United States District Court, E.D. California
ORDER ON DEFENDANTS' THIRD MOTION TO DISMISS
(DOC. NO. 33)
case stems from a violent confrontation between Plaintiff
James Jack, Jr. (“Jack”) and a fellow detainee at
the Stanislaus County Jail. Following orders on two Rule
12(b)(6) motions, Jack filed a Second Amended Complaint
(“SAC”). The SAC contains one count against
Stanislaus County Sheriff's Deputies Eric Pearson
(“Pearson”) and Cody Gunsolley
(“Gunsolley”) for violations of the Fourteenth
Amendment under 42 U.S.C. § 1983 and one count against
these defendants for state law negligence. Currently before
the Court is Defendants' third motion to dismiss. For the
reasons that follow, the motion to dismiss will be granted in
part and denied in part.
Federal Rule of Civil Procedure 12(b)(6), a claim may be
dismissed because of the plaintiff's “failure to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). A dismissal under Rule 12(b)(6) may be
based on the lack of a cognizable legal theory or on the
absence of sufficient facts alleged under a cognizable legal
theory. See Mollett v. Netflix, Inc., 795 F.3d 1062,
1065 (9th Cir. 2015). In reviewing a complaint under Rule
12(b)(6), all well-pleaded allegations of material fact are
taken as true and construed in the light most favorable to
the non-moving party. Faulkner v. ADT Sec. Servs.,
706 F.3d 1017, 1019 (9th Cir. 2013). However, complaints that
offer no more than “labels and conclusions” or
“a formulaic recitation of the elements of action will
not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Johnson v. Federal Home Loan Mortg. Corp.,
793 F.3d 1005, 1008 (9th Cir. 2015). The Court is “not
required to accept as true allegations that contradict
exhibits attached to the Complaint or matters properly
subject to judicial notice, or allegations that are merely
conclusory, unwarranted deductions of fact, or unreasonable
inferences.” Seven Arts Filmed Entm't, Ltd. v.
Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir.
2013). To avoid a Rule 12(b)(6) dismissal, “a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”
Iqbal, 556 U.S. at 678; Mollett, 795 F.3d
at 1065. “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; Somers v. Apple, Inc., 729 F.3d 953, 959
(9th Cir. 2013). “Plausibility” means “more
than a sheer possibility, ” but less than a
probability, and facts that are “merely
consistent” with liability fall short of
“plausibility.” Iqbal, 556 U.S. at 678;
Somers, 729 F.3d at 960. The Ninth Circuit has
distilled the following principles for Rule 12(b)(6) motions:
(1) to be entitled to the presumption of truth, allegations
in a complaint or counterclaim 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; (2)
the factual allegations that are taken as true must plausibly
suggest entitlement to relief, such that it is not unfair to
require the opposing party to be subjected to the expense of
discovery and continued litigation. Levitt v. Yelp!
Inc., 765 F.3d 1123, 1135 (9th Cir. 2014). In assessing
a motion to dismiss, courts may consider documents attached
to the complaint, documents incorporated by reference in the
complaint, or matters of judicial notice. In re NVIDIA
Corp. Sec. Litig., 768 F.3d 1046, 1051 (9th Cir. 2014).
If a motion to dismiss is granted, “[the] district
court should grant leave to amend even if no request to amend
the pleading was made . . . .” Henry A. v.
Willden, 678 F.3d 991, 1005 (9th Cir. 2012). However,
leave to amend need not be granted if amendment would be
futile or the plaintiff has failed to cure deficiencies
despite repeated opportunities. Garmon v. County of
L.A., 828 F.3d 837, 842 (9th Cir. 2016).
the SAC, on March 7, 2016, a little after 1:00 a.m., Jack was
arrested on an outstanding warrant by police officers from
the City of Ceres and taken to the Stanislaus County Jail
(“the Jail”). The Ceres police officers
transferred custody of Jack over to County Sheriff's
deputies. Approximately 10 hours later, Jack was taken to the
emergency room of Doctor's Medical Center in Modesto
after he was found to be behaving erratically. Jack was
diagnosed with a fractured skull and traumatic brain
injuries. Jack has been classified as incompetent by the
Stanislaus County Superior Court due to his brain injuries,
and he has no memory of the attack that caused his injuries.
Jack's understanding of the events of March 7, 2016, is
based largely on the documents obtained as part of a Public
Records Act request.
Jack arrived at the Jail, he was placed into a group housing
unit along with about 40 other prisoners. Jack had never been
in a jail and was behaving in a combative manner. Pearson did
not provide Jack with a mattress.
attempted to secure a mattress in the group housing unit
around 3:30 a.m. In the process, he got into an argument with
another prisoner who weighed 300 lbs. Jack weighed 170 lbs.
Pearson heard Jack arguing with the other prisoner. After
speaking with Jack and the other prisoner, Pearson walked
away to a different part of the jail and did nothing to
ensure that Jack would not be injured by the larger prisoner.
Immediately after Pearson walked away, Jack was struck in the
head, lifted in the air, and thrown to the floor by the
larger prisoner. Jack remained on the floor unconscious for
several minutes. Pearson claims that he did not hear any
indication that a physical altercation occurred. Pearson
either left the relevant area of the jail unattended in
violation of state regulation, or ignored the physical
altercation. Jack was bleeding and the blood was visible on
alleges that Pearson and Gunsolley failed to properly perform
mandatory hourly safety checks on Jack for at least 8 hours.
Specifically, Jack alleges upon information and belief that
Pearson and Gunsolley completely failed to perform the
mandatory hourly safety checks. Jack received no treatment
for his brain injury during the 8 hour timespan. Gunsolley
claims that he sought medical help for Jack around 6:30 a.m.,
following his first armband check.
11:15 a.m., Jack was seen by a Jail nurse. After being
evaluated, Jack was sent to Doctor's Medical Center. Jack
was diagnosed as suffering from inter alia a
comminuted skull fracture with subarachnoid, subdural, and
argue that the negligence claim should be dismissed for
several reasons. First, the SAC fails to plead compliance
with the California Government Claims Act, and an allegation
of compliance is necessary to state a claim. Second, Jack is
attempting to make an end-run around the Court's prior
dismissal of his Government Code § 845.6 claim by
alleging that he was harmed by the failure to receive a
mattress and the failure of Defendants to conduct safety
checks. No recovery is possible because Jack's own
conduct was the proximate cause of the fight with the larger
inmate. That is, Jack's own actions were an independent
force that interrupted any chain of causation. Third, the
cited statutory and regulatory provisions are no basis for a
negligence per se presumption under California Evidence Code
§ 669. 15 C.C.R. 1006 is merely a definitional section,
15 C.C.R. 1027 does not apply because neither deputy is a
facility administrator. Further, there is no allegation that
the deputies were not immediately available and accessible to
Jack after being alerted of an emergency, and there is a
failure to show that any violation of the regulation caused
injury. 15 C.C.R. 1050 does not apply because the deputies
are not facility administrators, and the regulation speaks to
a local facility's plan, not to an individual
deputy's decision. 15 C.C.R. 1270 does not apply because
no deadline is set for the issuance of bedding materials,
rather the regulation applies only to facilities holding
persons longer than 12 hours. Further, the failure to issue
Jack a mattress did not proximately cause his physical
altercation, rather Jack's own behavior caused the fight.
Also, there is no indication that the regulation is designed
to prevent the type of injury suffered by Jack. 15 C.C.R.
1272 does not apply because there are no allegations that
either deputy was responsible for issuing mattresses.
Finally, an opinion of the California Attorney General
indicates that the regulations of 15 C.C.R. § 1000 et
seq. are not intended to be enforced by the institution of
legal action by the State of California.
argues that dismissal is not proper. First, Jack argues that
his negligence count is based on the common law and on
conduct that the Court has previously found constituted a
plausible violation of the Fourteenth Amendment, improper
monitoring and failing to protect. The negligence claims do
not depend on application of the negligence per se standard.
Second, negligence per se is an evidentiary presumption. It
is permissible but not necessary to plead an evidentiary
presumption, and the evidentiary arguments Defendants make
are not suited to a Rule 12(b)(6) motion. Review of a
negligence per se presumption is especially improper because
the first two elements of the presumption are normally
questions of fact, and the court can benefit from expert
testimony with respect to the last two elements. Third, even
considering Defendants' arguments, 15 C.C.R. § 1027
does support the negligence per se presumption. The
applicable version of § 1027 imposes a duty to monitor
that is not applicable to a facility administrator. Finally,
Government Code § 845.6 does not preclude liability. The
section has no possible application to a failure to the
failure to protect claim, and Defendants' interpretation
would insulate guards from the general rule that they are
liable for their own negligence. Moreover, the section
assumes that the guards are performing safety check because
liability under § 845.6 is premised on the guarding
knowing or having reason to know of an inmates need for
medical help. Finally, Jack states that he complied with the
Government Claims Act and alleged compliance in the original
complaint. The failure to do so in the SAC was a mere
California Government Claims Act
with the California Government Claims Act is an element of a
cause of action against a public entity or a public employee
acting within the scope of his employment. Hill v. City
of Clovis, 2012 U.S. Dist. LEXIS 32001, *65-*66 (E.D.
Cal. Mar. 8, 2012); DiCampli-Mintz v. County of Santa
Clara, 55 Cal.4th 983, 991 (2012); Briggs v.
Lawrence, 230 Cal.App.3d 605, 613 (1991). Failure to
allege compliance with the Government Claims Act subjects the
state claims to dismissal. Karim-Panahi v. Los Angeles
Police Dep't, 839 F.2d 621, 627 (9th Cir. 1988).
Jack acknowledges that the SAC does not allege compliance
with the Government Claims Act, but states that this was an
oversight. A review of the original complaint shows that
compliance was indeed alleged, see Doc. No. 1 at
¶ 22, and his opposition attaches documents that show a
claim was submitted and rejected by Stanislaus County.
See Doc. No. 35-1. It is clear that Jack can allege
compliance with the Government Claims Act. Therefore, the
negligence claims will be dismissed for failure to allege
compliance with the Government Claims Act, but dismissal will
be with leave to amend. See Hill, 2012 U.S. Dist.
LEXIS 32001 at *67. Because Jack will certainly cure the
Government Claims Act defect, the Court will address the
remainder of Defendants' arguments.
parties have made arguments with respect to negligence and
negligence per se. The Court will address ...