1 2 3 4 5 6 7 10 11 DARRYL DUNSMORE, ERNEST Case No.: 20-cv-00406-AJB-WVG ARCHULETA, ANTHONY 12 EDWARDS, REANNA LEVY, JOSUE ORDER GRANTING MOTIONS TO LOPEZ, CHRISTOPHER NELSON, 13 CHRISTOPHER NORWOOD, and DISMISS SECOND AMENDED LAURA ZOERNER, on behalf of COMPLAINT 14 themselves and all others similarly situated, (Doc. Nos. 109, 125, 133, 134) 15 Plaintiffs, 16 v. 17 SAN DIEGO COUNTY SHERIFF’S DIEGO, CORRECTIONAL TRI-CITY MEDICAL CENTER, MID-AMERICA HEALTH, INC., DIEGO COUNTY PROBATION 22 DEPARTMENT, and DOES 1 to 20, inclusive, 23 Defendants. 24 Presently pending before the Court is Defendants Logan Haak, M.D., Inc., Liberty 25 Healthcare, Inc., County of San Diego, and Correctional Healthcare Partners, Inc.’s 26 (collectively, “Defendants”) motions to dismiss. (Doc. Nos. 109, 125, 133, 134.) The 27 motions are fully briefed, (Doc. Nos. 136, 144, 160, 170, 174, 177, 178, 187), and the 28 1 matter is suitable for determination on the papers. For the reasons set forth below, the Court 2 GRANTS Defendants’ motions to dismiss. 4 Plaintiffs Darryl Dunsmore, Ernest Archuleta, Anthony Edwards, Reanna Levy, 5 Josue Lopez, Christopher Nelson, Christopher Norwood, and Laura Zoerner (collectively, 6 “Plaintiffs”) are current or former inmates of San Diego County Jail facilities (the “Jail”), 7 operated by Defendants San Diego County Sheriff’s Department (“Sheriff’s Department”) 8 and County of San Diego (the “County”) (collectively, “County Defendants”). Correctional 9 Healthcare Partners, Inc. (“CHP”) and Liberty Healthcare, Inc., (collectively, “Contractor 10 Defendants”) provide security, medical care, mental health care, and dental care to the 11 individuals incarcerated in the Jail. Plaintiffs bring this action on behalf of “themselves 12 and the approximately 4,000 incarcerated people who are similarly situated on any given 13 day” to “remedy the dangerous, discriminatory, and unconstitutional conditions in the Jail.” 14 (Second Amended Complaint (“SAC”), Doc. No. 81, ¶ 6.) Specifically, Plaintiffs contend 15 Defendants’ policies and practices contribute to the high death rates in the Jail, which “has 16 for years exceeded the rates nationally and in other large California jails, [and] it reached 17 chilling heights in 2021 when 18 people died, amounting to a death rate of 458 incarcerated 18 people per 100,000.” (Id. ¶ 1.) 19 To this point, the California State Auditor’s February 3, 2022 report found that “the 20 Sheriff’s Department has failed to adequately prevent and respond to the deaths of 21 individuals in its custody.” (Id. ¶ 2 (quoting Doc. No. 119-3 at 44).) These deaths are “often 22 attributable to suicide, overdoses, homicide, and medical neglect, and many involved 23 persons with a mental illness.” (Id. ¶ 3.) As such, Plaintiffs seek declaratory and injunctive 24 relief against Defendants for their “deliberate indifference to their obligation to provide 25 incarcerated people with minimally adequate medical care[,]” (id. ¶ 7); “deliberate 26 indifference to their failure to provide incarcerated people with minimally adequate mental 27 health care[,]” (id. ¶ 9); “systemic and willful discrimination against, and failure to provide 28 reasonable accommodations in, programs, services, and activities to incarcerated people in 1 the Jail who have disabilities[,]” (id. ¶ 10); “deliberate indifference to their failure to ensure 2 the safety and security of incarcerated people against other unreasonably dangerous 3 conditions in the Jail[,]” (id. ¶ 11); “deliberate indifference to their failure to provide 4 incarcerated people with adequate dental care[,]” (id. ¶ 12); and “interference with 5 Plaintiffs’ right to effective assistance of counsel and right to access the courts . . . .” (id. 6 ¶ 13). 7 The SAC alleges violations of (1) the Eighth Amendment, pursuant to 42 U.S.C. 8 § 1983; (2) the Fourteenth Amendment, pursuant to § 1983; (3) Article 1, Section 7 of the 9 California Constitution; (4) Article 1, Section 17 of the California Constitution; (5) the 10 Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12132, 12203; (6) the ADA, 11 § 12188; (7) the Rehabilitation Act, 29 U.S.C. § 794; (8) the Unruh Civil Rights Act, Cal. 12 Civ. Code § 51 et seq.; (9) Cal. Gov’t Code § 11135; (10) the Sixth Amendment, pursuant 13 to 42 U.S.C. § 1983; (11) Section 15 of the California Constitution; (12) the Fourteenth 14 Amendment, pursuant to § 1983; (13) Section 7 of the California Constitution; (14) the 15 ADA for discrimination contributing to unnecessary incarceration and institutionalization; 16 and (15) Cal. Gov’t Code § 11135 for discriminatory impact. (Id. ¶¶ 398–464.) 18 Federal Rule of Evidence 201(b) permits judicial notice of any fact “not subject to 19 reasonable dispute because it: (1) is generally known within the trial court’s territorial 20 jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy 21 cannot be questioned.” Fed. R. Evid. 201(b); Khoja v. Orexigen Therapeutics, Inc., 899 22 F.3d 988, 999 (9th Cir. 2018). Moreover, “[a] district court ruling on a motion to dismiss 23 may consider a document the authenticity of which is not contested, and upon which the 24 plaintiff’s complaint necessarily relies.” Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 25 1998), superseded by statute on other grounds as recognized in Abrego Abrego v. The Dow 26 Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006); Knievel v. ESPN, 393 F.3d 1068, 1076 (9th 27 Cir. 2005). Further, when ruling on a Rule 12(b)(6) motion to dismiss, courts may consider 28 1 material properly subject to judicial notice without converting the motion into one for 2 summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). 3 A. Plaintiffs’ Requests for Judicial Notice 4 To begin, Plaintiffs request judicial notice of three contracts, each with San Diego 5 County. (Doc. Nos. 136-1, 160-1, 170-1.) Specifically, these contracts are between San 6 Diego County and Defendants Haak, Liberty, and CHP, respectively. (See id.) Defendant 7 CHP joins in Plaintiffs’ request for judicial notice of its contract with San Diego County. 8 (See Doc. No. 135 at 2, 4.) However, the Court does not rely on these documents in 9 reaching its conclusion below. Accordingly, the Court DENIES AS MOOT Plaintiffs’ 10 requests for judicial notice as to these exhibits. 11 B. CHP’s Request for Judicial Notice 12 Next, CHP requests judicial notice of several documents. (Doc. Nos. 135, 179.) First, 13 CHP requests the Court to take judicial notice of the California Secretary of State’s 14 business entity records for CHP, which shows its date of incorporation as June 4, 2020. 15 (Doc. No. 135 at 2.) Plaintiffs do not oppose this request. Under Rule 201, the court can 16 take judicial notice of “[p]ublic records and government documents available from reliable 17 sources on the Internet,” such as websites run by governmental agencies. See Gerritsen v.
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1 2 3 4 5 6 7 10 11 DARRYL DUNSMORE, ERNEST Case No.: 20-cv-00406-AJB-WVG ARCHULETA, ANTHONY 12 EDWARDS, REANNA LEVY, JOSUE ORDER GRANTING MOTIONS TO LOPEZ, CHRISTOPHER NELSON, 13 CHRISTOPHER NORWOOD, and DISMISS SECOND AMENDED LAURA ZOERNER, on behalf of COMPLAINT 14 themselves and all others similarly situated, (Doc. Nos. 109, 125, 133, 134) 15 Plaintiffs, 16 v. 17 SAN DIEGO COUNTY SHERIFF’S DIEGO, CORRECTIONAL TRI-CITY MEDICAL CENTER, MID-AMERICA HEALTH, INC., DIEGO COUNTY PROBATION 22 DEPARTMENT, and DOES 1 to 20, inclusive, 23 Defendants. 24 Presently pending before the Court is Defendants Logan Haak, M.D., Inc., Liberty 25 Healthcare, Inc., County of San Diego, and Correctional Healthcare Partners, Inc.’s 26 (collectively, “Defendants”) motions to dismiss. (Doc. Nos. 109, 125, 133, 134.) The 27 motions are fully briefed, (Doc. Nos. 136, 144, 160, 170, 174, 177, 178, 187), and the 28 1 matter is suitable for determination on the papers. For the reasons set forth below, the Court 2 GRANTS Defendants’ motions to dismiss. 4 Plaintiffs Darryl Dunsmore, Ernest Archuleta, Anthony Edwards, Reanna Levy, 5 Josue Lopez, Christopher Nelson, Christopher Norwood, and Laura Zoerner (collectively, 6 “Plaintiffs”) are current or former inmates of San Diego County Jail facilities (the “Jail”), 7 operated by Defendants San Diego County Sheriff’s Department (“Sheriff’s Department”) 8 and County of San Diego (the “County”) (collectively, “County Defendants”). Correctional 9 Healthcare Partners, Inc. (“CHP”) and Liberty Healthcare, Inc., (collectively, “Contractor 10 Defendants”) provide security, medical care, mental health care, and dental care to the 11 individuals incarcerated in the Jail. Plaintiffs bring this action on behalf of “themselves 12 and the approximately 4,000 incarcerated people who are similarly situated on any given 13 day” to “remedy the dangerous, discriminatory, and unconstitutional conditions in the Jail.” 14 (Second Amended Complaint (“SAC”), Doc. No. 81, ¶ 6.) Specifically, Plaintiffs contend 15 Defendants’ policies and practices contribute to the high death rates in the Jail, which “has 16 for years exceeded the rates nationally and in other large California jails, [and] it reached 17 chilling heights in 2021 when 18 people died, amounting to a death rate of 458 incarcerated 18 people per 100,000.” (Id. ¶ 1.) 19 To this point, the California State Auditor’s February 3, 2022 report found that “the 20 Sheriff’s Department has failed to adequately prevent and respond to the deaths of 21 individuals in its custody.” (Id. ¶ 2 (quoting Doc. No. 119-3 at 44).) These deaths are “often 22 attributable to suicide, overdoses, homicide, and medical neglect, and many involved 23 persons with a mental illness.” (Id. ¶ 3.) As such, Plaintiffs seek declaratory and injunctive 24 relief against Defendants for their “deliberate indifference to their obligation to provide 25 incarcerated people with minimally adequate medical care[,]” (id. ¶ 7); “deliberate 26 indifference to their failure to provide incarcerated people with minimally adequate mental 27 health care[,]” (id. ¶ 9); “systemic and willful discrimination against, and failure to provide 28 reasonable accommodations in, programs, services, and activities to incarcerated people in 1 the Jail who have disabilities[,]” (id. ¶ 10); “deliberate indifference to their failure to ensure 2 the safety and security of incarcerated people against other unreasonably dangerous 3 conditions in the Jail[,]” (id. ¶ 11); “deliberate indifference to their failure to provide 4 incarcerated people with adequate dental care[,]” (id. ¶ 12); and “interference with 5 Plaintiffs’ right to effective assistance of counsel and right to access the courts . . . .” (id. 6 ¶ 13). 7 The SAC alleges violations of (1) the Eighth Amendment, pursuant to 42 U.S.C. 8 § 1983; (2) the Fourteenth Amendment, pursuant to § 1983; (3) Article 1, Section 7 of the 9 California Constitution; (4) Article 1, Section 17 of the California Constitution; (5) the 10 Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12132, 12203; (6) the ADA, 11 § 12188; (7) the Rehabilitation Act, 29 U.S.C. § 794; (8) the Unruh Civil Rights Act, Cal. 12 Civ. Code § 51 et seq.; (9) Cal. Gov’t Code § 11135; (10) the Sixth Amendment, pursuant 13 to 42 U.S.C. § 1983; (11) Section 15 of the California Constitution; (12) the Fourteenth 14 Amendment, pursuant to § 1983; (13) Section 7 of the California Constitution; (14) the 15 ADA for discrimination contributing to unnecessary incarceration and institutionalization; 16 and (15) Cal. Gov’t Code § 11135 for discriminatory impact. (Id. ¶¶ 398–464.) 18 Federal Rule of Evidence 201(b) permits judicial notice of any fact “not subject to 19 reasonable dispute because it: (1) is generally known within the trial court’s territorial 20 jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy 21 cannot be questioned.” Fed. R. Evid. 201(b); Khoja v. Orexigen Therapeutics, Inc., 899 22 F.3d 988, 999 (9th Cir. 2018). Moreover, “[a] district court ruling on a motion to dismiss 23 may consider a document the authenticity of which is not contested, and upon which the 24 plaintiff’s complaint necessarily relies.” Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 25 1998), superseded by statute on other grounds as recognized in Abrego Abrego v. The Dow 26 Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006); Knievel v. ESPN, 393 F.3d 1068, 1076 (9th 27 Cir. 2005). Further, when ruling on a Rule 12(b)(6) motion to dismiss, courts may consider 28 1 material properly subject to judicial notice without converting the motion into one for 2 summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). 3 A. Plaintiffs’ Requests for Judicial Notice 4 To begin, Plaintiffs request judicial notice of three contracts, each with San Diego 5 County. (Doc. Nos. 136-1, 160-1, 170-1.) Specifically, these contracts are between San 6 Diego County and Defendants Haak, Liberty, and CHP, respectively. (See id.) Defendant 7 CHP joins in Plaintiffs’ request for judicial notice of its contract with San Diego County. 8 (See Doc. No. 135 at 2, 4.) However, the Court does not rely on these documents in 9 reaching its conclusion below. Accordingly, the Court DENIES AS MOOT Plaintiffs’ 10 requests for judicial notice as to these exhibits. 11 B. CHP’s Request for Judicial Notice 12 Next, CHP requests judicial notice of several documents. (Doc. Nos. 135, 179.) First, 13 CHP requests the Court to take judicial notice of the California Secretary of State’s 14 business entity records for CHP, which shows its date of incorporation as June 4, 2020. 15 (Doc. No. 135 at 2.) Plaintiffs do not oppose this request. Under Rule 201, the court can 16 take judicial notice of “[p]ublic records and government documents available from reliable 17 sources on the Internet,” such as websites run by governmental agencies. See Gerritsen v. 18 Warner Bros. Ent. Inc., 112 F. Supp. 3d 1011, 1033 (C.D. Cal. 2015); see also Daniels- 19 Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 999 (9th Cir. 2010) (taking judicial notice of 20 information on the websites of two school districts because they were government entities). 21 The Court will therefore GRANT CHP’s request for judicial notice of the business entity 22 profile on the California Secretary of State’s website. 23 CHP further requests judicial notice of (1) the existence of the County of San 24 Diego’s business record, a termination letter, which shows the date of termination of 25 contract number 563402 of May 31, 2022; and (2) the existence of the service agreement 26 between the County of San Diego and NaphCare, Inc. and NaphCare of San Diego, LLC 27 (collectively, “NaphCare”), which identifies the initial term of such agreement as 28 commencing on June 1, 2022. (Doc. No. 179 at 2.) However, the Court does not rely on 1 these documents in reaching its conclusion below. Accordingly, the Court DENIES AS 2 MOOT CHP’s requests for judicial notice as to these exhibits. 4 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings 5 and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state 6 a claim upon which relief may be granted. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 7 2001). The court may dismiss a complaint as a matter of law for: “(1) lack of cognizable 8 legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare Dental 9 Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). 10 However, a complaint survives a motion to dismiss if it contains “enough facts to state a 11 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 12 (2007). 13 Notwithstanding this deference, the reviewing court need not accept legal 14 conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for the 15 court to assume “the [plaintiff] can prove facts that [he or she] has not alleged.” Associated 16 Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 17 (1983). On the other hand, “[w]hen there are well-pleaded factual allegations, a court 18 should assume their veracity and then determine whether they plausibly give rise to an 19 entitlement to relief.” Iqbal, 556 U.S. at 679. The court only reviews the contents of the 20 complaint, accepting all factual allegations as true, and drawing all reasonable inferences 21 in favor of the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002), 22 superseded by statute on other grounds, ADA Amendments Act of 2008, Pub. L. No. 110– 23 325, §§ 4(a), 8, 122 Stat. 3555. 25 The Second Amendment Complaint brings fifteen causes of action, seeking 26 injunctive and declaratory relief. Defendants Dr. Haak, Liberty, the County, and CHP each 27 move to dismiss Plaintiffs’ SAC pursuant to Federal Rule of Civil Procedure 12(b)(6). 28 /// 1 A. Claim One: Eighth Amendment 2 Individuals in state custody have a constitutional right to adequate medical 3 treatment. See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). For inmates serving 4 custodial sentences following a criminal conviction, that right is part of the Eighth 5 Amendment’s guarantee against cruel and unusual punishment. Id. However, pretrial 6 detainees have not yet been convicted of a crime and therefore are not subject to 7 punishment by the state. Accordingly, their rights arise under the Fourteenth Amendment’s 8 Due Process Clause. Bell v. Wolfish, 441 U.S. 520, 535–36 n.16 (1979). The specific right 9 at issue matters, because unlike the Eighth Amendment, the Fourteenth Amendment does 10 not require a plaintiff to prove a defendant’s state of mind. Kingsley v. Hendrickson, 576 11 U.S. 389, 395–97 (2015). 12 Plaintiffs allege in their Second Amended Complaint that they are pretrial detainees 13 and do not provide authority for the proposition that the cruel and unusual punishment 14 provision extends to persons other than convicted prisoners. Additionally, Plaintiffs’ rights 15 may be vindicated by the Fourteenth Amendment, which is referenced in the second claim. 16 Accordingly, they currently plead themselves out of a viable Eighth Amendment claim. As 17 such, the Court GRANTS Defendant CHP’s motion to dismiss Plaintiffs’ Eighth 18 Amendment claim as to all defendants WITHOUT LEAVE TO AMEND. 19 B. Claim Eight: Unruh Civil Rights Act Against County of San Diego 20 The County moves to dismiss Plaintiffs’ eighth claim for violation of the Unruh Civil 21 Rights Act, Cal. Civ. Code § 51, et seq., because county jails are not considered “business 22 establishments” and thus the Unruh Act does not apply to it. (Doc. No. 133 at 21.) Plaintiffs 23 concede that a claim under the Unruh Act does not lie against the County. (Doc. No. 177 24 at 8.) Thus, the Court GRANTS the County’s motion to dismiss the eighth claim against 25 it WITH PREJUDICE. See Taormina v. Cal. Dep’t of Corr., 946 F. Supp. 829, 834 (S.D. 26 Cal. 1996) (holding a prison does not qualify as a business entity under Cal. Civ. Code 27 § 51); Wilkins-Jones v. Cnty. of Alameda, No. C 08-1485 MHP, 2010 WL 4780291, at *9 28 1 (N.D. Cal. Nov. 16, 2010) (finding defendant County of Alameda was not liable under 2 Unruh Act). 3 C. Shotgun Pleading 4 Regarding the remainder of the SAC, Plaintiffs fall short of providing allegations 5 that are plausible. Plaintiffs’ 223-page SAC “incorporate[s] by reference” the preceding 6 paragraphs without regard to the relevancy of the earlier allegations or how they relate to 7 each claim. This is “shotgun pleading.” See Paylor v. Hartford Fire Ins. Co., 748 F.3d 8 1117, 1126 (11th Cir. 2014). 9 The allegations under the individual claims are also inadequate. These claims are 10 conclusory and lack specificity. For example, the first paragraph of the first claim 11 reincorporates the 397 preceding paragraphs while the two remaining paragraphs conclude 12 that Defendants subject Plaintiffs “to a substantial risk of harm and injury . . . . and have 13 condoned or been deliberately indifferent to such conduct.” (SAC ¶¶ 399–400.) “[M]ere 14 conclusory statements, do not suffice” for a pleading. Ashcroft, 556 U.S. at 678. 15 Many courts, including this one, have sharply criticized shotgun pleading. See 16 Mason v. Cnty. of Orange, 251 F.R.D. 562, 563 (C.D. Cal. 2008). This criticism is amply 17 justified, as “[e]xperience teaches that, unless cases are pled clearly and precisely, issues 18 are not joined, discovery is not controlled, the trial court’s docket becomes unmanageable, 19 the litigants suffer, and society loses confidence in the court’s ability to administer justice.” 20 Anderson v. Dist. Bd. of Trustees of Cent. Fla. Cmty. Coll., 77 F.3d 364, 367 (11th Cir. 21 1996). “Judges are not like pigs, hunting for truffles buried in briefs.” See United States v. 22 Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). Here, Plaintiffs’ myriad of claims and shotgun 23 pleading prevents the Court from determining the plausibility of its allegations and from 24 further analyzing the arguments. Therefore, the Court DISMISSES the SAC WITH 27 For the foregoing reasons, the Court GRANTS Defendants’ motions to dismiss. 28 Going forward, Plaintiffs are directed to file a new, more specific complaint and designate 1 ||the specific facts that underlie each claim, and the Defendant(s) to which a claim is 2 directed. Should Plaintiffs choose to do so, where leave is granted, they must file an 3 |}amended complaint curing the deficiencies noted herein by October 28, 2022. 4 6 Dated: September 27, 2022
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