The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Presently before this court is a motion to dismiss ("MTD") filed by defendants County of Sacramento (the "County" or "SCMHTC"*fn1 ) and Dorian Kittrell ("Kittrell") (collectively, the "moving defendants"). (MTD, Dkt. No. 72.) Plaintiff Kathlyn Rhodes*fn2 opposed the motions with a written opposition and declaration. (Oppo., Dkt. Nos. 90, 95.) Moving defendants filed a written reply. (Reply, Dkt. No. 98.) The matter was submitted without oral argument pursuant to Eastern District Local Rule 230(g). (Dkt. No. 101.)
After plaintiff filed her second amended complaint (the "SAC"), three
sets of defendants filed motions to dismiss and partially strike it,
and those motions are now pending before the court.*fn3
The motions filed by other defendants are addressed in
separate orders. This order addresses only the motions filed by the
moving defendants: the County and Kittrell. (MTD, Dkt. No. 72.)
After careful consideration of the pleadings on file, the record, and the papers filed in support of and in opposition to these motions, and as discussed below, the undersigned recommends that the motion to dismiss be granted, and that the claims against moving defendants be dismissed with prejudice.
Plaintiff, a licensed attorney*fn4 appearing in pro se and in forma pauperis, filed this action on February 20, 2009. (Dkt. No. 1.) In general, plaintiff complains of violations of her rights based upon alleged events surrounding her arrest and subsequent treatment at a mental health facility. Following this court's screening of plaintiff's original complaint under 28 U.S.C. § 1915, she filed a first amended complaint on May 20, 2009. (Dkt. No. 4.) Several defendants, including the County and Kittrell, filed motions to dismiss that complaint. This court heard oral arguments on the motion to dismiss the first amended complaint on March 25, 2010. (Dkt. No. 60.) During that hearing, the undersigned warned plaintiff that, because she was a licensed member of the California Bar, she would not continue to receive the leniency typically given to pro se litigants. The undersigned directed plaintiff to very carefully review and amend her pleading to correct the various deficiencies noted in the motions to dismiss, including the need to plead factual allegations as against each defendant for each claim. The undersigned gave plaintiff the example of the defamation/slander claim, and informed her that to properly state such a claim, she must allege: the statement(s) made; by whom; and identify who heard those alleged statements. The undersigned also emphasized that some of the statute of limitations arguments made in the motions to dismiss appeared "well-taken," and cautioned plaintiff that while she would be permitted the opportunity to amend the apparently time-barred claims, she would be held to the standards of an attorney and might therefore face sanctions for continuing to pursue claims that are, in fact, time-barred. The undersigned warned plaintiff that, as a member of the California Bar, she would be expected to omit claims that were time-barred unless she could make good faith arguments to the contrary. Finally, the undersigned instructed plaintiff that with respect to any claims with a claim presentation requirement (i.e., claims requiring compliance with the Government Claims Act), plaintiff would need to plead the dates she presented her claim(s) and attach the notice or claim to her pleading. (Id.)
After the hearing on March 25, 2010, the court dismissed the first amended complaint and gave plaintiff leave to file her SAC. (Dkt. No. 61.) The court ordered plaintiff to craft her SAC so as to distinguish between each defendant and his or her alleged actions, to state non-conclusory factual bases for claims, and to specifically set forth the notice or claim provided to defendants for any claims requiring such notice or claim presentation. (Dkt. Nos. 60, 61 at 2-4.)
On April 27, 2010, plaintiff filed her SAC. (SAC, Dkt. No. 66.) Plaintiff's SAC sets forth fourteen separate claims for relief stemming from an allegedly improper search and arrest and subsequent confinement in a mental facility following her time as a guest at the Comfort Suites hotel in Rocklin, California. (Dkt. No. 66.) The SAC asserts claims against twenty-three separate defendants.*fn5
The SAC alleges that on November 20, 2007, three Rocklin police officers surrounded plaintiff in a public parking lot, performed a pat down of her body, interrogated her and ordered her to undergo a field sobriety test. (SAC ¶ 10.) Plaintiff alleges that this interaction occurred across the street from the Comfort Suites hotel in Rocklin, where she had rented Room 101. (Id.) Although plaintiff avers that she successfully complied with the police officers' requirements, she nonetheless was "forced to ride in the bank of Rocklin Police Officer Davis' patrol car from the parking lot to the front door of Comfort Suites," and that she was injured by officer Davis during this process. (Id.) Plaintiff alleges that defendants Platina, Collins and others prepared a false police report claiming that defendant Yao told Officer Platina that plaintiff had been "praying to a light" and singing in the hotel lobby and was "acting crazy." (Id. ¶ 21.)
Later that same night, plaintiff contends that Officer Platina and another officer returned to the Comfort Suites, told the hotel clerk, defendant Yao, to unlock plaintiff's room, and thereafter searched plaintiff's hotel room and her other belongings without a warrant or exigent circumstances. (Id. ¶ 11.) Plaintiff contends that the officers also broke into her car trunk to perform a search. (Id. ¶ 13.) Plaintiff then states that "Rocklin Police Officers Platina and/or Jantz, Davis and/or one or more 'Doe' Defendants 1-20 subsequently beat Plaintiff to the ground and rendered her unconscious, then transported Plaintiff in the back of Platina's patrol car to the Placer County Main Jail in Auburn during the night of November 20, 2007." (Id. ¶ 14.)
Plaintiff also alleges that "Platina sexually assaulted Plaintiff in the back seat of his police vehicle." (Id.) Plaintiff avers that she was assaulted and injured by a variety of persons including four entities, five individuals, and 80 unnamed Doe defendants with whom she came into contact on November 20 and 21, 2007. (Id. ¶ 16 ("Said Defendants refused to allow Plaintiff to make any telephone calls; refused to give Plaintiff food, water or medical treatment for her personal injuries inflicted by Defendants; interrogated Plaintiff against her consent; laughed at and ignored Plaintiff's multiple requests to call her boy friend [sic], a lawyer and/or a judge; told Plaintiff she was at Guantanamo Bay and that most of Plaintiff's family was dead; rendered Plaintiff unconscious and searched her body, stripped off Plaintiff's socks and two toe rings without her consent; and injected needles and foreign substances into Plaintiff's body without her consent.").
Plaintiff alleges that on the night of November 21, 2007, she was transported via ambulance from the Placer County Main Jail to the SCMHTC medical facility run by the County. (Id. ¶ 18.) Plaintiff alleges that upon her arrival at SCMHTC, she was "beat" in the parking lot by three Doe defendants employed by any of five separate entity defendants. (Id.)
Plaintiff alleges that she was involuntarily confined for eight days at the SCMHTC. (Id.) Plaintiff avers that "[a]s a proximate result of the police brutality, medical malpractice, torture and abuse by Platina, Jantz, Davis, Seipert, Hamilton, Bonner, CFMG, AMR, 'Doe' Defendants 1-80 and/or others, Plaintiff sustained severe personal and bodily injuries, including injuries to her head, neck, back, left nipple, both knees, left hip, right shoulder, both wrists, both legs and both feet." (Id. ¶ 22.)
Plaintiff alleges she sustained injuries during her stay at the County's SCMHTC medical facility-a facility for which Kittrell is alleged to be the "Director." (Id. ¶ 6.) Plaintiff alleges that SCMHTC "was and is a 'health care provider.'" (Id. ¶ 5.) Plaintiff alleges that SCMHTC employed (or had as its agents) various "Doe" Defendants numbered 61 through 80 (the "SCMHTC Does"). (Id. ¶¶ 5-6.)
Plaintiff alleges that during her time at SCMHTC she was "treated" by two physicians there: Dr. Fakhri and Dr. Jackson. (Id. ¶¶ 6, 85.) She alleges that Fakhri and Jackson "were and are physicians licensed to practice psychiatry" in California. (Id. ¶ 6.) Plaintiff alleges that Fakhri and Jackson did not properly advise her of the risks of ingesting medications called Seroquel and Lithobid. (Id. ¶ 6.)
Plaintiff alleges that Jackson "treated" her on or about November 25 through 28, 2007, and "prescribed" a medication, Seroquel, "without plaintiff's consent." (Id.) Plaintiff alleges that Jackson did not disclose Seroquel's "adverse side effects" to plaintiff, in violation of a duty of care. (Id.) Plaintiff also alleges that, during her time at SCMHTC, Fakhri "treated Plaintiff on or about November 25, 2007," and "changed the dosage of Seroquel and prescribed Lithobid (Lithium)," also without plaintiff's informed consent. (Id. ¶¶ 6, 54(b).) Plaintiff alleges that Fakhri and defendant Frank Patino (also employed by SCMHTC) (id. ¶ 4), among other SCMHTC Doe defendants, administered injections to her body against her will. (Id. ¶¶ 30(b), 54(b).) According to plaintiff, those actions amounted to harmful and offensive contact with her person and amounted to medical battery in that it "fell below the standard of care of medical care" required. (Id. ¶ 54.)
Plaintiff alleges that Fakhri, Jackson, Patino, Kittrell, and SCMHTC failed to advise her of the risks of ingesting the prescribed medications or that she had a right to refuse them, the right to contact a Patient's Rights Advocate, "and/or the right to a hearing within 72 hours after being admitted, pursuant to Welfare and Institutions Code Section 5150, to determine whether there were sufficient grounds to confine Plaintiff involuntarily. Such failures by said Defendants, as well as their refusal to allow Plaintiff to make telephone calls to lawyers[,] violated Plaintiff's rights as an involuntarily committed patient and also violated SCMHTC's own policies." (Id. ¶ 6.)
Similarly, plaintiff alleges that "as against SCMHTC, FAKHRI and PATINO," these defendants committed medical battery by
(i) not assessing Plaintiff's circumstances and holding no hearing within 72 hours to determine whether, in fact, Plaintiff was 'gravely disable[d]' as required by California Welfare & Institutions Code § 5150;
(ii) forcing Plaintiff to ingest Seroquel, Lithium, and other medications;
(iii) failing to explain the side effects of the medications;
(iv) failing to obtain informed consent;
(v) failing to follow SCMHTC's own policy to provide patient records within thirty (30) days.
In her first claim for relief (for "violation of federal civil and constitutional rights"), plaintiff alleges that "violations of her civil and constitutional rights were caused by implementation of customs, policies, and/or official acts of" multiple defendants: Placer County, City of Rocklin, CFMG, AMR, "and/or" SCMHTC, and that those customs, policies, and/or official acts include but are "not limited to" the following:
(a) failure to train or supervise the other named and/or "DOE" Defendants;
(b) ratifying the illegal conduct of themselves, each other, and the other named and "DOE" defendants; and
(c) acting or failing to act pursuant to one or more interrelated de facto policies, practices, and/or customs of Defendants CITY OF ROCKLIN and its Police Department, PLACER COUNTY, PLACER COUNTY SHERIFF EDWARD N. BONNER, CFMG, AMR, and/or SCMHTC and/or their regulating Boards. (Id. ¶ 27.) The paragraph goes on to allege a laundry list of various "policies, practices, and customs" specifically ascribed to a list of several defendants: the City of Rocklin, Placer County, CFMG, AMR, and Doe defendants, but not SCMHTC and Kittrell. (Id. (specifically, SAC p.14, lns. 13-25).)
Plaintiff also alleges that Kittrell and SCMHTC had a duty to supervise Patino, Jackson, and Fakhri (id. ¶ 55-56), and that they "failed to exercise reasonable care in not supervising the medical providers who inflicted medical batteries on Plaintiff's body without Plaintiff's consent, causing Plaintiff to suffer personal injuries and severe emotional distress." (Id. ¶¶ 56-57.) Plaintiff repeats these "duty to supervise" and "failure to supervise" allegations for other state law tort claims without adding any further supporting factual allegations, appearing to base the claims upon the limited factual allegations described above (i.e, unwanted injections; lack of a hearing to determine whether plaintiff was "gravely disabled"). (E.g., id. ¶¶ 62-63, 65 (IIED claim); ¶¶ 74-75 (false imprisonment claim); ¶¶ 85-88 (medical malpractice); ¶¶ 91-94 (negligence per se from failure to hold a "gravely disabled" hearing).)
In her second claim for relief ("violations of California Constitution and Statutes") plaintiff alleges that all defendants "acted together and in concert and entered into an agreement among themselves to violate Plaintiff's rights . . . ." (Id. ¶ 30.) The SAC names SCMHTC and Kittrell in lengthy lists of defendants appearing after successive lists of statutes. (Id. ¶ 30(a)-(c).) There are no factual allegations clearly tied to these lists of multiple defendants and lists of allegedly-violated statutes.
As to her numerous state law tort claims, plaintiff conclusorily alleges that she "timely filed claims" against SCMHTC and Kittrell. (Id. ¶ 23.) According to the SAC, "[a]ttached as Exhibit "4" are true and correct copies of the medical malpractice claims by Plaintiff against SCMHTC and Kittrell, including the certified mail receipt." (Id.) Plaintiff also conclusorily alleges that she "timely served notices of her intent to commence litigation for medical malpractice against the medical Defendants named in this Claim for Relief, thereby extending the statute of limitations pursuant to California Code of Civil Procedure § 364." (Id. ¶ 89 (naming SCMHTC and Kittrell, among other ...