The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS*fn1
On March 18, 2010, Defendants filed a motion to dismiss Plaintiffs' Fifth Amended Complaint ("FAC") for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Plaintiffs allege the following claims in their FAC: (1) deliberate indifference under 42 U.S.C. § 1983 in violation of the Eighth and Fourteenth Amendments against all individual Defendants sued in their individual capacities; (2) supervisory liability under 42 U.S.C. § 1983 for promulgating unconstitutional policies and customs in violation of the Eighth Amendment against Defendants Schwarzenegger, Tilton, Carey, Sisto, Traquina, Nuehring, Wong, Martinez, and Orrick in their individual capacities; (3) supervisory liability under 28 U.S.C. § 1983 for negligent hiring and failure to train and supervise against Defendants Schwarzenegger, Tilton, Carey, Sisto, Traquina, Nuehring, Wong, Martinez, and Orrick in their individual capacities; (4) state law negligence and wrongful death against all Defendants; (5) medical malpractice against CDCR, Hak, Traquina, Noriega, Dusay, and Hicks; (6) failure to summon medical care under California Government Code sections 844.6 and 845.6 against all Defendants; and (7) civil rights violations under California Unruh Act, California Civil Code section 51, against all Defendants. Defendants seek dismissal of Defendants Schwarzenegger, Tilton, Carey, Sisto, and Nuehring from the first claim. Defendants also seek dismissal of the second and fourth through seventh claims. Finally, Defendants seek dismissal of the negligent hiring portion of the third claim against all Defendants, and the remainder of the third claim against Defendants Schwarzenegger, Tilton, Sisto, Carey, Nuehring, and Traquina only. For the following reasons, the dismissal motion is GRANTED in part and DENIED in part.
I. Allegations Contained in Plaintiffs' Fifth Amended Complaint
Robert St. Jovite ("Robert") was found dead in his prison cell at the California State Prison-Solano ("CSP-Solano") by his cellmate, John Lee Harden, at approximately 3:10 p.m. on May 10, 2006. (FAC 1:22-28, ¶ 26.) Robert was a mentally ill inmate housed in the medical unit in CSP-Solano at the time of his death. (Id. 1:22-25.) When Harden found Robert, Robert was hanging by a bed sheet wrapped around his neck from a ceiling vent above the toilet. (Id. ¶ 26.) Harden "got [Robert] down to the ground," began calling for help, and performed cardiopulmonary resuscitation (CPR) on Robert. (Id. ¶¶ 26-27.) Harden yelled to Corrections Officer Rebecca Cahoon to "hurry up." (Id. ¶ 27.) "It was ten or more minutes before Cahoon actually arrived at the cell door." (Id. ¶ 27.) Cahoon then "stopped for several minutes" and stated, "Nobody tells me to hurry up." (FAC ¶ 27.) She also stated, "I'm not medical[,] I don't respond to man down calls when [i]nmates bang on doors." (Id.) Cahoon did not immediately signal the tower to ask for assistance and did not perform CPR on Robert. (Id.) Cahoon then stated to Harden, "it's all done, come out of there." (Id.) "Harden was then handcuffed and removed from the area." (Id.) Defendants Orrick, Martinez, Wong, Hak, Noriega, Alcaraz, Wade, and Hicks also "responded" but failed to perform CPR on Robert or provide him "with immediate and adequate medical attention." (Id.) The Vacaville Fire Department arrived "thirty minutes later" and performed CPR on Robert. (FAC ¶ 28.) Plaintiffs allege Robert "would have benefitted from the administration of timely life-saving medical measures, including CPR." (Id. ¶ 29.)
Robert "suffered from chronic and severe abdominal [and] colorectal pain and mental health problems throughout his incarceration at CSP-Solano." (Id. ¶ 31.) His condition "worsened three months prior to his death." (Id. ¶ 33.) In March 2006, Robert "was reporting increased abdominal pain" and "the prison doctor "suspected pancreatitis." (Id.) "[A CAT scan] of the abdomen in April 2006 ruled out pancreatitis" but "[n]o further diagnostic tests were conducted." (Id.) As to his mental health, Robert was diagnosed "with depression, anxiety, and obsessive compulsive disorder." (FAC ¶ 33.) After Robert "reported symptoms of paranoia" on March 17, 2006, "the doctor noted 'Monitor for paranoia (new complaint).'" (Id. ¶ 33-34.) "[Robert] was not prescribed any psychotropic medication for the new symptoms of paranoia. He was prescribed Seroquel for severe anxiety but the paranoia was never addressed, nor was he monitored for the emerging dangerous new symptom." (Id. ¶ 34.) Robert and his mother, Plaintiff Sherie Lemire, requested "medical and mental health assessment, care, and treatment" for Robert during his incarceration. (Id. ¶ 35.) These requests were only "partially-effective," "wholly ineffective," or were "completely ignored." (Id.)
Robert "was housed in Building 8" at CSP-Solano. (Id. ¶ 37.) Building 8 is a "Special Housing Unit for inmates within the [CDCR] who require Correctional Clinical Case Management Services ["CCCMS")]." (FAC ¶ 36.) Building 8 uses "climate control" and houses those inmates who take "medications that do not allow the body to tolerate extreme heat," known as "hot meds." (Id.) "Building 8 is a two-story housing unit used to house approximately 200 inmates." (Id. ¶ 38.) It is staffed by two floor officers and one control tower officer on three eight-hour shifts. (Id. ¶¶ 38, 42.) Chua was the control tower officer on May 10, 2006. (Id. ¶ 42.) Holliday and Cahoon began their shifts as floor officers at 2:00 p.m. on May 10, 2006. (Id. ¶ 38) Holliday and Cahoon immediately attended a meeting upon commencing their shift and did not return to Building 8 until 3:30 p.m. (FAC ¶ 43.) Defendant Nuehring called the meeting, which concerned an inmate attack on a guard in another facility (Id. ¶¶ 40, 44.) Plaintiffs allege these meetings were called "with some regularity" and would last up to an hour and a half. (Id. ¶ 50.)
Plaintiffs allege "anything in excess of 45 minutes compromises the safety and security of housing unit for both staff and inmates." (Id.) Sisto "had knowledge [of] and approved the meeting that day." (Id. ¶ 51.)
Plaintiffs allege that "while there were nearly 100 inmate witnesses to the incident, internal investigation conducted by the prison failed to interview them and failed to conduct any meaningful investigation." (Id. ¶ 30.) Plaintiffs also allege "various individual defendants engaged in a common practice condoned by supervisory personnel of altering official records to cover up the constitutional violations that led to the death of [Robert]," including "the Crime/Incident Reports 'CDCR 837k' forms and their attachments [which] were altered by the facility Lieutenant and the responding officers and other personnel in an effort to cover[ ]up the constitutional violations that led to the death of Robert." (FAC 3:2-11.) Plaintiffs allege Wong "had all of the reporters change their reports to reflect that the incident started at 3:44 p.m." (Id. ¶ 88.) Further, "[n]one of the Defendants who responded to the scene documented any reason why they failed to initiate life saving measures." (Id. ¶ 77.) "Accordingly, CDCR has a policy or de[ ]facto custom and practice of tampering with reports, obstructing justice and witness tampering in its efforts to cover up constitutional violations such as denying an inmate emergency medical treatment and life saving measures." (Id. ¶ 89.)
Plaintiffs further allege, "On October 21, 2005, the CDCR Director of Institutions[,] John Dovey[,] mandated that each correctional officer be trained in [CPR] to provide 'immediate life support in any medical emergency until medical staff arrive . . . ." (Id. ¶ 64.) This policy "required each officer to carry a personal CPR mouth shield on their person at all time to ensure they can provide life support until medical staff arrive." (Id. ¶ 65.) Plaintiffs allege that the conduct of the first responders on May 10, 2006, "all of whom failed to provide CPR . . ., indicates that no CPR policy had been effectively instituted at CSP-Solano by May 10, 2006." (FAC ¶ 67.) Plaintiffs allege "Correctional Officers at CSP-Solano regularly refuse to provide CPR by using their personal mouth shield" and instead they "wait for the [A]mbu[ ]bag to arrive, or the medical staff to provide CPR." (Id. ¶ 74.)
Plaintiffs also allege: "[O]n June 9, 2005, Judge Karlton in the case of Coleman v. Schwarzenegger (Eastern District of California Case No. CI S-90-0520) issued an order requiring the CDCR to develop and implement a policy mandating that [CPR] be performed by correctional officers upon inmates." (FAC ¶ 60.) Plaintiffs allege Defendants were "on notice of the issues relevant to this case . . . as a result of the fact that [they] were named defendant[s] in the Coleman case . . . ." (Id. ¶ 9.) Plaintiffs allege Defendants' failure to promulgate these policies resulted in Robert's "long term suffering and ultimately death." (Id. ¶ 90.)
"A Rule 12(b)(6) motion tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To avoid dismissal, Plaintiffs must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). When considering a dismissal motion, all "allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party."
Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). However, this "tenet . . . is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements." Ashcroft ...