against CFMG should be 25 equitably tolled. The statute of limitations for 42 U.S.C. §1983 actions is governed by the state’s 26 general personal injury statute of limitations. Owens v. Okure, 488 U.S. 235, 236 (1989). 27 “Because we borrow California’s statute of limitations, ‘we also apply California’s equitable 1 Cir. 2002) (quoting Morales v. City of Los Angeles, 214 F.3d 1151, 1151 (9th Cir. 2000)). 2 “California courts apply equitable tolling ‘to prevent the unjust technical forfeiture of causes of 3 action, where the defendant would suffer no prejudice.’” Jones v. Blanas, 393 F.3d 918, 928 (9th 4 Cir. 2004) (quoting Lantzy v. Centex Homes, 31 Cal.4th 363 , 2 Cal.Rptr.3d 655, 660 (2003)). 5 Under California law, tolling is appropriate in a later suit when an earlier suit was filed and where 6 the record shows: “(1) timely notice to the defendant in filing the first claim; (2) lack of prejudice 7 to the defendant in gathering evidence to defend against the second claim; and (3) good faith and 8 reasonable conduct by the plaintiff in filing the second claim.” Daviton v. Columbia/HCA 9 Healthcare Corp., 241 F.3d 1131, 1135 (9th Cir.2001) (en banc) (quoting Collier v. City of 10 Pasadena, 142 Cal.App.3d 917, 924 , 191 Cal.Rptr. 681 (1983)); see also Addison v. State, 21 11 Cal.3d 313, 319 , 146 Cal.Rptr. 224 , 578 P.2d 941 (1978). 12 First, regarding timely notice to CFMG, Plaintiff largely repeats his arguments regarding 13 notice to CFMG, which fail for the same reasons. See Pl. Supp. Br. 2-3. CFMG states that it 14 received notice only with the service of the FAC. Def. Supp. Br. 3. Plaintiff does not argue that it 15 provided CFMG with any actual notice of the claim against it, nor does it allege any facts 16 suggesting that CFMG received any actual notice, prior to the filing of the FAC. Plaintiff instead 17 argues that notice should be inferred or imputed to CFMG because “CFMG, at all relevant times, 18 was an agent of Monterey County” and “worked hand-in-hand with the Jail, providing medical 19 and mental health services to inmates.” Pl. Supp. Br. 3. However, as discussed above, CFMG’s 20 contractual relationship with Monterey County alone is not sufficient to impute the County’s 21 knowledge to CFMG, particularly since the original Complaint centers on excessive force by the 22 Monterey County Sheriff’s Deputies and includes no allegations regarding the quality or level of 23 medical services provided during Plaintiff’s incarceration. Accordingly, Plaintiff did not meet his 24 burden of showing that CFMG had notice of his original Complaint as required by California’s 25 equitable tolling doctrine. 26 Second, regarding lack of prejudice to the defendant in gathering evidence to defend 27 against the added claim, CFMG does not argue that it would be unable to gather evidence in 1 prejudiced in gathering evidence to contest plaintiff’s disability pension claim); see also Elkins v. 2 Derby, 12 Cal.3d 410 , 115 Cal.Rptr. 641 (1974) (finding “minimal” prejudice to defendant 3 employer if claimant employee files a tort one year after the date of injury because the defendant 4 “can identify and locate persons with knowledge of the events or circumstances causing the 5 injury”). Instead, CFMG argues prejudice in the abstract since “it would fundamentally erode the 6 company’s entitled reliance on the definitive timeframe for claims.” Def. Supp. Br. 3-4. Thus, 7 CFMG has failed to show a likelihood of actual prejudice with respect to its ability to defend 8 against the claim. 9 Third, regarding good faith and reasonable conduct by the Plaintiff, as discussed in the 10 above section regarding Plaintiff’s mistake in identity, there are no facts or evidence presented that 11 contradict Plaintiff’s contention that he was unaware of CFMG’s role in the jail when he filed the 12 original Complaint. See Pl. Opp. 7; Pl. Supp. Br. 5. Thus, the Court does not find a lack of good 13 faith or unreasonable conduct by the Plaintiff. 14 Because there was no timely notice to CFMG in filing the first claim, equitable tolling 15 does not apply and Plaintiff’s claim against CFMG is barred by the statute of limitations. 16 C. Appropriate Motion for Statute of Limitations 17 Plaintiff urges this Court to deny CFMG’s motion and require CFMG to raise its statute of 18 limitations defense by summary judgment motion. A statute of limitations defense may be raised 19 by a motion for dismissal or by summary judgment motion. Jablon v. Dean Witter & Co., 614 20 F.2d 677, 682 (9th Cir. 1980). “If the running of the statute is apparent on the face of the 21 complaint, the defense may be raised by a motion to dismiss.” Id.; see also Graham v. Taubman, [22] 610 F.2d 821 (9th Cir. 1979). When a motion to dismiss is based on the running of the statute of 23 limitations, it can be granted only if the assertions of the complaint, read with the required 24 liberality, would not permit the plaintiff to prove that the statute was tolled. Jablon, 614 F.2d at 25 682. If the defense is not apparent on the face of the complaint and the motion to dismiss is not 26 accompanied by acceptable affidavits, an appropriate summary judgment motion may be 27 employed. Id. 1 appropriate. Pl. Opp. 1-2. In particular, Plaintiff argues that additional evidence is necessary 2 || because “[w]hat the parties knew or whether they were mistaken should not be assumed from the 3 face of the pleadings.” Pl. Opp. 7. However, as discussed above, additional evidence is needed to 4 || determine whether the FAC relates back to the original Complaint. The defense is apparent on the 5 face of the pleadings. Accordingly, the statute of limitations defense was properly raised by 6 || CFMG’s motion to dismiss. 7 WV. CONCLUSION 8 For the reasons stated above, the Court GRANTS the Motion to Dismiss. The FAC against 9 || CFMG is DISMISSED WITH PREJUDICE. [10] 11 IT IS SO ORDERED. 12 | Dated: 09/11/2019 S 14 Ea abl OD L □□□□□□ 1s ELIZABETH D. LAPORTE United States Magistrate Judge