8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11
12 JAVIS ANTHONY JR., Case No. 19-CV-08303-LHK
13 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS WITH LEAVE 14 v. TO AMEND
15 COUNTY OF SANTA CLARA, et al., 16 Defendants. 17 18 Before the Court is Defendants County of Santa Clara, Ezra Hunter, Cindy Chavez, and 19 Sheriff Laurie Smith’s (collectively, “Defendants”) motion to dismiss Plaintiff Javis Anthony Jr.’s 20 (“Plaintiff”) third amended complaint. ECF No. 49 (“Mot.”).1 Having considered the parties’ 21 submissions, the relevant law, and the record in this case, the Court GRANTS Defendants’ motion 22 to dismiss with leave to amend. 23 I. BACKGROUND 24 A. Factual Background 25
26 1 Defendants’ motion to dismiss contains a notice of motion paginated separately from the memorandum of points and authorities in support of the motion. ECF No. 54, at 1. Civil Local 27 Rule 7-2(b) provides that the notice of motion and points and authorities must be contained in one document with the same pagination. 1. The Parties 1 Plaintiff was incarcerated by the County of Santa Clara (“the County”) from January of 2 2018 to May of 2019, prior to Plaintiff’s no-contest plea.2 Third Amended Complaint, ECF No. 3 49 (“TAC”), at ¶ 6; ECF No. 42, at 9. Plaintiff suffers from a seizure disorder, autism, attention 4 deficit hyperactivity disorder, and low IQ. Plaintiff has suffered from these disabilities since at 5 least 2007. Id. at ¶ 16. Plaintiff has received medical treatment for these disabilities since at least 6 November 13, 2007, which was eleven years prior to his incarceration. Id. at ¶ 6 Prior to being 7 incarcerated, Plaintiff received medical evaluations, special education services, and medical and 8 mental health services, all related to his disabilities. Id. Plaintiff’s conditions have interfered with 9 and limited Plaintiff’s ability to engage in major life events such as sleeping, performing manual 10 tasks, and working. Id. at ¶ 18. 11 Michelle Choates (“Choates”) is Plaintiff’s mother. Id. at ¶ 15. Choates originally brought 12 this case on behalf of Plaintiff as his conservator. 13 The County operates and manages the Santa Clara County Main Jail Complex (“Main 14 Jail”) and the Elmwood Men’s Correctional Complex (“Elmwood Facility”). Id. at ¶ 7. The 15 County employs the individuals who supervised Plaintiff while he was incarcerated at the Main 16 Jail and Elmwood Facility. Id. 17 Cindy Chavez (“Chavez”) is the President of the Board of Supervisors for the County of 18 Santa Clara. Id. at ¶ 28. Laurie Smith (“Smith”) is the Sheriff of Santa Clara County. Id. at ¶ 30. 19 Ezra Hunter is a correctional sergeant employed by the County. Id. at ¶ 8; Mot. at 7. 20 2. Plaintiff’s Incarceration and Treatment 21 Plaintiff began his incarceration in January of 2018. Prior to the start of his incarceration, 22 Choates informed the County that Plaintiff was a person with disabilities. Id. at ¶ 19. 23 According to Plaintiff, he was severely overmedicated from his first day at the “Elmwood 24 25
26 2 The allegations in Plaintiff’s third amended complaint involve conduct that took place before Plaintiff pled no-contest to the charges that led to his incarceration. See ECF No. 42, at 5. 27 Plaintiff’s third amended complaint does not clarify the nature of Plaintiff’s detention and refers to his status during this period as “incarceration.” See, e.g., TAC at ¶ 19. 1 Facility and at the Main Jail, including with, but not limited to, excessive multiple daily doses of 2 powerful drugs such as Zoloft and Risperdal.” Id. at ¶ 24. 3 Plaintiff further alleges that this overmedication led to Plaintiff suffering a seizure and 4 trauma on December 25, 2017, at which point he was rushed to the hospital. Plaintiff remained in 5 the hospital until December 28, 2017. Id. at ¶ 25. Defendants did now allow Plaintiff to attend 6 prescribed follow-up appointments with a physician. Id. at ¶ 26. The Court notes that these dates 7 are inconsistent with Plaintiff’s allegation that he was incarcerated beginning in January of 2018. 8 Id. at ¶ 6. 9 Choates allegedly notified Defendants on several occasions of Plaintiff’s overmedication. 10 Specifically, on February 7, 2018, Choates submitted an administrative complaint to the officer in 11 charge of Plaintiff’s housing unit, which claimed that Plaintiff was overmedicated and “was 12 having trouble maintaining his balance, was losing weight rapidly, and was chronically dehydrated 13 as a result of the medication.” Id. at ¶ 29. 14 On February 8, 2018, Choates emailed Smith with Choates’ concerns regarding 15 Defendants’ failure to provide appropriate accommodations for Plaintiff. Id. at ¶ 30. Having 16 received no reply, Choates sent a second email to Smith on February 9, 2018, stating that 17 “[a]nother incident took place this morning.” Id. at ¶ 31. Next, on February 10, 2019, Choates 18 sent another email to Smith to raise concerns of Plaintiff’s “mistreatment while incarcerated.” Id. 19 at ¶ 32; ECF No. 49-2, at 2. Finally, on February 12, 2018, Choates emailed Smith alleging that 20 when Choates visited Plaintiff his pupils were dilated. As a result, Choates expressed concern that 21 Plaintiff was being inappropriately medicated or was under the influence of a substance. Id. at ¶ 22 33. 23 On February 22, 2018, during a visit with Plaintiff, Choates observed blood on Plaintiff’s 24 clothes and noticed that Plaintiff had dilated pupils. Plaintiff was on crutches with a foot injury 25 and had allegedly returned from a hospital visit. Id. at ¶ 35. Defendants did not allow Plaintiff to 26 attend prescribed follow-up appointments. Id. at ¶ 37. Choates reported to the County that 27 conditions at the Main Jail were inadequate and inhumane. Id. at ¶ 36. 1 Defendants allegedly retaliated by placing Plaintiff in solitary confinement. Defendants 2 also moved Plaintiff from the Elmwood Facility to various locations at the Mail Jail. Id. at ¶ 38. 3 Furthermore, Defendants allegedly prevented Plaintiff from being able to use his inmate account 4 fund at the jail commissary. 5 On March 2, 2018, Choates emailed Smith with complaints that Plaintiff was being moved 6 back and forth between facilities. Id. at ¶ 40. On March 3, 2018, Choates emailed Smith to 7 complain about the condition of Plaintiff’s cell. Id. at ¶ 41. On March 12, 2018, Choates emailed 8 Hunter to voice Choates’ concern that Plaintiff was subjected to retaliation because Choates filed a 9 complaint. Id. at ¶ 42. 10 On March 16, 2018, Choates filed a second administrative complaint with the director of 11 Plaintiff’s housing unit regarding violations of Plaintiff’s rights and ongoing inhumane treatment. 12 Id. at ¶ 43. On that same day, Choates sent an email to Hunter voicing Choates’ concerns that 13 Plaintiff could not purchase items from the jail’s commissary. Id. at ¶ 39. On April 13, 2018, 14 Choates sent a follow up email to Smith and Chavez. This email alleged that the Main Jail had 15 “not corrected ongoing problems that have caused the denial of civil rights related to Javis’ rights 16 while incarcerated.” Id. at ¶ 44; ECF No. 49-7, at 3. 17 On October 12, 2018, Plaintiff was again hospitalized due to a seizure. Plaintiff alleges 18 that the seizure was caused by overmedication. Id. at ¶ 45. Plaintiff was not permitted by 19 Defendants to attend follow-up appointments with a physician. 20 On April 3, 2019, Choates had a conference call with Chavez to inform Chavez of 21 Choates’ concerns regarding Plaintiff’s care. Id. at ¶ 47. Plaintiff does not allege what concerns 22 Choates raised with Chavez. Id. 23 Plaintiff alleges that on another occasion, Plaintiff was rushed to the hospital after 24 suffering a seizure during a court appearance. Id. at ¶ 48. However, Plaintiff does not provide a 25 date for this event. Id. 26 Defendants also allegedly denied Choates’ requests for reasonable accommodations for 27 Plaintiff’s disabilities, “including but not limited to, sleeping, eating, showering, toileting, 1 exercising, safety, security, as well as participating in programs such as recreational, television, 2 and social programs. Id. at ¶ 21. Plaintiff does not provide dates for the denial of these requests. 3 Id. 4 Finally, Plaintiff was allegedly “subjected to multiple 5150 (involuntary hold for 72 hours 5 for being a danger to themselves or others) and 5250 (involuntary 72 hour hold if a person is, after 6 a 72-hour hold, still deemed to be a danger to others or themselves, or is gravely disabled) 7 psychiatric holds without cause.” Id. at ¶ 22. Plaintiff does not provide a date for these holds. 8 B. Procedural Background 9 Choates, the mother of the real party in interest, initiated the instant case pro se on 10 December 19, 2019. ECF No. 1. Magistrate Judge Virginia K. DeMarchi initially denied without 11 prejudice Choates’ motion for appointment of counsel. ECF No. 8. On February 5, 2020, Choates 12 filed a first amended complaint. ECF No. 10. 13 On February 25, 2020, Magistrate Judge DeMarchi referred Choates to the Federal Pro Se 14 Program. ECF No. 15. On March 31, 2020, Judge DeMarchi appointed pro bono counsel to 15 represent Choates and stayed this action through May 12, 2020. ECF No. 16. 16 On May 4, 2020, this action was reassigned to this Court. ECF No. 19. 17 On June 10, 2020, Choates filed a second amended complaint, alleging causes of action 18 for: (1) deliberate indifference to serious medical needs in violation of the Eighth Amendment 19 against all Defendants pursuant to 42 U.S.C. § 1983; (2) violations of Title II of the Americans 20 with Disabilities Act against the County pursuant to 42 U.S.C. § 12101 et seq.; (3) violations of 21 Section 504 of the Rehabilitation Act against the County pursuant to 29 U.S.C. § 794. ECF No. 22 24, at ¶¶ 49–83. 23 On August 24, 2020, Defendants filed a motion to dismiss. ECF No. 42. On September 4, 24 2020, the parties filed a joint stipulation to amend the complaint. ECF No. 45. The parties 25 stipulated to allow Choates to file a third amended complaint substituting Javis Anthony Jr. 26 (“Plaintiff”) as plaintiff and amending the deliberate indifference claim to reflect that it is brought 27 under the Fourteenth Amendment rather than the Eighth Amendment. Id. at 1. 1 On October 26, 2020, Plaintiff filed a third amended complaint with the stipulated 2 amendments. Third Amended Complaint, ECF No. 49 (“TAC”). 3 On November 16, 2020, Defendants filed a motion to dismiss. ECF No. 54 (“Mot.”). On 4 November 30, 2020, Plaintiff filed an opposition. ECF No. 45 (“Opp.”). On December 7, 2020, 5 Defendants filed a reply. ECF No. 57 (“Reply”). 6 II. LEGAL STANDARD 7 A. Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(6) 8 Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint to include “a short 9 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 10 8(a). A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of 11 Civil Procedure 12(b)(6). Rule 8(a) requires a plaintiff to plead “enough facts to state a claim to 12 relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 13 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 14 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 15 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a probability requirement, but 16 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal 17 quotation marks omitted). For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] 18 factual allegations in the complaint as true and construe[s] the pleadings in the light most 19 favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 20 1031 (9th Cir. 2008). 21 The Court, however, need not accept as true allegations contradicted by judicially 22 noticeable facts, see Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and it “may look 23 beyond the plaintiff’s complaint to matters of public record” without converting the Rule 12(b)(6) 24 motion into a motion for summary judgment. Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 25 1995). Nor must the Court “assume the truth of legal conclusions merely because they are cast in 26 the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per 27 curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Mere 1 “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to 2 dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004). 3 B. Leave to Amend 4 If the Court determines that a complaint should be dismissed, it must then decide whether 5 to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to 6 amend “shall be freely given when justice so requires,” bearing in mind “the underlying purpose 7 of Rule 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities.” 8 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation 9 marks omitted). When dismissing a complaint for failure to state a claim, “'a district court should 10 grant leave to amend even if no request to amend the pleading was made, unless it determines that 11 the pleading could not possibly be cured by the allegation of other facts.” Id. at 1130 (internal 12 quotation marks omitted). Accordingly, leave to amend generally shall be denied only if allowing 13 amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the 14 moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 15 (9th Cir. 2008). 16 III. DISCUSSION 17 Plaintiff alleges three claims against Defendants in the third amended complaint: (1) a 18 claim for deliberate indifference against the County, Chavez, Smith, and Hunter; (2) a claim for 19 violations of the Americans with Disabilities Act (“ADA”) against the County; and (3) a claim for 20 violations of Section 504 of the Rehabilitation Act against the County. TAC at ¶¶ 49–83. In the 21 instant motion to dismiss, Defendants argue that each of Plaintiff’s three claims fail to state a 22 claim and therefore should be dismissed under Rule 12(b)(6). Mot. at 1. Plaintiff argues in 23 opposition that the third amended complaint contains sufficient allegations to survive a motion to 24 dismiss on each claim. The Court addresses each claim in turn. 25 A. Claim for Deliberate Indifference 26 Plaintiff’s first claim alleges that Defendants were deliberately indifferent to Plaintiff’s 27 serious medical needs in violation of the Fourteenth Amendment. TAC at ¶¶ 50–60. Plaintiff 1 brings this claim pursuant to 42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must 2 allege the violation of a right secured by the Constitution and laws of the United States, and must 3 show that the alleged deprivation was committed by a person acting under color of state law.” 4 West v. Atkins, 487 U.S. 42, 48 (1988). 5 Defendants argue that Plaintiff has failed to state a claim for deliberate indifference with 6 respect to both the individual defendants (Smith, Chavez, and Hunter) and the County. Mot. at 5. 7 The Court begins by examining Plaintiff’s deliberate indifference claim against each of the 8 individual defendants. 9 1. Individual Defendants 10 Defendants first allege that Plaintiff has failed to allege a deliberate indifference claim 11 against each of the three individual defendants. Specifically, Defendants argue that Plaintiff has 12 failed to state a deliberate indifference claim against the individual defendants for three reasons. 13 First, Plaintiff does not allege that Plaintiff received constitutionally inadequate medical care; (2) 14 Plaintiff fails to identify facts establishing that any individual defendant directly participated in 15 Plaintiff’s care or recklessly ignored the risk that Plaintiff’s treatment plan created; and (3) 16 Plaintiff has failed to establish adequate causation. Mot. at 5–7. The Court finds that arguments 17 one and two are dispositive of Plaintiff’s claim for deliberate indifference against the individual 18 defendants, and so the Court does not reach Defendants’ third argument. 19 The Ninth Circuit has clarified that “the elements of a pretrial detainee’s medical care 20 claim against an individual defendant under the due process clause of the Fourteenth Amendment 21 are: (i) the defendant made an intentional decision with respect to the conditions under which the 22 plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious 23 harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though 24 a reasonable official in the circumstances would have appreciated the high degree of risk 25 involved—making the consequences of the defendant's conduct obvious; and (iv) by not taking 26 such measures, the defendant caused the plaintiff’s injuries.” Gordon v. County of Orange, 888 27 F.3d 1118, 1125 (9th Cir. 2018). Moreover, “[w]ith respect to the third element, the defendant’s 1 conduct must be objectively unreasonable.” Id. (quoting Castro v. County of Los Angeles, 833 2 F.3d 1060, 1071 (9th Cir. 2016). Accordingly, ‘the plaintiff must prove more than negligence but 3 less than subjective intent—something akin to reckless disregard.” Id. (internal quotation marks 4 omitted). 5 The Court now addresses Defendants’ arguments that Plaintiff has failed to state a claim 6 for deliberate indifference against the individual defendants. 7 a. Constitutionally Inadequate Medical Care 8 Defendants first argue that Plaintiff has failed to state a claim for deliberate indifference 9 against the individual defendants because Plaintiff has failed to allege that Plaintiff received 10 constitutionally inadequate medical care. Mot. at 5. Specifically, Defendants argue that although 11 Plaintiff’s third amended complaint alleges that Plaintiff was “overmedicated,” it does not explain 12 what that means. Defendants argue that the third amended complaint provides even fewer details 13 regarding the alleged “trauma” that Plaintiff suffered. Id. According to Defendants, [a]lleging 14 that a plaintiff was ‘overmedicated’ and experienced ‘trauma,’ without more, is not meaningfully 15 different than rotely declaring a detainee’s medical care was ‘unconstitutional.’” Mot. at 6. 16 Finally, Defendants argue that Plaintiff has alleged insufficient facts to state a claim for deliberate 17 indifference for a broken foot and for abrasions that Plaintiff allegedly suffered. Id. at 3. Thus, 18 Defendants argue, Plaintiff has provided only bare, conclusory allegations that Plaintiff suffered 19 an injury, rather than any substantive allegations that Plaintiff’s harm resulted from substandard 20 medical care. 21 In opposition, Plaintiff argues that the third amended complaint adequately alleges that 22 Plaintiff received constitutionally inadequate medical care. Opp. at 7. Specifically, Plaintiff 23 argues that the third amended complaint alleges that Plaintiff was severely overmedicated from his 24 first day of incarceration, and that Plaintiff’s overmedication consisted of “excessive multiple 25 daily doses of powerful drugs such as Zoloft and Risperdal.” Id. at 8 (quoting TAC at ¶ 24). 26 Furthermore, Plaintiff argues that the third amended complaint alleges that this overmedication led 27 to multiple seizures and hospitalizations. Id. Plaintiff argues that these allegations are more than 1 bare, conclusory allegations, and are sufficient to plead constitutionally inadequate medical care at 2 the motion to dismiss stage. 3 The Court agrees as to Plaintiff’s allegations regarding overmedication. “[C]onstru[ing] 4 the pleadings in the light most favorable to the nonmoving party,” Manzarek, 519 F.3d at 1031, 5 Plaintiff has sufficiently alleged that he was overmedicated and that this overmedication consisted 6 of “excessive multiple daily doses of powerful drugs such as Zoloft and Risperdal.” TAC at ¶ 24. 7 Plaintiff further alleges that this overmedication led to multiple seizures and hospitalizations. Id. 8 These facts are sufficient at the motion to dismiss stage to allege that Plaintiff’s medical care 9 placed Plaintiff “at substantial risk of suffering serious harm,” Gordon, 888 F.3d at 1124, and that 10 Plaintiff’s treatment was therefore “medically unacceptable.” Toguchi v. Chung, 391 F.3d 1051, 11 1058 (9th Cir. 2004). Thus, Plaintiff has pled sufficient allegations regarding constitutionally 12 inadequate medical care due to Plaintiff’s overmedication. 13 However, the Court agrees with Defendants that Plaintiff has failed to provide sufficient 14 allegations regarding inadequate medical care in relation to Plaintiff’s broken foot. See TAC at ¶ 15 35. In fact, Plaintiff acknowledges in his opposition brief that “Plaintiff does not have sufficient 16 facts to support a claim of deliberate indifference in connection with the broken foot.” Opp. at 12 17 n.5. Accordingly, Plaintiff has failed to state a claim for deliberate indifference based on 18 constitutionally inadequate medical care for Plaintiff’s broken foot. 19 Finally, Plaintiff’s opposition brief fails to defend Plaintiff’s claim of deliberate 20 indifference due to abrasions that Plaintiff allegedly suffered. Plaintiff has therefore abandoned 21 his claim for deliberate indifference based on abrasions. See Lesnik v. Eisenmann SE, 2018 WL 22 4700347, at *6 (N.D. Cal. Oct. 1, 2018) (explaining that plaintiffs failed to defend claim in 23 opposition brief and “[p]laintiffs’ silence indicates they have abandoned this theory.”). 24 b. Individual Defendants’ Participation in Plaintiff’s Care 25 Second, Defendants argue that Plaintiff has failed to state a claim with respect to the 26 individual defendants because Plaintiff has failed to allege that any individual defendant 27 participated in Plaintiff’s care or recklessly ignored risks that Plaintiff’s treatment created. Mot. at 1 6. 2 Plaintiff does not argue that any of the individual defendants directly participated in 3 Plaintiff’s medical care. Rather, Plaintiff argues that the third amended complaint alleges that 4 Choates repeatedly warned the individual defendants that Plaintiff was overmedicated and 5 receiving deficient treatment. Opp. at 10–11. Specifically, Plaintiff argues that Choates sent 6 multiple communications to “Chavez and Smith” that alerted Chavez and Smith to “the exact 7 medical problems identified above as constituting the constitutionally deficient medical 8 treatment.” Id. at 10. Plaintiff therefore argues that the individual defendants failed to address 9 Plaintiff’s inadequate medical treatment after Choates warned them of Plaintiff’s inadequate care. 10 Id. 11 A supervisory official may be held liable under Section 1983 only “if there exists either (1) 12 his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal 13 connection between the supervisor’s wrongful conduct and the constitutional violation.” Starr v. 14 Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 15 1989) (internal quotation marks and citation omitted)). “The requisite causal connection can be 16 established . . . by setting in motion a series of acts by others or by knowingly refus[ing] to 17 terminate a series of acts by others, which [the supervisor] knew or reasonably should have known 18 would cause others to inflict a constitutional injury.” Rodriguez v. County of Los Angeles, 891 19 F.3d 776, 798 (9th Cir. 2018) (quoting Starr, 652 F.3d at 1207–08). 20 Defendants argue that Plaintiff has failed to meet this standard for each of the three 21 individual defendants. The Court discusses each of the individual defendants in turn. 22 First, the Court agrees with Defendants that Plaintiff has failed to allege that Hunter 23 received any communications from Choates regarding Plaintiff’s inadequate medical care. The 24 third amended complaint alleges that Choates sent emails to Hunter concerning Plaintiff’s 25 commissary credits and housing, not overmedication. See TAC at ¶¶ 39, 42; ECF No. 49-4 (“Ex. 26 D”); ECF No. 49-6 (“Ex. F”). Plaintiff has therefore failed to adequately plead that Hunter 27 participated in Plaintiff’s inadequate medical care or “knowingly refus[ed] to terminate a series of 1 acts by others, which [Hunter] knew or reasonably should have known would cause others to 2 inflict a constitutional injury.” Rodriguez, 891 F.3d at 798. Accordingly, Plaintiff has failed to 3 state a claim for deliberate indifference against Hunter. 4 Second, although Plaintiff argues in opposition that both “Chavez and Smith” received 5 “multiple communications” from Choates that alerted them to the fact that Plaintiff was not “being 6 appropriately medicated,” the third amended complaint does not reflect that allegation with respect 7 to Chavez. Opp. at 10. Rather, the third amended complaint alleges that Chavez received three 8 emails from Choates. Chavez allegedly received two emails regarding Plaintiff’s commissary 9 credits and housing that were also sent to Hunter. See Ex D; Ex F. Chavez was also sent a third 10 email from Choates, but that email states only that there are “ongoing problems that have caused 11 the denial of civil rights related to [Plaintiff’s] rights while incarcerated.” TAC at ¶ 44; ECF No 12 49-7, at 3 (“Ex. G”). The email does not mention overmedication, seizures, or any other issues 13 related to Plaintiff’s medical care. Finally, the third amended complaint alleges that Choates “had 14 a conference call with Chavez informing her about her concerns and the circumstances regarding 15 her son’s conditions.” Id. at ¶ 47. However, the third amended complaint does not allege that 16 Choates informed Chavez of any concerns regarding Plaintiff’s overmedication. 17 As such, Plaintiff has failed to adequately allege that Chavez had any knowledge of 18 Plaintiff’s inadequate medical care. Accordingly, Plaintiff has failed to adequately plead that 19 Chavez participated in Plaintiff’s inadequate medical care or “knowingly refus[ed] to terminate a 20 series of acts by others, which [Chavez] knew or reasonably should have known would cause 21 others to inflict a constitutional injury.” Rodriguez, 891 F.3d at 798. As such, Plaintiff has failed 22 to state a claim for deliberate indifference against Chavez. 23 Finally, with respect to Smith, Defendants argue that (1) Choates’ communications to 24 Smith were insufficient to place Smith on notice of the allegedly inadequate medical care, and (2) 25 even if Choates had been properly notified, Plaintiff has failed to allege that Smith acted with 26 reckless disregard with respect to Plaintiff’s inadequate medical care. Reply at 5–6. 27 As to Defendants’ first argument, the Court finds that Plaintiff has adequately alleged that 1 Choates informed Smith of Plaintiff’s overmedication. For example, in one email that Choates 2 sent to Smith, Choates explained that she visited Plaintiff that morning and “his pupils are huge. I 3 am concerned that he is not being appropriately medicated or under the influence of something. 4 This is a huge concern!” TAC at ¶ 33; ECF No. 49-3 (“Ex. C”), at 2. This is sufficient at the 5 motion to dismiss stage to plead that Choates alerted Smith to concerns regarding Plaintiff’s 6 overmedication. 7 However, Smith is a supervisor and had no direct participation in Plaintiff’s medical care. 8 Therefore, Plaintiff must allege that Smith’s conduct was “objectively unreasonable,” which the 9 Ninth Circuit has defined as “more than negligence but less than subjective intent—something 10 akin to reckless disregard.” Gordon, 888 F.3d at 1125; see also Wortham v. Waldura, 2020 WL 11 5630269, at *3 (N.D. Cal. Sep. 21, 2020) (explaining that for a deliberate indifference claim, 12 “plaintiff must demonstrate that Defendants’ actions were more than merely negligent and were 13 objectively unreasonable.”). 14 Here, Plaintiff has failed to allege that Smith’s conduct demonstrated “reckless disregard” 15 for Plaintiff’s inadequate medical care. After Choates informed Smith of Choates’ concerns 16 regarding Plaintiff’s medical care, Smith’s assistant emailed Choates on Smith’s behalf. That 17 email informed Choates that the “Director of Adult Custody Health” at the Main Jail had assigned 18 an individual to be Choates’ “point of contact relating to any concerns you have regarding the 19 provision of medical/mental health.” TAC at ¶ 44; ECF No. 49-7 (“Ex. G”), at 3. This 20 communication suggests that Smith contacted medical personnel at the Main Jail in response to 21 Choates’ complaints. Smith’s decision to contact the Director of Adult Custody Health at the 22 Main Jail after learning of Choates’ concerns does not demonstrate that Smith exhibited “reckless 23 disregard” with respect to Plaintiff’s medical care. Furthermore, the third amended complaint fails 24 to allege any other facts that demonstrate that Smith acted with “reckless disregard” with respect 25 to Plaintiff’s medical care. Accordingly, the Court finds that Plaintiff has failed to state a claim 26 for deliberate indifference against Smith. 27 As such, the Court finds that Plaintiff has failed to adequately state a claim for deliberate 1 indifference against each of the individual defendants. 2 2. The County 3 Defendants next argue that Plaintiff has failed to state a claim for deliberate indifference 4 against the County itself. Mot. at 8–10. Plaintiff argues that the third amended complaint 5 sufficiently alleges that the County has a policy and practice of overmedicating inmates and not 6 taking inmates to follow-up appointments. Plaintiff argues that the third amended complaint also 7 adequately alleges that the County has failed to adequately train its staff. Op. at 12. 8 A municipality is not vicariously liable for its employee’s tortious conduct. Rather, a 9 municipality is liable where that conduct occurred “pursuant to official municipal policy of some 10 kind.” Monell v. Dep’t of Social Servs. of City of N.Y., 436 U.S. 658, 691 (1978). Therefore, to 11 state a claim for deliberate indifference against the County, Plaintiff must (1) show “a direct causal 12 link between a municipal policy or custom and the alleged constitutional deprivation,” and (2) 13 “demonstrate that the custom or policy was adhered to with deliberate indifference to the 14 constitutional rights of the jail’s inhabitants.” Castro, 833 F.3d at 1075–76. The deliberate 15 indifference standard for municipalities is an “objective standard.” Id. at 1076. This “objective 16 standard is satisfied when a § 1983 plaintiff can establish that the facts available to city 17 policymakers put them on actual or constructive notice that the particular omission [or act] is 18 substantially certain to result in the violation of the constitutional rights of their citizens.’” 19 Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1248–49 (9th Cir. 2016) (quoting Castro, 833 F.3d 20 at 1076) (alteration in original). 21 Defendants argue that Plaintiff has failed to adequately allege that the County has a policy 22 and practice of overmedicating inmates and not taking inmates to follow-up appointments. Mot. 23 at 9. Specifically, Defendants argue that Plaintiff has cited only his own experiences, which are 24 insufficient to demonstrates a policy or practice. In opposition, Plaintiff argues that the third 25 amended complaint alleges that “that the County has a policy or practice of overmedicating 26 inmates and not taking inmates to follow-up appointments,” and that Choates brought the failure 27 of this policy to the attention of policymakers, including Smith. Opp. at 13. Plaintiff further 1 argues that the County took no corrective measures in response to these complaints, and the 2 County’s failure to take corrective measures “is either the result of a policy and procedure of the 3 County, or a failure to adequately train and supervise its employees.” Id. 4 The Court agrees with Defendants that Plaintiff has failed to allege sufficient facts to 5 support a claim that the County has a policy or practice of overmedicating its inmates or a policy 6 or practice of not taking inmates to follow-up appointments. The third amended complaint alleges 7 that “the County has a policy and practice of overmedicating its inmates,” and that “the County 8 has a longstanding policy and practice of not ensuring inmates have access to timely medical 9 care.” TAC at ¶¶ 53, 54. In support of these allegations Plaintiff cites only his own allegations 10 that he was overmedicated by County employees and not taken to follow-up medical 11 appointments. Plaintiff does not allege that any other detainees were treated in the same manner. 12 Plaintiff also does not offer any evidence that Plaintiff’s treatment was pursued in accordance with 13 an official or de facto policy. 14 The two main cases that Plaintiff cites illustrate this deficiency. In Steel v. Alameda 15 County Sheriff’s Office, Alameda County had signed a contract to outsource its medical care of 16 detainees to a private firm. 428 F. Supp. 3d 235, 239 (N.D. Cal. 2019). As a result of the terms of 17 this contract, the private firm had an incentive to refuse and withhold hospitalization services to 18 inmates, including plaintiff. Id. at 240. Plaintiff was refused hospitalization and suffered 19 inadequate medical care as a result. The Court found that Alameda County’s contract with the 20 private firm constituted an official policy that gave rise to liability. Id. at 242. In the instant case, 21 Plaintiff has failed to allege any such contract or official policy that led to Plaintiff’s inadequate 22 medical care. 23 In Merino v. County of Santa Clara, plaintiff alleged that the county had a policy or 24 practice of not ensuring that inmates had access to timely medical care. 2019 WL 2437176, at *8 25 (N.D. Cal. June 11, 2019). Plaintiff supported this allegation by pleading that plaintiff’s 26 experience was not unique and other inmates experienced the same issues regarding access to 27 timely medical care. The Court found that these pleadings were sufficient to state a claim that the 1 county had a policy of not providing timely medical care. Id. In the instant case, Plaintiff has not 2 alleged that any other detainee was overmedicated or otherwise subjected to the inadequate 3 medical care that Plaintiff alleges. 4 In response to this deficiency, Plaintiff’s opposition brief states that “based on discovery 5 following the filing of the Complaint, Plaintiff has developed facts relating to Defendants’ 6 expressed policies for medicating inmates suffering from sleeping problems that led directly to the 7 harm suffered by Plaintiff.” Opp. at 13 n.6. However, the Court may not consider allegations not 8 found in Plaintiff’s third amended complaint on a motion to dismiss. See Schneider v. California 9 Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“In determining the propriety of a 10 Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff's moving papers, 11 such as a memorandum in opposition to a defendant's motion to dismiss.”). 12 Plaintiff’s allegations that the County failed to train its employees are similarly deficient. 13 To state a claim for failure to train, “[a] municipality’s failure to train its employees in a relevant 14 respect must amount to deliberate indifference to the rights of persons with whom the [untrained 15 employees] come into contact.” Connick v. Thompson, 563 U.S. 51, 62 (2011) (internal quotation 16 marks and citation omitted). Furthermore, “[a] pattern of similar constitutional violations by 17 untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes 18 of failure to train.” Id. Here, Plaintiff has failed to identify “[a] pattern of similar constitutional 19 violations by untrained employees.” Id. Moreover, Plaintiff has failed to identify which 20 employees were inadequately trained or how specifically the inadequacies of those employee’s 21 training “amount[ed] to deliberate indifference” on the part of the County. Id. Rather, the third 22 amended complaint alleges only that the County failed “to adequately train and/or supervise its 23 staff on how to respond to requests for medical care.” TAC ¶ 55. These bare, conclusory 24 allegations are insufficient to state a claim for deliberate indifference against the County for failure 25 to train. 26 As such, the Court finds that Plaintiff has failed to state a claim for deliberate indifference 27 against the County. 1 In sum, Plaintiff has failed to adequately state a claim for deliberate indifference against 2 the individual defendants and the County. Accordingly, Defendants’ motion to dismiss Plaintiff’s 3 deliberate indifference claim is GRANTED. 4 B. Claims for Violation of the ADA and Rehabilitation Act 5 Finally, Defendants argue that Plaintiff has failed to state a claim against the County under 6 both the ADA and the Rehabilitation Act. 7 To state a claim under the ADA, a plaintiff must allege: “(1) he is an individual with a 8 disability; (2) he is otherwise qualified to participate in or receive the benefit of some public 9 entity’s services, programs, or activities; (3) he was either excluded from participation in or denied 10 the benefits of the public entity’s services, programs, or activities, or was otherwise discriminated 11 against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by 12 reason of [his] disability.” McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) 13 (internal quotation marks omitted). To seek money damages for a violation, a plaintiff must 14 establish that the alleged discrimination was intentional. Duvall v. County of Kitsap, 260 F.3d 15 1124, 1138 (9th Cir. 2001). A plaintiff satisfies the intentionality requirement by establishing that 16 the public entity was deliberately indifferent. Id. This requires a showing of “both knowledge 17 that a harm to a federally protected right is substantially likely, and a failure to act upon that 18 likelihood.” Id. at 1139. 19 The Court considers Plaintiff’s ADA claim and Rehabilitation Act claim together because 20 “[t]here is no significant difference in analysis of the rights and obligations created by the ADA 21 and the Rehabilitation Act,” and so courts within the Ninth Circuit often examine ADA and 22 Rehabilitation Act claims together. Zukle v. Regents of University of California, 166 F.3d 1041, 23 1046 n.11 (9th Cir. 1999). 24 Plaintiff’s claims against the County for failure to provide necessary accommodations for 25 Plaintiff’s disability under the ADA and Rehabilitation Act are not entirely clear. For example, 26 Plaintiff’s third amended complaint alleges that Plaintiff “was deprived of accommodations for his 27 disabilities, such as sleeping, eating, showering, toileting, exercising, safety, security, as well as 1 participating in programs such as recreational, television, and social programs, throughout his 2 entire stay at the Main Jail and the Elmwood Facility.” TAC at ¶ 21. Plaintiff later alleges that he 3 “was denied these accommodations on the basis of his disability,” and that “full and meaningful 4 access” would include “the cessation of overmedicating [Plaintiff]” and “the ability for [Plaintiff] 5 to attend follow-up appointments.” Id. at ¶ 68. 6 The Court agrees with Defendants that these allegations fail to state a claim for violation of 7 the ADA or Rehabilitation Act because under Ninth Circuit precedent these statutes “prohibit[] 8 discrimination because of disability, not inadequate treatment for disability.” Simmons v. Navajo 9 County, Ariz., 609 F.3d 1011, 1022 (9th Cir. 2019), overruled on other grounds by Castro, 833 10 F.3d 1060 (9th Cir. 2016); see also Merino, 2019 WL 2437176, at *9 (“The County is correct that 11 neither the ADA nor the Rehabilitation Act prohibit inadequate treatment of a disability.”). “Some 12 courts have found that an outright and deliberate denial or refusal of access to medical care for a 13 qualifying disability may be actionable under the ADA and the RA.” Razon v. County of Santa 14 Clara, 2018 WL 405010, at *10 (N.D. Cal. Jan. 12, 2018) (internal quotation marks omitted). 15 However, Plaintiff does not allege that the County denied him medical care outright for his 16 disability. Rather, Plaintiff has alleged that the County’s medical care was inadequate. 17 Accordingly, Plaintiff’s allegations are insufficient to state a claim under the ADA and 18 Rehabilitation Act on account of the County’s inadequate medical care. See Simmons, 609 F.3d at 19 1022 (explaining that the ADA and Rehabilitation Act “prohibit[] discrimination because of 20 disability, not inadequate treatment for disability.”) 21 Plaintiff’s opposition brief argues that the County subjected Plaintiff to “unnecessary and 22 excessive medical holds and solitary confinement” in place of providing accommodations for 23 Plaintiff’s disability. Op. at 15. However, Plaintiff’s third amended complaint does not connect 24 Plaintiff’s allegations regarding these “medical holds and solitary confinement” with Plaintiff’s 25 claim that he was denied proper disability accommodations by the County. Rather, Plaintiff 26 merely alleges that Plaintiff was subject to these holds “without cause” and “without proper 27 justification.” TAC at ¶ 22. Therefore, Plaintiff’s allegations regarding “unnecessary and 1 excessive medical holds and solitary confinement” are insufficient to state a claim under the ADA 2 and the Rehabilitation Act. 3 In sum, the Court finds that Plaintiff has failed to state a claim under the ADA and 4 Rehabilitation Act. Accordingly, Defendants’ motion to dismiss Plaintiff’s ADA and 5 Rehabilitation Act claims is GRANTED. 6 IV. CONCLUSION 7 For the foregoing reasons, Defendants’ motion to dismiss Plaintiff’s third amended 8 complaint in its entirety is GRANTED. Because granting Plaintiff an additional opportunity to 9 amend the complaint would not be futile, cause undue delay, or unduly prejudice Defendants, and 10 Plaintiff has not acted in bad faith, the Court grants leave to amend. See Leadsinger, 512 F.3d at 11 532. 12 Should Plaintiff choose to file an amended complaint, Plaintiff must do so within 30 days 13 of this Order. Failure to do so, or failure to cure the deficiencies identified in this Order and in 14 Defendants’ motion to dismiss, will result in dismissal of Plaintiff’s deficient claims with 15 prejudice. Plaintiff may not add new claims or parties without a stipulation or leave of the Court. 16 If Plaintiff chooses to file an amended complaint, Plaintiff must also file a redlined copy 17 comparing the fourth amended complaint with the third amended complaint. 18 IT IS SO ORDERED. 19 Dated: May 5, 2021 20 ______________________________________ LUCY H. KOH 21 United States District Judge 22 23 24 25 26 27