United States District Court, E.D. California
MARISOL VIVANCO, individually and as successor in interest to SOLTON VIVANCO GONZALEZ Plaintiff,
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.
MEMORANDUM DECISION AND ORDER GRANTING MOTION TO
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
PRELIMINARY STATEMENT TO PARTIES AND
in the Eastern District of California carry the heaviest
caseloads in the nation, and this Court is unable to devote
inordinate time and resources to individual cases and
matters. Given the shortage of district judges and staff,
this Court addresses only the arguments, evidence, and
matters necessary to reach the decision in this order. The
parties and counsel are encouraged to contact the offices of
United States Senators Feinstein and Boxer to address this
Court's inability to accommodate the parties and this
action. The parties are required to reconsider consent to
conduct all further proceedings before a Magistrate Judge,
whose schedules are far more realistic and accommodating to
parties than that of U.S. District Judge Lawrence J.
O'Neill, who must prioritize criminal and older civil
trials set before Judge O'Neill trail until he becomes
available and are subject to suspension mid-trial to
accommodate criminal matters. Civil trials are no longer
reset to a later date if Judge O'Neill is unavailable on
the original date set for trial. Moreover, this Court's
Fresno Division randomly and without advance notice reassigns
civil actions to U.S. District Judges throughout the nation
to serve as visiting judges. In the absence of Magistrate
Judge consent, this action is subject to reassignment to a
U.S. District Judge from inside or outside the Eastern
District of California.
March 24, 2017, California Department of Corrections and
Rehabilitation (“CDCR”) and Pleasant Valley State
Prison (“PVSP”) Warden Scott Frauenheim
(collectively “Defendants”) filed a motion to
dismiss Plaintiff's claims brought pursuant to 42 U.S.C.
§§ 1983 and 1988 and California Code of Civil
Procedure § 377.60 related to the death of Solton
Vivanco Gonzalez while in custody. Doc. 4. On April 11, 2017,
Plaintiff filed an opposition. Doc. 5. On April 18, 2017,
Defendants filed a reply. Doc. 6. For the following reasons,
Plaintiff's complaint is DISMISSED with leave to amend.
FACTUAL BACKGROUND 
is the mother and successor in interest of Solton Vivanco
Gonzalez, who died on January 28, 2016 while incarcerated at
PVSP. Doc. 1 at ¶¶ 1, 4. Mr. Gonzalez suffered from
mental health issues including severe depression.
Id. at ¶ 18. He had been prescribed psychiatric
medication in the past, but was not taking any psychiatric
medication at the time of his death. Id. at
¶18, 26. Mr. Gonzalez was housed in Delta Wing, an
administrative segregation unit, due to a prison
instructor's accusation of inappropriate sexual conduct.
Id. at ¶¶ 19-24. Delta Wing staff
allegedly called Mr. Gonzalez a pervert and other insulting
names, and forced him to wear a strait jacket. Id.
at ¶ 25. PVSP staff also covered Mr. Gonzalez's cell
window and deprived him of hygiene products and reading,
writing, and entertainment materials. Id. at ¶
28. As a result, Mr. Gonzalez's morale declined, he
became depressed, and he refused to exit his cell.
Id. at ¶ 27.
Wing regulations mandated visual welfare checks of inmates
every 30 minutes. Id. at ¶ 29. The welfare
check procedure required a staff member to look in on the
inmate and confirm the check using a handheld electronic
device at a door sensor. Id. When conducting the
welfare checks, however, prison staff regularly confirmed
checks without observing the inmate. Id. Mental
health staff similarly would regularly fail to complete
mandatory morning and evening well-being checks. Id.
at ¶ 30. On one occasion, a psychiatric technician
laughed at him Mr. Gonzalez after seeing him write
“Life without company, finally free.”
Id. at ¶ 31.
day that Mr. Gonzalez committed suicide, Officer Kwity saw
Mr. Gonzalez braiding his sheets during a welfare check.
Id. at ¶ 32. Officer Kwity asked Mr. Gonzalez
what he was doing, and Mr. Gonzalez said “you'll
see.” Id. Officer Kwity announced “we
got a faker, ” and continued his rounds without
removing the sheets or alerting any other staff member.
Id. When Officer Farra conducted the next welfare
check, an inmate told the officer that he had heard a
struggle in Mr. Gonzalez's cell. Id. at ¶
33. When Officer Farra looked into Mr. Gonzalez's cell,
he saw Mr. Gonzalez hanging from his sheet. Id. at
5. CDCR told Plaintiff that Mr. Gonzalez's cause of death
was suicide by hanging. Id. at ¶ 34.
brings claims against the CDCR, Mr. Frauenheim in his
official and individual capacities, and unnamed parties under
several causes of action. Plaintiff's first claim alleges
Eighth Amendment deliberate indifference by all Defendants to
Mr. Gonzalez's serious medical needs, health, and safety.
Doc. 1-1 at 11-12. Plaintiff's second claim asserts that
the deliberate indifference was the result of Defendants'
customs, practices, or policies, or lack of customs,
practices, or policies. Doc. 1-1 at 12-14. Plaintiff's
third claim alleges that Defendant's actions deprived
Plaintiff of her parent-child relationship with Mr. Gonzalez
in violation of Plaintiff's Fourteenth Amendment right to
substantive due process. Doc. 1-1 at 14-15. Plaintiff's
fourth claim alleges that CDCR and unnamed defendants are
liable for Mr. Gonzalez's wrongful death under California
Code of Civil Procedure § 377.60. Doc. 1-1 at 15-16.
Finally, Plaintiff's fifth claim asserts that Mr.
Frauenheim and unnamed defendants failed to adequately
supervise PVSP employees, constituting deliberately
indifference to Mr. Gonzalez's serious medical needs,
health, and safety. Doc. 1-1 at 16.
STANDARD OF DECISION
motion to dismiss under Federal Rule of Civil Procedure
(“Rule”) 12(b)(6) challenges the legal
sufficiency of the opposing party's pleadings. Dismissal
of an action under Rule 12(b)(6) is proper where there is
either a “lack of a cognizable legal theory or the
absence of sufficient facts alleged under a cognizable legal
theory.” Balistreri v. Pacifica Police Dept.,
901 F.2d 696, 699 (9th Cir. 1990). When considering a motion
to dismiss for failure to state a claim under Rule 12(b)(6),
all allegations of material fact must be accepted as true and
construed in the light most favorable to the pleading party.
Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38
(9th Cir. 1996). The inquiry is generally limited to the
allegations made in the complaint. Lazy Y Ranch LTD v.
Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
8(a)(2) “requires only ‘a short and plain
statement of the claim showing that the pleader is entitled
to relief' in order to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.'” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). To overcome a Rule 12(b)(6)
challenge, the complaint must allege “enough facts to
state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. A claim is plausible on
its face when “the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
plausible claim is one which provides more than “a
sheer possibility that a ...