United States District Court, N.D. California
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
PLAINTIFF’S THIRD AMENDED COMPLAINT
THELTON E. HENDERSON United States District Judge
matter came before the Court on June 6, 2016, for a hearing
on Defendant’s motion to dismiss Plaintiff’s
Third Amended Complaint. Having carefully considered the
parties’ written and oral arguments, the Court hereby
GRANTS Defendant’s motion for the reasons set forth
parties are by now familiar with the underlying facts of this
case. Having ruled on two previous motions to dismiss, the
Court is now presented with Plaintiff David Cook’s
Third Amended Complaint (“TAC”). Docket No. 28.
The TAC alleges six claims for relief; the first four claims
are against Defendant County of Contra Costa (“the
County”) under 42 U.S.C. § 1983 (“Section
1983”), and the final two claims are against individual
County employees who have not yet been served.
direct response to the Court’s previous orders,
Plaintiff has added new allegations to the TAC, including:
outlining Plaintiff’s counsel’s attempts to
obtain policies, procedures and other records in
“pre-suit investigation” (TAC ¶¶
31-38); identifying an inmate grievance policy from another
case and asserting that all County jails use the same
policies (id. ¶¶ 40-43); stating
Plaintiff’s recollection of the process he was
instructed to follow in order to request medical care at the
jail (id. ¶ 44); descriptions of various other
incidents where Plaintiff was denied immediate medical
treatment or attention (id. ¶¶ 48-52); and
a statement that between September and November 2014,
Plaintiff “filed 11 grievances that were ignored or
never acted on” (id. ¶ 53).
County moved to dismiss the TAC on April 21, 2016. Mot.
(Docket No. 33). Plaintiff timely opposed, and the County
timely replied. Opp’n (Docket No. 34); Reply (Docket
No. 35). Because the individual defendants have not yet been
served, the motion to dismiss - as well as this Order -
pertains only to the County.
12(b)(6) requires dismissal when a plaintiff’s
allegations fail “to state a claim upon which relief
can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a
motion to dismiss under Rule 12(b)(6), a plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Plausibility does not
equate to probability, but it requires “more than a
sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). “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.”
ruling on a motion to dismiss, a court must “accept all
material allegations of fact as true and construe the
complaint in a light most favorable to the non-moving
party.” Vasquez v. Los Angeles Cty., 487 F.3d
1246, 1249 (9th Cir. 2007). Courts are not, however,
“bound to accept as true a legal conclusion couched as
a factual allegation.” Iqbal, 556 U.S. at 678.
The non-moving party must provide “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550
U.S. at 555.
may deny leave to amend “if amendment of the complaint
would be futile.” Albrecht v. Lund, 845 F.2d
193, 195 (9th Cir. 1988). However, dismissal should be with
leave to amend unless it is clear that amendment could not
possibly cure the complaint’s deficiencies.
Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296
(9th Cir. 1998).
Plaintiff’s First, Second, Third, and Fourth Claims
state a claim under Section 1983, the complaint must show:
“(1) that a person acting under color of state law
committed the conduct at issue, and (2) that the conduct
deprived the claimant of some right, privilege, or immunity
protected by the Constitution or laws of the United
States.” Leer v. Murphy, 844 F.2d 628, 632-33
(9th Cir. 1988). All four of Plaintiff’s Section 1983
claims allege violations of the Eighth Amendment.
“Under the Eighth Amendment’s standard of
deliberate indifference, a person is liable for denying a
prisoner needed medical care only if the person ‘knows
of and disregards an excessive risk to inmate health and
safety.’ ” Gibson v. Cty. of Washoe,
Nev., 290 F.3d 1175, 1187 (9th Cir. 2002) (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Thus,
the standard requires actual or constructive knowledge
consistent with the criminal law standard of recklessness -
it is not enough to say that a person should have
been aware of the risk. Farmer, 511 U.S. at 836-37;
Jeffers v. Gomez, 267 F.3d 895, 914 (9th Cir. 2001).
municipal liability under a deliberate indifference theory, a
plaintiff must show that the municipality’s deliberate
indifference led to its omission and that the omission caused
the employee to commit the constitutional violation. City
of Canton, Ohio v. Harris,489 U.S. 378, 387 (1989).
Thus, the plaintiff must show that the municipality was on
notice that its omission would likely result in a
constitutional violation. Farmer, 511 U.S. at 841.
Notably, “much more difficult problems of proof”
are presented in a case where a city employee acting under a