Ahmed v. County of Santa Clara

Opinion

9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11

12 ABDISAMAD AHMED, et al., Case No. 20-CV-05498-LHK

13 Plaintiffs, ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE 14 v. Re: Dkt. No. 28 15 COUNTY OF SANTA CLARA, et al. 16 Defendants. 17 Plaintiffs Abdisamad Ahmed and Kim Hadd (collectively, “Plaintiffs”) sue the County of 18 Santa Clara (“the County”) and individuals whose identities are unknown to Plaintiffs 19 (collectively, “Defendants”) for (1) general negligence; (2) public entity negligence; and (3) 20 violation of rights under 42 U.S.C. § 1983. Before the Court is the County’s motion to dismiss 21 Plaintiffs’ First Amended Complaint. ECF No. 28. Having considered the parties’ submissions, 22 the relevant law, and the record in this case, the Court GRANTS the County’s motion to dismiss 23 with prejudice. 24 I. BACKGROUND 25 A. Factual Background 26 On March 15, 2019, Harris Ahmed (“Harris”), Plaintiffs’ 21-year-old son, was admitted to 27 1 the Barbara Arons Pavilion of the Santa Clara Valley Medical Center, which is owned and 2 operated by the County. ECF No. 25 (“FAC”) ¶¶ 12, 15. 3 According to Plaintiffs, Harris was admitted to receive acute psychiatric services after he 4 attempted to run across Interstate 280. Id. ¶ 12. Plaintiffs allege that the notice of admission 5 “designated [Harris] as gravely disabled[,] describing [Harris] as very unpredictable, agitated, 6 hyper-religious, threatening at times, yelling and unable to care for himself.” Id. Plaintiffs further 7 allege that the notice of admission ordered that Harris be held in the Santa Clara Valley Medical 8 Center until March 29, 2019. Id. Despite the notice of admission, Harris was allegedly released on 9 March 26, 2019. Id. On the day Harris was released, he allegedly displayed the same behavior 10 described in the notice of admission. Id. 11 Plaintiffs allege that, on March 26, 2019, “authorized employees of the Santa Clara Valley 12 Medical Center called Plaintiffs to inform them that [Harris] would be released that day.” Id. ¶ 13. 13 Prior to that call, Plaintiffs believed that Harris would be released on March 29, 2019, the date on 14 the notice of admission. Id. Plaintiffs allege that Plaintiffs were not given enough time to make 15 arrangements for Harris to be seen by his physician. Id. According to Plaintiffs, Plaintiffs 16 “repeatedly asked to speak with an administrator, doctor, or any other official about the proper or 17 safe way to accomplish the discharge but no one would assist or provide any assistance as to how 18 to safely accomplish the decision to discharge [Harris].” Id. Plaintiffs allege that, “despite the 19 County’s knowledge of [Harris’s] grave mental condition, and after making the decision to release 20 him, the County failed to contact Harris’s primary care physician or arrange transportation” to take 21 Harris to the hospital where his physician was located. Id. The authorized employees also 22 allegedly failed to refer Plaintiff or Harris “services or resources, which those employees knew 23 could be used to assist [Harris].” Id. 24 On March 28, 2019, two days after his release, Harris walked across Interstate 280 and was 25 struck and killed by a vehicle. Id. ¶ 14. Plaintiffs allege that the County “knew or should have 26 known that [Harris] was unfit to be released prematurely” but “failed to act reasonably and with 27 due care in the treatment of and the manner of transitioning [Harris] following their determination 1 to not confine him.” Id. ¶ 16. Plaintiffs allege that, as a result of the County’s “failure to act 2 reasonably and with due care following the determination to not confine” Harris, Harris “remained 3 in an unfit and delirious state, entered onto [I]nterstate 280 . . . and was struck and killed by a 4 vehicle.” Id. ¶ 17. 5 Following Harris’ death, Plaintiffs filed a government claim with the County on September 6 25, 2019 pursuant to the California Government Claims Act, California Government Code § 810 7 et seq. ECF No. 28-1 (“RJN”) Exh. A. Plaintiffs’ government claim alleges that “Harris was 8 admitted into the Santa Clara Valley Medical Center on March 15, 2019,” and the notice of 9 admission “ordered Harris to be held in the Santa Clara Valley Medical Center until March 29, 10 2019.” Id. Plaintiffs’ government claim further alleges that Harris “was instead released three 11 day[s] prior to his ordered date of release on March 26, 2019.” Id. Plaintiffs’ government claim 12 states that, on March 28, 2019, Harris walked onto the southbound portion of [I]nterstate 280” and 13 was struck and killed by a vehicle. Id. The County denied the claim on November 1, 2019 and 14 mailed the notice that the claim had been denied on the same day. ECF No. 10 Exh. A. 15 B. Procedural History 16 On June 4, 2020, Plaintiffs filed suit in the California Superior Court for the County of 17 Santa Clara as heirs to Harris and representatives of Harris’s estate. ECF No. 1-1. On August 7, 18 2020, the County removed the instant case to this Court. ECF No. 1. On August 14, 2020, the 19 County filed a motion to dismiss Plaintiffs’ Complaint. ECF No. 9. 20 On January 12, 2021, the Court granted the County’s motion to dismiss with leave to 21 amend. ECF No. 24. The Court granted the County’s motion to dismiss Plaintiffs’ state law claims 22 for two independent reasons. First, the Court concluded that Plaintiffs had not complied with the 23 California Government Claims Act’s claim presentation requirement because Plaintiffs’ 24 Complaint did not allege that Plaintiffs had submitted a claim to the County. Id. at 5–7. Second, 25 the Court concluded that the County and its employees were immune from Plaintiffs’ claims under 26 California Government Code Section 856, which establishes that “neither a public entity nor a 27 public employee acting within the scope of his employment is liable for any injury resulting from 1 determining . . . [w]hether to confine a person for mental illness or addiction.” Id. at 7 (quoting 2 Cal. Gov’t Code § 856(a)). Although the Court was “unsure whether Plaintiffs will be able to 3 allege state law claims, particularly given the County’s immunity under Section 856,” the Court 4 granted leave to amend Plaintiffs’ state law claims. Id. at 9–10. 5 The Court also granted the County’s motion to dismiss Plaintiffs’ Section 1983 claim. The 6 Court held that Plaintiffs’ allegations as to deliberate indifference were “conclusory, merely 7 asserting that the County exhibited deliberate indifference without alleging facts that support that 8 legal conclusion.” Id. at 11. The Court further concluded that Plaintiffs had not plausibly alleged 9 the existence of a County policy, custom, or practice that amounted to deliberate indifference and 10 was the moving force behind the constitutional violation. Id. at 11–12. Although the Court was 11 “unsure whether Plaintiffs will be able to state a Section 1983 claim,” the Court granted leave to 12 amend Plaintiffs’ Section 1983 claim. Id. at 13. 13 The Court ordered Plaintiffs to file an amended complaint within 30 days of the Court’s 14 order. Id. The Court warned that “[f]ailure to do so, or failure to cure deficiencies identified herein 15 or identified in the instant motion to dismiss, will result in dismissal of the deficient claims with 16 prejudice.” Id. 17 On January 29, 2021, Plaintiffs filed their First Amended Complaint. FAC. Plaintiffs’ First 18 Amended Complaint alleges three causes of action: (1) general negligence under California 19 Government Code § 815.2; (2) public entity negligence under California Government Code §§ 20 815.2 and 820;1 and (3) violation of rights under 42 U.S.C. § 1983. Id. ¶¶ 18–43. 21 On February 16, 2021, the County filed the instant motion to dismiss Plaintiffs’ First 22 Amended Complaint, ECF No. 28 (“Mot.”), and a request for judicial notice, RJN. On March 2, 23 24 1 The header in Plaintiffs’ First Amended Complaint for the second cause of action references 25 California Evidence Code § 669. However, that section solely governs when the failure of a person to exercise due care is presumed, and it does not give rise to a cause of action. In addition, 26 the paragraphs in support of the second cause of action reference California Government Code 27 sections 815.2(a) and 820(a). Thus, the Court considers the second cause of action as if it were brought under those sections. 1 2021, Plaintiffs filed an opposition. ECF No. 30 (“Opp’n”). On March 9, 2021, the County filed a 2 reply. ECF No. 31 (“Reply”). 3 The County requests judicial notice of Plaintiffs’ September 25, 2019 government claim. 4 RJN. The Court may take judicial notice of matters that are either “generally known within the 5 trial court’s territorial jurisdiction” or “can be accurately and readily determined from sources 6 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Public records are proper 7 subjects of judicial notice. See, e.g., United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007). 8 However, to the extent any facts in documents subject to judicial notice are subject to reasonable 9 dispute, the Court will not take judicial notice of those facts. See Lee v. City of Los Angeles, 250 10 F.3d 668, 689 (9th Cir. 2001), overruled on other grounds by Galbraith v. County of Santa Clara, 11 307 F.3d 1119 (9th Cir. 2002). 12 In the instant case, the County requests judicial notice of Plaintiffs’ September 25, 2019 13 government claim. RJN. Plaintiffs do not contest the validity of the government claim. Courts 14 routinely conclude that such government claims are proper subjects of judicial notice. See, e.g., 15 Ramachandran v. City of Los Altos, 359 F. Supp. 3d 801, 811 (N.D. Cal. 2019) (taking judicial 16 notice of a government claim filed pursuant to the California Government Claims Act), Kim v. 17 City of Belmont, 2018 WL 500269, at *3 (N.D. Cal. Jan. 22, 2018) (taking judicial notice of a 18 government claim filed pursuant to the California Government Claims Act that was referenced in 19 the complaint but not physically attached to the pleadings). Similarly, the Court concludes in the 20 instant case that Plaintiffs’ government claim, which is referenced in Plaintiffs’ First Amended 21 Complaint but not attached to the pleadings, is a proper subject of judicial notice. Thus, the Court 22 GRANTS the County’s request for judicial notice. 24 A. Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(6) 25 Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint to include “a short 26 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 27 A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil 1 Procedure 12(b)(6). Rule 8(a) requires a plaintiff to plead “enough facts to state a claim to relief 2 that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim 3 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 4 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 5 U.S. 662, 678 (2009). “The plausibility standard is not akin to a probability requirement, but it 6 asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal 7 quotation marks omitted). For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] 8 factual allegations in the complaint as true and construe[s] the pleadings in the light most 9 favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 10 1031 (9th Cir. 2008). 11 The Court, however, need not accept as true allegations contradicted by judicially 12 noticeable facts, see Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and it “may look 13 beyond the plaintiff’s complaint to matters of public record” without converting the Rule 12(b)(6) 14 motion into a motion for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 15 1995). Nor must the Court “assume the truth of legal conclusions merely because they are cast in 16 the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per 17 curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Mere 18 “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to 19 dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004). 20 B. Leave to Amend 21 If the Court determines that a complaint should be dismissed, it must then decide whether 22 to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend 23 “shall be freely given when justice so requires,” bearing in mind “the underlying purpose of Rule 24 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities.” Lopez v. 25 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation marks 26 omitted). When dismissing a complaint for failure to state a claim, “'a district court should grant 27 leave to amend even if no request to amend the pleading was made, unless it determines that the 1 pleading could not possibly be cured by the allegation of other facts.” Id. at 1130 (internal 2 quotation marks omitted). Accordingly, leave to amend generally shall be denied only if allowing 3 amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the 4 moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 5 (9th Cir. 2008). 7 Plaintiffs bring three claims: (1) general negligence under California Government Code § 8 815.2; (2) public entity negligence under California Government Code §§ 815.2 and 820; and (3) 9 violation of rights under 42 U.S.C. § 1983. Id. The County moves to dismiss all three claims. The 10 Court first addresses the state law claims. The Court then addresses the Section 1983 claim. 11 A. State Law Claims 12 The County contends that Plaintiffs’ state law claims are precluded by the claim 13 presentation requirement of the California Government Claims Act, which requires Plaintiffs to 14 present their theory to the County in a government claim before filing suit. Mot. at 11–13. The 15 Court agrees. 16 In Plaintiffs’ government claim before filing suit and in Plaintiffs’ initial Complaint in the 17 instant case, Plaintiffs challenged the County’s decision to release Harris. See RJN Exh. A; ECF 18 No. 1-1 ¶¶ 10, 12. Thus, in this Court’s order on the County’s first motion to dismiss, the Court 19 concluded that the County and its employees were immune from Plaintiffs’ state law claims under 20 California Government Code Section 856, which provides that “neither a public entity nor a public 21 employee acting within the scope of his employment is liable for any injury resulting from 22 determining . . . [w]hether to confine a person for mental illness.” See ECF No. 24. at 7 (quoting 23 Cal. Gov’t Code § 856(a)). 24 To avoid the immunity bar, Plaintiffs’ First Amended Complaint amended the theory of 25 the state law claims to now challenge the manner of Harris’s release, not the decision to release 26 Harris. See FAC ¶¶ 13, 21. However, because Plaintiffs never presented this new theory in a 27 government claim before filing suit, Plaintiffs have failed to meet the claim presentation 1 requirement. 2 Below, the Court addresses in turn: (1) the claim presentation requirement, (2) the 3 allegations in Plaintiffs’ government claim, (3) the allegations in Plaintiffs’ First Amended 4 Complaint, and (4) whether Plaintiffs’ government claim fulfilled the claims presentation 5 requirement. 6 Before a plaintiff can sue a public entity or employee for monetary damages, he or she 7 must first fulfill the California Government Claims Act’s claim presentation requirement by filing 8 a claim with the public entity. Cal. Gov’t Code § 945.4; Briggs v. Lawrence, 230 Cal. App. 3d 9 605, 613 (1991). The plaintiff must file a claim no more than six months after the cause of action 10 has accrued. Cal. Gov’t Code § 911.2; Curtis T. v. County of Los Angeles, 123 Cal. App. 4th 1405, 11 1415 (2004). The plaintiff must then sue no more than six months after the public entity mails 12 written notice that it has rejected the plaintiff’s claim. Cal. Gov’t Code § 945.6(a)(1); County of 13 Los Angeles v. Superior Court, 127 Cal. App. 4th 1263, 1267–68 (2005). 14 In order to fulfill the claim presentation requirement, “the factual circumstances set forth in 15 the written claim must correspond with the facts alleged in the complaint.” Donohue v. State of 16 California, 178 Cal. App. 3d 795, 802 (1986). Indeed, if a plaintiff presents a government claim 17 that does not include the basis of the plaintiff’s forthcoming legal action, the plaintiff thwarts the 18 purpose of the claim presentation requirement, which is “to apprise the governmental body of 19 imminent legal action so that it may investigate and evaluate the claim and where appropriate, 20 avoid litigation by settling meritorious claims.” Id. at 804 (quotation omitted). Accordingly, if the 21 complaint “alleges a factual basis for recovery which is not fairly reflected in the written claim,” 22 the complaint should be dismissed. See id. (affirming judgment for defendant because “the act of 23 permitting an uninsured motorist to take a driving test,” which was the basis for plaintiff’s 24 government claim, “is not the factual equivalent of the failure to control or direct the motorist in 25 the course of his examination,” which was the basis for plaintiff’s complaint); Connelly v. State of 26 California, 3 Cal. App. 3d 744, 747, 753 (1970) (affirming dismissal where plaintiff’s government 27 claim alleged that state representatives negligently provided the plaintiff with inaccurate 1 information about the anticipated rise in the level of a river, but plaintiff’s complaint alleged that 2 the state was negligently operating the river’s dams). 3 In the instant case, Plaintiffs’ government claim challenges the decision to release Harris. 4 See RJN Exh. A. Specifically, Plaintiffs’ government claim alleges that: (1) “Harris was admitted 5 into the Santa Clara Valley Medical Center on March 15, 2019”; (2) the notice of admission 6 “ordered Harris to be held in the Santa Clara Valley Medical Center until March 29, 2019”; and 7 (3) Harris “was instead released three day[s] prior to his ordered date of release on March 26, 8 2019.” Id. Accordingly, Plaintiffs’ government claim challenges the decision to release Harris. 9 Similarly, Plaintiffs’ initial Complaint in the instant case challenges the decision to release Harris. 10 ECF No. 1-1 ¶¶ 10, 12. 11 On January 12, 2021, the Court dismissed Plaintiffs’ initial Complaint because the Court 12 concluded that the County and its employees were immune from Plaintiffs’ claims under 13 California Government Code Section 856, which provides that “neither a public entity nor a public 14 employee acting within the scope of his employment is liable for any injury resulting from 15 determining . . . [w]hether to confine a person for mental illness or addiction.” See ECF No. 24. at 16 7 (quoting Cal. Gov’t Code § 856(a)). 17 In an attempt to plead around Section 856’s immunity, Plaintiffs’ First Amended 18 Complaint relies on Section 856(c), which states that “[n]othing in this section exonerates a public 19 employee from liability for injury proximately caused by his negligent or wrongful act or omission 20 in carrying out or failing to carry out . . . [a] determination to parole, grant a leave of absence to, or 21 release a person confined for mental illness.” Cal. Gov’t Code § 856(c). Accordingly, Plaintiffs’ 22 First Amended Complaint states that the County’s wrongful acts or omissions “did not pertain to a 23 decision whether to release [Harris], but rather involved the ministerial acts and/or omissions in 24 the implementations of the decisions to release [Harris].” FAC ¶ 23. Specifically, Plaintiffs’ First 25 Amended Complaint alleges that “authorized employees of the Santa Clara Valley Medical 26 Center” were negligent in carrying out the determination to release Harris because: (1) Plaintiffs 27 “were not afforded enough time to make arrangements for [Harris] to be seen by his physician”; 1 (2) Plaintiffs “repeatedly asked to speak with an administrator, doctor, or any other official about 2 the proper or safe way to accomplish the discharge but no one would assist”; (3) “the County 3 failed to contact Harris’s primary care physician or arrange transportation to take Harris to Kaiser 4 Hospital in San Jose, California, where his physician was located”; and (4) “authorized employees 5 of the County failed to refer [Plaintiffs] or [Harris] services or resources, which those employees 6 knew could be used to assist [Harris].” Id. ¶¶ 13, 21. 7 However, none of these allegations were in Plaintiffs’ government claim. As explained 8 above, Plaintiffs’ government claim before filing suit and Plaintiffs’ initial Complaint in the 9 instant case challenged the decision to release Harris. RJN Exh. A; ECF No. 1-1 ¶¶ 10, 12. By 10 contrast, Plaintiffs’ First Amended Complaint challenges the manner of releasing Harris. FAC ¶¶ 11 13, 21. Accordingly, Plaintiffs’ government claim and First Amended Complaint are based on 12 different sets of actions (the decision to release Harris versus the manner of releasing Harris) taken 13 by different actors (the doctors who decided to release Harris versus the hospital employees who 14 communicated with Plaintiffs) within different timeframes (when the decision was made to release 15 Harris versus after the decision was made to release Harris). Compare RJN Exh. A with FAC ¶¶ 16 13, 21; see also FAC ¶ 23 (alleging that “the aforementioned acts and/or omissions . . . did not 17 pertain to a decision whether to release [Harris], but rather involved the ministerial acts and/or 18 omissions in the implementations of the decisions to release [Harris]”); id. ¶ 13 (alleging that these 19 acts or omissions occurred “after making the decision to release [Harris]”).2 Because Plaintiffs’ 20 government claim did not raise Plaintiffs’ new theory, Plaintiffs’ government claim did not satisfy 21 the claim presentation requirement. 22 The California Court of Appeal came to the same conclusion in another case where the 23 plaintiff changed theories to avoid immunity. In Nelson v. State of California, a prisoner filed a 24 government claim alleging medical malpractice based on the failure of prison doctors to diagnose 25 26 2 Plaintiffs’ First Amended Complaint does not challenge the actions of the doctors who were 27 treating Harris. Indeed, Plaintiffs allege that they asked to speak to a doctor but were turned away. FAC ¶ 13. 1 and treat the plaintiff’s medical conditions. 139 Cal. App. 3d 72, 75 (1982). The plaintiff’s initial 2 complaint made similar allegations. Id. After the trial court held that the state was immune to the 3 medical malpractice claims, the plaintiff amended his complaint to take advantage of an exception 4 to the immunity, which provided that liability exists where a public “employee knows or has 5 reason to know that the prisoner is in need of immediate medical care and he fails to take 6 reasonable action to summon such medical care.” Id. at 78. Accordingly, the plaintiff amended his 7 complaint to allege that the doctors failed “to summon immediate and competent medical 8 attention.” Id. at 75–76 (quotation omitted). The court affirmed the dismissal of the plaintiff’s 9 amended complaint because “the facts set forth in plaintiff’s claim clearly do not correspond with 10 the facts alleged in the amended complaint.” Id. at 80. The court observed that the plaintiff’s 11 government claim alleged that the plaintiff suffered an injury because of the doctors’ failure to 12 diagnose and treat the plaintiff, not the doctors’ failure to summon immediate and competent 13 medical care. Id. Accordingly, the court concluded that the amended complaint “represented a 14 radical departure” from the original allegations because the amended complaint alleged an 15 “entirely different theory.” Id. at 76. 16 Like in Nelson, Plaintiffs in the instant case filed a government claim, the Court concluded 17 that immunity applied, and Plaintiffs shifted to a new theory, which is different from what 18 Plaintiffs alleged in their government claim. Indeed, the shift in Plaintiffs’ allegations in the 19 instant case is even more dramatic than the shift that occurred in Nelson. In Nelson, the plaintiff’s 20 government claim and amended complaint focused on different actions (medical malpractice 21 versus the failure to summon medical care) but taken by the same actors (the doctors) within the 22 same timeframe (at the time of the plaintiff’s medical treatment). Id. at 80. By contrast, in the 23 instant case, as explained above, Plaintiffs’ government claim and amended complaint are based 24 on different sets of actions taken by different actors within different timeframes. Compare RJN 25 Exh. A with FAC ¶¶ 13, 21; see also FAC ¶¶ 13, 23. Thus, the instant case presents an even more 26 radical shift in allegations than in Nelson. 27 In arguing that Plaintiffs fulfilled the claim presentation requirement, Plaintiffs cite to 1 Blair v. Superior Court, 218 Cal. App. 3d 221 (1990). However, Blair is distinguishable from the 2 instant case. In Blair, the plaintiff filed a government claim based on negligent maintenance and 3 construction of a highway surface. 218 Cal. App. 3d. at 223. The plaintiff then filed a complaint 4 alleging that the highway was “in a dangerous and defective condition for a number of reasons 5 including, but not limited to the following: ice had accumulated on the roadway . . . at that point, 6 the roadway . . . require[es] guard rails where there was no guard rail; in addition, the slope of the 7 road is such that a vehicle striking ice is carried off the road . . . [and] [n]o warning signs were in 8 place.” Id. at 224 (emphasis omitted). The defendant argued that the complaint’s allegations 9 regarding the lack of guard rails, slope of the road, and failure to warn had to be stricken. Id. The 10 court rejected the defendant’s argument because “the claim and the complaint [were] premised on 11 essentially the same foundation, that because of its negligent construction or maintenance, the 12 highway at the scene of the accident constituted a dangerous condition of public property.” Id. at 13 226. The court distinguished Nelson on the grounds that Nelson involved “a complete shift in 14 allegations, usually involving an effort to premise civil liability on acts or omissions committed at 15 different times or by different persons than those described in the [government] claim.” Id. 16 Unlike Blair, in the instant case, as explained above, Plaintiffs’ government claim and First 17 Amended Complaint are based on different sets of actions taken by different actors at different 18 times. Compare RJN Exh. A with FAC ¶¶ 13, 21; see also FAC ¶¶ 13, 23. Thus, Plaintiffs’ 19 government claim did not fulfill the claim presentation requirement for Plaintiffs’ new theory that 20 authorized employees of the Santa Clara Valley Medical Center were negligent in carrying out the 21 decision to release Harris. Accordingly, Plaintiffs’ theory is subject to dismissal under the 22 California Government Claims Act. Donohue, 178 Cal. App. 3d at 804. The Court thus GRANTS 23 the County’s motion to dismiss Plaintiffs’ state law claims. 24 Plaintiffs request leave to amend any deficiencies that the Court identifies. Opp’n at 10. 25 Dismissal with prejudice is warranted when amendment would be futile, unduly prejudice the 26 opposing party, or cause undue delay, or the moving party has acted in bad faith. Leadsinger, 512 27 F.3d at 532. In the instant case, the Court concludes that leave to amend would be futile because 1 the allegations that employees were negligent in carrying out the decision to release Harris were 2 not included in Plaintiffs’ government claim, and the time to file a government claim has long 3 expired. Furthermore, requiring the County to file a third motion to dismiss would unduly 4 prejudice the County. Finally, Plaintiffs have already amended their Complaint, which weighs 5 against granting leave to amend. See Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) 6 (holding that, in considering whether to grant leave to amend, courts should consider whether the 7 plaintiff has previously amended the complaint); see also City of Los Angeles v. San Pedro Boat 8 Works, 635 F.3d 440, 454 (9th Cir. 2011) (“[T]he district court’s discretion to deny leave to 9 amend is particularly broad where plaintiff has previously amended the complaint.”) (quotation 10 omitted). Accordingly, the Court DENIES Plaintiffs’ request for leave to amend. 11 B. Section 1983 Claim 12 The County next argues that Plaintiffs’ Section 1983 claim should be dismissed. Mot. at 13 14–17. In the Court’s order granting the County’s first motion to dismiss, the Court dismissed 14 Plaintiffs’ Section 1983 claims for two reasons. First, Plaintiffs had not plausibly alleged that the 15 County had a policy, custom, or practice that “amounts to deliberate indifference to the plaintiff’s 16 constitutional right” and was “the moving force behind the constitutional violation.” ECF No. 24 17 at 11–12 (quoting Dougherty, 654 F.3d at 900 (quotation omitted)). Second, Plaintiffs had not 18 plausibly alleged that the County exhibited deliberate indifference. Id. at 10–11. Because Plaintiffs 19 have not cured either of these defects, the Court dismisses Plaintiffs’ Section 1983 claim with 20 prejudice. Each of these defects provides an independent ground for dismissal of Plaintiffs’ 21 Section 1983 claim. The Court discusses in turn: (1) the existence of a County policy, custom, or 22 practice and (2) deliberate indifference. 23 To state a Section 1983 claim, plaintiffs must plead that “(1) the defendants acted under 24 color of state law and (2) deprived plaintiff of rights secured by the Constitution or federal 25 statutes.” WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 1999) (en banc) (quoting Gibson 26 v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986)). “A government entity cannot be held liable 27 under 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown to be a 1 moving force behind a violation of constitutional rights.” Dougherty, 654 F.3d at 900 (citing 2 Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978)). “In order to 3 establish liability for governmental entities under Monell, a plaintiff must prove: ‘(1) that [the 4 plaintiff] possessed a constitutional right of which [s]he was deprived; (2) that the municipality 5 had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional 6 right; and (4) that the policy is the moving force behind the constitutional violation.’” Id. (quoting 7 Plumeau v. Sch. Dist. No. 40 Cty. Of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). 8 In the instant case, Plaintiffs’ First Amended Complaint fails to plausibly allege the 9 existence of such a County policy, custom, or practice. Plaintiffs’ First Amended Complaint 10 alleges that the County “fail[ed] to take . . . reasonable measures” as to Harris. FAC ¶¶ 39, 42. 11 However, Plaintiffs’ First Amended Complaint never mentions a County policy, custom, or 12 practice. See id. ¶¶ 35–43. Accordingly, Plaintiffs never allege that a County policy, custom, or 13 practice was the moving force behind the alleged failure to take reasonable measures as to Harris. 14 See id. 15 Plaintiffs contend that Plaintiffs can survive a motion to dismiss even if their First 16 Amended Complaint includes nothing more than a bare allegation that the individual officers’ 17 conduct conformed to a County policy, custom, or practice. Opp’n at 11–12. However, Plaintiffs 18 have not made a bare allegation that the County employees’ conduct conformed to official policy, 19 custom, or practice. Plaintiffs’ First Amended Complaint never mentions a County policy, custom, 20 or practice. See FAC ¶¶ 35–43. Moreover, Plaintiffs’ argument is based on an outdated reading of 21 Ninth Circuit law. Plaintiffs cite the Ninth Circuit’s decision in A.E. ex rel Hernandez v. County of 22 Tulare for the proposition that “a claim of municipal liability under § 1983 is sufficient to 23 withstand a motion to dismiss even if the claim is based on nothing more than a bare allegation 24 that the individual officers’ conduct conformed to official policy, custom, or practice.” Opp’n at 25 11–12 (citing A.E. ex rel Hernandez v. County of Tulare, 666 F.3d 631, 666 (9th Cir. 2012)). 26 However, as the County points out, the paragraph Plaintiffs quote from A.E. begins with 27 the phrase “in the past.” A.E., 666 F.3d at 636. Indeed, A.E. held that a plaintiff bringing a Section 1 1983 claim against a municipality needed to plausibly allege the existence of a policy, custom, or 2 practice. Id. at 636–37. Because Plaintiffs have again failed to plausibly allege the existence of a 3 County policy, custom, or practice, Plaintiffs have not stated a Section 1983 claim. Dougherty, 4 654 F.3d at 900; accord Ahmed v. City of Antioch, 2016 WL 8729938, at *2 (N.D. Cal. July 1, 5 2016) (granting motion to dismiss Section 1983 claim where the plaintiffs failed to assert that the 6 officers “followed any policy, practice, or custom”). Thus, the Court GRANTS the County’s 7 motion to dismiss Plaintiffs’ Section 1983 claim. 8 Moreover, Plaintiffs’ failure to plausibly allege that the County exhibited deliberate 9 indifference provides an additional ground to dismiss Plaintiffs’ Section 1983 claim. “Deliberate 10 indifference is a ‘stringent standard of fault, requiring proof that a municipal actor disregarded a 11 known or obvious consequence of his action.’” Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th 12 Cir. 2011) (quoting Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997)). Deliberate indifference “is a 13 higher standard than gross negligence because it ‘requires a culpable mental state,’ meaning that 14 ‘[t]he state actor must recognize[ ] [an] unreasonable risk and actually intend[ ] to expose the 15 plaintiff to such risks without regard to the consequences to the plaintiff.’” Campbell v. State of 16 Wash. Dep’t of Soc. & Health Servs., 671 F.3d 837, 846 (9th Cir. 2011) (quoting Patel, 648 F.3d 17 at 974). 18 In the instant case, Plaintiffs’ First Amended Complaint still fails to plausibly allege that 19 the County exhibited deliberate indifference. In Plaintiffs’ initial Complaint, Plaintiffs allege that 20 the County “knew or should have known that [Harris] was unfit to be released prematurely,” that 21 Harris’s release “lowered the safety and security conferred on [Harris],” and that Harris’s release 22 “create[ed] a danger to which [Harris] [fell] victim and doing so with deliberate indifference to the 23 known and obvious danger [Harris] posed to himself.” ECF No. 1-1. Plaintiffs’ First Amended 24 Complaint alleges that the County “knew of Harris’ grave mental condition” and that “absent 25 proper post discharge care and follow up,” Harris would “likely return to Highway 280 and try to 26 kill himself.” FAC ¶ 37. Plaintiffs’ First Amended Complaint further alleges that the County 27 “acted with a deliberate indifference in their treatment of [Harris]” by “fail[ing] to take the 1 reasonable measures” in implementing the decision to discharge Harris. Id. ¶¶ 38–39, 42. 2 However, Plaintiffs’ First Amended Complaint does not allege facts sufficient for 3 deliberate indifference. Although Plaintiffs allege that the County failed to take reasonable 4 measures in implementing the decision to release Harris, Plaintiffs concede that the County gave 5 notice to Plaintiffs in advance of Harris’s release. FAC ¶ 13. Moreover, Plaintiffs do not allege 6 that Harris was released by himself. Furthermore, Plaintiffs do not allege that Harris was harmed 7 during his release or immediately thereafter. Rather, Plaintiffs allege that Harris harmed himself 8 two days after his release. Id. ¶ 14. Plaintiffs do not allege facts as to what risks the County was 9 aware of at the time of Harris’s release, how the County became aware of those risks, and what 10 intent the County had with respect to the risks posed to Harris. As the Ninth Circuit has explained, 11 “[d]eliberate indifference is a stringent standard of fault,” which requires that “‘[t]he state actor 12 must recognize[ ] [an] unreasonable risk and actually intend[ ] to expose the plaintiff to such risks 13 without regard to the consequences to the plaintiff.’” Patel, 648 F.3d at 846 (quotation omitted). 14 Without allegations about what risks the County was aware of at the time of Harris’s release, how 15 the County became aware of those risks, and what intent the County had with respect to the risks 16 posed to Harris, Plaintiffs’ First Amended Complaint does not plausibly allege that the County 17 acted with the stringent levels of knowledge and intent required by the deliberate indifference 18 standard.3 Plaintiffs’ failure to plausibly allege that the County exhibited deliberate indifference 19 provides another grounds for the Court to GRANT the County’s motion to dismiss Plaintiffs’ 20 Section 1983 claim. Dougherty, 654 F.3d at 900. 21 Plaintiffs request leave to amend any deficiencies that the Court identifies. Opp’n at 12. 22 Dismissal with prejudice is warranted when amendment would be futile, unduly prejudice the 23

24 3 In contending that the instant case is indicative of deliberate indifference, Plaintiffs cite to Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989). Opp’n at 10–11. However, Wood involved very 25 different circumstances. In Wood, an officer impounded the car in which the plaintiff was riding and left the plaintiff alone at 2:30 am on the side of the road in an area with one of the highest 26 crime rates in the county. 879 F.2d at 586. By contrast, in the instant case, Plaintiffs do not allege 27 that Harris was released by himself in the middle of the night in a dangerous area. Rather, Plaintiffs allege that the County provided Plaintiffs advance notice of Harris’s release. FAC ¶ 13. 1 opposing party, or cause undue delay, or the moving party has acted in bad faith. Leadsinger, 512 2 F.3d at 532. In the instant case, the Court’s prior order concluded that Plaintiffs had not stated a 3 Section 1983 claim because Plaintiffs failed to plausibly allege the existence of a County policy, 4 custom, or practice, and Plaintiffs failed to plausibly allege that the County exhibited deliberate 5 indifference. See ECF No. 24 at 10–13. Moreover, the Court’s prior order warned Plaintiffs that 6 failure to cure these same deficiencies would result in dismissal of the deficient claims with 7 prejudice. Id. at 13. Plaintiffs’ failure to cure these deficiencies demonstrates that further leave to 8 amend would be futile. Furthermore, requiring the County to file a third motion to dismiss would 9 unduly prejudice the County. Finally, Plaintiffs have already amended their Complaint, which 10 weighs against granting leave to amend. See Johnson, 356 F.3d at 1077. Accordingly, the Court 11 DENIES Plaintiffs’ request for leave to amend. 13 For the foregoing reasons, the Court GRANTS the County’s motion to dismiss with 14 prejudice. 16 Dated: May 26, 2021 17 ______________________________________ LUCY H. KOH 18 United States District Judge 19 20 21 22 23 24 25 26 27