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Mello v. County of Sacramento

United States District Court, E.D. California

March 10, 2015

MATTHEW MELLO, individually and as Successor-in-Interest to AIRABELLA MELLO, deceased, Plaintiff,


KIMBERLY J. MUELLER, Magistrate Judge.

Airabella Mello, plaintiff Matthew Mello's daughter, was visiting her mother and grandmother when she drowned in an unguarded swimming pool. Mr. Mello alleges defendants County of Sacramento, the Department of Health and Human Services, and Child Protective Services are liable for her death because despite notice, they did not investigate her mother and grandmother's alleged abuse and improper supervision, and dangerous conditions at their home. His complaint alleges several claims under both federal and state law. Defendants move to dismiss for failure to state a claim upon which relief can be granted. The parties presented their arguments at a hearing on February 27, 2015. John C. Miller appeared for Mr. Mello, and Taylor W. Rhoan appeared for defendants. After considering the parties' briefs and arguments at the hearing, the court GRANTS the motion with leave to amend.


The complaint includes the following allegations: Airabella was visiting her mother and grandmother's home in Sacramento on May 1, 2014. Compl. ¶ 18, ECF No. 1. The complaint indicates she fell in the pool and drowned during that visit. See id. ¶¶ 18-19. Defendants' officers had visited the home several times in the past to investigate claims of abuse, of dangerous conditions including the swimming pool, and of a lack of supervision and care for Airabella. Id.

The complaint makes no further specific factual allegations. It does include many paragraphs alleging defendants' failures in general terms. An example illustrates its general style:

Plaintiff is informed and believes, and thereon alleges that defendants have been engaging in far-reaching and improper procedures, policies and practices as it relates to the investigation of allegations of abuse of children, allegations of the failure to properly supervise and care for children and allegations to properly address the existence of dangerous conditions at locations at which minors reside, within their jurisdiction. Plaintiff is further informed and believes that such improper and/or lack of procedures, policies, customs, and practices has led to injuries and/or death[s] of numerous children in an unwritten policy, practice, procedure and custom of defendants. These procedures, policies, customs, and practices have been ratified by each of the defendants.

Id. ¶ 19. Mello seeks relief on three legal bases: California Civil Code section 52.1(b), otherwise known as the Bane Act; 42 U.S.C. § 1983 for deprivation of Fourteenth Amendment rights; and common law negligence.

Defendants advance five defenses: (1) the complaint inadequately pleads any underlying constitutional violation; (2) the complaint does not allege facts to show an official policy or custom as required by Monell v. New York Department of Social Services, 436 U.S. 658, 694 (1978); (3) the complaint omits any allegations of threats, intimidation, or coercion as required by the Bane Act; (4) the complaint describes no facts to show defendants breached a duty; and (5) the Department of Health and Human Services and Child Protective Services are duplicatively named.

In his opposition, Mello passes over the fifth argument, that municipal departments are not "persons" subject to liability under section 1983. See United States v. Kama, 394 F.3d 1236, 1239-40 (9th Cir. 2005); see also Smith-Berch, Inc. v. Baltimore Cnty., Md., 68 F.Supp.2d 602, 626 (D. Md. 1999) (collecting cases to this effect). At hearing, counsel confirmed these defendants may be dismissed. Defendants' motion is granted with prejudice as to the Department of Health and Human Services and Child Protective Services.

After reviewing the legal standard applicable to this motion, the court addresses each claim in turn.


A party may move to dismiss for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). The motion may be granted only if the complaint lacks a "cognizable legal theory" or if its factual allegations do not support a cognizable legal theory. Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). The court assumes these factual allegations are true and draws reasonable inferences from them. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A complaint need contain only a "short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), not "detailed factual allegations, " Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than unadorned accusations; "sufficient factual matter" must make the claim at least plausible. Iqbal, 556 U.S. at 678. In the same vein, conclusory or formulaic recitations of a cause's elements do not alone suffice. Id. Evaluation under Rule 12(b)(6) is a context-specific task drawing on "judicial experience and common sense." Id. at 679. And aside from the complaint, district courts have discretion to examine documents incorporated by reference, Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1160 (9th Cir. 2012); affirmative defenses based on the complaint's allegations, Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013); and proper subjects of judicial notice, W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970, 976 (9th Cir. 2012).


A. Section 1983

Municipalities may be held liable as "persons" under 42 U.S.C. § 1983, but not for the unconstitutional acts of their employees based solely on a respondeat superior theory. Monell, 436 U.S. at 691. Rather, a plaintiff seeking to impose liability on a municipality under § 1983 is required "to identify a municipal policy' or custom' that caused the plaintiff's injury." Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997). To sufficiently plead a Monell claim and withstand a Rule 12(b)(6) motion to dismiss, allegations in a complaint "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). A Monell claim may be stated under three theories of municipal liability: (1) when official policies or established customs inflict a constitutional injury; (2) when omissions or failures to act amount to a local government policy of deliberate indifference to constitutional rights; or (3) when a local government official with final policy-making authority ratifies a subordinate's unconstitutional conduct. Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir. 2010). Here, Mello argues all three theories apply.

A plaintiff may establish municipal liability by demonstrating "the constitutional tort was the result of a longstanding practice or custom which constitutes the standard operating procedure of the local government entity.'" Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (quoting Ulrich v. City & Cnty. of S.F., 308 F.3d 968, 984-85 (9th Cir. 2002)). To establish liability for governmental entities under this theory, a plaintiff must show (1) that the plaintiff "possessed a constitutional right of which [he or she] was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and, (4) that the policy is the moving force behind the constitutional violation." Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (internal quotation marks and citation omitted).

A municipality's failure to train its employees may amount to a policy of deliberate indifference. See Price, 513 F.3d at 973. To state a claim for failure to train, a plaintiff must show (1) "the existing training program" is inadequate "in relation to the tasks the particular [employees] must perform"; (2) the officials have been deliberately indifferent "to the rights of persons with whom [employees] come into contact"; and (3) the inadequacy of the training "actually caused the deprivation of the alleged constitutional right." Merritt v. Cnty. of L.A., 875 F.2d 765, 770 (9th Cir. 1989) (internal citations and quotation marks omitted); see also Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011).

Finally, a plaintiff may claim Monell liability where an "official with final policy-making authority ratifie[s] a subordinate's unconstitutional decision or action and the basis for it." Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992). A policymaker's "knowledge of an unconstitutional act does not, by itself, constitute ratification." Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999). "[A] policymaker's mere refusal to overrule a subordinate's completed act does not constitute approval." Id. Rather, ratification requires the authorized policymaker to make a "conscious, affirmative choice." Gillette, 979 F.2d at 1347. Ratification "and thus the existence of a de facto policy or custom, can be shown by a municipality's post-event conduct, including its conduct in an investigation of the incident." Dorger v. City of Napa, No. 12-440, 2012 WL 3791447, at *5 (N.D. Cal. Aug. 31, 2012); see also Henry v. Cnty. of Shasta, 132 F.3d 512, 518 (9th Cir. 1997), amended on denial of reh'g, 137 F.3d 1372 (9th Cir. 1998).

Here, the complaint does no more than recite one or another signal phrases, see, e.g., Compl. ¶ 48 ("this violation... was part of a policy, custom and practice"), and claim simply that the County's inaction "has led to injuries and/or death[s] of numerous children, " id. ¶ 18. But a complaint must include "sufficient factual matter" to make the claim at least plausible. Iqbal, 556 U.S. at 678. It cannot suffice to allege only, for example, that "Defendants failed to properly train [their] employees, " "failed to properly supervise and discipline [their] subordinates, " and "fail[ed] to provide adequate training reflect[ing] a deliberate and conscious choice." Compl. ¶ 48. These are no more than recitations of the elements of a cause of action and give no notice of Mello's theory of liability in this case. The motion is granted with leave to amend as to this claim.

B. Bane Act

The Bane Act prohibits any person from interfering by "threats, intimidation or coercion... with the exercise or enjoyment by any individual... of rights secured by the Constitution...." Cal. Civ. Code § 52.1(a). Following a recent California Court of Appeal decision, Shoyoye v. County of Los Angeles, 203 Cal.App.4th 947 (2012), federal district courts have reached different results in trying to answer the question whether a plaintiff bringing a Bane Act claim ultimately must introduce independent evidence showing threats, intimidation, or coercion, in addition to showing a constitutional violation. See Davis v. City of San Jose, ___ F.Supp. 3d ___, 2014 WL 4772668, *6 (N.D. Cal. Sept. 24, 2014) (collecting cases). One group of decisions has concluded intentional conduct or excessive force claims suffice alone. Id. The other has held "something more than an inherently coercive violation is required to state a claim under the Bane Act." Id. At least in the Fourth Amendment context, this court to date has sided with the first camp. See Johnson v. Shasta Cnty., No. 14-01338, 2015 WL 75245, at *13 (E.D. Cal. Jan. 6, 2015) ("Where Fourth Amendment unreasonable seizure or excessive force claims are raised and intentional conduct is at issue, there is no need for a plaintiff to allege a showing of coercion independent from the coercion inherent in the seizure or use of force.'" (quoting Dillman v. Tuolumne Cnty., No. 13-00404, 2013 WL 1907379, at *21 (E.D. Cal. May 7, 2013)).

However the intracircuit split may be resolved, the complaint here includes no allegations of expressly or inherently coercive actions. It does not describe how anyone was coerced to do anything. The complaint's theory in fact appears to be at odds with any allegation of coercion: it claims defendants' inaction, bad policy, and poor training led to tragic oversights by its agents. The motion is granted with leave to amend as to this claim, if amendment consonant with Rule 11 is possible.

C. Negligence

"It is well-settled that there is no common law tort liability for public entities in California; instead, such liability must be based on statute." Cardinal v. Buchnoff, No. 06-0072, 2010 WL 3609489, at *2 (S.D. Cal. Sept. 14, 2010) (citing Miklosy v. Regents of Univ. of Cal., 44 Cal.4th 876, 899 (2008)). Nevertheless, statutory law makes a public entity vicariously liable for the injuries an employee causes within the scope of his or her employment unless the employee is immune from liability. Cal. Gov't Code §§ 815, 815.2. "The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury." Ladd v. Cnty. of San Mateo, 12 Cal.4th 913, 917 (1996) (internal quotation marks, citations, and alterations omitted).

Here, the complaint alleges that "defendants had been to the Subject Property on numerous occasions to investigate claims of abuse of the Decedent, to investigate defective and dangerous conditions present at the Subject Property, including without limitation an unguarded swimming pool, and to investigate the failure to properly supervise and care for the Decedent by occupants of the Subject Property, including Decedent's mother and grandmother." Compl. ¶¶ 51, 58. These allegations alone cannot survive a motion to dismiss. They tell at most a patchwork story of vicarious liability, omitting even a specific allegation of the date Airabella died. This claim is dismissed, with leave to amend.


The motion to dismiss, ECF No. 7, is GRANTED WITH PREJUDICE as to the Department of Health and Human Services and Child Protective Services. In all other respects, the motion is GRANTED WITH LEAVE TO AMEND. The plaintiff may file an amended complaint within 21 days.


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