Jack v. Stanislaus County Deputy Sheriff Eric Pearson

          ORDER ON DEFENDANTS' THIRD MOTION TO DISMISS (DOC. NO. 33)

         This 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.

         RULE 12(b)(6) FRAMEWORK

         Under 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).

         FACTUAL BACKGROUND

         From 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.

         When 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.

         Jack 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 his face.

         Jack 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.

         At 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 extradural hemorrhaging.

         DEFENDANTS' MOTION

         Defendants' Arguments

         Defendants 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.

         Plaintiff's Opposition

         Jack 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 oversight.

         Discussion

         a. California Government Claims Act

         Compliance 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).

         Here, 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.

         b. Negligence

         The parties have made arguments with respect to negligence and negligence per se. The Court will address ...