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Sandipkumar Tandel v. County of Sacramento

February 22, 2012

SANDIPKUMAR TANDEL,
PLAINTIFF,
v.
COUNTY OF SACRAMENTO, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Sandipkumar Tandel ("Plaintiff") seeks redress for several federal and state law claims alleging that the County of Sacramento ("County"), Sheriff of Sacramento County, John McGinness ("McGinness"), Chief of Sacramento County Jail Correctional Health Services, Ann Marie Boylan ("Boylan"), Medical Director of Sacramento County Jail, Michael Sotak, M.D. ("Sotak"), Susan Kroner, R.N. ("Kroner"), Agnes R. Felicano, N.P. ("Felicano"), James Austin, N.P. ("Austin"), Richard L. Bauer, M.D. ("Bauer"), Gregory Sokolov, M.D. ("Sokolov"), Keelin Garvey, M.D. ("Garvey"), John Ko, M.D. ("Ko"), Glayol Sahba, M.D. ("Sahba"), and Officer John Wilson ("Wilson") violated Plaintiff's civil rights during Plaintiff's detention at the Sacramento County Main Jail from March 23, 2010 to May 10, 2010. Plaintiff further claims that said Defendants committed certain state-law violations. In his First Amended Complaint ("FAC"), Plaintiff seeks compensatory and punitive damages, attorneys' fees and costs, and declaratory relief. Presently before the Court is the Motion to Dismiss of Defendants County, McGinness, Boylan, Sotak, Kroner, Felicano, Austin, Ko, Sahba, Bauer, and Wilson (collectively "Defendants" or "County Defendants"). (See County Defs.' Mot. to Dismiss Pl.'s First Am. Compl. ["MTD"], filed June 21, 2011 [ECF No. 42]). Defendants Sokolov and Garvey filed a Statement of Non-Opposition to County Defendants' motion to dismiss. [ECF No. 52.] For the reasons set forth below, County Defendants' motion is granted in part and denied in part.*fn1

BACKGROUND*fn2

This action arises out of the events that occurred during Plaintiff's detention at the Sacramento County Main Jail ("Jail") from March 23 to May 10, 2010. However, the roots of this action go back to Plaintiff's prior detention at the Jail in April-May 2007. During his 2007 detention, Plaintiff developed symptoms of a neurologic disease that was at first diagnosed as Acute Disseminated Encephalomyelitis ("ADEM") and was later correctly diagnosed as Neuromyelitis Optica ("NMO").

In 2007, Plaintiff was released from the Jail because of the nature and severity of his condition. Following his release, Plaintiff achieved significant medical improvement with appropriate treatment through University of California, Davis, Medical Center ("UCD"). In 2009, Plaintiff filed a lawsuit against the County and a number of individual defendants under 42 U.S.C. § 1983 alleging his civil rights' violations during the 2007 detention. (See Pl.'s Second Am. Compl., Case No. 2:09-cv-0842-MEC-GGH [ECF No. 43].)*fn3

On March 23, 2010, Plaintiff was again arrested and detained as a pretrial detainee at the Jail. At the time of his 2010 arrest, Plaintiff required a wheelchair and was unable to move from the nipple line down. Plaintiff's medical record allegedly indicates that, during the 2010 detention, all Defendants were aware of Plaintiff's serious neurologic autoimmune disease and were aware that Plaintiff required appropriate treatment, including a combination of corticosteroids, plasmaphoresis, anti-inflammatory and pain medication, physical therapy, muscle stimulators, massage and chiropractic care. According to Plaintiff, Defendants were also aware that Plaintiff suffered from osteoporosis and depression with suicidal ideation. Plaintiff alleges that, for the entirety of his 2010 incarceration, Defendants denied Plaintiff necessary medical treatment despite Plaintiff's repeated requests for such treatment.

Plaintiff alleges that he requested but was not provided enough catheters to adequately relieve his bladder; requested but was denied adequate and timely suppositories and pads; and was not provided adequate medication to control his pain. As a result, Plaintiff allegedly routinely urinated on himself and his clothes, was left waiting for assistance in soiled clothes, did not have bowel movement for days, and was in severe pain. Specifically, Plaintiff alleges that the four catheters per day he was supposed to receive according to his medical intake sheet was not enough to relieve his bladder, and that he was routinely provided less than four catheters per day. Defendant Bauer allegedly advised Plaintiff to reuse the catheters, thereby increasing the risk of infection.

On March 25, 2010, Defendant Sahba allegedly placed Plaintiff on a suicide watch. Sahba determined that Plaintiff should not be allowed a bed, and that Plaintiff should be placed on a mattress on the floor without his clothes. Defendants Sokolov and Sotak allegedly were aware of this situation. According to Plaintiff, the Jail's psychiatric unit was unable to handle a patient who required catheters. Therefore, Defendants Sokolov, Sahba and Sotak knowingly left Plaintiff "to lay naked, on a mattress on the floor, unable to adequately move, unable to reach the call button, in severe pain, under-medicated, and without adequate supplies or treatment to urinate or defecate cleanly and regularly." (FAC ¶ 63.) As a result, Plaintiff allegedly urinated on himself numerous times, was unable to have regular bowel movements and developed bed sores.

Because custodial officers at the Jail allegedly routinely interfered with Plaintiff's access to medical care, Plaintiff's bed sores worsened.

On March 28, 2010, Plaintiff was moved to a non-medical unit of the Jail where he continued to be denied adequate pain medication, medical treatment and medical supplies. On April 9, 2010, Plaintiff complained to the Jail's medical staff of burning on the tip of his penis but was left in severe pain without adequate medical treatment for the next few weeks. Plaintiff's neighboring inmate pressed the call button on Plaintiff's behalf several times after hearing Plaintiff screaming in agony, but the medical staff never responded. On April 13, 2010, Defendant Bauer finally prescribed an antibiotic to Plaintiff to treat what had become a stage 1 ulcer on his leg and a urinary tract infection.

When Plaintiff was scheduled to go to the medical unit to receive antibiotic treatment, Defendant Wilson allegedly threatened to "drag" Plaintiff to the medical unit if Plaintiff did not hurry. When Plaintiff was taken to the medical unit, he was left there for a significant amount of time before he saw a medical provider.

By April 22, 2010, Plaintiff had been complaining to the Jail's medical staff of blurry vision in his left eye for at least two weeks. Defendant Kroner allegedly performed a vision exam but failed to request a necessary neurological referral. On April 23, Plaintiff again complained of penile burning, pain in his eye and vision problems. On April 23, 2010, Defendant Sahba documented Plaintiff's left eye blurriness with history of ADEM.

Sahba requested urinalysis and blood work with follow-up in two weeks. Sahba also prescribed an antifungal to Plaintiff.

Defendant Bauer allegedly conceded in the medical record that Plaintiff's pain had not been well-controlled on Tramadol or Neurontin and prescribed Narco-5 from April 15 through April 28, 2010. On April 27-28, 2010, Plaintiff was also prescribed Morphine to control his pain. On May 4, 2010, Plaintiff reported to Defendant Doe that he had been experiencing episodes of double vision lasting up to 20 minutes at a time, but Defendant Doe failed to engage neurology or provide adequate testing. Plaintiff allegedly lost weight and muscle strength due to ineffective physical therapy and inadequate diet. He was allegedly unable to eat the food he was served because it conflicted with his religious beliefs.

On May 10, 2010, after weeks of complaints about symptoms allegedly indicative of an NMO attack, including headaches, blurry vision, loss of extremity control, uncontrolled pain, clinical signs of infection, and preventable bedsores/ulcers, medical Defendants finally transferred Plaintiff to UCD where MRI results confirmed acute right optic neuritis. Plaintiff alleges that medical Defendants' deliberate indifference resulted in and/or increased the acuteness of his attack and accelerated the recurrence of his disease, which resulted in irreversible damage to new areas of myelin, causing cumulative and permanent disfigurement and disability, decreasing Plaintiff's future opportunity for rehabilitation and decreasing his life expectancy.

STANDARD

On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6),*fn4 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). The Court must also assume that "general allegations embrace those specific facts that are necessary to support a claim." Smith v. Pacific Props. & Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004). 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 a 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. Id. 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).

The Court also is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). "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). "Without 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 a 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 F.3d 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., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (internal citations and quotations omitted).

ANALYSIS

The Court examines Plaintiff's claims in the following order: (1) Plaintiff's claims against all individual Defendants in their official capacities (First, Sixth, Eighth, Ninth and Eleventh Claims for Relief); (2) Plaintiff's § 1983 claims for failure to provide appropriate medical care against all individual Defendants in their individual capacities (First Claim for Relief); (3) Plaintiff's § 1983 claim for violation of the First Amendment against all individual defendants in their individual capacities (Sixth Claim for Relief); (4) Plaintiff's Monell liability claims against Sacramento County (Second, Third, Fourth, Fifth, and Seventh Claims for Relief); (5) Plaintiff's claim under the Americans with Disabilities Act and Rehabilitation Act (Eighth Claim for Relief); and (6) Plaintiff's three state-law claims (Ninth, Tenth and Eleventh Claims for Relief).*fn5

I. Claims Against Defendants McGinness, Boylan, Sotak, Kroner, Felicano, Austin, Ko, Sahba, Bauer, and Wilson in Their Official Capacities

The SAC names official capacity Defendants in all eleven claims for relief. Because Plaintiff agreed to dismiss official capacity Defendants from claims 2, 3, 4, 5, and 7 (Monell claims), what remains for the Court's consideration is whether official capacity Defendants should also be dismissed from claims 1, 6, 8, 9, 10 and 11.

Defendants contend that, based on Plaintiff's identification, the only Defendants who could be named in official capacities are McGinness, Boylan and Sotak. (MTD at 5:4-8.) Defendants further contend that all of Plaintiff's claims against official capacity Defendants should be dismissed as redundant. (Id. at 5:9-16.) Specifically, Defendants argue that suing an official capacity defendant is legally equivalent to suing a governmental entity. (Id. at 5:1-3.) Defendants further argue that, because Plaintiff named the County as a Defendant in all six claims at issue, official capacity Defendants named in these claims are redundant defendants and should be dismissed. (Id. at 5:9-16.) Plaintiff has failed to oppose or otherwise address Defendants' contentions.

Defendants are correct in stating that suing an official capacity person is legally equivalent to suing the governmental entity. Kentucky v. Graham, 473 U.S. 159, 165-166 (1985). "[A] judgment against a public servant 'in his official capacity' imposes liability on the entity that he represents."

Brandon v. Holt, 469 U.S. 464, 472 (1985); see also McMillian v. Monroe County, 520 U.S. 781, 785 n.2 (1997) ("[V]ictory in . . . an 'official capacity' suit 'imposes liability on the entity that [the officer] represents."). Thus, for the purposes of evaluating the municipality's potential liability under § 1983, the actions of an official capacity defendant are equated with the actions of the municipality. Id. "When both a municipal officer and a local government entity are named, and the officer is named only in his official capacity, the court may dismiss the officer as a redundant defendant." Ctr. For Bio-Ethical Reform, Inc. v. L.A. County Sheriff Dep't, 533 F.3d 780, 799 (9th Cir. 2008).

Because Plaintiff has stipulated to the dismissal of the County from claims 1, 6 and 11, and has stipulated to the dismissal of official capacity Defendants from claims 2, 3, 4, 5 and 7, three remaining claims (claims 8, 9 and 10) still name both the County and official capacity Defendants. Accordingly, the Court dismisses all official capacity Defendants, as redundant, from Plaintiff's eighth, ninth and tenth claims for relief with leave to amend.

While Plaintiff has agreed to dismiss the County from claims 1, 6 and 11, he neither explicitly agreed to dismiss official capacity Defendants from these claims nor explicitly opposed Defendants' argument for such dismissal.

Because "official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent," Brandon v. Holt, 469 U.S. 464, 472 n.21 (1985), the Court interprets Plaintiff's stipulation to dismiss the County from claims 1, 6 and 11 to mean that Plaintiff also has agreed to dismiss all official capacity Defendants from these claims.

Accordingly, the Court grants Defendants' motion to dismiss all official capacity Defendants from the FAC with leave to amend.

II. First Claim for Relief: Claims Brought Pursuant to

42 U.S.C. § 1983 for Violations of the Fourteenth Amendment for Failure to Provide Appropriate Medical Care against McGinness, Boylan, Sotak, Kroner, Felicano, Austin, Ko, Sahba, Bauer and Wilson in Their Individual Capacities

The FAC alleges that all individual Defendants failed to provide appropriate medical care to Plaintiff, and that Plaintiff suffered and continues to suffer personal disability and injury as a result of Defendants' conduct. (FAC ¶¶ 98, 99.)

In particular, Plaintiff alleges that all Defendants: (1) failed to provide Plaintiff with necessary medical treatment; (2) failed to monitor Plaintiff once he reported an exacerbation of his pre-existing and known serious neurological disorder; (3) failed to transport Plaintiff to a hospital or appropriate diagnostic facility upon initial symptoms indicating an exacerbation of a serious pre-existing, known neurological condition; (4) failed to maintain appropriate medical records and history; and (5) failed to supply UCD with Plaintiff's accurate medical history upon transport. (Id. ¶ 98.)

Defendants argue that Plaintiff's first claim should be dismissed because Plaintiff groups all the Defendants together and fails to make specific allegations as to how each Defendant violated Plaintiff's constitutional rights in failing to provide adequate medical care. (MTD at 7:8-10). To the extent that Plaintiff alleges supervisory responsibility of some Defendants, Defendants argue that Plaintiff failed to state a claim because he failed to allege personal participation by each supervisory Defendant in the alleged constitutional deprivation, or that each supervisory Defendant directed any actions that caused violations of Plaintiff's rights, or that each supervisory Defendant was aware of widespread abuses and, with deliberate indifference, failed to act. (Id. at 7:26-8:2.)

Under 42 U.S.C. § 1983, an individual may sue "[e]very person, who, under color of [law] subjects" him "to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws."

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, an individual may be liable for deprivation of constitutional rights "within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007). Thus, a plaintiff cannot demonstrate that an individual officer is liable "without a showing of individual participation in the unlawful conduct." Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2002). Plaintiff must "establish the 'integral participation' of the officers in the alleged constitutional violation," id., which requires "some fundamental involvement in the conduct that allegedly caused the violation." Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007).

Government officials acting as supervisors may be liable under § 1983 under certain circumstances. "[W]hen a supervisor is found liable based on deliberate indifference, the supervisor is being held liable for his or her own culpable action or inaction, not held vicariously liable for the culpable action or inaction of his or her subordinate." Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).

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); Starr, 652 F.3d at 1207.

A supervisor's physical presence is not required for supervisory liability. Starr, 652 F.3d at 1205. Rather, 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. Dubner v. City & County of S.F., 266 F.3d 959, 968 (9th Cir. 2001); Larez v. City of L.A., 946 F.2d 630, 646 (9th Cir. 1991). Similarly, a supervisor's own culpable action or inaction in the training, supervision, or control of his subordinates may establish supervisory liability. Starr, 652 F.3d at 1208; Larez, 946 F.2d at 646. Finally, 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. Starr, 652 F.3d at 1208; Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005).

As opposed to prisoner claims under the Eighth Amendment, a pretrial detainee is entitled to be free of cruel and unusual punishment under the Due Process Clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 537 n. 16 (1979); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). The Due Process Clause requires that "persons in custody have the established right to not have officials remain deliberately indifferent to their serious medical needs." Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir. 2002) (quoting Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996)). A pretrial detainee's due process right in this regard is violated when a jailer fails to promptly and reasonably procure competent medical aid when the pretrial detainee suffers a serious illness or injury while confined. Estelle v. Gamble, 429 U.S. 97, 104-105 (1976). Deliberate indifference can be "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Id. In order to establish a plausible claim for failure to provide medical treatment, Plaintiff must plead sufficient facts to permit the Court to infer that (1) Plaintiff had a "serious medical need" and that (2) individual Defendants were "deliberately indifferent" to that need. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Cf. Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994).

Plaintiff can satisfy the "serious medical need" prong by demonstrating that "failure to treat [his] condition could result in further significant injury or the unnecessary and wonton infliction of pain." Jett, 439 F.3d at 1096 (internal citations and quotations omitted); Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002). County Defendants do not dispute that the FAC's allegations are sufficient to demonstrate that Plaintiff plausibly had a serious medical need during his 2010 detention.

Thus, the issue for the Court is whether individual Defendants were deliberately indifferent to Plaintiff's serious medical need. The Supreme Court, in Farmer, explained in detail the contours of the "deliberate indifference" standard. Specifically, individual Defendants are not liable under the Fourteenth Amendment for their part in allegedly denying necessary medical care unless they knew "of and disregard[ed] an excessive risk to [Plaintiff's] health and safety." Farmer, 511 U.S. at 837; Gibson, 290 F.3d at 1187-88. Deliberate indifference contains both an objective and subjective component: "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." Farmer, 511 U.S. at 837. "If a person should have been aware of the risk, but was not," then the standard of deliberate indifference is not satisfied "no matter how severe the risk." Gibson, 290 F.3d at 1188 (citing Jeffers v. Gomez, 267 F.3d 895, 914 (9th Cir. 2001)).

Plaintiff "need not show that a prison official acted or failed to act believing that harm actually would befall on inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Farmer, 511 U.S. at 842.

Important for purposes of the motions at issue, "[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, . . . and a fact finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Id. (emphasis added) (internal citations omitted); see also Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003) ("Much like recklessness in criminal law, deliberate indifference to medical needs may be shown by circumstantial evidence when the facts are sufficient to demonstrate that a defendant actually knew of a risk of harm.").

"The indifference to medical needs must be substantial; a constitutional violation is not established by negligence or 'an inadvertent failure to provide adequate medical care.'" Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995) (quoting Estelle, 429 U.S. at 105-06). Generally, defendants are "deliberately indifferent to a prisoner's serious medical needs when they deny, delay, or intentionally interfere with medical treatment." Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lolli, 351 F.3d at 419. However, "[i]solated incidents of neglect do not constitute deliberate indifference."

Bowell v. Cal. Substance Abuse Treatment Facility at Concord, No. 1:10-cv-02336, 2011 WL 2224817, at *3 (E.D. Cal. June 7, 2011) (citing Jett, 439 F.3d at 1096). Further, a mere delay in receiving medical treatment, without more, does not constitute "deliberate indifference," unless the plaintiff can show that the delay caused serious harm to the plaintiff. Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990).

Plaintiff generally alleges that each of the Defendants caused and is responsible for the unlawful conduct by personally participating in the conduct, or by authorizing or acquiescing in the conduct, or by promulgating or failing to promulgate policies and procedures pursuant to which the unlawful conduct occurred. (FAC ¶ 27.) Plaintiff further alleges that all Defendants were aware of Plaintiff's serious medical condition and were aware that Plaintiff required medical treatment. (FAC ¶¶ 46-52.)

(1) Defendant McGinness

The facts in the FAC alleged specifically against McGinness are as follows: (1) McGinness was, at all relevant time, the Sacramento County Sheriff; (2) McGinness was, at all relevant times, the responsible party and the final decision maker for the hiring, retention, screening, supervision, training, instruction, discipline, control, equipping and conduct of Defendants custodial and medical staff; (3) McGinness was charged with promulgating all orders, policies, protocols, practices, customs, rules, instructions and regulations of the Sacramento County Sheriff's Department ("SCSD") including but not limited to those concerning the safety of pat-searches and inmate safety; (4) in committing the alleged acts and omissions, McGinness was acting under color of state law and within the course and scope of his employment as Sheriff of the SCSD. (FAC ¶ 16.)

As was discussed earlier, to sustain a § 1983 claim for individual liability, Plaintiff must establish the "personal involvement" of each defendant, including supervisors, in a constitutional deprivation or a "causal connection" between each defendant's wrongful conduct and the deprivation. Hansen, 885 F.2d at 646. Plaintiff's allegations that McGinness was employed as the County Sheriff and that he was acting within the scope of his employment are insufficient to demonstrate either his "personal involvement" in the alleged constitutional deprivation or the "causal connection" between McGinness' actions or omissions and the deprivation.

Plaintiff's allegations that McGinness's job duties included promulgating policies and rules concerning inmate safety and that he was the final decision maker for the hiring, training, supervision and disciplining of Jail personnel similarly are insufficient to plausibly demonstrate McGinness' "personal involvement" in the alleged constitutional deprivations. These allegations also do not plausibly suggest any causal connection between McGinness' conduct and Plaintiff's deprivation because the FAC is silent as to what McGinness' decisions or orders caused Plaintiff's harm.

In his opposition to Defendants' motions to dismiss, Plaintiff relies on Redman v. County of San Diego, 942 F.2d 1435 (9th Cir. 1990), and Starr, 652 F.3d 1202, in asserting that, under California law, the Sheriff is required by statute to take charge of and keep the county jail and the prisoners in it, and is answerable for the prisoners' safekeeping. (Pl.'s Opp. at 14:2-14:4.) Inactions of the person "answerable for the prison's safekeeping," Plaintiff argues, is sufficient to state a claim for supervisory liability for deliberate indifference. (Id. at 14:9-14.) County Defendants respond that, in both Redman and Starr, plaintiffs alleged specific facts as to how the Sheriff was liable as a supervisor and how the Sheriff's actions or inactions caused the plaintiff's constitutional deprivation. (County Defs.' Reply to Pl.'s Opp., filed August 30, 2011 [ECF No. 61], at 5:25-6:4.)

Defendants argue that Plaintiff here, unlike plaintiffs in Redman and Starr, failed to make any specific allegations to demonstrate McGinness' supervisory liability. (Id. at 6:9-15.) The Court agrees with County Defendants.

In Redman, a plaintiff specifically alleged that the Sheriff was ultimately in charge of the facility's operations, that the Sheriff knew that the facility was not a proper place to detain the plaintiff and posed a risk of harm to the plaintiff, but placed the plaintiff there anyway. Redman, 942 F.2d at 1446-47. In Starr, the plaintiff similarly alleged that the Sheriff knew of the unconstitutional activities in the jail, including that his subordinates were engaging in some culpable actions. Starr, 652 F.3d at 1208. In fact, the plaintiff's complaint in Starr contained numerous specific factual allegations demonstrating the Sheriff's knowledge of unconstitutional acts at the jail and the Sheriff's failure to terminate those acts, including that the U.S. Department of Justice gave the Sheriff clear written notice of a pattern of constitutional violations at the jail, that the Sheriff received "weekly reports from his subordinates responsible for reporting deaths and injuries in the jails," that the Sheriff personally signed a Memorandum of Understanding that required him to address and correct the violations at the Jail, and that the Sheriff was personally made aware of numerous concrete instances of constitutional deprivations at the jail. Id. at 1209-12.

Here, on the other hand, Plaintiff's FAC does not contain any factual allegations demonstrating that McGinness was aware of Plaintiff's constitutional deprivations or of any other wrongful acts by Jail personnel. Thus, nothing in the FAC plausibly suggests that McGinness "acquiesced" in the wrongful conduct of his subordinates. Accordingly, Plaintiff has not pleaded sufficient facts to support the inference that McGinness was deliberately indifferent to Plaintiff's medical needs. The Court dismisses Defendant McGinness from Plaintiff's first claim with leave to amend.

(2) Defendant Boylan

Plaintiff's specific allegations against Boylan are limited to the following statements: (1) Boylan was at all relevant times employed by the County as Chief of the Sacramento County Jail Correctional Health Services ("CHS"); and (2) Boylan was at all relevant times acting within the scope of her employment and/or agency with the County. (FAC ΒΆ 17.) Plaintiff has not alleged that Boylan participated in or directed alleged violations, or knew of the violations and failed to act. In his opposition, Plaintiff argues that it is reasonable to infer that Boylan, because of her position as the CHS Chief for the Jail, was ...


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