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Vivanco v. California Department of Corrections and Rehabilitation

United States District Court, E.D. California

June 12, 2017

MARISOL VIVANCO, individually and as successor in interest to SOLTON VIVANCO GONZALEZ Plaintiff,




         Judges 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 cases.

         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.


         On 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.


         Plaintiff 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.

         Delta 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.

         On the 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.

         Plaintiff 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.


         A 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).

         Rule 8(a)(2) “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief' in order to ‘give the defendant 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 ...

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