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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


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


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


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.


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).


A. Plaintiff's claims against Sheriff Warren.

1. against Sheriff Warren are duplicative of her Plaintiff's § 1983 official capacity claims claims against Lassen County.

Sheriff Warren argues that Plaintiff's § 1983 claims against him in his official capacity are duplicative of Plaintiff's identical claims against Lassen County. Kentucky v. Graham, 473 U.S. 159, 166 (1985) ("[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity."). The Sheriff is correct.

"There is no longer a need to bring official-capacity actions against local government officials, for...local government units can be sued directly for damages and injunctive or declaratory relief." Id. at 167 n.14.

Accordingly, "[w]hen both a municipal officer and a local government entity are named, and the officer is named only in an official capacity, the court may dismiss the officer as a redundant defendant." Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dept., 533 F.3d 780, 799 (9th Cir. 2008); see also Megargee v. Wittman, 550 F. Supp. 2d 1190, 1206 (E.D. Cal. 2008) ("'For this reason, when both an officer and the local government entity are named in a lawsuit and the officer is named in official capacity only, the officer is a redundant defendant and may be dismissed.'") (quoting Luke v. Abbott, 954 F. Supp. 202, 203 (C.D. Cal. 1997)). Plaintiff does not attempt to oppose this argument and instead focuses on Sheriff Warren's liability in his personal capacity. Accordingly, Plaintiff's § 1983 claims against Sheriff Warren in his official capacity are dismissed with leave to amend.

2. against Sheriff Warren in his individual capacity. Plaintiff has failed to plead § 1983 claims

Sheriff Warren also moves to dismiss Plaintiff's § 1983 claims against him in his individual capacity. Individual capacity suits "seek to impose individual liability upon a government officer for actions taken under color of state law." Hafer v. Melo, 502 U.S. 21, 25 (1991). Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. Iqbal, 129 S. Ct. at 1948. Rather, each government official may only be held liable for his own misconduct.

Bowell v. Cal. Substance Abuse Treatment Facility, No. 1:10-CV-02336-AWI-DLB PC, 2011 WL 2224817, at *4 (E.D. Cal. June 7, 2011).

However, government officials acting as supervisors may be liable under § 1983 under certain circumstances. A defendant may be held liable as a supervisor under § 1983 if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). Thus, § 1983 actions against supervisors are proper as long as a sufficient causal connection exists and the plaintiff was deprived under color of law of a federally secured right. Starr v. Baca, ___ F.3d ____, 2011 WL 2988827, *4 (9th Cir. 2011) (quoting Redman v. Cnty. of San Diego, 942 F.2d 1435, 1447 (9th Cir. 1991)).

The requisite causal connection between a supervisor's wrongful conduct and the violation of the prisoner's constitutional rights can be established in a number of ways. The plaintiff may show that the supervisor set in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which the supervisor knew or reasonably should have known would cause others to inflict a constitutional injury. Starr, 2011 WL 2988827, *5; Dubner v. City of S.F., 266 F.3d 959, 968 (9th Cir. 2001). Similarly, a supervisor's own culpable action or inaction in the training, supervision, or control of his subordinates may establish supervisory liability. Id.

Likewise, a supervisor's acquiescence in the alleged constitutional deprivation, or conduct showing deliberate indifference toward the possibility that deficient performance of the task may violate the rights of others, may establish the requisite causal connection. Id.; Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005). Finally, a sufficient causal connection "may be shown by evidence that the supervisor 'implement[ed] a policy so deficient that the policy 'itself is a repudiation of constitutional rights....'" Wesley v. Davis, 333 F. Supp. 2d 888, 892 (quoting Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987)); Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989).

The only allegation Plaintiff makes that is at all specific to Sheriff Warren is that he "oversees the Adult Detention Facility." SAC, ¶ 6. Plaintiff also alleges generally that the sheriff of Lassen County "has responsibility to manage and set policy for the actions of the staff at the Detention Facility and the actions of the contracted medical staff." Id., ¶ 5. While Plaintiff makes numerous arguments in her opposition as to why the Sheriff must have known about her son's condition and must have known that he was being denied medical care, she makes no allegation in her SAC that Sheriff Warren was on notice of or had actual knowledge of the same, nor does she make any allegations that the Sheriff had any personal involvement with Plaintiff's care while he was housed in the Facility. In addition, Plaintiff does not allege that Sheriff Warren himself enacted or enforced any constitutionally deficient policies. To the contrary, Plaintiff's only policy-related allegations are specifically directed at the County of Lassen and the City of Susanville.

Accordingly, Plaintiff has failed to plead any § 1983 claims against Sheriff Warren in his individual capacity, and the Sheriff's Motion is granted as to these claims with leave to amend.

3. causes of action against Sheriff Warren. Plaintiff failed to adequately plead any state law

Plaintiff's state law causes of action against Sheriff Warren likewise fail because she has alleged no facts indicating the Sheriff personally participated in any violations of Parker's rights, or that he had any knowledge that would have rendered him responsible for violations inflicted by other individuals. Moreover, Plaintiff failed to raise any arguments in opposition to Sheriff Warren's Motion as to these claims. Accordingly, all state law causes of action against Sheriff Warren are dismissed with leave to amend.

B. City of Susanville and Officer Vega (hereafter Plaintiff's claims against the County of Lassen, the collectively "Defendants").

1. dismissed as to the City of Susanville and Officer Plaintiff's first and second causes of action are Vega and dismissed in part as to Lassen County.

The City of Susanville and Officer Vega move to dismiss Plaintiff's first and second causes of action alleging violations of § 1983 based on a deliberate indifference to serious medical needs and deprivation of the basic necessities of life because the facts alleged against those Defendants are insufficient to state a claim.

Joinder of City of Susanville and Officer Vega in Motion to Dismiss ("Joinder"), 5:6-9. As those Defendants point out, "[a]ll that is alleged against Officer Vega is that he arrested the decedent and took him into custody and all that is alleged against the City of Susanville is that they employed and improperly trained and supervised Officer Vega." Id., 5;4-6. Both the complaint and the opposition are devoid of facts or argument demonstrating how these allegations are sufficient to allege claims for the denial of medical care. Accordingly, both the first and second causes of action are dismissed as to the City of Susanville and Officer Vega.

For its part, Lassen County moves to dismiss the above causes of action because they are explicitly premised on cruel and unusual punishment allegedly inflicted on Parker pursuant to the Eighth Amendment, which protects individuals that have been convicted and sentenced. See Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). To the extent Plaintiff intended to plead Eighth Amendment post-conviction claims, those claims are dismissed with leave to amend because Plaintiff has not yet pled any facts indicating Parker was being held pursuant to a conviction rather than an arrest. To the extent these causes of action seek to recover for injuries Parker sustained while incarcerated as a pre-trial detainee, however, they survive the instant Motion despite Plaintiff's failure to point to the exact constitutional section under which the claims arise because the County does not challenge the factual underpinnings of the claims themselves and instead attacks only Plaintiff's misidentification of the proper constitutional amendment.

See Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2009) ("A complaint need not identify the statutory or constitutional source of the claim raised in order to survive a motion to dismiss."). Accordingly, the County of Lassen's Motion is granted with leave to amend as to the first and second causes of action only as to Plaintiff's post-conviction theory, but not as to any claims based on Parker's status as a pre-trial detainee.

Lassen County also seeks to dismiss Plaintiff's first cause of action insofar as it is based on the County's failure to train, supervise and/or discipline personnel. "[A] municipality's failure to train its employees may create § 1983 liability where the 'failure to train amounts to deliberate indifference to the rights of persons with whom the [employees] come into contact.'" Young v. City of Visalia, 687 F. Supp. 2d 1141, 1148 (E.D. Cal. 2009) (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)). "A plaintiff alleging a failure to train claim must show: (1) he was deprived of a constitutional right, (2) the municipality had a training policy that amounts to deliberate indifference to the [constitutional] rights of the persons' with whom [its police officers] are likely to come into contact; and (3) his constitutional injury would have been avoided had the municipality properly trained those officers." Id. (internal citations and quotations omitted). "Only where a municipality's failure to train its employees in a relevant respect evidences a 'deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a city 'policy or custom' that is actionable under § 1983.'" City of Canton, 489 U.S. at 389.

The SAC contains insufficient facts to plausibly support the validity of a failure to train claim here. Plaintiff's most specific allegation is that "despite actual knowledge of the inadequacy of its health services including numerous complaints of pain and suffering by other inmates, Defendants failed to sufficiently train and discipline their staff to provide reasonable and adequate response to medical needs." SAC, ¶ 79. Plaintiff does not, however, identify any Defendants' actual training and hiring practices or articulate how the challenged practices are deficient. See Young, 687 F. Supp. 2d at 1150; Rodriguez v. City of Modesto, 2010 WL 4880748, *11 (E.D. Cal.). Accordingly, Plaintiff's first cause of action is dismissed with leave to amend as to the County of Lassen on this basis as well.

2. dismissed with leave to amend as to the City of Plaintiff's third and fourth causes of action are Susanville and Officer Vega.

The City of Susanville and Officer Vega assert in passing that Plaintiff's third and fourth causes of action against them should be dismissed for failure to state a claim. Joinder, 5:7-13. In her third cause of action, Plaintiff alleges that Defendants "allow[ed] [Parker] to degenerate, suffer and die instead of adopting simple life saving measures and procedures." SAC, ¶ 64. Plaintiff thus contends that Parker was deprived of "his health, strength and activity and ultimately his life, without due process of law." Id. In her fourth cause of action, Plaintiff likewise alleges violations of Parker's constitutional rights arising solely out of his incarceration at the Facility.

This latter cause of action is premised on the theory that, while incarcerated: 1) "Defendants abandoned [Parker] and ignored his complaints and calls for help"; 2) Parker was visible to inmates and Facility personnel; and 3) "Defendants' actions and omissions...were excessive, vindictive, harassing and wholly unrelated to institutional security or any other legitimate penalogical objective." Id., ¶¶ 66-68. According to Plaintiff, "[r]easonable and readily available alternatives existed to protect [Parker's] privacy and dignity, including but not limited to transferring him to the Renown Medical Center immediately or allowing him to stay on house arrest and have the liberty to take himself to Renown Medical Center where he would be cared for and attended to properly." Id., ¶ 68.

None of these allegations indicate that either claim is premised on the arrest allegedly effectuated by Officer Vega, and the claims as pled instead arise solely from the other Defendants' post-arrest conduct. Moreover, Plaintiff raises no argument in opposition to these Defendants' challenges to the third and fourth causes of action. Accordingly, in light of the insufficiency of Plaintiff's allegations and her failure to effectively oppose Defendants' Motion, the third and fourth causes of action are dismissed with leave to amend as to the City of Susanville and Officer Vega.

3. Plaintiff's seventh cause of action is dismissed with leave to amend as to Lassen County.*fn4

In Plaintiff's seventh cause of action, she alleges that Lassen County violated California Welfare and Institutions Code § 15657, which prohibits the reckless or malicious neglect of a dependent adult. A "dependant adult" is "any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age." Cal. Welf. & Inst. Code § 15610.23. Plaintiff's pleading is wholly insufficient to support a finding that Parker was a dependent adult within the meaning of § 15610.23. See Cabral v. County of Glenn, 624 F. Supp. 2d 1184, 1195 (E.D. Cal. 2009). Plaintiff alleges Parker suffered from physical disorders and congenital defects and that he was in need of and receiving medical care, but Plaintiff does not allege that Parker, for example, needed any assistance with "activities of daily living" or was otherwise restricted in his ability to protect his rights. See id. at 1194-95 (internal citations and quotations omitted). Plaintiff's allegations are simply insufficient to establish that Parker was a dependent adult as that term is used in the Welfare and Institutions Code.

Accordingly, Lassen County's Motion to Dismiss Plaintiff's seventh cause of action is granted with leave to amend.

4. with leave to amend as to all Defendants. Plaintiff's tenth cause of action is dismissed

All Defendants seek dismissal of Plaintiff's tenth cause of action, which arises under California Civil Code § 52.1. Defendants argue that Plaintiff failed to allege sufficient facts constituting threats, intimidation or coercion. According to Plaintiff's SAC, "The civil rights violations reiterated and alleged [in the SAC] were accompanied by threats, intimidation or coercion on the part of Defendants, by arrest, threatening further punishment if complaints were made by Michael Parker and threats to the Plaintiff if she complained about the treatment of Michael Parker." SAC, ¶ 98. Plaintiff does not elaborate as to precisely what "further punishment" was threatened by Defendants or what "threats" were made directly to Plaintiff.

Under the Civil Code, "[a]ny individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with" "by threats, intimidation, or coercion" may bring a private action for damages. Cal. Civ. Code § 52.1(a)-(b).

Without citing to any authority other than § 52.1, Plaintiff takes the position her allegations are sufficient here because Parker's bond was set purposefully high, which intimidated Parker by forcing his incarceration, and that Parker was threatened when jail staff responded to his medical complaints by telling him to "quit complaining and make the best of it." Opposition, 8:14-23 (citing SAC, ¶¶ 30, 35, 38). Plaintiff's arguments fail.

"A claim under [Section 52.1(b)] requires a showing of 'an attempted or completed act of interference with a legal right, accompanied by a form of coercion.'" Martin v. County of San Diego, 650 F. Supp. 2d 1094, 1108 (S.D. Cal. 2009) (quoting Jones v. Kmart Corp., 17 Cal. 4th 329, 334 (1998)). "The test is whether a reasonable person, standing in the shoes of the plaintiff, would have been intimidated by the actions of the defendants and have perceived a threat of violence. Richardson v. City of Antioch, 722 F. Supp. 2d 1133, 1147 (N.D. Cal. 2010). "Speech alone is not sufficient to support an action [under 52.1(b)], except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat." Cal. Civ. Code § 52.1(j).

In this case, the setting of a bond, without more, cannot be viewed as intimidation or coercion, nor does a passing comment, though insensitive, that Parker should learn to "make the best of it" rise to the level of a threat.*fn5 Failure to timely respond to requests, grievances and appeals are not "threats, intimidation, or coercion" under § 52.1 either. Brook v. Carey, 352 Fed. Appx. 184, 185 (9th Cir. 2009). Plaintiff's tenth cause of action is consequently dismissed with leave to amend.

5. Plaintiff's eighth, ninth, twelfth and thirteenth causes of action are dismissed with leave to amend as to all Defendants.

Defendants also move to dismiss Plaintiff's causes of action for NIED and IIED. The entity Defendants argue that under California law these common law claims cannot stand against public entities. ///

In California, "[e]xcept as otherwise provided by statute...[a] public entity is not liable for any injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." Cal. Gov. Code § 815(a). The Legislative Committee Comment to § 815 states, "This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation. In the absence of a constitutional requirement, public entities may be held liable only if a found declaring them to be liable." Accordingly, "the exclusive basis of public entity tort liability is statutory." Tolan v. State of California ex rel. Dept. of Transportation, 100 Cal. App. 3d 980, 986 (1979). Plaintiff raises no argument in opposition to the entity Defendants' Motions to Dismiss her NIED and IIED claims, which are thus dismissed with leave to amend.*fn6

Officer Vega moves to dismiss these claims as well arguing Plaintiff failed to allege sufficient facts against him. "The elements of a prima facie case for the tort of intentional infliction of emotional distress are:

(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Cervantez v. J.C. Penney Co., 24 Cal. 3d 579, 593 (1979). "Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." Id.

For its part, "[a] claim of negligent infliction of emotional distress is not an independent tort but the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply." Wong v. Tai Jing, 189 Cal. App. 4th 1354, 1377 (2010). "[T]o recover damages for emotional distress on a claim of negligence where there is no accompanying personal, physical injury, the plaintiff must show that the emotional distress was 'serious.'" Id. "Serious emotional distress" is functionally the same as "severe emotional distress." Id. at 1378. Otherwise, "it is well-settled that 'in ordinary negligence actions for physical injury, recovery for emotional distress caused by that injury is available as an item of parasitic damages.'" Summers v. Delta Airlines, Inc., 2011 WL 1299360, *10 (N.D. Cal.) (quoting Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1004 (1993)).

Plaintiff makes only conclusory allegations in support of her emotional distress claims and makes no factual allegations as to how Officer Vega, who simply arrested Parker, engaged in any conduct capable of supporting her tort causes of action.

In addition, in opposition to Defendants' Motion, Plaintiff argues only that she does not yet have access to Parker's medical records and thus could not properly plead sufficient facts here. Plaintiff fails to explain why Parker's medical records are necessary to pleading her own emotional distress claims or how her own interactions with Parker were insufficient to enable her to adequately plead claims on his behalf. Accordingly, Plaintiff's NIED and IIED causes of action are dismissed as to Officer Vega with leave to amend.

6. Plaintiff's request for punitive damages is amend. dismissed as to all Defendants with leave to

Defendants' move to dismiss Plaintiff's request for punitive damages in its entirety. Defendants' arguments are well-taken as to the entity Defendants because they are immune from punitive damages liability as matter of law. Cal. Gov. Code § 818 ("Notwithstanding any other provision of law, a public entity is not liable for damages awarded under § 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant."); Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) ("[A] municipality is immune from punitive damages under 42 U.S.C. § 1983.").

Individual Defendants, however, may be liable for punitive damages pursuant to the § 1983 claims when their "conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others."

Smith v. Wade, 461 U.S. 30, 56 (1983). Likewise, "[u]nder California law, punitive damages are appropriate where a plaintiff establishes by clear and convincing evidence that the defendant is guilty of (1) fraud, (2) oppression or (3) malice...[A] plaintiff may not recover punitive damages unless the defendant acted with intent or engaged in 'despicable conduct.'" In re First Alliance Mortg. Co., 471 F.3d 977 (9th Cir. 2006) (citing Cal. Civ. Code § 3294(a), (c)) (emphasis omitted). Plaintiff's allegations against Officer Vega, are extraordinarily conclusory and do not, at this point, include any factual assertions supporting a conclusion that he acted with evil motive or in a despicable manner. The closest allegation that might even potentially go to "reckless indifference" is that Officer Vega allegedly knew of Parker's medical condition, but proceeded to arrest him anyway. Plaintiff does not otherwise suggest, however, that the arrest was improper or that it was supported by a lack of probable cause. Accordingly, as pled, Plaintiff's allegations are insufficient to justify a punitive damages claim against Officer Vega. Plaintiff's punitive damages claims are thus dismissed with leave to amend.


For the reasons just stated, Defendants' Motions are granted in part and denied in part, consistent with the foregoing, as follows:

1. Defendant Sheriff Warren's Motion to Dismiss Plaintiff's entire SAC is GRANTED with leave to amend.

2. Defendants City of Susvanille's and Officer Vega's Motion to Dismiss is GRANTED with leave to amend as to: 1) Plaintiff's first, second, third, fourth, eight, ninth, tenth, twelfth and thirteenth causes of action in their entirety; and 2) Plaintiff's claim for punitive damages.

3. Defendant County of Lassen's Motion to Dismiss is GRANTED with leave to amend as to: 1) Plaintiff's first cause of action to the extent it is based on a failure to train theory; 2) Plaintiff's first and second causes of action to the extent they are based on post-conviction violations arising under the Eight Amendment; 3) Plaintiff's seventh, eighth, ninth, tenth, twelfth and thirteenth causes of action in their entirety; and 4) Plaintiff's claim for punitive damages. Defendant County of Lassen's Motion to Dismiss is DENIED as to Plaintiff's first and second causes of action to the extent those claims are based on Mr. Parker's status as a pre-trial detainee.

Plaintiff may (but is not required to) file a third amended complaint not later than twenty (20) days after the date this Memorandum and Order is filed electronically. If no amended complaint is filed within said twenty (20)-day period, without further notice, those causes of action hereby dismissed will be deemed to have been dismissed with prejudice.


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