The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
Order Granting in Part and Denying in Part Motion to Dismiss Plaintiff's Third COUNTY OF SAN DIEGO; STATE OF Amended Complaint; Granting CALIFORNIA; UCSD HOSPITAL; Defendants Regents of University of ALVARADO HOSPITAL; and DOES 1 to California and Alvarado Hospital's 25 Motions to Dismiss Defendants.
Plaintiff Gene Patterson, by and through counsel, has filed a Third Amended Complaint ("TAC") alleging Defendants County of San Diego, State of California, Regents of the University of California (erroneously sued as UCSD Hospital), Alvarado Hospital, and numerous individual defendants, violated his constitutional rights while he was incarcerated at the George Bailey County jail ("Bailey") and Richard J. Donovan Correctional Facility ("Donovan"). Defendant, County of San Diego ("County"), and Defendant Alvarado Hospital, move the Court under Fed. R. Civ. P. 12(b)(6) to dismiss Plaintiff's TAC for failure to state a claim. Defendant Regents moves to dismiss the TAC pursuant to Fed. R. Civ. P. 4(d), 12(b)(5), and 12(b)(6), for insufficient service of process and also for failure to state a claim.
Plaintiff filed an untimely opposition, making it necessary for the Court to vacate the January 3, 2011 hearing in order to allow Defendants' an opportunity to reply.*fn1 Defendants Alvarado Hospital and Regents have filed reply briefs. Upon review, the Court finds the motions appropriate for submission on the papers and without oral argument. For the reasons explained herein, the Alvarado Hospital and Regents motions are GRANTED. The County's motion is GRANTED IN PART AND DENIED IN PART.
Plaintiff filed his initial complaint on October 16, 2009. Although the caption stated Plaintiff was seeking damages under 42 U.S.C. §§ 1981, 1983, and 1985, the body of Plaintiff's complaint contained only claims for general negligence, premises liability, and intentional tort. [Doc. No. 1.] The County of San Diego, the Regents, and Alvarado Hospital moved to dismiss the complaint, arguing Plaintiff failed to allege a violation of his constitutional rights. [Doc. Nos. 4, 12, and 13 .] The Regents also moved to dismiss alleging improper service of process. The Court granted the Defendants' motions, finding Plaintiff failed to allege any violation of the constitution or of federal law which could form the basis of liability against any of the Defendants. [Doc. No.31.] The Court granted Plaintiff leave to file an amended complaint.
Plaintiff filed his second amended complaint on August 10, 2010.*fn2 Plaintiff again asserted claims under 42 U.S.C. §§ 1981, 1983, 1985, and the Civil Rights Act of 1871. [SAC, Doc. No. 32, ¶¶ 25, 26, 27, and 28.] Plaintiff also alleged violation of the Civil Rights Act of 1964 and the Handicap Accommodations Act, and asserted claims for negligence and premises liability. [Id.,¶ 28, 30 and 31.] Finally, Plaintiff alleged Defendants violated California Government Code § 845.6 by failing to provide necessary medical care. [Id., ¶ 24.]
Defendant County of San Diego moved to dismiss the SAC*fn3
under Fed. R. Civ. P. 8 and 12(b)(6). By order filed October
8, 2010, the Court granted the County's motion, finding
(a) Plaintiff failed to state an underlying constitutional violation
supporting his claim under 42 U.S.C. § 1983, (b) plaintiff failed to
allege any action was taken against him based upon his race or that
there was a conspiracy against him based upon racial animus so as to
state claims under 42 U.S.C. § 1981 and 1985, and (c) plaintiff failed
to allege any particular facts supporting his negligence claims under
Cal. Gov't Code § 845.6. [Doc. No. 38.] The Court also sua sponte
dismissed Plaintiff's claims against the individual defendants. The
Court granted Plaintiff leave to file a Third Amended
Plaintiff filed his Third Amended Complaint on November 3, 2010. The TAC once again alleges claims under 42 U.S.C. §§ 1981, 1983, and 1985, as well as Cal. Gov't. Code § 845.6. Plaintiff alleges that he notified jail employees that because of his height (5'6"), he could not readily get in and out of his assigned upper bunk. [TAC, ¶ 19.] Plaintiff fell from his bunk bed once, after which his physicians expressly recommended he be provided a lower bunk for his safety and to avoid another fall. [TAC, ¶ 22.] Defendants failed and refused to assign Plaintiff to a lower bunk, although numerous unused bed were available. [TAC, ¶ 23.] As a result of the County's failure to assign Plaintiff to a lower bunk, Plaintiff suffered a second fall. [TAC, ¶ 24.] Plaintiff alleges his First Amendment rights were chilled by Defendants' "adverse and indifferent actions taken against him by the jail officials ... in that he ceased requesting a change of bunk bed assignment ...." [TAC, ¶ 26.] Because of the construction of the jail facility, and because the top bunk was as high as seven feet or more from the hard cement floor, plaintiff alleges Defendants should have known a fall would cause serous bodily injury and perhaps even death. [TAC, ¶ 29.] As a result of the second fall, Plaintiff received very serious injuries, including the loss of many teeth and a serious arm injury requiring significant skin grafting. [TAC, ¶¶ 32-33.]
Despite his outcry for help following his second fall, and his obvious need for medical assistance, Plaintiff alleges the floor deputies failed and refused to respond or answer his cries for 20-30 minutes or more, resulting in significant further injury and pain. [TAC, ¶ 39.] Plaintiff alleges he was thereafter provided faulty medical services, including that surgical items were left in his body resulting in infections and further injury. [TAC, ¶ 44.] Plaintiff was placed in isolation, deprived of regular visits by physicians and nurses and cleaning crews, resulting in exceptional pain without medication. [Id.]
Plaintiff alleges Defendants [E]nforced, maintained and employed the aforementioned deprivation of plaintiff's rights by adopting on employing rules, regulations, customs, habits, procedures and policies which required under funding of jail and medical staff to meet their budgets, failures to comply with court ordered case law to maintain a jail population in which adequate services could be provided to plaintiff and other prisoners, especially healthcare provision, and by placing an injured plaintiff in an isolated maintenance tank as here with plaintiff, who is a black man, while making available to white inmates a general population medical facility available to all regardless of race. [TAC, ¶ 45.] Because of Defendants' custom and policy to underfund the jail, Plaintiff alleges there is a policy and procedure within the George Bailey jail facility to refuse prisoners including Plaintiff any ladder or hoist system to get up into the top bunk. [TAC, ¶ 52.] As in his earlier complaints, Plaintiff does not allege any particular individual participated in any particular act or omission.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim" Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Because Rule 12(b)(6) focuses on the "sufficiency" of a claim rather than the claim's substantive merits, "a court may [typically] look only at the face of the complaint to decide a motion to dismiss." Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002).
Where a defendant moves to dismiss under Rule 12(b)(6), such motion should be granted if plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [citation omitted]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. ----, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556, 570). Thus, "[w]hile legal conclusions can provide the framework of a compliant, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then decide whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at __, 129 S.Ct. at 1950.
Where a defendant challenges the method of service of process under Fed. R. Civ. P. 12(b)(5), plaintiff bears the burden of establishing service was valid under Rule 4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004) (citing Butcher's Union Local No. 498 v. SDC Investment, Inc., 788 F.2d 535, 538 (9th Cir. 1986)). Where factual issues are presented on a motion under Rule 12(b)(5), the court may hear evidence and determine the facts. Old Republic Ins. Co. v. Pacific Financial Svcs., 301 F.3d 54, 57 (2d Cir. 2002).
1. Claims Against County of San Diego
The County of San Diego moves to dismiss the TAC, arguing Plaintiff fails to state a claim for relief for violation of his constitutional rights or under the California Government Code. Upon review, the Court concludes Plaintiff's TAC has cured several of the deficiencies noted with regard to the SAC.
Plaintiff's TAC alleges claims against the County under 42 U.S.C. § 1983 for violation of his rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments of the Constitution. [TAC, ¶ 26.] The County moves to dismiss arguing Plaintiff has failed to demonstrate an underlying constitutional violation and has failed to show a County policy or practice.
A prisoner may state a claim of retaliation in violation of the First Amendment by showing the following five elements:
(1) An assertion that a state actor took some adverse action against an inmate, (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.
Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005) (citing Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000)). The TAC fails to allege Plaintiff engaged in any protected conduct, such as the filing of a grievance, or that the conduct of jail officials chilled his exercise of First Amendment rights. Plaintiff alleges only that he was told by jail officials that his complaints regarding bunk assignment were becoming a nuisance, and that as a result he stopped talking to fellow inmates regarding the situation. [TAC, ¶ 23, 26.] These allegations are insufficient to state a claim under the First Amendment.
ii. Fourth, Fifth and Fourteenth Amendments
Plaintiff cites to the Fourth, Fifth, and Fourteenth Amendments in his TAC [TAC, ¶ 26,42], and argues his rights to due process ...