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Estate of Prasad v. County of Sutter

United States District Court, E.D. California

July 30, 2013

Estate of NATHAN PRASAD, deceased, by and through MARY PRASAD; MARY PRASAD; T.P., a minor; and A.P., a minor, Plaintiffs,
v.
COUNTY OF SUTTER; J. PAUL PARKER, Sutter County Sheriff's Department Sheriff; DAVID SAMSON, Sutter County Jail Division Commander; NORMAN BIDWELL, Sutter County Jail Corrections Lieutenant; LOU ANNE CUMMINGS, Sutter County Health Officer; AMERJIT BHATTAL, Sutter County Assistant Director of Human Services -- Health Division; BRENT GARBETT, Sutter County Jail Nurse Program Manager; DORIS BROWN, Sutter County Jail Advanced Registered Nurse Practitioner; MELODY YOUNG, Sutter County Jail Licensed Vocational Nurse; KIMBERLY WEISS, Sutter County Jail Licensed Vocational Nurse; GURKIRAT BHANGU, Sutter County Jail Licensed Vocational Nurse; CHRISTINA STOHLMAN, Sutter County Jail Correctional Officer; LESTER EATON, Sutter County Jail Correctional Officer; MIGUEL AGUILAR, Sutter County Jail Deputy Officer; OLGA TAHARA, Sutter County Jail Deputy Officer; ROSA DIAZ, Sutter County Jail Deputy Officer; ERIC CRAWFORD, Sutter County Jail Deputy Officer; BALJINDER RAI, Sutter County Jail Deputy Officer; SHANE DICKSON, Sutter County Jail Deputy Officer; UNKNOWN JAIL EMPLOYEE I; FREMONT-RIDEOUT HEALTH GROUP; MICHAEL FRATERS, D.O., Defendants

Decided: July 29, 2013.

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For Mary Prasad, Individually and as Guardian Ad Litem, Plaintiff: Aaron Joseph Fischer, Michael Bien, LEAD ATTORNEYS, Kathryn Grzenczyk Mantoan, Ernest Galvan, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA; Lori Rifkin, Rosen, Bien, Galvan & Grunfeld, San Francisco, CA.

For T. P., Mary Prasad guardian ad litem, A. P., Mary Prasad guardian ad litem, Plaintiffs: Aaron Joseph Fischer, Michael Bien, LEAD ATTORNEYS, Kathryn Grzenczyk Mantoan, Ernest Galvan, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA.

For County of Sutter, J. Paul Parker, Sheriff, County of Sutter, David Samson, Division Commander, Sutter County Jail, Norman Bidwell, Corrections Lieutenant, Sutter County Jail, Doris Brown, Registered Nurse Practitioner, Sutter County Jail, Baljinder Rai, Deputy Officer, Sutter County Jail, Shane Dickson, Deputy Officer, Sutter County Jail, Lou Anne Cummings, Amerjit Bhattal, Brent Garbett, Kimberly Weiss, Gurkirat Bhangu, Christina Stohlman, Lester Eaton, Miguel Aguilar, Olga Tahara, Rosa Diaz, Eric Crawford, Defendants: John Robert Whitefleet, LEAD ATTORNEY, Porter Scott, APC, Sacramento, CA.

For Melody Young, Licensed Vocational Nurse, Sutter County Jail, Defendant: Kathleen J. Williams, LEAD ATTORNEY, Williams and Associates, Sacramento, CA.

For Fremont-Rideout Health Group, Defendant: Robert Harry Zimmerman, LEAD ATTORNEY, Schuering Zimmerman & Doyle, LLP, Sacramento, CA.

For Michael Fraters, Physician, Rideout Memorial Hospital, Defendant: Jennifer C. Kurlan, LEAD ATTORNEY, Law Offices Of Leonard & Lyde, Chico, CA.

OPINION

Troy L. Nunley, United States District Judge.

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ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS AND STRIKE SECOND AMENDED COMPLAINT

Defendants County of Sutter, J. Paul Parker, David Samson, Norman Bidwell, Lou Anne Cummings, Amerjit Bhattal, Brent Garbett, Doris Brown, Melody Young, Kimberly Weiss, Gurkirat Bhangu, Christina Stohlman, Lester Eaton, Miguel Aguilar, Olga Tahara, Rosa Diaz, Eric Crawford, Baljinder Rai, Shane Dickson, (collectively the " Sutter Defendants" ), Michael Fraters, M.D., and Fremont-Rideout Health Group [1] (" Rideout" ) move to dismiss Plaintiffs' Second Amended Complaint under Federal Rule of Civil Procedure (" Rule" ) 12(b)(6). Fraters and Rideout also move to strike portions of Plaintiffs' complaint under Rule 12(f). Plaintiffs oppose Defendants' motions.

I. FACTUAL ALLEGATIONS

Plaintiffs allege the following in their Second Amended Complaint (" SAC" ). On January 21, 2011, Nathan Prasad was

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booked into Sutter County Jail (" Jail" ) on minor parole-related charges. (SAC ¶ ¶ 1, 44.) While in Jail custody for the next week, Prasad experienced multiple organ failure, bronchopneumonia, severe sepsis, cyanosis, chills, fever, radiating bruising, swelling, and excruciating pain. (Id. ¶ ¶ 46, 56, 61, 73, 75.) Prasad's condition was caused by a spreading bacterial infection that could have been treated with a course of antibiotics. (Id. ¶ 75.) Prasad was not provided with necessary medical care, however, and he died from this infection hours after he was transported from the Jail to Rideout. (Id. ¶ ¶ 75, 78.) Prasad was thirty years old when he died. (Id. ¶ 6.)

Prasad initially contracted an antibiotic resistant Staphylococcus aureus infection a year before this while in Jail custody. (Id. ¶ 43.) Jail officials and employees knew that the Jail had a long-standing and trenchant problem with contagious bacterial infections, and medical staff at that time documented Prasad's recurrent Methicillin-resistant Staphylococcus aureus (" MRSA" ) infections. (Id. ¶ 43.) When Prasad was rebooked at the Jail in January 2011, County officials--including Deputies Aguilar, Tahara, Diaz, Crawford, Rai, and Dickson; Correctional Officers Stohlman and Eaton; Vocational Nurses Young, Weiss, and Bhangu; Nurse Practitioner Brown; and Health Officer Cummings--reviewed documentation of Prasad's history of mental illness and recurrent MRSA infections. (Id. ¶ ¶ 43, 54.)

Soon after his arrival at the Jail, Prasad reported to Jail staff that he was experiencing significant pain in his lower extremities. (Id. ¶ 46.) He was also displaying bruising on his legs. (Id. ¶ 3.) After several days of reported and documented medical concerns, on January 26, Brown evaluated Prasad, and following consultation with Cummings, referred Prasad to the Emergency Department at Rideout. (Id. ¶ ¶ 48, 50.) By contract, Rideout was the sole facility to which Jail inmates were transported to receive emergency medical care. (Id. ¶ 2.) Because of this contract and the significant and ongoing coordination between Rideout and the Jail, (id. ¶ 34), Rideout and its staff knew that the Jail failed to provide sufficient around-the-clock access to medical care and could not supply the access to emergency medical treatment necessary for individuals with serious medical needs. (Id. ¶ ¶ 2, 51, 52.)

At the Jail, Cummings, Assistant Human Services Director Bhattal, and Nurse Program Manager Garbett authorized and implemented a policy whereby Jail medical staff were available only from 4:00 a.m. to midnight. (Id. ¶ 82.) This policy was maintained even though Sheriff Parker, Jail Commander Samson, Jail Lieutenant Bidwell, Cummings, Bhattal, and Garbett were on notice from prior documented reports that medical staff should be available at the Jail seven days a week, twenty-four hours a day. (Id. ¶ ¶ 82, 85.) Despite the lack of 24-hour medical staff and the consequent danger to inmates with emergency medical needs, Parker, Samson, and Bidwell created and enforced a policy whereby only medical staff were responsible for obtaining medical care for inmates. (Id. ¶ ¶ 74, 83.) The County, Cummings, Garbett, and Bhattal also failed to consistently transmit critical medical information about Jail inmates to inmates' health care providers. (Id. ¶ ¶ 49, 81.)

During his January 26 examination, information about Prasad's clinically significant history of recurrent MRSA infections was not shared with Rideout or Dr. Fraters, Prasad's Emergency Department treating physician. (Id. ¶ 49.) Had this information been provided, it could have signaled the need for a simple blood test that would have identified Prasad's advancing infection and enabled prompt, life-saving

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antibiotic treatment. (Id. ¶ 49.) Instead, Fraters discharged Prasad. (Id. ¶ 50.) Fraters knew that Prasad was exhibiting signs of a serious and life-threatening condition and would need access to emergency medical treatment if his symptoms worsened or new symptoms developed. (Id. ¶ 50.) Prasad's safe discharge to the Jail depended on a capacity for emergency medical response that Fraters and Rideout both knew did not exist there. (Id. ¶ ¶ 34, 35.) Fraters discharged Prasad with orders that if Prasad's symptoms worsened or new symptoms developed, he was to be returned to the Emergency Department immediately. (Id. ¶ 50.)

When Prasad returned to the Jail from his short Emergency Department admission, Jail staff--including Bidwell, Cummings, Brown, Young, Weiss, Bhangu, Stohlman, Eaton, Aguilar, Tahara, Diaz, Crawford, Rai, and Dickson--were all made aware of Prasad's discharge instructions ordering that he be taken to the Emergency Department immediately if his symptoms worsened or new symptoms developed. (Id. ¶ ¶ 53, 54.) Nonetheless, on multiple occasions over the next two days, these Defendants observed Prasad's serious and deteriorating medical conditions, but did not comply with the discharge instructions or secure Prasad timely or adequate medical care. (Id. ¶ ¶ 46, 60.)

On the evening of January 26, Weiss documented that Prasad was suffering from uncontrollable pain and spoke to Brown about it. (Id. ¶ 56.) Despite the discharge instructions, Prasad was neither evaluated later that night nor returned to the Emergency Department. (Id. ¶ 56.) From January 26 to January 28, Prasad stated aloud repeatedly that he was in extreme pain and having trouble breathing. (Id. ¶ 57.) He reported to Brown, Young, Weiss, Bhangu, Aguilar, Tahara, Diaz, Crawford, Rai, and Dickson that he thought he was going to die unless he received immediate medical attention. (Id. ¶ 57, 104f.) He completed and submitted at least one written request for medical treatment, relaying that he was suffering " extreme pain" and required " emergency" medical attention. (Id. ¶ 47.)

Observing Prasad's worsening condition, several fellow inmates notified Jail staff, including Young, Weiss, Bhangu, Aguilar, Rai, and Dickson, of Prasad's condition. (Id. ¶ 58.) Jail staff responded that Prasad " was faking his pain and other symptoms and that he and the other inmates needed to 'get over it.'" (Id. ¶ 58.) Attempting to help Prasad, fellow inmates collected blood Prasad had coughed up in an empty milk carton and showed it to Young and Rai, along with Brown and Dickson. (Id. ¶ 59, 104j.) Neither Young nor Rai evaluated Prasad or provided medical treatment for him. (Id. ¶ 60.)

At 9:00 a.m. on January 27, Brown documented Prasad's dangerous vital signs, recording his abnormally high pulse rate, precipitous drop in blood pressure, low grade fever, marked dehydration, and spreading bruising through his midsection. (Id. ¶ ¶ 3, 61.) Brown was aware of Prasad's rapidly worsening condition and need for immediate treatment, but only prescribed Prasad an additional pain killer. (Id. ¶ 61.)

During the January 27 evening medication pass, Prasad's serious illness, intense distress and need for immediate emergency medical care were evident. (Id. ¶ 62.) Vocational Nurse Bhangu observed Prasad's dire condition, but failed to document Prasad's symptoms, provide for his treatment, or secure any emergency medical care. (Id. ¶ 62.) Aguilar witnessed Prasad's condition and was told by Prasad and other inmates that Prasad required immediate medical attention. (Id. ¶ 63.) Aguilar made no effort to secure medical care or address Prasad's urgent

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medical needs. (Id. ¶ 63.) Dickson observed Prasad screaming in pain and begging to be taken to the hospital. (Id. ¶ 64.) In response, Dickson ignored Prasad's medical needs and ridiculed Prasad as " the type of person who comes to jail because he wants to get free medical care." (Id. ¶ 64.)

In the pre-dawn hours of January 28, after many hours of pleading for help and of deterioration, Rai and Young observed that Prasad's blood pressure and blood-oxygen saturation were dangerously low, that he was vomiting up blood, and was dizzy, sweating, cold, and clammy. (Id. ¶ 65.) Young documented all of this. (Id. ¶ 65.) Prasad reported to Rai and Young that he felt like he was " going to die." (Id. ¶ 65.) In response, Rai and Young placed Prasad in a Jail office, but provided no medical treatment, made no arrangements for his transport to the hospital, and failed to monitor his eroding health. (Id. ¶ 66.) Prasad was made to sit in the Jail room without medical attention of any kind for the next four hours as his condition continued to deteriorate. (Id. ¶ 67.)

Diaz and Tahara heard Prasad's pleas for help and reports that he felt like he was " going to die," and they heard Young tell Prasad that she would do nothing for him. (Id. ¶ 68.) Together, Young, Diaz, and Tahara locked Prasad back in the Jail office without providing or summoning any medical care. (Id. ¶ 68.) Crawford listened as Prasad kicked the locked door to the Jail office, repeatedly and desperately yelling " I can't breathe! I can't breathe!" (Id. ¶ 69.) In response, Crawford ordered Prasad to stop yelling and lie down. (Id. ¶ 69.) Crawford did not report these observations or make any effort to secure Prasad medical care. (Id. ¶ 69.)

As the Officer in Charge, Eaton was aware that Prasad had been reporting difficultly breathing for at least several hours, and that he was locked in the Jail office and not receiving any medical care. (Id. ¶ ¶ 70, 71.) At the end of his 6:00 a.m. shift, Eaton conveyed this information to Stohlman. (Id. ¶ 71.) Neither Eaton nor Stohlman made any effort to summon medical care for Prasad. (Id. ¶ 72.) Garbett, too, was informed of Prasad's critical condition, but did nothing to summon emergency care. (Id. ¶ 67.)

Not until nearly four hours after Prasad was placed in the Jail office exhibiting dangerous symptoms was an ambulance summoned. (Id. ¶ 73.) By that time, Prasad's skin had turned blue due to severe oxygen deficiency and cyanosis; his blood pressure could no longer be detected; and he was suffering from severe sepsis. (Id. ¶ 73.) Prasad experienced severe bronchopneumonia, multiple organ failure, and excruciating pain. (Id. ¶ 75.) When he finally reached the Intensive Care Unit (" ICU" ) at Rideout, he was unconscious and in critical condition. (Id. ¶ 75.)

Once Prasad reached the ICU, Parker, Samson, Bidwell, and Stohlman attempted to distance the Jail from Prasad's dire condition, taking steps to drop all pending charges and " release" Prasad on his own recognizance. (Id. ¶ 77.) Prasad was in a coma at the time. (Id.) Stohlman personally signed paperwork effecting Prasad's release on his own recognizance, collected Prasad's belongings from Jail, and transported them to Rideout as Prasad lay dying. (Id. ¶ 77.)

Meanwhile, no Defendant timely contacted Prasad's family. (Id. ¶ 76.) At 4:19 p.m. on January 28, Prasad was pronounced dead by Rideout staff at the age of thirty. (Id. ¶ ¶ 6, 78.) Prasad's mother, Mary Prasad, his children, T.P. and A.P., then six and seven years old, and his other family members were unable to make it to Rideout while Prasad was still alive. (Id. ¶ ¶ 6, 76.) Throughout his life Prasad had supported his children emotionally and financially

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and remained exceptionally close with his mother. (Id. ¶ 6.) Prasad's mother and children have been profoundly harmed by his death. (Id. ¶ ¶ 100-02.)

II. LEGAL STANDARD

A. Motion to Dismiss

Decision on a Rule 12(b)(6) dismissal motion requires determination of " whether the complaint's factual allegations, together with all reasonable inferences, state a plausible claim for relief." United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 (9th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell A. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

In evaluating a Rule 12(b)(6) motion, the court " accepts the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the light most favorable to the plaintiff." Adams v. U.S. Forest Serv., 671 F.3d 1138, 1142-43 (9th Cir. 2012) (citing Twombly, 550 U.S. at 555-56). However, this tenet does not apply to " legal conclusions . . . cast in the form for factual allegations." Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (internal quotation marks omitted). " Therefore, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Id. (internal quotation marks omitted); see also Iqbal, 556 U.S. at 678 (" A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" (quoting Twombly, 550 U.S. at 555)).

B. Motion to Strike

Rule 12(f) permits a court to " strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Since interpretation of the Rule begins with its plain meaning, a motion to strike will not be granted unless the matter to be stricken is " (1) an insufficient defense; (2) redundant; (3) immaterial; (4) impertinent; or (5) scandalous." Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973-74 (9th Cir. 2010).

As the movants, Fraters and Rideout bear the burden on their motions to strike, SEC v. Sands, 902 F.Supp. 1149, 1166-67 (C.D. Cal. 1995), and their motions will not be granted unless the matter to be stricken could have no possible bearing on the controversy. Neveau v. City of Fresno, 392 F.Supp.2d 1159, 1170 (E.D. Cal. 2005); see Nat'l Res. Def. Council v. Kempthorne, 539 F.Supp.2d 1155, 1162 (E.D. Cal. 2008) (noting such motions are disfavored and infrequently granted). Further, when ruling on the motions to strike, the court accepts Plaintiffs' allegations as true and liberally construes the complaint in the light most favorable to Plaintiffs. Stearns v. Select Comfort Retail Corp., 763 F.Supp.2d 1128, 1140 (N.D. Cal. 2010); Multimedia Patent Trust v. Microsoft Corp., 525 F.Supp.2d 1200, 1211 (S.D. Cal. 2007); Lazar v. Trans Union LLC, 195 F.R.D. 665, 669 (C.D. Cal. 2000).

III. DISCUSSION

C. Sutter County, Parker, Samson, Bidwell, Cummings, Bhattal, Garbett, Brown, Young, Weiss, Bhangu, Stohlman, Eaton, Aguilar, Tahara, Diaz, Crawford, Rai, and Dickson's Dismissal Motion

Plaintiffs allege claims against the Sutter Defendants for cruel and unusual punishment based on theories of direct, supervisory,

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and municipal liability, (SAC ¶ ¶ 103-26); substantive due process interference with the right to family integrity, (id. ¶ ¶ 127-30); failure to furnish or summon medical care, (id. ¶ ¶ 131-36); and wrongful death. (Id. ¶ ¶ 137-42.) The Sutter Defendants move to dismiss each of these claims. (Sutter Defs.' Mot. to Dismiss (" Sutter Defs.' Mot." ), ECF No. 61, 6:18-18:9.)

(1) Causation

The Sutter Defendants first argue that the entire complaint " contains insufficient and/or inconsistent facts for the purpose of showing Defendants' conduct caused the decedent's death" because the complaint (1) fails to individuate its causal allegations against each of the Sutter Defendants, (Sutter Defs.' Mot. 6:16-8:10); (2) states via Attachment B that " it is . . . probably unlikely that an earlier transport to the hospital would have changed" Prasad's death, (id. 6:17-18, 7:3-4); and (3) admits that Prasad's condition " further deteriorated at the hospital . . . before he died." (Id. 7:10-13.) Plaintiffs counter that the Sutter Defendants ignore the complaint's individualized and " express" allegations of causation, (Pls.' Opp'n to Sutter Defs.' Mot. to Dismiss (" Pls.' Opp'n" ), ECF No. 63, 6:17), misconstrue the weight and legal effect of Rideout employees' self-serving speculation in Attachment B, (id. 6:22-8:2), and disregard the Ninth Circuit's " emphatic" rejection of " the idea that jail staff cannot be liable for contributing to an inmate's death simply because they transfer [the inmate] . . . to a hospital before he dies." (Id. 8:4-6.) The Sutter Defendants' arguments are addressed in turn.

(a) Individualized Allegations

Section 1983 authorizes imposition of liability only on a defendant who " subjects, or causes [any person] to be subjected" to the deprivation of any rights guaranteed by federal law. 42 U.S.C. § 1983. Thus " 'a plaintiff must plead that each government-official defendant, through the official's own individual actions, [] violated the Constitution.'" OSU Student Alliance v. Ray, 699 F.3d 1053, 1069 (9th Cir. 2012) (quoting Iqbal, 556 U.S. at 676). Because the Sutter Defendants have not shown that Plaintiffs fail to include individual allegations supporting liability against each of them, see infra (assessing these arguments in detail), this portion of the Sutter Defendants' motion is denied.

(b) Attachment B

The Sutter Defendants argue that the complaint does not allege cause in fact and proximate causation against them since Plaintiffs " allege via Attachment B to Plaintiffs' SAC that 'it is unknown and probably unlikely than an earlier transport to the hospital would have changed'" Prasad's death. (Sutter Defs.' Mot. 7:3-7.) Plaintiffs argue that the " purported statements by Rideout physicians" in Attachment B do not implicate or contradict the complaint's detailed causation allegations. (Pls.' Opp'n 7:8.)

Generally, on a 12(b)(6) motion the court must accept all well-pleaded material factual allegations as true. Putnam Family P'ship v. City of Yucaipa, Cal., 673 F.3d 920, 925 (9th Cir. 2012). However, exhibits to the complaint are part of the complaint for all purposes, Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1124 (9th Cir. 2013), and the court need not " accept as true allegations that contradict exhibits attached to the [c]omplaint." Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010) (emphasis added); accord Interstate Natural Gas Co. v. S. Cal. Gas Co., 209 F.2d 380, 384 (9th Cir. 1953) (noting that a " motion to dismiss . . . does not admit . . . facts which are revealed to be unfounded by documents included in the pleadings" ). In practice, to

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warrant departure from the traditional rule that a complaint's well--pleaded factual allegations are accepted as true, the contradiction between the complaint and its exhibit " must be virtually inescapable." William W. Schwarzer et al., California Practice Guide: Federal Civil Procedure Before Trial § 9:226 (2013). Thus a plaintiff is not required " to adopt every word within the exhibits as true for purposes of pleading simply because the documents were attached to the complaint to support an alleged fact." N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 455 (7th Cir. 1998). Nor are a complaint's allegations contradicted by " authorities' possibly self-serving statements" in " a report asserting that defendants did everything possible to . . . protect plaintiff." Scanlan v. Sisto, CIV S-09-2808 LKK CKD P, 2012 WL 1130668, at *3 (E.D. Cal. Mar. 28, 2012); see Jones v. City of Cincinnati, 521 F.3d 555, 561 (6th Cir. 2008) (recognizing that treating an attachment " as part of a pleading does not mean that we assume everything [defendants] said in [the attachment] is true" ); Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 675 (2d Cir. 1995) (explaining that plaintiffs may attach an exhibit prepared or authored by a defendant " as a self-serving document rather than a particularization of their claim" ).

Here, the statement in Exhibit B by Rideout employees that an earlier transport to the hospital " probably" would not have changed Prasad's death is a " possibly self serving statement[]" by employees of a Defendant in this action. Scanlan, 2012 WL 1130668, at *3. Thus Exhibit B does not " contradict" Plaintiffs' express allegations that Prasad's death was unnecessary and avoidable. Daniels-Hall, 629 F.3d at 998. Nor does it reveal Plaintiffs allegations to be " unfounded." [2] Interstate Natural Gas Co., 209 F.2d at 384. Accordingly, this portion of the Sutter Defendants' dismissal motion is denied.

(c) Prasad's Death at Rideout

The Sutter Defendants argue Plaintiffs fail to allege that they caused Prasad's death " because decedent's condition allegedly further deteriorated at the hospital . . . before he died." (Sutter Defs.' Mot. 7:10-13.) Plaintiffs respond that the " Ninth Circuit has emphatically rejected the idea that jail staff cannot be liable for contributing to an inmate's death simply because they transfer [the inmate] . . . to a hospital before he dies." (Pls.' Opp'n 8:4-6.) Plaintiffs are correct. The fact that Prasad did not die until several hours after he reached Rideout neither precludes liability by the Sutter Defendants nor undermines Plaintiffs' causation allegations against them. See Ortiz v. City of Imperial, 884 F.2d 1312, 1313-14 (9th Cir. 1989) (per curiam) (reversing grant of summary judgment for jail nurses and doctor where inmate died ten days after he was transported from jail to the hospital); see generally Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (contemplating § 1983 liability where lack of medical care produces prisoner's " 'lingering death'" ) (quoting In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519 (1890)). Further, " even if [the Sutter Defendants are] correct that death was not a foreseeable consequence of [their] deliberate

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indifference, this argument does not exonerate [them]" from liability under § 1983 if " [d]eath was not the only [severe] injury [Prasad] suffered at the hands of [the Sutter Defendants]." Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1192 (9th Cir. 2002) (rejecting county's argument that its deliberate indifference did not proximately cause decedent's death since " [d]eath was not the only injury [decedent] suffered at the hands of the [c]ounty" ). Accordingly, this portion of the Sutter Defendants' dismissal motion is denied.

(2) Deliberate Indifference to Serious Medical Needs

Deputies Dickson, Rai, Aguilar, Tahara, Diaz, and Crawford (the " Deputies" ) argue Plaintiffs fail to allege their deliberate indifference to a serious medical need since " 'a non-medical prison official will generally be justified in believing that the prisoner is in capable hands'" when the " 'prisoner is under the care of medical experts,'" (Sutter Defs.' Mot. 9:1-21 (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004))), and here, the complaint does not specifically allege that the Deputies were present with Prasad when members of the nursing staff were not. (Id. 9:9-16.) Plaintiffs counter that for four " hours each day . . . the custody staff were the only individuals in a position to address the emergency medical needs of inmates like Mr. Prasad," and " [e]ven the non-controlling case the Sutter Defendants cite--Spruill v. Gillis--held only that a claim against custody staff is inadequate 'absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner.'" (Pls.' Opp'n 11:24-12:2 (quoting Spruill, 372 F.3d at 236).) Here, the complaint " alleges that [the Deputies] knew that Mr. Prasad was not receiving medical treatment." (Id. 12:2-3.)

Deliberate indifference to a pretrial detainee's serious medical needs violates the Fourteenth Amendment, whether the indifference is manifested by doctors, guards, or other personnel. Erickson v. Pardus, 551 U.S. 89, 90, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam); Estelle, 429 U.S. at 104-05. To establish deliberate indifference, a detainee " need not prove that he was completely denied medical care." Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (en banc); see Snow v. McDaniel, 681 F.3d 978, 986 (9th Cir. 2012) (finding medical and custodial prison staff deliberately indifferent to prisoner's serious medical needs even though prisoner was " provided [with] medical care, medications, and specialist referrals . . . during the period in question" ). Instead, the detainee must show (1) a serious medical need and (2) a deliberately indifferent response, such as defendants' " den[ial], delay or intentional interference with medical treatment." Jett, 439 F.3d at 1096.

" [A]llegations that a prison official has ignored the instructions of a prisoner's treating physician are sufficient to state a claim for deliberate indifference." Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th Cir. 1999). Thus a prisoner states a cognizable deliberate indifference claim when prison staff " unreasonably rely[] on their own non-specialized conclusions" in contravention of a treating physician's directive. Snow, 681 F.3d at 986; see also Lopez, 203 F.3d at 1131-32. Similarly, allegations that prison officials ignored the instructions of treating or specialized physicians in favor of non-treating or non-specialized medical providers suffice to state a deliberate indifference claim. See Snow, 681 F.3d at 986-87 (finding triable deliberate indifference issue where defendants ignored medical instructions from prisoner's board certified

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treating physicians, but followed the medical recommendation of a panel of non-specialized physicians who largely did not treat the prisoner); Hamilton v. Endell, 981 F.2d 1062, 1064 (9th Cir. 1992) (finding triable deliberate indifference issue where prison officials ignored treating physician's instruction and followed non-treating physician's contrary and likely inferior recommendation " based upon his personal experience and his consultation with a[ relevant] specialist" ) abrogated in part on other grounds by Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1045 (9th Cir. 2002).

According to the complaint, Prasad was taken to see Dr. Fraters for specialized emergency treatment. (SAC ¶ ¶ 48-50.) When Fraters discharged Prasad, he did so with specific instructions that Prasad be returned to the emergency department immediately should his symptoms worsen or new symptoms develop. (Id. ¶ 50.) The Deputies knew all of this. (Id. ¶ 54.) They then observed Prasad's condition dramatically worsen and develop. (Id. ¶ ¶ 63-69.) Neither the Deputies nor Jail medical staff returned Prasad to the emergency room as required by the discharge order. (Id. ¶ ¶ 73-74.) Under these circumstances--where the Deputies knew Jail medical staff were treating Prasad, but ignoring Prasad's treating, specialized physician's discharge instructions--the Deputies were not " justified in believing that [Prasad wa]s in capable hands." Spruill, 372 F.3d at 236. By ignoring Prasad's discharge instructions, the Deputies were deliberately indifferent to Prasad's serious medical needs. See Wakefield, 177 F.3d at 1165. Accordingly, this portion of the Sutter Defendants' dismissal motion is denied.

(3) Supervisory Liability

Sheriff Parker, Jail Commander Samson, Jail Lieutenant Bidwell, Health Officer Cummings, Assistant Human Services Director Bhattal, Nurse Program Manager Garbett (" Supervisory Defendants" ), and Correctional Officers Stohlman and Eaton argue that Plaintiffs allege neither their knowledge of, nor personal participation in, the deprivation of Prasad's constitutional rights. (Sutter Defs.' Mot. 10:18-11:11.) The Supervisory Defendants contend that the only direct allegations against them are that Cummings " treated Prasad for pain on January 26, 2011," (id. 10:27-28), and that Garbett was " informed of Prasad's condition." (Id. 11:2.) They also argue that Plaintiffs' remaining, policymaking allegations against them fail since Plaintiffs allege they " failed to implement curative policies, without any allegations that [they] knew of past constitutional violations" relevant to preventing the injury in this case. (Sutter Defs.' Mot. 11:7-19.) Plaintiffs respond that " widespread failures to provide minimally adequate policies, procedures and training in the face of [a court order directing the same] were known to and thus consciously tolerated or undertaken by the Supervisory Defendants," (Pls.' Opp'n 14:23-26), and that the Supervisory Defendants' arguments about their lack of direct knowledge and personal participation are " plainly false" with respect to Cummings and Garbett. (Pls.' Opp'n 13:20-21 (citing SAC ¶ ¶ 48, 54, 67, 70-72).)

" 'Supervisory liability exists even without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of a constitutional violation.'" Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (quoting Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc)). Where a complaint " specifically alleges . . . that [a supervisory defendant]

Page 1114

was given notice, in several reports, of systematic problems," and he " did not take action to protect inmates under his care despite the dangers . . . of which he had been made aware," such allegations " plausibly suggest that [he] acquiesced in the unconstitutional conduct of his subordinates, and was thereby deliberately indifferent to the danger posed to [plaintiff]." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Here, the complaint pleads just that. Plaintiffs allege that Cummings, Bhattal, and Garbett authorized and implemented a policy whereby Jail medical staff were available only from 4:00 a.m. to midnight, (SAC ¶ 82), and despite the lack of 24-hour medical staff and the consequent danger to inmates with emergency medical needs, Parker, Samson, and Bidwell created and enforced a policy whereby only medical staff obtained medical care for inmates. (Id. ¶ ¶ 74, 83.) Plaintiffs further allege that the Supervisory Defendants were on notice from earlier documented reports that medical staff should be at the Jail seven days a week, twenty-four hours a day. (Id. ¶ ¶ 82, 85.) This is enough to state a claim for deliberate indifference against the Supervisory Defendants.

The non-policymaking Defendants, Stohlman and Eaton, contend that the only direct allegations against them are that Eaton " 'became aware' of Prasad" sometime between the evening of January 27 and 6:00 a.m. on January 28, (id. 11:5-6), and that Stohlman was " 'informed,' after the start of her shift at 6:00 a.m. on January 28, 2011, that Prasad had been moved to the [J]ail office and seen by Nurse Young." (Id. 11:7-8.) Plaintiffs again counter that these arguments are " plainly false." (Pls.' Opp'n 13:20-21 (citing SAC ¶ ¶ 48, 54, 67, 70-72).)

Plaintiffs specifically allege that as the Officers in Charge Stohlman and Eaton (1) reviewed Prasad's discharge instructions ordering his immediate return to Rideout should his symptoms worsen or develop (SAC ¶ 54); (2) knew Prasad had been complaining of severe difficulty breathing for at least several hours after his return from Rideout, (id. ¶ ¶ 70, 71); and (3) yet did nothing to help Prasad or to affect the inaction of the officers under their supervision. (Id. ¶ 72.) These allegations establish that Stohlman and Eaton acquiesced in the constitutional deprivation by " 'knowingly refus[ing] to terminate a series of acts by others, which [they] knew or reasonably should have known would cause others to inflict a constitutional injury.'" Starr, 652 F.3d at 1207-08 (quoting Dubner v. City & Cnty. of S.F., 266 F.3d 959, 968 (9th Cir. 2001)). Thus, the complaint states a claim against Stohlman and Eaton based on their supervisory liability. Id. at 1208. Accordingly, this portion of the Sutter Defendants' dismissal motion is denied.

(4) Municipal Liability

The County advances four basis for dismissal of Plaintiffs' Monell claim against it, all of which attack the sufficiency of Plaintiffs' pleading of a municipal policy that was the moving force behind the alleged constitutional violation. Specifically, the County argues that Plaintiffs fail to state a claim since (1) a plan or policy that does not exist " necessarily could not be the moving force behind an alleged constitutional violation," (Sutter Defs.' Mot. 13:9-10); (2) the " policy of allowing no one but medical staff to summon outside emergency care . . . was not the moving force behind the decedent's death," (id. 13:13-15); (3) Plaintiffs' claim that the County failed to " 'maintain . . . and transmit[] critical medical information about Jail inmates to affiliated health care providers'" is " internally inconsistent" because Plaintiffs also allege the County " 'maintained'" medical documentation (id. 14:1-3, 13:26 (quoting SAC ¶ ¶ 49, 42); and (4) Plaintiffs " fail[] to allege deliberately indifferent

Page 1115

policies" because they merely attack the County's failure to adhere to its own policies. (Id. 15:3-4.)

Plaintiffs counter that (1) " 'a local governmental body may be liable if it has a policy of inaction and such inaction amounts to a failure to protect constitutional rights,'" (Pls.' Opp'n 18:8-10 (quoting Berry v. Baca, 379 F.3d 764, 767 (9th Cir. 2004); (2) the complaint " plainly alleges" that Jail staff's failure to summon emergency medical care contributed to Prasad's death, (id. 18:25-26); (3) the County's production of medical records is " wholly consistent" with its failure to transmit this information to Rideout, (id. 19:2-6); and (4) generally, the County impermissibly " attempts to controvert the SAC's allegations that 'widespread deficiencies in training, staffing, and maintenance of current policies and procedures for the provision of health care to inmates' in Sutter County 'have been known . . . for years, have not been addressed or corrected, and directly and substantially contributed to [Mr. Prasad's] death.'" (Id. 19:7-11 (quoting SAC ¶ 7).)

In its reply brief, the County responds that Plaintiffs' characterizations of its policies are unsupported by the complaint, which states only that there was " 'an established practice in effect at Sutter County Jail such that medical staff were responsible for determining who goes to the hospital or calling for an ambulance in an emergency situation'" and that " individuals failed [to] maintain records" or followed a practice of not doing so, " not that there was an express policy " to that effect. (Sutter Defs.' Reply to Pls.' Opp'n to Mot. to Dismiss (" Sutter Defs.' Reply" ), ECF No. 70, 5:25-6:8 (quoting SAC ¶ 74) (emphases added).)

To subject the County to liability, Plaintiffs must allege that the County " had a deliberate policy, custom, or practice that was the moving force behind the constitutional violation." AE ex rel. Herndandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (quoting Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007)). For purposes of County liability, a " policy" includes a policy of inaction due to failure to train County employees. Waggy v. Spokane Cnty. Wash., 594 F.3d 707, 713 (9th Cir. 2010) (citing City of Canton v. Harris, 489 U.S. 378, 392, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). A " practice" or " custom" involves an act that is so " longstanding" that it " constitutes the standard operating procedure of the local government entity." Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 964 (9th Cir. 2008) (quoting Ulrich v. City & Cnty. of S.F., 308 F.3d 968, 984 (9th Cir. 2002)); see also Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (defining a " custom" or " practice" in the same way). Here, Plaintiffs assert their Monell claim based on the County's alleged policy of inaction and based on its affirmative customs and practices. (See Pls.' Opp'n 17:12-25.) Specifically, Plaintiffs allege that the County maintained customs or practices " whereby no medical staff whatsoever were on site for one-sixth of every day," " custody staff lacked authority to respond to emergent and critical inmate needs," and " the medical records system withheld crucial information about inmates from affiliated health care providers like Rideout." (Id. 17:15-23.) Plaintiffs also allege a policy of inaction by the County involving " a complete failure to train that rendered [J]ail staff incompetent and unequipped to identify or respond to medical emergencies." (Id.; SAC ¶ 98.)

Under either theory of liability, the County's customs, practices, or inaction must be the cause-in-fact and proximate cause of the alleged constitutional violations. E.g., Harper v. City of L.A., 533 F.3d 1010, 1026 (9th Cir. 2008); Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th

Page 1116

Cir. 1996). Here, Plaintiffs' complaint amply alleges that the County's customs, practices, and policy of inaction caused Prasad's preventable early death. (E.g., SAC ¶ ¶ 1, 7 (alleging that Prasad's MRSA " infection [was] wholly treatable through basic and timely medical attention," but that Prasad died an " unnecessary and avoidable death" because of " widespread deficiencies in training, staffing, and maintenance of current policies and procedures for the provision of health care to inmates at Sutter County Jail" ).) Thus in this case, the allegedly " unconstitutional policy at issue and the particular injury alleged are not only 'closely related,' they are cause and effect." Harper, 533 F.3d at 1027 (quoting City of Canton, 489 U.S. at 391).

Nor are the County's specific arguments availing. The absence of a policy may supply a basis for Monell liability if the absence leads to a failure to protect constitutional rights. E.g., Cabrales v. Cnty. of L.A., 864 F.2d 1454, 1461 (9th Cir. 1988) (explicitly rebutting the argument " that only affirmative acts constitute a policy or custom for section 1983 purposes" ), vacated on other grounds, 490 U.S. 1087, 109 S.Ct. 2425, 104 L.Ed.2d 982 (1989). Likewise, a practice may give rise to Monell liability just as a policy may do the same. E.g., Villegas, 541 F.3d at 964. Nor are the complaint's allegations--the County created medical records, but failed to transmit them to Rideout--contradictory or reason to discredit the complaint's causal allegations. Further, the County had not identified any unforeseeable intervening causes that negate an inference of proximate causation. Accordingly, this portion of the dismissal motion is denied.

(5) Substantive Due Process Right to Family Integrity

The Sutter Defendants seek dismissal of Plaintiffs' substantive due process claim against them, arguing that " Plaintiffs fail to allege sufficient facts showing each of the Defendants 'shocked the conscience,'" as required to state a claim for interference with their family integrity, " particularly in light of . . . allegations that Prasad was seen and treated, placed under observation by medical staff, and finally transported to the hospital." (Sutter Defs.' Mot. 12:2-5.) [3] The Sutter Defendants do not advance other arguments for dismissal of Plaintiffs' claim. Plaintiffs respond that the complaint's " allegations against each of the Sutter Defendants easily states a claim that their conduct rose to the conscience-shocking level," and they recite many of these " additional specific allegations." (Pls.' Opp'n 16:7-8, 15:25.)

A prison official's deliberate indifference to a prisoner's serious medical needs shocks the conscience and states a claim under the substantive due process clause. See supra (outlining the same). Here, since Plaintiffs allege deliberate indifference by the Sutter Defendants, and since the Sutter Defendants advance no other arguments for dismissal, Plaintiffs have stated a substantive due process claim against the Sutter Defendants. Accordingly, this portion of the Sutter Defendants' dismissal motion is denied.

(6) Failure to Summon Medical Care

Deputies Dickson, Rai, Crawford, Diaz, Aguilar, and Tahara; Correctional Officers Stohlman, and Eaton; and Jail Nurse Program Manager Garbett (" these Defendants" ) seek dismissal of Plaintiffs'

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Cal. Gov't Code § 845.6 claim for failure to summon medical care. [4] These Defendants argue that liability under § 845.6 is limited " only to situations where [a] public employee 'intentionally or unjustifiably fails to furnish immediate medical care,'" and here, since Prasad was " already" or " concurrently" under observation by medical staff, none of these Defendants intentionally or unjustifiably failed to summon medical care for Prasad. (Sutter Defs.' Mot. 16:7-8, 16:17, 16:21 (quoting Watson v. California, 21 Cal.App.4th 836, 841, 26 Cal.Rptr.2d 262 (1993)).) Plaintiffs counter that § 845.6 requires public employees to summon medical care if they have " 'actual or constructive knowledge'" of an inmate's need for immediate medical care, and Defendants here failed to summon and " secure necessary emergency care [for Prasad] when they knew none was being provided." (Pls.' Opp'n 20:21, 21:28-29:1 (quoting Lucas v. Cnty. of L.A., 47 Cal.App.4th 277, 288, 54 Cal.Rptr.2d 655 (1996)).)

Under Cal Gov't Code § 845.6, " a public employee . . . is liable if the employee knows or has reason to know that [a] prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care." Section 845.6 thus " 'creates liability'" and " 'an obligation of help.'" Lawson v. Superior Court, 180 Cal.App.4th 1372, 1384 n.11, 103 Cal.Rptr.3d 834 (2010) (quoting Johnson v. Cnty. of L.A., 143 Cal.App.3d 298, 317, 191 Cal. Rptr. 704 (1983)). However, this obligation to help does not extend to " furnishing, monitoring, follow-up, or subsequent care for the same condition" for which care was originally summoned. Castaneda v. Dep't of Corr. & Rehab., 212 Cal.App.4th 1051, 1074, 151 Cal.Rptr.3d 648 (2013); see id. (rejecting the Ninth Circuit's broader holding in Jett v. Penner that § 845.6 requires public employees to summon " treatment," and not just " diagnosis" ); Watson, 21 Cal.App.4th at 841-42 (emphasizing § 845.6's creation of an obligation to " summon " medical care without mention of any concomitant duty to " provide reasonable medical care" ); Sanders v. Yuba Cnty., 247 Cal.App.2d 748, 753 n.3, 55 Cal. Rptr. 852 (1967) (recognizing that whereas the original draft of § 845.6 required a public employee " to 'see' to it" that a prisoner received needed immediate care, the enacted version of § 845.6 merely requires an employee " to 'summon' medical care" ).

Plaintiffs argue that the court should refrain from " 'speculat[ing] on the nature of the medical care, if any, which here should have been summoned for Decedent'" since the question of the reasonableness of Defendants' conduct is a " 'question[] of fact to be determined at trial'" by the jury. (Pls.' Opp'n 21:14-18 (quoting Johnson, 143 Cal.App.3d at 317).) While Plaintiffs are correct that § 845.6 generally presents a factual question for the jury, even the Johnson court--upon which Plaintiffs rely, and which reversed a grant of demurrer on plaintiffs' § 845.6 claim--noted that under § 845.6 " merely calling a doctor or other trained health care provider to examine a prisoner may be sufficient." Johnson, 143 Cal.App.3d at 317. Unlike in Johnson, where defendants failed to so much as " call a doctor or other trained health care provider" for the prisoner, id., here, Prasad was " already" or " concurrently" under medical supervision when observed by these Defendants. (Sutter Defs.' Mot. 16:17, 16:21.) Accordingly, since § 845.6 does not extend to " furnishing, monitoring, [or] follow-up" once care has been summoned, Castaneda, 212 Cal.App.4th at 1074,

Page 1118

and since it would be redundant to read § 845.6 as requiring Defendants to summon care when care was already there and further action was not required, Plaintiffs' § 845.6 claim against Defendants Garbett, Stohlman, Eaton, Dickson, Rai, Crawford, Diaz, Aguilar, and Tahara is dismissed.

(7) Wrongful Death

The Sutter Defendants seek dismissal of Plaintiffs' wrongful death claim against them, arguing that " [a] claim for relief under California's wrongful death statute requires that the Complaint 'contain allegations as to all the elements of actionable negligence' from which the death occurred," (Sutter Defs.' Mot. 17:3-5 (quoting Jacoves v. United Merch. Corp., 9 Cal.App.4th 88, 105, 11 Cal.Rptr.2d 468 (1992))). According to the Sutter Defendants, however, Plaintiffs fail to allege the negligence elements of duty and causation since (1) " the decedent was released on his own recognizance before expiring at the hospital," (id. 17:24-26); (2) Prasad spent an " apparently lengthy" period at the hospital and his " earlier arrival 'probably unlikely' would have prevented his death," (id. 18:5-7); and (3) the non-medical professionals " owed no duty of professional medical care to the decedent." (Id. 17:18-22.) Plaintiffs respond that a wrongful death claim may be predicated on " either the 'negligence or other wrongful act' of a tortfeasor," and here Plaintiffs allege that " each defendant engaged in 'wrongful acts and/or omissions,'" namely " deliberate indifference to medical needs and failure to summon needed care," that " directly and proximately caused Mr. Prasad's death." (Pls.' Opp'n 22:23-28.)

The elements of a California wrongful death claim are: " (1) a 'wrongful act or neglect' on the part of one or more persons that (2) 'cause[s]' (3) the 'death of [another] person.'" Norgart v. Upjohn Co., 21 Cal.4th 383, 390, 87 Cal.Rptr.2d 453, 981 P.2d 79 (1999) (quoting Cal. Civ. Proc. Code § 377.60) (alterations in original)). A wrongful death claim may be predicated on negligence or other tortious conduct. See infra (discussing this issue at some length). Here, Plaintiffs allege that each of the Sutter Defendants were deliberately indifferent to Prasad's serious medical needs, and that their deliberate indifference caused Prasad's preventable death. These allegations suffice to state a claim for wrongful death. Nor are the Sutter Defendants' arguments about the lapse of time, lack of duty, or " release" of Prasad on his own recognizance persuasive. See supra. Accordingly, this portion of the Sutter Defendants' dismissal motion is denied.

(8) Prayer for Punitive Damages

Defendants Cummings, Garbett, Brown, Young, Weiss, and Bhangu (" Sutter Medical Defendants" ) seek to dismiss or strike Plaintiffs' prayer for punitive damages concerning Plaintiffs' state law claims. (Sutter Defs.' Reply 8:21-24). The Sutter Medical Defendants argue that dismissal is warranted since " Plaintiffs did not petition the Court for punitive damages against Defendants" under Cal. Civil Proc. Code § 425.13. (Sutter Defs.' Mot. 18:26-27.) Plaintiffs counter that § 425.13 " does not apply in federal courts where punitive damage claims can be addressed 'through case management procedures.'" [5] (Pls.'

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Opp'n 24:15-16 (quoting Jackson v. E. Bay Hosp., 980 F.Supp. 1341, 1353 (N.D. Cal. 1997), aff'd, 246 F.3d 1248 (9th Cir. 2001)).)

California Civil Procedure Code § 425.13 prescribes that " [i]n any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed." Cal. Civ. Pro. Code § 425.13(a). To obtain an order authorizing a request for punitive damages under § 425.13, the court must determine on the plaintiff's motion " that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim." Id.

Federal district courts have divided on whether § 425.13 applies in federal court. Decisions from this district generally apply the statute, finding § 425.13 is " intimately bound to the state substantive causes of action for professional negligence" and therefore " more properly [a] rule[] of substantive law within the meaning of Erie." Thomas v. Hickman, No. CV F 06-0215 AWI SMS, 2006 WL 2868967, at *40 (E.D. Cal. Oct. 6, 2006); see Allen v. Woodford, No. 1:05-CV-01104-OWW-LJO, 2006 WL 1748587, at *21 (E.D. Cal. June 26, 2006) (finding § 425.13 " so 'intimately bound up' with the substantive" law of professional negligence that it is " part of an integrated scheme for managing medical malpractice claims and constitutes a central feature of that scheme" ). These initial decisions in Thomas and Allen have since been followed by other decisions from this district. See Rhodes v. Placer Cnty., No. 2:09-CV-00489 MCE KNJ PS, 2011 WL 1302240, at *21 (E.D. Cal. Mar. 31, 2011) (following Allen and Thomas and holding " plaintiff must petition the court for punitive damages . . . pursuant to Section 425.13" ), adopted, 2011 WL 1739914 (E.D. Cal. May 4, 2011); see also Bock, 2012 WL 3778953, at *19 (following Thomas without the benefit of briefing on the inter-district split); Fraher v. Surydevara, No. 1:06-cv-01120-AWI-GSA PC, 2009 WL 1371829, at *2 (E.D. Cal. May 15, 2009) (same); Moreno v. The GEO Group, Inc., No. 1:07-CV-01630-CKJ, 2009 WL 841139, at *5 (E.D. Cal. Mar. 26, 2009) (granting unopposed motion to strike prayer for punitive damages under§ 425.13 without the benefit of briefing on the split).

By contrast, decisions from the Northern and Southern Districts of California generally decline to apply § 425.13, finding that the statute is " a procedural matter rather than a substantive one." Jackson, 980 F.Supp. at 1352. In Jackson, an early Northern District of California case addressing the question, the court adjudged § 425.13 inapplicable since it is " essentially a method of managing or directing a plaintiff's pleadings, rather than a determination of substantive rights." Id. (concluding that § 425.13 " is not 'a central feature' of the [California] medical malpractice scheme," and relying on intermediate California appellate court rulings that § 425.13 is non-jurisdictional, waivable, and " procedural" ). Jackson has since been followed and approved of by courts in the Northern and Southern District of California. See, e.g., George, 732 F.Supp.2d at 951 (concluding that " section 425.13 is a procedural rule that does not apply in federal court"

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and disagreeing with the reasoning of the leading Eastern District of California case holding otherwise); Burrows v. Redbud Cmty. Hosp. Dist., 188 F.R.D. 356, 361 (N.D. Cal. 1997) (" [S]ection 425.13 is a procedural rule for managing and directing pleadings: it does not create substantive limits on the damages a plaintiff may seek." ); Ortegoza v. Kho, No. 12-cv-529-L (KSC), 2013 WL 2147799, at *7 (S.D. Cal. May 16, 2013) (" agree[ing] with the Jackson court's determination that § 425.13 is procedural" and inapplicable in federal court); see also, e.g., Steel v. City of San Diego, 726 F.Supp.2d 1172, 1182 (S.D. Cal. 2010) (citing Jackson with approval); Franklin v. Allstate Corp., No. C-06-1909 MMC, 2007 WL 1991518, at *3-4 (N.D. Cal. 2007) (same); Shinde v. Nithyananda Found., No. EDCV 13-0363 JGB (Spx), 2013 WL 1953707, at *16 & n.6 (C.D. Cal. May 10, 2013) (same).

Despite the split in the application of § 425.13 in federal court, the issue has generally been considered a question of classification of the statute as substantive or procedural. Thus Jackson framed the question as presenting " an Erie issue: Is the punitive damages requirement substantive, so that state law applies, or is it procedural, so that federal law applies?" Jackson, 980 F.Supp. at 1351; see id. at 1352 (explaining that whether the " statute is procedural or substantive[ is] an inquiry this court finds essential to resolution of the issue" ). Likewise, Thomas, in the Eastern District, presented the issue for decision as whether § 425.13 should be deemed procedural or " 'substantive' for Erie purposes." Thomas, 2006 WL 2868967, at *40.

Instead of following this framing, Plaintiffs urge the court to adopt the reasoning of the Eleventh Circuit and to find that § 425.13's requirement that a plaintiff obtain an order authorizing punitive damages directly conflicts with Rule 8(a)(3) of the Federal Rules of Civil Procedure--thereby obviating the need for the " 'typical, relatively unguided Erie choice.'" Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 845 (9th Cir. 2001) (quoting Hanna v. Plumer, 380 U.S. 460, 471, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965)). (See generally Pls.' Supplemental Br. in Resp. to Ct.'s Apr. 3, 2013 Minute Order, ECF No. 83, 2:9-4:14.) For the reasons that follow, given the plain meaning of Rule 8(a)(3), and the persuasive reasoning of the Eleventh Circuit in Cohen v. Office Depot, Inc., this court follows Cohen and holds that Rule 8(a)(3) conflicts with Cal. Civ. Proc. Code § 425.13, making § 425.13 inapplicable in federal court.

When resolving whether a state law applies in federal court, a court " must first determine whether [the relevant Federal] Rule [] answers the question in dispute." Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 1431, 1437, 176 L.Ed.2d 311 (2010); accord Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 4-5, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987) (describing this as " [t]he initial step" in such determinations); Goldberg v. Pac. Indem. Co., 627 F.3d 752, 755 (9th Cir. 2010) (noting that the court must " first determine whether the federal rule is 'sufficiently broad to control the issue,'" and only " [i]f there is no direct conflict between the federal rule and the state rule" should the court then turn to the traditional Erie analysis); Hamm v. Am. Home Prods. Corp., 888 F.Supp. 1037, 1038 (E.D. Cal. 1995) (" [T]he first step of the analysis is to determine whether there is a Federal Rule of Civil Procedure that governs the matter at issue." ).

As the split concerning § 425.13 amply indicates, the task of classifying a law " as 'substantive' or 'procedural' for Erie purposes" is " challenging" when the law is not construed as covered by one of

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the Federal Rules. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 & n.7 (1996); see also Allstate Ins. Co., 130 S.Ct. At 1437 (describing the Erie analysis as " murky" when there is no governing Federal Rule); Hamm, 888 F.Supp. at 1038 (acknowledging that " the line between substance and procedure is neither static nor easily drawn" ). However, a court need not make a challenging and " relatively unguided Erie choice" when " a situation is covered by one of the Federal Rules." Hanna, 380 U.S. at 471; see Verizon Del., Inc v. Convad Commc'ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004) (finding " no[] need to proceed to the secondary test" under Erie because " a direct collision with a federal procedural rule exists" ). Instead, " when a Federal Rule of Civil Procedure is on point, it, not the state law, governs, so long as it does not run afoul of the Rules Enabling Act" or the Constitution. McCalla v. Royal MacCabees Life Ins. Co., 369 F.3d 1128, 1135 (9th Cir. 2004). [6]

Rule 8(a)(3) prescribes that " [a] pleading that states a claim for relief must contain . . . a demand for the relief sought, which may include relief in the alternative or different types of relief." Meanwhile, Cal. Civ. Proc. Code § 425.13 prevents a pleading that states a claim for relief from containing a demand for punitive damages without prior court authorization. Cal. Civ. Proc. Code § 425.13(a) (providing that " no claim for punitive damages shall be included in a complaint [arising out of the professional negligence of a health care provider] . . . unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed" ).

In Cohen v. Office Depot, Inc., the Eleventh Circuit analyzed a similar state law requiring leave of court to include a claim for punitive damages. Cohen, 184 F.3d 1292 (11th Cir. 1999), vacated in part on other grounds, 204 F.3d 1069 (11th Cir. 2000). It determined that the state law directly conflicted with Rule 8(a)(3), making it inapplicable in federal court. Id. at 1299. Cohen held that " because Rule 8(a)(3) allows a plaintiff to request in her initial complaint all the relief she seeks, it says 'implicitly, but with unmistakable clarity' that a plaintiff is not required to wait until a later stage of the litigation to include a prayer for punitive damages, nor is she required to proffer evidence or obtain leave of court before doing so." Cohen, 184 F.3d at 1298-99 (quoting Hanna, 380 U.S. at 470). Given the force of this reasoning, this court follows Cohen and holds that the plain meaning of Rule 8(a)(3) conflicts with Cal. Civ. Proc. Code § 425.13, making § 425.13 inapplicable in federal court.

Accordingly, the Sutter Medical Defendants' motion to dismiss Plaintiffs' prayer for state law punitive damages for failure to comply with § 425.13 is denied.

B. Rideout's Dismissal Motion

Plaintiffs allege claims against Rideout for cruel and unusual punishment, (SAC ¶ ¶ 103-08), substantive due process, (id. ¶ ¶ 127-30), and wrongful death. (Id. ¶ ¶ 137-42.) Rideout seeks dismissal of all of Plaintiffs' claims against it.

(1) Action Under Color of State Law

Rideout argues that its actions do not " rise to the level of being a State actor" under § 1983 since it was " uninvolved" and

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" not in contact with the [J]ail" at " the time [when] Prasad's serious medical needs" arose. (Rideout's Mot. to Dismiss (" Rideout's Mot." ), ECF No. 56, 9:12, 9:2-4; Rideout's Reply to Pls.' Opp'n to Mot. to Dismiss (" Rideout's Reply" ), ECF No. 72, 2:22-24.) Plaintiffs respond that " Rideout assumed a traditionally governmental function when it contracted to provide emergency medical services to Sutter County Jail inmates" and therefore its " conduct [constitutes state action] within the ambit of Section 1983." (Pls.' Opp'n to Rideout's Mot. to Dismiss (" Pls.' Opp'n to Rideout's Mot." ), ECF No. 64, 5:18-20, 6:2.)

A hospital is a state actor for purposes of § 1983 when it contracts with the state to provide adequate medical care to the state's incarcerated citizens. See Lopez v. Dep't of Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) (per curiam) (finding state action where hospital " contract[ed] with the state . . . to provide medical services to indigent citizens" ); George v. Sonoma Cnty. Sheriff's Dep't, 732 F.Supp.2d 922, 934 (N.D. Cal. 2010) (" A private . . . hospital that contracts with a public prison system to provide treatment for inmates performs a public function and acts under color of law for purposes of § 1983." ). Here, Rideout assumed a traditional governmental function and acted under color of state law by suppling " the sole facility to which Jail inmates [we]re transported to receive emergency medical care." (SAC ¶ 2.) To the extent that Rideout argues that it was not a state actor because it did not act in this case, (e.g., Rideout's Mot. 9:14-21), Rideout's argument concerns Plaintiffs' allegation that Rideout violated a constitutionally guaranteed right, not Rideout's status as a state actor. See generally Bradley v. Flannery, No. CV F F-11-0942 AWI DLB, 2011 WL 4738313, at *3 (E.D. Cal. Oct. 5, 2011) (noting " [d]efendants' argument tends to conflate the [separate] issues of whether [d]efendants were acting under color of law with the issue of whether any constitutionally guaranteed right was violated" ). Accordingly, this portion of Rideout's dismissal motion is denied.

(2) Deliberate Indifference to Serious Medical Needs

Rideout argues Plaintiffs have not pled Rideout's deliberate indifference to Prasad's serious medical needs since the complaint alleges neither Prasad's serious medical needs nor Rideout's deliberate indifference to those needs. (Rideout's Mot. 11:2-12:8.) Plaintiffs counter that the complaint alleges Rideout's knowledge of Prasad's " serious and life-threatening condition," (SAC ¶ 104(e)), Prasad's need for " access to emergency medical treatment if his symptoms worsened or new symptoms developed," (id.), and the Jail's inability to provide " observation, supervision, and ongoing [or timely] access to emergency medical treatment." (Id. ¶ 51; Pls.' Opp'n to Rideout's Mot. 7:9-8:2.)

In the Ninth Circuit, the test for deliberate indifference to a prisoner's serious medical needs is two-pronged. E.g., Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). " 'First, the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.'" Wilhelm, 680 F.3d at 1122 (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). Second, the plaintiff must " 'show the defendant's response to the need was deliberately indifferent'" by alleging " 'a purposeful act or failure to respond to a prisoner's pain or possible medical need'" and " 'harm caused by the indifference.'" Id. (quoting Jett, 439 F.3d at 1096).

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Plaintiffs have amply alleged that Prasad's condition constituted " a serious medical need" under the first prong of this test. Id. at 1122. Prasad was taken to Rideout because he was exhibiting signs of a serious and life-threatening condition and experiencing extreme pain and swelling in his lower extremities. (SAC ¶ ¶ 46, 50.) After a " brief" medical evaluation, (id. ¶ 48), Prasad was discharged from Rideout with instructions that if his symptoms worsen or new symptoms develop, he was to be returned to the Emergency Department immediately. (Id. ¶ 50.) Fewer than fifty-five hours later, Prasad died in extreme pain from the same condition for which he was admitted. (Id.) Rideout's argument that " any serious medical need ceased to exist" after Prasad was treated and discharged from Rideout, (Rideout's Mot. 11:11-12), is belied by Plaintiffs' allegations that Prasad died less than fifty-five hours later and that by the evening of his discharge, he was " coughing and/or vomiting up blood," experiencing " shortness of breath" and " severe chills," and " suffering from 'uncontrollable pain.'" (SAC ¶ 56.)

Under the second prong of this test, Rideout contends that Plaintiffs cannot allege its deliberate indifference since Prasad's medical needs were merely " 'likely,'" but not current or immediate. (Rideout's Reply 4:21-5:3.) However, there is no such limitation on deliberate indifference liability, which extends not just to failure to respond to a current medical need, but also to " failure to respond to a prisoner's . . . possible medical need." Jett, 439 F.3d at 1096; see also Doty v. Cnty. of Lassen, 37 F.3d 540, 546 (9th Cir. 1994) (defining a serious medical need as " the failure to treat a prisoner's condition [that] could result in further significant injury" or pain) (emphasis added). Plaintiffs allege Rideout knew that Prasad " was exhibiting signs of a serious and life-threatening condition and would need access to emergency medical treatment if his symptoms worsened or new symptoms developed," (SAC ¶ 104(e)), but that Rideout nonetheless discharged Prasad to the Jail--a setting where it knew that Prasad could not receive around-the-clock access to emergency medical treatment. (Id. ¶ ¶ 51, 52.) This is enough to plead Rideout's " failure to respond to [Prasad's] . . . possible medical need." Jett, 439 F.3d at 1096. Accordingly, this portion of Rideout's dismissal motion is denied.

(3) Substantive Due Process Right to Family Integrity

Rideout argues that Mary Prasad, T.P., and A.P.'s family integrity claim fails since their " constitutional claims alleged on behalf of the Decedent fail." (Rideout's Mot. 13:11-12.) Plaintiffs counter that " [b]ecause the SAC states a claim that Rideout maintained a policy and practice that was deliberately indifferent to Mr. Prasad's need for life-saving emergency medical care, it also states a claim that Rideout was deliberately indifferent to Mary Prasad's right to the companionship and society of her son, and to T.P. and A.P.'s rights to the companionship and society of their father." (Pls.' Opp'n to Rideout's Mot. 9:15-19.) Since Rideout has not in fact shown that Plaintiffs' other constitutional claims fail, see supra, this portion of Rideout's dismissal motion is denied.

(4) Wrongful Death

Rideout seeks dismissal of Plaintiffs' wrongful death claim, alleged under Cal. Civ. Proc. Code § 377.60, arguing that " [a]lthough Plaintiffs do not specifically allege medical malpractice, it may be inferred [from] the complaint" that Plaintiffs' claim is based on medical malpractice, and Plaintiffs have not met the requirements for a medical malpractice claim. (Rideout's Mot. 14:2-3.) Plaintiffs respond that their claim is based on " a wrongful act-namely,

Page 1124

deliberate indifference to serious medical needs-by Rideout," and " Rideout cannot secure dismissal by transmuting [Plaintiffs'] claims . . . into claims that it prefers to rebut." (Pls.' Opp'n to Rideout's Mot. 10:10-11, 10:5-6.)

Cal. Civ. Proc. Code § 377.60 authorizes " [a] cause of action for the death of a person caused by the wrongful act or neglect of another." The term " 'wrongful act' as used in section 377 means any kind of tortious act," including not only acts of negligence, but also acts of intentional or willful misconduct. Barrett v. Superior Court, 222 Cal.App.3d 1176, 1191, 272 Cal. Rptr. 304 (1990); see also Ewing v. Cloverleaf Bowl, 20 Cal.3d 389, 398, 143 Cal. Rptr. 13, 572 P.2d 1155 (1978) (considering wrongful death claim based on theories of " both negligence and willful misconduct" ). Thus a wrongful death claim against a medical provider need not assert professional negligence as its basis, but may instead be based on a provider's affirmatively wrongful conduct.

Here, Plaintiffs have pled Rideout's deliberate indifference to Prasad's serious medical needs in violation of the Fourteenth Amendment, which mirrors the Eighth Amendment standard. E.g., Lolli v. Cnty. of Orange, 351 F.3d 410, 418-19 (9th Cir. 2003); Gibson, 290 F.3d at 1187. An Eighth or Fourteenth Amendment violation is " quite distinct" from, and not " encompass[ed]" by, a claim for malpractice. Castaneda v. United States, 546 F.3d 682, 694 n.12 (9th Cir. 2008) (" stress[ing] the difference between malpractice and an Eighth [or Fourteenth] Amendment violation," and finding a medical provider's deliberate indifference to an inmate's medical needs is " categorically different from anything . . . term[ed] 'malpractice'" ), rev'd on other grounds sub nom. Hui v. Castaneda, 559 U.S. 799, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010). Therefore Plaintiffs' wrongful death claim based on Rideout's deliberate indifference is " categorically different" from a claim based on medical malpractice. Id. Thus Rideout's dismissal motion based on Plaintiffs' failure to state a medical malpractice claim is denied.

(5) Rule 12(e) Motion for a More Definite Statement

Rideout requests an order under Rule 12(e) " requiring [P]laintiffs to provide a more definite statement" of their claims, but provides no further information in support of its request. (Rideout's Mot. 14:25.) Plaintiffs argue that Rideout's motion " must be denied" since it " makes no effort to specify any purportedly vague or ambiguous provisions of the SAC." (Pls.' Opp'n to Rideout's Mot. 11:16-17.) Rideout does not respond to this portion of Plaintiffs' opposition. (Rideout's Reply.)

A motion for a more definite statement of a pleading under Rule 12(e) " must point out the defects complained of and the details desired." Fed.R.Civ.P. 12(e); see also Bautista v. L.A. Cnty., 216 F.3d 837, 843 n.1 (9th Cir. 2000) (stating that a party may seek a more definite statement by " pointing out" this information). The requirement that a Rule 12(e) motion identify these defects and details enables the court to " test the propriety of the motion . . . in light of the Rule's limited purpose," Charles Alan Wright et al., 5C Federal Practice & Procedure § 1378 (3d ed. 2012), which permits amendment only when a pleading is so " unintelligible" that " the defendant literally cannot frame a responsive pleading." Pub. Lands for the People, Inc. v. U.S. Dep't of Agric., 733 F.Supp.2d 1172, 1200 (E.D. Cal. 2010). A Rule 12(e) motion that does not identify the details desired from the more definite statement is neither " effective" nor " in compliance with Rule 12(e)." Gillibeau v. City of Richmond, 417 F.2d 426, 431 & n.5 (9th

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Cir. 1969). Here, since Rideout fails to point out defects in Plaintiffs' complaint or the details desired from the amendment, Rideout's Rule 12(e) motion is denied.

C. Fraters's Dismissal Motion

Fraters moves to dismiss Plaintiffs' claims against him for cruel and unusual punishment (SAC ¶ ¶ 103-08), substantive due process (id. ¶ ¶ 127-30), and wrongful death. (Id. ¶ ¶ 137-42.)

(1) Action Under Color of State Law

Fraters seeks dismissal of Plaintiffs' § 1983 claims, arguing Plaintiffs have not shown that Fraters acted under color of state law, since he neither acted under the direction of the state nor contracted directly with the state. (Fraters's Mot. to Dismiss (" Fraters's Mot." ), ECF No. 52, 4:22-5:13.) Plaintiffs respond that Fraters acted under color of state law for purposes of § 1983 since the state contractually delegated to Rideout its obligation to provide medical care for inmates, and Fraters acted as Rideout's agent under that contract. (Pls.' Opp'n to Fraters's Mot. to Dismiss (" Pls.' Opp'n to Fraters's Mot." ), ECF No. 66, 4:5-6:18.)

Since the state bears " an affirmative obligation to provide adequate medical care" to its inmates, a private physician who " is authorized and obliged to treat prison inmates" acts under color of state law for purposes of § 1983. West v. Atkins, 487 U.S. 42, 56, 55, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Here, the state " delegated" to Rideout the provision of medical care for state inmates; Rideout " voluntarily assumed that obligation by contract" ; and Fraters acted as Rideout's agent. Id. at 56. Thus for purposes of liability under § 1983, Fraters is " 'a person who may fairly be said to be a state actor.'" Id. at 49 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)); see also George, 732 F.Supp.2d at 935 (finding private physician acted under color of state law by treating inmate even though only the physician's employer contracted directly with the state); Ayala v. Andreasen, No. CIV S-04-0903-RRB-CMK-P, 2007 WL 1395093, at *3 (E.D. Cal. May 10, 2007) (holding private physician acted under color of state law since his hospital-employer " was under a contract with state prison authorities for inmate referrals" and physician acted " [a]s an agent of the hospital" ). Accordingly, this portion of Fraters's dismissal motion is denied.

(2) Deliberate Indifference to Serious Medical Needs

Fraters argues Plaintiffs have not pled Fraters's deliberate indifference under § 1983, since physicians do not have a duty " to determine the level of medical care available to a patient upon discharge," (Fraters's Reply to Pls.' Opp'n to Mot. to Dismiss (" Fraters's Reply" ), ECF No. 68, 3:12), and Plaintiffs' allegations against Fraters are based solely on Fraters's discharge of Prasad to Sutter County Jail. (Fraters's Mot. 6:18-26.) Plaintiffs counter that " the SAC does not attempt to impose an[] all-encompassing affirmative duty to investigate" on Fraters; " [r]ather, it alleges that given Dr. Fraters's existing knowledge, his actions were deliberately indifferent." (Pls.' Opp'n to Fraters's Mot. 7:28-8:3.)

A plaintiff may plead deliberate indifference under § 1983 by alleging that an " official acted or failed to act despite his knowledge of a substantial risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 842, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Thus a plaintiff may demonstrate a defendant's deliberate indifference by " present[ing] evidence showing that a substantial risk . . . was longstanding, pervasive,

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well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk." Id. (internal quotation marks omitted). Here, Plaintiffs have pled just that. The complaint alleges that the deficiencies at Sutter County Jail were longstanding, repeatedly documented, and expressly noted by officials in the past, and that Fraters had knowledge of these circumstances. (SAC ¶ ¶ 52, 80, 84-89.) Given these allegations, Plaintiffs have pled that Fraters acted with deliberate indifference to Prasad's serious medical needs when he discharged Prasad to Sutter County Jail despite knowing that " safe discharge from the hospital depended on the capacity for emergency medical response that he knew did not exist at Sutter County Jail." (SAC ¶ ¶ 35, 52.) See generally Bock v. Cnty. of Sutter, No. 2:11-cv-00536-MCE-GGH, 2012 WL 3778953, at *7 (E.D. Cal. Aug. 31, 2012) (finding plaintiffs pled deliberate indifference since psychiatrist discharged inmate from hospital to Sutter County Jail knowing that the jail " could not, and would not, provide the necessary hospital-level treatment" ). Accordingly, this portion of Fraters's dismissal motion is denied.

(3) Substantive Due Process Right to Family Integrity

Fraters argues that Mary Prasad, T.P., and A.P.'s substantive due process family integrity claim fails since Fraters " had no duty regarding the supervision or training of any individuals at the Sutter County Jail," and " any alleged conduct by the [J]ail staff . . . cannot be attributed" to Fraters. (Fraters's Mot. 7:17-20.) Plaintiffs respond that Fraters " misrepresents or simply misapprehends" their claim, which is predicated on Fraters's deliberately indifferent discharge of " Prasad to a setting utterly unable to address his need for life-saving emergency medical care," not on Fraters's supervision of Prasad's care at the Jail. (Pls.' Opp'n to Fraters's Mot. 9:16, 10:6-8.)

" The substantive due process right to family integrity or to familial association is well established." Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1079 (9th Cir. 2011). " 'A parent has a fundamental liberty interest in companionship with his or her child.'" United States v. Wolf Child, 699 F.3d 1082, 1091 (9th Cir. 2012) (quoting Rosenbaum, 663 F.3d at 1079). Likewise, a child has a fundamental liberty interest in the companionship and society of his or her parent. Lee v. City of L.A., 250 F.3d 668, 685-86 (9th Cir. 2001); Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991). " [V]iolation of the right to family integrity is subject to remedy under § 1983." Rosenbaum, 663 F.3d at 1079.

To violate the substantive due process right to family integrity, a defendant's " alleged conduct must 'shock[ ] the conscience.'" Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012) (quoting Rochin v. California, 342 U.S. 165, 172-73, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (alteration in original)); accord Rosenbaum, 663 F.3d at 1079; Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010); Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). [7] In a prison setting, deliberate indifference to an inmate's basic human and medical needs constitutes " constitutionally shocking" action. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 851-52, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); accord Porter, 546 F.3d at 1139. Prison " incapacitates

Page 1127

a prisoner to exercise ordinary responsibility for his own welfare," making " forethought about an inmate's welfare [] not only feasible but obligatory." Lewis, 523 U.S. at 851. Under these circumstances, " extended opportunities to do better are teamed with protracted failure even to care," and " indifference is truly shocking." Id. at 853; see Porter, 546 F.3d at 1139 (highlighting prisoner's medical needs as a clear example of when deliberate indifference shocks the conscience); see also Rodriguez v. City of Fresno, 819 F.Supp.2d 937, 948 (E.D. Cal. 2011) (noting " most occasions whereby corrections officials ignore an inmate's serious medical needs . . . will be deemed conscience-shocking if they were taken with deliberate indifference" ) (quoting Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000)). Since Plaintiffs have alleged that Fraters was deliberately indifferent to Prasad's urgent medical needs while he was in custody and could not exercise responsibility for his own welfare, see supra, Mary Prasad, T.P., and A.P. have stated a substantive due process claim against Fraters for interference with the right of familial association if Fraters's other arguments are unavailing.

Fraters also contends, however, that Plaintiffs have not adequately asserted his interference with their right to familial association, because Plaintiffs do not allege that Fraters intended to interfere with their family. (See Fraters's Reply 4:4-5; Fraters's Mot. 7:26-27.) In the Ninth Circuit, " plaintiffs can state a section 1983 [substantive due process] claim without further alleging that the official was trying to break up their family." Smith v. City of Fontana, 818 F.2d 1411, 1420 n.12 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999). Thus Plaintiffs need not allege Fraters's specific intent to interfere with their familial relationship. See Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir. 1991) (rejecting " any such limitation" that would " requir[e familial association plaintiffs] to prove a wrongful intent directed specifically at them" ); see also Huffman v. Cnty. of L.A., 147 F.3d 1054, 1057 (9th Cir. 1998) (recognizing right to familial association without conditioning the right on intentional interference with the familial association). Accordingly, this portion of Fraters's dismissal motion is denied.

(4) Wrongful Death

Fraters seeks dismissal of Plaintiffs' wrongful death claim against him arguing that Plaintiffs' claim is based on " medical negligence by Dr. Fraters," but Plaintiffs have not pled the elements of a medical malpractice claim. (Fraters's Mot. 8:11-12.) Plaintiffs respond that " the SAC nowhere alleges medical malpractice, and Dr. Fraters cannot secure dismissal by transmuting the claims that are made into claims that he prefers to rebut." (Pls.' Opp'n to Fraters's Mot. 10:4-6.) Rather, " the SAC alleges a wrongful act--namely, deliberate indifference to serious medical needs--by Dr. Fraters." (Id. 11:10-11.) Since Plaintiffs have pled Fraters's deliberate indifference to Prasad's serious medical needs in violation of the Fourteenth Amendment, see supra, and since this is " quite distinct" from a medical malpractice claim, Castaneda, 546 F.3d at 694 n.12, this portion of Fraters's dismissal motion is denied.

(5) Motion for a More Definite Statement

Fraters requests " an order requiring . . . a more definite statement" of Plaintiffs' claims, but provides no reasons justifying his request or details sought from the amendment. (Fraters's Mot. 9:4-5.) Plaintiffs argue, as they did with Rideout, that Fraters's request is " defective" since

Page 1128

Fraters " makes no effort to specify any purportedly vague or ambiguous provisions of the SAC." (Pls.' Opp'n to Fraters's Mot. 11:18, 11:25-26.) Fraters does not respond to this portion of Plaintiffs' opposition. (Fraters's Reply.) Since Fraters fails to identify any defects in Plaintiffs' complaint or details desired from the amendment, see supra, Fraters's Rule 12(e) motion is denied.

D. Fraters's Motion to Strike Prayer for Punitive Damages

Fraters seeks to strike Plaintiffs' prayer for punitive damages under Rule 12(f) on the grounds that it is precluded as a matter of law. (Fraters's Mot. to Strike, ECF No. 53.) Plaintiffs argue that this motion should be denied outright since Fraters " improperly seeks to [use Rule 12(f) to] strike a prayer for punitive damages." (Pls.' Opp'n to Fraters's Mot. to Strike, ECF No. 67, 1:20-21.) Fraters does not respond to this portion of Plaintiffs' opposition. (Fraters's Reply to Pls.' Opp'n to Mot. to Strike, ECF No. 69.)

" Rule 12(f) does not authorize district courts to strike claims for damages on the ground that such claims are precluded as a matter of law." Whittlestone, 618 F.3d at 974-75; see also Wells Fargo Bank, N.A. v. Am. Nat'l Ins. Co., Nos. 11-55366, 11-55665, 493 Fed.Appx. 838, 2012 WL 3245403, at *2 (9th Cir. Aug. 10, 2012) (" revers[ing] the district court order striking [plaintiff's] request" for relief under Rule 12(f)); Ferretti v. Pfizer Inc., 855 F.Supp.2d 1017, 1029 (N.D. Cal. 2012) (denying defendant's motion to strike plaintiff's claim for damages since Rule 12(f) is not an appropriate vehicle for such relief); Duenez v. City of Manteca, No. CIV. S-11-1820 LKK/KJN, 2011 WL 5118912, at *7 (E.D. Cal. Oct. 27, 2011) (same). Instead, material may be stricken under Rule 12(f) only when it is " redundant, immaterial, impertinent or scandalous matter" or " an insufficient defense." Fed. R. Civ. Pro. 12(f); Whittlestone, 618 F.3d at 973-74. Plaintiffs' prayer for punitive damages satisfies " none of the[se] five categories" of material that may be stricken under Rule 12(f). Whittlestone, 618 F.3d at 974 (delineating how claim for damages " clearly" fails to meet any of the five enumerated grounds for striking material from a pleading). Nor may Fraters's motion to strike be read " in a manner that allow[s him] to use it as a means to dismiss some or all of a pleading." Id. (emphasis added); see also Harvey v. Bank of Am., N.A., 906 F.Supp.2d 982, 996 (N.D. Cal. 2012) (" Rule 12(f) may not be used to make an end-run around Rule 12(b)(6) standards or summary judgment procedures." ). Accordingly, since Fraters has not shown that Rule 12(f) is an " authorized" or " proper" vehicle for the relief he seeks, Yamamoto v. Omiya, 564 F.2d 1319, 1327 (9th Cir. 1977), Fraters's motion to strike Plaintiffs' prayer for punitive damages is denied. The substance of Fraters's arguments are not reached.

E. Rideout's Motion to Strike Prayer for Punitive Damages & Attorneys' Fees

Rideout moves under Rule 12(f) to strike Plaintiffs' prayer for punitive damages; paragraphs 108, 130, and 132 of Plaintiffs' complaint relating to punitive damages; and Plaintiffs' prayer for attorneys' fees. (Rideout's Mot. to Strike, ECF No. 57, 3:20-23.) Plaintiffs argue, as they did with Fraters, that this motion should be denied outright since Rideout " improperly seeks to [use Rule 12(f) to] strike a prayer for punitive damages" and attorneys' fees. (Pls.' Opp'n to Rideout's Mot. to Strike, ECF No. 65, 1:18-19.) Rideout does not reply to this portion of Plaintiffs' opposition. (Rideout's Reply to Pls.' Opp'n to Mot. to Strike, ECF No. 71.) Thus Rideout has neither shown that Rule 12(f) is an " authorized" vehicle for the relief it seeks, Yamamoto, 564 F.2d at 1327, nor established that claims for damages or attorneys'

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fees qualify as material that may be stricken under any of " the five categories" in Rule 12(f). Whittlestone, 618 F.3d at 974. Accordingly, Rideout's motion to strike is denied. The substance of its motion is not reached.

IV. CONCLUSION

For the stated reasons, Fraters and Rideout's dismissal motions and motions to strike (ECF Nos. 52, 53, 56, 57) are denied. The Sutter Defendants' dismissal motion (ECF No. 61) is denied in all respects except that Plaintiffs' failure to summon medical care claim against Dickson, Rai, Crawford, Diaz, Aguilar, Tahara, Stohlman, Eaton, and Garbett is dismissed. Plaintiffs are granted fifteen (15) days leave to amend their complaint to address the deficiencies described in their failure to summon medical care claim.


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