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Nancy Schwarz, On Behalf of Herself Individually As the Mother of Michael Parker, Deceased, and As v. Lassen County Ex Rel. the Lassen County Jail

August 1, 2011

NANCY SCHWARZ, ON BEHALF OF HERSELF INDIVIDUALLY AS THE MOTHER OF MICHAEL PARKER, DECEASED, AND AS REPRESENTATIVE AND ADMINISTRATOR OF MICHAEL PARKER'S ESTATE, PLAINTIFF,
v.
LASSEN COUNTY EX REL. THE LASSEN COUNTY JAIL (DETENTION FACILITY), ET AL., DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Plaintiff Nancy Schwarz brings this action on her own behalf and on behalf of her deceased son's estate (referred to in both capacities hereafter as "Plaintiff"). Plaintiff filed her original Complaint on November 9, 2010, and amended her pleading without leave of the Court on December 13, 2010.

The Court subsequently dismissed Plaintiff's First Amended Complaint for lack of jurisdiction because Plaintiff failed to comply with California Code of Civil Procedure § 377.32 by filing either a death certificate or an affidavit swearing she was entitled to act as her son's successor in interest. Plaintiff has since complied with the requirements of the California Civil Code and has filed the operative Second Amended Complaint ("SAC") alleging causes action arising under 42 U.S.C. § 1983 and various state laws against Lassen County ex rel. the Lassen County Jail ("Lassen County" or "the County of Lassen"), Steven W. Warren, the Sheriff of Lassen County, unknown guards and an unknown deputy sheriff, the City of Susanville, Officer Ed Vega and unknown Susanville police officers. Presently before the Court is a Motion to Dismiss filed by Defendants Lassen County and Sheriff Warren and joined by Defendants City of Susanville and Officer Ed Vega.*fn1

BACKGROUND*fn2

Lassen County is responsible for overseeing the operations of the Lassen County Adult Detention Facility ("Facility"). Sheriff Warren oversees the Facility, and the Lassen County sheriff is generally responsible for managing and setting policy for the actions of Facility staff and contracted medical staff.

Plaintiff's son, Michael Parker ("Parker"), was born with medical conditions requiring a special diet (diverticulitis and a congenital heart condition). At the beginning of July 2009, Parker was arrested for, among other things, stalking his ex-girlfriend, who lived in a trailer belonging to Parker and Plaintiff. Bond for Parker's release was set at $3,750.

Later that month, Parker was arrested for violating a temporary restraining order obtained by that same ex-girlfriend. An officer who asserted he had a long-standing association with Parker reported to the court that Parker had been involved in prior incidents of prowling, rock throwing, stalking and TRO violations. Bond for Parker's subsequent release was set at $75,000.

A few days later, while still jailed, Parker requested to see a doctor. Instead, he was seen by a physician's assistant and was advised he had the stomach flu. Parker was seen twice more by that physician's assistant over the following two weeks. On August 6, 2009, a doctor working under contract with the jail ordered an x-ray, through which it was discovered Parker had an infected colon. The following day, Parker was bailed from jail and underwent emergency surgery that included insertion of a drain tube into his colon. Approximately one week later, Parker was released from the hospital into his mother's care.

The following week, Dr. Hal Meadows, who was coincidentally Parker's physician as well as a contract physician with the Facility, removed Parker's drain tube in his office. The following month, Dr. Meadows drafted a letter stating that Parker should not be subject to incarceration due to the severity of his medical condition and instead should serve any sentence under house arrest.

Later that same month, Parker accompanied his mother to a bank. When Plaintiff exited the bank, she found approximately six Susanville Police Department police cars surrounding Parker, who had remained in her truck. The Police Department advised Plaintiff that her son had driven by his ex-girlfriend's residence that morning in that vehicle. Plaintiff argued that she had been in sole possession of the truck prior to Parker joining her at 11:00 a.m. that morning. She also stated that her son would die if incarcerated. Two officers stated they would not arrest Parker, but Officer Vega proceeded to effectuate the arrest. Officers took Parker to the Facility despite being advised of the above letter from Dr. Meadows.

Plaintiff made plans to post bail for Parker once again. The $150,000 bond set, however, was above the bondable limit of the bail bond available to Plaintiff, and she was unable to bail Parker out of jail.

On October 7, 2009, Plaintiff visited her son at the Facility and saw that Parker had lost over 40 pounds. When Plaintiff questioned her son as to why he had not seen a doctor, Parker replied that Facility staff had told him to "quit complaining and make the best of it."

On October 22, 2009, Parker, who was suffering intensely and whose health was failing, was released from the Facility and transferred to Renown Hospital in Reno, Nevada. Parker died on November 5, 2009.

Based on the above facts, Plaintiff seeks relief pursuant to the following causes of action: 1) 42 U.S.C. § 1983, cruel and unusual punishment, deliberate indifference to serious medical needs; 2) 42 U.S.C. § 1983, deprivation of basic necessities of life; 3) 42 U.S.C. § 1983, deprivation of life without due process; 4) 42 U.S.C. § 1983, maliciously subjecting Plaintiff to pain (against City of Susanville and County of Lassen); 5) failure to summon medical care for inmate in violation of California Government Code § 845.6 (against Lassen County); 6) failure to discharge mandatory duty under California Government Code § 815.6; 7) reckless or malicious neglect of a dependent adult under California Welfare and Institutions Code § 15687 (against Lassen County); 8) negligent infliction of emotional distress ("NIED") on behalf of the estate; 9) intentional infliction of emotional distress ("IIED") on behalf of the estate; 10) violation of California Civil Code § 52.1; 11) 42 U.S.C. § 1983, due process - deprivation of familial relationships; 12) NIED on behalf of Ms. Schwarz; and 13) IIED on behalf of Ms. Schwarz. Plaintiff also seeks, among other things, punitive damages. Defendants move to dismiss Plaintiff's SAC, in part, as discussed in greater detail below.

STANDARD

On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6),*fn3 all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the [...] claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. However, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."

Id. (internal citations and quotations omitted). A court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (quoting Twombly, 550 U.S. at 555). "Factual allegations must be enough to raise a right to relief above the speculative level."

Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must contain something more than "a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.")).

Furthermore, "Rule 8(a)(2)...requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n.3 (internal citations and quotations omitted). Thus, "[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Id. (citing 5 Charles Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. If the "plaintiffs... have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Id. However, "[a] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. Leave to amend should be "freely given" where there is no "undue delay, bad faith or dilatory motive on the part of the movant,...undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment...."

Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to be considered when deciding whether to grant leave to amend). Not all of these factors merit equal weight. Rather, "the consideration of prejudice to the opposing party...carries the greatest weight." Eminence Capital, 316 F3d at 1052 (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987). Dismissal without leave to amend is proper only if it is clear that "the complaint could not be saved by any amendment." Intri-Plex Techs. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (internal citations and quotations omitted).

ANALYSIS

A. Plaintiff's claims against ...


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