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Cavanaugh v. County of San Diego

United States District Court, S.D. California

July 15, 2019

SHANE CAVANAUGH, an individual and as personal representative of the Estate of RICHARD BOULANGER; the Estate of RICHARD BOULANGER, Plaintiffs,
COUNTY OF SAN DIEGO, a municipal Corporation; Sherriff BILL GORE individually and in his official capacity as Sherriff for the County of San Diego; and DOES 1 to 50, Inclusive, Defendants.




         This matter comes before the Court on Plaintiffs Shane Cavanaugh and the Estate of Richard Boulanger (collectively "Plaintiffs") Motion to Remand to the Superior Court of the State of California, County of San Diego, from which it was removed. Defendants oppose the motion, and the issues are fully briefed.


         On February 8, 2018, Plaintiffs filed a six-count complaint[1] against defendants County of San Diego and Sheriff William Gore (collectively "Defendants") for (1)

         violation of the Fourteenth Amendment, brought pursuant to 42 U.S.C. § 1983, (2) Deliberate Indifference to Decedents Medical Needs, (3) Wrongful Death, (4) Loss oj Familial Relationship, (5) Survival Action and (6) Monell Claims in the Superior Court oj California, County of San Diego. (Doc. No. I.)[2] Defendants were served with the summons and Complaint on February 27, 2018. On October 26, 2018, Defendants received a copy of the proposed First Amended Complaint ("FAC") that the Plaintiffs intended to file in the Superior Court adding defendants Brett Germain, Kevin Kamoss, Stanley Dixon, Michael Pacheco, and Joseph Reyes. (Id.) None of the new defendants have been served with the FAC. Id.

         According to the FAC, on or before February 12, 2016, Richard Boulanger (hereinafter "DECEDENT") was arrested and placed in the custody of Defendants. (Doc. 1 ¶ 13.) At the time of his arrest Decedent was a known opiate user who was suffering from symptoms of withdrawal. Id. On February 12, 2016, Decedent's cellmate awoke to find Decedent hanging by his neck from the upper bunk via a homemade noose fabricated from a bedsheet. Id. ¶ 14.

         Cellmate pressed the intercom button 4-10 times to obtain medical assistance for Decedent. Id. ¶ 15. After receiving no response, cellmate started pounding on the cell door to get Defendants' attention. Despite cellmates frantic efforts, approximately 20 minutes elapsed before help arrived. Id. ¶ 16. Upon observing Decedent's condition, Defendants ordered him transported to the UCSD Medical Center where he passed away on February 14, 2016, due to multisystem failure. Id. ¶ 17.

         Plaintiffs allege that Sheriffs deputies are required to respond to inmates emergency requests, as well as perform "well checks" to assess each inmate's well-being throughout their shift. Id. ¶ 18. In this case, Plaintiffs claim video surveillance from February 12, 2016, proves that deputies failed to timely respond to cellmates intercom alerts, and also did not complete the required "well check" of Decedent's cell prior to his suicide attempt that evening. Id. ¶ 19. Plaintiffs argue that the deputies' failure to perform the required "well check," or respond timely to cellmates intercom alert caused a significant delay in discovering Decedent's suicide attempt and is ultimately the proximate cause of decedent's death. Id.¶¶ 20-21.

         Plaintiff filed his Complaint in the Superior Court, County of San Diego on February 8, 2018. On October 26, 2018, Defendants' counsel received notice via email of Plaintiff s intent to file a FAC adding five new Defendants to replace DOES 1 through 5 and asserting "allegations of violation of 42 U.S.C. § 1983" against each of the new Defendants. (Doc. No. 1 at 2.) Defendants removed the case ten days later on November 8, 2018. (Doc. No. 1.) As of the time of removal, none of the new Defendants had been served with the FAC. Plaintiff seeks to remand the action back to state court alleging the motion is untimely and the Court lacks subject matter jurisdiction over the suit. (Doc. No. 6.) The matter is now pending before this Court.


         The federal court is one of limited jurisdiction. Gould v. Mutual Life Ins. Co. v.N.Y., 790 F.2d 769, 774 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until it confirms its own subject matter jurisdiction. Steel Co, v. Citizens for a Better Environ., 523 U.S. 83, 93-94 (1998). The Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction," and "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

         The burden of proving any jurisdictional fact rests upon the party seeking to invoke the jurisdiction of the federal courts. At any time during the proceedings, a district court may sua sponte remand a case to state court if the court lacks subject matter jurisdiction over the case. 28 U.S.C. § 1447(c); Smith v. Mylan Inc., 761 F.3d 1042, 1044 (9th Cir. 2014). In circumstances where a defendant's removal of the action is objectively unreasonable, the Court may award attorney's fees under § 1447(c).[3] Martin v, Franklin Capital Corp., 546 U.S. 132, 140-41 (2005).

         A. Timeliness ...

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