The opinion of the court was delivered by: Honorable Oliver W. Wanger
ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS PLAINTIFF'S
THIRD AMENDED COMPLAINT
DATE: August 29, 2011
TIME: 10:00 a.m. CTRM: 3
On Monday, August 29, 2011, before the Honorable Oliver W. Wanger in Courtroom 3 of the United States District Court for the Eastern District of California, the Motion to Dismiss Plaintiff's Third Amended Complaint of Defendants the COUNTY OF FRESNO and CAPTAIN JOSE FLORES was heard. All parties appeared through counsel. After argument on the issues in open court and review and consideration of all of the pleadings submitted by counsel:
THE COURT FINDS that: 1) Plaintiff NORMAN L. PIMENTEL ("Plaintiff") is
bringing an action for damages against the COUNTY OF FRESNO
("County"), CAPTAIN JOSE FLORES ("Flores"), and Does 2-20.
2) The Government Tort Claim submitted by Plaintiff was dated June 4,
2008 and included only claims regarding the assignment of Plaintiff to
a top bunk without a ladder and for failure to follow the directives
of Plaintiff's neurosurgeon upon his return from the hospital. After
rejection of the claim, Plaintiff filed the original complaint in the
California Superior Court in and for the County of Fresno on March 20,
2009, alleging only a negligence cause of action against the County
for assigning Plaintiff to a top bunk bed without a ladder or other
means to assist Plaintiff in climbing onto and off of the top bunk
which allegedly caused Plaintiff to fall to the floor when descending
on April 25, 2008 and suffer injuries to his spine, back, and other
parts of his body. There were no other causes of action or factual
allegations to support any claims regarding Plaintiff's care or
treatment included in the original complaint.
3) Plaintiff requested leave to amend his original complaint on July 23, 2010, and filed the First Amended Complaint ("FAC") on August 30, 2010 adding 42 U.S.C. § 1983 and California Elder Abuse causes of action as well as new negligence claims. The FAC added allegations that Plaintiff was a 67-year-old, pre-trial detainee during his incarceration and that Defendants failed to ensure and provide emergency and basic health care services and adequate medical care after Plaintiff's fall, and the County failed to provide training and supervision regarding appropriate practices and procedures to provide adequate medical care.
4) Defendants removed Plaintiff's action to federal court on September 21, 2010 and filed a motion to dismiss the FAC; the motion to dismiss was granted in its entirety. The California law claims based upon allegations that Plaintiff did not receive medical care from April 25, to April 30, 2008, were dismissed with prejudice.
5) On March 4, 2011, Plaintiff filed a Second Amended Complaint ("SAC") restating all of the causes of action from the FAC and adding an Americans with Disabilities Act ("ADA") cause of action. The SAC asserted causes of action labeled as follows: Elder Abuse; Negligence and Negligence Per Se; Negligence and Negligence Per Se E.g., California Government Code §856(c)(2) Title 15 CCR §1208; Violation of Monell: Longstanding Pattern and Practice; and Americans with Disabilities.
6) Among the other allegations, the SAC added allegations that: Plaintiff had previously been an inmate and the County knew he was suffering from psychiatric and seizure disorders; Plaintiff was incarcerated from March 12, 2008 to August 25, 2008 and for the first few days of his incarceration he was allegedly placed in a "rubber room" before being assigned to a top bunk without a ladder or other device to assist climbing on and off; following his fall and on April 25, 2008, Plaintiff was taken to the jail clinic where he was prescribed Vicodin and reassigned to a bed without an upper bunk; and that Plaintiff had submitted a claim on June 4, 2008 alleging his slip and fall from a top bunk and the failure to provide treatment requested by his physician. As before, the California negligence causes of action included distinct claims: assignment of Plaintiff to a top bunk causing him to fall and injure his back; failure to ensure treatment from April 25, 2008 to April 30, 2008; and failure to provide proper follow-up therapy, diet, and treatment from May 2008 until his release on August 25, 2008.
7) Defendants filed a motion to dismiss the SAC on March 24, 2011. That motion was granted in its entirety, but without prejudice as to the 42 U.S.C. § 1983 claims, the ADA claim, and the California negligence claim regarding Plaintiff's assignment to a cell with a bunk bed. Plaintiff was given 15 days after the May 26, 2011 service of the memorandum of decision regarding the motion to dismiss to file a new complaint.
8) Plaintiff filed his Third Amended Complaint ("TAC") late on June
23, 2011 alleging the following causes of action: "Count One Violation
of Mandated Duties"; "Count Two Monell: Longstanding Pattern and
Practice"; "Count Three Violation of the Eighth Amendment"; and "Count
Four: Americans with Disabilities." In an attempt to state an ADA
qualified disability, the TAC added a new factual allegation that
Plaintiff was declared permanently disabled by the Social Security
Administration in 2003. It also separated the 42 U.S.C. § 1983 claim
into two causes of action, the first against the County for a
policy/practice which allegedly caused Plaintiff's assignment to an
upper bunk without a ladder in the old jail and the second against
"defendant guards" designated as Does 2, 3, 4 and 5 for alleged
deliberate indifference to Plaintiff's medical needs following his
fall on April 25, 2008. The California law cause of action again
sought to allege liability on behalf of the County and Flores based
upon violations of alleged duties under Title 15 of the California
Code of Regulations, specifically
Sections 1050(a), 1200(a), and 1208; however, again no facts were
added establishing violations of these or other mandatory duties.
9) Defendant County and Flores filed a motion to dismiss the TAC on July 8, 2011; Plaintiff did not file a timely opposition to the motion, but orally opposed it at the hearing on August 29, 2011.
10) Like the prior amended complaints, the TAC advances only conclusory allegations that the named Defendants violated mandatory statutory duties, that the County had a policy or procedure which violated Plaintiff's Constitutional rights, that Plaintiff had a qualified ADA disability, and that the County discriminated against Plaintiff by reason of his disability. The deficiencies of the FAC and/or SAC as to Plaintiff's California law claim alleging violation of mandatory duties, the 42 U.S.C. § 1983 claim alleging a County policy/procedure which violated Plaintiff's Constitutional rights, and Plaintiff's ADA claim of discrimination based upon a claimed disability persist in the TAC.
11) Plaintiff's first cause of action in the TAC claims violations of
mandatory duties under California law by the County and Flores based
on (1) the failure to assign Plaintiff to a "clinic cell" and (2)
failure to provide Plaintiff timely and appropriate medical care after
his fall. Specifically, Plaintiff claims that Title 15 CCR § 1050(a)
which states that a facility must have and use a written
classification plan for assigning inmates to housing units and
activities was violated, but does not allege that a written plan did
not exist or that it was not used; Plaintiff merely alleges
disagreement with his housing assignment. He also claims a violation
of Title 15 CCR § 1208 which requires a written plan for identifying,
assessing, treating, and/or referring an inmate who appears to be in
need of treatment, but Plaintiff does not allege that a written plan
did not exist; Plaintiff alleges instead that the failure to assign
him to a "clinic cell" violates the section. Finally, Plaintiff
alleges violation of Title 15 CCR § 1200(a) for an alleged failure of
Defendant Flores to enforce and provide emergency and basic health
care services. Plaintiff's medical care claim is identical to a
negligence claim the court has already dismissed with prejudice as it
was barred by the applicable statute of limitations. Further, the only
allegation related to the provision of emergency health services at
the Fresno County Jail is Plaintiff's allegation that he was no
provided emergency medical care after his fall; without more, this
allegation does not give rise to a plausible inference that there is
no provision of emergency and
basic health care services at the Fresno County Jail.
12) California has a two-year, personal injury statute of limitations. Cal. Code Civ. P. § 335.1. The statute of limitations begins to run when a plaintiff has cause to sue based on knowledge or suspicion of wrongdoing. See, e.g., Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 803 (Cal. 2005) [citations omitted]. Plaintiff was aware of his alleged lack of care when it occurred. Plaintiff failed to include any allegations as to his care/treatment in the original complaint. Plaintiff did not seek to amend his complaint to include such allegations until months after the statute of limitations had run. Therefore, Plaintiff's breach of duty claim arising out of the alleged failure to provide appropriate treatment after his fall does not relate back to the original complaint and is time-barred.
13) Although Plaintiff's claim for breach of a purported duty to assign him to a cell without bunk beds is not time-barred, after four attempts to plead a "violation of duty claim," a cognizable claim still has not been stated. Under California's Government Claims Act (Cal. Gov. Code § 810 et seq.), there is no common law tort liability for public entities; instead, such liability must be based on statute. E.g., Guzman v. County of Monterey, 46 Cal.4th 887, 897 (Cal. 2009). Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty. Id. In ...